Zammad – Software as Service (Hosted Version)
§ 1 General
(1) These General Terms and Conditions (GTCs) are applicable for all Software-as-a-Service agreements concluded between Zammad GmbH, Marienstraße 11, 10117 Berlin (the Provider) and customers entailing the Hosted Version of the software “Zammad” (Zammad) developed by the Provider. The GTCs also apply within the scope of the initiation of the agreement. (2) The agreement is intended for entrepreneurs pursuant to § 14 BGB (German Civil Code) and not for consumers pursuant to § 13 BGB. Entrepreneur means a natural or legal person or a partnership with legal personality, who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. Consumer means any natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession. (3) Deviations from these General Terms and Conditions are only effective if confirmed in writing by the Provider.
§ 2 Subject matter of the agreement
(1) The subject matter of the agreement is the provision of Zammad via a remote data connection by the provider for use by customers in return for payment. (2) The Provider makes the use of Zammad available to the customer to the contractually agreed scope of functions and under the contractually agreed functional requirements. Where the scope of functions is concerned, the customer can choose from different performance packages on the website of the Provider. Zammad is made available to the customer for his/its use by the Provider via the Provider’s web server. Whereby Zammad remains on the server of the Provider. (3) The customer requires access software in order to be able to use Zammad. The access software comprises the respectively latest version of a standard Internet browser. The access software is not provided for the customer by the Provider. The Provider is not responsible for establishing and maintaining the data connection between the IT system of the customer and the transfer point operated by the Provider. (4) The Provider will use the respectively latest version of Zammad on offer within the scope of the technical possibilities, should a modification of the software version be reasonable for the customer while at the same time taking the interests of the Provider into consideration. The systems undergo continuous further development. The customer is not entitled to the use of a newer version than the one contractually agreed. (5) The Provider makes Zammad available to the customer at the transfer point with a defined availability for use amounting to an annual average of 99.85 %. This does not include times when Zammad is not available via the Internet due to technical or other problems not under the sphere of influence of the Provider (force majeure, third party defaults etc.). In agreement with the customer, the Provider can interrupt the performance of its service for a defined period if this is necessary for maintenance purposes. The customer will not refuse agreement to such interruptions unreasonably. These periods, in which the Provider interrupts the performance of its service for a defined period for maintenance purposes, are deemed as being available for use. (6) The customer receives his/its own customer account for the duration of the agreement. The customer can login to his/its account via an individual URL. The customer is also provided with an email account within the framework of the customer account. The customer can choose the name of the customer account himself/itself. The name of the URL, via which the customer can login to the Zammad system, is derived from this name. The name selected by the customer for the customer account is the same as the name of the email address of the customer. e.g.: Should the customer name the customer account “Customer“, logging into the Zammad system is effected via “https://customer.zammad.com”. The corresponding email address is then “email@example.com”. The customer only receives the aforementioned right to name the customer account for the duration of the term of the agreement; on expiry of the term of the agreement the name again becomes free and can be used by another customer for the name of his/its customer account.
§ 3. Customer service
(1) The Provider makes available to the customer a customer service as support in technical questions that is dependent on the contractually agreed scope; such service can be reached via email (firstname.lastname@example.org), web platform (https://support.zammad.com) or telephone. This is intended solely as support of the customer for the utilisation of the services to be rendered by the Provider pursuant to this agreement. Customer queries sent to the contact person will be processed in order of their arrival. Notification of errors must be made exclusively via the web platform (https://support.zammad.com). (2) The customer service available by telephone is at the disposal of the customer in compliance with the agreement concluded. Excluded from this service are all TARGET2 holidays and all German-wide public holidays.
§ 4 Data storage
(1) The customer can store data on the data server established for him/it by the Provider to which the customer has access in connection with the use of Zammad. The Provider is liable only for providing the storage space to be used by the customer in compliance with the individual agreements made with the placing of the order. (2) The Provider has no duties of safekeeping or care with regard to the data transferred and processed by the customer. The customer himself/itself also bears responsibility for the observation of the regulations prescribed by data protection law. The customer also bears responsibility for the observance of the retention periods required by commercial and tax law. (3) The capacity of the storage space made available to the customer derives from the respective contractual agreement. The customer can save the data on the data server within the framework of a database acquisition as well as within the framework of the ongoing use of Zammad. The data are always entered by the customer unless support in return for payment has been agreed individually.
§ 5 Processing of personal data
Should the customer collect personal data within the framework of this contractual relationship, then he/it is responsible for observation of the regulations prescribed by data protection law. The Provider will only process the data transferred by the customer within the framework of instructions given by the customer. The Provider will notify the customer without delay should the Provider believe the instructions of the customer are in breach of the regulations prescribed by data protection law. The Provider offers the customer an encrypted transfer of the data by means of the communication protocol “Hypertext Transfer Protocol Secure” (HTTPS). § 6 Surrender of data
(1) On demand of the customer, the Provider will surrender a copy of the data stored by the customer on the storage space assigned to him/it at any time, however, at the latest on termination of the contractual relationship. Surrender of the data is effected in the backup format usual for Zammad. (2) The Provider will delete any customer data it still has stored 14 days after the transfer of the data to the customer connected with the termination of the agreement, unless the customer notifies the Provider within this deadline that the data transferred to him/it are not legible or not complete. Failure to give such notification is deemed as agreement to the deletion of the data. When transferring the data, the Provider will specifically point out to the customer the consequences of his/its behaviour.
§ 7 Data security and data backup
(1) The Provider will implement all the technical and organisational security precautions and measures necessary in compliance with the Annex to Section 9 of the Federal Data Protection Act (BDSG). (2) The Provider carries out an incremental backup of the data of the customer on the data server on every working day. (3) The customer can delete data from Zammad independently via time-controlled jobs. The customer alone is responsible for such deletions. The Provider assumes no liability in this respect.
§ 8 Access rights
(1) The customer acquires a specific number of access rights from the Provider. An access right entitles a person to access the software Zammad made available by the Provider. An access right consists of a user name and a password. User name and password may only be communicated by the customer to those persons (agents) to whom the customer has granted authorisation and must otherwise be kept secret. (2) In the event the customer changes the password assigned to him/it by the Provider, then the customer must use a secure password consisting of at least 8 characters. This must include at least one special character and one number.
§ 9 The customer’s obligations to cooperate
(1) The customer undertakes to establish a data connection between the workplaces he/it intends to use, that are to be used by the agents, and the data transfer point defined by the Provider. The data transfer point for the services is the router output to the Internet of the computer centre used by the Provider. The Provider is entitled to redefine the data transfer point at any time, should this become necessary to ensure trouble-free utilisation of the services for the customer. In this case the customer shall establish a connection to this newly defined transfer point. (2) The contractual use of the service of the Provider is dependent on compliance of the hardware and software used by the customer, including workstation computers, routers, means of data communication etc., with the minimum technical requirements for the use of the latest software version offered and on the users authorised by the customer to use Zammad being conversant with the operation of the software. The customer is responsible for the configuration of his/its IT system. The Provider will support the customer with this based on a special individual agreement offered in return for payment. (3) The customer undertakes not to store any contents on the server made available to him/it that are unlawful, that infringe any laws, authority regulations or rights of third parties and/or otherwise use the customer account for such purposes. The customer also undertakes to ensure that the name he/it selects for the URL and email address does not infringe any laws, authority regulations or rights of third parties. In this respect the customer undertakes to hold the Provider harmless of any third-party use for which the customer is responsible, including the costs arising from such use. (4) While taking into account the legitimate interests of the customer, the Provider is entitled to suspend the customer account temporarily with immediate effect in full or in part in the event of any imminent or occurred infringement of the above-mentioned obligations or the assertion of not obviously unfounded claims by third parties against the Provider to refrain from its performance in full or in part of the contents stored on the server of the Provider via the Internet or due to the name of the URL and the email address. The Provider will notify the customer of these measures without delay. § 10 Rights
(1) The software made available to the customer is a work protected by copyright. The originator alone retains the exclusive rights of use to the aforementioned software. Unless agreed to the contrary, the Provider uses free open source licenses for the software of third-parties that it makes available and also provides the software services it has developed itself under a free open source license (GNU AGPLv3). (2) For the duration of the term of this agreement the customer has the non-exclusive rights of use as stated in the respective software license for the software made available by the Provider. To effect proper licensing the customer must accept the respectively relevant license conditions before using the software and must observe these at all times. (3) The customer grants the Provider the right to make copies (backups) of the data saved by the Provider for the customer, insofar this is necessary for performance of contractually due services. The Provider is also entitled to keep the data available in a reserve data processing centre. In order to rectify errors, the Provider is also entitled to make changes to the structure of the data or the data format. (4) The customer is not entitled to grant any third parties use of the services of the Provider. Those people who use the services free of charge on behalf of the customer, such as employees of the customer, freelancers within the scope of the contractual relationship etc are not deemed to be third parties. § 11 Remuneration
(1) The customer is obliged to pay the fees as per the price list of the Provider valid at the time of the conclusion of the agreement for the service package he/it selects. These prices may deviate if so agreed specifically in a separate agreement. (2) The Provider is entitled to raise the fees indicated if the Provider has a legitimate interest in doing so and if there are serious grounds for an increase in the prices and rates indicated. Serious grounds are deemed to occur if and insofar an increase in the average gross monthly earnings of the contractor’s employees give rise to higher costs for the Provider. An annual rate of increase can therefore occur based on the increase in the average gross monthly earnings of full-time employees in Germany for the economic sector “provision of services in the field of information technology” (verified by the Federal Statistical Office Fachserie 16, Reihe 2.4, J62 -) (Index). The calculation of the rate of increase is based on the changes in the index development over the preceding four available quarters (e.g. the index development from Q2/2013 auf Q2/2014). The contractor can use a comparable index in the event this index no longer exists. In the event of an increase in the fees, the customer is entitled to terminate the agreement without notice. Should the customer not make use of this right and if this legal consequence was pointed out to the customer in the notification of the price increase, the agreement will be extended to the revised prices. (3) All prices indicated by the Provider are quoted exclusive of value-added tax unless indicated to the contrary. (4) The agreed fees must be paid in advance and fall due for payment on receipt of the invoice. (5) Payments of the customer to the Provider for the use of the service or for other products within the system are to be effected by electronic direct debit via Zammad or by means of credit card invoicing. (6) If payment is to be effected via Zammad the customer authorises Zammad to debit the payments due from an account to be named by the customer. In the event of return debit notes Zammad is entitled to charge a flat rate of € 20 per debit note. (7) Payments are always credited to the oldest outstanding claim.
§ 12 Term of the agreement
(1) The minimum term of the agreement for all service packages is one year or is agreed individually. Unless agreed to the contrary, the agreement is therefore initially valid for a fixed period of one year, calculated from the time of the signing of the agreement. The Provider and the customer are free to agree individually a shorter or longer agreement term. The minimum term of the agreement is automatically extended for a further year or for an individually agreed term on its expiry, unless the customer or the Provider terminate the agreement within a period of notice of at least two months to the end of the agreement. (2) The right to termination for good cause remains unaffected. (3) The written form is required for every declaration of notice and must be effected by the authorised representative. (4) The customer is free at any time within the term of the agreement to upgrade to a higher-priced service package, in as far as this is connected with an increase in his/its payment obligation. If this is not the case, the upgrade can only be effected with the agreement of the Provider. Changing to a lower-priced service package is possible on expiry of the term of the agreement. A new agreement term does not commence with a change to a different service package.
§ 13 Warranty
(1) The Provider is liable for the availability of Zammad within the contractually agreed scope. (2) The Provider will rectify any errors or the (partial) failure of Zammad of which it is notified within a reasonable period. The parties mutually agree to classify any errors that occur as errors that prevent operation, errors that handicap operation or as other errors. If the parties are unable to come to a mutual agreement, the Provider will decide on the classification taking reasonable account of the interests of the customer. The following response and recovery times apply depending on the classification of an error: (a) Errors that prevent operation: response time: 8 hours / recovery time: 24 hours An error is deemed to prevent operation if, due, for example, to malfunctions, incorrect work results or response times the use of Zammad is impossible or significantly handicapped (and such error cannot be avoided by means of reasonable organisational measures). (b) Errors that handicap operation: response time: 24 hours / recovery time: 3 working days An error is deemed to handicap operation, due, for example, to malfunctions, incorrect work results or response times, if use of Zammad is in fact not impossible or significantly handicapped, but the restriction(s) in use is (are) nevertheless not merely negligible and cannot be avoided by means of reasonable organisational or other economic measures. (a) Other errors: response time: 2 working days / recovery time: to be agreed individually with the Provider depending on the problem, taking release cycles into account. Other errors are deemed to exist if the use of Zammad is not directly and/or not significantly/considerably impaired, for example in the case of unfavourably defined default settings. (3) An error in Zammad is deemed to exist if (a) Zammad does not fulfil the contractually agreed functions when used in accordance with the agreement or (b) if Zammad proves unsuitable for the use indicated in the agreement or (c) if Zammad proves unsuitable or does not have the necessary properties for normal use, that is usual for applications of the same type and that the customer can expect from this type of software. An error pursuant to this provision is expressly deemed not to exist if the existence of one of the aforementioned conditions according to the letters (a) - (c) has only an insignificant adverse effect on the use of the application or if the failure is the result of improper handling of Zammad by the customer. (4) The method for rectifying errors is chosen at the sole discretion of the Provider. Furthermore, rectification of an error could also take the form of instructions for action to be taken by the customer. The customer is obliged to follow such instructions for action unless this is unreasonable for him/it. The Provider’s obligation to rectify errors is fulfilled when the error in this sense no longer exists. (5) Should the Provider not be able to rectify an error within the contractually agreed period, it will provide the customer with a temporary workaround solution at its own expense in as far as this is economically reasonable for the Provider. Supply of a temporary workaround solution by the Provider in no way affects the Provider’s obligation to provide a permanent rectification of the error. (6) With the conclusion of the agreement the customer authorises access to application data for the purposes of checking and rectifying error messages and errors. The Provider will only access said data to the extent necessary for such checking and rectification of errors. (7) The customer must notify the Provider of any errors without delay. Warranty claims expire within one year, unless the error was fraudulently concealed. (8) Within the sphere of his/its own influence the customer is obliged to ensure observation of legal regulations and to prevent any breaches of common decency. (9) Claims for compensation based on strict liability with absence of fault in compliance with § 536a Section 1 alternative 1 BGB is excluded.
§ 14 Liability
(1) The Provider is liable for wilful intent and gross negligence in compliance with legal regulations. In the case of slight negligence the Provider is liable only for breach of a cardinal obligation, the amount of which is limited to damage typical of the agreement and that was foreseeable at the time of the conclusion of the agreement. Cardinal obligations are fundamental, elementary obligations arising from the contractual relationship the fulfilment of which only makes the orderly fulfilment of the agreement possible, the breach of which jeopardises the purpose of the agreement and on the observation of which the customer regularly depends and may depend. (2) The exclusion of liability shall not apply in the case of damage arising from injury to life, body or health nor with regard to liability pursuant to product liability law or any warranties that have been granted. (3) In the case of slightly negligent breach of cardinal obligations the amount of the liability of the Provider is limited to foreseeable average damage typical of the agreement. (4) All the above-mentioned liability limitations shall also apply to legal representatives and any associated vicarious agents. (5) The Provider is liable for the loss of data in accordance with the preceding provisions only if such loss could not have been prevented by appropriate data security measures on the part of the customer. The liability for the loss of data is limited to the justifiable expense required to reconstruct the lost data of the customer by means of existing backup copies.
§ 15 Data traffic
(1) The Provider does not limit data traffic. However, it reserves the right to limit this in the event of an unnecessarily high volume on the part of the customer. This is in particular the case if data are exchanged in a considerable manner via Internet services such as file-sharing platforms. Normal use of the contractual services will, however, not be prevented. (2) The customer is expressly prohibited from himself/itself using the software as a file-sharing platform or any other comparable medium. (3) The maximum file size of individual files that can be uploaded in the system is decided by the Provider. (4) The storage space made available/provided for the customer depends on the respective agreement that has been concluded.
§ 16 Amendments to the terms and conditions of the agreement
(1) Unless otherwise specifically provided for, the Provider is entitled to amend or supplement the terms and conditions of the agreement insofar this is necessary for good reason, in particular due to changes in the legal situation, technical modifications or further developments or other similar reasons, and insofar this does not constitute an unreasonable disadvantage for the customer. The Provider will notify the customer in text form of the amendments or supplements at the latest six weeks before these become effective. (2) If the customer does not agree with the amendments or supplements to the terms and conditions of the agreement, he/it can object to the amendments within a period of one week prior to the intended time the amendments or supplements are to become effective. The objection requires the text form. (3) If the customer does not submit an objection, the amendments or supplements to the terms and conditions of the agreement are deemed accepted by him/it. The Provider will particularly advise the customer of the foreseen consequences of his/her behaviour with the notification of the amendments or supplements to the terms and conditions of the agreement.
§ 17 Final provisions
(1) The assignment of claims is only permissible with the prior, written approval of the other party to the agreement. Approval may not be withheld unreasonably. This shall in no way affect the provision of § 354a of the German Commercial Code (HGB). (2) A right of retention can only be asserted on account of counterclaims arising from the respective contractual relationship. (3) The parties to the agreement may only offset such claims that are legally established or undisputed. (4) All amendments and supplements to or termination of the contractual agreement require the written form. This also applies to the cancellation of this requirement for the written form, insofar the agreement does not prescribe the text form. (5) The law of the Federal Republic of Germany is applicable. Exclusive place of jurisdiction for all disputes arising from the contractual relationship of the parties is Berlin. (6) The German version of the agreement is binding. (7) Should any provisions of this agreement be or become invalid, this shall in no way affect the validity of the remaining contents of the agreement. The invalid provisions of the agreement shall be replaced by such that come as close as possible to the commercial intent of the parties.