SaaS Terms of Use LiGenius Solutions AG
1. Terms of use
The following conditions become legally binding for the customer with the registration. The customer is obliged BEFORE registering to read the following conditions carefully.
The SaaS Terms of Use are subject to the general terms and conditions of LiGenius Solutions AG, available at www.ligenius- solutions.com. General terms and conditions of the customer shall not apply unless their validity has been expressly agreed in writing between the parties. This shall also apply if one party unconditionally accepts services of the respective other party which it provides with reference to its general terms and con- ditions or if reference is made to general terms and conditions in subsequent agreements (e.g. in forms, etc.). In the event of any conflict between the general terms and conditions and these Terms of Use, the latter shall prevail for the use of SaaS services.
The customer acknowledges and accepts the following Terms of Use, which govern the access and use of the service by the customer. In addition, the customer agrees that unless ex- pressly stated otherwise, any new features that supplement or enhance the service and/or new services that the customer subsequently purchases shall be subject to these Terms.
2. Internet connection
DSL, cable or other high-speed Internet connection is required for proper transmission of the service. The customer is solely re- sponsible for obtaining and maintaining the network connec- tion that connects the customer’s network to the service, in- cluding (but not limited to) the “browser” software that sup- ports the protocol used by the service, including the Secure Socket Layer (SSL) protocol or other protocols accepted by the service, and adhering to the logon procedures for services that support such protocols.
LiGenius Solutions AG is not responsible for notifying the cus- tomer of available upgrades, bug fixes or enhancements to this software or for any threat to data transmitted over com- puter networks or telecommunications equipment (including but not limited to the Internet) that is not owned by LiGenius Solutions AG nor operated by LiGenius Solutions AG.
LiGenius Solutions AG assumes no responsibility for the reliability or performance of the connections described in this section.
3. Contact details of the customer
The customer is obliged to provide accurate, current and complete information regarding the lawful company name, address, e-mail address and telephone number and to keep this information up to date and update it immediately should it change.
4. User access and notification
The customer is responsible for the confidentiality and use of the passwords and user names of the user.
The customer shall also be responsible for all electronic com- munications, including those containing business information, account registration, account holder information, financial in- formation, customer data and any other data of any kind con- tained in e-mails or otherwise entered electronically through the service or customer account.
The customer shall take all economically reasonable measures to prevent unauthorised access to or unauthorised use of the
service and shall notify LiGenius Solutions AG immediately of any unauthorised access or unauthorised use of the service as well as of any loss or theft or unauthorised use of the user pass- word or the user name and/or account numbers of a user’s service.
5. Obligations of the customer
The customer shall comply with all applicable laws, contracts, rules and conventions relating to the use of the service, includ- ing without limitation those relating to data protection, elec- tronic communications and anti-spam legislation.
Unless expressly agreed otherwise, no part of the service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. The cus- tomer undertakes to access the service only via the user inter- faces provided by LiGenius Solutions AG. The customer may not mirror or frame any part of the service or create Internet links to the service that contain credentials, user names, pass- words and/or secure cookies. The customer shall in no way ex- press or imply that the opinions contained in the customer’s electronic communication are endorsed by LiGenius Solutions AG. The customer shall ensure that access to and use of the service by users is in accordance with this agreement, includ- ing but not limited to the customer’s users, contractors and agents and affiliates. Any act or breach by any of these con- tractors, agents or affiliates shall be deemed an act or breach by the customer and the customer waives any objection that the customer may have with respect to the exclusion of the customer’s liability for the acts, omissions or failure of the cus- tomer’s contractors, agents or affiliates to comply with these Terms.
6. Data transmission
The customer is aware that the technical processing and trans- mission of the customer’s electronic communication is essential for the use of the service. The customer acknowledges that the customer’s electronic communication includes transmission via the Internet and various networks, only part of which is owned and/or operated by LiGenius Solutions AG. The cus- tomer further acknowledges and understands that unauthor- ised persons may gain access to electronic communication if the communication takes place via the Internet, network communication facilities, telephone or other electronic means. LiGenius Solutions AG is not responsible if the electronic communication and/or customer data, which are transmitted during the transmission of data over networks which are not owned and/or operated by LiGenius Solutions AG, including but not limited to the Internet and the local network of the cus- tomer, are delayed, lost, changed, intercepted or stored.
7. Intellectual property rights
In the relationship between LiGenius Solutions AG and the cus- tomer, all legal titles and intellectual property rights to the cus- tomer data shall belong exclusively to the customer. The cus- tomer acknowledges and agrees that LiGenius Solutions AG, in connection with the provision of the service as part of its standard service, shall make daily backup copies of customer data in the customer account and store them for a reasona- ble period of time.
The customer agrees that all rights, titles and interests in and to any and all intellectual property rights with regard to the ser- vice are owned exclusively by LiGenius Solutions AG or its li- censees. The license granted to the customer does not trans- fer, implicitly or explicitly, any right to the service, ownership of the service or any intellectual property rights in the service, ex- cept as provided in these Terms. In addition, LiGenius Solutions AG shall have a royalty-free, worldwide, sublicensable, irrevo- cable and perpetual license to use the service and to incor- porate suggestions, improvement requests, recommendations or other feedback from the customer, including users, related to the operation of the service. Any rights not explicitly granted herein are reserved by LiGenius Solutions AG.
8. Warranty
A defect in the service exists only if the service does not essen- tially correspond to the description in the documentation. The documentation is the sole statement of the nature of the ser- vice and is an integral part of these Terms of Use.
LiGenius Solutions AG does not accept any warranty claims arising from or in connection with (a) the use of the software with hardware or software that does not comply with the re- quirements of the documentation; (b) changes to the soft- ware source code (unless such changes were initiated by Li- Genius Solutions AG); or (c) defects in the software due to im- proper use by the customer.
Defects in the service shall be remedied by LiGenius Solutions AG within a reasonable period of time, but at least 30 days, after notification by the customer. The licensee cannot de- mand a reduction of the agreed price. The customer’s right of termination due to non-granting of the use of the services in the agreed form is excluded unless subsequent improvement is to be regarded as having failed.
Failure to enable contractual use is only to be assumed if Li- Genius Solutions AG has been granted sufficient opportunity to remedy the defect without the desired success having been achieved, if the remedy is impossible, if it is refused by LiGenius Solutions AG or unreasonably delayed, if there are reasonable doubts as to the prospects of success or if unrea- sonableness for other reasons exists.
If a substantial defect cannot be remedied within a reasona- ble period of time or if the remedy is deemed to have failed for other reasons, the customer may withdraw from the con- tract and demand a pro rata refund of the fees paid in ad- vance with effect from the date on which the defect oc- curred. The assertion of claims for damages or the reimburse- ment of futile expenses are subject to the contractually agreed limitation of liability. Apart from liability according to the contractually agreed limitation of liability, this section con- clusively covers all claims for defects by the customer.
9. Indemnification
LiGenius Solutions AG will defend the customer at its own ex- pense and subject to the restrictions set forth herein, against all assertions, threats, claims, actions and proceedings of third parties who claim that the service, as used in accordance with this agreement, infringes copyrights, trade secrets or trade- marks of third parties (collectively, “claims”) and indemnifies the customer against any liability, damages and costs finally imposed on it or imposed in a settlement (including reasona- ble attorneys’ fees) (collectively, “losses”) to the extent they are based on a claim.
Excluded from the aforementioned obligations to provide compensation are claims to the extent that they arise from (a) the use of the service in violation of this agreement or applica- ble law, (b) the use of the service after LiGenius Solutions AG has informed the customer of the discontinuation of use due to an infringement claim, (c) modifications to the service that were not made by LiGenius Solutions AG, or (d) the use of the service in combination with a software, application or service other than that produced or provided by LiGenius Solutions AG.
If a claim is made or threatened, LiGenius Solutions AG will, at its sole discretion and expense, make commercially reasona- ble efforts to either (a) obtain a license to protect the cus- tomer from such action at no cost to the customer; (b) modify or replace the service, in whole or in part, as necessary to avoid violation, such update or replacement being substan- tially similar or better; or (c) terminate the contract and refund to the customer a pro rata refund of the subscription fees paid under the contract for the terminated portion of the term. The rights and obligations granted to the customer pursuant to this section 10.1 shall constitute the entire liability of LiGenius Solu- tions AG and the exclusive remedy of the customer with re- spect to any claims for infringement of intellectual property rights of third parties.
The aforementioned indemnification obligations are subject to the condition that the customer (i) immediately notifies Li- Genius Solutions AG in writing of any asserted claim; (ii) grants LiGenius Solutions AG the right to supervise or conduct the in- vestigation, defence and, if applicable, settlement (if applica- ble) of the asserted claim; and (iii) supports LiGenius Solutions AG to the extent reasonably necessary. LiGenius Solutions AG will not consent to any agreement which establishes the fault, liability or other obligations of the customer without the prior written consent of the customer.
10. Blocking and termination
10.1 Duration and termination
The provision of the cloud service begins on the day on which the respective purchase order comes into effect. The rental period of the software is specified in the respective purchase order.
Unless otherwise agreed between the parties in the individual contract, the service shall be subject to automatic renewal. In this case, the customer must terminate the subscription at least thirty (30) days prior to the extension of the current subscription period by written notice to LiGenius Solutions AG. Without writ- ten cancellation, the subscription is automatically extended for a further term and LiGenius Solutions AG is entitled to the subscription fees.
Upon termination of the cloud service, the software will be de- activated by LiGenius Solutions AG and cannot be used by the customer. Any retained documentation and backup cop- ies must be completely deleted.
10.2 Blocking
LiGenius Solutions AG reserves the right to interrupt the access and/or use of the service by the customer and related parties for all accounts (i) for which a payment is due but unpaid. Blocking applies to the entire account and the customer rec- ognises that such blocking would therefore also include sub- accounts of related parties.
The customer further agrees that LiGenius Solutions AG may block access to the service with reasonable notice to the cus- tomer if LiGenius Solutions AG reasonably concludes that the customer’s service is being used for denial-of-service attacks, spamming or illegal activities and/or the customer’s use of the service causes LiGenius Solutions AG or others direct, material and permanent damage. The customer further agrees that Li- Genius Solutions AG shall not be liable to the customer or any third party for any suspension of the service under the circum- stances described in this clause 11.2.
10.3 Termination for good cause
Either party may terminate this framework contract for good cause with immediate effect, without prejudice to any other rights or remedies, by written notice to the other party, in particular if the other party breaches a material contractual obligation and such breach is not remedied within thirty (30) days after written notice of such breach under penalty of termination for good cause;
- the assets of the respective other party are the subject of an application for the opening of insolvency proceedings;
- the shareholdings of the other party change substantially, whereby a change is deemed to be substantial if more than 50% of the shareholdings change.
Otherwise, the right to termination for good cause remains un- affected.
10.4 Termination of service
LiGenius Solutions AG reserves the right to discontinue the ser- vice at any time. Should LiGenius Solutions AG decide to dis- continue the service, the customer shall be notified in writing at least thirty (30) days before the end of the service. The cus- tomer has the sole and exclusive right to a pro rata refund of the subscription fees.
10.5 Customer data
The customer agrees that LiGenius Solutions AG may immedi- ately deactivate the customer’s account after termination and/or termination of the service and is entitled to delete the customer account and the associated data after a reasona- ble period of at least thirty (30) days. Upon written request of the customer and subject to full payment of all amounts owed, LiGenius Solutions AG grants the customer limited access to the service for the purpose of retrieving customer data.
11. Changes and innovations
LiGenius Solutions AG is not obligated and nothing in this agreement can be construed as requiring LiGenius Solutions AG to create, provide or install updates. The customer entitles LiGenius Solutions AG and agrees that LiGenius Solutions AG may from time to time make changes and updates to the ser- vice or certain components of the service. LiGenius Solutions AG will use commercially reasonable efforts to inform the cus- tomer of any material changes. LiGenius Solutions AG is neither liable to the customer nor to third parties for the changes to the service described in this clause.
12. General provisions
The invalidity or unenforceability of any provision of these Terms of Use shall not affect the validity or enforceability of the remaining provisions.
Unless otherwise regulated in these Terms of Use, all communi- cations and declarations may be made in writing and in text form.
Failure by LiGenius Solutions AG to enforce the terms of these Terms of Use shall not constitute a waiver of such term and shall in no way affect the right to enforce these terms at any time thereafter.
August 2019