General Terms and Conditions for the Provision of Software as a Service Products by Poksundo in Business Transactions with Companies (SaaS GTC)

 
1.     General
1.1    The following General Terms and Conditions apply to all legal relationships between Poksundo GmbH, Kanzlei-gasse 18, 78050 Villingen-Schwenningen (hereinafter "Poksundo") and a contractual partner (hereinafter "CP") in the event of the provision of Software as a Service per-formances (hereinafter SaaS) for the following products:
jay cloud

-    hereinafter collectively referred to as "SaaS Products".

All other legal relationships between Poksundo GmbH, Kanzleigasse 18, 78050 Villingen-Schwenningen and a CP (hereinafter referred to as CP) shall be governed by the respective contractually agreed General Terms and Con-ditions. All General Terms and Conditions can be viewed and printed out at www.poksundo.com. Upon request, Poksundo will also send them to the respective CP free of charge.
1.2    Any general terms and conditions of purchase or business of the CP that deviate from these Terms and Conditions shall only be valid if Poksundo has expressly agreed to their validity. Performance of the contract by Poksundo does not replace this written confirmation even if it is done with knowledge of conflicting or deviating terms and condi-tions of the CP.
1.3    Poksundo offers the SaaS Products exclusively to entre-preneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e., natural, or legal persons or partner-ships with legal capacity who act in the exercise of their commercial or independent professional activity and to persons under public law and special funds under public law.

2.    Interfaces to third-party systems
If Poksundo provides interfaces to other third-party sys-tems as part of the provision of the SaaS Products, Pok-sundo is not obligated to adapt the interfaces to any changes in such third-party systems. In such a case, how-ever, Poksundo will endeavor (to the extent economically reasonable) to establish interoperability.

3.    updates/adaptations/further development
Poksundo reserves the right to update, upgrade or publish a new version of the SaaS Products at any time, as well as to change the (technical) requirements for access to the SaaS Products, as well as their design, even after the conclusion of the User Agreement. In this case, Poksundo will inform the CP by email of the changed specifications at least one week before the changes take effect and, to the extent possible, provide guidance on how to adapt the previous setup for the continued use of the SaaS Prod-ucts. In particular, Poksundo may make changes if this is necessary for reasons of IT security or to ensure compati-bility with applicable law. In the case of critical and/or se-curity-relevant updates and/or updates required for trou-bleshooting, Poksundo reserves the right to implement up-dates even at shorter notice and/or without prior notice but will inform the CP immediately in this case. If the changes result in the continued use of the SaaS products by the CP only being possible with disproportionate effort, the CP may terminate the affected user contract extraordinarily and without notice within 30 days after receipt of the in-formation from Poksundo, unless Poksundo makes the necessary technical adjustments at the CP's own ex-pense.

4.    Other duties of the CP
4.1    Activities aimed at rendering the SaaS Products or the Software inoperable or at making its use more difficult are prohibited.
4.2    The CP undertakes to comply with all export/import regu-lations and other trade-restrictive measures regarding the use of the contractual SaaS products.
4.3    The CP is obliged to ensure that the access authorizations are granted only to authorized persons (end users), that it is authorized to use their data and that the data of the end users as well as the possibility of entering the data in the host system are secured against unauthorized access by third parties.
4.4    Access is password-protected and can also be secured by further technical measures if necessary. The CP must keep his password secret and carefully secure his access data and any security hardware. He is also obliged to in-form Poksundo immediately if there are indications that his access to the software has been misused by third parties. Poksundo will not disclose a CP's password to third parties and will never ask the CP for the password by email or phone. The CP is liable for all activities carried out using his access data.
4.5    The CP shall furthermore be obliged to ensure that the end users also comply with the terms and conditions agreed in this contract and shall be liable for any misconduct of the end users as for its own fault.

5.    Blocking access
Poksundo may temporarily block access to the SaaS products for the CP if there are concrete indications that a CP is in breach of statutory provisions or regulations of the User Agreement (incl. attachments/documentation) or is in default of payment of an amount that exceeds a total of at least two monthly fees. Poksundo will consider the legiti-mate interests of the CP concerned when deciding on a block, in particular whether there are indications that the CP is not at fault for the violation. Poksundo will inform the CP of the upcoming blocking by e-mail at least three days before the blocking, unless the breach of duty requires an immediate blocking due to its scope and severity. The CP is responsible for ensuring that the SaaS products are no longer used at the time of the block. Poksundo will imme-diately lift the block as soon as the breach or default has ended.

6.    Data backup and deletion
6.1    The responsibility for data backup lies with Poksundo. A data backup is performed daily in the Object Store of the SAP Business Technology Platform. During each backup, the complete database of the customer system is saved. The backups of the last 31 days are saved. For backups > 31 days, only one backup per month is saved with a cut-off date of the 10th. All further backups of the month are deleted.
6.2    Upon termination of the User Agreement, all access op-tions of the CP will be deactivated and all resources, in-cluding all data entered by the CP into the SaaS Product, will be deleted and released, unless retention by Poksundo is exceptionally required to fulfil legal retention obligations.
6.3    The CP is responsible for the proper entry, management, deletion, and use of data in the host system. In particular, the CP is obliged to ensure that only data is used in com-pliance with the provisions of data protection law.

7.    Warranty; force majeure
7.1    Poksundo warrants that the SaaS Products will be availa-ble to the CP in accordance with the availability agreed in the User Agreement, in the Service Description (Annex 2).
7.2    The CP will notify Poksundo of malfunctions of the SaaS Products without undue delay, to enable Poksundo to remedy the malfunction within the scope of its contractual obligations. If the CP culpably fails to notify Poksundo of malfunctions and if this failure leads to further damages or malfunctions, Poksundo will not be liable for such conse-quential damages.
7.3    Poksundo is exempt from its obligation to perform in cases of force majeure or any other event unforeseeable at the time of the conclusion of the User Agreement for which Poksundo is not responsible (e.g. operational disruptions of any kind, fire, natural disasters, epidemic, pandemic, weather, floods, war, insurrection, terrorism, transport de-lays, strikes, lawful lockouts, lack of manpower, lack of energy or raw materials, delays of any necessary official permits, official/sovereign measures).
7.4    Poksundo shall also not be liable for the impossibility or delay of performance to the extent caused in each case by the currently ongoing epidemic/pandemic of the SARS-CoV-2 (COVID-19) coronavirus or its aftermath; such dis-ruptions or delays shall also constitute cases of force majeure. The CP is aware of the currently ongoing epi-demic/pandemic and the uncertainty of further develop-ments (in particular, but not limited to, the further spread of the epidemic/pandemic and further direct or indirect plant shutdowns and/or infrastructure closures and/or raw mate-rial shortages and the possibility that Poksundo perfor-mance may be negatively affected thereby).
7.5    Poksundo is also not liable for the impossibility or delay of services of its subcontractors, insofar as it occurs in each case for reasons for which Poksundo is not responsible, despite proper and sufficient coverage prior to the conclu-sion of the contract with the CP in accordance with the quantity and quality owed (congruent coverage).
7.6    If Poksundo becomes aware of any of the events, Pok-sundo will inform the CP without delay. If such events make it significantly more difficult or impossible for Pok-sundo to provide the service and are not only of temporary duration, Poksundo is entitled to withdraw from the con-tract. If, after the event has ceased to exist, the CP no longer has any interest in Poksundo providing the service, the CP is also entitled to withdraw from the contract.

8.    Limitation of liability
8.1    Unless otherwise provided in these General Terms and Conditions (including this Section 8), Poksundo is liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2    Poksundo is liable - for whatever legal reason - without limitation for damages resulting from an intentional or grossly negligent breach of duty or by a legal representa-tive or vicarious agent of Poksundo.
8.3    In the event of a merely simple or slightly negligent breach of duty by Poksundo or a legal representative or vicarious agent of Poksundo, Poksundo shall only be liable (subject to a milder standard of liability in accordance with statutory provisions, e.g., for diligence in its own affairs or for insig-nificant breaches of duty) for
a)    without limitation for damages based thereon aris-ing from injury to life, limb or health.
b)    for damages resulting from the violation of essen-tial contractual obligations. Material contractual ob-ligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the CP regularly relies on and may rely. In these cases, however, Poksundo’ s liability is limited to the amount of damage typical for the contract and foreseeable at the time the contract was concluded.
8.4    The limitations of liability in Section 8.3 do not apply if Poksundo has fraudulently concealed a defect or has as-sumed a guarantee of quality or a procurement risk that is subject to compensation. Furthermore, any mandatory statutory liability, under the Product Liability Act, remains unaffected.
8.5     Insofar as Poksundo’ s liability is excluded or limited, this also applies to any personal liability of Poksundo’ s corpo-rate bodies, legal representatives, employees, staff and vi-carious agents.
8.6    The statutory burden of proof shall remain unaffected by the above provisions. Likewise, the objection of contributo-ry negligence (§ 254 BGB) remains reserved.
8.7    The terms "damages" and "claims for damages" in these General Terms and Conditions shall also include claims for reimbursement of futile expenses.

9.    Copyright and rights of use /-restrictions
9.1    The CP's right to use the SaaS Products shall be limited to the contractual term agreed in the Usage Agreement and the scope agreed in the Usage Agreement, in the Service Description (Annex 2). The granted right is non-exclusive, non-sublicensable and non-transferable, except for any in-tra-group (§ 15 f. AktG) sublicensing of the CP. The grant-ing of rights in accordance with this clause shall take place worldwide to the exclusion of territories with respect to which the use of the SaaS Products would constitute a violation of applicable export/import regulations or other trade restrictive measures. In particular, the SaaS Prod-ucts may only be used in countries that permit data stor-age in Switzerland and/or the EU. If the SaaS Products are divided into modules, the CP's right to use the SaaS Products shall be limited to the modules selected in the contract.
9.2    Poksundo may verify the CP's compliance with the terms of the Contract (including attachments/documentation) by means of suitable technical procedures, provided that Poksundo observes the CP's legitimate interests (in partic-ular, preservation of trade and business secrets and data protection).
9.3    The CP acknowledges that all existing rights to the SaaS Products (i.e., to the Software), including all intellectual property rights such as copyrights, trademark rights, pa-tents and all other proprietary rights, are the exclusive and unrestricted property of Poksundo or Poksundo’ s third party licensors. The CP is not permitted to reproduce, modify, decompile, create adaptations, reverse engineer, disassemble, translate, or otherwise attempt to convert the SaaS Products or any part thereof into source code. The applicability of Section 3 (1) No. 2 GeschGehG is express-ly excluded. However, this shall only apply to the extent that such action is not expressly permitted under Sections 69d and 69e of the German Copyright Act.
9.4    If the temporary use of an IoT Box or a BAPI Connector is included in the scope of the agreement, it may only be used for the SaaS Products. Transfer to third parties is not permitted.
9.5    The CP grants Poksundo the right to use the data created by the CP during the contractual use of the SaaS Products to the extent necessary to fulfil the contractual obligations. The same applies to the files uploaded by the CP to the cloud storage.
9.6    The CP shall indemnify Poksundo against all claims of third parties based on a culpable breach of an obligation under this clause 9.

10.    Secrecy
10.1    The parties undertake to treat as confidential all confiden-tial information of the respective other party and its affiliat-ed companies within the meaning of §§ 15 et seq. AktG (German Stock Corporation Act), which becomes known to them in connection with or during the performance of the respective contract, and to use it only for contractually agreed purposes. The duty of confidentiality shall not apply to such staff, employees and external consultants who are directly involved in the performance of the contract ("need to know" principle) and are legally or contractually bound to secrecy - to the extent permitted by law also for the time after they have left the company - or the other party has consented to the disclosure. Confidential information within the meaning of this provision shall be business se-crets within the meaning of § 2 No. 1 GeschGehG and other confidential information of an economic, legal, finan-cial, technical or tax nature relating to the business activi-ties, customers, or employees of the parties and which is designated as such or is to be regarded as confidential by its nature, irrespective of whether and how it is document-ed or embodied.
10.2    The term Confidential Information shall not include such information which (i) is or becomes in the public domain or generally accessible (unless due to a breach of the User Agreement by the Informed Party or one of its representa-tives); (ii) was already lawfully in the possession of the In-formed Party without any obligation of confidentiality be-fore it received it from the Informing Party; or (iii) was re-ceived from a third party entitled to disclose such infor-mation without restriction. The existence of any of the foregoing exceptions shall be proved by the party relying thereon.
10.3    If a party is obliged by a legal provision or an official order to make confidential information of the other party availa-ble to a public body in the sense, it shall be entitled to do so. The extent of the disclosure shall be kept as low as possible; the other party shall be informed without undue delay and, if possible, before the information is released to the public body.
10.4    If confidential information of the other party has become known to one party, it shall, upon termination of the User Agreement, upon written request and at the option of the other party, immediately and at its own expense surrender to the other party or destroy all confidential information (including all embodiments, data carriers and copies), inso-far as this is feasible with reasonable effort, and confirm this to the other party. This shall not apply if and to the ex-tent that the party obliged to surrender or destroy is legally obliged to retain confidential information. Furthermore, in-formation on routinely created historical IT backup media of the receiving party shall be exempt from the obligation to return, destroy and delete the confidential information if and to the extent that such an operation would only be possible with disproportionate effort and the receiving par-ty ensures through appropriate technical and organization-al measures that no further use of the confidential infor-mation occurs via the routinely created historical IT back-up media.
10.5    The obligation to maintain confidentiality shall continue for five (5) years beyond the term of the respective contract. If and to the extent that disclosed confidential information constitutes     business secrets within the meaning of Section 2 No. 1 GeschGehG, the obligations shall apply for an indefinite period, notwithstanding Section 10.2 above.

11.    Data protection
11.1    For the processing of personal data by Poksundo on be-half of the CP in the context of the use of SaaS Products, the provisions of the DPA attached to the User Agreement shall apply.
11.2    Poksundo will process the data exclusively on a cloud server located within the European Economic Area (in par-ticular Switzerland) or a country with a sufficient level of data protection.
11.3    Poksundo takes technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the DPA.
11.4    The CP shall ensure that the data processing provided for under this User Agreement or carried out by the CP in the context of the User Agreement is permissible and shall ob-tain any necessary consents (e.g. from employees of the CP or other data subjects) on its own initiative and respon-sibility before commencing the data processing.
11.5    Upon termination of the User Agreement, Poksundo will irrevocably delete all stored personal data, provided that Poksundo is no longer legally obligated to store the data in question (e.g., statutory retention periods).
11.6     The Parties shall comply with the statutory data protection provisions, in particular the provisions of the applicable da-ta protection laws, especially the EU General Data Protec-tion Regulation.
11.7    The Parties' employees shall be duly bound by confidenti-ality to the extent provided by law.
 
12.    Contract performance by third parties
To fulfilling the contract, Poksundo may use other service providers and companies affiliated with it within the mean-ing of § 15 AktG. Insofar as this concerns the processing of personal data, the corresponding regulations of the DPA apply.

13.    Compliance
The CP undertakes to comply with the Code of Conduct valid at the time of the conclusion of the contract, which will be sent to the CP free of charge upon request or can be viewed on the Internet at www.poksundo.com, in the context of the execution of the respective usage contract concluded with Poksundo.

14.    Other
14.1    The User Agreement, together with the Annexes, consti-tutes the entire User Agreement and the agreement of the Parties with respect to the subject matter hereof and su-persedes any oral or written agreements or understandings between the Parties with respect to the subject matter hereof. Any terms and conditions of the CP deviating from or supplementing this User Agreement shall not apply.
14.2     Insofar as "written form" (or "in writing") is provided for in the user agreement and its annexes and unless expressly stated otherwise, this shall mean written form within the meaning of § 126 BGB (German Civil Code) including electronic form (pursuant to § 126 para. 3 in conjunction with § 126a BGB). The parties agree that an advanced electronic signature within the meaning of Art. 26 eIDAS Regulation is sufficient for the electronic form in this con-tract. For the avoidance of doubt, the text form pursuant to Section 126b of the German Civil Code (BGB) does not preserve the written form. This also applies to amend-ments or additions to this contract. All other notices in con-nection with this Agreement must be in text form (as de-fined in § 126b BGB) and must be sent to the respective recipient in person, by letter, by registered mail, by courier, by fax or by electronic communication. Verbal and tele-phone transmission are not sufficient.
14.3    Amendments or supplements to the license agreement and its appendices - including this clause - must be made in writing to be effective. Verbal transmission and trans-mission by telephone shall not be sufficient.
14.4    The CP may only offset against payment claims of Pok-sundo with due and/or future claims if these claims have been legally established or are undisputed.
14.5    If individual provisions are or become void or ineffective in whole or in part, this shall not affect the validity of the re-maining provisions. Statutory law shall take the place of provisions that are not included or are invalid. If such statu-tory law is not available in the respective case (regulation gap) or would lead to an unacceptable result, the parties shall enter negotiations to replace the non-included or inva-lid provision with a valid provision that comes as close as possible to it in economic terms.
14.6     The legal relationship between Poksundo and the CP shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
14.7     The exclusive place of jurisdiction is the court with subject-matter jurisdiction at the registered office of Poksundo.

(Status: 05.09.2023)