Software as a Service (SaaS) – Terms and Conditions of Use

PLANTA Projektmanagement-Systeme GmbH

Article 1 Subject Matter and Conditions

The provision of the PLANTA project management system PLANTA pulse for use via Internet (“SaaS” or “service”) can be used solely on the basis of these terms and conditions (hereinafter referred to as: “terms and conditions of use”). Other terms and conditions shall not become part of this agreement, even if PLANTA does not expressively object them. Other parts of this license agreement are the General Terms and Conditions and, where required, the SaaS contract (“SaaS contract”), the Service Level Agreement (“SLA”) and the attachment with the parameters on which the order is based (“scope of the order”).
These terms and conditions of use govern the contractual relationship between PLANTA and the natural or legal persons using the service free of charge or in return for payment (hereinafter referred to as “customers”).
PLANTA reserves the right to change these terms and conditions of use. Registered customers are notified via e‑mail about any changes to these terms and conditions of use. They are deemed to be accepted by the customer if the customer does not object the changes within six weeks after receipt of this notification. The timely dispatch of the objection within the above-mentioned period shall be deemed sufficient. The notice of objection can be sent by mail or by e‑mail to the addresses specified under Head Office in the imprint. PLANTA commits itself to explicitly point out to the customer, in the e‑mail which notifies about the change, the significance of the six week period and the legal consequences of remaining silent. The mentioned legal consequence shall only apply if the user has actually been informed.
A prerequisite for the use of the service is the conclusion of an agreement about the use of PLANTA software between PLANTA and the company or employer of the user who has registered for the service.
An agreement on the use of the service is concluded by the customer informally applying to PLANTA for access to the service, PLANTA making an offer for the conclusion of a license agreement by sending the service access data and these terms and conditions of use to the customer via e‑mail, and the customer accepting this offer as a user of the service by using the access data for the first time.
The registration requires the transmission of the following data to PLANTA: valid e‑mail address, first name, last name, company name, and company address (for students: specification of the university/faculty).
In the course of his registration, the user must not infringe the rights of any third party. A violation of any third party rights shall, for example, be given if personal information or other third party data, like name or e‑mail address, is used without their consent.
Multiple registrations are not allowed.
The customer shall be obliged to change the password issued in the registration after first login.

Article 2 Services

PLANTA makes the service available to the customer for retrieval via Internet during the contract period. PLANTA can thereby use own IT systems and IT systems of third parties within the framework of what is legally permissible in terms of data protection. The service is usually accessed via a client software (“client component”) which is made available by PLANTA for download by the customer or via the Internet browsers mentioned in the respective system requirements. PLANTA only owes the provision of the service up to the Internet connection of the computer center in which the service is run (“delivery point”). The Internet connection from the delivery point to the customer shall not be an object of performance. The customer can only use the service if he has a sufficiently fast Internet connection. The required bandwidth depends on the intensity of use and on the data amount of the customer.
PLANTA provides storage for customer data in the amount ordered in accordance with the contractual agreement.
Services which go beyond the provision of the service, like installation and setup of the client component, parameterization, customizing, migration, training, etc., shall only be due if they are ordered separately.
Minimum Purchase Volume User-Scale
The minimum purchase amount for the number of users for which the service is provided to the customer is set out in annex 2.
Systems
The customer will get access to the systems specified in annex 2.
Quantity Structure
Users are distributed to the individual systems as set out in annex 2.
Computing Center
The service is hosted in the European Economic Area.
The architecture and operation of the PLANTA SaaS platform is continuously modernized. This includes all aspects of the platform like authentication mechanisms, the employed operation systems and databases, but also parallel processes like monitoring, log analysis, and thread detection. One of the most important aspects here is data backup which is effected via point-in-time recovery and periodic snapshots of all data. All data is saved in accordance with the encryption at rest principle; this applies to both live data and backups. The generated backups are stored at several locations off-site. Upon request, the data can additionally be transmitted to the customer via VPN.
The customer shall not use any software or other technical facilities which change, extend, or compromise the functioning of the service. In particular, the customer shall not access the service by any technical means other than the client component made available by PLANTA or by the Internet browsers mentioned in the system requirements.
The customer treats the access data for the service as strictly confidential. The customer shall only give access to those of his own users who are allowed to use the service in the course of their professional duties in accordance with the agreed restrictions. The customer is only permitted to use the service for his own purposes. Any use by or for any third party, whether free of charge or in return for payment, is impermissible.
If the customer suspects that his access data has become known to a third party or that a third party unauthorizedly uses the customer’s access to the service, the customer shall be obliged to immediately inform PLANTA about this in writing.
If PLANTA has any indication that the customer uses the service contrary to the contractual agreements or that a third party unauthorizedly accesses the service with the access data of the customer, PLANTA shall be entitled to suspend the customer’s access to the service until clearance of this matter. Except where there is imminent danger, PLANTA shall give the customer the opportunity to respond before such a measure is taken. During the time of suspension of access, the customer continues to be obliged to pay the contractual remuneration, unless he is not responsible for the circumstances which gave rise to the suspension of access.
The customer shall be obliged to install and update the client component provided by PLANTA on the computer systems of its employees at its own responsibility. The customer provides for the hard and software environment required for the operation of the client component. Essential requirements are regulated in the PLANTA system requirements (“system requirements”) which PLANTA makes available to the customer upon written request.
It is impermissible to let several persons use one user account.
The customer may only use the service in accordance with the contractual agreements and the legal provisions. Contents which the customer creates using the service, as well as other data which the customer creates, saves, or makes available with the help of the service (together “data of the customer”) must not breach applicable law or infringe third party rights or decency. The storage or processing of data which

is discriminatory, racist, inhuman, or glorifies violence,

incites or endorses criminal offenses,

contains pornography or breaches youth protection law,

infringes personal rights of third parties, or

infringes copyrights of third parties

is impermissible.

Article 3 Term and Termination

The minimum contract term and the termination period are contained in annex 2.
The right to termination for good cause remains unaffected. For PLANTA, there is good cause, particularly if

i. the customer fails to make payment for more than two months;

ii. the customer stops to make payments, or if insolvency or any comparable legal proceeding is requested by him or, permissibly, by PLANTA or any other creditor, and such a proceeding is initiated or the initiation of such a proceeding is rejected on the grounds of insufficient assets;

iii. the customer breaches the contractual agreements not only insignificantly and does not cease such breach within a reasonable period upon warning notice from PLANTA.

a) declarations of termination shall be invalid unless made in writing.

b) Otherwise, part 1, section 6 of the GTC (annex 3) shall apply.

Article 4 Remuneration and Payment

Remuneration and payment are set out in annex 2. In the case of a contradiction between the order and annex 2, the latter shall prevail.
One-off costs: PLANTA invoices implementation costs to the customer in advance, immediately after conclusion of the contract.
PLANTA invoices the remuneration agreed upon to the customer in advance on an annual basis, unless otherwise agreed.
In the following cases, PLANTA shall be entitled to increase the remuneration agreed upon:
i. once per calendar year by a maximum of 5%;
ii. at the beginning of each renewal period to the software license price changes in the past year in accordance with the PLANTA price list applicable from time to time.
The following rules apply to price changes:
i. PLANTA notifies the customer about price changes in writing four months in advance. The price change is deemed to be agreed if the customer does not object in writing within four weeks of receipt of the notice.
ii. In the notice, PLANTA points out to the customer, in accordance with i), the deadline for objection and the legal consequences when failing to meet this deadline.
iii. If the customer objects, PLANTA shall be entitled to prematurely terminate the SaaS agreement with a notice period of 3 months, namely at the time at which the price change would become effective according to i).

Article 5 Contract extensions

The customer shall have the right to extend the service by the scales mentioned in the “Scope of the order” annex at any time.
The termination of an extended user package shall not affect the remaining user packages and this SaaS contract with regard to their existence and term.
PLANTA shall invoice the customer in advance for the costs of an extended user package.

Article 6 Scope of the Service

Availability of the service
The service is available to the customer within the following service level:

*The availability applies within the service times (Monday — Thursday: 9.00 a.m. to 5.00 p.m., Friday: 9.00 a.m. to 4.00 p.m.), except for the holidays in Baden-Wuerttemberg as well as 24 and 31 December (all times refer to GMT+1).

The availability of the service (“agreed availability”) always refers to the productive system, to a calendar year, and to the point of delivery only, i.e. to the router output of the computing centers which host the server.

The availability of the service in a contract year is calculated based on the following formula:
Total minutes in a contract year = TMC
Total minutes unavailable in a contract year = TUA
Availability = ((TMC – TUA) x 100) / TMC

For the purpose of this calculation, the service is considered as unavailable to the extent to which the service is not available at the point of delivery. Unavailability is not deemed to be given in the case of failure and interruption due to the exceptions set out in sections 6.2 – 6.4. The protocols and data by PLANTA shall be the sole basis for any calculation and determination.

PLANTA provides a service hotline for general service queries:

E‑mail: hotline@planta.de
Phone: (premium version only)

For disruption reports, PLANTA additionally provides the following service contacts:

E‑mail: operations@planta.de

Additional performance features of the services provided by PLANTA are described in the Service Level Agreement (annex 1, “SLA”).

Maintenance

The service is not deemed to be unavailable due to interruptions caused by maintenance measures taken by PLANTA,

(i) about which the customer has been informed at least 8 hours in advance;
(ii) which are carried out during the standard maintenance window (“scheduled maintenance”, cf. section 6.4) or
(iii) which are caused by a customer request outside the scheduled maintenance.

Exceptions

The service is not deemed to be unavailable due to failure

(i) which is caused by the unavailability of the customer network or by bandwidth restrictions outside of the computing center used by PLANTA (i.e. beyond the “point of delivery”);
(ii) which is based on the consequences of errors or other problems of the software, as described in Article 3 of the SLA.

Maintenance Window

For the scheduled maintenance of the provided software, PLANTA shall have a maintenance window on the first Friday of each calendar month between 9.00 a.m. and 4.00 p.m (GMT+1). Within these maintenance windows, the availability of the service can be suspended for the announced number of hours.

Monitoring

PLANTA shall continuously monitor all systems to ensure the agreed availability of the service.

Security

In the provision of the service, PLANTA shall comply with the state-of-the-art in terms of data and IT security.

Article 7 Warranty, Service Disruptions

The customer shall immediately report the disruption of the service and any impending danger (e.g. unauthorized access of third parties, malware) to PLANTA via e‑mail to operations@planta.de. The customer shall take all required measures, within reasonable bounds, to determine, restrict, and document the disruption.

The elimination of defects and disruptions as well as the customer requirements to report disruptions and the information and data to be provided by the customer are governed by the SLA. The reaction, qualification, cause analysis, and repair times applicable to the customer arise from Article 6.

Article 8 Liability

In the case of defects or disruptions, the customer shall initially remain obliged to pay the agreed remuneration. The customer’s right to reclaim the remuneration in part or in full in the case of defects or disruptions based upon the principles of unjust enrichment shall remain unaffected by this provision. PLANTA shall pay compensation or provide reimbursement for futile expenses, regardless of the legal ground (e.g. from contractual obligations under legal or similar transactions, defects in materials or title, breach of obligation, and tortious act) only to the following extent:

i) In the case of intent, fraud, and guarantee, the liability shall be unlimited. In the case of gross negligence, the liability shall be limited to the typical damage foreseeable at the time of conclusion of the contract.

ii) In the case of slightly negligent breach of a cardinal obligation (obligation the fulfillment of which is essential to the proper execution of the contract and on the observance of which the contractual partners regularly rely and may rely, and the breach of which jeopardizes the attainment of the contractual purpose), PLANTA shall be liable up to the amount of the typical damage which is foreseeable at the time of conclusion of the contract.

The option of claiming contributory negligence remains open to PLANTA. The purchaser shall, in particular, have the obligation to back-up data and to block malware in accordance with the state of the art from time to time.

PLANTA shall only be liable for hardware and software defects which already existed at the time of provision of the service and for which PLANTA is responsible.

For violation of life, body, and health and for claims under the product liability law, the legal regulations apply without any limitations.

For work performances, the warranty period follows the legal provisions. Except for cases stated in Article 8.1 i) and 8.4, the limitation period under Article 195 BGB amounts to 2 years, the limitation period under Article 199 section 3 number 1 amounts to 7 years.

Article 9 Data Protection

Insofar as the customer uses the service to process data which can be attributed to an identified or identifiable person, the customer shall be solely reliable to ensure that the respective person concerned has given express consent to the processing of his data or that there is a legal permission. The customer shall always remain the party responsible with respect to such personal data. The Customer shall indemnify PLANTA from any third party claims whatsoever and shall compensate PLANTA for any damage incurred to PLANTA due to a transmission of personal data which breaches data protection law, unless the customer proves that he is not responsible for the breach.

The contracting parties shall enter into an agreement on the processing of orders insofar as this is required under the legal provisions applicable from time to time.

Article 10 General Practice Regarding Use and Storage

The customer acknowledges that PLANTA can determine general procedures and restrictions with regard to the use of the service, including but not limited to the maximum number of days for which content is stored by the service as well as the maximum number of e‑mail messages which can be sent from or received by an account, the maximum size of an e‑mail message which can be sent from or received by an account, the maximum storage space allotted on the PLANTA servers on behalf of the customer, and the maximum number of times the customer can access the service in a given period of time (and their maximum duration). The customer agrees that PLANTA assumes no responsibility or liability for the deletion or the failure to save contents and other information maintained or transmitted by the service. The customer acknowledges that PLANTA reserves the right to deregister accounts which are inactive for a fairly long period of time. The customer furthermore acknowledges that PLANTA reserves the right to change these general procedures and restrictions from time to time.