The contractual terms will depend on your contract partner.
If your contract partner is InLoox GmbH based in Munich, Germany, the Software Service Agreement of InLoox GmbH will apply.
If your contract partner is InLoox, Inc. based in San Francisco, USA, the Software Service Agreement of InLoox, Inc. will apply.
On the date of the order this Agreement is concluded between InLoox GmbH, Kantstr. 2, 80807 Munich/Germany (“InLoox“) and the orderer (“Licensee“).
§ 1 Subject Matter of the Agreement
If noted in the order by the Licensee, InLoox carries out the maintenance of the software listed in the order. In this case the maintenance includes the following:
1) InLoox undertakes to clear the license software from defects and breakdowns; this obligation also exists after the end of the warranty period.
2) InLoox will provide Licensee with updates, i.e. improved versions of the license software as well as upgrades, i.e. further developed versions of the license software, free of charge on a separate medium including the respective documentation.
3) The maintenance obligation only refers to the respective current version of the software product.
§ 2 Payment
For the software maintenance Licensee pays an annual fee of 20 % in addition to the respective list prices for all licenses acquired. The prices are calculated subject to the statutory amount plus VAT.
§ 3 Term of the Agreement
The Agreement enters into force upon order date. The Agreement is concluded for a period of one year and can be terminated in writing with a period of notice of one day to the end of the contract. A termination is admissible after expiry of the first contractual year. If the Agreement is not terminated subject to the period of notice, it will automatically be extended by twelve months.
§ 4 Special right of termination in case of the end of the life time cycle
InLoox can terminate this Agreement by complying with a period of notice of three months to the end of each calendar quarter if Licensee declines an offer made by InLoox to switch to a current version of software used by Licensee and being the subject matter of this contract, for which software the life time cycle has expired, against reasonable payment. The life time cycle of the software, which is the subject matter of this Agreement, ends two years after the last delivery/ installation at a customer. It is excluded to refund already paid or invoiced periods after the termination.
§ 5 Warranty
It cannot be guaranteed for every single case that services do not contain any defects whatsoever despite a diligent examination by InLoox and third parties instructed by InLoox. Therefore, a liability for the correctness of contents of files is excluded. It is necessary for Licensee and Licensee’s obligation to examine the contents of files before they are applied.
If Licensee made a claim on InLoox for warranty or service and if it turns out that either there is no defect or the defect does not oblige InLoox to take an action, Licensee has to refund any costs whatsoever incurred on part of InLoox if Licensee made the claim on InLoox with gross negligence or with intent.
§ 6 Liability
InLoox is liable in case of intent and gross negligence pursuant to the statutory provisions. In case of slight negligence InLoox is only liable if a material contractual obligation (cardinal obligation) is infringed or in case of default or objective impossibility. In case of a liability arising from slight negligence, this liability is limited to losses which were predictable and/ or typical. A liability for lack of guaranteed quality, for malice, personal damage, legal defects pursuant to the German Product Liability Act (Produkthaftungsgesetz) and the Federal Data Protection Act (Bundesdatenschutzgesetz) remain unaffected.
In case of a claim made on InLoox arising from liability, a contributory negligence of Licensee has to be taken into account in a reasonable way, in particular in case of insufficient error reporting or insufficient data backup.
It is the orderer’s own responsibility that current data backup is carried out in a suitable way and that a prompt and economically reasonable recovery of lost data is assured.
§ 7 Data Protection, Confidentiality
1) Licensee ensures that the data processing equipment and databases he possesses comply with the provisions of the respective Federal Data Protection Act, the Regional Data Protection Act as well as with the respective special provisions on data protection. This applies in particular to the creation, the processing (saving, amending, transferring, locking and deleting) and the use of data and databases.
2) InLoox ensures that InLoox does not take any measures in connection with the execution of this Agreement that infringe existing provisions on data protection.
3) InLoox ensures that any and all third parties instructed by InLoox made an undertaking in accordance with section 5 Federal Data Protection Act (BDSG) and that they were obliged to secrecy.
4) The parties mutually undertake to treat as confidential and to unlimitedly keep secret any information received in connection with this Agreement.
5) The parties are obliged to mark any confidential information as “confidential” (or vertraulich”).
6) Licensee will carry out an examination forthwith after installation, curing of defects, maintenance works or other works on the IT System; this examination serves to establish whether the data backup still works, and the results have to be put down in writing.
§ 8 Miscellaneous
If one or more of the provisions of this Agreement are or become invalid, the validity of the remaining provisions shall not be affected by this. The invalid provision shall be reinterpreted in a way that the intended purpose is achieved insofar as statutorily admissible. If this is not possible, the invalid provision shall be replaced by any such provision which is statutorily admissible and comes closest to the intended contractual purpose.
The respective current General Terms and Conditions of InLoox shall apply. If Licensee places an order, the provisions of this Agreement and the General Terms and Conditions of InLoox shall prevail over the provisions of Licensee’s order.
Oral additional agreements were not made. Amendments and supplements of this Agreement have to be made in writing. The same applies to the rescission of this requirement of written form.
Place of performance and legal venue for all obligations of the parties arising from and out of this Agreement shall be Munich/Germany insofar as statutorily admissible.
Contract language is German. This Software Service Agreement is available in German language at any time. Other language versions are only for information and translation purposes. In case of conflicts in interpretation or wording between different language versions of this Software Service Agreement the German version shall always be the overriding and binding version.
THESE SOFTWARE SERVICE TERMS AND CONDITIONS (“Agreement”) shall govern the provision of all services and support provided by InLoox, Inc., a Delaware Corporation (“InLoox”) for the person or entity that received or shall receive software (“Software”) from InLoox (“Licensee”). This Agreement enters into force (the “Effective Date”) on the effective date of an order for Software between InLoox and the Licensee which refers to this Agreement (“Order”). InLoox and Licensee may be referred to individually as “Party” and collectively as “Parties”.
BY CHECKING THE BOX NEXT TO THE STATEMENT “I ACCEPT THE TERMS OF THE SOFTWARE SERVICE AGREEMENT” LICENSEE AGREES TO BE BOUND BY THE FOLLOWING AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THIS SOFTWARE SERVICE AGREEMENT DOES NOT ENTER INTO FORCE AND NEITHER PARTY SHALL HAVE ANY RIGHTS OR OBLIGATIONS HEREUNDER.
ONCE LICENSEE HAS AGREED TO THIS AGREEMENT IT SHALL NOT BE ENTITLED TO A CANCEL THE SERVICE OR RECEIVE A REFUND, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH HEREIN BELOW OR OTHERWISE REQUIRED BY LAW.
1. SOFTWARE SERVICE
a. InLoox agrees to provide web-based service to remedy defects in and remove bugs from the Software (“Service”). It will provide the Service by replacing the Software or by taking other actions it deems appropriate to correct defects or bugs, provided that the Licensee notified InLoox immediately after discovery of the bug or defect.
b. InLoox may, at no additional charge, make modifications to Software to improve its operation and reliability or to comply with legal requirements.
2. EXCLUSIONS FROM SERVICE
a. InLoox provides support only for qualified Software. Hardware and software not supplied or not approved by InLoox and software for which Licensee does not allow InLoox to incorporate engineering improvements will be considered nonqualified software. Licensee is responsible for removing nonqualified software to allow service of qualified Software.
b. Service does not include repairing damage to Software caused by site conditions that do not conform to InLoox’ specifications, or failures resulting from non-conformance with InLoox site specifications such as air conditioning failure or unusual electrical conditions.
c. InLoox’ obligation to provide Service shall be strictly conditioned upon Licensee being in full compliance with all terms and conditions of this Agreement.
d. InLoox shall have no obligation and refuse to perform Services as to defects or errors or other problems caused directly or indirectly by: (1) defects, misuse or failure of any hardware, software, data or other tangible or intangible items supplied by Licensee or third parties not retained by InLoox; or (2) modification, improvement or other alteration of any Software (including any underlying system or other software which interacts with the Software) or equipment upon which the Software is operating, by Licensee or any third party. No provision of any Order shall act as or imply the existence of any express or implied warranty that the Software shall, at any time, operate on a continuous or error free basis. InLoox may refuse to perform services if such services may infringe upon the intellectual property right of any third party or the violation of any court order or federal, state or local law, rule or regulation.
e. InLoox shall not be responsible for errors in or damage to any software or data (or for any resulting down-time, lost processing time or monetary loss or expense) directly or indirectly caused by or resulting from acts beyond the control of InLoox, including, without limitation, conflicts in operating system software (other than between Software and operating system software), conflicts in the host application of the Software (other than between Software and the host application of the Software), conflicts between any of the Software and other software not stipulated in the Order, re-configuration of software or equipment not required to resolve any problem for to which maintenance has been provided, interaction of the equipment or Software with other machinery and equipment not stipulated in the Order, operator error, data error, acts of God, war, fire, lightening, water, tornado, windstorm, hail, earthquake, explosion, smoke, aircraft, motor vehicle, collapse of building, strike, riot, vandalism or other civil disturbances, modification, neglect or misuse, failure of electrical power, air conditioning, or humidity control or any cause other than ordinary use.
3. UPGRADES AND UPDATES
a. InLoox shall provide Licensee with any future patches, fixes, corrections, enhancements program code changes, and improvements of the Software (“Updates”) as well as any enhancement as well as modifications designated by InLoox with a higher version number of the Software (“Upgrades”) that are created by InLoox.
b. InLoox will provide Updates and Upgrades to Licensee free of charge and via the Internet/online along with updated documentation in electronic form without a fee.
4. OBLIGATIONS OF THE LICENSEE
Licensee shall be responsible for security of its proprietary and confidential information and for maintaining a procedure external to the Software for reconstruction of lost or altered files, data or programs; and have a representative present at Licensee’s site at all times when Services are being performed by InLoox.
5. FEES, COSTS AND TAXES
a. Licensee shall pay InLoox an annual service fee for the Services. The amount of the service fee shall be 20% of all net license fees payable for the Software according to InLoox’ then current published price lists. The fee is payable within fourteen (14) calendar days after the Effective Date, and on the anniversary of such date during each subsequent year during the term of this Agreement.
b. Licensee agrees to pay InLoox the then current standard rate for InLoox’ services, time and materials, for any services Licensee requests from InLoox which are not within the scope of the Services within the meaning of section 1 hereof.
c. Licensee is responsible for any sales or use tax or any other fee imposed by federal, state, local, or other governmental entities pertaining to the services rendered and property provided under this Agreement.
6. PROPRIETARY RIGHTS
Licensee acknowledges and agrees that corrected, replaced, or updates Software remains the property of InLoox and constitutes a trade secret of InLoox.
7. TERM AND TERMINATION
a. The term of this Agreement shall commence on the Effective Date and shall have an initial term of twelve (12) months. It may be terminated to the end of the initial term or any Subsequent Terms upon one (1) day’s prior written notice. Unless so terminated, this Agreement shall automatically renew for subsequent twelve months periods (each a “Subsequent Term”).
b. This Agreement may be terminated by InLoox at any time in writing if Licensee breaches any material obligation under the End User License Agreement Licensee has entered into with InLoox (“EULA”), and such breach remains uncured after fourteen (14) day’s written notice of such breach.
c. The life cycle of each version of the Software is two years after that version’s last delivery to or installation at any InLoox Licensee. Upon expiry of this time period, such version of the Software reaches “end-of-life” status. InLoox shall be entitled to terminate this Agreement with three (3) months prior written notice for any version of the Software which has reached end-of-life status.
8. WARRANTY DISCLAIMER
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, LICENSOR DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER.
9. EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY
a. For any breach of InLoox’ obligations contained in Section 1 above, Licensee’s exclusive remedy, and InLoox’ entire liability, shall be the re-performance of the Services or the replacement of the Software at InLoox’ sole cost.
b. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AGAINST INLOOX FOR ANY BREACH OF ITS OBLIGATIONS UNDER SECTION 1 HEREOF OR FOR ANY OTHER CLAIM AGAINST INLOOX BASED ON ANY DEFECTS IN OR FOR NONPERFORMANCE OR DELAY IN PERFORMANCE OR DELIVERY OF SERVICES, WHETHER BASED ON CONTRACTS, WARRANTY, TORT, STRICT LIABILITY OR ANY OTHER THEORY WHATSOEVER AND IS MADE EXPRESSLY IN LIEU OF ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. THE AVAILABILITY OF ANY WARRANTY AS TO THIRD PARTY SOFTWARE IS STRICTLY LIMITED TO THOSE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER THEREOF.
c. IN NO EVENT SHALL INLOOX OR ITS AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF INLOOX HAS BEEN ADVISED OF THE POTENTIAL THEREOF. WITHOUT EXPANDING INLOOX’ LIABILITY AS SET FORTH ABOVE, INLOOX’ LIABILITY FOR DEFECTS, NONPERFORMANCE OR DELAY IN THE PERFORMANCE OR DELIVERY OF SERVICES SHALL IN NO CASE EXCEED THE AMOUNT ACTUALLY PAID TO INLOOX FOR THE SERVICES THAT ARE THE CAUSE OF THE CLAIM.
d. InLoox provides no express or implied warranty of merchantability or fitness as to third-party software, or to any services provided by third parties and Licensee may look only to such provider for warranty.
10. GENERAL TERMS AND CONDITIONS OF SALE
InLoox’ General Terms And Conditions of Sale (www.inloox.com/terms) shall be fully incorporated in this Agreement by this reference. In case of any conflicts between any provisions of this Agreement and of the General Terms of Sale, the provisions in the body of this Agreement shall prevail.
11. ENTIRE AGREEMENT, SEVERABILITY
a. This Agreement constitutes the full and complete understanding and agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior communications, understandings and agreements between the Parties relating hereto.
b. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to violate any statute or regulation or otherwise be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity or such unenforceability shall remain in full force and effect. The parties hereby agree to substitute for any invalid or unenforceable provision a valid and enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
12. MODIFICATIONS AND WAIVER
a. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by the parties hereto.
b. No waiver by either party hereto of any provision of this Agreement shall operate or be construed as a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
a. Any notices provided for hereunder shall be given by hand-delivery or first class certified mail, return receipt requested, postage prepaid, or by overnight courier, or by electronic mail.
b. A notice given by registered or certified mail shall be deemed effective five (5) days after the date of mailing. A notice given by hand-delivery, overnight courier or electronic mail shall be deemed effective upon delivery to Licensee.
14. GOVERNING LAW AND VENUE
a. This Agreement will be governed by and construed in accordance with the laws of the State of California (excluding its conflicts of law rules).
b. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator(s). The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator(s). The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
15. ASSIGNMENT AND SUCCESSORS
a. The Licensee shall not assign this Agreement or any rights granted hereunder to any third party without the prior written permission of InLoox.
b. All of the terms, provisions and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their representatives, heirs, successors, trustees, transferees, lawful assigns (in accordance with this Agreement) and legal representatives.