Preamble
The web-based software “SocialHub” is a social media management solution from maloon GmbH, Schütterlettenweg 4, 85053 Ingolstadt, Germany (hereinafter: Provider), which supports social media teams in managing fan requests in social networks in a time-saving manner. The Customer wants to use the Software internally. For the use of the Software the following terms and conditions shall apply:
§ 1 Subject matter of the Agreement
The Provider provides his services on the basis of an Order Form which may contain deviating provisions to these Terms of Use. Deviating provisions in the Order Form take precedence over these terms of use. The Provider provides SaaS services in the area of social media software. Subject matter of this Agreement is the provision of the software “SocialHub” for use over the Internet and the storage of customer data (hosting). The features of the contractual software (hereinafter: “Software”) result from the features mentioned in the Order Form and described on Provider´s website.
The elimination of faults and damage caused by improper handling on the part of the Customer, by the influence of third parties or by force majeure is not the subject of this Agreement, but may be agreed in individual cases against separate payment. The same applies to damages and malfunctions caused by environmental conditions at the installation site, by faults or non-performance of the power supply, faulty hardware or other influences for which the Provider is not responsible.
§ 2 Scope of Services
This Agreement applies to the number of users as specified in the Order Form. The Provider has the right to carry out an inspection once a year or, in the case of a justified reason, at the customer’s premises or to have such an inspection carried out in order to determine whether the agreed scope is being adhered to.
The Provider will set up the number of user accounts as agreed for the customer immediately after conclusion of the contract. The commissioning of the Software and the connection to the Customer´s channels in social networks will be carried out by the Customer, if necessary with the support of the Provider.
The Customer will be able to connect channels from at least the following social networks: Facebook, Twitter, Instagram, YouTube, LinkedIn. Additional channels may be added as the Software continues to evolve.
The scope of the rights of use granted shall be governed by § 8.
In addition to providing the software, the Provider will also perform the further development (a), troubleshooting/error elimination (b) and support (c).
- In the course of further development, the Provider develops the Software with regard to quality and modernity, adapts it to changed requirements, processes errors in order to maintain the quality owed, and leaves the resulting new versions of the Software to the Customer. Smaller feature extensions are also included.
- Within the scope of troubleshooting/error rectification, the Provider is obliged to investigate errors in the software reported by the Customer and to eliminate any errors. The prerequisite for troubleshooting and error correction is the fulfilment of the Customer’s obligations to cooperate in accordance with § 3. The error correction takes place in accordance with number 5.
- The Provider also undertakes to provide support to the Customer or the Customer’s personnel.
The Provider’s employees do not enter into an employment relationship with the Customer. The Customer will only give instructions to the responsible employee designated by the Provider with effect for and against the Provider.
Additional services not covered by this Agreement shall be assumed by the Provider upon Customer´s request against separate payment if sufficient staff is available to him at the time of the request. The calculation shall be made on the basis of the hourly rates of the provider valid at the time of execution, taking into account the time required.
§ 3 Obligations of the Customer
The Customer will immediately inform the Provider of any errors that occur and support the Provider in the investigation and elimination of errors using reasonable efforts. This includes, in particular, submitting defect reports in writing or text form to the Provider on request and providing other data and protocols that are suitable for the analysis of the defect.
During any free trial period, the Customer is obliged to inform the Provider about his experiences and his satisfaction with the previous use of the Software as well as about his interest in a paid use.
§ 4 Telephone Hotline
The customer receives assistance by telephone or e-mail in the event of faults in the software and operating problems.
The “Hotline” is available Mondays to Fridays from 10:00 a.m. to 6:00 p.m. under the telephone number 0049 (0)841 493 990-0.
Any further support availability requires a special agreement.
§ 5 Hosting, Availability and Service Level
The Software is available 24 hours a day seven days a week (“operating time”). The average availability of the Software during the operating time is guaranteed with 99% in the annual average. The services of the connected social networks are not part of the Software. The Provider is not responsible for their malfunctions. If the safety of network operation or the maintenance of network integrity is at risk, access to the services may be temporarily restricted as required.
The connection to the site is encrypted by a 256-bit SSL certificate.
Adaptations, changes and additions to the Software, as well as measures which serve to determine and remedy malfunctions, will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
The basic functionality of the software is monitored daily. The maintenance of the software takes place between Monday to Friday, 10:00 to 18:00 o’clock (service times).
Troubleshooting takes place within the service times as follows:
Error class 1: Serious error (Definition: The use of the Software is no longer possible) -> Reaction time and start of troubleshooting: 2 hours
Error class 2: Medium error (Definition: The use of the Software is no longer possible or severely restricted with regard to one or more parts. But the Software is at least partly still usable.) -> Response time and start of troubleshooting: 24 hours
Error class 3: Slight error (All errors that cannot be assigned to another error class.) -> Reaction time and start of troubleshooting: As part of the next update cycle
In the case of serious errors – the use of the Software is no longer possible or seriously restricted – maintenance is carried out within 2 hours after Provider´s knowledge or notification by the Customer. The Provider will inform the Customer of the maintenance work in good time and carry it out as quickly as possible.
If the error correction should not be possible within 12 hours, the Provider will inform the Customer in writing within 24 hours, stating the reasons as well as the time period which is to be estimated for the error correction. The Provider will use all means to offer the Customer a workaround.
The legal warranty rights of the Customer remain untouched by the provisions in this Section.
§ 6 Remuneration
The Customer undertakes to pay the Provider for the Software access and the hosting the fee agreed in the Order Form plus the statutory value added tax applicable at the time.
The Provider will send the Customer an invoice of the applicable fee.
The remuneration shall be paid annually in advance within 14 days of the invoice being issued.
The agreed price does not include maintenance work which has arisen due to faulty operation or negligent or intentional damage to or modification of the Software. Such maintenance work shall be charged on the basis of the Provider´s hourly rates generally applicable at the time the order is placed, based on the time spent.
§ 7.1 Data Protection, Confidentiality
Both Parties shall maintain secrecy with regard to all business and operational matters of which they become aware and shall treat all information in connection with the performance of this Agreement as strictly confidential even after its expiration. The same applies to personal data which fall under the provisions of the data protection laws.
The Provider undertakes to instruct its personnel accordingly and to oblige them to comply with data protection laws.
Contents uploaded via the Software are the sole property of the Customer and will be deleted at the end of the contract at the customer’s request. This includes in particular user profiles, comments in all variations and media elements containing them.
§7.2 Data Protection, YouTube
If you use the SocialHub to manage comments on Youtube videos, you must also accepts Youtube’s Terms and Conditions. Youtube’s Terms and Conditions are available at https://www.youtube.com/t/
§ 8 Rights of use
The Provider grants the Customer the remunerated, non-exclusive, non-transferable and non-sublicensable right to use the Contract Software on the Provider’s systems during the term of this Agreement. The Software shall not be transferred to the Customer.
The Customer shall also be granted a right of use to the contractual items which the Provider transfers to him within the scope of his maintenance obligations under this Agreement (e.g. updates, supplementary software manuals). The Provider indemnifies the Customer from claims that can be asserted by third parties due to the use of the Software.
If the Customer uses contractual objects which are intended to replace earlier ones, the right to use the replaced contractual object shall expire.
§ 9 Warranty
The strict liability for initial defects of the software is excluded. Otherwise, the Customer’s warranty claims shall be governed by the statutory provisions.
Warranty claims of the Customer expire within a period of two years from receipt of the notice of defects.
§ 10 Provider´s Liability
Provider is only liable (a) for damages caused by intent or gross negligence of Provider or it´s legal representatives or it´s agents or subcontractors (b) in the event of an injury to life, body and health caused by neglicence of Provider or it´s legal representatives or it´s agents or subcontractors. Additionally Provider is liable (c) for damages caused by an infringement of an obligation of Provider, whose fulfilment is essential for the due and proper implementation of the contract, and whose fulfilment the Customer can regularly rely on (cardinal obligation).
Provider´s liability is unlimited in the case of paragraph 1, lit. a) and b). In all other cases, the liability of Provider towards Customer is limited to typical, foreseeable damages.
In all other cases not mentioned in paragraph 1, Provider´s liability is excluded.
The liability provisions contained in the previous paragraphs of this Section is also applicable to any personal responsibility of Provider´s representatives, employees, agents or subcontractors.
As far as liability is concerned on the basis of the product liability law or on the basis of a guarantee or wilful deception the aforementioned limitation of liability does not apply.
§ 11 Contract Term
This Agreement has the term specified in the Order Form.
The term will automatically renew for additional periods equal to the expiring term, unless either Party gives the other notice of non-renewal in due form and time before the end of the relevant term.
This Agreement begins with the conclusion and can be terminated by either Party at the end of the term, after expiry of the minimum term, with a notice period of three months.
The right to terminate for good cause shall remain unaffected by the provisions of this Section.
Any notice of termination must be in writing or in text form in order to be effective.
§ 12 Miscellaneous
This Agreement and its annexes as well as the contract on data processing on behalf regulate the relevant agreements between the Parties conclusively and completely. The Provider does not accept general terms and conditions of the Customer.
Should individual provisions of this Agreement be or become invalid, or should an essential point not be regulated, the validity of the remaining provisions shall remain unaffected. The Parties undertake to replace the invalid provision with a provision which comes as close as possible to the intended result and which the Parties would have agreed if they had known of the invalidity of the provision.
Amendments and supplements to this Agreement shall only be effective in writing and with reference to this Agreement and shall be signed by both parties.
Place of performance and jurisdiction for all disputes arising from this Agreement is the place of business of the Provider, provided that the Customer is a merchant or legal entity under public law.
Updated: February 2019