General Terms and Conditions for i-ROM Cloud
Version July 1, 2021
1 Material scope and subject matter of the contract
The following terms and conditions (the "General Terms and Conditions") apply to the use and operational support of the software programs produced by i-ROM GmbH, hereinafter referred to as i-ROM, and provided as software-as-a-service (SaaS) via the medium of the Internet.
The subject matter of the contract is in particular the provision of the MODELBUILDER offered at www.i-rom.de under i-ROM Cloud.
The storage of data of the customer on servers of i-ROM is not subject of this contract.
2 Type and scope of services
The nature and scope of the mutual services are governed by the contractual agreements. The agreed quality is the scope of services defined in the contract. Decisive for this are:
- the scope of performance of the software defined in the contract, which results from the respective user documentation,
- the suitability for the use presupposed according to the contract,
- the conditions defined in the contract,
- the following conditions,
- generally applied technical guidelines and professional standards, in particular also the international standards and proposals of the Internet Engineering Task Force (IETF) as documented in the Request-for-Comments (RFC) and the W3C (World Wide Web Consortium).
In the event of contradictions, the contractual agreements shall apply in the above order.
Further conditions, especially general terms and conditions of the contracting party, do not apply, even if i-ROM does not explicitly contradict them. The terms and conditions of i-ROM GmbH shall apply exclusively.
3.1 Rights of the Customer to the Software
For the duration of the contract i-ROM grants the Customer a non-exclusive, non-transferable and non-sublicensable right to use the software designated in the contract and the associated user documentation. The software is provided via the Internet. The transfer point for the SaaS services is the router exit of the server provided by i-ROM.
The Customer undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. The Customer is not entitled to "reverse engineer", decompile, disassemble, duplicate or use any part of the software to create his own application.
Customer acknowledges i-ROM as the sole licensor of the Software and the copyrights associated therewith. The rights of i-ROM as sole licensor also extend to all extensions of the Software provided to the Customer by i-ROM, unless otherwise agreed in writing.
The Customer acknowledges trademark, name and patent rights with respect to the Software and related documentation. Customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Software and related documentation.
3.2 Customer's Rights and Obligations to the Data
The data collected, processed and generated by the Software shall be stored on i-ROM's servers solely for the purpose of processing during ongoing operations. The Customer shall ensure that its data is appropriately backed up on its systems beyond the current use. The Customer has no right to restore previous work statuses. In any case, the customer remains the sole owner of his data and has no claim to also receive the software suitable for the use of the data. The responsibility for the permissibility of the collection, processing and use of the data as well as for the protection of the rights of the persons concerned (information, use, correction, blocking, deletion) lies with the customer.
3.4 Contract duration and termination
The minimum term for the provision of the i-ROM Cloud is 1 month. The contract term is automatically extended by a further month if notice of termination is not given. The amounts are collected from the last deposited direct debit or credit card data.
ROM is entitled to terminate for cause, especially in case of failed direct debit or credit card collections.
4 Maintenance Conditions and Service Level
4.1 Further developments/changes of services
i-ROM reserves the right to further developments and service changes (e.g. by using newer or different technologies, systems, procedures or standards) in the course of technical progress and performance optimization after conclusion of the contract. In case of significant changes in performance i-ROM will inform the Customer in due time. If the Customer suffers significant disadvantages due to the changes in performance, the Customer has the right to extraordinary termination of the contract at the time of the change. The Customer must give notice of termination within two weeks after receipt of the notification of the change in performance.
If new versions of the software are provided, i-ROM shall grant the Customer the rights listed in clause 3 accordingly also for the respective new version.
4.2 System Operation
i-ROM shall ensure that the Software provided is operated in an environment and configuration suitable for the Customer's requirements and on hardware suitable for the Customer's intended use. This includes the number and type of servers, scalability, power supply, air conditioning, firewalling, virus checking and broadband Internet connection on the part of i-ROM.
4.3 System availability
The availability of the servers at the router output to the Internet is 98% on an annual average. The client-side connection to the Internet is the responsibility of the Customer. It is not part of the SaaS scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are the periods that i-ROM marks as so-called maintenance windows for optimization and performance enhancement, as well as time lost during the fault clearance for reasons beyond i-ROM's control and failures due to force majeure.
4.4 Disturbances of the system availability
Disturbances of the system availability are to be reported by the Customer immediately after they become known. Before reporting the disturbance the Customer has to check his area of responsibility. In the case of fault reports, fault clearance shall be commenced on the following working day at the latest. Delays in fault clearance for which the Customer is responsible (e.g. due to the unavailability of a contact person on the customer side) shall not be counted towards the fault clearance time.
5 Warranty, third party property rights
If the Software is defective as to quality, i-ROM shall be obliged, within a reasonable period of time after notification of the defect by the Customer, to remedy the defect in question in the Software or to deliver a Software free of defects, at its discretion.
If the rectification fails, the Customer shall be entitled to a pro rata refund of the remuneration paid in advance. The same right has i-ROM, if the material defect removal is not possible with reasonable effort.
If it turns out in the course of the error processing that the problems are due to operating errors or improper use by the Customer, i-ROM may demand reasonable compensation for the effort incurred.
It is equal to a material defect removal, if i-ROM delivers an alternative solution to the defective function, which enables the Customer to use the product according to the contract.
As far as i-ROM is not in possession of the source code itself, it can only remove defects as far as it has been provided with a corresponding error correction update by the manufacturer. If the licensee suffers damage due to defects in the software, the limitations of liability according to clause 6 of this contract apply.
Claims due to material defects are excluded if a software environment other than that specified in the contract (operating system, MATLAB, ANSYS) is used.
No warranty is given for the correctness and/or usability of the results obtained with the software. The software descriptions in the user documentation are provided without warranty.
If a third party asserts claims against the Customer due to the infringement of property rights based on the software provided by i-ROM and if the contractual use of the software by the Customer is impaired or made impossible as a result, i-ROM shall, at its option and at its expense, either provide the Customer with software modified or replaced in such a way that the property rights of a third party are not infringed without this leading to functional restrictions, or release the Customer from license fees for the use of the software vis-à-vis third parties. The Customer shall immediately notify i-ROM in writing of any alleged infringement of third party proprietary rights. Furthermore, he may not acknowledge the alleged infringement and may only conduct a dispute with the third party about the infringement of property rights in agreement with i-ROM. Claims of the customer from an infringement of property rights are excluded, as far as the infringement is based on the fact that the software is changed by the licensee or is used together with the software of another manufacturer. The same applies insofar as the infringement is based on improper use, in particular if the use does not correspond to the contractual configuration of use. Further claims of the Customer due to an infringement of third party property rights are excluded, unless liability is provided for in these General Terms and Conditions (§ 6 of the General Terms and Conditions).
An extraordinary termination due to non-granting of use (§ 543 para. 2 no. 1 BGB) due to a software defect is excluded, unless the attempt to remedy the defect by i-ROM is considered to have failed.
6 Limitation of liability
i-ROM is liable for damages, regardless of the legal reason, only if they are caused by intent or gross negligence or by intentional or negligent breach of essential contractual obligations. Essential in the aforementioned sense are such contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the customer may regularly rely.
In case of simple negligence, i-ROM's liability shall be limited to the foreseeable damage typical for the contract.
For consequential harm caused by a defect i-ROM shall only be liable in case of intent or gross negligence; the Customer's statutory claims for compensation of the damage caused by the delay in remedying the defect shall remain unaffected.
The aforementioned limitations and exclusions of liability shall not apply to damages resulting from injury to life, body or health for which i-ROM is responsible and to liability under the Product Liability Act.
The contracting parties agree that computer-aided-engineering (CAE) calculations must always be checked using suitable methods, as the results obtained may be faulty either due to incorrect or inaccurate inputs or due to hidden software errors.
Proper use of the software requires special instruction or existing knowledge on the part of the user.
During the test phase, liability for damages of any kind is excluded.
A monthly fee agreed upon in the contract shall be charged for the SaaS services. The accruing fees will be invoiced in advance over a certain period of time.
Taxes, customs duties and all other charges incurred in connection with the provision of the software shall be borne by the Licensee. A cash discount deduction is excluded.
8 Terms of payment
Payments shall be made by direct debit or credit card clearing. If the payment deadline is exceeded, services may be restricted in the event of default.
The Customer is not entitled to set off claims against i-ROM, unless the claims are legally established or recognized by i-ROM in writing.
9 Other provisions
German law shall apply exclusively. The place of jurisdiction is the court responsible for the registered office of i-ROM GmbH.
Additions or changes to the General Terms and Conditions as well as contractual agreements made on this basis must be in writing. This also applies to a waiver of the written form requirement.
10 Data protection, confidentiality
ROM will treat all information and data transmitted by the Customer with the same care as its own confidential documents.
Excepted from this is information that is or becomes publicly accessible without any unauthorized action or omission on the part of the contracting parties or must be made accessible due to a court order or a law.
In the case of support services at the request of the Customer, it may be necessary to access data records of the Customer. Access may be provided via a web meeting with the Customer or the Customer may provide i-ROM with the required data in another manner chosen by the Customer. In this case, data access is limited to the time period of the particular support activity and all data exchanged in connection with the support is subject to confidentiality.
If personal data must be processed within the scope of the subject matter of the contract, i-ROM and the Customer shall comply with the statutory data protection provisions.
According to the Federal Data Protection Act (BDSG) i-ROM informs the Customer hereby that data of the Customer will be stored.
As far as i-ROM uses a sales partner for the execution of the contract and the Customer provides information and data to this sales partner, the provisions of these General Terms and Conditions shall apply accordingly also to the sales partner.
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