§ 1 Subject of the GTC 1) The present conditions contain the general regulations and license terms for the rent of the "standard software" of agiles Sales Conditions. The „standard software“ is provided together with a technical platform by SaaS which enables the customer to save his data on the platform. 2) These GTC shall govern each SOW concluded on the Microsoft Corp. SaaS platform for the rental of the standard software produced and provided by agiles. 3) The services and offers of the contractor are intended exclusively for entrepreneurs within the terms of §14 BGB (German Civil Code). § 2 Contract Constituents and Definitions 1) In the event of contradictions, the following rules apply in the order listed here: a) The SOW b) These GTC with their annexes. 2) Applicable GTC The general terms and conditions of the contractor apply exclusively. General terms and conditions of the client shall not become part of the contract. 3) Definitions a) "Delivery" is the process of the making "standard software" or a release accessible to the customer. Delivery" shall be deemed to have been effective in each case when the release and the "activation key" have been made available to the Customer by download. b) "Activation Key" is the code required for the use of the "Standard Software". This license code, which enable the customer to access to the standard software (SaaS), is limited to the respective term of the SOW or the respective paid period which is stated in the SOW. c) Authorized User is any natural person who has access to the standard software or the platform with the Customer's consent. The maximum number of Authorized Users who can access the standard software simultaneously is specified in the respective SOW. d) "SOW" is the contract concluded between the parties under these GTC. e) "Documentation" means the operating instructions for the "Standard Software". f) "Third Party" means any person other than the "Customer". g) "Node" shall mean the interface from the relevant data center to public data networks or to data networks which are not legally under the responsibility of the Contractor, such as in particular the Internet or data networks assigned to the "Customer". h) "Customer" is the contractual partner of the Contractor, who may either provide his employees or his authorized employees ("authorized users") access to the "standard software" for usage. i) “Platform" means the IT infrastructure of Microsoft Corp., on which the "standard software" is operated (sic. hardware, operating system software, firmware, required peripheral systems), if the software is provided by way of SaaS and the customer processes his own data in the cloud on the platform. j) "Release" is the generic term for "Updates" and any new versions of the standard software. k) SaaS means that the contractor installs the standard software on a technical system administered by it and operates it there and the standard software is accessible using public networks such as the internet. l) "Standard software" is the leased computer program in object code together with operating instructions. m) Software from other manufacturers: The "software" supplied by the contractor is partly based on software produced by other manufacturers or provided by other suppliers, or the contractor supplies the "customer" with "standard software" from other manufacturers. If necessary, the Contractor shall provide the "Customer" with the end user license conditions (EULA) of the respective manufacturers. n) "Malfunction" is the term for a situation in which it is not yet clear whether the malfunction of the standard software is caused by a "defect" or "technical fault". o) "System environment" means the technical environment necessary for the proper operation of the standard software. p) "Technical Error(s)" are malfunctions of the standard software, without the "contractor" being responsible for the malfunction. The elimination of "technical errors" cannot be warranted. The Contractor shall support the Customer in the elimination of technical errors in accordance with a separate support contract. q) "Updates" are "releases" of the standard software, by means of which the Customer is provided with standard software that maintains the functionality of the original "standard software" in a modified "system environment" or eliminates "technical errors". r) "Conclusion of contract" is the signing of the respective „SOW“ by both parties. § 3 Rental of the "Standard Software“ and providing SaaS and Platform 1) The "Customer" rents the “standard software” and the "platform" specified in the respective „SOW“. The “standard software” is operated in a data center on the platform. The customer is given the opportunity to use the “standard software” by allowing the customer and the authorized users access to the “standard software”. The transport of data from the node of the data center is not part of the services of the contractor. 2) The interfaces to public data networks such as the Internet specified in the respective „SOW“ shall also be part of the contract. "Availabilities" and maintenance windows can be taken from the respective SOW. 3) The scope of functions of the "standard software" is specified in the operating instructions or description of the standard software. The customer is also familiar with the functionality of the standard software from the test phase. The Contractor shall not be obliged to provide any functions other than those provided by the standard software provided for testing. The description of the "standard software" and the "releases" also contains a description of the "system environment" to be observed in each case. The "Standard Software" shall be updated and further developed for the duration of the respective term. The scope of the obligation to update and further develop the "Standard Software" is specified in the respective SOW. If the Contractor provides new releases of the "standard software" and in doing so changes its operation, he shall provide the "Customer" with updated documentation if necessary. 4) The Contractor shall maintain and fix "Platform" during the term of the respective „SOW“. This obligation to update, repair and maintain applies to the extent necessary to enable the users to access the "standard software" or "data" by means documented in the annex SYS. If the handling of the "platform" changes or new functions are added, the operating instructions will also be updated. § 4 Support contract If agreed, the parties shall conclude a separate contract to support the customer. § 5 Special provisions for test transfers of "standard software" 1) The trial version of "standard software" is available free of charge. The "standard software" is therefore loaned for the duration of the respective SOW and the loan can be terminated at any time. No warranty is given. The "customer" is responsible for the data backup. 2) The purpose of the test period of the "standard software" is to allow the "customer" to convince himself of the quality of the "standard software". The software may neither be used by the "customer" himself for commercial purposes, nor may it be made available to "third parties" for commercial purposes. 3) At the end of the test phase, the "customer" may decide to conclude a rental agreement with the Contractor. Otherwise, the Customer's rights of use of the "standard software" shall expire. § 6 Obligations of the "customer“ 1) The obligations specified in this GTC and its annexes are principal obligations. If the Customer does not fulfil these obligations in accordance with the contract, the Contractor is not obliged to perform and can declare the termination of the contract without notice after prior warning. The Contractor shall not be in default as long as the Customer does not provide the services incumbent upon him. 2) Should malfunctions occur in the use of the rented platform or the standard software, Customer shall inform Contractor of these disruptions without delay. In any case, a notification of malfunctions from the Customer must contain the following information: customer number, Customer name, Place of performance (street, number, postcode, city), Description of the malfunction (sporadic or permanent), Extend of performance and effect of the disruption 3) For the duration of the respective “SOW”, the customer must constantly appoint an authorized person to make legal declarations, together with a deputy. Likewise, a technically competent contact person and his or her deputy shall be appointed at all times for the duration of the contractual relationship. 4) The customer may not use the storage space made available to the authorized users to store or make available to others or distribute content that violates applicable laws, in particular laws for combating racist, sexually oriented or politically agitating content. § 7 Remuneration 1) The amount of the remuneration is defined by the respective „SOW“ and the pricing agreed in it. If the customer has to pay monthly recurring remuneration, this must be paid monthly in advance. The amount of the aforementioned remuneration shall be based on the assumption that the Customer has granted the Contractor a direct debit authorization based on his choice. If the Customer does not issue a direct debit authorization, additional costs shall be due and the Customer shall be notified separately. 2) Current costs apply from the moment in which the customer has the possibility of remote access to the “standard software” and the platform. 3) The contractor reserves the right to assert rights of retention against the customer in the event of payment defaults in the same SOW. The customer will be given a corresponding warning notice in the standard software if the contractor reserves the right to use the program and makes it dependent on the payment of open items. Alternatively, in the event of payment arrears, the Customer can also be notified by telephone and/or post of the shutdown of the systems in the event of non-payment of open invoices. If the customer does not raise any legitimate reasons for non-payment after the warning, the customer will be refused the delivery or of an activation key within the scope of asserting the right of objection or will not be granted access to the “standard software” nor the platform. 4) The Contractor is entitled to increase the amount of the fee by a reasonable amount, but not by more than 2.5% within a period of 12 months, calculated from the date of the last increase or receipt of the respective „SOW“ . § 8 Warranty 1) Warning: The “standard software” was created for use in the EU/EFTA regions. Its use outside this region is at the customer's own risk. The fulfillment of claims, which refer to the fact that the use of the software violates industrial property rights of third parties, is limited exclusively to this region. The guarantee that the use of the software or the use of the results achieved with it is permitted or permitted according to the laws of certain states refers exclusively to this region. 2) General regulations: a) Defects in "the standard software" shall first be remedied, at the discretion of the contractor, by free rectification or replacement delivery. b) Termination of the contract by the contractor in accordance with § 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) due to failure to grant the contractual use of "the standard software" is only permissible if the contractor has been given sufficient opportunity to remedy the defects and this has failed. A failure of the removal of defects is only to be assumed if it is impossible, if it is refused or unreasonably delayed by the contractor, if there are justified doubts about the prospects of success or if it is unreasonable for the contractor for other reasons. c) The customer is obliged to notify the contractor immediately of any defects in "the standard software" (§ 536 c BGB). d) Warranty claims are subject to a limitation period of twelve (12) months from the point in time at which the Customer has reported the existence of a defect or from the point in time at which the Customer should have become aware of the circumstances of the defect and reported it without gross negligence. This shall not apply in cases where the Customer wishes to assert claims for damages due to injury to life, limb or health due to the defect, in cases where the Customer wishes to assert that the defect was caused by gross negligence or intent or as a result of a breach of a warranty promise. Claims which are asserted as a result of a breach of an obligation to rectify defects shall also become statute-barred from the point in time stated in sentence 1. 3) System environment The compatibility of the "standard software" with existing hardware as well as standard software configurations of the customer (“System environment”) is only given as expressly mentioned in the respective offer or in the release notes (documentation of the individual releases or Annex SYS). 4) Transport of data The warranty does not apply for the data transport from the data center in which the standard software is operated to the place where the authorized users attempt to gain access to the "standard software" or the "data". The transport of the data is not carried out by the contractor. 5) "Platform" The regulations of para §§ 7.1 to 7.4 apply accordingly. § 9 Liability 1) The limitation of liability shall not apply in the event of injury to life, body or health. The liability according to § 7 of the German Liability Act (HPflG) with regard to personal injury shall also remain unaffected. Also not covered by the above limitations/limitations of liability are claims for damages arising from the violation of essential contractual obligations. Material contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract. In the event of a breach of essential contractual obligations, the infrastructure owner shall only be liable for the foreseeable damage typical of the contract at the time the contract is concluded. Foreseeable damages typical of the contract are those which the contract partner foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which, taking into account the circumstances which were known to him or which he should have known, he should have foreseen if he had exercised due diligence. 2) The aforementioned claims shall become statute-barred after 12 months a.) in the event that the damage is caused by the breach of a warranty obligation of a rental agreement or the b.) breach of an obligation to provide advice or information, the claims shall become statute-barred 12 months after the moment at which the "customer" knew the damage or should have known it without the application of gross negligence. With regard to damages resulting from injury to life, limb and/or health and/or the breach of a guarantee promise and/or which were caused by gross negligence or intent, the statutory provisions on limitation shall remain unaffected. The provisions of the Product Liability Act shall also remain unaffected. § 10 Force Majeure If the Contractor is prevented from fulfilling its obligations by the occurrence of unforeseeable, extraordinary circumstances which it cannot avert despite reasonable care, e.g. in the event of operational disruptions caused by malware such as epidemics, viruses, Trojans, etc., the Contractor shall be entitled to withdraw from the contract, official interventions, power supply difficulties, strike or lockout, whether these circumstances occur in the area of the Contractor or in the area of its suppliers, the period for the provision of the service shall be extended, if the service does not finally become impossible, to a reasonable extent, but by a maximum of one (1) week. If performance is also impossible after expiry of the aforementioned period due to the same uninterruptedly continuing event of force majeure, performance shall be deemed impossible. The Contractor shall then be released from its performance obligations. The Customer's right to terminate the contract/ to withdraw from the contract if it otherwise suffers unreasonable disadvantages remains unaffected. § 11 Licensing 1) Standard Software: General Provisions a) The subject of these regulations is the "standard software" designated in the respective „SOW“ in the version current at the time of the "conclusion of the contract", consisting of the copy of the respective computer program in object code and a copy of the associated "documentation" which will be made accessible to the customer. b) These regulations apply to all versions of the "Standard Software", including all releases. The Customer is not entitled to change, remove or circumvent the "standard software" including the "documentation", attached property right notices, especially copyright notices or trademarks, as well as serial numbers, license codes or security mechanisms. c) The Customer shall be granted a simple, non-exclusive rights to access the standard software, which applies for of server software and client software for the term of the respective SOW. The rights apply worldwide. The rights shall be forfeited on the basis of a declaration of termination by the contractor if the customer violates these license provisions or the SLT by Microsoft. d) The client is only granted to access the actual and prior version of the standard software. No other releases may be used by the customer. 2) License of the standard software developed and provided by agiles a) Server software The "Customer" shall be entitled to make the "standard software" available to the authorized users in the number agreed in the respective „SOW“ via public data networks for remote access. The number of licenses refers to a database in which the authorized users are registered. The customer can change the Users registered by name, but a person registered under a name only has the right to access the server once if he calls up this name. b) Client Software The same rules apply for the client software. 3) "Standard Software" of other manufacturers The stipulations of the Microsoft software license terms (SLT) (Link to SLT: https://mbs.microsoft.com/Files/partner/365/Essentials/Dynamics365BusinessCentralonprem.zip) shall be applicable. 4) Rights of use other than those mentioned above shall not be transferred. "Third parties" may only be given access to the "standard software" for commercial use with the express consent of the "Contractor". Subletting of the "standard software" is expressly prohibited. The provisions of §§ 69d, 69e UrhG (German Copyright Act) shall remain unaffected. 5) The license matrix (costs per license) is set out in the appendix to the respective SOW (pricelist). § 12 Term of contract and termination 1) The term and ordinary termination options of the respective „SOW“ result from the respective „SOW“ . 2) The right of each contracting party to terminate the „SOW“ extraordinarily and without notice if there is good cause shall remain unaffected. For the Contractor, good cause shall exist in particular in any case in which a) the customer is in default of payment of the agreed remuneration for two (2) consecutive dates; or the customer is in default of payment of the remuneration in an amount corresponding to the remuneration for two (2) months in a period extending over more than two (2) dates due; b) the Customer is insolvent or insolvency proceedings have been opened over his assets or the application for the opening of insolvency proceedings has been dismissed for lack of assets; however, after an application for the opening of insolvency proceedings over the Customer's assets has been made, the Contractor may not terminate the contract on account of a delay in the payment of the remuneration which occurred in the period before the application for opening or on account of a deterioration in the Customer's financial circumstances; c) the customer violates essential contractual obligations. 3) The data stored on the Platform at the time of the notice of termination must be stored by the Customer himself. They shall be irreversibly deleted 30 days after the termination takes effect. Upon request, a tool can be provided by which the Customer can read the data processed with the standard software (read only). § 13 Data Protection 1) Warning: If required by national law, the regulations of the GDPR apply. Insofar as the GDPR is not applicable, the data protection regulations are governed by the national law of the state in which the customer is domiciled or the personal data is processed. The Contractor is - if the GDPR is applicable - obliged to conclude a contract according to Art 28 III GDPR if personal data is processed which is not connected with the establishment of the contractual relationship between the parties or is covered by the consent of the persons. In cases where personal data is to be processed and the GDPR is not applicable for reasons of national law applicable to the Customer's authorized users, the Contractor's Customer shall be obliged to inform the Contractor of the regulations to be observed and to take the necessary steps to ensure compliance with data protection. 2) If the GDPR is applicable, the following regulations apply. a) The regulations on order processing are set out in the Annex AV. b) The regulations for the conclusion of the support contract and further information about the data protection are here: https://agiles.com/en/dataprotection/ § 14 General 1) Should a provision of the „SOW“ or these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected thereby. 2) All agreements which include an amendment, supplementation or a specification of a contract component, as well as special guarantee promises and agreements, must be recorded in writing. If statements of the aforementioned kind are made by representatives or auxiliary persons of the contractor, they shall only be binding on the contractor if the management of the contractor gives its written consent to this. 3) Customer may assign rights and claims arising from the SOW to third parties only with the prior written consent of Contractor. The Contractor is entitled to assign the SOW as a whole or individual services on companies affiliated with him within the meaning of § 15 AktG. 4) The parties agree that the law of the Federal Republic of Germany shall apply to all legal relationships arising from this contractual relationship. 5) This text and that of its annexes are a translation of the German original. Should there be any uncertainties regarding the translation, in case of doubt the regulations of the German text always apply over those of the English translation. 6) If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Hamburg, Germany shall be agreed as the place of jurisdiction for all disputes arising in the course of the execution of this contractual relationship. Notwithstanding the above, the Contractor shall also be entitled to bring an action before the court having jurisdiction over the registered office of the Customer. © agiles Informationssysteme GmbH Hamburg/Germany December 2020