2. Subject Matter of the Agreement
2.1. The Provider provides its services based on an offer, which may include deviating provisions to these General Terms and Conditions. Deviating provisions in the offer take precedence over these General Terms and Conditions. The Provider provides SaaS services in the area of social media Software. The subject matter of the Agreement is the provision of the Software “SocialHub” for use via the internet and the storage of Customer data (hereinafter: Hosting). The functional range of the contractual Software results from the functions mentioned in the offer and described on the website of the Provider.
2.2. The elimination of malfunctions and damages caused by improper handling on the part of the Customer, by the influence of third parties or by force majeure is not the subject matter of this Agreement, but can be agreed in individual cases against separate remuneration. The same applies to damages and malfunctions caused by environmental conditions at the installation site, by errors or non-performance of the power supply, faulty hardware or other influences for which the Provider is not responsible.
3.1. “Agreement” means this Agreement, which includes any Order Form and/or the Product Documentation and/or conditions mentioned on the Provider’s website, where further information about the functions is available.
3.2. “Affiliated Companies” means any company or business entity that is controlled by or controls a party of this Agreement or is subject to joint control with a party to this Agreement. In this context, “control” means the direct or indirect shareholdership of more than 50% (fifty percent) of the voting shares of a company or, in the absence of a shareholdership of more than 50% (fifty percent) of the voting shares of that company, the possibility of directly or indirectly influencing the management and business principals of this company through determination or stipulation. For the avoidance of doubt: holding companies, parent companies, sister companies and subcompanies are considered Affiliated Companies.
3.3. “Content” means all content that the Customer and an Authorized User processes in the Software, including but not limited to data in the form of text, recorded working hours or other content.
3.4. “Authorized User” means a person who is authorized to have access to the Software and to view and/or edit Content in the Software and who (i) may be the Customer itself if the Customer is a natural person, or (ii) in particular if the Customer is a legal entity, an employee of the Customer or an agent of the Customer, who has obtained access to the Software on behalf of the Customer in the course of providing services to the Customer.
3.5 “Order Form” means an order form provided by the Provider to the Customer that contains Provider’s binding offer to enter into a contract with the Customer in accordance with the terms of this Agreement.
3.6. “Product Documentation” means a document or website on which the Provider describes the features and system requirements of the Software.
3.7. “Software” means the Software “SocialHub” with the characteristics defined in the Product Documentation and in this Agreement.
4. Scope of Services
4.1. The Agreement applies to the number of Authorized Users specified in the offer and the number of channels specified in the offer from the networks specified in the offe.. The Provider shall have the right to carry out or have carried out an audit at the Customer’s premises once a year or in the event of good cause in order to determine whether the agreed scope of use is being complied with. For this purpose, it can use the information available in the Customer account.
4.2. The Provider will set up the number of user accounts owed to the Customer immediately after conclusion of the Agreement. The commissioning of the Software and the connection to the respective channels of the Customer in social networks is carried out by the Customer, if necessary, with the support of the Provider.
4.3. The Customer is given the opportunity to connect channels from at least the following social networks: Meta, Instagram, Youtube. Further channels may be added as part of the update/enhancement of the Software or can be added after consultation with the Provider for an additional fee.
4.4. The scope of the granted rights of use is governed by section 11.
4.5. In addition to the provision of the Software, the Provider also provides services in the areas of updates/ enhancements (a), troubleshooting / error correction (b) and support (c).
4.6. As part of the updates/ enhancements, the Provider keeps the Software up to date in terms of quality and modernity, adapts it to changed requirements, processes errors in order to maintain the quality, and leaves the resulting new versions of the Software to the Customer. Smaller function enhancements are also included.
4.7. As part of the troubleshooting / error correction, the Provider is obliged to investigate errors of the Software reported by the Customer and to eliminate any errors. The prerequisite for error search and error correction is the fulfilment of the Customer’s obligations to cooperate in accordance with section 5. The error correction shall be carried out in accordance with section 7.
4.8. The Provider further undertakes to provide support to the Customer or the Authorized Users.
4.9. The Provider is not obliged to establish and maintain an Internet connection between the web server and the Customer's Internet access point.
4.10. The employees of the Provider do not enter into any employment relationship with the Customer. The Customer will only issue instructions to the responsible employee named by the Provider with effect for and against the Provider.
4.11. Additional services not covered by the Agreement shall be provided by the Provider at the request of the Customer against separate payment if sufficient personnel are available at the time of the request. The calculation is based on the Provider's hourly rates valid at the time of realization, taking into account the required time expenditure.
4.12. The Provider is authorized to name the Customer, including the company name and logo, for reference purposes on the Provider's website and in offline marketing materials such as flyers and product presentations.
5. Customer’s Cooperation Obligations
5.1. The Customer may only use the Software for the purpose defined in this Agreement. In particular, no programming code may be entered in the input fields of the Software.
5.2. The Customer must keep the access data secret, may not disclose it to third parties and must ensure that authorised users do not disclose their access data to third parties.
5.3. The Customer shall immediately notify the Provider of any errors that occur and support the Provider in the error investigation and error correction within the scope of what is reasonable. This includes, in particular, submitting error reports to the Provider at the Provider's request in written or text form and providing other data and protocols that are suitable for analyzing the error.
5.4. During a possible free test phase, the Customer is obliged to inform the Provider about its experiences and satisfaction with the previous use of the Software as well as about its interest in a paid use.
6. Telephone Support
6.1. Authorized Users receive assistance by phone or e-mail in the event of malfunctions in the Software and operating problems.
6.2. The “Hotline” can be reached on weekdays Monday to Friday from 9:00 a.m. to 6:00 p.m. (CET) by calling +49 (0)841 / 493990 – 0.
6.3. Further hotline times require a separate agreement.
7. Hosting, Availability and Service Level
7.1. The contractual Software is available 24 hours a day, seven days a week (hereinafter: Operating Time). The average availability of the Software during the Operating Time is guaranteed with 99,8% on an annual average. Downtimes for scheduled maintenance and data backups are not taken into account in the calculation of availability if these are carried out between 0:00 a.m. and 6:00 a.m. (CET) and have been announced to the Customer at least 7 days before the work is carried out. The announcement can be made in text form or as a dialogue message in the front-end system. The services of the connected social networks are not part of the Software. The Provider is not responsible for their disruptions. If the security of network operation or the maintenance of network integrity is endangered, access to the services may be temporarily restricted as required.
7.2. The connection to the site is encrypted by a 256-bit SSL certificate.
7.3. Adjustments, changes and additions to the Software, as well as measures that 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.
7.4. The basic functions of the Software are monitored on a daily basis. Maintenance of the Software generally takes place from Monday to Friday 10:00 a.m. to 6:00 p.m. (CET) (hereinafter: Service Hours).
7.5. Troubleshooting is done within Service Hours as follows:
– Error class 1: Fatal Error (Definition: The use of the Software is no longer possible overall.) -> response 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. However, the Software is still at least partially usable.) -> response time and start of troubleshooting: 24 hours
– Error class 3: Slight Error (All errors that cannot be assigned to another error class.) -> response time and start of troubleshooting: As part of the next update cycle
7.6. In the event of Fatal Errors – the use of the Software is no longer possible – start of maintenance takes place within 2 hours of knowledge of the Provider or communication by the Customer. The Provider will inform Authorized Users of the maintenance work in good time and carry it out as quickly as possible.ble.
7.7. If the troubleshooting should not be possible within 12 hours, the Provider will inform the Customer at least in text form within 24 hours, stating the reason and the period of time expected to be required to rectify the error. The Provider shall use all means to offer the Customer a workaround solution.
7.8. The statutory warranty rights of the Customer remain unaffected by the provision in this section.
8.1. The Customer undertakes to pay the fee agreed in the offer plus the applicable statutory VAT to the Provider for Software access and hosting.
8.2. The Provider will send the Customer an invoice with the agreed license fee. The Provider is authorized to send the Customer invoices electronically.
8.3. The remuneration must be paid annually in advance within 14 days of invoicing. Other terms of payment require a separate agreement.
8.4. The license fee does not include maintenance work that has arisen due to incorrect operation or negligent or intentional damage or modification of the Software. Such services are invoiced on the basis of the hourly rates of the Provider valid at the time the order is placed.
9. Data Protection, Confidentiality
9.1. Both parties must maintain secrecy about all business and operational matters that have become known to them and treat all information in connection with the fulfillment of this Agreement as strictly confidential even beyond its expiration. The same applies to personal data that falls under the provisions of the data protection laws.
9.2. The Provider undertakes to instruct its staff accordingly and to oblige them to comply with data protection regulations.
9.3. Content posted via the Software is the sole property of the Customer and will be deleted at the end of the Agreement at the Customer’s request. This includes, in particular, user profiles, comments in all variations and their containing media elements.
10. Data Protection, Meta and YouTube
If you use the SocialHub to manage comments in YouTube videos or on other social media platforms or to create posts, you must also observe the general terms and conditions and data protection notices of the respective social media platforms in this context. For example, the general terms and conditions of YouTube are available at https://www.youtube.com/t/terms. Meta's General Terms and Conditions are available at https://m.facebook.com/legal/terms and https://help.instagram.com/.
11. Rights of Use
11.1. For the term of this Agreement, the Provider grants the Customer compensated by the license fee the non-exclusive, and non-transferable right to use the contractual Software on the Provider’s systems that can only be sublicensed to Affiliated Companies. The contractual Software will not be conveyed to the Customer.
11.2. The Customer shall also receive a right of use to the contractual objects which the Provider provides to it as part of its 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 this contractual items.
11.3. If the Customer uses contractual objects that are intended to replace earlier ones, the right of use to the replaced contractual object expires.
12. Defects Liability
12.1. Liability regardless of negligence or fault for initial defects in the Software is excluded. In all other respects, the Customer’s warranty claims shall be governed by the statutory provisions.
12.2. Warranty claims for defect of the Customer are subject to the statute of limitations within a period of two years from receipt of the notice of defects.
13. Liability of the Provider
13.1. Within the scope of this Agreement, the Provider shall only be liable for damages (a) caused intentionally or through gross negligence by the Provider or its legal representatives or vicarious agents or (b) resulting from injury to life, body or health as a result of a breach of duty by the Provider or one of its legal representatives or vicarious agents. The Provider shall also be liable (c) if the damage is caused by the breach of an obligation of the Provider, the fulfilment of which makes the proper execution of the Agreement possible and on the compliance of which the Customer regularly trusts and may rely (cardinal obligation).
13.2. In the cases referred to in paragraph 1, letters (a) and (b), the Provider shall be liable within the scope of the statutory liability. In all other cases, the claim for damages shall be limited to the damage foreseeable and typical for this type of Agreement. The parties agree that a maximum damage of EUR 500,000 per case of damage is foreseeable and typical for this type of Agreement. If there is a threat of higher damage, the Customer is obliged to draw the Provider’s attention to this in good time.
13.3. In cases other than those referred to in paragraph 1, the liability of the Provider shall be excluded.
13.4. The liability provisions in the preceding paragraphs shall also apply to the personal liability of the Provider’s representatives, employees and vicarious agents.
13.5. Insofar as liability arises under the Product Liability Act from the assumption of a guarantee or due to fraudulent misrepresentation, it shall remain unaffected by the liability regulations above.
14. Term of the Agreement
14.1. This Agreement has the term specified in the offer.
14.2. The term is extended in each case by 12 months after the end of the term if the Agreement is not terminated in due form and in due time at the end of the respective term.
14.3. The contractual relationship begins with the conclusion of this Agreement and can be terminated by both parties, after expiry of the minimum contract period, with a notice period of three months, at the end of the respective term.
14.4. The right to terminate for good cause remains unaffected by the provisions of this section.
14.5. Any termination must be in writing or in text form in order to be effective.
15.1. The Provider shall only make a binding offer to conclude this Agreement or accept the Customer's binding offer if the Customer is a company or a person acting in the course of their trade or profession.
15.2. This Agreement and its attachments as well as the contract for the Data Processing Agreement regulate the relevant agreements between the parties conclusively and completely.
15.3. The Provider does not accept deviating, conflicting or supplementary general terms and conditions of the Customer. This shall also apply if he does not expressly object to their inclusion.
15.4. If any provision of this Agreement is invalid or unenforceable in whole or in part, or subsequently loses its validity or enforceability, or if a regulatory gap becomes apparent, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid or unenforceable provision or to fill the regulatory gap with an appropriate provision which, to the extent legally permissible, comes as close as possible to what the parties intended or would have intended according to the meaning and purpose of the Agreement if they had known the invalidity or the regulatory gap. If the invalidity or unenforceability of a provision is based on a measure of services or time (deadline or date) specified therein, the legally permissible measure that comes closest to the provision shall be agreed. It is the express intention of the Parties that this paragraph does not merely result in a reversal of the burden of proof, but that Section 139 BGB is waived in its entirety.
15.5. Changes and additions to this Agreement as well as a waiver of rights under this Agreement are only effective in writing or in text form and with reference to this Agreement and must be signed by both parties. This also applies to the waiver of the written form requirement or text form requirement.
15.6 The place of performance and jurisdiction for all disputes arising from or in connection with this Agreement (including those relating to its validity) shall be the place of the registered office of the Provider, provided that the Customer is a merchant or legal entity under public law.
15.7 German law shall apply to the exclusion of the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods.
15.8 This Agreement is drafted in German and English. In the event of contradictions between the two language versions, the German version shall prevail over the English version.
Updated: February 2024