- SCOPE OF AGREEMENT
1.1 Humanitec has developed certain software components and programs as software-as-a-service to enable users and clients within the business area of non-profit-organisations, donors and/or foundations to organise their daily business as described in detail on www.toladata.com and/or Schedule 1 (the “Software”).
1.2. Humanitec owns the exclusive copyrights and other intellectual property rights to the Software. However, the Customer is aware, that the Software also contains open source components.
1.3. Customer wishes to obtain a license from Humanitec to use the Software for the term of this Agreement.
1.4. Humanitec and Customer agree that Customer shall be solely responsible for any (personal) data included by Customer in the Software. For details, please refer to Sub-Clause 14.4 below.
1.5. This Agreement sets forth the general terms and conditions under which Humanitec shall grant Customer a license to use the Software.
2. DEFINITIONS & INTERPRETATION
2.1. In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
“Additional License(s)” has the meaning as set forth in Sub-Clause 6.1;
“Admin Account” has the meaning as set forth in Sub-Clause 3.1;
“Agreement” means the agreement relating to the ToU as amended from time to time including all its annexes and schedules;
“Editing User(s)” means the number of user accounts that the Customer is allowed to create within the Admin Account as part of the License as agreed in the License Sheet in form of paid user seats in the system; whereas such Editing Users have permission in the Software system to create, edit and delete data as it pertains to their organization or group relating to Customer;
“ReadOnly User(s)” are users of the Software from inside or outside the Customer organisation and do not have permissions to add, edit or delete any content but instead can view certain areas of the application data created by the Customer organisation within the Software;
“Intellectual Property Rights” means any patents, copyright, design right, trademark, service mark, logo, database right, trade secret, patent applications, rights in inventions, know-how and/or other present or future intellectual property right of any type;
“License” means the license granted by Humanitec to Customer according to Clause 5 hereof;
“License Fee” means the fee for the License for one calendar month or one year, as applicable;
“License Period” has the meaning as set forth in Sub-Clause 3.2;
“License Sheet” means the license sheet attached to this Agreement as Schedule 1 which defines the scope of the License with regard to the number of Customer’s employees and/or Editing Users, the License Fee and, as the case may be, the date of the beginning of the License Period;
“Party” means either Customer or Humanitec and “Parties” means Customer and Humanitec together;
“Technical Requirements” means the technical requirements the Customer must have to use the Software as set out on the Website and in the License Sheet;
“Term” means the term of this Agreement, as detailed in Sub-Clauses 3.1 and 3.2;
“Website” means the website www.toladata.com and related sub-sites provided by Humanitec.
2.2. Irrespective of the definitions as set forth in Clause 2.1, this Agreement contains further definitions.
2.3. Headings shall be ignored in interpretation.
2.4. Reference to Clauses and Sub-Clauses are to those of this Agreement.
2.5. Words importing gender shall include all genders; words denoting the singular shall include the plural; words denoting persons include incorporated and unincorporated bodies, and in each case vice versa.
2.6. Reference to any directive, statute, statutory provision or statutory instrument includes a reference to that directive, statute, statutory provision or statutory instrument together with all rules and regulations made under them and as from time to time amended, consolidated or re-enacted.
2.7. The following documents shall have the following order of priority, whereby the first document shall have the highest priority:
(b) this Agreement.
3. COMMENCEMENT & DURATION
3.2. This Agreement will take effect from the date of successful registration of Customer via the Website (see Sub-Clause 3.1) or, as will take effect from the date agreed in the License Sheet, and shall last for at least one year or one month, as applicable, until terminated (the “Initial Term”). This Agreement will automatically renew for additional terms of one year or one month each, unless terminated to the end of the then current term by giving not less than three (3) months prior written notice regarding the term of at least one (1) year or one (1) month prior written notice regarding the term of at least one (1) month, as applicable (the Initial Term and a renewed term each a “License Period”).
4. DELIVERY & ACCEPTANCE OF THE SOFTWARE
4.1. Humanitec makes the Software in its current version available to Customer via the Website only.
4.2. Upon a successful registration by Customer via the Website (see Sub-Clause 3.1), Humanitec will send to Customer by email access information that Customer needs for the use of the Software.
4.3. The Software as well as updates/upgrades shall be deemed accepted once the Customer has successfully accessed it via the respective Admin Account for the first time.
5.1. Subject to the terms and conditions of this Agreement, and for the duration of the License Period, Humanitec grants Customer a non-exclusive license to use the Software, which non-exclusive license is hereby accepted by Customer (the “License”). The License shall be granted as non-exclusive, non-assignable, non-transferable, with no right to sub-license, worldwide limited right to use the Software. Customer is responsible for its staff’s compliance with the terms of this Agreement.
5.2. The scope of the License shall be subject to and limited by the number of Editing Users as well as Additional Licenses as agreed in this Agreement and Schedule 1. In order to increase the number of Editing Users more licenses have to be obtained subject to and in accordance with Clause 6. The number of ReadOnly Users is unlimited.
5.3. As part of the License, Customer shall be entitled to extract and copy the data within the Software. After termination of the agreement relating to this ToU, Customer might have the right for a ‘read-only’ access to the Software as set forth in Sub-Clause 16.7 below. Apart from that, Customer shall not be entitled to copy the Software in any way.
5.4. If a user account of Customer is deleted, Customer may create a new user account for the respective Editing User.
5.5. The License does not include any installation, configuration or support services unless individually agreed between the Parties.
5.6. Customer acknowledges that Humanitec has no delivery obligation except for the obligations pursuant to Clause 4 above and will not ship copies of the Software to Customer as part of the License etc.
5.7. Nothing in this Agreement has the effect of assigning or transferring any title to intellectual property rights to Customer. Customer does not acquire any right to use the Software in excess of the scope and/or duration of the License.
5.8. The Customer acknowledges, that the Software might contain open source components, including but not limited to the backend of the Software. To the extent the Software includes any open source software, Customer’s license with respect to each item of the open source software will be governed exclusively by the applicable open source software license associated with the respective open source software, regardless of any other provisions of this Agreement. Without limiting the foregoing sentence, Customer recognizes that the only warranties and representations respecting the open source software are those provided in the applicable open source software license. No provisions herein concerning infringement and indemnity shall apply to such open source software, and Humanitec shall bear no responsibility or liability whatsoever related to its supply of or Customer’s use of such software. Identification of and licenses for open source software may be found in the Software, or in libraries provided with the Software, or in links provided in the software or such libraries, or on the Website, or in other documentation provided or linked to by Humanitec.
6. ADDITIONAL LICENSES
6.1. The Customer may subscribe for additional licenses by increasing the number of Editing Users at any time subject to and in accordance with the following (each an “Additional License”, together “Additional Licenses”) according to this Clause 6 and the price list set forth in the License Sheet.
6.2. The Customer may change the number of Editing Users through the Admin Account only.
6.3. Additional Licenses will be charged per additional Editing User as set out in the License Sheet and will increase the applicable License Fee accordingly.
6.4. The Customer may increase or reduce the number of Editing Users at any time by submitting a respective request to Humanitec pursuant to the terms of this Clause 6 including the updated number of Editing Users. The current License Fee shall be increased or reduced accordingly, as applicable, due to the price list set forth in the License Sheet. The amended number of Editing Users shall then apply for the following applicable License Period.
6.5. Upon respective request, Customer is obliged to give Humanitec information about the number of persons, who actually use the Software and are therefore considered Editing Users without hesitation. Such information shall be given at least in text form (section 126b BGB) and in good faith.
6.6. For any Additional License, Clauses 5, 8, 9.3 and 18 shall apply accordingly.
7. SUPPLEMENTARY SERVICES
7.1. Upon respective request by Customer and subject to a separate agreement between Customer and Humantec within Humanitec’s sole discretion, Humanitec may provide supplementary services (the “Supplementary Services”).
7.2. Customer shall provide any (technical or resource) requirement or information to and communicate with Humanitec to the extent necessary to provide the Supplementary Services.
8. TECHNICAL REQUIREMENTS
8.1. In order to use the Software and License the Customer must check all technical details and conditions on the Website and/or the License Sheet.
8.2. The Customer shall be solely responsible for the fulfillment of the Technical Requirements. Humanitec does not owe and/or provide any consultancy services in connection therewith if not otherwise agreed with Humanitec.
8.3. Customer shall provide any information to and communicate with Humanitec to the extent necessary to use the Software as agreed herein.
9. FEES AND PAYMENT
9.1. Customer shall pay to Humanitec the License Fee as set out in Schedule 1 of this Agreement and/or the Website plus statutory VAT, if applicable.
9.2. Humanitec is entitled to adjust the License Fee, in particular to increase it. However, such changes shall only be valid for subsequent license years/months. Humanitec shall notify Customer of the price increase at the latest eight (8) weeks before it becomes effective.
9.3. If not otherwise agreed in Schedule 1, the License Fee for each License Period (plus statutory VAT) shall be payable in advance and in full at the beginning of each License Period and due within thirty (30) days for annual License Fee and 10 (ten) days for monthly License Fee (as applicable) upon Customer’s receipt of the applicable invoice from Humanitec.
9.4. All payments due shall be made in Euro and, unless otherwise agreed upon in writing by the Parties, shall be made electronically by bank wire transfer to the banking institution, and account number provided by Humanitec or via direct debit or credit card.
9.5. Fees as listed on the Website and/or in Schedule 1 are exclusive of taxes and expenses.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. Except for the rights granted hereunder, the Parties agree that all Intellectual Property Rights in the Software shall remain with Humanitec.
10.2. Customer shall use the Software in accordance with the intended purpose of the Software, the provisions of this Agreement, in accordance with any applicable statues, laws, and/or regulations and within the agreed scope of the Software. Customer may not
(a) make the Software available in any manner to any third party for use in the third party’s business operations;
(b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software, or access or
(c) use the Software in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Software;
(d) use the Software to distribute illegal content and/or content that infringes the rights of any third parties;
(e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Software available, to any third party.
10.5. In case of a breach of Customer of this Clause 10 all rights granted by Humanitec to Customer hereunder shall automatically and immediately revert to Humanitec and any further use of the Software shall constitute an infringement of copyright.
11. MAINTENANCE & RIGHTS IN CASE OF DEFECTS
11.1. The services and Software provided by Humanitec shall be substantially in accordance with the description in this Agreement and/or its Schedules attached hereto. Rights in case of defect shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics and in the case of just slight impairment of use.
11.2. In case of defects of updated, upgraded or new versions, the right of defect shall be limited to the new features of the update, upgrade or new version of the Software compared to the previous version release.
11.3. Customer shall immediately report to Humanitec any defects of the Software.
11.4. Customer’s claims against Humanitec under this Agreement because of defects are subject to a limitation period of twelve (12) months starting with the first access to the Software.
11.5. Any claims for damages are subject to the limitations set forth under Clause 13.
11.6. The Parties may enter into a separate service level agreement. Humanitec reserves the right to make such separate service level agreement mandatory for Customer.
12.1. Each Party warrants to the other that:
(a) it has the requisite corporate authority to enter into this Agreement and perform its obligations under this Agreement, and this Agreement does not conflict with any other agreement or obligation by which it is bound; and
(b) it shall comply with all relevant laws and regulatory requirements, and obtain and maintain for the Term all permits and licenses applicable or necessary for the performance of its obligations under this Agreement.
12.2. Notwithstanding the above, a Party shall promptly bring to the attention of the other, as the case may be, any information coming to its attention, that the provision of any part of the Software pursuant to this Agreement may infringe any Intellectual Property Rights, moral rights or other rights of a third party. In such event, the Parties shall mutually decide whether the provision of the Software or any part of them in question ought to be suspended until the matter is resolved.
13. LIMITATION OF LIABILITY
13.1. To the extent permitted by law, except as set forth below, in no event will the aggregate liability of Humanitec for damages, direct or otherwise, arising out of or in connection with this Agreement exceed the total value of the fees paid and payable by Customer to Humanitec for the applicable License Period prior to the date on which such liability arose, except that in the event that such liability arises at any time during the Initial Term, it will not exceed the total value of fees paid and payable by Customer to Humanitec for the Initial Term.
13.2. To the extent permitted by law, except as set forth below, any and all of Customer’s claims against Humanitec under this Agreement are subject to a limitation period of twelve (12) months after the damage has occurred.
13.3. Humanitec shall only be liable for any loss or damages caused by willful intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit), unless
- in cases of damages that result from injury to life, body or health;
- such loss or damage is caused by the infringement of a fundamental contractual duty by Humanitec, which is indispensible for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose, whereas such loss or damage is limited to the foreseeable damage at the time of the infringement;
- in case of liability provided by law, as under the Product Liability Act (Produkthaftungsgesetz);
- in cases of liability due to a guarantee.
13.4. The limitations and/or restrictions of Humanitec’s liability shall also apply to the personal liability of its legal representatives, officers, employees, assistants in performance and agents.
14. PRIVACY AND DATA; USE OF CUSTOMER’s DATA
14.3. This right to use such Customer Data according to Sub-Clause 14.2 shall survive the termination of the ToU and/or this Agreement.
15.1. Both Parties agree not to, and shall ensure that their employees, agents and advisors do not, disclose to third parties, nor use for any purpose other than as contemplated in this Agreement, any confidential or proprietary information arising or disclosed pursuant to this Agreement (including but not limited to the terms of this Agreement, the Parties’ trade secrets and information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), except: (i) with the prior written permission of the Party to whom such information belongs; (ii) where the information is already known to, or obtained by independent means, or independently developed without reference to the other Party’s confidential information, by the recipient; (iii) is already in the public domain through no fault of the recipient; (iv) the recipient receives from a third person free to make such disclosure without breach of any legal obligation; or (v) the disclosure by both Parties to an affiliated company (in the meaning of sections 15 et seqq AktG) of either Party.
15.2. This Clause 15 shall survive the termination of this Agreement for three (3) years after such termination. Notwithstanding the foregoing, a recipient may disclose confidential information of the other Party if required to do so by law, court order or request by any government or regulatory authority. In any of those events, the recipient will in advance and promptly inform the other Party about the requirement or respectively the request for disclosure.
15.3. The Parties shall indemnify and hold each other harmless for any loss, damage, costs, expenses and liabilities that one party may suffer or incur as a result of a breach by the other party of the provisions of this Clause 15 (Confidentiality), if the respective Party is responsible for the respective breach (“Vertreten müssen”).
16. TERMINATION & CONSEQUENCES
16.1. In addition to any other remedy available at law or in equity, either Party may terminate this Agreement immediately upon written notice:
(a) if the other Party breaches any warranty or material obligation of this Agreement and where such breach is curable fails to cure the breach within twenty (20) bank working days (Berlin) from the receipt of a written request to cure from the non-breaching Party; or
(b) if the other Party ceases or threatens to cease to carry on all or a substantial part of its business, or becomes insolvent, or makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for its business or the Party’s property, or an order is made for the winding up of it (other than for the purposes of amalgamation or reconstruction).
16.2. Humanitec shall be particularly entitled to immediately terminate this Agreement upon written notice if Customer is in default (“Verzug”) of payment of any fees for a period of more than six (6) weeks regarding annual payment of License Fee or 15 days regarding monthly payment of License Fee.
16.3. Promptly upon termination of this Agreement and in any event within 30 days of termination each Party shall, if requested by the other Party, return or destroy all confidential and proprietary information referred to in Clause 15 (Confidentiality).
16.4. The termination of this Agreement for any reason whatsoever shall not affect any rights or liabilities that have accrued prior to or upon termination, nor shall it affect any Clauses or Sub-Clauses which are intended expressly or impliedly to continue after termination.
16.5. In case of the termination of the Agreement, any rights of use granted to Customer for the Software shall expire immediately and Customer shall cease to use the Software.
16.6. In case of the effective termination of the Agreement, which has not been caused by the infringement of a contract duty of Customer, Humanitec will refund any prepaid fees to Customer pro rata for the remaining time of the Term. In all other cases Customer cannot claim any refunds.
16.7. Upon the end of the License Period and/or termination of this Agreement Humanitec may – at its sole discretion – at least in text form (section 126b BGB) offer Customer the option for a ‘read-only’ access of the Admin Account of the Software, only displaying data of Customer before the respective end date without any option to further backup, download and/or edit, up to a maximum period of five (5) years after the respective end date of the License Period or termination date of this Agreement. In such event of a ‘read-only’ access Clause 4, 8, 13, 14, 15 18 and 19 of this Agreement shall apply mutatis mutandis.
17. FORCE MAJEURE
A Party will not be liable to the other for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control. The Party so affected shall as soon as practicable:
(a) notify the other Party of such fact and of the period of its continuance and consequences which are expected; and
(b) take all reasonable action to minimise the consequences of the relevant events and to resume due performance of the obligations excused as soon as practicable.
18. ASSIGNMENT OF THE AGREEMENT
18.1. Unless otherwise agreed in this section, Customer may not assign any of its claims or rights under the Agreement or the entire Agreement without the prior written consent of Humanitec.
18.2. A License does not cover products or business entities, including employees, acquired by Customer after acquiring the respective License. If Customer wishes to expand the License for such new products and/or entities, the Parties need to adjust the License conditions and fees accordingly in advance.
18.3. In the event that Customer sells a part of its company, Customer is allowed to assign the current License to the new owner of the divested entity in order for it to continue to use the Software for the remaining time of the current Term, but Customer remains responsible for the duly execution of the respective License.
18.4. Humanitec shall be entitled to assign its rights and duties under the Agreement, either in whole or in part, without prior consent, to any other entity. In the event of such an assignment Humanitec will remain fully responsible for the conduct of the assignee.
19.1. Notice details: All notices by Humanitec to Customer will be delivered to the addresses given during the registration process on the Website and within the Admin Account with functions amended from time to time. All notices by Customer to Humanitec shall be made via the Admin Account or, only if such function is not available through the Admin Account, via email to email@example.com.
19.2. Notices will be effective upon receipt if personally delivered, or on the third bank working day (Berlin) following the date of mailing or emailing. Any change of address of a Party will be promptly communicated in writing to the other Party. A Party may change its address for notice by providing written notice of such change to the other Party pursuant to this Sub-Clause 19.1.
19.3. Costs. Each Party shall bear its own costs in connection with the execution of this Agreement and in relation to the fulfillment of its obligations under this Agreement.
19.4. Amendments, Waivers. This Agreement may not be amended, modified or superseded, unless expressly agreed to by written instrument executed by both Parties, unless a stricter form is required by law. No provision of this Agreement may be waived except by an instrument in writing signed by the Party against whom the waiver is to be effective. If an instrument is delivered by any means of telecommunication, it shall only be deemed to be written, if the delivered copy bears the signature of the issuer. The failure of either Party at any time or times to require full performance of any provision of this Agreement will in no manner affect the right of such Party at a later time to enforce the same.
19.5. Written notice. A (i) written instrument signed by the respective Party and delivered by letter, scan (email) or fax to the other Party or (ii) a notice made to the contact details pursuant to Sub-Clause 19.1 shall each be deemed a written notice within the meaning of this Agreement;
19.6. Severability. If any of the provisions of this Agreement should be or become invalid or unenforceable in whole or in part for whatever reason, including a violation of any laws applicable to it, the validity of the other provisions hereof is not affected. In that case the invalid or unenforceable provision is deemed to be replaced by such valid and enforceable provision or arrangement that corresponds as closely as possible to the invalid or unenforceable provision and to the parties’ economic aims pursued by and reflected in this Agreement. The same applies in the event that this Agreement does not contain a provision necessary to achieve the economic purpose as expressed herein (Regelungslücke).
19.7. Entire Agreement. This Agreement contains the Parties’ entire understanding and supersedes all prior agreements in connection with the subject matter of this Agreement.
19.8. Schedules; Priority of documents. Any annex or Schedule attached hereto shall become an integral part of this Agreement. If an annex and/or Schedule is left blank or is missing, this Agreement (and its remaining annexes or Schedules) shall remain effective. In the event of any inconsistency between the terms of this Agreement and those in a Schedule, the latter shall prevail.
19.9. Controlling Law, Place of Jurisdiction. This Agreement will be governed by the laws of the Federal Republic of Germany, excluding any conflict of law rules as well as the United Nations Convention on Contracts for the International Sale of Goods. Both Parties submit to the exclusive jurisdiction of the courts of Berlin.