GBTEC Software AG provides customers with business process management software or services on its websites https://www.gbtec.com and https://biccloud.com. The present Special Terms & Conditions of Use apply to the use of our website or services such as, for example, the BIC software which forms part of the services, including applications and associated documentation (jointly described as “Service”). Unless agreed otherwise in writing, the T&Cs of GBTEC Software AG also apply; these can be viewed and downloaded from the website Terms and Conditions. GBTEC Software AG provides customers with the opportunity to use the software applications for access via a telecommunications connection and storage for its application data on the terms set out below.
2. Nature and Scope of Service
- GBTEC Software AG provides the customer with the Service in the agreed version for its use at the service transfer point. The service transfer point for the use of the Service comprise the router ports of the computer centers used by GBTEC Software AG in which the respective servers used with the Software are located. The Service required for the use of the computing capacity is provided on servers and the memory on servers is provided by GBTEC Software AG. In addition to this, however, computing capacity and memory are required on the customer’s computers in accordance with the system requirements.
- Before first use of the Service of GBTEC Software AG and at regular intervals thereafter, the customer is obligated – where technically feasible – to carry out a backup to safeguard its data. Important note: In order to offer the customer the option of being able to work with the Service continuously, the Service or program can also be used offline. Before any planned offline use of the program – where technically feasible – the customer is also obligated to back up its data independently and comprehensively. On data protection by GBTEC Software AG see Para. 11.3.
- GBTEC Software AG is not responsible for the creation and maintenance of the data connection between the customer’s IT systems and the designated service transfer point.
- The number of accesses is governed according to the information stated in the contract or in accordance with Para. 14.1 ff. (Contract conclusion and temporary use of a free test version) based on the data entered in the Service by the customer at the time of registration or after registration; in particular the number of users. Users must be natural persons who are either employees of the customer or employees of affiliated companies as defined in § 15 ff. of the AktG (Aktiengesetz [German Stock Corporation Law]), and who can be placed by the customer under an obligation, comparable to that of an employee, to comply with the provisions of this contract based on this contractual agreement. Where GBTEC Software AG sends the customer access data that it has not selected itself (e.g., passwords, client certificates), these must be changed by the customer immediately and replaced with access data known only to it.
- At the start of the contract, GBTEC Software AG shall provide the customer with electronic user documentation for the Service in German and in English for each download or in an online version which will be updated regularly. In addition to this, GBTEC Software AG intends to provide its customers with so-called webinars from time to time. GBTEC Software AG shall inform customers after the contract is concluded as soon as the dates have been fixed.
The customer is entitled to store and print this documentation subject to maintaining the intellectual property rights notices and to make an appropriate number of copies for the purposes of this contract. The restrictions on the use of the documentation apply accordingly as agreed for the Service under Para. 4.
- Parts of the Service used or applied by the customer may be the property of partner companies (companies with which GBTEC Software AG has entered into a contractual partnership) (third-party service) and are supplied either by GBTEC Software AG or by these partner companies (third-party licensors). In the event that a provision is made by the partner company and the customer wishes to use this third-party service, it declares its agreement to use the third-party service in accordance with the conditions of use and other restrictions set out or referred to in the applicable license.
GBTEC Software AG shall ensure that the level of data protection between these companies is at least equivalent to that in this agreement between the customer and GBTEC Software AG, and that all statutory and contractual duties are observed.
8. Support, Maintenance and Care Services / Training / User Support
GBTEC Software AG shall provide its customers with detailed user documentation and videos for the operation of the Service; these can be viewed at any time at Downloads. GBTEC Software AG shall also implement regular updates, upgrades and releases with regard to the BIC software Service.
In addition, GBTEC Software AG offers a user support. This includes, in particular, the application/ operation support of the service as well as the support and consultation of errors due to misapplication of the service by the customer. Professional consultation and questions are not covered.
User support is provided in each case by telephone via supporthotline and/or by email firstname.lastname@example.org. For this purpose, the customer determines two administrators. The contact is made exclusively by these two administrators and GBTEC Software AG.
The customer shall only be entitled to obtain user support if he has previously fundamentally basic training or attended training courses by GBTEC Software AG, has seeked advices in the user documentation and participated in webinars about this problem.
GBTEC Software AG provides the two customer administrators to be nominated by the customer exclusively during the following service periods: Weekdays (Monday to Friday) from 9:00 a.m. to 5:00 p.m. (CET/CEST) with the exception of holidays in the federal state of North Rhine-Westphalia. The latter are treated like Sundays.
In addition, GBTEC Software AG is not responsible under this contract for providing advice/training/support or maintenance services with regard to the product and its possible application. The Parties may reach a separate agreement on these issues (subject to cost) (see also Para. 7.4).
9. Customers Duty of Cooperation
The customer shall assist GBTEC Software AG in the performance of the contractual services to an appropriate extent as set out below.
- The customer undertakes to handle the access and user data provided to it in confidence, safeguard it from access by third parties and not to share it with unauthorized third parties or users, unless expressly agreed by the Parties. The customer must take care to ensure that any employees provided with access data safeguard these in the same manner. The customer shall notify GBTEC Software AG immediately as soon as there is the suspicion that access data and passwords might have become known to unauthorized persons.
- It is the customer’s responsibility to ensure proper and regular protection of its data only to the extent that the Software provides the necessary technical requirements for this. This also applies to any documents supplied by GBTEC Software AG in the course of the implementation of the contract.
- The customer must fulfill the system requirements for the use of the Software which are derived from the service description (see also Para. 3.1). The customer shall bear the responsibility for this itself.
12. Confidentiality / Data Protection
The provisions of the General Terms & Conditions of Business of GBTEC Software AG as well as those of the order data processing agreement concluded between the Parties apply.
16. Transfer of Rights and Duties
The assignment of rights and duties arising from this contract is only permitted with the prior written consent of GBTEC Software AG. GBTEC Software AG is entitled to entrust third parties with the fulfillment of duties arising from this contract.
17. Final Provisions
- GBTEC Software AG reserves the right to make changes unilaterally to the content of these Terms & Conditions of Use and the service and product specification at any time, provided the change is based on objective reasons and this is reasonable for the customer, or if the change is only beneficial to the customer. Justified occasions for changes both to the service and product specification and to these Terms & Conditions of Use may be:
- new statutory or official requirements,
- requirements of a judicial ruling addressed to GBTEC Software AG,
- changes in the current market circumstances,
- changes to the financial circumstances,
- introduction of additional new services which require a service specification in the T&Cs, unless the previous user relationship is disadvantageously changed as a result,
- essential changes to close existing security gaps,
- adaptations which serve technical progress or are technically and procedurally essential, unless they have fundamental effects for the customer.
GBTEC Software AG shall inform the customer of the change in writing by email no later than four (4) weeks before the change comes into effect. The change shall require the consent of the customer. The Consent shall be deemed given and the General Terms & Conditions of Business, or new service and product specifications, will be included in the contract relationship unless the customer objects to the change, for the time the change comes into effect, by email or in writing within four (4) weeks after receipt of notification of the change. If the customer does object, it shall continue to be governed by the previous contractual provisions. GBTEC Software AG shall give the customer the appropriate deadline to respond as stated above as part of the communication regarding the changed version and point out the consequences of a failure to respond.
If the customer objects, each Party has the right to cancel the contract in writing or by email with the notice period applicable for ordinary termination.
- GBTEC Software AG is entitled to increase its usage fees as part of Cloud Computing and its recurrent services in order to balance out any increase in overall costs (general price movements). The overall costs consist, in particular, of costs for maintaining and operating the Cloud, including material costs, wage costs and overheads, service costs, costs for customer administration (IT support) and costs of general administration. The price adjustment may only be made up to the amount of the increased costs and according to the proportion of the increased cost elements to the overall costs; it is only permissible if the increased costs are based on changes that have occurred after the conclusion of the contract and which were not originally caused by GBTEC Software AG. Only one price increase for each product is permitted for each calendar year.
- If a price increase amounts to more than 5% of the price valid at the time of the increase, the customer is entitled to cancel the contract by email or in writing to the extent of the products affected by the price increase and – if the product concerned is a precondition for another product – also to the extent of such other product within four (4) weeks of receipt of the notification concerning the increase with effect from the time the increase comes into effect. If the customer makes use of this special cancellation right, the increase does not come into effect and the contract ends at the time the price increase comes into effect. If the customer does not cancel or does not do so within the deadline, the contract is continued at the new price at the time specified in the notification. GBTEC Software AG shall inform the customer of its right to cancel as part of the notification of the price increase, and specifically of the consequences of a cancellation that is not received within the deadline.
- If the actual overall costs at GBTEC Software AG, as defined in Para. 17.2, are reduced for reasons that occurred after contract signature and which were not caused by GBTEC Software AG, GBTEC Software AG shall take this into account appropriately and pass the reduction on to the customer at the amount of the cost reduction and according to the proportion of the reduced cost element to the overall costs.
- GBTEC Software AG shall inform the customer of any price adjustment at least four (4) weeks before it comes into effect.
- The present contractual relationship is governed solely by the law of the Federal Republic of Germany. The UN Sales Convention – CISG – does not apply.
- Where the customer of GBTEC Software AG is a merchant, legal entity under public law or a special fund under public law, the place of jurisdiction for disputes arising from this contract, its execution, and the validity of the contract is agreed as Bochum. GBTEC Software AG is also entitled to sue the customer at any other jurisdiction provided for by law.
- This agreement and its amendments, and all contractually relevant declarations, duties of communication and documentation require the written form, unless another form has been agreed or is stipulated by law.
- If individual provisions of this agreement are invalid, the validity of the remaining provisions is not affected thereby. In this case, the Parties shall work together to replace invalid rules with rules which as far as possible correspond to the invalid provisions.
- This agreement contains all the understandings between the Parties and replaces all other previous or simultaneous communications, negotiations, discussions, understandings, rules or agreements made verbally or in writing between the Parties in relation to the relevant products and services.
Version dated: 27/01/2020