Hoffmann SEHoffmann SEToolScout

General Terms and Conditions for Software-as-a-Service (SaaS) and associated services for business clients

§ 1 Application area and object of the contract

  1. 1.1 We, Hoffmann SE, Haberlandstrasse 55, 81241 Munich (hereinafter "Hoffmann", “we", "us"; you will also find further details about our company in the legal details on our website at https://www.hoffmann-group.com/DE/de/hom/company/impressum, offer our registered business clients (hereinafter “client”, “you”, “to you”) the digital service platform developed by us (hereinafter “service platform") and the products on this service platform for use of the provided software solutions and products (hereinafter referred to jointly as “software products") and further associated range of services (e.g. provision of storage space, support services, data analyses) in accordance with the requirements of these General Terms and Conditions (hereinafter “GTC") – to be used on a fee or free-of-charge basis depending on the software product.
  2. 1.2 These GTC only apply to our business clients, i.e. businesses (section 14 of the German Civil Code [BGB]), legal persons under public law or public law special fund, as defined by section 310(1)1 BGB.
  3. 1.3 The software products usable under the service platform are a software-as-a-service (SaaS) offer. This means that we provide our clients with the respective software via the Internet from our servers for remote data access, unless agreed to the contrary in the individual case. The details specified in each up-to-date product sheet are relevant for the quality of the individual software products and the associated service offers and also the details in these GTC (see items 3 and 4 for details). It may be possible or necessary for the client to store certain data as part of using the service platform of a software product, in particular, (e.g. machine data, process data, employee data, tool data) on the service platform; in this case, the client will be provided with the necessary storage space on our data servers (see item 5 for details).
  4. 1.4 Any conflicting General Terms and Conditions of the client shall not apply. They shall also not apply, even if Hoffmann does not explicitly reject them.

§ 2 Platform registration, rights and responsibility

  1. 2.1 Our service platform may only be used by business clients who have previously registered with Hoffmann with the help of an individual user name and password (hereinafter referred to jointly as “access data"). With the help of the access data you can then act on behalf of the business client (company) to which the access data is assigned.
  2. 2.2 If you do not already have access data for the service platform, you can obtain this by registering as a new client using the service platform. To do this, you must create a client account by giving your personal data (in particular, company, address, password, contact details of the contact). Before releasing a client account, the data provided must be checked by Hoffmann, in particular, the data provided must be complete and accurate. If the check is positive, the client will be registered, the client account generated, and the client will receive their access data. The client will then be able to register on our service platform using the access data. Hoffmann reserves the right, without giving a reason, to reject or revoke the registration as a client.
  3. 2.3 Each client may create several user accounts for individual users within their client account on the service platform (hereinafter “users") by giving their name and email address and then managing these. The users, who are generally employees of the client, may then be assigned different roles (e.g. “admin user” or “simple user”). Each user receives an individual access right for the user rights acquired by the client and may use these with the help of the client’s access data in accordance with their product-specific settings, unless this is not possible within the particular software product.
  4. 2.4 The client may only communicate the access data to the users authorised by them and must also be stored securely and kept secret. As far as the password to be assigned to you is concerned, we recommend you use at least eight characters using lower and upper case letters, numbers and special characters for security reasons; change your password straight away and inform us if you suspect that someone is using your access data without permission. Also bear in mind that you are responsible if other persons (particularly your users) use our service platform with permission via your Internet connection, your end device or with the help of the access data assigned to you. People who use the service platform in your knowledge are to be made aware of the validity of these GTC and all other relevant requirements and you have to ensure that these are adhered to. All acts undertaken with your client account, whether authorised or not, shall be considered as undertaken by you or in your name; your responsibility is restricted, however, if you are able to prove that despite exercising reasonable care, you have been the victim of an unlawful action by third parties (e.g. hackers, thieves, fraudsters).
  5. 2.5 All personal data provided as part of the registration, order or user rights by the client shall only be processed by companies of the Hoffmann Group (cf. https://www.hoffmann-group.com/DE/de/hom/company/group/standorte), particularly for the purpose of order processing and customer support. Please follow our data protection information for the service platform on the purpose and scope of processing of your data (accessed at our website https://www.hoffmann-group.com) and the data protection information for our other online offers that you use.

§ 3 Ordering and using software products

  1. 3.1 If you (or one of your users) would like to use one of our software products offered via our service platform, you (or a user) must place a corresponding order.
  2. 3.2 The application area and the functional scope of the software product offered, and the technical and organisational conditions on their use (e.g. the requisite bandwidth of the remote data connection) can be viewed prior to purchase in the respective, latest retrievable product description (hereinafter “product sheet"). After concluding the order, the client also receives access to a handbook, in which the respective functionality of the software product is once again explained in detail.
  3. 3.3 The software products are always provided with a definite functionality determined by us. Regular updates and upgrades to the software products are carried out automatically and are included in the respective order scope. Essential new features or fee-based upgrades to higher value products may be offered as new licences. All contractual rights and obligations apply exclusively to the software product designated in the order, unless explicitly agreed otherwise; user-specific updates or upgrades to the software products must be agreed and paid for separately. If the client requires user-specific updates or upgrades, this must be detailed as part of the order.
  4. 3.4 When we confirm an order, a licence agreement comes into effect between Hoffmann and you for the software product ordered (hereinafter “licence agreement"). As part of the licence agreement, Hoffmann provides the client with the latest version of the software product for the duration of the licence agreement for access via the Internet. Unless agreed to the contrary in the order or in the licence agreement, Hoffmann will set up the software on a server for this purpose, which the client is able to access via the Internet. The software products are always made available 24 hours per day; a software product cannot be available, however, during necessary maintenance work and/or other downtimes. A temporary interruption or interference with use of the software products due to updates, upgrades or changes to the software products or other measures (maintenance, troubleshooting, etc.) shall only occur if this is unavoidable for technical reasons; if the interruption or interference lasts for more than 24 hours, you will be informed by email about the reasons and duration of the likely interruption or interference.
  5. 3.5 Hoffmann shall provide or distribute the software products at the agreed handover point (router output of the computer centre), in which the server is located), unless agreed to the contrary, on Hoffmann’s server. The client is solely responsible for creating and maintaining the requisite data connection based on the product sheet between our server (handover point) and the client’s IT system. To use the software products successfully, the client must also meet the respective further necessary obligations to cooperate (see item 7 for details).
  6. 3.6 The client is not entitled to assign or otherwise cede rights and obligations from the licence agreement to third parties, in full or in part, unless Hoffmann has previously given its explicit consent in writing to such assignment or cession. Hoffmann may not withhold this consent unreasonably.

§ 4 Rights to use the software

  1. 4.1 Unless stipulated to the contrary in the product sheet, Hoffmann is the sole and exclusive owner of all rights to the software products provided via the service platform, in particular, the corresponding proprietary, intellectual property and trademark rights and any trade and business secrets associated with such.
  2. 4.2 Hoffmann shall grant the client a simple, non-exclusive right that is only transferrable on the basis of the regulation of item 3.6 of these GTC to use the ordered software product during the term of the licensing agreement and only for internal business processes. If the client has been granted rights of use, these will also encompass usage by the client’s users.
  3. 4.3 The client shall not be granted access to the software product’s source code and the client is obliged not to arrange or enable reverse engineering, disassembling, decompilation, translation or inadmissible disclosure, unless this is not permitted under applicable law in force.
  4. 4.4 The client may not duplicate the software product, unless this is covered by the intended use based on the description in the product sheet, or required, or otherwise permitted based on mandatory legal requirements for the purposes of a reasonable backup or recovery in the event of an emergency. Duplication as intended includes the loading into the working memory on Hoffmann’s server, although not the only temporary installation or storage of the client’s data media (such as hard drives etc.). Documentation may only be duplicated for internal use.
  5. 4.5 The client is not entitled to provide software products to third parties for use, for a fee or free of charge. (For the sake of clarity, users are not third parties in this context.) The client is therefore explicitly prohibited from subleasing the software products.

§ 5 Provision of storage space for client’s data

  1. 5.1 As part of using the software products the client may be given storage space to an extent reasonable for the specific product on a data server of Hoffmann. The client and their users may use this storage space to be able to store, view and edit data that is necessary in order to use the software products (for example, about machines available at the client). No separate costs are incurred for the provision of storage space in addition to any payment to be made for the respective software product.
  2. 5.2 The client’s data may be stored either as part of the ongoing usage of the software product or by a transfer from a database of the client on the data server. In the event that data is transferred from a database of the client, the client must notify Hoffmann of the technical details necessary for the transfer at least four weeks before the intended transfer of the data. After concluding a separate agreement, Hoffmann will support the client with the transfer of data for a fee to be agreed separately.
  3. 5.3 The client is obliged not to store any content in the storage space made available, whose provision, publication or use breaches applicable law, official requirements or third-party rights. The client is further obliged to check their data and information for any viruses or other harmful components prior to storage on Hoffmann’s data servers and to use appropriate state-of-the-art measures for this (e.g. anti-virus programs).
  4. 5.4 If the content to be stored by the client is to be protected by copyright or other property rights, to which the client is the owner, the client shall hereby grant Hoffmann the right to make the content stored on the data server available to the client at their request and also to duplicate and transmit it, provided this is necessary to provide the contractual services and obligations. These include the purposes of data backup, in particular, (see item 5.7for details) and all necessary measures for the purposes of providing support services and rectifying faults, in particular, changes to the structure of the data or the data format.
  5. 5.5 If the client processes personal data themselves or by means of the software product or in connection with the storage space with which they have been provided (e.g. employee data), they are responsible for adhering to the applicable data protection regulations. Hoffmann shall only process personal data transmitted by the client in accordance with the client’s instruction; Hoffmann and the client conclude an order processing contract electronically for this purpose. If Hoffmann is of the opinion that an instruction of the client breaches data protection regulations, Hoffmann shall indicate this to the client without delay. In the event of a breach despite such indication, the client shall release Hoffmann from all third-party claims, any fines, etc., including reasonable costs for legal defence. Hoffmann offers the client the encrypted transmission of data.
  6. 5.6 The client is not entitled to assign the storage space with which they have been provided for use by third parties, for a fee or free of charge. (For the sake of clarity, the client’s users are not third parties in this context.) The client is therefore explicitly prohibited from subleasing the storage space.
  7. 5.7 Hoffmann is obliged to take suitable precautions against data loss and to prevent unauthorised access to the client’s data by third parties. We make backups for this purpose at least daily.
  8. 5.8 In the event that the licence agreement is terminated, Hoffmann shall issue the client with the data that is located on the storage space assigned to them, following a corresponding request by the client or let them have a copy of the data; unless there is a statutory requirement to provide information (e.g. based on GDPR), Hoffmann may demand a reasonable fee to carry this out based on the expenditure incurred. The stored data shall be erased 30 days following issue of the data to the client, unless the client communicates within this period that the data passed on is not readable or not complete. Failure to communicate shall be taken as consent for the data to be erased. The client is solely responsible for observing commercial and fiscal retention periods.

§ 6 Support services

Should problems arise with use of a software product and the associated service offers , the client or their user may phone or email our general customer service within our specified business hours (contact data available at https://www.hoffmann-group.com/DE/de/hom/company/kontakt) or their respective individual Hoffmann contact (customer advisor). Hoffmann will endeavour to rectify the problem straight away.

§ 7 Client’s duty to cooperate and obligations

  1. 7.1 Unless explicitly stipulated elsewhere in these GTC, the client must observe the following obligations when using services via the service platform. Item 2.4 applies with regard to liability for any breaches against persons who use the service platform with the client’s knowledge.
  2. 7.2 In order to use a software product and the associated range of services, the client is obliged to create the necessary data connection in accordance with the details in the respective product sheet at the handover point laid down by Hoffmann (also see item 3.5). Hoffmann is entitled, giving reasonable notice, to redefine the handover point, provided this is necessary to enable problem-free usage of the services by the client; in this case, the client shall create a connection at the newly defined handover point.
  3. 7.3 The contractual use of the service platform depends on the hardware and software used by the client, including workstation computers, routers, data communication equipment, etc., meeting the minimum technical requirements for usage of the version of the offered software products detailed in the product sheet. The users authorised by the client to use the software must also be familiar with its use. The configuration of the IT system required for usage of the service platform is the task of the client; Hoffmann does, however, offer the client support for a fee to be agreed separately.
  4. 7.4 The client shall receive from Hoffmann in the respective software handbook instructions on what to do, in the event of a complete failure of the software products offered, or in the event of significant impairments that impact their business. The client must familiarise themselves with the instructions and produce an emergency plan for their operation, which takes account of the details contained in the instructions. Should a software product fail completely, or usage is only possible in a way that significantly impacts the client’s operation, the client shall take steps immediately, based on the instructions and the emergency plan to maintain their operation. Hoffmann shall offer the client advice for a fee upon request, as part of a separate commission, when implementing measures that go beyond the content of the instructions.

§ 8 Payment

  1. 8.1 Several of the software products usable on the service platform are only offered in exchange for payment of a fee; this and the type and manner of charging for the payment (e.g. monthly fee or dependent upon the number of users or registered machines) can be found in the respective product sheet and in the details as part of the order process. The charges that arise for fee-based software products are calculated based on the valid prices (hereinafter “price list"), which can be viewed on our website (for details see https://www.hoffmann-group.com).
  2. 8.2 Payments owed by the client are due for payment immediately upon receipt of invoice, unless stipulated to the contrary in the order. The client is responsible for always providing Hoffmann with the necessary, correct account and contact information for billing.
  3. 8.3 Hoffmann is entitled to adjust the prices to be paid on the basis of the price list at its discretion (section 315 BGB) according to the development of costs, which are relevant for the price calculation; this applies, particularly, if the scope or the functionality of a software product is upgraded. Hoffmann shall inform you in writing about any changes to the price list six weeks before the changes come into effect. Price changes are only possible from the first of the month.
  4. 8.4 If the payment is calculated based on the number of licences acquired for the software product, Hoffmann is entitled to make a subsequent charge for licences, if it is found that the usage exceeds the licensed scope (e.g. if more than the agreed number of users are using the software product). To do this, Hoffmann either grants the client the requisite access rights, i.e. Hoffmann can access the devices by means of the data connection or even take steps that allow a system measurement, provided this is necessary to establish the contractual scope of use. The client must provide Hoffmann with information about the number of users, the scope of use and all other parameters that are necessary to calculate the licence payments for the purpose of checking the licence costs.

§ 9 Warranty

  1. 9.1 Hoffmann guarantees the functional and operational readiness of service platform and software products and the associated range of services in accordance with these General Terms and Conditions. Hoffmann does not guarantee that the service platform or a software product is faultless in all circumstances and at all times, and that there will be no changes to the documentation, software products and service platform over the course of time (in particular, in the event of any necessary product changes). Unless stipulated to the contrary in the following, the statutory regulations for the guarantee apply.
  2. 9.2 For defects with software products and the storage space provided for a fee and as standard, Hoffmann is liable in accordance with the warranty regulations under rental legislation (sections 536 et seq. BGB), although subject to the condition that an obligation to pay compensation contrary to section 536a(1) BGB exists only in the event of a breach in accordance with the requirements in item 10 (no guarantee liability). There is a defect if the software product fails to deliver the performance contained in the functional specification under contractual use, and this has a significant impact on the suitability for the contractually agreed use; warranty claims of the client shall therefore not be accepted, in particular, (i) in the event of an insignificant deviation from the agreed quality, or where there is only an insignificant impairment of the software product’s usability (for details about unavoidable downtimes, see item 3.4), (ii) in the case of defects that are caused by a failure to comply with the terms of use detailed in the application documentation, (iii) in the case of incorrect operation by the client or their users, (iv) in the case that the hardware, software or other equipment is used for a purpose for which the software is not suitable; unless the user provides proof in each case that their aforesaid actions do not significantly impact the analysis of faults, processing efforts of Hoffmann, and the defect had an impact on the software at the time of handover. Warranty claims are further not accepted, (v) if the client fails to notify the defect straight away and Hoffmann was unable to provide a remedy as a result of such failure to notify the defect, or (vi) if the client is aware of the defect when the contract is concluded and has not reserved their rights.
  3. 9.3 If the client has notified a defect and the client’s warranty claims are not excluded, Hoffmann is obliged to rectify the defect within a reasonable period, using methods of its choice. The client shall give Hoffmann time and opportunity, within reasonable limits, to rectify the defect. Hoffmann’s employees and representatives shall be given free access to the client’s systems for this purpose, insofar as is necessary. Should an investigation reveal that there is no defect, or Hoffmann is not responsible for such defect, Hoffmann can demand reimbursement for the investment of time at the usual hourly rate, plus any expenses required.
  4. 9.4 The client is particularly entitled to decrease any payment (reduction) that may be required based on the extent of the impairment, if rectification of the fault is impossible or fails, in the case of culpable or unreasonable delay or serious and final refusal by Hoffmann to rectify the defect, or rectification of the defect is unreasonable for the client.
  5. 9.5 Hoffmann is liable based on the rules governing loans (sections 598 et seq. BGB) for defects to software products provided free of charge and as standard. In this respect, the aforesaid shall apply accordingly as regards warranty claims, although provided that in addition to the cases set out in item 9.2 the warranty claims of the client are also then excluded if the defect is not based on intent or gross negligence by Hoffmann (see section 599 BGB).
  6. 9.6 If software products have been modified for the specific client (see item 3.3), Hoffmann shall be liable for defects of this individual modification based on the regulations of contracts for work and services (sections 631 et seq. BGB).
  7. 9.7 Insofar as usage of Hoffmann’s scope of supply associated with the use of the software products or the service platform only involves services (e.g. support services, in accordance with item 6, import of databases in accordance with item 5.2, analysis or preparation of data), Hoffmann shall be liable for defects of these services based on the regulations for service contracts (sections 611 et seq. BGB).
  8. 9.8 The client’s claims for compensation and reimbursement of expenditure, also insofar as they are associated with defects, conform to the rules under item 10, without consideration of the legal nature of the claim, in particular also with respect to claims because of defects and breaches of obligation, and tortious claims.
  9. 9.9 The limitation period for claims and rights because of defects in a software product is one year from handover of the software product, regardless of the legal grounds. This shall not affect the liability regulations in item 10.

§ 10 Liability

  1. 10.1 Hoffmann shall only be liable to the client for any damage and expenditure that arises in connection with the contractual services based on the following conditions. Otherwise, liability is excluded.
  2. 10.2 Hoffmann has unrestricted liability
    1. a) in the case of willful intent or gross negligence;
    2. b) as part of a guarantee explicitly given by Hoffmann;
    3. c) for injury to life, body or health;
    4. d) for the breach of an essential contractual obligation, the fulfilment of which makes the proper execution of the contract possible at all and the compliance on which the contractual parties regularly rely or may rely (“cardinal obligation”), although in the event of simple (slight) negligence, restricted to the loss to be reasonably expected when entering into the contract, although, as a maximum, to the platform-related, digital net order volume (excluding any order volumes outside the service platform) of an average contract year;
    5. e) for claims arising from product liability legislation, though only in accordance with the requirements there.
  3. 10.3 The liability for loss of data is restricted to the typical recovery effort that would have occurred for the regular production of security backups based on the associated risk.
  4. 10.4 These liability rules apply analogously also for the conduct of and claims against staff, legal representatives, vicarious agents and representatives of Hoffmann.

§ 11 Contract term

  1. 11.1 The term of the licence agreement is governed by the terms and conditions agreed in the respective order.
  2. 11.2 This shall not affect the right of Hoffmann or the client to terminate for an important reason. Such an important reason applies to Hoffmann in the event of repeated or significant payment arrears by the client.
  3. 11.3 Any termination must be in writing. This does not affect the possibility of cancelling individual software products within the service platform, in full or in part; the procedures and the periods that apply for this are laid down specifically in the respective software product.

§ 12 Assignment of claims by the client; transferability

Any claims due to Hoffmann with respect to the services to be provided in connection with the service platform may only be assigned with Hoffmann’s prior written consent, which Hoffmann may not unreasonably withhold. This does not apply if this is a financial claim and the legal transaction on which this claim is based is a commercial transaction for both parties, or the debtor is a legal person under public law or a public special fund.

§ 13 Change to the contractual conditions

Unless already specially regulated elsewhere, Hoffmann is entitled to amend or add further conditions to these GTC. Hoffmann shall notify the client in writing of the changes or additions at the latest six weeks before they come into effect. If the client does not agree with the changes or additions, they are able to object to them giving one week’s notice from the time of the planned effective date for the changes or additions. The objection must be in writing. If the client does not object, the changes and additions shall deem to have been accepted by the client. Hoffmann shall draw the client’s particular attention, with the notification of changes or additions, to the intended significance of action on the client’s part.

§ 14 Priority rule, place of performance, legal venue, applicable law, severability clause

  1. 14.1 Any individual agreements with the client (e.g. licence agreements) shall take precedence over these GTC.
  2. 14.2 Notwithstanding special agreement, place of performance is solely the registered office of Hoffmann.
  3. 14.3 If the client is a merchant, as defined by the German Commercial Code, legal person under public law or public law special fund, the legal venue for all obligations arising from or in connection with this contract shall be the registered office of Hoffmann, even for bills of exchange or cheques, or at Hoffmann’s discretion also the client’s registered office, unless an exclusive legal venue intercedes. The aforesaid agreement of legal venue shall also apply to clients with a registered office abroad.
  4. 14.4 With respect to all rights and obligations arising from or in connection with the use of the service platform and the licence agreements, solely the law of the Federal Republic of Germany shall apply to the exclusion and without regard to the conflict-of-law rules and to the exclusion of the UN Convention of the International Sale of Goods.
  5. 14.5 Should a condition in these terms or a condition as part of other agreements between Hoffmann and the client be or become ineffective, this will not affect the effectiveness of all other terms or agreements. If the ineffective condition is an essential contractual condition, the parties are obliged to negotiate an effective condition.

Date: 21.1.2019