General Terms and Conditions for the use of software and software services
§ 1 General / Scope
(1) These contractual conditions apply to the use of software and software services of Syncd GmbH (“Syncd”).
(2) Deviating, conflicting or supplementary General Terms and Conditions of the customer, even if known, shall not form part of the contract, unless their validity is explicitly agreed in writing.
(3) All offers and services of Syncd are exclusively addressed to merchants and commercially acting companies in the sense of the German Commercial Code, legal entities under public law or special funds under public law.
§ 2 Subject matter of the contract
(1) The subject matter of the contract shall be, depending on the offer or the order confirmation of Syncd:
a. the provision of Syncd’s own software (“Syncd software”) via the Internet as Software-as-a-Service (“SaaS”) to the customer as well as the granting of storage space on the servers used by Syncd and support from Syncd for the use of the Syncd software. This also includes the provision of platforms via the Internet as Platform-as-a-Service (“PaaS”) for customer’s own developments. Insofar as these Terms and Conditions contain provisions on Syncd software and SaaS services provided by Syncd, they also apply to PaaS services provided by Syncd;
b. Other software services and work services provided by Syncd, in particular training, configuration services, individual programming services or the creation of interfaces for the customer.
(2) Syncd is permitted to involve sub-contractors in the provision of services.
(3) In the event of contradictions between these contractual conditions and the offer or order confirmation of Syncd, the provisions of the offer or order confirmation of Syncd shall take precedence.
§ 3 Provision of the Syncd software
(1) The Syncd software is provided via the Internet as SaaS.
(2) Syncd will provide the customer the Syncd software for the contractually agreed duration and in the version agreed in each case at the router exit of the computer center where the server with the Syncd software is located (“transfer point”) for use against payment. Syncd does not owe the establishment and maintenance of the data connection between the IT systems of the customer and the described transfer point.
(3) The scope of functions of the Syncd software is set out in the respective current service description on the Syncd website at https://posos.cloud/software.
(4) Syncd will correct errors in the Syncd software as far as technically possible. An error exists if the Syncd software does not fulfill the functions specified in the service description so that the use of the Syncd software is impossible or restricted.
(5) Syncd continues regular development of the Syncd software and provides updates and upgrades.
§ 4 Granting of storage space for the use of the Syncd software (SaaS)
(1) Syncd shall provide the customer with the necessary storage space to the contractually agreed extent for the storage of his data. Should the storage space no longer be sufficient to store the data, Syncd will notify the customer. The customer can reorder corresponding quotas subject to availability on the servers used by Syncd.
(2) Unless otherwise agreed in writing, the customer is not entitled to make the storage space available for use by a third party in part or in full, whether for payment or free of charge.
(3) Syncd will take suitable precautions against data loss and to prevent unauthorized access to the data of the customer by third parties. This does not release the customer from his own obligation to secure his data.
§ 5 Support for the Syncd software
(1) Syncd provides support services during the following service hours: Monday to Friday 9:00 AM to 4:00 PM (local time). The support is not available on Sundays and Saturdays, Christmas Eve (December 24), New Year’s Eve (December 31) and public holidays in Hesse (Germany).
(2) A support case exists if an error occurs in the Syncd software and the customer reports this.
(3) Prior to reporting errors, the customer must, if possible, carry out an analysis of the system environment to ensure that the error is not attributable to system components which are not the subject of the agreement.
(4) The customer shall report the Syncd error immediately by e-mail to email@example.com. The report must describe the error and in particular the conditions under which it occurs and its effects in as detailed and comprehensible a manner as possible.
(5) The customer shall record any errors detected in a comprehensible form.
(6) The customer shall allow Syncd electronic access to the Syncd software for remote maintenance, insofar as this is necessary and possible for the provision of the service. customer shall establish the necessary Internet and network connections for this purpose; the customer shall in particular establish a communication link between himself and Syncd.
(7) Insofar as this is necessary for the provision of support services, the customer shall name to Syncd in text form at least one technically suitable employee who will assist Syncd as a contact person in the provision of support services. In addition, the customer shall grant Syncd the required access to the necessary records, documentation and information, in particular regarding its hardware and/or third-party software, and shall provide Syncd with any test plans, test data and test environments required for the performance of the maintenance and support.
(8) Syncd shall respond to the customer’s reports within two working days after receipt by telephone or in text form.
(9) The customer shall immediately take measures notified to him/her by Syncd to eliminate errors or defects.
§ 6 Interruption / Impairment of the availability of the Syncd software
(1) Syncd advises the customer that restrictions or impairments to the accessibility of the SaaS services may arise that are beyond Syncd’s control. This includes in particular actions by third parties not acting on behalf of Syncd, technical conditions of the Internet that cannot be influenced by Syncd as well as force majeure. The hardware, software and technical infrastructure used by the customer can also influence the services provided by Syncd. Insofar as such circumstances interrupt or impair the availability or functionality of the services provided by Syncd, this shall have no effect on the contractual conformity of the services provided.
(2) Furthermore, technically necessary adjustments, changes and additions to the Syncd services as well as measures which serve to identify, and remedy malfunctions may lead to a temporary interruption or impairment of availability. Such measures shall be announced to the customer by Syncd – as far as possible – with a reasonable period of notice in advance. The resulting interruptions or impairments shall not affect the contractual conformity of the services provided.
(3) The availability of Syncd’s SaaS services (outside public holidays in Hesse as well as Christmas Eve (December 24) and New Year’s Eve (December 31)) is 98.5% on average over the year. This does not include periods during which SaaS services are not available in accordance with paragraphs (1) and (2) above.
§ 7 Other software services and work services provided by Syncd
Software services and work services of Syncd, outside the SaaS services of Syncd, in particular training for the use of the Syncd software, configuration services or individual programming services are provided against payment on the basis of a separate written agreement between the parties.
§ 8 Acceptance of work services
Insofar as Syncd provides individual programming or other work services for the customer in accordance with the offer or order confirmation of Syncd, the following provisions shall apply:
(1) Upon completion, Syncd shall notify the customer that the work services are ready for acceptance. If the services to be accepted comply with the contractual agreements, the customer shall immediately declare acceptance on the corresponding acceptance protocol, unless there is a significant defect. Any defects must be recorded and specified in the acceptance protocol.
(2) In the event of minor defects, the provisions on liability for defects in work performances shall apply. If the customer refuses acceptance due to the existence of significant defects, Syncd shall be entitled to carry out repairs or replacement delivery and then to declare readiness for acceptance again; the provisions in paragraph (1) above shall then be applied again.
(3) If the customer does not declare acceptance fourteen calendar days after Syncd has notified the readiness for acceptance and has not complained about any significant defects in the meantime, the service shall be deemed to have been accepted. Acceptance shall also be affected by the fact that the customer uses the service without declaring to Syncd that the use is considerably reduced.
(4) If the parties have agreed on milestones or comparable project sections (e.g. in the form of sprints), in particular a time schedule, the customer is obliged to check the respective results of such sections immediately and to release them for further work by Syncd – within two weeks at the latest. The release shall be deemed a partial acceptance. The risk of any errors shall pass to the customer with the respective release declaration, unless the errors have arisen or could only be recognized in the context of the services following the release declaration.
§ 9 Rights of use
(1) Syncd grants the customer the non-exclusive, non-sublicensable and non-transferable right, limited to the term of the contract, to use the Syncd software for the intended purpose to the extent agreed in the offer or order confirmation from Syncd, provided that the customer pays the agreed remuneration (e.g. the monthly agreed payments).
(2) The customer is not entitled to make the Syncd software available for use by third parties, either against payment or free of charge. Notwithstanding this, the parties may agree that the customer is entitled to make the use of the Syncd software available to third parties to the extent of the licenses acquired by him, in particular e.g. companies associated with the customer within the meaning of § 15 AktG (German Stock Corporation Act) or his own end customers. The details are to be set out in a separate written agreement on the scope of use, remuneration and commitment of the third parties to the provisions of this license agreement. In particular, Syncd may make the use by third parties dependent on the conclusion of a separate license agreement with the third parties.
(3) Upon expiry of the term of the agreement, all of the customer’s rights of use to the Syncd software shall end and the customer is obliged to cease use immediately.
(4) The above paragraphs shall apply mutatis mutandis to industrial property rights arising within the framework of software services and work services including support services provided by Syncd. Temporarily unlimited, exclusive, sublicensable or transferable rights of use of the customer require an express written agreement between the parties.
§ 10 Duties of the customer
(1) The customer shall provide Syncd with reasonable support in the provision of the contractual services.
(2) In order to use the Syncd software, the system requirements resulting from the service description or the offer or order confirmation of Syncd must be fulfilled on the customer’s premises. The customer is responsible for this himself. The customer has informed himself about the service description and in particular the essential functional features of the Syncd software and is responsible for ensuring that the Syncd software meets his ideas, wishes and needs.
(3) The customer undertakes not to place any illegal content that violates laws, official regulations or the rights of third parties on the storage space provided. He must check his data and information for viruses or other harmful components before input and use state-of-the-art virus protection programs for this purpose.
(4) The customer is obliged to prevent unauthorized access by third parties to the protected areas of the software by taking suitable precautions. He must keep the access data made available to him/her secret and ensure that any employees to whom access data are made available also do so.
(5) The customer is responsible for the proper, complete and regular backup, entry and maintenance of his data and information as well as the documents provided by Syncd in the course of the execution of the contract. For this purpose, the customer shall make backups of all data stored by him on the servers of Syncd at least daily.
(6) The contents stored by the customer on the storage space intended for him may be protected by copyright and data protection law. The customer hereby grants Syncd the right to make the contents stored on the server accessible to the customer when the latter queries them via the Internet and, in particular, to copy and transmit them for this purpose and to keep them in a failure system or separate failure computer center for the purpose of data security. In order to eliminate faults, Syncd is also entitled to make changes to the structure of the data or the data format.
§ 11 Sales cooperation, mediation, deployment of employees at the customer’s site
(1) Insofar as the customer wishes a sales cooperation with Syncd, e.g. in such a way that the customer offers the Syncd software to its customers as part of its portfolio and/or Syncd arranges for its end customers to use the Syncd software, this will be done by means of a separate written agreement between the parties.
(2) For all employees employed by Syncd on the premises of the customer, the right to issue instructions and direct the customer’s business shall remain with Syncd without restriction. Syncd shall in particular be responsible for
a) the decision on the selection and number of staff to be deployed;
b) the determination of the working time and arrangement of possible overtime;
c) the granting of vacation and free time;
d) the execution of work controls and the supervision of the regularity of work processes.
§ 12 Remuneration, terms of payment
(1) The customer undertakes to pay Syncd the agreed remuneration (e.g. monthly user fees) plus statutory VAT. Unless otherwise agreed, the remuneration shall be based on the Syncd price list valid at the time of conclusion of the contract.
(2) Unless otherwise agreed, license fees and remuneration are payable in advance and are due upon receipt of the invoice. Payments shall be made without any deduction and free of charge for Syncd.
(3) The customer shall only be entitled to withhold payments or offset them against counterclaims insofar as his counterclaims have been legally established, are undisputed or have been accepted by Syncd. Furthermore, the customer may only exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 13 Liability for Syncd software defects (SaaS), blocking, release
(1) Syncd guarantees the functional and operational readiness of the Syncd software provided as SaaS during the term of the contract in accordance with these terms and conditions. § 536b BGB (knowledge of the lessee of the defect at the time of conclusion or acceptance of the contract) and § 536c BGB (defects occurring during the rental period; notification of defects by the lessee) shall apply. However, the application of § 536a para. 2 BGB (right of the lessee to remedy defects himself) is excluded. Also excluded is the application of § 536a para. 1 BGB (liability for damages of the landlord), as far as the standard provides for liability independent of fault.
(2) Syncd is entitled to immediately block access to the Syncd software (SaaS) and the storage space if there is reasonable suspicion that the stored data is illegal or violates the rights of third parties. A well-founded suspicion of illegality or violation of rights exists in particular if courts, authorities and/or other third parties inform Syncd of this. Syncd must inform the customer of the blocking and the reason for it without delay. The block is to be lifted as soon as the suspicion is invalidated. Syncd shall also be entitled to block if the customer, after a prior reminder setting a deadline and expiry of the deadline, delays payment of a due remuneration by more than four weeks. Syncd’s claim to remuneration shall remain unaffected by the suspension. The block shall be lifted again immediately after settlement of the arrears. The right to block access shall also exist as a milder remedy if Syncd has a right to extraordinary termination.
(3) The customer is solely responsible for all content and processed data used by him via the Syncd software and for any legal positions which may be required for this. In this context, the customer undertakes to indemnify Syncd against all liability and costs, including possible and actual costs of legal proceedings, if Syncd is claimed by third parties, including the customer’s employees personally, as a result of alleged actions or omissions by the customer. Syncd will inform the customer of the claim and, to the extent legally possible, give the customer the opportunity to defend itself against the asserted claim. At the same time, the customer shall immediately provide Syncd with all information available to it regarding the circumstances of the claim. Any further claims for damages by Syncd shall remain unaffected.
§ 14 Liability for defects in work services
(1) Syncd guarantees that the work performance complies with the agreed service description or the requirements in the offer or order confirmation of Syncd.
(2) The customer must immediately check the contractual conformity of the work performance as well as any preliminary and interim results sent for examination. In particular, the customer shall test thoroughly for freedom from defects and for usability in the concrete situation before commencing use. This also applies to work services which the customer receives within the scope of liability for defects. The customer must report defects in writing without culpable hesitation after discovery, describing the symptoms that have occurred. In particular, the customer is obliged to report obvious defects in writing within a period of ten days from delivery. The timely dispatch of the notice of defects is sufficient to comply with the deadline.
(3) In the event of a defect, Syncd shall, at its own discretion, either remedy the defect (e.g. by eliminating the defect or so-called “workarounds”) or deliver a replacement (“supplementary performance”). Syncd may refuse subsequent performance if it is only possible at disproportionate cost. In the event of a replacement delivery, Syncd shall bear the expenses required for this purpose, in particular transport costs, provided that these are not increased by the fact that the replacement delivery is taken to a place of performance other than the contractually agreed place of performance.
(4) If Syncd is not prepared or not in a position to provide subsequent performance, or if this is delayed beyond reasonable time limits for reasons for which Syncd is responsible, or if subsequent performance fails in any other way, the customer shall be entitled to assert its rights from withdrawal or reduction in price and damages within the framework of statutory provisions. Subsequent performance shall only be deemed to have failed if three attempts have been unsuccessful.
(5) Claims of the customer exceeding the subsequent performance, the right of withdrawal and reduction, in particular claims for damages including lost profits or due to other financial losses of the customer shall only exist to the extent of Syncd’s liability in accordance with these contractual terms.
(6) The warranty period shall be one year calculated from the start of the statutory limitation period. This shall not apply to claims of the customer against Syncd for damages caused intentionally or by gross negligence, which are the consequence of the absence of a guaranteed quality, which are the consequence of culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act.
§ 15 Liability, free services
(1) The following provisions shall apply to the liability of Syncd as well as to the own liability of its employees, vicarious agents and assistants – irrespective of the legal grounds:
a) Syncd shall only be liable for slight negligence (subject to a lesser degree of liability under statutory provisions, e.g. for care in its own affairs) if one of the essential contractual obligations has been violated and only for foreseeable damage, the occurrence of which must typically be expected. Essential contractual obligations are those obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on whose fulfillment the customer may rely.
b) Syncd shall not be liable for the loss of data to the extent that the damage is due to the fact that customer has failed to carry out regular and complete data backups and thereby ensure that lost data can be restored with reasonable effort.
c) Syncd shall be liable in accordance with the statutory provisions for damages to the customer which are caused intentionally or by gross negligence, which are the consequence of the absence of a guaranteed condition, which are the consequence of culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act.
d) Otherwise, Syncd’s liability shall be excluded.
(2) The customer shall be liable in accordance with the statutory provisions. In the event that Syncd services are used by unauthorized third parties using the access data of the customer, the customer shall be liable for any fees incurred as a result within the framework of statutory liability until receipt of the customer order to change the access data or the notification of the loss or theft, insofar as the customer is at fault for access by the unauthorized third party.
(3) Services free of charge: Insofar as Syncd provides additional services free of charge that are not part of the scope of services owed and expressly agreed in accordance with the offer or order confirmation of Syncd, Syncd shall only be liable for grossly negligent, intentional or fraudulent conduct; in the event of gross negligence, however, liability shall be limited to compensation for foreseeable damage typical of the contract. The customer shall not be entitled to the provision of such services free of charge; in particular, Syncd shall be entitled to discontinue such services at any time without prior notice.
§ 16 Term and termination of the contract for SaaS services
(1) The term of the agreement on the use of the Syncd software (SaaS) results from the offer or order confirmation from Syncd and the agreement reached with the customer. If no exact term has been agreed, the term is 1 year. The contractual relationship begins with the provision of the Syncd software. The agreement is automatically extended by 1 year in each case unless it is terminated by one party with three months’ notice to the end of the term.
(2) The right of the parties to terminate the agreement for good cause remains unaffected. Syncd is in particular entitled to terminate the agreement without notice if the customer is more than two months in arrears with the payment of a due remuneration despite a reminder. If the customer is responsible for the reason for termination, it is obliged to pay Syncd the agreed remuneration less expenses saved by Syncd up to the date on which the agreement would end at the earliest in the event of ordinary termination.
(3) Declarations of termination must be made in writing, excluding the text form, in order to be valid.
(4) Syncd is under no obligation to the customer to store data on the end of the contract. After termination of the agreement, Syncd shall surrender or make available for download to the customer all documents and data provided by the customer and still in the possession of Syncd in connection with the agreement in a customary business format selected by Syncd. Unless Syncd has storage obligations to the contrary, Syncd shall also delete the documents and data on its premises at the express written request of the customer; in this case, the customer shall indemnify Syncd against any claims due to faulty performance of the contract to the extent that Syncd can no longer provide evidence of proper performance of the contract due to the deletion.
§ 17 Data protection / Confidentiality
(1) Each party shall comply with the legal provisions on data protection and data security applicable to it. If and insofar as the customer processes personal data or allows personal data to be processed on IT systems for which Syncd or third parties on behalf of Syncd are technically responsible, an order processing agreement must be concluded in accordance with Art. 28 para. 3 EU Data Protection Basic Regulation (DSGVO) based on the Syncd model. In this case, the customer shall remain the responsible party with regard to personal data and must therefore always check whether the processing of such data relating to the use of the software is carried out in compliance with all data protection requirements, in particular whether it is supported by the relevant permits.
(2) The parties shall be obliged to keep permanently secret, not to pass on to third parties, to record or to use in any other way all information about the respective other party which they have become aware of or will become aware of in connection with this contract and which is marked as confidential or which is recognizable as business secrets (hereinafter referred to as “confidential information”) on the basis of other circumstances, unless the respective other party has expressly agreed to disclosure or use in writing or the information must be disclosed on the basis of the law, court decision or an administrative decision. The information shall not be considered confidential information within the meaning of this provision if
a) were already known to the other party beforehand, without information being subject to an obligation of confidentiality,
b) are generally known or become known without violation of the assumed confidentiality obligations,
c) be disclosed to the other party by a third party without breach of the confidentiality obligation.
The obligations under this provision shall survive the end of the contract.
§ 18 Applicable Law, place of jurisdiction, miscellaneous
(1) The law of the Federal Republic of Germany shall apply, excluding the provisions of international private law. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(2) Subject to the assignment of pecuniary claims in accordance with § 354 a HGB (German Commercial Code), the customer may not transfer individual rights of this contract or the contract as a whole to third parties unless Syncd expressly gives its written consent to do so.
(3) Failure to exercise a contractual right shall not be deemed to be a waiver of the right in question unless the holder of the right expressly notifies the other contracting party in writing.
(4) The place of performance for all obligations arising from this agreement is the registered office of Syncd. This shall also apply to the place of subsequent performance, unless otherwise agreed. If the customer is a merchant or commercially acting as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of Syncd. This shall also apply to persons who do not have a general place of jurisdiction in Germany, as well as to persons who have moved their place of residence or usual place of abode abroad after the conclusion of the contract or whose place of residence or usual place of abode is unknown at the time when legal action is taken. Syncd is also entitled to bring a legal dispute before a court of law.
(5) Verbal collateral agreements are invalid. Deviating or supplementary terms and conditions as well as amendments to this contract including this written form clause shall only apply if they have been agreed in writing and expressly marked as amendments or supplements.
(6) These terms and conditions are written in German and English. However, only the German version is legally valid and solely binding.
(7) The possible invalidity of one or more provisions of these terms and conditions shall not affect the validity of the remaining provisions.