1. Scope of application
1.1 remberg has developed the remberg Anything Relationship Management System (the “remberg XRM System” or the “Software”) and offers it under a software-as-a-service (“SaaS”) model.
1.2 remberg’s offer for use of the Software is directed exclusively at entrepreneurs/companies within the meaning of Section 14 of the German Civil Code (BGB).
1.3 The basis for the legal relationship between remberg and the Customer is exclusively the Contract concluded between the parties, which includes these T&Cs. General terms and conditions of the Customer are excluded. Challenges by the Customer with reference to their own terms and conditions are hereby rejected.
2. Subject-matter of the Contract, scope of services
2.1 remberg shall make the remberg XRM system available for use by the Customer for the duration of the contractual relationship to the extent agreed in the Contract (the “Service”). The remberg XRM system is operated and maintained on servers of the Provider. The servers are operated in the Federal Republic of Germany.
2.2 The remberg XRM system is a cloud-based application for managing objects such as equipment, machines or facilities and is used to digitize associated processes. In particular, the services that can be used by the Customer via the Software result from the Contract and the agreed availability and support services (Sections 3 and 6).
2.3 remberg is obliged to provide only the Software functions and properties as stipulated in the service description and the adaptation of the services to the respective technological specifications. remberg provides the Software to the Customer in the version currently offered. No customization of the services to fit the needs of the Customer is owed by remberg. Upgrades, which enable additional features, add-ons for third-party software or APIs for third-party software, can be made available to the Customer by agreement and, if applicable, for an additional fee.
2.4 remberg will continuously expand the Software and the services by means of patches, updates and upgrades and make improvements if these (i) serve technical progress or (ii) appear necessary to prevent misuse. In addition, remberg is entitled to change the Software and/or the services if (i) applicable law requires such changes, (ii) the changes are beneficial to the Customer, and (iii) the changes are of a purely technical or procedural nature and do not materially affect the Customer. All other changes are subject to Section 15 of these T&Cs.
2.5 Instructions on the use of the Software to the Customer or training courses are not due, unless explicitly agreed in the Contract.
2.6 remberg shall provide the Customer with access information and any needed instructions for use of the software within the agreed scope. The Customer is not permitted to share this access data with third parties.
2.7 remberg shall provide the Customer with 1 TB of storage space for the data generated by the Customer and the authorized users through use of the Software and/or the data required for using the Software. Each additional TB costs an additional €85 per month.
3. Provision of the Software, availability, technical requirements
3.1 remberg shall make the Software available for use at the router exit of the data center where the server containing the Software is located (the “Delivery Point”). The Customer is responsible for the internet connection between the Customer and the data center and for any necessary hardware and software (e.g., PC, network connection).
3.2 remberg shall perform backups at least every 3 to 5 hours.
3.3 The Software is offered subject to availability. The average annual availability of the Software is 99%. The decisive factor is the availability of the Software at the Delivery Point. The downtime is determined in full minutes and is calculated as the sum of the length of troubleshooting periods per year. Not included in the availability calculation are (i) regular maintenance windows, which may be up to [6] hours per week and usually take place between [22:00] and [4:00] Central European Time, (ii) periods of unavailability due to mandatory unscheduled maintenance work necessary to eliminate malfunctions, (iii) periods of unavailability due to circumstances beyond remberg’s control, in particular force majeure, for which remberg is not responsible.
3.4 The Customer must comply with remberg’s system requirements and device recommendations described here.
4. Contract term and termination
4.1 The Contract initially runs for the period agreed in the Contract from the start of the term (the “minimum term”) and, unless otherwise stipulated in the Contract, is automatically extended by [12] months (with the minimum term and each extension period referred to as a “contract period”), unless the Contract is terminated with a notice period of 90 (ninety) days to the end of the respective contract period.
4.2 The right to terminate the Contract for good cause without observing a notice period remains unaffected. Good cause shall be deemed to exist, among other things, if one party grossly violates the obligations expressly regulated in these T&Cs, if insolvency proceedings are opened against the assets of the other party, or if the other party becomes insolvent or unable to pay its debts. A good cause for termination also exists in the event of data use that contradicts the contractually agreed provisions. In addition, the right to termination according to Section 15 (Special termination in the event of changes to the T&Cs) shall remain unaffected.
4.3 Each termination notice must be issued in writing.
4.4 In the event of contract termination, all rights to use the Software granted to the Customer shall expire immediately and the Customer must cease using the Software.
5. Fees
5.1 The Customer shall pay remberg the ongoing fees as agreed within the Contract. Unless otherwise stated, the fees do not include the statutory sales tax and have to be paid in advance for each contract period.
5.2 If remuneration per person-day is agreed for additional services, a “person-day” is understood to mean the time spent by an employee of between 6 and 8 hours. If the time worked is less than 6 hours, half of a person-day will be charged.
5.3 Travel costs (overnight stays, flights, travel by train and by car) and expenses associated with the service are pre-agreed with the Customer and invoiced on a monthly basis after approval.
5.4 All fees due under this Contract shall be paid within fourteen (14) days of the receipt of the respective invoice. If the scope of use increases during a contract period, Section 6.7 shall apply.
5.5 If the wage index officially determined by the Federal Statistical Office (as defined below) increases in the future compared to the published index for the month in which the Contract was concluded, the fees will automatically change in the same percentage ratio at the beginning of the next calendar quarter following this reference point. “Wage index” within the meaning of this section is understood to mean the index of the average gross monthly earnings of full-time employees in Germany for the economic sector “Provision of information technology services” (subject-matter series 16, row 2.4, group J 62). If this index is no longer published, the index published by the Federal Statistical Office that most closely reflects the development of average gross monthly earnings in the aforementioned economic sector shall apply.
5.6 remberg reserves the right to increase the fees for future contract periods beyond the automatic increase according to Section 5.5. In this case, remberg is obligated to communicate the increase to the Customer in writing at least eight (8) weeks before it takes effect. In the event that the Customer does not accept the price increase and the price increase is more than 5% (not including the increase under Section 5.5), the Customer shall be entitled to terminate the Contract with 14 days’ notice to the end of the current contract period.
5.7 All payments due shall be made in euros and electronically by bank transfer to the account details provided by remberg. If the payment deadline is exceeded, services may be restricted in the event of default. If payment is delayed by more than 60 days, remberg is entitled to terminate the entire contractual relationship extraordinarily.
5.8 The Customer is not entitled to offset claims against remberg unless the claims are legally binding claims or claims approved by remberg in writing.
6. Rights of use of the remberg Software; increasing the number of users
6.1 This section applies exclusively to the granting of rights of use of the remberg software to the Customer; Section 7 applies to the granting of rights of use to third parties.
6.2 Provided that the agreed fee has been paid, the Customer receives from remberg the non-exclusive and non-transferable right to use the Software for the duration of the Contract within the agreed scope and in accordance with the applicable laws.
6.3 The Software may only be used for the Customer’s own purposes. In particular, the Customer is not allowed to
6.3.1 make the Software available to third parties (outside the agreed group of users) for their business activities;
6.3.2 modify, decompile, disassemble, reconstruct or otherwise make changes to the Software;
6.3.3 use the Software to develop or assist a third party with the development of a competing software solution;
6.3.4 use the Software to distribute illegal and/or harmful content; and/or
6.3.5 sell, license, lease, transfer or otherwise commercially exploit the Software.
6.4 remberg reserves the right to delete harmful content and content with viruses or other harmful components and/or to terminate the services provided according to this Contract.
6.5 The Customer may only reproduce the Software to the extent that this is covered by the intended use of the Software according to the respective service agreement. Necessary duplication includes the loading of the Software into the working memory on the Provider’s server, but not the installation, even temporarily, or saving of the Software on data carriers (such as hard disks or similar) of the hardware used by the Customer.
6.6 After the end of the Contract, the rights of use end automatically without the need for a declaration from remberg.
6.7 If the Customer wishes to increase the scope of use of the services agreed upon at the time of conclusion of the Contract (e.g., by adding further modules or functions), the Customer may do so with a lead time of [2] weeks to the 1st of the next calendar month (for service packages that do not contain an unlimited number of user licenses, an increase in the number of user licenses is possible by the next business day) by sending an e-mail to support@remberg.de; this does not result in an extension of the Contract. For the remaining term of the current contract period, the difference between the higher number and the fee already paid will be charged. For all further contract periods, billing is based on the agreed advance payment.
6.8. The Customer is entitled, in compliance with the agreed number of users and under its own responsibility, to grant users outside its own company access to the Software (“Third Party Users“). This does not imply any liability on the part of remberg towards the Third Party Users. The Customer must draw the attention of Third Party Users to the regulations agreed hereunder for the use of the Software and is responsible for their compliance, i.e. the Customer is liable to remberg for breaches of the regulations agreed hereunder by the Third Party Users as for its own breaches.
7. Rights of use of third parties (Third Party Software)
7.1 The Software may contain open-source software components. The use of these components is exclusively subject to the corresponding terms of use of the open-source software components, which are transferred and/or referenced as part of the open-source software components. In the event of contradictions or conflicting provisions of the license terms of the open-source software and the provisions of these T&Cs, the license terms of the open-source software shall take precedence.
7.2 If remberg provides APIs or add-ons for third-party software (see Section 2.3), this third-party software is not covered by the granting of rights according to Section 6. The Customer is responsible for obtaining the corresponding rights of use.
8. Support services
8.1 Support requests can be sent to support@remberg.de.
8.2 Support requests are generally processed between 8 am – 6 pm on working days (Munich) according to the service levels specified in Appendix A.
8.3 Support requests must be submitted in writing along with a comprehensible description of the error symptoms, which, if possible, should be substantiated by written records, screenshots or other documentation to demonstrate the issue. Error reports should facilitate the reproduction of the errors.
9. Obligations of the Customer to cooperate; rights of use to data and analytics data
9.1 The Customer’s employees will generate a password to access and use the service; this password and an e-mail address are required for using the service. All passwords must be kept secret and may not be made accessible to third parties.
9.2 The Customer is obligated to use state-of-the-art virus protection programs to check their data and information for viruses or other harmful components before entering them.
9.3 The Customer is solely responsible for content and data uploaded by it within the scope of using the Software (“content”) and must ensure that these do not infringe any third-party rights or applicable laws.
9.4 The Customer shall indemnify and hold remberg harmless from and against all claims, litigation, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“losses”) arising out of or relating to (i) the Customer’s use of the Software in violation of these Terms and Conditions; (ii) any violation by the Customer of any of the obligations or prohibitions set out in Section 5.3 and in this Section 9; (iii) any claims that content of the Customer distributed through the Software causes damage to a third party.
9.5 The content stored by the Customer in the storage space designated for the Customer may be protected by copyright. The Customer hereby grants remberg the right to make the content stored on the server accessible to the Customer when the Customer requests it via the Internet and, in particular, to reproduce and transmit it for this purpose, as well as reproduce it for data backup purposes.
9.6 If and to the extent that during the term of the Contract, through the compilation of application data, through activities of the Customer permitted under this Contract on remberg’s server(s), a database, databases, a database work or database works are created, the Customer shall be entitled to all rights thereto. The Customer remains the owner of the databases or database works even after the end of the Contract.
9.7 To the extent that data has been pseudonymized and can no longer be connected to specific persons, remberg is free to continue using and storing the application data in accordance with current data protection regulations.
10. Warranty
10.1 The Software provided by remberg substantially corresponds to the product description according to this Contract. In the event of updates, upgrades and new versions, the claims for defects shall be limited to the modifications of the respective update, upgrade or new version compared to the previous version.
10.2 In principle, the statutory provisions on warranty in rental contracts shall apply. However, the application of Section 536a, paragraph 2 of the German Civil Code (tenant’s right of self-rectification) is excluded.
10.3 In all other respects, the provisions of the law on service contracts (Section 611 et seq. BGB) shall apply.
10.4 remberg does not guarantee the fulfillment of any business expectations of the Customer associated with the use of the Software.
10.5 remberg does not assume any additional warranty for the Software without express confirmation.
10.6 Any claims for damages shall be subject to the limitations set forth in Section 11.
11. remberg’s liability for damage to the Customer
11.1 In the following cases, remberg is liable for damages or the reimbursement of futile expenses to an unlimited extent and in accordance with the statutory limitation periods:
11.1.1 in the event of intent and gross negligence on the part of remberg,
11.1.2 in the event of personal injury for which remberg is responsible,
11.1.3 in the event of guarantees provided by remberg and
11.1.4 in the event of claims against remberg under the Product Liability Act.
11.2 In cases of simple negligence, remberg is liable if there is a violation of substantial contractual obligations by remberg or one of its legal representatives or designated agents, with liability being limited to the foreseeable damage typical of the Contract as far as the damage would have been prevented if the obligation was not violated. A substantial contractual obligation is an obligation whose fulfillment is a prerequisite for the proper performance of this Contract or whose violation jeopardizes the achievement of the purpose of the Contract and on whose adherence the Customer can normally rely.
11.3 The liability according to Section 11.2 shall be limited in total to EUR 500,000 for personal injury, EUR 100,000 for financial loss, damage to property and activity-related damage, and EUR 50,000 for the loss of data.
11.4 Notwithstanding Section 11.1 and Section 11.3, the liability of remberg, its legal representatives and designated agents is excluded, in particular, for force majeure (incl. strikes, natural disasters, pandemics) and for the simple negligent violation of non-essential contractual obligations. Strict liability for initial defects (Section 536a, para. 1 BGB) is also excluded.
11.5 remberg shall be free to raise the objection of contributory negligence on the part of the Customer (e.g., due to a breach of the Customer’s duty to cooperate in accordance with Section 7).
11.6 remberg shall only be liable for the loss of data up to the amount that would have been incurred to restore the data if it had been backed up properly and regularly.
11.7 remberg disclaims all liability for any damage that occurs if the Customer passes on passwords or user IDs to unauthorized persons or if this information otherwise reaches unauthorized persons without remberg’s involvement.
12. Confidentiality
The parties undertake to keep confidential information secret. “Confidential information” within the meaning of the previous sentence means all economic, technological, scientific, patent and other internal information of the parties regarding any business strategy, ideas, property rights, development, know-how and production of the parties, which has already been communicated or is to be communicated between them within the framework of this Contract. The following types of information of a party are excluded from the confidentiality obligation:
12.1 information that was already in the possession of the other party before the transfer by the party;
12.2 information that was already publicly known at the time of the transfer;
12.3 information that becomes public knowledge through publication or in any other way after it has been transferred, 12.4 unless this occurs as a result of a violation of the confidentiality obligation by one of the parties as regulated in the present contract;
12.5 information whose disclosure to third parties is authorized by the respective other party in advance and in text form (including via e-mails);
12.6 information for which there is a legal release or disclosure obligation.
13. Data protection and data security
13.1 The Customer shall comply with the applicable provisions of data protection law when using the Software.
13.2 As part of the execution of the Contract, remberg processes personal data for which the Customer is responsible under data protection law. For the execution of this commissioned processing, remberg and the Customer agree on the validity of the Data Processing Agreement attached to these general Terms and Conditions.
13.3 The data uploaded by the Customer when using the Software remains the property of the Customer.
13.4 The Customer has the right to have their data exported in a common format for up to three months after the end of the Contract. After that, this possibility is only available in individual cases (if the data is still available) and against separate payment.
14. Content for references
If the Customer is satisfied with the system, the Customer can give remberg a reference in relation to the use of remberg’s system. There is no obligation to do so. More precise components are regulated in text form between the Customer and remberg and may only be used in the form defined between the Customer and remberg. remberg may also use the Customer’s logo as part of the reference.
15. Changes to the T&Cs
remberg reserves the right to change or supplement these T&Cs. The planned changes or additions will be announced to the Customer by e-mail or in writing with a reasonable notice period before the planned effective date. If the Customer does not object to the amended T&Cs in text form (e.g., via letter, e-mail) within six (6) weeks after receipt of the e-mail, the changed terms and conditions are deemed to have been accepted. In the event of an objection, the original T&Cs shall continue to apply unchanged; in this case, however, remberg shall be entitled to terminate the Contract within the framework of a special right of termination with a notice period of two months from receipt of the objection to the end of a calendar month. The special right of termination shall not apply within an agreed minimum term.
16. Notifications
Notifications from the Customer should be sent by e-mail to support@remberg.de Important changes to Customer data, or other circumstances affecting the contractual relationship, must be communicated by the Customer to remberg immediately via the aforementioned e-mail address.
17. Final provisions
17.1 The Customer is only permitted to assign or transfer claims arising from this Contract with remberg’s consent.
17.2 The exclusive place of jurisdiction for all disputes arising from and in connection with this Contract is Munich. The place of performance is the registered office of remberg.
17.3 The laws of the Federal Republic of Germany shall apply exclusively.
17.4 No verbal ancillary agreements have been made.
17.5 Should any provision of these T&Cs be or become invalid, or should any provision contain an inadmissible deadline or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of Section 305 et seq. BGB (validity of general terms and conditions), the invalid provision shall be replaced by a valid provision that comes closest to the economic intentions of the parties. The same applies in the event of loopholes. In the event of inadmissible deadlines, the legally allowed standard shall apply.