We, Seerene GmbH, August-Bebel-Str. 26-53, D-14482 Potsdam, Germany, provide our software to you as a service under the conditions described here.
- Subject matter of our contract
- Subject matter of our contract is your use of the computer programme made available on our website, *.seerene.com and *.softwarediagnostics.com, as Software as a Service. The extent of use of the respective computer programme (hereafter "the computer programme") is described and specified on the given website and serves to analyse the software code of a software system. No further documentation belongs to this scope of use.
- We provide our computer programme to you exclusively for use via the internet (so-called Software as a Service). You do not receive a data carrier. With this contract you are entitled to access the computer programme, which is hosted on a central server, by means of the internet and to use the functionalities of the computer programme within the framework of this contract.
- We render our service until the transfer point of the computer programme at the router output of the computer centre used by us. This means that you yourself are responsible for your connection to the internet, the maintenance of your network connection as well as the procurement and provision of the hardware and software required on your part. This is not the subject matter of this contract.
- We are responsible to make the computer programme available at the transfer point at 90 % during the operational period for the month overall. This availability is your opportunity to use the important functionalities of the computer programme.
- The operational period is: 9 – 17 GMT.
- Outside of the operational period (= maintenance period), we are entitled to service or maintain the computer programme or to carry out data backups or such tasks. If, in exceptional circumstances, a maintenance period must fall within the normal operational period, we will notify you in advance. If and so far as you can use the computer programme during the maintenance period, there exists herein, nevertheless, no legal entitlement. If use of the computer programme in such maintenance periods results in a performance reduction or performance adjustment, you are not entitled to liability for defects or compensation for damages.
- Our services
- From the individually agreed point in time, we provide the respective current version computer programme on a server used by us for use according to the stipulations of the regulations below.
- Herein, you or your colleagues must open an account on the website named under section 1 and set a user name, which has to be a valid email address, and password.
- From the agreed point in time of the operable provision, we provide an individually necessary quantity of storage space on the server for the data produced by you through use of the computer programme and/or required to use the computer programme.
- We will regularly backup the computer programme and your data on the server. You alone are responsible for the compliance of retention periods under commercial and taxation law.
- We agree support with you individually.
- Additional Software
- In order to be able to use our computer programme, you must install a so-called measuring tool, currently called the Local Analyzer, onto your software system. This occurs during the registration process. You use this computer programme via your own copy on your software system, so not as Software as a Service.
- You may reproduce this Local Analyzer, as far as the respective reproduction is necessary for the use of the actual computer programme, our Software as a Service. The installation of the Local Analyzer onto the mass storage of the hardware used counts among the necessary reproductions, as far as this is not prohibited by copy protection, as well as the loading of the Local Analyzer onto the working memory and the production of backups. Besides this, no copies may be made. The resale of the Local Analyzer is not permitted. You may use the Local Analyzer on any piece of hardware that is available to you. If, however, you exchange the hardware, you must delete the Local Analyzer from the mass storage of the previously used hardware. A simultaneous storage, holding or use on more than one piece of hardware per account is prohibited. You may not hire out or lease the Local Analyzer, including the user handbook and the other accompanying materials, to a third party. The decompilation of the programme code made available into other code forms (decompiling) as well as other forms of reverse engineering of the different production stages of the software (reverse engineering) is prohibited. The interfacing information required for the purpose of production of interoperability of an independently created computer programme can be requested from us against reimbursement of a contribution to costs. The removal of copy protection is prohibited. Only if the copy protection impairs or prevents the disturbance-free use of the programme and we do not eliminate the disturbance within a reasonable period of time, despite a corresponding notification from you with an exact description of the disturbance, may the copy protection be removed to ensure the functionability of the programme. You are responsible for proving the impairment or prevention of disturbance-free usability due to the copy protection. Alterations other than the aforementioned programme alterations, in particular for the purpose of other elimination of error or the extension of the range of function, are only permissible, if the altered programme is only for personal use. In particular, private use counts as personal use according to this regulation. In addition, however, use serving vocational or commercial purposes also counts as personal use, as long as it is restricted to use by you and is not utilised externally in manner that is in any way commercial. The actions addressed in the previous paragraph may only exclude commercially working third parties, who are potentially in competition with us, if we carry out the desired programme alterations for a reasonable fee. We are allowed a reasonable period to consider the acceptance of the order. Copyright notices, serial numbers as well as other features that serve as programme identification may not be removed or altered under any circumstances.
- The licence to the Local Analyzer is granted for the duration of this contract.
- Additional Optional Software
- In order to access further analyses of your data, you may install another piece of software, called seerene™ RichClient, onto your software system. The installation is completely optional for the usage and functionability of the services provided at *.seerene.com and *.softwarediagnostics.com, but if you request additional analyses the software will notify you of the need of the so-called seerene™ RichClient. You use this computer programme via your own copy on your software system, so not as Software as a Service.
- You may reproduce this seerene™ RichClient, as far as the respective reproduction is necessary for the use of the actual computer programme, our Software as a Service. The installation of the seerene™ RichClient onto the mass storage of the hardware used counts among the necessary reproductions, as far as this is not prohibited by copy protection, as well as the loading of the seerene™ RichClient onto the working memory and the production of backups. Besides this, no copies may be made. The resale of the seerene™ RichClient is not permitted. You may use the seerene™ RichClient on any piece of hardware that is available to you. If, however, you exchange the hardware, you must delete the seerene™ RichClient from the mass storage of the previously used hardware. A simultaneous storage, holding or use on more than one piece of hardware per account is prohibited. You may not hire out or lease the seerene™ RichClient, including the user handbook and the other accompanying materials, to a third party. The decompilation of the programme code made available into other code forms (decompiling) as well as other forms of reverse engineering of the different production stages of the software (reverse engineering) is prohibited. The interfacing information required for the purpose of production of interoperability of an independently created computer programme can be requested from us against reimbursement of a contribution to costs. Alterations other than the aforementioned programme alterations, in particular for the purpose of other elimination of error or the extension of the range of function, are only permissible, if the altered programme is only for personal use. In particular, private use counts as personal use according to this regulation. In addition, however, use serving vocational or commercial purposes also counts as personal use, as long as it is restricted to use by you and is not utilised externally in manner that is in any way commercial. The actions addressed in the previous paragraph may only exclude commercially working third parties, who are potentially in competition with us, if we carry out the desired programme alterations for a reasonable fee. We are allowed a reasonable period to consider the acceptance of the order. Copyright notices, serial numbers as well as other features that serve as programme identification may not be removed or altered under any circumstances. You do not have any right to use images, ClipArt, animations, sound, music, shapes, video clips and other templates provided with the seerene™ RichClient, except the respective use is necessary for the use of the seerene™ RichClient. If you want to use these media elements or templates for any other purpose, please contact seerene™ GmbH to settle an individual agreement. Upon termination of the contract you are required destroy and permanently delete all copies of the seerene™ RichClient. You are expressly advised that you are not authorized to continue to use of the software after termination of the contract and in case of non-observance the copyright law of seerene™ is violated.
- The access to the seerene™ RichClient is granted for the duration of this contract.
- Obligations of the Client
In return for our services (Sections 3 and 4), you will fulfil all obligations and duties, which are required to execute the contract. Thus, in particular, you will
- maintain the secrecy of the use and access authorizations allocated to you, as well as protect them from being seized by third parties and not give them to unauthorised users. This data is to be protected by suitable and standard measures. You will inform us immediately, if the suspicion exists that the access data and/or passwords could be known by unauthorised persons;
- not retrieve information or data or allow information or data to be retrieved in an unauthorised manner or intervene or allow intervention in the programme, which is operated by us, or enter into our data network in an unauthorised manner or promote such an entry;
- oblige the authorised user to meet the terms of this contract which are valid for them;
- obtain the required approval of those concerned, insofar as you collect, process or use personal data for the use of the computer programme, and not breach any legal permissions;
- check data and information for viruses before sending them to us and use state-of-the-art virus protection programmes;
- if you transfer data to us, regularly take backups of the data according to its importance - independent of our security according to section 3.5 - and produce your own back up copies, in order enable the reconstruction of the data and information in the case of loss of the same.
- Rights of use of the computer programme
- You have the all necessary rights of use, to the extent required by law and in accordance with copyright law, to use the computer programme according to the conditions of this contract. These rights are simple, non-exclusive rights, which are limited to the term of this contract.
- You are not entitled to transfer your rights according to section 7.1 or the entitlement to use of the computer programme according to this contract to a third party.
- On no account are you entitled to edit the computer programme or to make it accessible to third parties outside of the agreed group of users.
- Remuneration and terms of payment
- The remuneration for the use of the computer programme is dealt individually.
- All named remunerations and prices are given, excluding respective value added tax, which is valid by law. This is charged additionally to the remuneration and is separated in the invoice.
- The following applies to adjustment of prices: After signing the contract, prices shall be kept at stable level for a period of one year. Upon the expiration of one year from that, prices shall be adjusted annually according to the index of producer prices for entrepreneurial services, sectors: software and software licenses (based on German Classification of Economic Activities, 2008 edition, sector: computer services, section 3; on the basis 2010 = 100, http:// www.destatis.de). The basis for adjustment is the valid index level after the expiry of one year from the entry into force of this contract. Index changes within the first year shall not be taken into account. The relevant software price shall be adjusted by the following formula: software fee for the following year = current fee/ index previous year* index current year; for instance: 10,000.00 EUR/ index October 2009 (99,1)* index October 2010 (99,9), in total 10,080.73 EUR as the new software price. This adjustment of prices shall automatically enter into effect. Thus, there is no need for signing a new contract. Seerene™ will inform its clients about the adjustment of prices in writing. In case of declining change, the price shall maintain at the previous index level. The price shall be increased only if the new index is higher than the previously frozen index. The increase corresponds to the difference between the previously frozen index level and the new index level. For example: index March 2009 - 99,8, index March 2010 - 99,5 – the price stay the same. The price shall not be increased until the new index is not higher than the previous one. For example: index January 2011 – 99, 8, index January 2012 – 100,2. [ The new price will be increased from index 99,8 to the index 100,2]
- You may only offset or assert a right of retention for claims which are legally binding or undisputed. You can only assign your claims from this contract to a third party with written agreement from us.
- If you should default on more than one payment, we are entitled to block access to the computer programme.
- Liability for Defects
- If our services to be provided according to this contract are defective, we will, at our option, repair or replace the services within a reasonable period and after receipt of a complaint. In the case of use of the software of third parties, which we have licensed for use through you, the liability for defects consists of the creation and recording of generally accessible upgrades or updates.
- If the defective performance also fails within a reasonable period set by you for reasons for which we are responsible, you may reduce the agreed remuneration to a reasonable amount. The right to a reduction is limited to the amount according to the monthly remuneration, omitting the defective service period.
- You will inform us immediately of defects which occur in writing or by email and support us in eliminating the defect free of charge and, in particular, provide all necessary documents, data, etc., which we need to analyse and eliminate the defect.
We are liable, irrespective of legal grounds, only and finally, pursuant to the following regulations:
We have unlimited liability for damage to life, body or health for which we are responsible, as well as according to liability laws. In the case of damage to property for which we are responsible, we provide compensation for the restoration or replacement of the damaged items for up to two times the agreed remuneration for each event of damage. In the case of damage to data carrier media, the obligation for compensation does not cover the replacement of lost data.
The limitations of liability according to section 9.1 are not valid in cases of intent, gross negligence or breach of significant contractual obligations. In the case of slightly negligent breach of significant contractual obligations, the obligation for compensation is, however, limited to the foreseeable damage typical of the contract.
Data Protection and Data SecurityThe protection of your data is very important to us.
- We will observe the applicable data protection regulations, in particular those which are valid in Germany, and will obligate the employees used in connection with the contract to data secrecy, as far as these are not already generally accordingly obligated.
- Moreover, both contracting parties will observe the conditions which are applicable to the contracted data processing and will take the required technical and organisational measures to protect personal data according to § 9 BDSG.
- If you collect process or use personal data yourself or through us, you are responsible for being entitled to do so according to the applicable regulations, in particular those related to data protection, and release us from all claims in the case of a violation.
- It is made clear that you remain "owner of the data" generally in the contractual relationship as well as according to data protection laws (§ 11 BDSG). You alone are entitled to all data (collected data, processed, recorded data, distributed data) regarding the right of disposal and the ownership. We take no form of control over the data and contents stored for you regarding a legal admissibility of the collection, processing and use; this responsibility is exclusively yours. We are only entitled to process and / or use the data exclusively according to your instruction and within the framework of the contract. In particular it is forbidden for us, to make the data of third parties available in any way with out prior written agreement from you. This also applies, if, in this respect, an alteration or addition to the data occurs. We reserve the right only to use the data anonymously, corresponding to the separate data declaration. We are, however, entitled, within the framework of data protection law, to process and use your data during the validity of this contract.
- You are, in principle, not entitled to demand access to the space with the computer programme or other system components. This does not affect access rights of your data protection registrar after written application to check the compliance to the requirements according to appendix § 9 BDSG, as well as other handling by us conforming to the law and to the contract, with personal data within the framework of the operation of the computer programme according to this contract.
- You and we will use all documents, information and data, which is obtained to carry out this contract and which is described by you as confidential, only to carry out this contract and, as long as it is not known generally, treat them as confidential. You and we will impose the corresponding obligation on our or your colleagues, who are affected by this contract. These obligations also remain for two further years after the termination of this contract, calculated from the end of the contract.
- We may subcontract, but we have to impose a corresponding obligation on the subcontractor.
Term of the Contract
The term of the contract is dealt individually and is limited to the contracted period. It begins of the day of the operable provision.
The term of the contract shall be automatically extended for another period as contracted before unless terminated by either party giving three month’s written notice to the end of the contractual term. This shall not apply in cases where the contracted period is less than three month as this is a test operation. In this case the contract ends at the individually agreed test period.
The right to terminate for exceptional reasons is unaffected.
In the case of ending the contractual relationship, for whatever reason, we are allowed to keep your data with us. However, such data may only be non-personalized data, such as aggregated data.
Alterations of these Conditions
We reserve the right to alter these conditions in the case that
- this is required due to applicable rights,
- this is necessary due to an instruction or order of a responsible authority,
- technical alterations make it essential or
- the conditions are changed to your advantage. The altered conditions will be sent to you by email at the latest six weeks before they come into effect. If you do not disagree with the validity of the new conditions of use within six weeks after receipt of the email, the altered General Contract is considered as accepted. We will indicate to you separately in the email, which contains the altered conditions, of the significance of this six week period.
We are entitled to resign, to transfer or otherwise dispose of our rights and obligations as a whole or in parts at any time without notification, as long as you are not disadvantaged by such a resignation.
This contract is subject to the law of the Federal Republic of Germany under the express exclusion of the UN Sales Convention.
In the case that conditions of this contract are or become completely or partially invalid, this does not affect the validity of the remaining conditions. On the contrary, the invalid condition is to be replaced by one which is as close as possible to the sense and purpose of the invalid conditions.
Subsidiary agreements are not authorised. Alterations of this contract must be made in writing. The same applies for the suspension of this clause.
Separate Data Declaration:
The handling of your data is very important to us, as we have already made clear in our conditions of use section 11. We will not pass on any personal data about you or your colleagues to a third party. The knowledge from our actions for you and other companies can, however, also be of particular value for you, so that we can improve our service. We will therefore use the knowledge gained from our service for you in statistical form and fully anonymously, and also in other contexts, in particular to conduct bench marking and to identify and evaluate patterns in software systems and associated meta data.