1. Scope
a) starmate solutions provides its offered deliveries and services (hereinafter also referred to as uniform “services”) exclusively on the basis of the respective contract, the following general conditions and the special conditions applicable depending on the subject matter of the contract. Deviations from or additions to these terms and conditions must be agreed in writing. The customer's general terms and conditions do not apply unless starmate solutions expressly agrees to their validity in writing; the performance of a service is not considered consent in this respect.
These terms and conditions replace all previous versions, including those of the predecessor organizations of starmate solutions GmbH.
b) The terms and conditions apply only to entrepreneurs within the meaning of Section 14 BGB, legal entities under public law, special funds under public law and other institutional clients who do not act for private purposes (and therefore not as consumers in accordance with Section 13 BGB) when ordering. They apply to all offers and contracts for deliveries and services from starmate solutions; in the case of an ongoing business relationship, also to all future transactions with the customer, even if they are not expressly included again.
c) As part of the business relationship between starmate solutions and the customer, various types of legal transactions can be concluded, such as purchase, software service and service contracts. Sections II to VII of these terms and conditions regulate the special conditions for the individual types of contract and are therefore part of the respective contracts.
d) starmate solutions is entitled to change these terms and conditions. Starmate solutions will inform the customer in writing of such changes. The change is considered approved by the customer if he does not object in writing within six weeks of receipt of the change notification.
2. Individual contracts, conclusion of contract
a) Offers from Starmate Solutions are subject to change and non-binding, unless Starmate Solutions states otherwise in writing. In particular, we reserve the right to make technical changes insofar as they are reasonable for the customer.
b) The contract is usually concluded in the form that the customer accepts offers via the link provided by starmate solutions by clicking on the button provided and marked for this purpose.
c) The content and scope of the services to be provided by starmate solutions is decisive in the version commissioned by the customer by clicking on the button or, depending on the type of contract conclusion, a contract document agreed separately between the parties (e.g. data center contract), as well as the attachments referred to therein (hereinafter collectively “individual contract” or “contract documents”).
3. General information about service provision
a) Unless otherwise stated in the contract documents or the type of services to be provided, starmate solutions owes the performance of the contractual services with the usual care in the industry, but no specific success.
b) Working days within the meaning of the contract are Monday to Friday, excluding public holidays at the Ulm location. The standard working hours of starmate solutions are 9:00 to 16:00 on weekdays, unless otherwise agreed for individual services.
c) starmate solutions does not owe an audit of compliance with applicable laws or regulations with regard to the customer's business transactions to which the services to be provided by starmate solutions relate, nor does it require any verification of the accuracy, completeness, integrity or authenticity of the data provided by the customer for the provision of services or processed by the services provided by starmate solutions.
d) Some of the products offered by starmate solutions are third-party products (hereinafter “third-party products” or “third-party software”). starmate solutions obtains these third-party products and accompanying services (e.g. software maintenance) from appropriate upstream suppliers and subcontractors. In all other respects, starmate solutions may also use third parties to provide services (e.g. subcontractors and freelancers).
4. Ownership, copyright and rights of use to delivery items and performance results
a) With the exception of simple rights of use granted to the customer by contract, in particular in accordance with the following paragraphs of this Section 4, ownership and all rights, including industrial property rights, copyright and other ancillary copyright rights, remain in the delivery items (i) provided by starmate solutions to the customer in the course of contract execution (i) (in particular software including documentation and design material) and (ii) from starmate solutions or a subcontractor in written, machine-readable or other form performance results prepared and provided to the customer, e.g. evaluations, planning documents, concepts, reports, drawings, databases, software including related documentation and design material as well as similar materials, with starmate solutions or the corresponding rights holders (e.g. software suppliers).
b) Unless otherwise specified in the contract documents or in the following special conditions appropriate to the respective license, starmate solutions grants the customer a simple right of use, unlimited in time and in terms of content linked to the purposes of the respective individual contract. The right of use is not transferable. Furthermore, the right of use cannot be sub-licensed.
The customer is entitled to use the licensed items for his own business purposes. However, without the prior written consent of starmate solutions, he is not entitled to economically exploit licensed objects, in particular software, such as a (software) provider, e.g. to sell copies, offer them for download or rental purposes (e.g. by way of ASP - Application Service Providing or SaaS - Software as a Service), or to have them used for business purposes by third parties. The customer may not remove copyright notices contained in licensed items.
The relevant license metric (e.g. corporate or single-user license) and the relevant license scope with regard to the license metric are regulated in the offer.
c) For the use of third-party products, in particular software, which Starmate Solutions obtains from upstream suppliers and transfers to the customer or uses in the provision of services, the licensing conditions of the third-party provider apply in addition to, and priority over, the terms of the contract between starmate solutions and the customer, about which starmate solutions will inform the customer upon request.
d) Insofar as starmate solutions uses open source software (OSS) when providing services, both starmate solutions and the customer are bound to comply with the applicable license terms, including any obligations to accept OSS/copyright notices. On request, starmate solutions will inform the customer about the use of OSS components and the license conditions applicable to the provision of services.
e) Any further use of the licensed items than that described in this Section 4 or otherwise contractually agreed upon is prohibited. In particular, the customer is prohibited from reproducing, editing, modifying, translating, reverse engineering, reworking or further developing licensed items without permission, making them publicly available, renting or otherwise transferring or exploiting licensed items to third parties, using or having them used for the purposes of third parties. The right to fully transfer a legal position obtained through the purchase of software remains unaffected. The minimum legal rights with regard to software in accordance with Sections 69d and 69e UrhG also remain unaffected.
f) If starmate solutions allows the use of delivery items or services by third parties, i.e. other users included in the individual contract in addition to the customer (e.g. business partners or external IT service providers of the customer), the customer must expressly oblige these users in writing to comply with the terms of use and restrictions applicable to the customer and to fulfill corresponding obligations to cooperate (in particular data backup, toleration of license audits). Starmate solutions is on demand prove that third parties have been notified of compliance with the terms of use.
g) The granting of rights of use is always subject to suspension and only becomes effective upon full payment of the remuneration owed for the services in question. Starmate solutions may temporarily allow the customer to use the licensed items before this time. Starmate solutions reserves the right of ownership of all physically transferred objects (e.g. data carriers) on which licensed items are stored until full payment of the remuneration owed for this purpose.
h) In order to verify compliance with the license metrics and other contractual usage restrictions (qualitative and quantitative) by the customer, the customer allows both starmate solutions and its upstream suppliers (in particular third-party software providers) to carry out license audits, in particular in the event of justified doubts as to the contractual use. Depending on the software provider, there are different verification options, verification procedures and toleration obligations. In particular, the customer will provide necessary information, provide access to relevant documents and enable a technical review of its hardware and software, both online and on site at the customer's premises. During its own license audits, starmate solutions will ensure and, with regard to third-party software providers, make every effort to ensure that license audits are carried out with appropriate advance notice and taking due account of the customer's confidentiality interests.
Any excessive or otherwise incorrect use identified during the license audit triggers additional compensation claims and, if applicable, claims for compensation.
i) The customer indemnifies starmate solutions from all claims made by third parties (e.g. software suppliers as rights holders), including the costs of legal action, which they assert against starmate solutions as a result of an actual or alleged violation by the customer of the terms of use and restrictions regulated and referred to above. Any further claims made by starmate solutions itself against the customer remain unaffected.
5. Prices, price changes and terms of payment
a) The prices and tariffs to be paid by the customer for the services provided by starmate solutions are based on the offers or other contract documents provided to the customer upon conclusion of the contract or, if no express provision has been made, from the starmate solutions price list valid at the time of conclusion of the individual contract in question.
b) All prices are exclusive of the applicable statutory value added tax and will be invoiced accordingly by starmate solutions.
c) Fixed ongoing fees (e.g. software service) are payable in advance on the 3rd working day of the agreed billing period; one-time fees and expenses-related charges within 10 days from the date of the invoice.
d) Expenses in addition to the agreed services will be billed in accordance with the Starmate solutions price list valid at the time the service is provided.
e) The customer reimburses Starmate solutions travel and accommodation expenses as well as travel times in accordance with the currently valid Starmate Solutions price list.
f) starmate solutions is entitled to adjust the remuneration for recurring services (continuing obligations, e.g. software service or services to be provided on a recurring basis) on a product-specific basis once a year at a reasonable discretion, taking due account of the customer's interests, in particular price changes of its upstream suppliers and subcontractors as well as increased personnel costs, etc. starmate solutions will inform the customer of such changes in a service fee in writing and, if possible, three months before the new prices come into force (depending on price changes by sub-suppliers/subcontractors, the notice period may also be shorter). If the price increase is more than 10% of the previous prices, the customer is entitled to cancel the individual contract in question with a notice period of one month from the announced entry into force of the price change; in this case, the previous prices will continue to apply until the end of the contract.
An increase in prices within the first 12 months after conclusion of the individual contract is excluded.
g) The customer can only offset compensation claims made by starmate solutions against undisputed or legally established counterclaims. The customer can only assert a right of retention insofar as his counterclaim is undisputed or has been legally established and is also based on the same contractual relationship.
h) If the customer defaults on payment of more than insignificant amounts, starmate solutions is entitled to withhold further deliveries and services, and starmate solutions will only make use of this right after prior threat with a reasonable deadline of at least 14 days and a fruitless deadline. In this case, the customer remains obliged to pay any fees due. We reserve the right to assert further claims due to late payment by the customer.
6. Appointments, performance disruptions
a) Agreed delivery or service periods begin on the date of the starmate SOLUTIONS order confirmation, unless otherwise agreed. If information or documents from the customer are required for delivery or service, the delivery or service period begins at the earliest when they are received by starmate solutions.
b) The assertion of rights or claims due to default presupposes that the customer has initially set starmate solutions a reasonable period of grace without effect following the occurrence of a delay, unless this would be unacceptable for the customer taking into account the circumstances of the individual case. In addition, the client is only entitled to withdraw or terminate due to delay in performance if, when setting a deadline, he has pointed out to starmate solutions that he will resign or terminate the contract if the deadline expires without result. In the event of delay with only individual services or partial services, the right of withdrawal or termination only extends to the (partial) service concerned.
c) Delays in performance due to force majeure or other unforeseen circumstances for which starmate solutions is not responsible (e.g. war, strike, lockout, riots, expropriations, legislative changes, official orders, storms, floods, natural disasters, water burglaries, power failures, Internet system failures, interruption or destruction of data-carrying or telecommunications lines, illegal activities of third parties on the Internet or sabotage by malware) as well as delays in performance due to circumstances in The customer's areas of responsibility (e.g. failure to provide cooperation services on time, delays by third parties attributable to the customer) do not result in default on the part of starmate solutions. Agreed benefit periods are automatically extended by the duration of the disability plus a reasonable start-up period. If the hindrance lasts longer than two months, both parties are entitled to terminate the contract with regard to the affected part of the benefit (depending on the type of contract, in individual cases by termination or resignation). There are no claims for damages against starmate solutions in such cases.
Starmate solutions will inform the customer of the occurrence of force majeure or other circumstances specified in this Section 6.c) immediately after becoming aware of it.
7. General obligations of the customer to cooperate
a) The customer provides starmate solutions with all documents and information required for the provision of services as well as any agreed supplies (e.g. hardware or software components to be procured by the customer) in a timely, complete, current version, free of malware when transmitted electronically, and free from third-party rights. If the customer recognizes that supplies or his own information or requirements are incorrect, incomplete or out of date, he shall immediately inform starmate solutions of this and the consequences apparent to him and take all necessary corrective measures.
b) With regard to provided materials and system components provided (e.g. software that starmate solutions is intended to process for the customer), the customer guarantees that he is entitled to provide them and has the necessary rights of use and, if applicable, editing. He grants starmate solutions the simple rights of use necessary for the execution of the contract and releases starmate solutions from third-party claims that are asserted against starmate solutions with the allegation of an infringement of intellectual property rights, copyright or other rights, including the costs of legal action.
With regard to supplies, the customer is also responsible for their timeliness, accuracy, stability and compatibility with the other IT components used in the course of contract execution and with the customer's existing IT landscape. The customer shall immediately inform starmate solutions of all special features of the supplies relevant to the execution of the contract, in particular about any defects that have occurred, maintenance measures carried out, additional or in-house developments.
The customer shall inform starmate solutions in documented form of special conditions, such as license terms for systems or components provided by starmate solutions when providing services.
c) The customer provides the means of communication and connections, premises and data required for the provision of services. The customer shall inform starmate solutions in writing of all circumstances to be considered when working on the customer's premises.
d) The customer supports starmate solutions in the execution of the contract at its own expense, including the provision of necessary human resources. He names starmate solutions a responsible, expert contact person and representative who is authorized to make decisions and take action associated with the execution of the contract. The customer shall immediately inform starmate solutions of any changes regarding these persons.
e) If the customer uses third parties (e.g. other service providers) to fulfill his obligations to cooperate, he shall immediately notify Starmate Solutions of this as well as the person/company of the third party and the respective content and scope of the contract. For third parties that the customer makes use of or who, at his instigation or with his toleration, work for him in the area of activity of starmate solutions or otherwise in connection with the execution of the contract, the customer acts as vicarious agents.
f) Further obligations on the part of the customer to cooperate may result from the special conditions of the following Sections II to VII of these terms and conditions or from further contract documents.
g) The customer bears additional costs caused by omission or inadequate, incomplete or improper performance of obligations to cooperate.
8. Claims for defects
If and to the extent that starmate solutions have warranty obligations based on the type of services to be provided by starmate solutions (not for services in accordance with Section V. of these terms and conditions), the following applies:
a) The customer shall immediately report any defects to starmate solutions in writing or via the communication channels provided for this purpose by starmate solutions (e.g. ticket system) and with detailed information relevant for fault analysis and rectification of defects. When purchasing software or hardware, §377 HGB also applies in commercial transactions. If installation or implementation support from starmate solutions has been agreed in such cases, the complaint obligations begin after the installation or implementation phase has been completed.
b) The customer provides Starmate solutions with appropriate assistance in fault analysis and elimination of defects. He provides immediate access to documents that reveal detailed circumstances regarding the occurrence of the defect. On request from starmate solutions, he provides the necessary employee capacities and machine time and enables remote access to his systems for remote maintenance, if technically possible. Additional services that arise as a result of incorrect or incomplete information provided by the customer or as a result of delays in analyzing or remedying defects for which he is responsible will be invoiced by starmate solutions and borne by the customer.
c) Claims for defects only exist if the reported defect is reproducible or otherwise verifiable by the customer.
d) Starmate solutions will remedy defects for which starmate solutions is responsible within a reasonable period of time, at its own discretion, by rectification or subsequent delivery (together: subsequent performance). Subsequent performance may also consist of starmate solutions providing the customer with a temporary workaround to rectify the fault or, insofar as is reasonable for the customer, permanently. In addition, rectification can also be carried out by providing a new software version or an update.
e) starmate solutions reserves the right to carry out a total of three subsequent performance attempts, unless this would be unacceptable for the customer in individual cases. If the subsequent performance fails, the customer may, if the legal requirements with regard to the affected part of the service concerned are met, terminate the contract (by resignation or termination, depending on the type of contract) or reduce the contractual remuneration. The following Section 9 applies to claims for damages and reimbursement of expenses.
f) If the customer wrongly complains of the existence of a defect for reasons beyond the control of starmate solutions, starmate solutions may charge the customer reasonable (extra) expenses for diagnosing and resolving the fault.
g) Claims for defects are excluded if the customer himself or through third parties without prior authorization from starmate solutions changes delivery items or services, performs interventions or repairs on the delivery/service, or does not use the delivery/service in the intended manner or in a software environment other than the intended software environment, including operating errors on the part of the customer, failure to comply with application instructions or incorrect processing data. The above disclaimer of warranty does not apply if the customer proves that defects that occur are unrelated to such circumstances. If the fault analysis is significantly hampered by such circumstances, the customer bears any additional costs that arise.
h) The warranty obligations of starmate solutions relate only to delivery/services provided by it. If faults occur from other system components, such as those provided by the customer, it is up to the customer to rectify the fault there. In addition, the customer bears the (extra) costs that arise as a result of the fact that a breakdown of faults in other system components requires fault analysis and elimination of the delivery/service provided by starmate solutions.
i) With regard to third-party products provided by starmate solutions to the customer, the customer acknowledges that starmate solutions provides them as they are delivered or available from the relevant manufacturers or suppliers. Starmate solutions can only guarantee the correct use of such third-party products to the customer to the extent that they are provided to starmate solutions by the respective manufacturer or supplier. In this context, in addition to the terms of the contract between the parties, special warranty conditions of the third-party provider may also apply.
j) In the event of an infringement of third-party property rights (legal defects) for which starmate solutions is responsible, starmate solutions may, at its own discretion, either acquire from the third party a right of use sufficient for the agreed use and grant it to the customer, or change or re-provide the relevant service while maintaining the contractually required usage options in such a way that no longer infringes third-party intellectual property rights. If this is not possible or unreasonable for starmate solutions, the customer is entitled to legal claims. The following section 9 applies to claims for damages.
k) Claims for defects (including claims for compensation due to a breach of performance, subsequent performance or ancillary obligations) expire after 12 months. This does not apply if a defect has been fraudulently concealed. In the event of claims for damages due to defects, the 12-month limitation period also does not apply to damage arising from injury to life, limb or health, or if Starmate Solutions can be charged with intent or gross negligence.
l) Notwithstanding the foregoing, starmate solutions will investigate and eliminate errors in the software in question during an ongoing software service contract as part of its duties in accordance with Section IV of these Terms and Conditions below.
8. Liability for damages and expenses
a) starmate solutions is liable, irrespective of the legal basis, including contractual and legal liability, only for intent, gross negligence and the negligent breach of essential contractual obligations or duties whose fulfilment makes the execution of the contract possible in the first place and on whose compliance the customer may regularly rely (so-called cardinal obligations).
b) In the event of simple negligence, starmate solutions' liability is limited to compensation for foreseeable damage typical of the contract, but not more than:
c) Furthermore, in the event of simple negligence, starmate solutions is not liable for lost profit, lost savings and other indirect and subsequent damage in the form of pure financial losses to the customer (e.g. loss of data, loss of production, business interruptions, additional personnel costs, useless expenses).
d) Unless the 12-month limitation period in accordance with paragraph 8.k) above applies to claims for damages or expenses, claims for compensation or expenses expire within two years from the customer's knowledge or grossly negligent ignorance of the circumstances giving rise to the claim, but no later than two years after the end of the year in which the claim arose.
e) The limitations of liability in accordance with Section 9.a) to c) and the statute of limitations in accordance with Section 9.d) do not apply in the event of intent, gross negligence, damage resulting from injury to life, limb or health, claims under the Product Liability Act, in cases of malice and in cases in which a quality guarantee has been provided.
f) Starmate solutions is not liable for loss of data or programs insofar as the damage is based on the customer's failure to carry out regular and proper data backups within his area of responsibility and thus ensure that lost data can be restored with reasonable effort.
g) Insofar as the liability of starmate solutions is excluded or limited, this also applies to the personal liability of its legal representatives, employees and vicarious agents.
10. Confidentiality, Privacy, Return of Materials
a) Both parties agree to keep all confidential information disclosed or known to them in the course of executing the contract, in particular trade secrets and corresponding documents and materials containing or from which such information can be derived, strictly confidential, to use only for the purposes provided for in the contract, to protect against unauthorised acquisition, use and disclosure and not to make it available to third parties, with the exception of their affiliated companies and with the exception of Any third parties involved in the execution of the contract, on whom the parties impose corresponding confidentiality obligations.
b) “Trade secrets” means all information within the meaning of §2 No. 1 GeschGehG (Act for the Protection of Trade Secrets). For the purposes of the contract, the parties include in particular the following types of information: know-how, computer programs and design material including underlying ideas and algorithms, data, database models, concepts, analyses, plans, schedules, designs, formulas, specifications, prototypes, customer and supplier lists, cost information, cost estimates, offers, price calculations, business strategies, company data, market analyses and similar items and materials, regardless of whether embodied or electronic or otherwise, including analog and electronic data and files, physical or virtual data carriers, and all information and materials marked as “confidential” or equivalent, and all other non-obvious technical and commercial information about the business operations of the respective party and its affiliated companies, which, by their nature and nature, typically have a confidentiality interest. As part of the customer's confidentiality obligation, this also includes information and materials from upstream suppliers and subcontractors of starmate solutions, in particular third-party software providers.
c) The parties are expressly prohibited from procuring or obtaining trade secrets through reverse engineering. “Reverse engineering” within the meaning of confidentiality clause is the decryption of trade secrets from products, information or objects which the disclosing party has provided to the receiving party, or which have otherwise become known or accessible to the receiving party in the course of contract execution, through observation, investigation, dismantling, analysis, testing or similar activities. Minimum legal rights relating to software in accordance with §§ 69d and §§ 69e UrhG remain unaffected.
d) The confidentiality obligation in accordance with the above abs.A) does not apply to information that (i) was already known or generally available to the receiving party before notification by the disclosing party, or later becomes known or generally available without breach of a confidentiality obligation on the part of the receiving party, (ii) which was demonstrably developed by the receiving party independently of knowledge of the information disclosed or came to its knowledge under the contract, or ((iii) for a statutory or official There is a duty of disclosure.
e) The confidentiality obligation applies up to 5 (five) years from the end of the cooperation between the parties. For trade secrets whose acquisition and use by, or disclosure to, unauthorized third parties would clearly endanger the existence of the disclosing party (e.g. secret know-how), the confidentiality obligation applies indefinitely. The reverse engineering ban in accordance with paragraph c) also applies indefinitely.
f) Both parties agree to comply with all applicable legal data protections. starmate solutions declares that all starmate solutions employees employed to execute the contract are committed to data secrecy to the extent required by law. Starmate solutions stores and processes customer-related data in connection with the establishment and execution of the contract between the parties in accordance with the provisions of applicable data protection law. If and insofar as starmate solutions processes personal data from the customer's sphere of responsibility or has access to such data in the course of providing the service, starmate solutions is a contract processor. To this end, the parties conclude a contract for order processing/AV contract (data protection agreement/ AV contract within the meaning of Art. 28 para. 3 General Data Protection Regulation (EU-DSVGO)).
g) Upon termination of an individual contract, but no later than upon termination of the cooperation as a whole, for whatever reason, the parties shall return or release to each other all data and documents in their possession and provided by the other party in connection with the performance of the contract to the providing party, unless the corresponding materials were intended to remain with the receiving party in accordance with the contract. Data stored on the receiving party's systems is deleted. The foregoing does not apply if the receiving party is subject to statutory storage or archiving obligations. Should expenses arise in connection with the transfer of data by starmate solutions to the customer, for example by creating appropriate data carriers and/or processing data in a specific format, the customer pays starmate solutions an appropriate remuneration in accordance with the then valid starmate solutions price list. In any case, starmate solutions owes the release of data only in the actual version and does not guarantee its accuracy, completeness or timeliness.
11. Contract duration and termination
a) The contract starts at the time specified in the contract documents, otherwise with the signature of both parties.
b) In the case of one-off services (e.g. services to be provided on a project-by-project basis), the contract runs until the service has been provided in full.
c) When software is created in accordance with Section III of these Terms and Conditions below, the contract also runs until full provision of services. Notwithstanding this, the customer may prematurely terminate a software development contract in accordance with §648 BGB until the production services have been completed. In the event of such early termination, the customer pays starmate solutions a remuneration in accordance with §648 BGB, but at least one remuneration that corresponds to the time and material costs incurred up to the effective termination of the contract in accordance with the then valid starmate SOLUTIONS price list, and up to a maximum of the total remuneration agreed or budgeted for the software development contract.
d) In the case of continuing obligations (e.g. software service or services to be provided on a recurring basis), unless otherwise specified in the individual contract, the contract has a minimum period of 36 months (in the case of software service, calculated from the start of the software by the customer) and can be terminated for the first time at the end of the calendar year in which the minimum period expires. The contract is then extended by a further 12 months unless terminated by one of the parties with a notice period of 6 (six) months to the end of the calendar year.
e) In the cases referred to in paragraphs c) to d), the right of both parties to terminate without notice for good cause remains unaffected, in particular if the other party sustainably breaches essential contractual obligations and fails to remedy the infringement in due time despite a warning with a reasonable period of time, or if the other party is significantly damaged or endangered. In addition, starmate solutions is entitled to terminate the contract without notice if the customer is in default of payment with significant parts of the remuneration and fails to correct the default in time despite two reminders from Starmate Solutions with a reasonable deadline.
f) Should a contractual relationship relevant to starmate solutions's customer relationship with a sub-supplier or subcontractor (e.g. maintenance of third-party software) be terminated, regardless of the reason, the parties will agree in good faith on a solution based on interests. starmate solutions will inform the customer of such termination and, with the customer's consent, the relevant individual contract (e.g. software maintenance) to the relevant third party provider transferred.
The customer is aware that third-party providers can also cancel maintenance in the event of software version changes (in particular new major versions/major releases). Starmate solutions will inform the customer of such circumstances without culpable hesitation. The parties shall agree in good faith on the version change to be carried out.
g) Terminations and other declarations leading to the termination of the contract (e.g. withdrawal, depending on the type of contract) must be made in writing; email is not sufficient for this purpose.
12. Final provisions
a) starmate solutions and also their upstream suppliers relevant to the customer relationship (in particular third-party software providers) are entitled to name the customer as a reference customer on their website and in other media and also to use the customer's company logo or company name as part of a revocable, simple right of use.
b) Unless otherwise agreed for individual rights and obligations, the contract or individual rights or obligations hereunder can only be transferred to a third party with the consent of the respective other partner. The provision of Section 354a HGB remains unaffected. The right of starmate solutions to use subcontractors or other vicarious agents also remains unaffected.
c) Those specified in the individual contracts plants are essential parts of the contract.
d) Amendments or additions to the contract must be agreed in writing for documentation purposes.
e) The place of fulfilment is Ulm, provided that the customer is a merchant.
f) The performance and legal relationship between the parties is governed exclusively by German law, excluding the UN Sales Convention.
g) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with the contract is Hamburg.
h) Should individual provisions of the contract between the parties or these terms and conditions be or become invalid or unenforceable in whole or in part, this shall not affect the effectiveness of the remaining provisions.
1. Scope of service
a) These special conditions apply to the provision of the software by starmate solutions for a limited period of the contract. This can be seen in the offer by showing the SaaS fee. With the software, the customer is authorized to access the software solution, which is hosted on servers operated by starmate solutions, using a browser and to use the functionalities of the software within the framework of this contract.
b) The subject of this contract is also the provision of software services (maintenance and support services) by starmate solutions for the software provided to the customer.
c) Software as a Service is provided by starmate solutions for the latest version of the software specified in the individual contract.
d) The details of the contractually owed services provided by starmate solutions are agreed upon in the offer.
e) The software is provided to the customer including the associated user documentation (software and user documentation hereinafter also referred to as “software”). User documentation can be provided in electronic form (e.g. as online help) in the language specified in the offer (German). The source code of the program does not belong to the software; the customer is not entitled to the release of the source code. The performance description of the starmate SOLUTIONS standard software is derived from the contract documents. The information contained therein is to be understood as a service description and not, for example, as guarantees.
f) starmate solutions undertakes to provide the connection and to make an appropriate effort to establish a connection to the Internet so that the customer can access the starmate solutions standard software in the starmate solutions data center and the customer's data can be retrieved. The customer is responsible for their own Internet access.
g) starmate solutions undertakes to provide the agreed services in accordance with the offer, the description of the standard services and the customer-specific agreements as well as subordinately in accordance with generally accepted technical rules, unless and insofar as the contracting parties have not concluded an individual agreement to the contrary.
h) starmate solutions is free to design the operation of the SaaS application and to design the software. This also applies to the version status of the software.
i) starmate solutions reserves the right to expand, adapt, change or even reduce services to the extent that the subject matter of the service is not significantly changed, the purpose of the contract is achieved and this is reasonable for the customer. Starmate Solutions has the right to change services in particular if this change is customary in trade or Starmate Solutions is obliged to do so by changing the legal situation or by case law. starmate solutions is in particular entitled to use new technologies and platforms to fulfill the purpose of the contract.
j) Insofar as starmate solutions provides additional services without being contractually obliged to do so, this is done voluntarily and without entitlement to remuneration. The customer has no claim to performance of these additional services. The provision of these services also does not expand the contractually agreed scope of services. This applies in particular in cases where starmate solutions offers the customer improved or more powerful server services or contractually agreed quota limits, e.g. for e-mail traffic, are exceeded without additional remuneration. starmate solutions is entitled to discontinue, change or only offer additional services and services that have been provided so far free of charge within a reasonable period of time. In such a case, starmate solutions will inform the customer in good time. This does not result in a reduction, refund or compensation claim.
2. Scope of service
a) starmate solutions provides the customer with the services specified in the system certificate, the description of the standard services and the customer-specific agreements/SLA's for a fee. These include (depending on the customer's order and needs):
b) starmate solutions provides the customer with software functionalities and associated documentation. If the customer requires licenses to operate the software or should additional components from third-party manufacturers be required as a result of the software selected by the customer, the license and maintenance costs will be borne by the customer.
c) On the basis of this contract, starmate solutions provides software services in connection with the functions of the starmate SOLUTIONS standard software and the handling of errors that occur during proper use of the software during the term of this contract, as well as the installation of updates for the provided software. The software service also covers the documentation accompanying the software. The special conditions for software service (maintenance) in accordance with Section IV apply mutatis mutandis to the software service services to be provided here.
d) Monitoring the operability of the starmate SOLUTIONS standard software and initiating the treatment of any faults within service hours.
3. Granting of rights software
a) The customer receives from starmate solutions the simple, non-transferable and non-sub-licensable right, limited in time to the term of the individual contract (offer or contract document), to access the software via telecommunications (e.g. Internet) and to use the functionalities associated with the software for his own business purposes in accordance with the individual contract.
b) Permitted use includes loading into the main memory and intended use by the customer. The customer does not have any further rights, in particular to the installed software itself, the technical infrastructure or the operating or system software.
c) The scope of permitted use of the software is set out in the individual contract. The customer is entitled to use the software exclusively for his own business purposes in his own company and for his own company in accordance with the individual contract.
d) The remuneration applies to the number of metering points, measuring points, measurement locations, market locations, users, processes, etc. specified in the individual contract for one's own company and any additional clients/end customers named in the individual contract. Customers can purchase additional optional services at any time. The prices for this must be requested separately.
e) The customer is not entitled to use the software beyond the use permitted in accordance with this contract or to have it used by third parties or to make it available to third parties. In particular, the customer is not permitted to reproduce, edit, translate, reverse engineer, decompile, disassemble, rework or otherwise change as well as sell, lend, rent or publicly reproduce or make available the software or to publicly reproduce or make available the software or to assign, transfer or grant licenses to third parties, for payment or free of charge to provide, in particular by way of the ASP - Application Service Providing or as SaaS - Software as a Service.
4. Access rights
a) If the customer receives access rights from starmate solutions, these access rights must not be misused. The customer is responsible for ensuring that only employees and persons authorized by him have access to the software. The customer is personally responsible for all connections established by him via his access ID and the associated consequences (e.g. changes to the database, calls up programs and queries, accidental deletion of data, etc.).
c) On both sides (customer — starmate solutions), the Internet connection is used to access data. In addition, at the request of starmate solutions, the customer will provide access to the connection in accordance with the customer's requirements for the provision of services. Starmate solutions provides any configuration guidelines for the connection. If the Internet is disrupted due to certain circumstances, such that, for example, a VPN connection cannot be established, starmate solutions is not responsible for this.
d) starmate solutions is not responsible for the integrity of data traffic between the customer and the starmate solutions data center. This responsibility is the sole responsibility of the customer. The customer must ensure that the data transmitted by him is free of viruses or similar harmful programs. The customer must bear any damage caused by incorrect, incorrect or virus-infected data in data traffic between the customer and the data center. starmate solutions will install and maintain a firewall to protect against unauthorized access and virus scanners.
5. Special duties and obligations of the customer
a) In every phase and for all aspects of cooperation, close and trusting cooperation with the customer and the involvement of the customer appropriate to the task at hand is necessary. The customer therefore actively participates in order fulfillment to the required extent free of charge. These obligations to cooperate are the main contractual obligations of the customer.
b) In addition to the general obligations to cooperate set out in Section 7 of the General Terms and Conditions of these Terms and Conditions, the customer is in particular obliged to:
(i) to protect the usage and access authorizations assigned to him or the users as well as identification and authentication guarantees against access by third parties and not to pass them on to unauthorized users;
(ii) to ensure that (e.g. when transferring third-party texts and data to starmate solutions servers) all industrial property rights and copyrights are respected;
(iii) obtain the necessary consent from the person concerned, insofar as he collects, processes or uses personal data as part of the use of the software and is not subject to legal permission;
(iv) not to misuse or allow the software to be misused, in particular not to transmit any offers of information with illegal or immoral content or to draw attention to such information that serves as sedition, leads to crimes or glorifies or downplays violence, or that is sexually offensive or pornographic, or is likely to seriously endanger or impair the reputation of children or adolescents may damage mate solutions;
(v) to refrain from trying to access information or data without authorization or interfere with software operated by starmate solutions or to interfere with software operated by starmate solutions or to invade starmate solutions' data networks without authorization;
(vi) not to misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming);
(vii) to comply with information and suggestions for action provided by starmate solutions for error analysis, elimination and workaround; where applicable, the customer must use checklists from starmate solutions;
(viii) report any errors that occur immediately, provide Starmate Solutions with all information and documentation required for fault analysis and elimination, and also provide Starmate Solutions with appropriate assistance in analyzing and resolving errors. To do this, the customer must isolate the fault and document it in detail in electronic form via the ticket system provided by starmate solutions or, in urgent cases, report it by telephone to the support hotline. As far as possible, all requested information must be answered in the starmate solutions ticket system and include a screen printout.
(ix) to appoint qualified and knowledgeable employees who provide information necessary for the execution of the contract and who makes or can initiate decisions themselves. In addition, the qualified employee supports starmate solutions during fault analysis and elimination, in particular by communicating with the authorities affected by the customer, providing documents and information, carrying out and transmitting test cases and test data;
(x) to report immediately and comprehensively to starmate solutions in writing if the customer or a third party has changed or otherwise interfered with the software;
(xi) to prevent data loss, carry out regular data backups unless this is a service provided by starmate solutions. The data must be backed up separately before maintenance services begin. Data loss of any kind must be protected by appropriate backup procedures. In any case, the customer must carry out or have all databases backed up comprehensively in accordance with the recommendations of starmate solutions to back up data;
(xii) to fulfill the obligations to cooperate in due time, to carry out the cooperation acts in due time and to submit declarations in due time;
(xiii) to indemnify starmate solutions from all claims made by third parties based on illegal use of the software by him or with his approval or which arise in particular from data protection, copyright or other legal disputes associated with the use of the software. If the customer recognizes or must recognize that such an infringement is imminent, there is an obligation to inform starmate solutions immediately;
(xiv) oblige users authorized by him in accordance with Section 1.a) to comply with the provisions set out in Section 5.b) (i) to 5.b) (vi) and Section 5.b) (x);
(xv) to save the data in the system (e.g. mailbox content and documents) available in the system by downloading it until the contract is terminated, as it cannot be ruled out that the customer will no longer be able to access these data sets after termination of the contract. Upon termination of the contract, starmate solutions will optionally provide the customer with its current database on suitable (machine-readable) data carriers for a fee.
c) If the customer defaults on fulfilling the cooperative acts under his responsibility, the performance obligation of starmate solutions is suspended for the duration of the delay, which cannot be provided without this action or can only be provided with disproportionate additional costs.
d) The customer may transfer rights or obligations arising from or in connection with this contract to third parties only after written consent from starmate solutions.
6. Use of the software contrary to the contract
a) starmate solutions is entitled, in the event of an unlawful breach by the customer or the users named by him of one of the essential obligations set out in this contract, in particular in the event of a breach of the obligations set out in sections 5.b) (i) to 5.b) (vi), temporarily interrupt access to the software and its data that the customer uses (blocking of the website). Starmate solutions has the same right if starmate solutions becomes aware that posted content is illegal or there is sufficient suspicion of illegality. There is sufficient suspicion of illegality in particular if starmate solutions receives a warning from the alleged injured person or is otherwise claimed for omission due to the illegality of the posted content and the warning or request for injunctive relief is not manifestly unfounded. The blocking must be limited to potentially illegal content, insofar as this is technically possible and reasonable.
b) The customer must be notified immediately of the blocking, giving reasons, and asked to remove the illegal content or to explain the legality and, if necessary, prove it. Access will only be restored when the breach of the relevant essential obligation is permanently eliminated or as soon as the suspicion is refuted or the risk of repetition has been ensured by submitting an appropriate declaration of injunctive relief to starmate solutions. Despite the suspension, the customer remains obliged to pay the agreed remuneration, even for the period of blocking.
c) The customer undertakes to indemnify starmate solutions from all claims made against starmate solutions in connection with the use of the services provided by starmate solutions by the customer, in particular due to possible illegal violations of the rights of third parties or legal regulations. Furthermore, the customer is obliged to pay for all other damages and expenses that Starmate Solutions incur in connection with the use of its services by the customer contrary to contract or law, in particular through the assertion of claims for possible violations by third parties. In particular, the indemnification obligation also includes the obligation to exempt starmate solutions from necessary legal defense costs and to pay an appropriate advance on the expenses and costs that are likely to be incurred. The customer is obliged to inform starmate solutions immediately if the customer recognizes an infringement of rights by third parties or has any evidence to this effect.
7. Claims in case of unauthorised use
a) In the event of any form of improper or insufficient and illegal use of the software, the customer undertakes to pay appropriate remuneration for the usage rights necessary for the permitted use.
b) If the duration and scope of unauthorized use by the customer is disputed, the customer bears the burden of proof for justified use.
c) If the customer is unable to provide proof, starmate solutions is entitled to estimate the unproven period or scope at reasonable, judicially verifiable discretion and to claim the resulting additional remuneration from the customer.
d) The above additional remuneration also applies if the customer culpably enables the use of the software in violation of section 3.e) by users or third parties not named by the customer.
e) All other claims by starmate solutions due to unauthorized use of the software remain unaffected. In particular, starmate solutions reserves the right to prove further or higher damage.
f) In the event of an unauthorised transfer of use, the customer must immediately provide starmate solutions with all information required to assert claims against the user, in particular the user's name and address.
g) If the contractual use of the software is affected by third-party property rights through no fault of starmate solutions, starmate solutions is entitled to refuse the services affected by this. starmate solutions will immediately inform the customer of this and provide him with access to his data in an appropriate manner. In this case, the customer is not obliged to pay. Other claims or rights of the customer remain unaffected.
8. Compensation
a) The customer pays starmate solutions for the provision of the starmate SOLUTIONS standard software and the other services subject to the contract, in particular the software service in accordance with section 2.d) and fault management in accordance with section 2.f), plus the applicable statutory value added tax in return for invoicing that complies with tax regulations.
b) The amount and due date of the individual remuneration components are set out in the system certificate. Unless specified in the system certificate, a monthly fee, beginning on the date of operational availability, is to be paid on a pro rata basis for the remainder of the calendar month. Thereafter, the remuneration must be paid in advance on a calendar month basis. If a price is to be calculated for parts of a calendar month, this is calculated for each day at 1/30 of the monthly fee.
c) In addition, all invoices are due for payment within 10 days of receipt of the invoice.
d) In the event of late payment, starmate solutions is entitled, without prejudice to other rights, to charge default interest from the due date in the amount of statutory default interest.
e) starmate solutions is entitled to interrupt the provision of services if the customer is in default of payment of the agreed remuneration or a significant part of the remuneration on two consecutive dates. starmate solutions will inform the customer at least 48 hours before the service interruption. After payment of the outstanding amounts, starmate solutions will resume service. The customer remains obliged to pay the agreed remuneration, even for the period of service interruption, minus saved expenses from starmate solutions.
f) If, after the conclusion of the contract, there is a significant deterioration in the customer's financial circumstances, which appears to jeopardize starmate solutions' claim for compensation, or does starmate solutions learn of such a deterioration only after conclusion of the contract, starmate solutions may refuse to provide the services owed until the respective remuneration has been paid or security has been provided for them.
g) starmate solutions is entitled to price adjustments.
h) For services that go beyond the contractually agreed services, starmate solutions receives compensation based on the number of days worked. The daily rate is based on an amount in accordance with the currently applicable generally valid price list plus the applicable statutory value added tax. If less than eight hours are worked per day, each full hour worked is paid at 1/8 of the daily rate.
i) Services, travel expenses, expenses and expenses are based on starmate solutions' current prices for services, travel expenses and expense rates.
j) If a defect or error reported by the customer does not actually exist or if it turns out that this is not due to software subject to this contract, starmate solutions is entitled to charge the costs of analysis and other processing (corresponding information to the customer in advance for expenses of more than 2 person days) in accordance with the prices for services agreed in section 8.i). The prerequisite is that the customer has recognized or negligently failed to recognize that a defect or fault does not exist, but that the cause of the appearance complained about by the customer lies within the customer's area of responsibility.
k) The billing period for billing starmate solutions for the services, travel expenses, expenses and expenses to be reimbursed as well as the costs to be reimbursed is the calendar month. Services, which are paid according to daily rates, are billed immediately — insofar as they are incurred — in accordance with the evidence of service provision.
l) All prices are exclusive of the applicable statutory value added tax, which is shown separately in the invoices.
9. Commencement and duration of the contract, termination
a) The term of this contract begins at the time specified in the contract documents, if there is no such date, on the date of operational provision of the software - but no later than four months after the signature of both parties - otherwise with the signature of both parties.
b) The binding term (minimum term) of this contract is set out in the individual contract. If the individual contract does not specify a minimum term of the contract, there is a minimum period until the end of the second calendar year following the start of the contract.
c) Ordinary termination is excluded during the minimum term.
d) The contract is then extended by a further year as long as it is not terminated in writing by one of the parties with a notice period of six (6) months at the expiry of the respective contract expiry, but at the earliest at the end of the minimum contract period.
e) The right to extraordinary termination if there is good cause remains unaffected. This includes in particular
(i) the failure of one of the main contractual obligations or the breach of a material contractual obligation by one of the parties, which has not been remedied despite a prior written reminder and a reasonable period of grace; merely insignificant breaches of duty which have no or no tangible effect on the performance of the system do not entitle to extraordinary termination;
(ii) if the customer does not or does not fully fulfill a payment obligation due for more than 30 days despite a written warning and a reasonable period of grace with a threat of refusal;
(iii) the breach of confidentiality despite a warning;
(iv) if the customer uses the software beyond what is permitted under this contract and does not remedy the infringement within a reasonable period of time in response to a warning from starmate solutions.
(v) In addition, Section 314 BGB applies with the proviso that a warning must be given at least in text form in order to have legal effects.
f) Upon termination of the contract, the customer may have a claim against starmate solutions in accordance with Section 5.b) (xiv) to the surrender of his stored data. The data is returned by copying the stored data on a corresponding (machine-readable) data carrier and handing over this data carrier to the customer. starmate solutions is entitled to reimbursement of the material costs to be documented and an expense allowance after the customer has handed over and accepted the data carrier.
g) It is clarified that termination of individual services under this contract is excluded.
h) Any termination must be made in writing to be effective.
10. Maintenance, performance disruptions and warranty
a) starmate solutions guarantees that the contractually agreed quality of the software will be maintained during the contract period and that the use of the software in accordance with the contract does not conflict with the rights of third parties.
b) Insofar as the software does not meet the agreed requirements and quality guarantees, starmate solutions will remedy any material and legal defects that do not represent mere troubleshooting in accordance with Section 2.d), in accordance with Section 8 of the General Terms and Conditions of these Terms and Conditions, within a reasonable period of time, at its own discretion, by rectification or replacement delivery. The method of removal (including response times) is subject to the agreed service levels in accordance with the contract documents.
c) Termination by the customer in accordance with Section 543 (2) BGB due to failure to grant contractual use is only permitted if Starmate Solutions has been given sufficient opportunity to remedy the situation (see Section 8.d) and e) of the General Terms and Conditions of these Terms and Conditions) and this has failed.
11. Miscellaneous
In addition, the general conditions of these terms and conditions apply to the provision of software as a service solution.
1. Scope of service
a) These special conditions apply to the provision of services by starmate solutions. The service certificate or contract document must state which of the following types of services are involved in each case:
b) The content and scope of the service to be provided by starmate solutions are set out in the service certificate. The dates specified are always regarded as common objectives of the parties, but not as fixed dates. An essential prerequisite for compliance with agreed time limits is the timely and complete fulfilment of the customer's obligations to cooperate.
c) If an installation of software by starmate solutions has been agreed upon, this is considered to have been fulfilled when the software is ready to run on the customer configuration.
2. Compensation
a) The customer owes compensation for the service based on time and effort. The working and travel times proven by starmate solutions plus travel and accommodation expenses are calculated in accordance with the starmate SOLUTIONS price list valid at the time of order.
b) The expected total expenditure is estimated without obligation in the service certificate. Should it become apparent in the course of the activity that the estimated estimated total expenditure is exceeded by more than 25%, starmate solutions will inform the customer of this. In any case, the actual expenses incurred must be reimbursed.
3. Miscellaneous
In addition, the general conditions of these terms and conditions apply to the provision of services.
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