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
InLoox will provide updates, i.e. improved versions of the license software as well as upgrades, i.e. further developed versions of the license software if agreed on in the order. If a newer version of the license software has been made generally available by InLoox, InLoox shall make this newer version available to the Licensee free of charge on a suitable data medium or via download including the respective documentation.
The obligation to provide software service only applies to the current program version. The licensor is responsible for the installation of the newer version.
§ 2 Payment
For the software service as described in § 1 above 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 to the date of 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
The statutory provisions on liability for defects (warranty) shall apply with the following provisions:
a) The limitation period for warranty claims is one year from the provision of the newer version, if and insofar as the newer version is an upgrade.
b) As part of its liability for defects, InLoox itself or via third parties commissioned by InLoox will first attempt to rectify or have the fault rectified.
c) A liability for the correctness of file contents is excluded, as the data input takes place via the licensee. It is necessary and obligatory for the licensee to check file contents 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
The following applies both to liability for defects and liability for other legal reasons:
a) If the Licensee asserts claims for damages, InLoox shall be liable in accordance with the statutory provisions insofar as the claims are based on a breach based on intent or gross negligence on the part of InLoox, including intent or gross negligence on the part of representatives or vicarious agents of InLoox. Insofar as InLoox or its representatives or vicarious agents are not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
b) InLoox shall be liable in accordance with the statutory provisions if InLoox culpably violates an essential contractual obligation (cardinal obligation), i.e. even in the event of simple negligence; in this case its liability for damages shall be limited to the foreseeable, typically occurring damage.
c) Liability for expressly agreed characteristics of the software is not limited by the above provisions, insofar as the expressly agreed characteristics should protect the licensee precisely from the damage that has occurred.
d) The liability of InLoox (including its representatives and vicarious agents) for legal claims arising from the Product Liability Act and for claims arising from culpable injury to life, body or health shall not be limited by the above provisions.
e) Unless otherwise agreed above, any further liability of InLoox within the scope of liability for defects and in other liability cases is excluded. In particular, liability for defects shall not apply if and insofar as the software is handled improperly by the Licensee or is used in a defective or incompatible hardware or software environment. The same applies if the licensee makes unauthorized changes to the software.
f) 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.
g) It is the Licensee’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) InLoox ensures that within the scope of the performance of this contract, InLoox does not take any actions that violate existing data protection regulations.
2) InLoox ensures that all persons commissioned by InLoox have made a commitment to data secrecy and are bound to secrecy.
3) The parties mutually commit themselves to treat all information received in connection with this contract as confidential and to keep it secret indefinitely.
4) The parties are obliged to mark all confidential information as "confidential" (or "vertraulich").
5) Under this contract, personal data is only collected with regard to the customer relationship between the parties to which the data protection principles of InLoox's General Terms and Conditions apply. No other personal data is collected, as InLoox has no access to the licensee's systems under this contract.
§ 8 Miscellaneous
In the event that one or more provisions of this contract should be invalid, the remaining provisions shall remain in force. To replace the legally ineffective provision in the sense and purpose of this agreement accordingly by the parties by mutual agreement by an effective provision which comes as close as possible in its economic effect to that of the ineffective provision.
In addition, InLoox's currently valid General Terms and Conditions (GTC) shall apply. If Licensee places an order, the provisions of this Agreement and InLoox's General Terms and Conditions shall take precedence over the provisions of Licensee's order, the validity of which is expressly excluded.
Oral subsidiary agreements have not been made. Amendments and supplements to this contract must be made in text form and expressly confirmed by InLoox in text form. The same applies to the cancellation of this text form clause.
This agreement is subject to the law of the Federal Republic of Germany with the exception of the UN Convention for the International Sale of Goods (CISG) of April 11, 1980, as amended, and international law (in particular German conflict of laws).
As far as the licensee is not a consumer in the sense of § 13 BGB, the place of jurisdiction for all disputes arising from this contract including its appendices is Munich. The same applies if the customer has no general place of jurisdiction in Germany or his place of residence or usual abode is not known at the time the action is filed.
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.