SOFTWARE AS A SERVICE (SaaS) AGREEMENT – Draft
This Software as a Service (SaaS) Agreement (the “Agreement”) sets forth the obligations and conditions between you (the “Client”) and us (the “Provider”), relating to your use of the Service defined herein. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.
THIS DOCUMENT IS A TRANSLATION. IN THE EVENT OF ERRORS OR AMBIGUITIES, THE ORIGINAL GERMAN-LANGUAGE VERSION SHALL BE APPLIED.
BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, DO NOT USE THE SERVICES AND EXIT IMMEDIATELY.
(1) The Provider is the owner of certain proprietary computer software known as EVA (Electronic Validation Assistant) which is an Online-System for the administration of sporting events (EMS) and the execution of complex business processes (SCC) (hereinafter, the “Software”).
(2) The Provider provides and sells subscriptions to access and use the Software via EVAnet.at (hereinafter, the “Services”).
(3) The Client desires to use the Services for Client’s internal business purposes, including specifically use by Client’s customers (hereinafter, the “Authorized Users”) pursuant to the terms and conditions set forth herein.
(4) The Provider is willing to provide access to the Services for Client’s internal business use pursuant to the terms and conditions set forth herein.
(5) Provider and Client agree that this Agreement will become effective immediately upon Client clicks on “I agree“ in the Online Subscription-Form or signs this Agreement in writing (hereinafter, the “Effective Date“).
The parties therefore agree as follows:
§ 1 Contract Objective
(1) These terms and conditions apply to the use of the Software of the Provider according to the current product description as Software as a Service (“SaaS“).
(2) The software is operated by the Provider as SaaS- or Cloud-solution. The customer is enabled to use the Software stored on the server of the Provider or of a service provider commissioned by the Provider over an Internet connection during the term of this contract for his own purposes and to store and process his data with their help.
(3) These terms and conditions apply exclusively. Contractual terms of the Client do not apply. Counter-confirmations of the Client with reference to his own terms and conditions are expressly contradicted.
§ 2 Type and Scope of the Service
The Provider shall provide the Client with the latest version of the Software at the routers output port of the data center in which the server with the Software is located (hereinafter, the “Transfer Point“). The Software, the required computing power and data storage devices are provided by the Provider. The Provider does not owe the production and maintenance of the data connection between the Clients IT systems and the transfer point.
§ 3 Accessibility and Performance
(1) The Provider shall make reasonable efforts to have the Services available on a 24×7 basis (twenty-four hours per day, seven days per week). Exceptions are planned system maintenance and failures of the Internet Service Provider or its communication network.
(2) The Provider points out that restrictions or impairments of the Services may arise beyond the control of the Provider. This includes, in particular, acts by third parties which are not acting on behalf of the Provider, technical conditions of the Internet that can not be influenced by the Provider and force majeure. Moreover the hard-/software and technical infrastructure used by the Client may also influence the Services of the Provider. Insofar as such circumstances affect the availability or functionality of the Services, this has no effect on the contractual conformity of the Services provided.
(3) The Client is obligated to immediately notify functional defects, malfunctions or impairments of the Software as precisely as possible to the Provider.
§ 4 Data Processing and Data Backup
(1) The Provider acts according to the legal data protection regulations.
(2) For the purpose of the contract execution, the Client grants the right to the Provider to duplicate his data to be stored as a backup, if it is necessary for the performance of the Services owed under this contract. The Provider is also entitled to maintain the data in a backup system or separate backup data center. For the elimination of disturbances, the Provider is further entitled to make changes to the structure of the data or the data format.
(3) The Provider regularly saves the Client’s data on an external backup server. The Client may request this data, as far as technically possible, at an additional cost.
(4) If the Client processes personal data using the Providers Services, an order data processing agreement must be concluded.
§ 5 Maintenance and Support
(1) The Provider shall maintain the Software and provide all patches and fixes at no additional cost. This maintenance shall not include any major releases of new versions, additional functionality or custom programming, which the Provider may provide at an additional cost.
(2) A support case exists if the software does not fulfill the contractual functions according to the product description. If the customer notifies a support case, he has to provide the most detailed description of the respective malfunction in order to facilitate an efficient trouble shooting.
§ 6 Remuneration
(1) Payment period, amount of remuneration and method of payment are, unless otherwise agreed, according to the valid price list.
(2) If the Client delays the payment of a due payment by more than four weeks, the Provider is entitled to block the access to the Software after prior reminder with deadline and expiry of the period. The blockage has no affect on the Clients’s payment obligation. The access to the Software will be released immediately after the due payment has been balanced.
(3) The Provider may adjust the prices as well as the rates for an agreed remuneration annually according to the general price development. If the increase is more than 5%, the Client has the right to terminate the contract to the end of the current month.
§ 7 Client’s Obligation to Cooperate
(1) The Client will support the Provider in providing the contractual Services to an appropriate extent.
(2) The proper and regular backup of his data is the sole responsibility of the Client.
(3) For the use of the Software, the system requirements according to the product description must be met by the Client. The Client bears responsibility for this himself.
(4) The Client must keep the access data provided to him secret. He has to make sure that any employees to whom access data are provided, act the same way. The Service of the Provider may not be made available to third parties unless expressly agreed by the parties.
§ 8 Warranty
Principally, the statutory provisions for warranty apply. Excluded are the right of self-destruction of the Client as well as the liability of the Provider as far as the law has foreseen a strict liability.
EXCEPT FOR THE WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS”. THE PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
§ 9 Liability and Remedy
The Provider is liable for damages of the Client according to the statutory provisions, which were caused intentionally or grossly negligent, are the result of the absence of a guaranteed condition, are based on a culpable violation of essential contractual obligations (so-called cardinal obligations) or are the result of culpable injury to health, body or life.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY DAMAGES OR DAMAGES DUE TO BUSINESS INTERRUPTION, LOSS OF BUSINESS PROFIT, LOSS OF BUSINESS INFORMATION OR ANY OTHER PARTICULAR LOSS ARISING BECAUSE OF THE USE OR THE INABILITY TO USE THE SERVICES.
§ 10 Client Data and Exemption from Claims of Third Parties
(1) As an application service provider the Provider stores content and data for the Client, which he has entered, stored and provided for retrieval when using the Software. The Client obligates himself, not to enter criminal or unlawful content and not to use software containing virus or other malware.
(2) The Client is solely responsible for all data entered and processed by him as well as the required legal positions. The Provider takes no notice of the content and does not examine the content in any way.
(3) The Client can not assert claims against the Provider based on theories of negligence, gross negligence, strict liability, fraud or misrepresentation. The Client must hold the Provider harmless from any demands, losses, indemnities and costs (including attorneys fees), directly or indirectly resulting from Client’s use of the Services, an Authorized User’s use of the Services or any agreement between the Client and an Authorized User based on or in any way related to the Services.
(4) Further claims for damages of the provider remain unaffected.
§ 11 Agreement Period and Termination
(1) The duration of this Agreement is 1 year. It is automatically renewed for another year, unless terminated by either party in writing 3 months prior expiration. Upon termination of this Agreement for any reason, all to the Client granted rights shall immediately terminate. In this case the Client shall cease using the Services and shall prohibit Authorized Users from using the Services.
(2) The extraordinary termination remains reserved to both parties if the legal requirements are met. An important reason for the Provider is in particular if the Client fails to make any payment when due and fails to cure said default within eight (8) days after receipt of written notice thereof from the Provider.
(3) Notices of termination must be in writing. Fax and email are also legal to be used.
(4) After termination of the Agreement, the Provider shall return to the Client all documents and data carriers provided by the Client or related to this Agreement and delete all saved data as long as there are no legal obligations to store them.
§ 12 Confidentiality
(1) The Client shall use reasonable efforts (but in no case less than the efforts used to protect his own proprietary information) to protect all confidential and non-public information related to the Software, the Services, the Provider’s financial, professional and other business affairs, as well as this Agreement (the “Confidential Information”).
(2) Client shall not disclose or publicize the Confidential Information without the Provider’s prior written consent.
(3) The Client shall use reasonable efforts (but in no case less than the efforts used to protect his own proprietary information) not to disclose and not to use the Confidential Information for his own benefit or for the benefit of any other person, third-party or corporation in a manner inconsistent with the purpose of this Agreement.
(4) The restrictions on disclosure shall not apply to informations which are (i) generally available to the public at the time of disclosure or later available to the public other than through fault of the Client, (ii) already known to the Client prior to disclosure pursuant to this Agreement, (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others or (iv) required by law or court order to be disclosed.
(5) The conditions of confidentiality and secrecy of this Agreement shall survive termination of this Agreement.
§ 13 Transfer of Rights and Duties
The assignment of rights and obligations under this Agreement is only permitted with the prior written consent of the Provider. The Provider is entitled to entrust third parties with the fulfillment of the obligations under this Agreement.
§ 14 Miscellaneous
(1) This agreement and its amendments as well as all contractually relevant declarations, notifications and documentations must be made in writing unless otherwise agreed or required by law.
(2) This Agreement shall be governed exclusively by the laws of Austria, regardless to its conflicts of laws principles. Any action under or concerning this Agreement shall be brought exclusively to the District Court of Wels, Austria.
(3) The Client shall use the Services in accordance with any and all applicable local, state and federal laws.
(4) The paragraph headings in this Agreement are for convenience only, are not part of the Agreement and shall not affect the interpretation thereof.
(5) If any provision of this Agreement shall be held illegal, void or unenforceable, the remaining portions shall remain in full force and effect.
(6) The Client shall not assign or transfer this Agreement.
BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.