End User License Agreement for the Use of Services in Connection with the Contentserv SaaS Platform (EULA)
The Contentserv Platform is used to manage product, brand, and marketing content ("Contentserv Platform") and is operated by Contentserv GmbH, Werner-von-Siemens-Straße 1, 85296 Rohrbach, Germany ("Contentserv") in the form of Software-as-a-Service (“SaaS”).
You have purchased access to services related to the Contentserv Platform as an End User from Contentserv or any of its affiliates. Use of these services is governed by this End User License Agreement ("EULA"), which is entered into between you, the End User, and Contentserv ("Business-to-Business").You may not use the Contentserv Platform without agreeing to this EULA. In your contractual agreement with Contentserv, reference has already been made to the inclusion and validity of this EULA as the legal basis for the contractual services in connection with the Contentserv Platform.
Please read the following provisions of this EULA carefully:
1. Subject Matter of the Contract1.1. The subject matter of this EULA is
- the provision of the paid functions of the Contentserv Platform agreed upon with Contentserv in accordance with the Software-as-a-Service Agreement for the use of the Contentserv Platform ("SaaS-Contract") for the End User's own access and for use for his own business processes via the Internet in the form of Software-as-a-Service, as well as the granting of the usage rights by Contentserv required for this purpose, as well as
the granting of storage space necessary for using the Contentserv Platform on a server operated by Contentserv itself or by a subcontractor of Contentserv
in accordance with the following provisions (collectively referred to as the "Contractual Services").
1.2. The owed quality of the contractual services results conclusively from the SaaS-Contract, from this EULA, and the user documentation for the Contentserv Platform.
1.3. The terms of this EULA will also apply to changes made by Contentserv to the Contentserv Platform, such as patches, updates, upgrades, or other necessary changes (collectively referred to as the "Updates"), which Contentserv may perform at any time, even without the End User's consent, provided that the basic functionality of the Contentserv Platform as agreed upon in the SaaS-Contract is maintained.
1.4. The contractual services shall be provided exclusively on the basis of this EULA and the agreements according to the SaaS-Contract. The terms and conditions of the End User shall not apply, even if Contentserv does not separately object to their validity. Deviating or contradictory terms and conditions of the End User shall be valid only if they have been accepted in writing by Contentserv.
2. Granting of Rights of Use
2.1. Subject to the full payment of the due remuneration that has been agreed with Contentserv, Contentserv grants to the End User the non-exclusive, non-transferable, and non-sublicensable right, limited to the term of this EULA to access the Contentserv Platform via the Internet, in accordance with the following provisions, and to use the functions of the Contentserv Platform, as well as the associated user documentation, in the form of Software-as-a-Service for its own data in its business operations. Any updates will be covered by the aforementioned grant of rights. The End User is not granted any rights to the Contentserv Platform itself (in particular, to its source codes) or to the infrastructure services that are provided at the respective data center.
2.2. The aforementioned granting of rights shall be made against payment in accordance with the agreements between the End User and Contentserv in the SaaS-Contract.
3. Access to the Contentserv Platform, Authorized Users
3.1. The platform may be accessed by means of a common browser in accordance with the technical requirements that have been agreed upon with Contentserv. For this purpose, the End User shall be provided with corresponding access data or shall be given the opportunity to set up access data himself (collectively referred to as "access data").
3.2. The Contentserv Platform may only be used by the management and employees of either the End User or an affiliated company (§ 15 German Stock Corporation Act "AktG") of the End User in the number agreed in the SaaS Contract ("Authorized Users"). The End User will set up access data exclusively for the use of the Contentserv Platform by Authorized Users and disclose it only to such Authorized Users. Authorized Users shall be entitled to the rights of use granted under this EULA but will not be entitled to make any claims against Contentserv themselves. Only the End User shall be entitled to do so.
3.3. Any use of the access data and the contractual services provided to the End User, including use in breach of contract and otherwise unauthorized use, is deemed to be used on behalf of the End User in the relationship with Contentserv unless the End User is not responsible for the unauthorized use.
4. Usage Restrictions
4.1. The End User may access and use the Contentserv Platform only after agreeing to the terms of this EULA.
4.2. The End User is not permitted to use the contractual services beyond the scope of Clause 2. Subject to the mandatory rights to which the End User is entitled by law, the End User is not, in particular, authorized to
reproduce, distribute, or make publicly available the Contentserv Platform, the underlying software or parts thereof, and the associated user documentation, except to the extent necessary for the use of the Contentserv Platform as agreed, whereby the necessary reproduction includes
the displaying and running, as well as the loading of the underlying software or parts thereof into the main memory of the IT infrastructure used by the End User in accordance with Clause 5.1, but not any installation or storage, even temporary, on local data storage media,
the use of the Contentserv Platform for testing and in-house presentation purposes;
edit, modify, reverse engineer, decompile, disassemble, or otherwise determine the source code underlying the Contentserv Platform or software parts thereof, or to create derivative works without prejudice to the mandatory statutory provisions of Sections 69d and 69e of the German Copyright Act (UrhG);
remove, obscure, or alter the copyright notices and similar information;
grant unauthorized third parties access to the Contentserv Platform or its functions, or to tolerate such access; in particular, the End User is not permitted to license, sell, temporarily transfer, rent, or lend the underlying software or parts thereof for commercial purposes;
to use the Contentserv Platform in a manner that offends common decency, in particular, refers to pornography, content that is harmful to minors or glorifies violence, propaganda material of anti-constitutional organizations and parties, weapons, drugs, or other products that pose a risk to consumer safety;
access the Contentserv Platform and related systems through means other than the use of access data;
use the Contentserv Platform to post, send or otherwise make available to third parties spam or other content that violates the applicable law or the intellectual property rights or copyrights of third parties;
use the Contentserv Platform or any of its features, in whole or in part, for any unlawful activity or to promote or condone any such activity; or
undertake, promote, or tolerate any action which disrupts or damages the Contentserv Platform or which temporarily or permanently impairs or prevents the use of the Contentserv Platform or by other users.
5. Cooperation Obligations of the End User
5.1. The End User shall be under obligation
to meet the minimum requirements for accessing and using the Contentserv Platform at his own expense and, to this end, to maintain, in particular, a sufficiently dimensioned internet connection, as well as hardware and software ("IT infrastructure") that is compatible with the Contentserv Platform and which is necessary for the use of the contractual services, and to independently carry out suitable integration tests;
- to provide Contentserv with a professionally competent contact person for the operational work in connection with the provisioning of contractual services,
to provide Contentserv with the necessary data, documents, and other information that may be required for the provisioning of the contractual services, whereby the End User shall remain responsible for the accuracy, quality, integrity, legality, reliability, and correctness of the information provided by him;
to use the Contentserv Platform for its own data only;
- to check the data and content for viruses and other malware to a reasonable extent before posting or sending them and to use state-of-the-art protection programs for this purpose;
to make backups of his data that are used in connection with the use of the Contentserv Platform at suitable intervals and to keep these backups readily available;
to protect access data adequately against access by unauthorized third parties and to bind Authorized Users in advance to treat the access data confidentially and to comply with the usage restrictions pursuant to Clause 4;
to ensure as far as possible by means of technical measures, training, instructions, and controls that Authorized Users and third parties do not use the contractual services in contravention of the agreement and the law;
- to observe the applicable law and, in particular, the applicable data protection regulations when using the contractual services; and
to inform Contentserv immediately in text or written form about any unauthorized access to the Access Data or to the Contentserv Platform and, where relevant, to change the affected Access Data or have it changed; this will also be applicable, furthermore, if the End User becomes aware of a breach of this EULA by Authorized Users or by third parties.
6. Availability and Performance Deficiencies
6.1. The average availability of the contractual services that are provided is derived from the SaaS-Contract and its appendices.
6.2. Subject to the provisions of Clause 7.1,
in the event of a merely insignificant reduction in the suitability of the contractual services for the use as agreed with Contentserv, the End User shall have no warranty claims against Contentserv;
the strict and no-fault liability of Contentserv arising from § 536a Sec. 1, 1. Alt. German Civil Code (Bürgerliches Gesetzbuch, "BGB") due to defects in the contractual services which existed already at the time of concluding this EULA, is excluded.
In all other respects, the warranty for defects shall be provided in accordance with the SaaS-Contract and its appendices.
7.1. Contentserv has unlimited liability
in the event of intent and gross negligence,
in the event of injury to life, limb, or health,
in the event of fraudulently concealed defects in the contractual services,
insofar as Contentserv has assumed a guarantee, as well as
in accordance with the provisions of the Product Liability Act and other liabilities mandated by statutes.
7.3. Contentserv shall be liable for the loss of data and its recovery in accordance with Sections 7.1 and 7.2 only in as far as a such loss could not have been avoided by appropriate data backup measures on the part of the End User. This liability shall be limited in the extent to the expenditure which would have been incurred by the End User for the recovery of the data if it had been backed up properly and regularly and in a manner commensurate with its significance. This shall not apply if the data backup was prevented or impossible for reasons for which Contentserv is responsible.
7.6. The above limitations of liability shall apply mutatis mutandis to the personal liability of Contentserv's officers, employees, representatives, agents, licensors, and affiliated companies.
8. End User Data; Data Protection
8.1. The storage of data of the End User is a prerequisite and constitutes the subject of the use of the Contentserv Platform. The End User, therefore, grants to Contentserv the non-exclusive right, limited in time in accordance with Sec. 2 of this clause, to use the data that is provided by the End User via the Contentserv Platform (including the right to process and reproduce it), but limited to the purpose of enabling Contentserv to provide the contractual services, to analyze and optimize them and to develop new services.
8.2. In the event that personal data is processed under this EULA subject to the (EU) Regulation 2016/679 (General Data Protection Regulation, GDPR), this shall be done on behalf of the End User by Contentserv in accordance with the order processing agreement concluded between the End User and Contentserv (annex to the SaaS-Contract).
9. Force Majeure
In cases of force majeure, the affected party shall be released from their performance obligations under this EULA for the duration of the event and to the extent that it affects the party. Force majeure refers to any event beyond the area of influence of the respective party, due to which the party is prevented from fulfilling its obligations in whole or in part, and includes fire damage, lightning strikes, floods, strikes, and lawful lock-outs, as well as operational disruptions or official orders for which the party is not responsible. The affected party shall immediately notify the other party of the occurrence and cessation of the force majeure and shall make every effort to remedy the force majeure and limit its effects as far as possible. The right of each party to terminate this EULA for a good cause in the event of prolonged force majeure lasting more than six (6) weeks shall remain unaffected.
10. Contractual Term
10.1. This EULA comes into effect on the date on which the End User first uses the Contentserv Platform or any related contractual service as agreed in the SaaS-Contract.
10.2. This EULA shall end at the end of the term provided in the SaaS-Contract for the provisioning of the contractual services unless it has been terminated earlier for a cause. Every notice of termination must be issued in writing.
10.3. Upon termination of this EULA, the use of the contractual services by the End User shall cease immediately and completely.
11. Final Provisions
11.1. Notes in this EULA on the validity of statutory provisions are meant solely for the purpose of clarification. The statutory provisions shall therefore apply even without such clarification, provided these provisions are not actually amended or expressly excluded in this EULA.
11.2. Contentserv reserves the right to change this EULA at any time, provided that this is necessary for important reasons, in particular, due to a changed legal situation or on account of rulings of the Supreme Court, technical changes, or further developments, new organizational requirements of mass traffic, regulatory gaps, a change in market conditions or other equivalent reasons, and provided that this does not subject the End User to an unreasonable disadvantage. Changes to this EULA will be communicated to the End User in writing or in text form. The changes shall become effective if the End User does not object to the notice of change in writing or in text form within a period of six (6) weeks beginning with its receipt, and the End User was informed of this legal consequence in the notice of the change.
11.3. The End User may only offset those claims against Contentserv arising from this EULA that are undisputed, legally established, or ready for decision and may exercise a right of retention only on the basis of such claims.
11.4. The parties are aware that the contractual services may be subject to export and import restrictions. In particular, the contractual services may be subject to licensing obligations, or the use of the software or related technologies abroad may be subject to restrictions. The End User shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union, and the United States of America, as well as with all other relevant regulations. The fulfillment of the contract by Contentserv is subject to the proviso that there are no obstacles to fulfillment due to national and international regulations of export and import law or due to any other statutory regulations.
11.5. This EULA shall be governed by German law under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980 (UN Sales Convention).
11.6. The place of performance is the registered office of Contentserv. The exclusive court of jurisdiction is Rohrbach/Ilm, Germany, provided that each party to this EULA is a merchant or a legal entity under public law or has no other general place of jurisdiction within Germany.
End User License Agreement for the Use of the Contentserv On-premises Solution (EULA)
This EULA is a legal contract between you (either as a natural or legal person) and Contentserv Swiss GmbH, Contentserv GmbH, or such other affiliates and group companies of Contentserv for “Contentserv Software,” which comprises the computer software, the corresponding media, printed material, and documentation in the online or electronic format ”Software”). At the time of purchase of the Software and/or at the latest when you install, copy, or use the Software in any other way, you agree to be bound to the provisions of this EULA. If you do not agree to the provisions of this EULA, you are not entitled to install or use the Software.
§ 1 Definition of Terms
(01) The "User" of Contentserv Software is whoever acquires the Software either as a direct contractual partner of Contentserv or as a contractual partner of a reseller or provider who acquires Software within the framework of a sales or lease contract or rental agreement.
(02) In the following, the term “Manufacturer” refers to Contentserv.
(03) Software components are individual components and modules of the Software
§ 2 Scope of Use
(01) The Manufacturer entitles the user to the simple, non-exclusive right and, in terms of time, non-restricted right to use the Software purchased by the User within the scope stipulated in the sales or lease contract or rental agreement. The scope of use is determined in particular according to the specific Software components and Users. There is no connection between this granting of the right of use and the additional acquisition of rights.
(02) The Software is licensed per physical server and project and is thus only permitted to be used per licensed server.
(03) The User must ensure that the restrictions for use are complied with. The User is permitted to use the Software and service as limited to the number and volumes stated in the order form. Named User credentials shall not be used by more than one individual but may be transferred from one individual to another if the original User is no longer permitted to use them in accordance with the procedure set out therein. Any change in usage other than what is mentioned in the order form will be subject to additional fees/ charges as may be invoiced by the Manufacturer according to the Manufacturer’s price list valid at that time.
(04) The User is only entitled to transfer the Software if the recipient agrees to this EULA. The recipient must confirm its agreement to the EULA by means of a statutory declaration which is to be served to the Manufacturer. The User must inform the Manufacturer of the recipient’s name and address. The User must ensure that the recipient is made aware of this EULA. The User must hand over the latest update as well as all previous Software versions. The transferring User must hand over all backup copies that are still in its possession to the recipient or destroy them immediately. The transferring User shall observe existing national and international export restrictions which apply to the transfer of Software.
(05) The transfer of the authorization to use in the case of a relationship involving permanent debt (i.e., rental, leasing), which serves the financial or economic interests of the User, is not permitted unless the manufacturer has consented to the transfer in writing. In this case, the contractual partners of the party providing these services must also agree to this EULA, which is applied accordingly. It is up to every provider to ensure that its contractual partners are made aware of the EULA and that they give their consent to it.
(06) In the case of termination of the right of use, the User is obligated either to destroy the original data carriers, all copies of the Software as well as the written material made available to the User or to send it back to the Manufacturer and erase all entries relating to the Software system. The Software and the documentation are not permitted to be made accessible either completely or partially to third parties without the consent of the Manufacturer. This also applies after the termination of this agreement.
§ 3 Copyright and Trademark Rights / Third-party Rights
(01) The User acknowledges the copyright of the Manufacturer and thus the exclusive right of use and right of exploitation to the Software. The exclusive right of use and right of exploitation also exist with regard to Software enhancements or changes that the Manufacturer or authorized representative has made for the user in accordance with the User’s order.
(02) The User acknowledges the trademark rights, name rights, and patent rights of the Manufacturer to the Software and the corresponding documentation. The User is forbidden to remove, alter or otherwise obliterate indications of copyright, existing trademark rights, or source code.
(03) The Software contains licensed third-party software, which is either embedded in the Software or delivered with the Software. The User declares its agreement to the respective end User license provisions and/or EULA of this third-party software.
§ 4 User’s Right of Reproduction
(01) The User is permitted to copy the delivered Software in so far as the particular copy is necessary for the use of the Software in accordance with this agreement. Necessary copies include those required for the installation of the Software from the original data carrier to the mass memory of the hardware being used, as well as those required for the downloading of the Software to the main memory.
(02) Furthermore, the User may make a backup copy for security reasons. As a rule, however, only a single backup copy may be made and kept. The backup copy must be labeled as such.
(03) If for reasons of data security or if in order to ensure the rapid reactivation of the computer system after a system failure, the regular backup of the complete data stock, including the computer programs being used, is essential, the User may make the number of backup copies that are absolutely necessary. The respective data carriers must be labeled accordingly. The backup copies are permitted to be used for archiving purposes only.
§ 5 License Key and Multiple Use
(01) The User must use a license key supplied by the Manufacturer for the application of the entrusted Software and specially licensed Software components.
(02) The User may use the Software on any hardware at its disposal. If the User changes the hardware, however, it must erase the Software and the license key from the previously used hardware and confirm this in writing to the Manufacturer. The User shall then require a new license key.
(03) For the use of special Software components, which are licensed per server, the User must obtain the corresponding number of licenses for the server.
§ 6 User’s Duty to Cooperation
(01) At regular intervals, the Software of the manufacturer searches for updates for the Software components licensed to the User so that the User can be made aware of them. The User shall not make any arrangement in order to prevent or stop the search for updates. Personal data or data which have nothing to do with the Software installation will not be transferred during this process. Updates and other changes to the source code shall not be performed automatically; the decision of whether to perform these changes shall be left up to the User.
(02) In the case that the User is not using the purchased Software components in accordance with the acquired licenses or with the use stipulated in the sales or lease contract or rental agreement, but rather in a way to which it is not entitled, the User shall be obligated to pay the license fees which would have been owed in the case of proper operation in accordance with the contract retroactively. This obligation does not exclude the claim for additional damage or penalties for breach of contract.
§ 7 Decompilation and Program Modification
(01) The User is prohibited from decompiling the provided program code to other code forms or from reverse engineering the different manufacturing steps of the Software in any way, including program modification in the case of Software components whose source code has not been made accessible to the User by the Manufacturer.
(02) The removal or alteration of copyright marks, serial numbers, or other program-identification marks is prohibited.
(03) The removal of copy protection or similar protection routines is not permitted without the written declaration of consent of the Manufacturer.
§ 8 Warranty, Liability
Warranty and liability comply with the General Terms and Conditions of the Manufacturer.
§ 9 Penalties for Breach of Contract
For every infringement of the fundamental obligations based on the individual and contractually existing provisions, the User promises to pay the Manufacturer a contractual penalty in the amount of 10% of the affected license fees; the minimum amount, however, shall be 25,000 €. The User waives the defense that several infringements of the same kind be treated as one single infringement for the purpose of this clause.
§ 10 Final provisions
(01) German law shall apply to all claims arising from this EULA. The provisions of the United Nations Convention for the International Sale of Goods (CISG) shall not apply.
(02) The exclusive place of jurisdiction for all conflicts arising from and in connection with this agreement shall be the district court for Rohrbach / Ilm, provided that a customer is a business person, a corporate body organized under public law, or a special fund under public law.
(03) All agreements which imply a modification, amendment, or clarification of this EULA, as well as special agreements and stipulations, must be set out in writing.
(04) Should a provision of this EULA be invalid, the remaining provisions of this EULA shall maintain their validity. The invalid provision is to be replaced amicably by an appropriate provision with consideration of the specific interests of the contractual parties in order to meet the desired economic intent.