SPECIAL TERMS OF BUSINESS OF OROOX AG "SOFTWARE AS A SERVICE

As at October 2020

1. General

(1) The following Terms and Conditions of Oroox AG (hereinafter referred to as "Oroox") for the provision of services in the area of remote use of standard software via telecommunications networks ("Software as a Service", hereinafter referred to as "SAAS" or "ASP";) apply exclusively; Oroox does not recognize any terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions unless Oroox expressly agrees to their validity in writing.

(2) These Terms and Conditions apply in addition to the Individual Agreements between Oroox and the Customer and to Oroox's General Terms and Conditions and other Special Terms and Conditions agreed with the Customers. In the event of contradictions in the agreed upon General and Special Terms and Conditions with regard to the SAAS Services, these Special Terms and Conditions shall prevail.

2. Subject of the contract

(1) Oroox provides its SAAS services by making available to the Customer, in accordance with the contractually agreed specifications, the standard software (hereinafter referred to as the "Software") configured on its own computers for retrieval by the Customer via telecommunications networks and by ensuring that it remains operational and accessible (connectivity).

(2) The specific scope of the agreed upon functionalities of the Software is determined by the underlying offer and Oroox's performance specification for the functions of the respective Software version provided. These do not constitute warranted features that require separate written assurance. Additional functionalities of the Software, especially additional options, must be agreed in writing between the parties to the contract. Oral promises of functionality of the Software must be confirmed in writing by Oroox.

(3) Unless expressly agreed in writing, no further customer-specific adaptations or changes to the Software ("customizing") or the creation of interfaces to third-party programs are owed.

(4) Oroox has the right to limit the scope of functions of the Software at its reasonable discretion if a function violates legal requirements or if system security or stability so require.

(5) The operation of "Clients" of the Software for the Customer takes place in a virtualized environment. If a separate SAAS server is designated for operation, the operation is carried out with dedicated resources in a virtualized environment with, among other things, a dedicated installation of the software and a dedicated database.

3. Oroox's contractual obligations

(1) Oroox undertakes to grant the Customer access to the agreed Software so that the contractually agreed use is guaranteed for the agreed period.

(2) The Software is made available exclusively on a server system provided and operated by Oroox. The Customer has no claim to specific versions or updates of the system software (operating system, web server, standard services, etc.). The list of currently used system software is available upon request.

(3) Unless otherwise agreed upon, Oroox shall provide technical maintenance of the systems in the context of operational readiness and update the Software provided by Oroox.

(4) Access to the Software is made available to the Customer via the Internet by means of an Internet browser or - if necessary and expressly agreed - by means of other access procedures. The Customer is solely responsible for his access to the Internet.

(5) If data has been collected, processed or used by the Customer during the use of the Software, the Customer shall receive the latest available status of the created databases at the end of the Contract. The release of the data is carried out by handing over data carriers or by encrypted transmission via a data network. The customer has no right to receive the software suitable for the use of the data. With the Customer's consent, Oroox is also authorized to irretrievably delete the data. The deletion will be confirmed to the Customer in writing upon request, with the date of the deletion.  

(6) Oroox performs general technical monitoring of its system infrastructure. The agreed monitoring and logging parameters do not constitute a guarantee or promise of response times from Oroox and do not affect the Customer's obligations to notify Oroox of errors and defects. Specific response times or more extensive monitoring must be agreed separately, otherwise the agreed Special Terms and Conditions of Professional Services apply.

4. Framework of use

(1) Oroox grants the Customer the non-exclusive rights of use in the Software necessary for the performance of the use under the Agreement. The period of use is limited to the term of the agreement.

(2) Oroox does not owe access to or disclosure of the source code of the Software.

(3) The Customer has no claim to delivery or access to the server-side program files. Likewise, the Customer shall not receive access to the system level of the server ("root access").

(4) The Customer undertakes to use the Software exclusively within the scope of the contract and to take all reasonable precautions to prevent abuse or unauthorized access by third parties. In particular, the Customer must keep the access data to the Software strictly confidential and protect it from unauthorized use. The Customer shall name the names of the employees who have access to the access data. The Customer shall notify Oroox immediately if the Access Data has been disclosed or if unauthorized use is suspected or has taken place so that the Access Data can be blocked and/or changed.

(5) The Customer is not authorized to remove or copy the Software provided by Oroox from the server system used by Oroox, or to modify or otherwise store or use the Software.

(6) Under no circumstances does the Customer have the right to decompile or disassemble ("reverse engineer") the Software or use individual parts of the Software to create a separate Software.

(7) The mandatory provisions of § 69e UrhG shall remain unaffected.

5. Contractual obligations of the customer

(1) The Customer shall take all necessary and appropriate measures to ensure that no unlawful, disruptive applications and/or excessive and improper use of the Software takes place. In particular, the Customer will comply with Oroox's specifications within the framework of independent adaptations, modifications and changes to the Software.

(2) The Customer is solely responsible for the content of messages sent using the Software.

(3) If a claim is made against Oroox by a third party due to illegal actions and use of the Software by the Customer, the Customer undertakes to indemnify Oroox on first request from all claims and costs of this claim. Further claims for compensation remain unaffected.

6. Remuneration, delay

(1) The remuneration for the services to be rendered within the framework of the SAAS services shall consist of a basic lump sum and of use-related remuneration in accordance with the provisions of paragraphs 5 to 9.

(2) Unless otherwise individually agreed, the amount of the monthly basic lump sum shall be determined by the agreed package and any additionally booked functionalities. The basic lump sum is to be paid in advance for each calendar year or part thereof within 14 days of invoicing.

(3) If the Customer does not use the operational and usable Software, this does not affect Oroox's claim for remuneration.

(4) The use-dependent fees under paragraphs 5 to 9 will be invoiced annually in arrears. In the case of higher invoice amounts, Oroox is entitled to issue the invoice at an earlier date. The use-dependent fee as well as each separate fee is due 14 days after the invoice is issued.

(5) If monthly flat-rate or inclusive contingents of usage-dependent components have been agreed for usage-dependent uses of the Software, these contingents cannot be credited to subsequent months or reimbursed if they are not used.

(6) Other services are billed by Oroox on a time and material basis at Oroox's hourly rates agreed upon at the time the order is placed.

(7) Oroox is entitled to block access to the Software or its use if and for as long as the Customer is more than two months in arrears with the payment of due compensation. Oroox will draw the Customer's attention to this separately. Oroox's claim to the agreed compensation remains unaffected by this. The Customer must bear the costs of lifting the block, in particular the costs of restoring operational readiness and access.

(8) Insofar as Oroox provides consulting and support services ("Professional Services") without a separate agreement having been concluded for this purpose and which are not based on a defect or failure to perform Oroox's service obligations, the Customer is obliged to pay for these services.

(9) Oroox reserves the right to change the compensation after giving two months' written notice to the end of a Contract term. In making this adjustment, Oroox will also take into account and credit any cost reductions in a reasonable manner. In the event of an increase of more than ten (10) %, the Customer is entitled to terminate the Contract with two weeks' notice before the increase takes effect. Oroox will explain the changes in question to the Customer in a transparent manner; however, it is not obliged to disclose its calculation in this respect.

(10) The Customer is only entitled to rights of retention and rights of set-off under the same contractual relationship; moreover, the Customer is only entitled to rights of set-off if his counterclaims are undisputed, recognized by Oroox or have been established with legal finality.

7. Duration, termination

(1) Unless otherwise agreed in writing, the minimum term of the Agreement shall be thirty-six (36) months. The minimum term shall begin upon conclusion of the Agreement and notification of the access data for the Software.

(2) If the installation or other services by Oroox to make the Software ready for operation have been agreed upon, the minimum term of the Contract begins, in deviation from paragraph 1, sentence 2, when the installation of the Software and other services by Oroox are completed. If the Software is used productively before the completion of the setup or other agreed-upon services, the minimum contract period begins at the time of this first use of the Software.

(3) The agreement may be terminated by either party to the agreement by giving six months' notice before the end of the year of the agreement, but not before the end of the minimum term of the agreement. After expiry of the minimum contractual term, the Agreement shall be extended by a further twelve months in each case.

(4) A termination without notice for good cause shall remain unaffected. A good cause for termination is, in particular, for Oroox a violation by the Customer of the obligations set forth in Clause 5 or the non-payment of the compensation pursuant to Clause 6.

8. Data protection, order processing

(1) The Customer undertakes to use the personal data to be processed with the Software in accordance with the laws and regulations governing data protection. Oroox is solely charged with processing the order by storing the data in accordance with the separate agreement and the following provisions.

(2) With regard to the power of disposal and ownership of all data that is collected, processed and used by the Customer, the Customer remains the sole owner and sole agent, so that the Customer may at any time demand the surrender of individual or all data. Oroox is not authorized to process, use, or disclose this information to third parties other than for storage in accordance with the terms of this Agreement. If it is to be surrendered to the Customer in accordance with Clause 3, Paragraph 5, and if it is to be surrendered before the Contract ends, Oroox is entitled to reimbursement of its expenses for storing and transferring the Data.

(3) Oroox shall take appropriate measures to ensure that the current data stock is maintained in the event of technical malfunctions. In addition, Oroox regularly, at least daily, makes a backup of the Software and data. The Customer must bear the costs of restoring old data sets, unless the necessity for this measure is due to a fault of Oroox or a technical error within Oroox's area of responsibility. Oroox guarantees certain retention periods for certain data. At the end of the retention period, Oroox will delete the Data from its systems without prior notice to the Customer. The retention periods provide necessary data for performance parameters and do not oblige Oroox to back up data beyond what is necessary for disaster recovery. In all cases, the Customer is responsible for backing up its own data.   

(4) Access data (user names and passwords) that serve to protect data access by the Customer must not be made available to unauthorized third parties. Employees of Oroox may only obtain knowledge of the Access Data or access to data stored by the Customer if such knowledge is absolutely necessary for the performance of this Agreement and if they have been obligated to maintain data secrecy accordingly.

(5) Upon completion of the processing of the order, Oroox will hand over to the Customer in full all documents related to the contractual relationship, the results of the processing that have been produced, and the databases in its possession, or will destroy or delete them with the Customer's consent in accordance with data protection laws. This does not apply to correspondence and other documents and records that must be kept in accordance with legal requirements or to documents and records intended to remain with Oroox. Further legal obligations to delete and claims for deletion remain unaffected by the above provisions. Any expenses incurred by Oroox in the course of this must be reimbursed to Oroox by the Customer. Remuneration shall be made at Oroox's hourly rates agreed in each case.

(6) Oroox is entitled to statistically evaluate the performance data of the Services for the purposes of improving the security and performance of the Software and scientific analyses. The evaluation of the event logs will only be performed in a highly aggregated state and not by processing or using personal data. In any case, the data will be irretrievably deleted after a period of six months.

9. Warranty, availability

(1) Oroox does not warrant the usability of the Software for a specific purpose or the success of the use, but only the functionality within the standard description of the Software. The Customer is also aware that, according to the state of the art, it is not possible to rule out errors in the Software under every condition of use.

(2) Oroox does not warrant for malfunctions resulting from interventions by the Customer or third parties, the Customer's technical equipment, or unsuitable, improper, or faulty use of the Software, or unauthorized use of the access data that cannot be attributed to Oroox's area of responsibility.

(3) Oroox guarantees the availability of its Software, systems and services in accordance with the following table:

The annual availability is calculated on the basis of the sum of the monthly availability (mV) on an annual average, less the planned unavailabilities notified to the customer for the performance of maintenance work (DT).

(4) Availability within the meaning of the Agreement also includes periods during (a) disruptions in the technical infrastructure that are not to be provided by Oroox or any of its agents; (b) disruptions and other events that are not (co-)caused by Oroox or its agents (e.g., exceeding the agreed permitted load); and/or (c) an only partial limitation of the suitability of the systems and services for use in accordance with the Agreement.  

(5) For purposes of this Agreement, Oroox's Software, systems, and services will be unavailable (a) if the Customer's use is limited in such a way that it is impossible to use the Software or systems in an economically viable manner within the scope of the standard software functionality (this includes the accessibility of standard links and the loading of images) or (b) if the other service availabilities make it impossible to use the Software or systems in an economically viable manner within the scope of the standard software functionality.

(6) The agreed availability of the Software presupposes sufficient quality and error-free formats of the Customer's data and the full functionality of the Customer's interfaces to Oroox's systems.    

(7) During the term of the Contract, Oroox is required to remedy defects in the Software under the Contract within a reasonable period of time. To this extent, the Customer must notify Oroox of the defects immediately and provide all the information necessary to remedy the defect.

(8) If the agreed availability of systems in productive operation falls below the agreed availability in one month and Oroox is at fault for this, the Customer is entitled to reduce the remuneration for the month in question as follows: In the event of a shortfall of up to 2 percentage points: Reduction of the basic flat rate by 5%; in the event of a shortfall of more than 2 percentage points: Reduction of the basic flat rate by 10%. The Customer will claim the reduction from Oroox no later than four weeks after the end of the month in which the shortfall occurred.

(9) Termination for good cause on the part of the Customer for failure to use the product in accordance with the contract is only permitted if Oroox has been given sufficient opportunity to remedy the defect within a reasonable period of time and this has failed. Failure to remedy the defect shall not be assumed until it is impossible, seriously refused or unreasonably delayed by Oroox.

10. Liability

(1) Oroox is not liable for the functioning of networks, lines, services, or computers of third parties that are beyond its control, nor for power failures and other cases of force majeure that are not its fault.

(2) In all other respects, Oroox has unlimited liability in cases of intent and gross negligence, as well as in cases of injury to life, limb and health and in cases of violation of the Product Liability Act.

(3) In the case of damage to property and financial losses caused by negligence, Oroox is liable only in the event of a breach of an essential contractual obligation, but the amount of liability is limited to the losses that were foreseeable and typical of the Contract at the time of the conclusion of the Contract (essential contractual obligations are those whose performance characterizes the Contract and on which the Customer may rely). However, Oroox's liability in such cases is limited to a maximum of two million euros. Liability is otherwise excluded. Oroox's strict liability to pay damages for defects existing at the time the agreement is concluded is excluded.

(4) To the extent that Oroox's liability is excluded or limited, this also applies to its organs, employees, representatives and vicarious agents.

(5) In the event of loss of data caused by simple negligence, Oroox is liable only for the damage that would have occurred even if the Customer had made proper and regular data backups appropriate to the importance of the data.

(6) The foregoing provisions apply mutatis mutandis to Oroox's liability with regard to the reimbursement of futile expenses.

11. Change of the frame conditions

If new requirements for the Software arise from the Customer's sphere of influence as a result of changes in the legal framework, Oroox is not obligated to implement them on the basis of this Agreement. Oroox will provide such services on the basis of a separate agreement and the hourly rates agreed in each case.

12. Final provisions

(1) If the customer is a registered trader or a corporation or institution under public law and nothing to the contrary is stated in the order confirmation, the place of jurisdiction shall be the competent court at the customer's registered office.

(2) For these business relations and for all legal relations between Oroox and the Customer, the law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.