General Terms and Conditions for SNP Hosting
SNP System Scan is designed to determine essential statistical and structural information about an SAP® ERP system. The system scan generates an evaluation that provides a comprehensive overview of the system. SNP hosts a web based system that displays certain reports based on the SNP system scan. Registered users may upload SNP System Scan data files by using the interface of our hosted service. These services are provided as follows:
§1 Applicability and Contract Documents
Except as otherwise agreed, SNP Transformations Deutschland GmbH or any of its affiliated companies providing the services (hereinafter “PROVIDER”) provide Software as a Services (SaaS) to a registered user, whereas user can be person or a duly authorized person acting on behalf of a legal entity (hereinafter “CUSTOMER”) as further detailed in these terms (hereinafter “Terms”).
SNP Hosting Services may include for example data analytics.
Unless modified by individual agreements between the parties, these Terms apply exclusively for SNP Hosting services (hereinafter “Services”).
By using the Services CUSTOMER accepts these Terms in their current version.
§ 2 Scope of Services
PROVIDER provides the Services described on the webpage.
For the duration of the respective term, PROVIDER grants to CUSTOMER a non-exclusive, non-transferable right to use the Services solely for its internal business purposes and in accordance with the Terms.
To use the Services the CUSTOMER will receive a link from the PROVIDER to log in as a user. Within the registration process these Terms have to be accepted. Subsequently, the CUSTOMER will be activated by an administrator for the use of the Services. In providing the Services the PROVIDER grants to the CUSTOMER access to a portal in which the CUSTOMER can select and upload its data. SNP analyzes the data and evaluates it graphically as further described in the portal.
§ 3 Term and Termination
3.1.1 The term of the Services shall commence upon the delivery of the access data from the PROVIDER to the CUSTOMER (“delivery date”).
3.1.2. The Services shall start on the delivery date and shall continue in effect for a maximum of 60 days (hereinafter “INITIAL TERM”), if not otherwise contractually agreed. Thereafter, the access will be blocked automatically unless the CUSTOMER concludes a contract with the PROVIDER to continue the Services.
3.1.3 A contract may be terminated for convenience by either contractual party with 5 days’ written notice.
3.2 Termination for Cause
3.2.1 Termination for cause by the contractual parties shall remain unaffected.
3.2.2 PROVIDER reserves the right to terminate for cause, in particular if CUSTOMER is repeatedly or seriously in breach of major contractual obligations.
3.2.3 The contract may be terminated without notice by both contractual parties if an important reason (termination for cause) is given. An important reason shall be given if there are facts because of which the continuation of the contract is no longer reasonable to the terminating party in consideration of all circumstances of the individual case and upon the weighing of interests of the parties to the contract.
3.3 Consequences of Termination
3.3.1 Upon expiration or termination of a contract, CUSTOMER’s access to the Services shall cease, CUSTOMER’s right to use the Services and PROVIDER’s confidential information shall end, and if applicable, CUSTOMER may download its confidential information transmitted by CUSTOMER to PROVIDER as required by applicable law.
3.3.2 Any further provision of Services shall be considered as a conclusion of a contract. CUSTOMER agrees to pay the then current fees to PROVIDER.
3.3.3 Any statutory obligations to retain data or records on the part of PROVIDER shall remain unaffected.
§ 4 Prices and Terms of Payment
CUSTOMER shall pay the fees agreed. Details are set forth then in the separate contract.
Invoices shall be due and payable without deduction upon receipt. Unless otherwise agreed in writing, recurring payments shall be invoiced in advance on a monthly basis. Usage-based remuneration shall be charged in the following month unless otherwise defined.
Remuneration agreed in a contract shall be subject to applicable statutory value-added tax.
4.4 Default & Suspension of Services
If CUSTOMER fails to make payment within 30 days of the due date, or if CUSTOMER is otherwise in material default of any of its obligations hereunder, notwithstanding any further rights, PROVIDER shall give 7 days prior notice to CUSTOMER of its intention to suspend or restrict the provision of the Services.
4.5 Set-Off/RetentionCUSTOMER may only offset or retain payments if CUSTOMER’s counter-claim is undisputed or has been finally determined by a court.
§ 5. Warranty
5.1.1 PROVIDER warrants that Services will be rendered with appropriate care, technical expertise and in accordance with the relevant specifications. PROVIDER warrants neither uninterrupted nor trouble-free use of Services. The PROVIDER does not owe a system availability rate.
5.1.2 CUSTOMER shall notify PROVIDER immediately of any possible disturbances of Services, however, within 2 weeks of becoming aware of them at the latest; such notification must be made in writing in the form of a detailed description of the incident. If no such notification is made, any claims and rights relating to such default, as far as such was recognizable for CUSTOMER, shall be excluded.
5.1.3 In case of defects of the Services, CUSTOMER shall document these in an error protocol in a comprehensible manner and send the error protocol to PROVIDER. PROVIDER shall be obligated to begin with the removal of errors and successfully complete this. CUSTOMER shall support PROVIDER in the removal of errors within the frame of what is reasonable.
5.1.4 Any claims and rights in connection with a default shall become time-barred after twelve (12) months of the date the default has been objected to for the first time, or should have been objected to in accordance with section 5.1.2 above.
5.1.5 In all other respects, the warranty period shall be 12 months.
5.2 Control of data transmission
CUSTOMER understands and acknowledges that PROVIDER does not have any control of data transmission via telecommunication facilities, including the internet, beyond the interface between the network data processing center, and internet service providers.
§ 6 Confidentiality
6.1 The parties mutually agree to keep absolute secrecy towards third parties with regard to any business processes which become known to them, in particular with regard to business and trade secrets, and to not pass them on to third parties and/or use them in any way unless these are generally known facts. The secrecy obligation shall continue to apply even after the expiration as stipulated in 3.1.2 or termination of a contract.
6.2 With regard to the secrecy obligation, the employees of the parties shall respectively be regarded as their agents in the sense of § 278 BGB (German Civil Code). In this regard, each of the parties shall be responsible for the culpability of their employees.
6.3 If a party uses third parties for the fulfilment of their own obligations under the Terms, the respective party shall also conclude a corresponding secrecy agreement for their employees. This shall in particular apply for the case that PROVIDER commissions third parties with the rendering of services.
6.4 The above sections do not apply to information that (a) is independently developed by the receiving party without recourse to the confidential information of the disclosing party, or is received lawfully and free of duty of confidentiality from a third party having the right to furnish such confidential information; (b) has become generally available to the public without breach of the contract by the receiving party; (c) at the time of disclosure to the receiving party was known to be free of restrictions; or (d) the disclosing party agrees in writing is exempt from the above provisions; or (e) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure.
6.5 If applicable, all employees of PROVIDER which are involved in the provision of the Services shall be obliged to data secrecy in accordance with the EU-General Data Protection Regulation (GDPR) and the applicable local data protection prior to starting to work and may getting in touch with personal data by PROVIDER.
6.6 If applicable, PROVIDER shall be bound by instructions with regard to any measures in data processing. Details of the rights and obligations should then be separately agreed.
6.7 Personal access data shall not be disclosed or forwarded by CUSTOMER to any third party and shall be kept protected against any unauthorized access or use. CUSTOMER is not allowed to sublicense, license, sell, lease, rent or otherwise make any Services available to third parties.
CUSTOMER is responsible for the acts and omissions of its authorized users just as for its own acts and omissions and shall oblige them to adhere to the contractual provisions for the use of the Services.
§ 7 Aggregation of Anonymized Data
CUSTOMER shall allow PROVIDER (i) to collect, use and submit structural data from the CUSTOMER’s ERP system, including but not limited to system data, configuration data, workflows and parametrization of the CUSTOMER’s ERP system (hereinafter “Analysis data”) and (ii) to anonymize, aggregate, and transfer and/or transform such generated KPI data into a database solely owned and used by PROVIDER for various purposes. KPI data enables PROVIDER to compare CUSTOMER’s KPIs with those of other installations e.g. in the same industry, system size, system type or geography. Therefore, Analysis Data will be decoded and/or anonymized in order to ensure CUSTOMER’s anonymity and its business secrets if these are unintentionally included in the Analysis Data. CUSTOMER shall therefore assign to PROVIDER all necessary worldwide rights to use, process, duplicate and modify such Analysis Data and to use the KPI data without any limitation. PROVIDER shall exclusively possess all intellectual property rights and/or other economic exploitation rights with regard to KPI data, and only PROVIDER shall be entitled to use and exploit KPI data for any and all purposes. PROVIDER’s rights are irrevocable, transferrable, sub-licensable and unlimited in time, territory or content. For clarity, CUSTOMER retains all right, title and interest in and to its unprocessed data.
§ 8 Indemnification
8.1 PROVIDER shall ensure that the service results rendered within the Services are free of any protective rights of third parties and that – to its knowledge – there are no other rights which limit or exclude any use. PROVIDER shall release CUSTOMER from third party claims resulting from the violation of protective rights in this regard.
8.2 The parties will immediately notify each other if any claims are asserted against them due to any violation of rights in connection with the use of Services.
8.3 If the use in accordance with this Terms is affected by protective rights of third parties, PROVIDER shall be entitled to either change the Services so that they fall out of the protective area but still correspond to the provisions or to obtain the authority to use them in accordance with the Terms without any limitation and additional costs for CUSTOMER at the discretion of PROVIDER to an extent that is reasonable for CUSTOMER.
8.5 PROVIDER shall indemnify CUSTOMER against any claims made by any third party against CUSTOMER based on the violation of protective rights, provided that CUSTOMER has informed PROVIDER without delay of such claims and allows PROVIDER to defend against these claims in its sole discretion. CUSTOMER shall assist and support PROVIDER to the extent necessary. Any expenses associated shall be reimbursed to CUSTOMER by PROVIDER.
§ 9 Limitation of Liability
The liability of the PROVIDER for intent, gross negligence, claims under the Produkthaftungsgesetz and injury to life, limb or health is governed by the statutory provisions.
In the case of slight negligence, the PROVIDER is only liable for the breach of essential contractual obligations (so-called cardinal obligations, i.e. such an obligation, the fulfillment of which enables the proper execution of the contract in the first place and to whose compliance the contractual partner regularly trusts and can trust).
In case the PROVIDER violates such an essential contractual obligation caused by slight negligence the liability shall be limited on the typically predictable damage, but always to no more than € 10,000 per event of damage, and shall be limited in total to an overall amount of € 50,000 for all damages incurred in connection with the use of the Services to the Customer.
Furthermore, the liability of PROVIDER in the case of slight negligence for any indirect damages shall be excluded. In this case PROVIDER shall therefore not be liable whether based in contract, tort, warranty, strict liability or any other legal or equitable grounds, for any loss of the income, profit or savings, for any consequential damages or, indirect damages.
PROVIDER shall not assume any liability for any services provided by the CUSTOMER or ordered from third parties in the name of the CUSTOMER.
If and to the extent that the liability of PROVIDER is excluded, this shall also apply to the personal liability of the employees, workers, collaborators, representatives and vicarious agents of PROVIDER.
§ 10 CUSTOMER’s Duties
Free of charge, CUSTOMER shall provide all collaboration that PROVIDER requires in connection with the performance of the Services. CUSTOMER shall answer questions and inspect results. Performance by CUSTOMER of its general collaborative duties is a primary contractual duty and necessary precondition for the correct performance of Services. Further details of CUSTOMER’s collaboration obligations are set forth separately in a contract, if applicable.
Any consequences resulting from a violation of this provision shall be borne by CUSTOMER.
Any further rights of PROVIDER shall remain unaffected.
10.2 Other Responsibilities of CUSTOMER
CUSTOMER agrees not to misuse the Services. “Misuse” means any (a) unauthorized processing of Data or (b) any act or omission that compromises or undermines the physical, technical, or organizational safeguards put in place by PROVIDER regarding the processing of Data or otherwise put in place to comply with information security requirements. For the avoidance of doubt, “unauthorized processing” includes, but is not limited to: loss, destruction, compromise, or unauthorized access, collection, retention, storage, or transfer.
CUSTOMER further agrees to comply with any applicable laws, statutory and authority bans, and to refrain from violating public morals or public order.
CUSTOMER undertakes towards PROVIDER to be entitled to upload and use SNP System Scan data without any restriction.
Otherwise, CUSTOMER shall indemnify PROVIDER in accordance with section 8.5 above.
10.3 Suspension of Service
PROVIDER may temporarily suspend CUSTOMER’s access to the Services to prevent damages, if the continued use of the Services by CUSTOMER may have a material adverse effect on the Services, or in case of a violation of section 10.2 above or if such violation is claimed by any third party. Further rights of PROVIDER shall remain unaffected.
10.4 Obligation to Inform
10.4.1 PROVIDER shall notify CUSTOMER in advance of any anticipated measures according to section 10.3 above, and grant CUSTOMER an appropriate period of time to remedy such violations before PROVIDER performs any of the measures described in section 10.3. This shall not apply if such measure does not allow any delay.
10.4.2 CUSTOMER shall immediately notify PROVIDER if circumstances occur in connection with Services which might result in claims against CUSTOMER or PROVIDER. Upon PROVIDER’s request, CUSTOMER shall immediately provide any information associated with such circumstances.
§ 11 Other Rights and Obligations
11.1 Granting of Licenses
The Parties grant each other only those licenses and rights which have been expressly specified and agreed. No other rights shall be granted.
11.2 Settlement of Disputes
Any possible disputes or complaints shall be settled amicably, if possible. In particular, each party shall enable the other party to fulfill its obligations within a reasonable time limit before it initiates legal steps because of non-fulfillment of obligations under this Terms.
11.3 Force Majeure
PROVIDER shall not be liable for any delayed or prevented fulfilment of their obligations, provided that this is caused by any event of force majeure – this shall include, in particular, war, terror, terror warnings, official orders, strikes, offences and attacks from the Internet as well as by users of the application itself (e.g. malware, viruses, worms, “denial-of-service attacks”, “Trojan horses”), the failure of communication networks, even if they occur at sub-suppliers of PROVIDER – and PROVIDER as the party affected by the event of force majeure had not been able to prevent the delay or failure by taking reasonable precautionary measures.
11.4 No Transfer of Rights
Unless otherwise expressly agreed, CUSTOMER shall not be entitled to market Services, or parts of thereof, under this contract, or to make them available to any third party.
11.5 Qualified Staff
PROVIDER shall use employees who are qualified to fulfill its obligations arising from these Terms.
11.6 Data protection
According to Art. 6 GDPR the PROVIDER is entitled to process personal data of the CUSTOMER for the fulfillment of business purposes. The data is stored at the PROVIDER. The CUSTOMER hereby acquires knowledge in accordance with Art. 13, 14 GDPR. The CUSTOMER has a right of information as well as a right to correction, blocking and erasure of his stored data. In addition, the CUSTOMER may contradict to the processing or use of his personal data in accordance with Art. 21 GDPR. The contradiction must be addressed to the responsible body.
In addition, the parties commit themselves to conscientious fulfillment and compliance with all data protection regulations.
For the avoidance of doubts the CUSTOMER remains responsible at all times of his data in a data protection sense. The CUSTOMER undertakes to ensure that no personal data of third parties are made available within the framework of the use of the Service. If the CUSTOMER violates this obligation, he releases the PROVIDER from all legal consequences of the breach.
Insofar as the PROVIDER is to process personal data in the CUSTOMER’S order, the parties will conclude an agreement on the data processing in accordance with Art. 28 GDPR in good time before commencement of the corresponding activity.
§ 12 Change of Contract
12.1 Price Adjustment
12.1.1 To the extent that the CUSTOMER orders service from PROVIDER which are rendered by third-party service providers, and if such services become subject to any price increases, said increased prices shall be passed on by PROVIDER to the CUSTOMER accordingly. The change shall be limited to the amount of the actual cost increase, which the provider discloses to the customer upon request.
The same shall also apply to price increases resulting from any amendment in legislation, taxes or disposal costs. If PROVIDER becomes aware of any deviating price increase before commissioning of the third-party service provider takes place, PROVIDER shall notify the CUSTOMER of such price increase before the third-party service provider is commissioned. In the event that any price increases arise after the commissioning, a price increase can only be claimed by the PROVIDER for the future.
In any case, the CUSTOMER has a special right of termination after notification of the price increase, which can be exercised in writing immediately after notification if the price increase exceeds 5% of the initial price.
12.1.2 The parties shall agree upon any price increases for any services, which are rendered by PROVIDER and not by third-party service providers, on the basis of the following elements:
a.) All prices shall be subject to an agreed adjustment, each of which shall be made with effect from 1 January of each year. The first adjustment agreement shall be concluded with the Producer Price Index for IT Services for Germany (“IT Services PPI”) of the first contract year published by the German Federal Office of Statistics (Statistisches Bundesamt) being applied as a basis of comparison. In case the parties have agreed to continue the Services after the first 90 days on a basis of a contract, each year during the term of this contract the parties shall agree upon the adjustment of the prices, thirty (30) working days after the publication of the IT Services Index with effect from January 1st of the respective year at the latest. Any adjustment shall be made in a maximum amount of 5%.
b.) In the event that the German Federal Office of Statistics does no longer publish said index or changes the content or the format to a significant extent, the parties to the contract shall replace the index by another appropriate basis of assessment.
c.) In the case that the German Federal Office of Statistics publishes any other index which might be a more appropriate basis of assessment, the parties to the contract shall agree to replace the index, either in whole or in part, by the chosen index or by a combination of the chosen indexes.
12.2 Changes of the Agreement
PROVIDER is entitled to change these conditions without further notice. Changes are published on the relevant SNP Hosting webpage. CUSTOMER is therefore advised to monitor such published changes regularly. CUSTOMER may terminate its account if the changes are not reasonably acceptable.
§ 13 Miscellaneous
13.1 Applicable Law; Place of Jurisdiction
The Services and all claims arising from the Terms will be governed by the Laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Conflict-of-law rules do not apply.
The exclusive place of jurisdiction relating to any disputes resulting from the Services shall be Heidelberg (Germany), unless another place of jurisdiction is stipulated by law.
Should individual provisions be or become partly or wholly invalid, the validity of the contract in its entirety and the effectiveness of the remaining provisions shall remain unaffected. In such case, the parties agree to negotiate a provision in good faith taking into account the mutual interest of the parties.
13.3 Written Form Requirement
Any agreement which includes a change of, amendment to or specification of the terms and conditions of this Contract, as well as any representations regarding properties and other representations, any other special agreements between the parties, and any declarations influencing legal relations (e.g. termination notices, reminders, or notices) shall not be effective, unless made in writing. The written-form requirement is also met by sending an E-Mail or fax.
13.4 Previous Agreements
Upon acceptance of this Terms, all previous oral and written agreements relating to the use of Services shall become invalid.