SOFTWARE USAGE AGREEMENT
Miquelstraße 38A, 14199 Berlin, Germany
- hereinafter referred to as "MyPoolitzer" -
the customer of MyPoolitzer GmbH
- hereinafter referred to as "User" -
§ 1 Subject matter of the contract
(1) The services according to this contract are exclusively directed to entrepreneurs in the sense of § 14 BGB (German Civil Code), i.e. natural or legal persons or partnerships with legal capacity, who act in the exercise of their commercial or independent professional activity when concluding a legal transaction and to legal persons under public law or special funds under public law.
(2) These terms and conditions apply to all contracts that a customer concludes with MyPoolitzer via the MyPoolitzer website (e.g. mypoolitzer.com) or otherwise (e.g. written order). The conditions also apply to contracts to be concluded between the parties in the future, even if the parties do not expressly include them again.
(3) The subject of the contract is the provision against payment of the online-based manuscript submission and management software "MyPoolitzer APP" in the service package [based on the user's preselection to be inserted: STANDARD / CONTEST / CONSTEST PRO / PROFESSIONAL] and in accordance with the service description, as it results from the service package overview, and in the respective current and online provided version (hereinafter: "Software") during the term of this contract. The Software has various functionalities for manuscript submission, originality check and manuscript management.
(4) Installation of the Software is not required. The software is made available via online access, which can be used via a corresponding access code.
§ 2 Conclusion of contract
(1) The user submits the offer to conclude this contract by electronic or postal transmission to MyPoolitzer. The order confirmation sent immediately by MyPoolitzer by e-mail does not constitute acceptance, but only informs the user that the order has been received.
(2) Acceptance of the User's offer to conclude this contract shall be accepted by MyPoolitzer by sending the access data in accordance with § 3 (2).
§ 3 Software transfer
(1) MyPoolitzer grants the User the non-exclusive, non-transferable, and non-sublicensable right to use the software for the intended use to the extent determined by the choice of service package for the term of this contract.
(2) The software is made available to the user in the server environment provided by MyPoolitzer in a private cloud for use without the user having to download and install the software on his system. The User obtains access to the Software by MyPoolitzer activating access and providing the User with the access data consisting of an access link, a username and a password.
(3) MyPoolitzer will also carry out the initial adjustment of the software in accordance with the standardized check and test points provided for the respective service package. An individual or subsequent adjustment is subject to a charge and is to be agreed separately between the Parties.
§ 4 Availability
(1) MyPoolitzer guarantees an annual average availability of 99% for services provided via the Internet (e.g. Software as a Service) within its area of responsibility. Availability is given if the contractual services can be accessed at the server used by MyPoolitzer for the service.
(2) MyPoolitzer is entitled to carry out care and maintenance work on the systems used for customers and to stop or limit the provision of services for this reason (scheduled downtime). MyPoolitzer will inform the customer of this. If it is foreseeable for MyPoolitzer that the Scheduled Downtime will exceed one hour, MyPoolitzer will inform the customer by e-mail at least one week before the start of the respective work. Care and maintenance work will be carried out by MyPoolitzer in times of generally low usage if possible. This does not affect the right of MyPoolitzer to take appropriate measures at any time, even without notice, to avert specific threats to the security and integrity of the systems. Before calculating the availability, restrictions on availability due to such security measures and/or scheduled downtimes are to be deducted. However, the Scheduled Downtimes will not exceed the total duration of 3 hours per month.
§ 5 General principles of service provision
(1) MyPoolitzer is entitled to extend or improve its services at any time, in particular to adapt them to technical progress or to changed legal requirements. MyPoolitzer will announce other changes to its services, which are more than insignificant, to the customer in good time in advance. The customer is entitled to object to these changes within one month from receipt of the notification of the change request; otherwise his consent to the change is deemed to have been given. MyPoolitzer shall point out the effect of a failure to object in the announcement.
(2) MyPoolitzer is entitled to engage subcontractors or freelancers, unless there is an important reason recognizable to MyPoolitzer against such engagement.
§ 6 Duties of the Customer
(1) The customer shall promote the performance of the contract by active and reasonable cooperation. In particular, he shall have the obligations listed in this Section 3. If the performance of a particular service is delayed due to a lack of cooperation on the part of the customer, the performance period shall be extended accordingly.
(2) The Customer is obligated to truthfully and completely provide the data required for the performance of the contractual services in its user account and any other user accounts assigned to it for employees or third parties and to keep such data up to date at all times. User accounts may only be used by the registered persons. If the customer has booked an edition that allows additional persons to use the software, the user accounts of employees or third parties may be replaced at any time. For this purpose, the Customer shall notify MyPoolitzer Customer Support of any change requests, specifying the users to be replaced and the new users to be added.
(3) Personal access data and/or user authorizations, which are assigned to the customer or persons to whom the customer allows use via a personalized user account, are to be kept secret and protected from access by third parties. The customer shall inform MyPoolitzer immediately if there is any suspicion that the access data or passwords may have become known to unauthorized persons.
(4) The use of the services of MyPoolitzer require the fulfilment of technical requirements on the part of the customer, such as the provision of certain hardware and software or a telecommunications connection. The technical requirements for the use of the software can be subject to change due to technical progress and further development of the software. MyPoolitzer is not responsible for the condition of the required hardware and software on the part of the customer as well as the telecommunication connection between the customer and MyPoolitzer up to the transfer point during the contract period.
(5) The Customer shall always report faults in text form. A verbal report is permissible if the customer makes up for the report in text form within two working days at the latest.
(6) The customer must back up his data used in the context of the use of the services of MyPoolitzer independently on a regular basis and to create backup copies. For this purpose, the software enables, among other things, the printing and saving of documents in pdf format.
(7) The customer grants MyPoolitzer all necessary rights to store, reproduce, modify and make accessible the customer's content within the scope of the purpose of the contract via the software selected by the customer. This includes the authority to create backup copies within the framework of data backup also for MyPoolitzer's own backup purposes.
§ 7 Contract term and termination
(1) The software usage contract shall be concluded for a term of 12 months (basic term). If the contract is not terminated by the end of the basic term in the 10th month of the basic term at the latest, the contract shall be extended for an indefinite period.
(2) If the Software is made available to the User for a test period within the meaning of § 8 (2), the User may terminate the contract at any time before the end of the test period. If the User does not terminate the contract within the test period, the basic term according to § 7 begins to run after the expiration of the test period, provided that the User selects a means of payment until the expiration of the test period and submits his contact and payment data completely and correctly to MyPoolitzer. If, however, the contact and payment data are not completely and correctly transmitted to MyPoolitzer, the contract shall be deemed terminated.
(3) Insofar as the contract has been extended for an indefinite period, the contract may be terminated by either party at any time with three (3) months' notice to the end of the corresponding performance period.
(4) The right to extraordinary termination for good cause shall remain unaffected. Good cause shall be deemed to exist in particular
- if the customer is in default with the payment of the remuneration regulated in § 8;
- if the contact data and means of payment provided by the user prove to be either incorrect or invalid.
(5) Any termination must be in writing.
§ 8 Remuneration and price adjustment
(1) The User shall pay a one-time setup fee for the provision of the Software as well as the agreed monthly or annual remuneration as determined by the selected service package.
(2) If the user is granted the opportunity to use the software as a free test version for a period of 14 days (test period), the user shall not owe any remuneration for this period.
(3) Unless otherwise agreed between MyPoolitzer and the customer, the amount of the fee to be paid by the customer for the provision of the software shall be based on the MyPoolitzer price list valid at the time of conclusion of a contract. The fee may consist of one-time license fees for the setup and ongoing license fees for the provision of the software as well as additional fees for the expansion of the number of authorized users. Fees are stated as net prices plus applicable sales tax.
(4) Invoicing shall take place as of the provision of the services to the customer by MyPoolitzer. The billing period for the edition of the software selected by the customer is based on the MyPoolitzer price list valid at the time the contract is concluded. One-time charges will be invoiced in each case after completion of the service provision.
(5) Payments are made in Euro and are to be made within 14 days after receipt of the invoice. In case of participation in the SEPA direct debit procedure or credit card payment, the invoice amounts will not be collected or debited before five working days after receipt of the invoice and the SEPA pre-notification. If payment is made during the year, MyPoolitzer is entitled to demand payment by SEPA direct debit or credit card payment.
(6) In the event that an agreed direct debit cannot be honoured due to insufficient funds in the customer's account or the customer otherwise defaults on a payment, MyPoolitzer shall be entitled to charge the customer a flat-rate processing fee of 25.00 EUR. If the customer is in arrears with the payment of an amount equal to two monthly license fees, MyPoolitzer is entitled to block access to the software until full payment has been made. In this case the customer remains obliged to pay the agreed fee.
(7) Exempt from debt, the customer can also make payments to MyPoolitzer at any time to the account of MyPoolitzer, IBAN DE90 1004 0000 0644 7700 00, BIC COBADEFF.
(8) For the first time after the expiration of twelve months MyPoolitzer is entitled to increase the remuneration according to § 7 paragraph 1 of the software usage contract at its reasonable discretion, whereby the increase may not exceed 20% of the previous remuneration. At least three months before the increased remuneration is due for the first time, the user is to be informed about the increase of the remuneration in writing. There shall be at least 12 months between each increase of the remuneration.
(9) If MyPoolitzer increases the remuneration according to § 8 (8), the user can terminate the contract within four weeks after receipt of the notification about the increase at the end of the service period which precedes the service period for which the increased remuneration is due for the first time.
(10) If the User is granted the opportunity to use the Software as a free trial version pursuant to § 7 (2), the one-time setup fee and the monthly remuneration shall become due upon expiration of the trial period, provided that the Agreement continues to exist after expiration of the trial period.
§ 9 Change of the selected service package
(1) The User may adjust its choice of the respective service package during the term of the agreement and without considering the notice periods pursuant to § 7, provided that the newly selected service package is subject to a higher monthly fee (upgrade). The newly selected service package shall be activated immediately.
(2) In the event of an upgrade, MyPoolitzer and the customer shall conclude a new contract for the use of the software after the upgrade. The term and termination provision pursuant to § 7 shall apply to this.
§ 10 Liability
(1) The regulations on the liability of MyPoolitzer in § 10 (2) to (4) and on the warranty in § 11 apply to all claims for damages, claims for defects and liability cases, regardless of the legal basis on which they are based (e.g. warranty, delay, impossibility, any breach of duty, existence of an impediment to performance, tort, etc.) except for:
- Claims of the customer for damages arising from injury to life, body and health,
- rights and claims of the customer in the event of fraudulent concealment of a defect by MyPoolitzer or due to the absence of a quality for which MyPoolitzer has assumed a guarantee,
- claims and rights of the customer based on intentional or grossly negligent conduct by MyPoolitzer itself, its legal representatives, or vicarious agents, as well as
- claims of the customer according to the product liability law.
For the foregoing exceptions, the statutory provisions shall apply.
(2) MyPoolitzer shall be liable for slight negligence only in the event of a breach of essential obligations, i.e., obligations which enable the proper performance of the contract and on the observance of which the contractual partner may regularly rely or obligations the fulfilment of which is necessary to achieve the purpose of the contract. In case of slight or simple negligent violation of essential obligations, the liability of MyPoolitzer is limited to the compensation of the typical damage foreseeable for MyPoolitzer at the time of conclusion of the contract. Otherwise, the liability of MyPoolitzer for slight or simple negligence is excluded.
(3) Insofar as MyPoolitzer is liable in accordance with the above provisions in § 8 (2), the amount of liability shall be limited to 5,000.00 EUR. If a higher damage is imminent, the customer shall draw MyPoolitzer's attention to this in good time so that the contracting parties can amend this limitation and MyPoolitzer can insure such damage if necessary.
(4) The strict liability of MyPoolitzer in the area of tenancy law and similar usage relationships (e.g. temporary provision of the MyPoolitzer software) for errors already existing at the time of conclusion of the contract is expressly excluded.
§ 11 Warranty
(1) If services of MyPoolitzer should be subject to the legal warranty, the following regulations of this clause 11 apply. Thereby only legally existing claims are shaped, but no claims are justified. According to § 10 (1) excluded claims remain unaffected.
(2) In the case of software, it is not possible according to the state of the art, even with the most careful programming, to exclude errors in all areas of application. MyPoolitzer therefore assumes no warranty in particular
- for defects which are not reproducible or which cannot be demonstrated by machine-generated output,
- for the faultlessness of the software supplied by it, as far as it concerns insignificant errors,
- for the suitability of the software for the intended use of the customer as well as
- for the results achieved with the software.
(3) Warranty claims are excluded
- if the customer has made changes to the services of MyPoolitzer without prior consent, or
- if instructions or notes from MyPoolitzer are not followed by the customer or the services are handled improperly, unless the customer proves that the defects are not due to this or that the warranty work is not or only insignificantly impeded as a result.
(4) If a defect claimed by the customer is not subject to the warranty obligation of MyPoolitzer, MyPoolitzer may claim from the customer the expenses incurred in accordance with its usual rates.
(5) The customer shall report defects in text form as defined in § 6 (5) and describing the circumstances of their occurrence and their effects. The customer shall support MyPoolitzer to a reasonable extent also in other respects in the determination and elimination of defects and shall grant access to documents from which further information can be obtained.
(6) In the event of a defect, MyPoolitzer may, at its discretion, remedy the defect or make a new delivery (subsequent performance). Further claims of the customer remain unaffected.
§ 12 Data protection
(1) MyPoolitzer is free to decide from which data centre within the European Union hosting services for the software are provided, unless a specific location for servers used by the customer is the subject of the service. In these cases, the Customer shall be responsible for ensuring that the selection of the server location allows for a legally compliant use of the services, in compliance with data protection regulations.
(2) Employees of MyPoolitzer, as well as third parties who are active within the scope of the order or have access to personal data, are obligated in writing to maintain secrecy and data confidentiality.
§ 13 Use of anonymous data for statistical purposes
MyPoolitzer is entitled to anonymize the data stored on its own systems and to evaluate it statistically for its own purposes. This includes both the technical analysis of the utilization and use of the systems as well as content evaluations of the calculations made with the software. For this purpose, only anonymous data is analysed by computer programs. Only the results of these processes are used by MyPoolitzer, processed and, if necessary, made available to third parties.
§ 14 Effect of the termination of the contract
(1) Upon termination of the contract, all user authorizations and data of the customer shall be blocked and deleted. It is the customer's responsibility to save his data before the expiration of the contract by printing or saving it in a file format that he can use (e.g. pdf format).
(2) A reconstruction and transmission of existing data of the customer from the data backup of MyPoolitzer offers MyPoolitzer at the request of the customer for a separate fee.
(3) Excluded from deletion is data that MyPoolitzer is obligated to keep or is entitled to keep in order to protect its own interests.
§ 15 Final provisions
(1) The customer may assign the rights to which he is entitled under this contract to third parties only with the written consent of MyPoolitzer.
(2) The legal relationship between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the rules of private international law which lead to the application of foreign law. The Vienna UN Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not apply.
(3) Section 312i paragraph 1 sentence 1 number 1 to 3 and sentence 2 BGB shall not apply.
(4) The exclusive place of jurisdiction for all disputes arising from or in connection with the performance of the contractual relationships covered by these GTC shall be at the registered office of MyPoolitzer. However, MyPoolitzer may sue the customer at his general place of jurisdiction.
(5) MyPoolitzer reserves the right to change these GTC. MyPoolitzer will inform the customer of the change by e-mail or otherwise at least 30 calendar days before it comes into effect. The change requires the consent of the customer. Consent shall be deemed granted unless the customer objects within 30 calendar days after receipt of the notification of change. If the customer objects, the contractual relationship shall continue under the previous contractual provisions. MyPoolitzer shall draw the customer's attention to the consequences of a failure to object in the notification of change.
MyPoolitzer, September 2023