Preamble
The following provisions have been translated into the English language from its original German text. This translation is based on a free translation service provided for by Google (Ireland Limited). Efforts have been made to improve the translation for an alignment with the original text. Nonetheless blueplant GmbH does not guarantee neither expressively nor implicitly the correctness or reliability of the following translated provisions. In case of discrepancies or inconsistencies of any kind, the German version shall take priority.
1. Scope of Application / Test Phase
1.1 blueplant GmbH offers web-based software on its websites. The following general contractual terms and conditions (GTC) apply to all user contracts concluded between blueplant GmbH and business customers who are not consumers within the meaning of paragraph 13 of the German Civil Code or other relevant statutory provisions.
1.2 The following GTC apply exclusively. Other contractual GTC do not become part of the contract, even if blueplant GmbH does not expressly object to them.
1.3 The GTC of blueplant GmbH apply exclusively in their current version unless the contractual partners agree otherwise in writing. This applies for all concluded similar contracts in future even if it is has not been expressively stated by blueplant GmbH in each case.
2. Conclusion of Contract
2.1 Registration by the customer is a prerequisite for the conclusion of a contract for the use of web-based software from blueplant GmbH.
2.2 By registering, the customer assures that he is an entrepreneur within the meaning of paragraph 14 of the German Civil Code and that he is registering on the Internet platform in this capacity. A breach of the aforementioned assurance entitles blueplant GmbH, without prejudice to its other rights, to terminate the contract of use with the customer without notice for good cause.
2.3 The customer may only register through an authorized person or an authorized body of the Company. blueplant GmbH reserves the right to make the conclusion of a usage contract dependent on the sending of proof of the power of representation, without being subject to verification obligations with regard to the identity and power of representation of the person acting on behalf of the customer.
2.4 The registration process is carried out by the customer by filling out and sending the registration form on the corresponding internet platform of the software. The data required for registration must be provided completely and truthfully by the customer. By submitting the registration, the customer expresses a non-binding interest in using the software and a corresponding license agreement. The customer is not entitled to conclude a usage contract.
2.5 blueplant GmbH sends the customer a separate e-mail with an offer to conclude a user contract with a reference to the conditions of the contract of use and a reference to these GTC. At the same time, the customer receives login access (username and password) for the first login (initial registration) on the corresponding website.
2.6 The contract is accepted by the customer through the initial registration using the transmitted login data. The contract can only be accepted within 24 hours of receipt of the login data. After that, a login is no longer possible. The customer is free to request new login data via the e-mail address support@blueplant.cloud. The customer has no right to a renewed sending of login data and the conclusion of a user contract. With the sending of new login data by e-mail, the customer receives a new offer to conclude the contract of use with the conditions applicable at that time (price list and GTC), which the customer can then accept again within 24 hours with the initial registration. If the customer fails to register again within the 24-hour period, this offer also expires, with the result that the customer must initiate the process described above again.
2.7 blueplant GmbH does not store the contractual provisions for the customer.
2.8 The initial registration of the customer must be done by an administrator. An administrator is an employee within the customer’s company who is authorized to manage the customer’s data set in the software. The access rights of the administrator in the software are unlimited. The customer ensures organizationally that only authorized employees are administrators.
2.9 The initial login generates access to the client account. After setting up the first administrator (initial administrator), the customer can access the web-based software and the mobile application (available in the Google Play Store and Apple App Store).
2.10 The initial administrator can set up additional users and additional administrators.
2.11 By concluding the user contract, blueplant grants the customer the right to use the software for 30 days exclusively for test purposes (test phase) from the time of the first complete initial registration by the customer. The use of the web-based software is free of charge for the customer during the test phase.
2.12 The contract of use can be terminated during the 30-day test phase with a notice period of 1 day via e-mail to: info@blueplant.cloud.
2.13 Within the 30-day test phase, the customer must properly set up the mandatory billing process in accordance with clause 7 with valid account details in order to continue to use the software and the mobile application. If he fails to do this, the customer’s access to the software and the mobile application will be blocked from the 31st day since initial registration. The customer can complete the billing process within 30 days after the end of the 30-day test phase. If he continues to fail to do so despite a request from blueplant GmbH, the client account will be irrevocably deleted after the 30th day after the end of the 30-day test phase.
2.14 If the customer has complied with the billing process within the test phase in accordance with clause 7, the conditions already confirmed by the customer upon initial registration apply (price list and GTC). If the customer only sets up the billing process after the test phase has ended within the possible period of 30 days, the obligation to pay costs will apply from the first day after the end of the 30-day test phase, even if the client account is blocked. The obligation to pay depends on the conditions applicable between the customer and blueplant GmbH (price list and GTC). The blocking of the client account will be canceled by blueplant GmbH immediately after the billing process has been properly set up.
2.15 The customer can only download his data during the 30-day test phase using the export available in the client account. The customer will no longer be able to access these data files after termination of the contract (whether after termination or after the 30-day test phase has expired).
2.16 After the 30-day test phase has expired, each user and administrator set up is subject to a fee in accordance with the applicable conditions (price list and GTC).
2.17 Each user activated by an administrator receives an access authorization that corresponds in scope to the role in the system assigned by the customer. The login data will be sent to the user’s email address. It is the customer’s responsibility to ensure that only authorized employees have access to the software as activated users.
2.18 The customer determines the usage volume of the software by activating or deactivating users and administrators.
2.19 A user account may only be used by one of the customer’s employees. The possibility of using one user for several employees is excluded. The customer undertakes to ensure this organizationally.
2.20 Administrators can also be deactivated by the customer himself. However, during and after the 30-day test phase has expired, at least one administrator must always be systemically activated. All other administrators, as well as users, can be activated and deactivated by the customer as desired. The customer can then terminate the last remaining administrator within the notice period according to clause 4. This ensures that the customer’s data is retained and accessible in the client account until the notice period expires.
3. Customer Rights and Obligations
3.1 The customer is only entitled to use the software to process his own data (including customer data) in his own company for his own purposes. blueplant GmbH hereby grants him the powers required for this use as a non-exclusive, simple right of use for the duration of the user contract.
3.2 The customer is not entitled to pass on the software or parts thereof to a third party or to enable a third party to use or learn about it or to use the software for a third party.
3.3 Companies affiliated with the customer, self-employed employees (freelancers) and service providers commissioned by the customer to manage their own operations are not considered third parties within the meaning of clause 3.2. However, these are to be committed by the customer to these contractual provisions and these GTC of blueplant GmbH. In the event of a breach of these, the customer is liable in accordance with these GTC with blueplant GmbH.
4. Contract Start, Duration and Termination
4.1 The contract of use begins with the initial registration by the customer.
4.2 The user contract (and thus also the last remaining administrator) can be terminated by the customer with a notice period of one month to the end of the month. During the test phase, the user contract can be terminated by the customer with one day’s notice via e-mail to info@blueplant.cloud. The tenant account and the last remaining administrator will be deactivated at the end of the notice period. All other users can be deactivated in the software (see also clause 2). If users or other administrators have not been deactivated by the customer before the end of the notice period, they will be automatically deactivated by blueplant GmbH upon expiry of the notice period. The obligation to pay only ends with deactivation.
4.3 The contract of use can be terminated by blueplant GmbH with a notice period of 12 months to the end of the month.
4.4 The parties are free to terminate the contract for good cause and thus without notice. Termination for important reasons must be threatened in writing with a notice period of at least two weeks, stating the reason for termination. If termination without notice by blueplant GmbH is based on breach of contract by the customer, blueplant GmbH retains the contractual remuneration as the minimum damage to which blueplant GmbH would have been entitled without the termination. The claim for damages does not exist if the customer is not responsible for the breach of duty.
4.5 The termination of the contract of use by the customer must be sent via e-mail to the following e-mail address: info@blueplant.cloud.
4.6 The customer will download and save his data on his own responsibility in good time before the termination of the contract using the export option available in the client account. The customer will no longer be able to access this data after the contract has ended for data protection reasons.
5. Subject of the Contract / Scope of Services
5.1 The subject of these GTC is the provision of web-based software by accessing the servers of blueplant GmbH or third parties commissioned by blueplant GmbH via the Internet against payment of the agreed fee. It is the customer’s responsibility to create the technical requirements for receiving the software at the transfer point (router exit of the respective data center) and using it.
5.2 Before concluding the contract, the customer checked that the specification of the software corresponds to his wishes and needs. He is aware of the essential functional features and conditions of the software. The customer could take this from the website of the software.
5.3 The list of services specified at the time the contract of use was concluded is decisive for the scope, type and quality of the deliveries and services, which can be accessed on the respective website of the blueplant GmbH software. Other information or requirements only become part of the contract if the contractual partners agree to this in writing or if blueplant GmbH has confirmed them in writing. Subsequent changes to the scope of services require a written agreement or written confirmation by blueplant GmbH.
5.4 Product descriptions, illustrations, test programs, etc. are descriptions of performance, but not guarantees. A guarantee requires a written declaration by the management of blueplant GmbH.
5.5 blueplant GmbH provides all deliveries and services according to the state of the art.
5.6 After individual agreement, customers receive the non-exclusive, non-exclusive right for the duration of the usage contract to use them for internal purposes to the agreed extent. The scope results from the individual agreement and the underlying purpose of use.
5.7 The services provided on the basis of these GTC require the use of certain Internet browsers and a correspondingly fast Internet connection. Unless otherwise permitted by blueplant GmbH, the customer must use a current desktop browser version of Microsoft Edge, Apple Safari, Google Chrome or Firefox. The customer is responsible for maintaining an adequate internet connection and system resources. A current version of iOS and Android is required to use the smartphone app.
6. Services / Service Time
6.1 Information on times of delivery and performance are non-binding unless they have been designated as binding in writing by blueplant GmbH.
6.2 Delivery and service periods are extended by the period in which the customer is in default of payment from the contract and by the period in which blueplant GmbH is prevented from delivering or providing services due to circumstances for which it is not responsible, and for a reasonable start-up time after the end of the impediment. These circumstances also include force majeure and labor disputes. Deadlines are also considered to be extended by the period in which the customer does not provide a cooperation service contrary to the contract.
6.3 If the contractual partners subsequently agree on other or additional services that affect agreed deadlines, these deadlines are extended by a reasonable period of time.
6.4 Reminders and deadlines set by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks is only appropriate in the case of particular urgency.
6.5 The place of performance of services is the place where the service is to be provided. For the rest, the place of performance for all services from and in connection with this contract is the registered office of blueplant GmbH.
6.6 Blueplant GmbH is entitled to have its services provided by third parties (service providers) at any time without prior information or consent from the customer.
7. Compensation / Payment / Price Adjustment / Offsetting
7.1 The prices stated on the respective website of the blueplant GmbH software at the time the user contract was concluded apply. The prices there are monthly net prices in euros and do not include the statutory sales tax at the applicable statutory rate, if applicable. The agreed remuneration is due immediately after the end of the test phase.
7.2 There is a monthly billing for each user and administrator. The billing period begins with the activation of the respective user or administrator, but not before the end of the test phase (i.e. at the earliest from the 31st day after the initial administrator was set up by the customer).
7.3 Users and administrators are billed to the day. This means that the day of activation and the day of deactivation are billed in full by users and administrators. The customer’s obligation to pay the fee no longer applies in the event of deactivation from the following day. The only exception is the last remaining administrator, who can only be terminated within the framework of the notice period in accordance with clause 4.2 and will be billed until the end of the notice period.
7.4 blueplant GmbH sets up a billing process for the customer. blueplant GmbH can also provide external billing software for this purpose. The customer undertakes to use the payment via the billing software provided by blueplant GmbH and the prepared billing process. blueplant GmbH undertakes to provide the customer with access to the billing software used in good time. The customer receives a monthly statement of the activated users and administrators via this billing software. Billing takes place in advance for the following service period. The users who are activated or deactivated during the performance period will be taken into account pro rata in the following billing. Pro rata billing takes place in accordance with clause 7.3. If the customer fails to set up the billing process properly, blueplant GmbH is entitled to block access to the software until the customer has set it up in the billing software. During the blocking, the customer’s obligation to pay remains.
7.5 blueplant GmbH can adjust the prices for the fee-based contractual services to a reasonable extent with a period of three months. blueplant GmbH will notify the customer of this price adjustment and the effective date of the price adjustment in text form. The change will take effect from the date specified in the notification. The price adjustment does not apply to the periods for which the customer has already made payments. If the price increase is more than 15% of the previous price, the customer can object to this price increase with a period of two weeks from notification. A price change resulting from a change in the scope of features or the number of employees to be managed is not considered a price adjustment within the meaning of this clause. If the customer objects to a change within the meaning of this clause in due form and time, the contractual relationship will be terminated after the ordinary notice period has expired (see clause 4.2).
7.6 If the customer delays the payment of a due remuneration by more than four weeks, blueplant GmbH is entitled to terminate the contract without notice after a prior reminder with a deadline and the expiration of the deadline. This is also the case in cases where the customer has observed the billing process and has also set up the billing software, but there are still delays in payments or returned direct debits. Access to the software will be blocked from the first day of the delay. blueplant GmbH’s claim to remuneration remains unaffected by the blocking. Access to the software will be activated again immediately after the arrears have been settled. In this case, the right to block access continues to exist as a milder means. If the customer has observed the billing process and has also set up the billing software and there are still delays in payments or returned direct debits, blueplant GmbH can block access as soon as it becomes aware of this and proceed as described above.
7.7 The customer can only offset claims recognized by blueplant GmbH or those that have been legally established. Except in the area of § 354 a HGB, the customer can only assign claims from this contract to third parties with the prior written consent of blueplant GmbH. The customer is only entitled to a right of retention or to pleading that the contract has not been fulfilled within this contractual relationship.
8. Defects of Title
8.1 blueplant GmbH guarantees that the contractual use of the software by the customer does not conflict with the rights of third parties. In the event of legal defects, blueplant GmbH provides a guarantee by providing the customer with a legally correct option to use the software or equivalent software at the discretion of blueplant GmbH.
8.2 The customer shall immediately inform blueplant GmbH in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. blueplant GmbH supports the customer in defending himself against attacks by third parties by providing advice and information.
9. Material Defects
9.1 The software has the agreed quality at the time of the transfer of risk and is suitable for the contractually stipulated use, or for normal use in the absence of an agreement. It satisfies the criterion of practical suitability and has the usual quality for software of this type; however, it is not without error.
9.2 A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality is not taken into account.
9.3 Claims according to § 536a BGB, in particular the no-fault guarantee liability and the right to take action yourself, are excluded.
9.4 The customer is obliged to inform blueplant GmbH immediately of any defects and supports blueplant GmbH in the error analysis and elimination of defects by specifically describing any problems that occur, informing blueplant GmbH comprehensively and granting it the time and opportunity required to eliminate the defect. blueplant GmbH can remedy the defect on site or in its business premises at its discretion.
9.5 In the case of material defects, blueplant GmbH can initially provide supplementary performance. At blueplant GmbH’s discretion, supplementary performance is carried out by eliminating the defect, by providing software that does not have the defect, or by blueplant GmbH showing ways of avoiding the effects of the defect. Due to a defect, at least three attempts at rectification must be accepted. An equivalent new program version or the equivalent previous program version without the error is to be accepted by the customer if this is reasonable for him.
9.6 If blueplant GmbH finally refuses the subsequent performance or this finally fails or is not reasonable for the customer, the customer can either withdraw from the contract or reduce the remuneration appropriately and additionally demand damages or reimbursement of expenses. The claims become statute-barred according to clause 13.
10. Technical Availability
10.1 blueplant GmbH provides the customer with the software with an availability of at least 95% on an annual average.
10.2 The customer is obliged to inform blueplant GmbH immediately in writing as soon as the software is not available.
10.3 blueplant GmbH can interrupt the availability of the software for a period of time specified in advance and communicated to the customer in order to carry out maintenance work and corrective updates.
10.4 When calculating the availability according to clause 10.1, failures due to necessary maintenance work and error-correcting updates and force majeure (e.g. strikes, unrest, natural disasters, epidemics) are not taken into account. Blockings by blueplant GmbH, which blueplant GmbH may deem necessary for security reasons, are also not taken into account, provided that blueplant GmbH had previously taken appropriate precautions for security or that blueplant GmbH carries out because the customer is in default with his contractual obligations (e.g payment of the agreed remuneration).
11. Maintenance of the Software / Error Classes / Response Times
11.1 blueplant GmbH will carry out the necessary maintenance of the software as part of its maintenance work and provide troubleshooting assistance via support. blueplant GmbH provides the services according to the current state of the art and in such a way that they are based on the interests of all software users.
11.2 The contracting parties agree on the following error classes and response times (limited by clause 11.4):
Error class 1: Operation-impeding errors: The error prevents the customer’s business operations; there is no workaround possible.
Response time: blueplant GmbH begins troubleshooting as quickly as possible, but no later than four hours after the error message is reported and continues to do so vehemently until the error is eliminated.
Error class 2: Operation-hindering errors: The error considerably hinders the customer’s business operations; however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties.
Response time: In the event of an error message before 10:00 a.m. on a support day (according to clauses 11.1 through 11.3), blueplant GmbH will begin to eliminate the error on the same day, in the event of a later error message not later than at the beginning of the next support day. blueplant GmbH can initially show a workaround and eliminate the error later if this is reasonable for the customer.
Error class 3: Other errors.
Response time: blueplant GmbH begins troubleshooting within a week or blueplant GmbH eliminates the error with the next release if this is reasonable for the customer.
11.3 The periods according to clause 11.2 begin with the error message by the customer in accordance with the support process of blueplant GmbH.
11.4 To start the response times according to clause 11.2, the customer’s error message must be received by blueplant GmbH on a support day within the support hours. If an error message is received outside of the support times, the response time begins on the next support day with the start of the support time (e.g. receipt of an error class 1 error message on Sunday at 2:00 p.m. – end of the response time on Monday at 12:00 p.m).
11.5 Troubleshooting will only be performed within support hours, interrupted by the termination of support hours, and will continue the next day at the start of the next support hour. In the case of error class 1 errors, troubleshooting will continue beyond the support hours.
11.6 The division into the various error classes is made by agreement between the parties. If the parties cannot agree, blueplant GmbH shall determine the category at its reasonable discretion, considering the effects that the disruption in question has on the customer’s business operations.
12. Support
12.1 blueplant GmbH sets up support for customers to eliminate technical faults and errors that occur when using the software. For this purpose, blueplant GmbH can also provide an integrated external software solution. The customer is obliged to place support requests by using the software provided by blueplant GmbH exclusively and in compliance with the support process of blueplant GmbH.
12.2 blueplant GmbH will inform about this in advance and make the software available free of charge.
12.3 The customer can place support requests in the support process at any time. However, the support of blueplant GmbH only processes customer inquiries within the support hours: Mondays to Thursday from 8:00 a.m. to 5:00 p.m. and Fridays from 8:00 a.m. to 4:00 p.m. Exceptions hereto are the national German holidays, additional public holidays of the federal state of North Rhine-Westphalia and December 24th and 31st of each year.
12.4 Further support services, such as other response times and deadlines, on-call service, or assignments by blueplant GmbH require a separate contract.
12.5 Blueplant GmbH can also use third parties (service providers) to provide the support services owed to the customer in accordance with Section 6.6.
13. Statute of Limitations
13.1 The limitation period is in the case of material defects, one year.
13.2 Two years for claims arising from defects of title.
13.3 Two years in the case of claims for damages or reimbursement of futile expenses that are not based on material defects or defects of title; the period begins at the point in time at which the customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.
13.4 The statute of limitations begins at the latest with the expiry of the maximum periods specified in § 199 BGB.
13.5 In the case of damages and reimbursement of expenses due to intent, gross negligence, guarantee and fraud, clause 13.1 does not apply.
14. Liability
14.1 blueplant GmbH pays damages or compensation for wasted expenses, regardless of the legal reason, only to the following extent:
14.2 Liability for intent and fraudulent intent is unlimited.
14.3 In the event of gross negligence, blueplant GmbH is liable in the amount of the typical damage that was foreseeable at the time the contract was concluded.
14.4 In the case of slight negligence, blueplant GmbH is only liable if a cardinal obligation has been violated. In this case, blueplant GmbH is liable in the amount of the typical damage that was foreseeable at the time the contract was concluded.
14.5 The objection of contributory negligence remains open to blueplant GmbH. In particular, the customer has the obligation to back up data and to protect it against malware in accordance with the current state of the art.
14.6 In the event of injury to life, body and health and in the case of claims under the Product Liability Act, the statutory regulations apply without restrictions.
14.7 blueplant GmbH is only liable for damages from a warranty guarantee if this has been expressly accepted in the guarantee. This liability is subject to the restrictions set out in clause 14.1.
14.8 If it is necessary to restore data or components, blueplant GmbH is only liable for the effort required for the restoration with proper data backup and failure precautions by the customer. This liability only applies if the customer has carried out data backup and failure prevention appropriate to the type of data and components before the incident. This does not apply if this has been agreed as a service by blueplant GmbH.
14.9 clauses 14.1 to 14.5 apply accordingly to claims for reimbursement of expenses and other liability claims by the customer against blueplant GmbH.
14.10 The provisions in Section 14 apply accordingly to service providers commissioned by blueplant GmbH and used by the customer.
15. Copyright / Rights of Use
15.1 The software is legally protected. Copyrights, patent rights, trademark rights and all other property rights to the software and other items that blueplant GmbH provides or makes accessible to the customer in the context of contract initiation and execution are the exclusive property of blueplant GmbH in the relationship between the contractual partners. Insofar as third parties are entitled to the rights, blueplant GmbH has the corresponding exploitation rights.
15.2 The customer is only entitled to use the program to process his own data in his own company for his own purposes.
16. Confidentiality / Data Protection
16.1 The contracting parties are obliged to treat all objects that they receive or become aware of from the other contracting party before or during the execution of the contract, which are legally protected or contain business or trade secrets or are marked confidential, as confidential, even after the end of the contract, unless they are publicly known without violating the duty of confidentiality. The contractual partners keep and secure these items in such a way that access by third parties is excluded.
16.2 The customer only makes the contractual items accessible to employees and other third parties who need access to carry out their official duties. He instructs these persons regarding the confidentiality of the objects.
16.3 blueplant GmbH processes the customer’s data required for business transactions in compliance with data protection regulations. The customer will conclude the necessary data protection agreements with blueplant GmbH for the handling of personal data.
16.4 blueplant GmbH provides the required mandatory information according to §§ 12 GDPR on the software website for retrieval.
16.5 blueplant GmbH reserves the right to generate anonymous statistics itself or through an external service provider using the data made available to it by its customers on the software platform and to use them for its own purposes. Data is only transmitted to an external service provider for this purpose in a pseudonymized or anonymous manner in accordance with the provisions of the GDPR.
16.6 blueplant GmbH points out that it will use external service providers in order to fulfill its contractual services. This does not require the consent of the customer.
16.7 The customer is responsible for all content and data that he provides for in the software and application of blueplant GmbH. This also applies to compliance with the associated data protection deletion periods, etc. If blueplant GmbH makes systemic default settings in the software or application for this purpose, it is the customer’s responsibility to check these, change them if necessary and adapt them to the applicable legal requirements.
16.8 blueplant GmbH may publicly name the customer as a reference customer.
17. Subject to Change
17.1 blueplant GmbH reserves the right to change its applicable GTC at any time, provided that the changes appear necessary and the customer is not disadvantaged contrary to good faith. The customer has the right to object to the changed GTC within four weeks of being notified about the changed GTC electronically. After receipt of an objection, the contract will initially be continued under the previous GTC. However, blueplant GmbH has an extraordinary right of termination with a notice period of two weeks from receipt of the objection.
18. Final Provisions
18.1 Changes and additions to individual contracts between the parties and these General GTC must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, is sufficient to ensure compliance with the written form.
18.2 The law of the Federal Republic of Germany applies to all contracts between the parties, excluding the conflict of laws and the UN sales law.
18.3 The place of performance and exclusive place of jurisdiction for all disputes arising from and in connection with this contract between blueplant GmbH and the customer is the registered office of blueplant GmbH for contracts with merchants.
