Terms and Conditions
Software as a Service (SaaS) Contract
Please read this contract before using encorePeople’s services. By accessing or using the product "encore" Software as a Service (“SaaS”), you (the ”Client”) signify acceptance of and agree to the terms and conditions of this contract. Should you not agree to the terms and conditions of this contract, do not access or use the SaaS services. If the Parties have a fully executed contract that expressly governs orders for encorePeople’s software as a service offering, such contract shall supersede this contract.
This Software as a Service contract (“SaaS contract”) is entered into between parties
Represented by Managing Director Mark Gregg
Business Address: Werinherstr. 91, 81541 München
- hereinafter referred to as "encorePeople"
Master Company GmbH & Co. KGaA
Represented By you
Business Address: Address, Postcode, City
- hereinafter referred to as "the Client"
-The partnership between encorePeople and the Client can be referred to as "party" individually and "parties" when mentioned jointly.
- The Client requires third-party hosted “SaaS” (the “Services”), with respect to purpose of developing and hosting an employee reward and recognition programme;
- encorePeople has developed a specific SaaS software and web application that it makes available for Clients to integrate with their systems over the internet;
- The encore software is a software as a service and supports mutual (financial and/or non-financial) recognition among the workforce as a company-specific platform with a digital wall.
encorePeople and the Client agree that the following terms and conditions will apply to the service provided under this contract and any orders placed thereunder.
1 Subject matter of the contract
- The subject matter of this contract allows use of the encore SaaS software (hereinafter referred to as "software") within the Client's company via the Internet in return for payment and limited in time to the duration of the contract as well as the provision of storage space on the servers of encorePeople.
- These contractual conditions apply exclusively. Contractual terms and conditions of the Client shall not apply. Counter-confirmations by the Client with reference to his own terms and conditions are expressly rejected.
2 Services of encorePeople; software and storage space
- encorePeople grants the Client the use of the most current version of the software for the agreed number of authorised users via the internet. It is the responsibility of the Client to create the technical requirements for the reception of the software at the transfer point and its use.
- encorePeople guarantees the functionality and availability of the software for the duration of the contractual relationship and will maintain it in a condition suitable for contractual use.
- The Client may increase or reduce the number of authorised licensed users of the software as required at any time.
- encorePeople can update and further develop the software at any time and adapt it in particular due to a change in legal requirements, technical developments or for the improvement of IT security. encorePeople will take into account the legitimate interests of the Client appropriately and endeavour to inform the Client in due time about necessary updates and disruptions of service.
- encorePeople shall set up the production system architecture and will guarantee a 99% uptime availability of all services.
- encorepeople shall have no liability for restrictions or impairments of the services provided which are beyond the control of encorePeople, as a result Client action or force majeure. As far as such circumstances have an influence on the availability or functionality as detailed in schedule 2.5 of the service provided by encorePeople, this has no effect on the contractual conformity of the services provided.
- encorePeople shall provide the Client with storage space on its servers for the storage of data and for the purpose of using the software.
- encorePeople will schedule regular backups and secure the data. encorePeople shall not, however, have any custody with regards to the data
- The Client remains the owner of the data stored on the servers of encorePeople and can demand their return at any time.
3 User Licensing and Restrictions
- During the Subscriptions terms, Subject to the Client purchasing the User subscription, encorePeople hereby grants to the Client and the Client Affiliates a non-exclusive, non-transferable, royalty-free, and worldwide right for any employee authorised by the Client or a Client Affiliate, (each an “Authorised User”) to access and use the Services during the Subscription Term solely for the Client's internal business operations.
- In relation to the Authorised Users, the Client undertakes that:
- the maximum number of Authorised Users that it authorises to access and use the Software shall not exceed the number of User Subscriptions it has purchased;
- (b) it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
- At the Client’s request to purchase additional User Subscriptions, the Client shall pay to Ovation the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Client part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
encorePeople offers a support service for Clients for enquiries about functions of the software. Requests are processed in the chronological order in which they are received.
- Maintenance times as well as times of defect under observance of the remedial time shall be deemed to be times of availability of the software. Times of insignificant defects shall not be considered in the calculation of availability. The measuring instruments of encorePeople in the computer centre are decisive for the proof of availability.
- The Client shall immediately report defects to the Support contact available on the website. A defect, will be investigated Monday to Friday (except nationwide holidays) between 9:00 a.m. and 6:00 p.m. (service hours in Germany).
- Significant defects (failure or disruption of the software as a whole or a main functionality ) will be rectified within 8 hours from receipt of the fault report. If it is not perceived the defect will be resolved within this period, encorePeople will inform the Client
- Other significant defects (main or secondary functions of the software are disturbed but can be used; or other not only insignificant defects) will be remedied within 16 hours at the latest within the service times (remedying time).
- The elimination of insignificant defects is at the discretion of encorePeople.
6 Client's Obligations
- The Client shall protect the access of data transmitted against access by third parties, in addition to any other safeguards necessary to comply with this requirement. The Client shall ensure that the data is only used to the contractually agreed extent. Unauthorised access has to be reported to encorePeople immediately.
- The Client is solely responsible for all contents and processed data used by authorised users (e.g., employees) and agrees to comply with all applicable laws and regulations with respect to its activities under this agreement. encorePeople does not monitor content of the Client and does not check the contents used by the Client with the software as a matter of principle.
- Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services
- As an obligation or provision, in any case not as a service in the fiscal sense, but to enable the provision of services by encorePeople: The Client grants encorePeople the right to duplicate the data to be stored for the Client for the purpose of executing the contract, as far as this is necessary to provide the services owed according to this contract. encorePeople is also entitled to keep the data in a failure system or separate failure computer centre. In order to eliminate defects, encorePeople is furthermore entitled to make changes to the structure of the data or the data format.
- The Client is not entitled to reverse engineering (regression of the computer program to previous development stages, e.g., the source code, reverse analysis, reverse development, decompiling, disassembling), no matter in which form and by which means, § 69 a para. 2 clause 2 and § 69 d para. 3 UrhG remain unaffected.
- The Client may not pass on the software or parts thereof, including the documentation, either permanently or for a limited period, and may not make it available to third parties in any way make them accessible. In the event of dependent use, employees of the Client shall not be deemed third parties in the sense.
- Regarding the granting of the use of the software as well as the provision of storage space, the warranty regulations of the tenancy law (§§ 535 ff. BGB) apply.
- The Client shall notify encorePeople of any defects without delay.
- The warranty for only insignificant reductions in the suitability of the service is excluded. The strict liability according to § 536a para. 1 BGB for defects that already existed at the time of the conclusion of the contract is excluded. The application of § 536a para. 2 (tenant's right to remedy defects) is excluded. The application of § 536a para. 1 BGB (liability of the landlord for damages) is also excluded, insofar as the norm provides for liability regardless of fault.
- encorePeople cannot provide legal or fiscal advice and urgently advises to have the data protection, fiscal as well as social administrative matters concerning the use of the software independently checked by third parties - encorePeople is not responsible for this.
- The parties shall be liable without limitation in cases of intent, gross negligence and culpable injury to life, body or health.
- Notwithstanding the cases of unlimited liability pursuant to § 8 (1), the parties shall only be liable to each other in the event of a slightly negligent breach of duty in the event of a breach of essential contractual duties, i.e. duties the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the other party may regularly rely, but limited to the damage typical for the contract and foreseeable at the time of the conclusion of the contract.
- The above limitations of liability do not apply to liability under the Product Liability Act or to guarantees given in writing by one of the parties.
- If damages to the Client are a result from the loss of data, encorePeople is not liable for this, as far as the damages would have been avoided by a regular and complete backup of all relevant data by the Client. The Client will carry out a regular and complete data backup or have it carried out by a third party and is solely responsible for this.
- encorePeople guarantees that the software does not violate any rights of third parties. encorePeople shall indemnify the Client from all claims of third parties due to violations of property rights for which he is responsible in connection with the contractual use of the software upon first request as well as reimburse the costs of an appropriate legal prosecution. The Client shall inform encorePeople without delay of any claims asserted against them by third parties based on the contractual use of the software and grants all necessary powers of attorney and authority to defend the claims.
- The Client assures that the contents and data stored on the servers of encorePeople as well as its use and provision by encorePeople, do not violate applicable law, official orders, rights of third parties or agreements with third parties. The Client shall indemnify encorePeople on first demand against claims asserted by third parties due to a violation of this clause. encorePeople shall immediately inform the Client of claims asserted by third parties against them due to the data stored by means of the software and grant all necessary powers of attorney and authority to defend the claims.
10 Charges and Payments
- The Client undertakes to pay a monthly fee to encorePeople in accordance with subscription charges
- The monthly fee shall be adjusted in case of changes in the number of users or the storage space volume
- The monthly fee shall be adjusted in case of changes in the number of users or the storage space volume
- Payments are due in advance on terms agreed between the parties. Services will not start until the payment is received. Service will be terminated if payments are not received within the terms.
- If the Client delays the payment of a due remuneration by more than four weeks, encorePeople is entitled to block the access to the software after prior reminder with deadline and expiry of the deadline. The claim for remuneration of the provider remains unaffected by the blocking. Access to the software will be reactivated immediately after payment of the arrears. Further contractual and legal claims remain unaffected.
11 Term of Contract and Termination
- The contract comes into force upon agreeing or accessing this SaaS software and is concluded for an indefinite period.
- The contract may be terminated by either party with a notice period of 1 month
- The right to terminate without notice for good cause remains unaffected. In any case, the termination must be in writing.
- encorePeople shall support the Client at its own expense in the retransfer or backup of the data after termination of the contract, whereby encorePeople already points out that this data can be retrieved and stored independently during the term of the contract.
- encorePeople will delete all data of the Client remaining on its servers 30 days after termination of the contractual relationship in an unrecoverable manner. There is no right of retention or lien on the data in favour of encorePeople.
12 Data Protection; Confidentiality
- The parties shall comply with the applicable data protection regulations.
- encorePeople has access to personal data of the Client within the scope of the service provision. Therefore, the parties have concluded a corresponding order processing contract before the start of the processing. In this case, encorePeople shall process the relevant personal data solely in accordance with these provisions and in accordance with the instructions of the Client.
Both parties undertake to maintain confidentiality about all confidential information (including business secrets) which they learn in connection with this contract and its implementation and not to disclose, pass on or otherwise use this information to third parties. Confidential information in this context is information which is marked as confidential or the confidentiality of which is evident from the circumstances, irrespective of whether it has been communicated in written, electronic, embodied or oral form, in particular:
The confidentiality obligation shall not apply if the disclosing party is obliged to disclose the confidential information by law or by virtue of a final or non-appealable decision of an authority or court. The disclosing party undertakes to agree with all employees and subcontractors on a provision similar in content to the preceding paragraph. The parties clarify that the non-existence of a confidentiality obligation in sub-areas does not constitute an independent right of use; rather, all information may be subject to further legal protection, such as copyright.
- the remuneration and all related information
- the term of the contract
- the program code of the software as well as copies of the program code of the software - possibly even obtained in breach of contract - or versions of the program code of the software obtained by reverse engineering
- Personal data about the parties' employees
13 Final provisions
- Should individual provisions of this contract be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall replace such provisions by effective and feasible provisions which correspond as closely as possible to the meaning and economic purpose as well as the intention of the parties at the time of conclusion of the contract. The same shall apply in the event of a loophole in the contract.
- There are no oral or written ancillary agreements to this contract. Amendments to this contract and its annexes must be made in writing.
- German law shall apply to the exclusion of the conflict of law’s provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).
- The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the registered office of encorePeople.