General Terms for Subscription, Software and Services
GENERAL TERMS OF THE SUSCRIPTION/SERVICES AGREEMENT
This agreement governs the acquisition and use of our snap services. If you register for a free trial for our services, this agreement will also govern that free trial. By accepting this agreement, either by clicking a box indicating your acceptance or by executing an order form that references this agreement, you agree to the terms of this agreement.
All deviations to this agreement need to be explicitly stated and agreed upon in writing in the respective order form. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions.
If you do not have such authority or if you do not agree with these terms and conditions, you must not accept this agreement and may not use our services. This agreement was last updated on September 5th, 2019. It is effective between you and us as of the date of you accepting this agreement.
- „Affiliate“ means any legal entity that is affiliated with another company within the meaning of the Austrian Stock Corporation Act (AktG).
- „Agreement“ means any agreement between us and you relating to the present Agreement.
- „Authorized user“ (or „Named user”) means persons at your company, your Affiliates or Business Partners who are authorized by you to use the service.
- „Business Partner“ means a natural or juridical person that requires access to a Cloud service (if applicable) in connection with yours and your Affiliates“ internal business operations, such as your customers, distributors, service providers and/or suppliers.
- „Confidential Information“ means all information which we and you protect against unrestricted disclosure to others or that are deemed confidential according to the circumstances of their disclosure or their content. In any case, the following information is considered to be confidential information of you, your data, marketing and business plans or your financial information; and our confidential information: the service and all our software, programs, tools, data or other material that we provide to you before or on the basis of the order form.
- „Consulting services“ means the other related services agreed as applicable in the Order Form, in particular, implementation, configuration, or training services, but not support services.
- „Documentation“ means our then-current technical and functional documentation for the service which is made available to you with the service, including, but not limited to, configuration workbooks or release notes, as applicable.
- „Public Trial“ means shared environment through a public url.
- „Private Trial“ means trial environment with custom login and more customization possibilities.
- "OnPremise Trial" means trial enviornment is your local system.
- "Service“ or „Cloud Service“ means the on demand solution provided either by us and operated by us (direct deployment) or by you (indirect deployment, onPremise deployment) as agreed in the Order Form and accessible by you via the internet/onPremise, which permits you and your authorized users to save, process, and use your data by accessing the on demand solution.
- „System Availability“ means the percentage of total time during which the production version of the service is available to you during a calendar month.
- Platform means SAP APP Center.
- „Usage Metric“ means the usage parameters for determining the permitted access and use and calculating the applicable fees due for a cloud service as set forth in the Order Form.
- „Deployment - direct“ means the cloud service is operated by us.
- „Deployment - indirect“ means the cloud service is operated by you.
- “Deployment – OnPremise” means the software ist deployes and operated by you on your onPremise system.
- „Deployment costs“ means additional costs occurring by deployment of some of our services
- „We“, „us“ means Snap Consulting - Systemnahe Anwendungsprogrammierung und Beratung GmbH, Kölblgasse 8-10 in 1030 Vienna, Austria.
- „Your Data“ means any content, materials, data and information that you or your authorized users enter into the cloud service, including customer-specific data that you or your authorized users have derived from your use of the cloud service (e. g. customer-specific reports).
If you register for a free trial of our services, we will make them available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable services, or (b) the start date of any purchased service subscriptions ordered by you for such services as stipulated in the Order Form.
Additional trial terms and conditions may appear on the trial registration web page. Upon acceptance, any such additional terms and conditions are incorporated into this agreement by reference and are legally binding.
Any data you enter into our services (Deployment direct/indirect) and any customizations made to our services by or for you during your free trial will be deleted at the end of the trial unless you purchase a subscription to the same services as those covered by the trial, purchase upgraded services or export such data before the end of the trial period. With the Deployment onPremise you have to uninstall the software yourself after the trial period.
You are hence obliged to continuously care for an appropriate data backup of the data entered in the course of using the free trial. During the free trial, the services are provided „as-is“ without any warranty. We shall provide no support for this service and have no obligation to provide any particular service level. We may cease providing access to such free-of-charge service at any time.
License & Right of use
snap grants the customer the non-exclusive, unrestricted right to reproduce the contract software for the agreed one-time license fee to the extent that this is necessary for loading, displaying and running, transferring or storing the software under the following conditions (hereinafter referred to as "intended use"):
1) The Customer may only use the Contract Software or parts thereof in connection with the Contract Software and within the scope of this Contract.
2) The customer may not directly or indirectly translate, edit, change the arrangement of, make other changes to or disassemble, reverse engineer or decompile the contract software, either in whole or in part, including error corrections, unless
- it is indispensable to obtain information enabling interoperability with an independently developed computer program; and
- snap has not provided the customer with this information within an economically reasonable period of time despite a written request. Information acquired through such a measure shall not be used for purposes other than achieving interoperability and shall not be divulged to third parties unless necessary to achieve interoperability. However, the customer is permitted to adapt software components that are supplied with source code by snap and expressly released for adaptation by snap. The use of these software components also in their modified form is subject to the usage restrictions and the further provisions of this contract.
- For backup purposes, the Customer may make backup copies of the Contract Software licensed under this Contract on a permanent data carrier or make such copies as part of regular data backup. The customer may copy the documentation exclusively for internal use.
3) The ownership and all copyrights of use and other protective rights to the Contract Software and the Documentation, including copyrights, shall remain with the manufacturer or its licensor(s). The Customer shall not be granted any additional rights apart from the rights of use granted in accordance with § 2.1 above.
4) Regarding the transfer of the Contract Software to Third Parties: under no circumstances shall the customer be entitled to rent or lease the contractual software to third parties on a permanent or temporary basis without snap's written consent. The customer is only entitled to pass on the contract software to third parties, hereinafter referred to as "the legal successor", if the following conditions are fulfilled:
- the transfer of rights does not lead to an export or re-export of the contract software which may violate applicable European or American export regulations;
- the successor in title is not a competitor of snap;
- the Customer shall notify snap in advance in writing of the assignment of rights, stating the exact name and address of the legal successor;
- the legal successor accepts the provisions of this agreement as binding for snap in writing; and
At the same time, the customer ceases all use of the contract software and deletes the contract software completely and in accordance with data protection regulations from all data carriers or data storage media, including the hard disks of the computers on which the contract software was used, and assures snap in writing of the complete deletion in accordance with data protection regulations. Exceptions to this data deletion agreement can be permitted in writing by snap if the customer proves that such an exception is necessary due to a generally valid legal obligation (e.g. due to tax laws).
We shall provide the service agreed in the Order Form. We will use appropriate security technologies (such as encryption, password protection, and firewall protection) in providing the service in accordance with the stipulation within the Documentation. The quality and functionality of the agreed performance that we are obliged to provide is conclusively agreed in the Order Form and the documents referred to therein. We are not obliged to perform additional services or provide additional service features.
The features of the service and support may be enhanced, changed and adapted to reflect technical advances („continuous improvement”) by us. We shall provide information about continuous improvements within a reasonable notice period (as a rule, two (2) months before the change is scheduled to take effect) by email, on our portal, through release notes, or within the service. In the event that a change may negatively affect your justified interests in a way that you can no longer reasonably be expected to adhere to the agreements in the Order Form, you can terminate the affected service in writing with a notice period of one (1) month before the announced change is scheduled to take effect.
We may provide through our regular updates optional new features for the service at our sole discretion. Note: consulting services required to implement/configure optional additional new features may be agreed separately for an additional fee.
Before the end of the agreement, you may access, extract, and export your data at any time. You are solely responsible for carrying out such an export. The export might be dependent on technical requirements being met, such as (i) the availability of self-service extraction tools compatible with the cloud service, if applicable (ii) the size of your instance or your cloud service, and (iii) the frequency and/or timing of the export and retrieval.
Your Responsabilites and Obligations
You will provide the collaboration required in connection with the provision of the service and the support and consulting services by us, including but not limited to the infrastructure and telecommunications equipment for service access free of charge. You grant us the nonexclusive right to process your data (including personal datafor the sole purpose of and only to the extent necessary for us: (i) to provide the cloud service (including but not limited to preparing backup copies or performing penetration tests); (ii) to verify your compliance with the provisions set forth in section „Usage Rights“;
You shall ensure that your data are free from rights of third parties that could hinder the transfer, storing, processing, and accessibility of your data in the service within the scope of service provision by us. We may utilize the information concerning your use of the service (excluding any use of your personal data or your confidential information) to improve our products and services, to provide you with reports on your use of the cloud service, and to compile anonymized aggregate statistics and usage patterns by our customers using the services. The use by us of your data for other purposes is only permitted if this – where relevant and applicable – is agreed in the Order Form.
You shall be responsible for entering your data into the service and you shall be responsible for the content of your data. You shall record, update, and edit your data in compliance with the relevant applicable law. You are solely responsible for determining the suitability of the service for your business processes and for complying with all applicable legal provisions regarding your data and the use of the service.
You shall maintain appropriate security standards for the use of the service by you and the authorized users. You are aware that your collaborative duties are a necessary precondition for the correct performance of our obligations.
Remuneration, Payment, Taxes
You shall pay us the fees agreed in the Order Form without any deductions. The duty to pay recurring fees shall start at the beginning of the subscription term. Payments are due fourteen (14) calendar days from the date of the invoice. Invoices may be issued on a monthly or yearly basis, in advance or in arrears as agreed upon in the Order Form. The recurring fees agreed in the Order Form apply for the initial term agreed therein. The fees applicable for a renewal term correspond to the fees for the preceding initial or renewal term, unless we adjust at our discretion the fees with effect from the start of a renewal term by giving you a three (3) months“ written notice of the fee adjustment.
If you do not object to the fee change at least thirty (30) days prior to the expiration date of the preceding contractual term and thus reject a renewal at this increased fee, the changed fee shall be deemed to have been agreed if the service is renewed automatically for the renewal period. We will also include this information in the fee adjustment notice.
During the term of the Order Form, you may agree on an increase of units of a usage metric by executing a written addendum to the relevant Order Form („Extension Order Form”). The term of each Extension Order Form shall be coterminous with the then-current term of the Order Form irrespective of the effective date of Extension Order Form and all fees shall be prorated accordingly. Upon renewal of the Order Form all such increases made by way of the Extension Order Form are considered to also be renewed.
You are responsible for monitoring your use of the service and shall provide us with written notice in advance of any actual use that goes beyond that contractually agreed, in particular a higher-than-agreed number of authorized users (or other defined usage metrics). In this case, you must sign an Extension Order Form that documents the additional use and additional fee. Such fees shall accrue from the date the excess use began. We are permitted to audit the usage of the service, in particular the number of your authorized users (and other usage metrics defined in the Order Form), in respect to its compliance with the agreement.
If you are still in default of payment after a reasonable extension period set by us has passed, we can deny full or partial access to the service temporarily until payment has been received.
All agreed fees are subject to statutory value-added tax.
Each order form initially runs for the initial term defined therein („initial term“). At the end of the initial term, it is automatically extended by one (1) year (each renewal being a „renewal term”) unless the Order Form is terminated in writing by one of the parties to the other with a notice period of three (3) months to the end of the initial term or renewal term. Termination of individual order forms shall leave other order forms unaffected.
Ordinary (partial) termination of the Order Form is excluded during the initial term or any renewal term; extraordinary termination rights and the right to termination for just cause remain unaffected. Notice of termination must be given in written form.
We reserve the right to terminate for just cause in particular where you are repeatedly in breach of major contractual obligations, such as in particular prompt payment of fees and use of the service in conformity with the agreement. In the event of termination by you in accordance with this section, you shall be entitled to a pro-rata refund of prepaid fees for the period of time of termination to the end of the original term for the relevant service.
Notwithstanding our right to terminate, we can temporarily suspend your access (in particular user names and passwords) to the service to prevent damages, if it is sufficiently probable that the continued use of the service in breach of agreement by you, the authorized users, or a third party using your access data may result in harm to the service (including the security of the systems used to provide the service), other customers, or the rights of third parties in such a way that immediate action is required to avoid damages. If circumstances allow, you shall be informed in advance in writing.
At the end of the agreement, your access to the service shall cease.
We warrant, for the term of the Order Form, that the Service meets the specifications defined in the documentation and the contractually permitted use by you does not infringe any third-party right. We will remedy any defects as to quality and defects in title in the service in accordance with this section.
If we have failed to remedy the defect at the end of an additional time period of a reasonable length set in writing by you, and the suitability of the service is consequently reduced to a more than just insignificant degree, you have the right of termination, which must be communicated in writing.
If the suitability of the service for use in accordance with the agreement is reduced to a more than just insignificant degree, you are entitled to reduce the remuneration by an appropriate amount. No-fault liability as provided in the Austrian Civil Code, Section 536a (1.1) Alt. for defects that existed at the time of agreement execution is excluded.
We shall remedy material defects in the service that are subject to acceptance by providing you with either a new service that is free of defects or by eliminating the defects. We may also rectify a defect by indicating to you an appropriate way to avoid the effect of the defect, unless this cannot be reasonably expected from you. In the event of defects in title, we shall elect to (i) procure for you the right to use the service in accordance with the agreement, or replace the service or change it such that the accusation of breach no longer stands, whereby your contractual use is not unreasonably impacted. You must give notice of every breach to us in writing without delay and with a detailed description of the reason.
Deployment and Support
As a standard, we host our services on our platform (direct deployment model) and pro-actively provide initial setup, upgrades, release updates and hotfixes as part of the subscription. Alternatively, you can also choose to host our services on your own platform. In this case, you are solely responsible for the initial setup, upgrades, release updates and hotfixes at your own costs.
This is an additional service offer to our customers who licensed the ‚indirect“ deployment or “onPremise” model of our services. It covers initial setup, upgrades, release updates and hotfixes. Deployment Service is to be licensed separately via an Order Form.
We support the most current version of our products and services only.
Limitation of Liability
We are liable for willful intent, gross negligence, for the lack of a guaranteed quality or personal damages. Our liability for damages in case of an ordinary negligent breach of substantial contractual duties (e.g. the duty to carry out the services in conformity with the contract) is limited to 10 % of the net purchase value of the respective individual order. Our liability for an ordinary negligent breach of non-substantial contractual duties is excluded.
The liability for ordinary negligence is limited to the overall amount of 50,000.00 € within a calendar year. The liability for indirect, or consequential damages (e.g. based on loss of profits, loss of savings, loss of use or interruption of business) is limited to 25,000.00 €. When assessing the amount of damages, our economic conditions, the type, the scope and the period of the contractual relationship as well as your potential contributory negligence according to § 254 BGB have to be reasonably taken into account. In particular, damages, costs and expenses which should be borne by us have to be in proportion to the value of the services.
Both parties undertake to treat as confidential all of the other party“s confidential information acquired before and in connection with the performance of the agreement and to use such confidential information only in connection with the performance of the agreement. Confidential information shall not be reproduced in any form except as required to accomplish the intent of the order form. Any reproduction of any confidential information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original.
With respect to the confidential information of the other, each party: (a) shall take all reasonable steps (defined below) to keep all confidential information strictly confidential; and (b) shall not disclose any confidential information of the other to any person other than its individuals whose access is necessary to enable it to perform the agreement.
As used herein „Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. On your side, this includes the careful safeguarding of the confidential information and the prevention of infringement.
The Section above shall not apply to any confidential information that: (a) is independently developed by the receiving party without reference to the disclosing party“s confidential information, or is lawfully received free of restriction from a third party having the right to furnish such confidential information; (b) has become generally available to the public without a contractual breach by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
You shall treat as confidential the terms and conditions of our agreement, in particular the pricing contained therein. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other. However we may use your name in customer listings (reference listings) or to analyze details from the agreement (e.g. to forecast demand), as well as – subject to mutual agreement – as part of our other marketing efforts.
The duty of confidentiality remains in effect beyond the term of the agreement.
Should there be any discrepancies between the Master Subscription Agreement and any other relating Agreement(s), the following order of relevance, unless explicitly specified otherwise, shall apply:
- Order Form before
- Other related Agreements and Exhibits before
- Subscription Agreement
Amendments and additions to the agreement and any contractually relevant declarations as well as declarations influencing the legal relationship, including but not limited to termination notices, reminders, or notices to set time limits, require written form. The foregoing provision also applies to any waiver of the written-form requirement. The written-form requirement can also be met by exchange of letters or (except in the case of termination notices) with an electronically transmitted signature (facsimile transmission, e-mail transmission with scanned signatures).
System notifications and information from us relating to the operation or support of the service can also be provided electronically in writing to the contact person named in the order form.
You shall not hand over the service or documentation to governmental authorities for licensing considerations or other official approval without our prior written consent, and shall not export the service or documentation to countries or to natural or legal persons for which export bans apply according to the relevant export laws. Furthermore, you are responsible for complying with all applicable legal provisions of the country in which your company is headquartered, and of other countries in respect of the use of the service or documentation by you and your authorized users. We hereby give express notice that, in accordance with the export control laws of various countries, in particular the laws of the US and the Federal Republic of Austriany, and as a result of trade sanctions and embargos applicable to us, we may be obliged to restrict, temporarily withdraw, or terminate your access to the service or documentation, and other materials.
Austrian law is applicable. The application of UN-Sales-Law (CISG) is excluded. If you are a merchant, a legal entity under public law, or a separate fund under public law, the sole place of jurisdiction for all differences arising out of or in connection with the agreement shall be Karlsruhe.
The statute of limitations for your claims based on a defect of a product is one year. This does not apply when Civil Code §§ 438 sec. 1 No. 2 (construction, goods for construction), 479 sec. 1 (recourse claims) or 634a sec. 1 No. 2 (construction defects) provide for longer periods for those claims. Claims arising from intentional acts or gross negligence from us or our vicarious agents, as well as injury to body or health, a guaranteed quality and claims based on the Product Liability Act shall be unaffected.
The statute of limitations for your claims, not due to a defect of a product, is one year. Claims arising from intentional acts, gross negligence, as well as injury to body or health shall be unaffected. No conditions that are conflicting with or amending the Order Form, notably your general terms and conditions, form part of the agreement, even where we have performed an agreement without expressly rejecting such conditions.
You are only entitled to a set-off if the counter claim is undisputed or legally established. This contractual exclusion of a set-off does not apply in respect to counterclaims on the basis of a defect, which is based on the very contractual relationship our claim is based on. You are only entitled to a right of retention in case that your counterclaim is based on the same contractual relationship.
Should this agreement contain any loopholes, those legally effective rules shall be deemed to be agreed for filling those loopholes that the contractual parties would have agreed, in accordance with the economic objectives of the agreement and for the purpose of these general terms of delivery, had they known about those loopholes.