of TolaData GmbH
Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if and insofar as TolaData has expressly agreed to their validity in writing.
1.1 TolaData 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.
1.2 This Agreement sets forth the general terms and conditions under which TolaData provides Customer with the right to use the software in its current software version for access via telecommunication connection as a Software as a Service (“SaaS”) application for the duration of this contract.
1.3 TolaData and Customer agree that Customer alone is the controller of all (personal) data that Customer processes through the Software. For details please refer to Clause 14.
2.1 In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
- “Agreement” means the agreement relating to the ToU as amended from time to time including all its annexes and individual agreements;
- “License” means the license granted by TolaData 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 Sheet” means the individual offer which defines the scope of the License with regard to the number of Customer’s employees and/or users, the License Fee and, as the case may be, the date of the beginning of the License Period;
- “Number of 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;
- “User(s)” means users of the Software on the Customer’s end regardless whether these are employees or third parties making use of the Software on behalf or with knowledge of the Customer.
2.2 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.
3. SOFTWARE SPECIFICATION
3.1 TolaData has developed software components and programs as software-as-a-service.
3.2 The Software is a monitoring, evaluation and program management tool designed to track Customer-organisation’s results of programs and projects. Modules included are among others activity plans, geolocation mapping, results frameworks, indicator plans, data collection form-builder, portfolio overview and dashboards.
3.3 TolaData makes the Software in its current version available to Customer via the Internet only.
3.4 TolaData may offer API(s) for optional third party integrations within TolaData’s sole discretion or to be agreed between TolaData and Customer separately at least in writing. TolaData does not take any responsibility in case that the connections do not work with Customer’s tools (whichever tools may potentially be used).
4. COMMENCEMENT & DURATION
4.1 The use of the Software requires the registration as well as the set-up of an account on the Website by Customer (the “Admin Account”). There is no legal entitlement to admission to the platform.
4.2 Customer has to provide the data required for registration completely and truthfully and through a valid legal representative of Customer, as applicable. TolaData reserves the right to ask for proof and/or further documentation by Customer, if required. In principle, however, TolaData is not obliged to verify the identity and authorization of representation.
4.3 Registration is completed and the contract concluded by activating the registration link in the e-mail that TolaData sends to Customer after filling in and submitting the registration form.
4.4 Alternatively the Agreement based on the ToU shall come into existence upon receipt of the acceptance of these ToU by Customer in writing (signed scan provided via email sufficient) by TolaData, whereas Customer shall individually accept any additional documents provided by TolaData also in writing (signed scan provided via email sufficient) and not be allowed to make any changes to these ToU and/or such additional documents.
4.5 Unless otherwise agreed in a separate License Sheet, this Agreement will take effect from the date of successful registration of Customer and shall last at least one year or one month, as applicable, until terminated (the “Initial Term”). The Agreement will automatically renew for additional terms of the length of the Initial Term, unless terminated to the end of the then current term, as applicable (the Initial Term and a renewed term each a “License Period”).
5.1 Subject to the ToA, and for the duration of the License Period, TolaData grants Customer a non-exclusive license to use the Software (“License”). The License shall be granted as a non-assignable, non-transferable, with no right to sub-license, worldwide limited right to use the Software via the internet. 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 Users as well as Additional Licenses as agreed in this Agreement or specified in the License Sheet. In order to increase the Number of Users, Additional Licenses have to be obtained subject to and in accordance with Clause 6.
5.3 As part of the License, Customer shall be entitled to extract and copy the data within the Software.
5.4 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.
5.5 The License does not include any installation, configuration or support services unless individually agreed in the License Sheet.
5.6 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 TolaData 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 TolaData.
6. ADDITIONAL LICENSES
6.1 The Customer may subscribe for additional licenses by increasing the Number of Users at any time subject to and in accordance with the following (each an “Additional License”, together “Additional Licenses”) according to this Clause and the price list set forth in the License Sheet and/or on Toladata’s website.
6.2 The Customer may change the Number of Users through the Admin Account only by submitting a respective request to TolaData pursuant to the terms of this Clause 6 including the updated Number of Users.
6.3 Any increase in Number of Users comes into effect immediately and will increase the License Fee accordingly as the case may be. Any month started will be calculated as a full month. Any decrease in Number of Users will have a possible effect in the License Fee in the following applicable License Period.
6.4 Additional Licenses will be charged per additional user as set out in the License Sheet and will increase the applicable License Fee accordingly.
6.5 Upon respective request, Customer is obliged to give TolaData information without hesitation about the number of persons, who actually use the Software and are hence considered Users. Such information shall be given at least in text form (section 126b BGB) and in good faith.
6.6 For any Additional License, these ToU shall apply accordingly.
7. TECHNICAL SERVICES AND AVAILABILITY
7.1 TolaData makes the Software available to Customer via the internet. TolaData is entitled to link the use of existing and new functions to future defined requirements.
7.2 TolaData shall be entitled to restrict access to the Software for maintenance work and updates to a necessary minimum. Regular maintenance periods will be published on Toladata’s website.
7.3 TolaData is entitled to limit access the Software at short notice if there is an important reason. An important reason exists in particular in the event of massive, unforeseen network traffic on the servers, in particular in the event of DoD/DDoS attacks or (attempted) illegal intrusion by third parties into the Software system.
7.4 Data communication via the internet cannot be guaranteed to be error-free and/or available at all times according to the current state of the art. TolaData is not liable for the constant and uninterrupted availability of the Software.
7.5 Customer may only use the Software for the services according to Clause 3. Customer shall ensure that the way in which the Software is used does not lead to technical overload or instability. The Customer must refrain from any actions which are carried out directly or indirectly by third parties or software and which may lead to an impairment of the technical availability of the Software.
7.6 The obligation to provide the software described in Clause 3 is fulfilled by TolaData if the use of the Software is available in a monthly average (30 days) of 99%. The available use also includes periods of interruptions of parts of the infrastructure necessary for the availability, which are not to be provided by TolaData or its vicarious agents, as well as disturbances or other events, which are not (co-)caused by TolaData or its vicarious agents.
8. SUPPLEMENTARY SERVICES
8.1 Upon a successful registration by Customer, TolaData will send to Customer via email access information that Customer needs for the use of the Software..
8.2 Upon respective request by Customer and subject to a separate agreement between Customer and TolaData within TolaData’s sole discretion, TolaData may provide supplementary services (the “Supplementary Services”).
8.3 Description relating to Supplementary Services
|Self-service Training and Support Content||Online training and support material|
|Hands-on session||2 hour session on getting started with the TolaData team|
|Facilitated Training||Online guided training with the TolaData team|
|Dedicated Success Manager/Quarterly Reviews||Dedicated contact person from the TolaData team|
|Configuration||Organizational assessment, system configuration|
|Data Migration||System mapping and migration (existing export of data in a standard format i.e.(Csv, Excel, or JSON) and/or an web accessible system to import)|
|Tailored Training||Customized in-person training|
8.4 Customer shall provide any (technical or resource) requirement or information to and communicate with TolaData to the extent necessary to provide the Supplementary Services.
9. TECHNICAL REQUIREMENTS
9.1 The Software is accessible using the latest version of a Chromium based browser and a stable internet connection.
9.2 In order to use the Software and License the Customer must check all technical details and conditions on Toladata’s website and/or the License Sheet as well as any technical requirements for API(s) for optional third party integrations, if applicable.
9.3 The Customer shall be solely responsible for the fulfillment of the Technical Requirements. TolaData does not owe and/or provide any consultancy services in connection therewith if not otherwise agreed in the License Sheet.
9.4 Customer shall provide any information to and communicate with TolaData to the extent necessary to use the Software as agreed herein.
10. FEES AND PAYMENT
10.1 Customer shall pay to TolaData the License Fee and Supplementary Service Fee if applicable, as set out on TolaData’s website or in the License Sheet.
10.2 Any fees are excluding applicable taxes (VAT) and travel costs (if any).
10.3 The License Fee is payable in advance and in full at the beginning of the respective License Period unless agreed otherwise between TolaData and Customer.
10.4 Any travel costs by TolaData related to the Supplementary Services shall be fully reimbursed to TolaData upon receipt of respective invoices or other notices to Customer.
10.5 TolaData is entitled to adjust the License Fee for the future, in particular to increase it. TolaData shall notify Customer of the price increase at the latest eight (8) weeks before it becomes effective. If Customer does not disagree in a written notice or via email within 2 weeks after the notification this is deemed to be an agreement with the changes. TolaData will indicate this in the notice. If Customer makes use of his right to dissent the modified prices, TolaData is entitled to terminate the Agreement within a period of three months towards the end of a calendar month.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Except for the rights granted hereunder, the Parties agree that all Intellectual Property Rights in the Software shall remain with TolaData.
11.2 Customer shall use the Software in accordance with the intended purpose of the Software, the provisions of these ToU, in accordance with any applicable statues, laws, and/or regulations and within the agreed scope of the Software
11.3 Insofar as no further use is expressly permitted in these ToU or in the License Sheet or unless further use is enabled within the software through corresponding functionality,
- The contents available via the Software may only be retrieved and displayed online for lawful purposes. The right of use is limited to the duration of the contractual licensing;
- It is forbidden to edit, change, translate, present or demonstrate, publish, exhibit, duplicate or distribute the Software in whole or in part. It is also forbidden to remove or change copyright notices, logos and other signs or trademarks.
11.4 Mandatory legal rights (including the duplication for private and other own use according to § 53 UrhG) remain unaffected.
11.5 In case of a breach of Customer of this Clause all rights granted by TolaData to Customer hereunder shall automatically and immediately revert to TolaData and any further use of the Software shall constitute an infringement of copyright.
12. MAINTENANCE & RIGHTS IN CASE OF UNAVAILABILITY
12.1 Liability independent of negligence according to § 536a BGB is excluded. The services and Software provided by TolaData shall be substantially in accordance with the description in this Agreement and/or its License Sheet. 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.
12.2 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.
12.3 TolaData’s failure to maintain the Service availability level set forth in Section 2 of this SLA during a calendar month shall entitle Customer to receive the Service Credits as further described below, calculated on the basis of and added to the monthly service charge for the affected Service:
|Service Availability||Service Credit Percentage|
|< 99 %||5 %|
|< 95 %||15 %|
|< 90 %||25 %|
12.4 Customer shall immediately report to TolaData any defects of the Software.
12.5 Customer’s claims against TolaData under this Agreement because of defects are subject to a limitation period of twelve (12) months starting with the first access to the Software.
12.6 Any claims for damages are subject to the limitations set forth under Clause 13.
12.7 The Parties may enter into a separate service level agreement. TolaData reserves the right to make such separate service level agreement mandatory for Customer.
13. LIMITATION OF LIABILITY
13.1 TolaData is liable for willful intent and gross negligence. For simple negligence, TolaData is liable for damages resulting from injury to life, limb or health of persons.
13.2 TolaData is otherwise liable for simple negligence only in the event of a breach of an essential contractual obligation, the fulfillment of which is essential to the proper execution of the contract and on which Customer may rely regularly (cardinal obligation), and the amount limited to the foreseeable and contract-typical damages at the time of entering the contract.
13.3 This limitation of liability also applies to the agents of TolaData.
13.4 Otherwise, the provisions of service contract law pursuant to §§ 611 et seq. of the German Civil Code shall apply.
14. PRIVACY & USE OF DATA
14.1 Each Party shall comply with the applicable data protection laws. If required, the Parties shall enter into separate data processing agreement, which can be downloaded here.
14.4 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 The parties undertake to treat as confidential all information and documents which are legally protected or which contain business or trade secrets or which are designated as confidential, and which they receive or become aware of before or during the execution of the contract from the respective other contractual partner, even beyond the end of the contract, unless they are publicly known without violation of a duty of confidentiality. The parties shall keep and secure all such documents in such a way that access by third parties is excluded.
15.2 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 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.
16.2 The duration of the contract and the right of the Parties of an ordinary termination ae regulated in Clause 4.5. The right to terminate the contract without notice for an important reason shall not be affected. An important reason for termination by TolaData shall be in particular if
- the Customer, despite a warning, fails to discharge its obligation to pay the remuneration;
- the Customer falls behind with the payment of the monthly remuneration by an amount equal to the remuneration for two months;
- a claim is asserted against TolaData by a third party due to an alleged infringement of a right in connection with its activities for the Customer; or
- the Customer seriously breaches its contractual duty to cooperate or, in the case of a less serious breach of contract, fails to stop the behavior complained about despite appropriate notice
16.3 An important reason entitling the Customer to terminate the contract because of defects of the Software shall exist only in the case of a substantial defect and if TolaData fails to remedy the defect or grant access to acceptable alternatives within a reasonable preclusive time limit. A defect of the Software shall be regarded as substantial only if an essential component of the Software does not, or basically not, function.
16.4 TolaData shall be entitled to terminate contracts or parts of contracts that are free of charge for the Customer (e.g. test use) without any notice any time.
16.5 Any notice of termination shall be valid only if made in written form (Section 126 of the German Civil Code). A notice of termination via E-Mail is excluded.
16.6 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.
16.7 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).
16.8 In case of the effective termination of the Agreement, which has not been caused by the infringement of a contract duty of Customer, TolaData 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.
16.9 Upon the end of the License Period and/or termination of this Agreement TolaData may – at its sole discretion – grant 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 this Agreement shall apply mutatis mutandis.
17. FORCE MAJEURE
17.1 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 minimize the consequences of the relevant events and to resume due performance of the obligations excused as soon as practicable.
18.1 Notice details: Unless otherwise agreed in the License Sheet all notices by TolaData 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 TolaData 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.
18.2 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 18.2.
18.3 TolaData is entitled to amend these ToU and shall notify Customer of the change at the latest four (4) weeks before it becomes effective. If Customer does not disagree in a written notice or via email within 2 weeks after the notification this is deemed to be an agreement with the changes. TolaData will indicate this in the notice. If Customer makes use of his right to dissent the modified prices, TolaData is entitled to terminate the Agreement within a period of three months towards the end of a calendar month.
18.4 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.
18.5 Amendments or supplements to these terms and conditions must be made in writing or in text form. This also applies to the cancellation of the written or text form requirement.
18.6 Severability. Should individual provisions of this contract be invalid or contradict the statutory provisions, this shall not affect the rest of the contract. The ineffective provision shall be replaced by the parties by a legally effective provision which comes closest to the economic sense and purpose of the ineffective provision. The foregoing provision shall apply mutatis mutandis in the event of loopholes.
18.7 Annexes Any annex attached hereto shall become an integral part of this Agreement. If an annex is left blank or is missing, this Agreement (and its remaining annexes) shall remain effective. In the event of any inconsistency between the terms of this Agreement and those in a Schedule, the latter shall prevail.
18.8 Governing Law, Place of Jurisdiction. The law of the Federal Republic of Germany shall apply. Mandatory provisions of the state in which the user has his habitual residence shall remain unaffected. TolaData’s registered office shall be agreed as the place of jurisdiction and place of performance for all disputes arising from this contract. TolaData shall also be entitled to sue at the place of jurisdiction of the entrepreneur.