Camunda Services GmbH ("Camunda") owns and hosts a business process modeling software (the "Software") available at Cawemo.com. Camunda wants to make the Software available to the customer ("Customer") on a Software-as-a-Service-basis. The Customer wants to use the Software and agrees to the Terms and Conditions described herein.
Therefore, the Parties agree as follows (the "Agreement"):
1 Purpose and Scope, Granting of Rights
1.1 Camunda agrees to provide the Software as Software as a Service ("SaaS") to the Customer.
1.2 Camunda grants Customer the non-exclusive, non-transferable, worldwide right to access and use the Software for his/her own purposes for the duration of this Agreement, which is hosted by Camunda, via the internet or any other data connection as an SaaS-Service for Customer's internal business purposes as described in the Preamble subject to the terms and conditions of this Agreement. A perpetual license to use the Software is explicitly not granted.
1.3 Camunda does not offer its services to consumers within the meaning of section 13 of the German Civil Code.
2 Access to the Software
2.1 Subject to this Agreement, Camunda will make the Software (in its latest version) available to Customer during the term of this Agreement through the internet. Camunda will provide Customer with access to the latest version of the Software via the internet using a web browser. The Software shall be made available at the router output of the service center where the Software is hosted (handover point).
2.2 Camunda may change, suspend or discontinue the access to the Software at any time, including the availability of the Software or any feature or content thereof, without notice or liability. Camunda reserves the right, at its sole discretion, to refuse to allow client to access the Software at any time.
2.3 The Software is hosted on third party-servers. Camunda will take measures to ensure a high availability of its servers. Camunda will not be liable for any damages resulting from server downtime which is necessary to maintain the functionality of the Software or to install upgrades or updates or for any downtime caused by the server operator. In such cases, Camunda will inform the Customer as early as possible of any possible inconveniences.
2.4 Restrictions or impairments to the access to the Software may result from circumstances not under the control of Camunda. This may include actions of third parties not acting on behalf of Camunda, technical conditions of the internet not controlled by Camunda and force majeure. Also, the hard- and software used by Customer may influence the performance of the Software. Insofar as such circumstances may influence the availability and functionality of the Software, Camunda's performance is considered as compliant with this Agreement nevertheless.
2.5 Customer shall notify Camunda immediately of any malfunction or other impairments of the functionality of the Software as precisely as possible. Otherwise, section 536c of the German Civil Code shall apply.
3 User Accounts
3.1 If the Customer wants to use the Software actively, he/she has to register. Upon registration, the Customer creates a user account with a user name and password. User name and password have to be kept confidential. The Customer will inform Camunda immediately, should he/she become aware of any potential misuse of his/her user name and/or password.
3.2 The Customer can create a project and invite further users ("project collaborators") to his/her account. Such users create their own user name and password.
4 Content, Data Backups
Customer hereby grants to Camunda the right to use all content and data provided by Customer in connection with the use of the Software as necessary solely for the purpose of providing the services as described in this Agreement to Customer and to allow others to do so in connection with the Software, pursuant to this Agreement. Customer assures that it is entitled to do so.
5 Fees and Payment
5.1 Registration and a number of project collaborators as defined by Camunda are free. For each additional project collaborator, Customer will pay a monthly subscription fee according to the pricing model as published by Camunda on the effective date of this Agreement (the "Subscription Fee"). Customer will receive monthly invoices over the respective amounts.
5.2 Camunda may block Customer's access to the Software, if payments are not made for four weeks after it is due. Camunda's payment claim shall remain unaffected by such blocking. The access will be activated again upon payment of the arrears.
5.3 Camunda reserves the right to adapt the pricing model to market developments or in case of added product features to be used by the Customer at any time. The Customer will be informed about such adaptation via email. The Customer may terminate the Agreement at any time, if he/she does not agree with the new pricing model.
Statutory law shall apply with regard to warranty. Sections 536b, 536c of the German Civil Code shall apply. The application of section 536a (2) of the German Civil Code is excluded, as well as the application of section 536a (1), as far as this provision provides for strict liability.
7.1 Camunda shall be liable according to applicable statutory provisions for damages (i) that result from a breach of its contractual obligations by Camunda, its legal representatives, or its agents with gross negligence or malicious intent, (ii) that occur as a result of the lack of a warranted quality, (iii) that are a result of a culpable injury to life, limb or health, and/or (iv) that are subject to product liability under the German Product Liability Act.
7.2 In cases of ordinary or minor negligence, Camunda shall only be liable for damages that result from a breach of essential contractual obligations. Such limitation of liability shall not apply where the damages result from culpable injuries to life, limb or health or as a result of a lack of a warranted quality. "Essential contractual obligations" shall be such obligations which make the execution of the contract possible and where a contractual party can trust in compliance with such obligations by the other party and that, if breached, endanger the fulfilment of the aim and purpose of the contract.
7.3 Camunda's liability shall furthermore be limited to damages that are typically foreseeable in the context of an agreement such this Agreement. This limitation does also apply in case of a breach of an essential contractual obligation.
7.4 Camunda shall not be liable for indirect, consequential or special damages.
7.5 Further, in case of a breach of an essential contractual obligation, Camunda's liability shall be limited to maximum amounts of EUR 250.000 per case, and EUR 500.000 overall.
7.6 Any liability other or beyond the liability provided for in this section 6 shall be excluded.
7.7 Customer shall be responsible for regular data backups. If Customer suffers damages that result from the loss of data, Camunda shall only be liable for such damages insofar as the damages could not have been avoided by carrying out data backups of all relevant data in regular intervals according to industry best practice, even if a harmful event has occurred.
7.8 All contractual and other claims against Camunda for damages or wasted anticipatory expenditure shall be subject to a limitation period of one year. This does not apply to claims resulting from Camunda's liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. Section 199 (1) of the German Civil Code shall apply. Notwithstanding the foregoing provisions in this section, the time bar comes into effect not later than five years after the claim arises.
8 Data Uploading, Indemnification
8.1 Any content and data uploaded or otherwise used by Customer is under the sole responsibility of Customer and anyone acting on Customer's behalf. Camunda will not have any responsibility and/or liability with respect to such content and data, including any obscene, threatening, defamatory, fraudulent, infringing, harassing or otherwise offensive material or content included in such content and data. Customer undertakes to not upload or let third parties upload such data. Camunda reserves the right to ban Customer from using the Software and to lock the Customer's account, if this section 8.1 is violated.
8.2 Within the scope of the processing of any personal data according to section 3 of the German Data Protection Act, Customer shall remain the responsible body for gathering, processing and use of such data.
8.3 Customer shall indemnify, defend and hold harmless Camunda against any claims including costs and reasonable attorney's fees, that (i) were submitted by any third party, where Camunda is mentioned as a result of the negligent or intentional acts or failure to act by Customer, its employees or agents, while performing its obligations under this Agreement, (ii) are based on the accusation that any content or data provided by Customer infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) are arising from or relating to Customer's failure to comply with this Agreement.
8.4 Further claims for damages of Camunda shall remain unaffected.
9 Term and Termination
9.1 The term of this Agreement commences with the registration. The Parties may terminate the Agreement until the 20th of each month to the end of the month. The Customer can do so via the respective function of the Software, Camunda will send termination notices via email.
9.2 The right of both Parties to terminate this Agreement for good cause shall remain unaffected.
9.3 Termination notices via email shall be sufficient.
10.1 The sole place of jurisdiction for all differences arising out of or in connection with this Agreement shall be Berlin, Germany.
10.2 This Agreement shall be governed and construed in accordance with the laws of the Federal Republic of Germany under exclusion of German International Private Law and the UN Convention on the International Sale of Movable Goods.
10.3 If any provision of this Agreement is entirely or partly invalid or unenforceable, this shall not affect the validity and enforcement ability of the other provisions of this Agreement. The invalid or unenforceable provision shall be regarded as replaced by such valid and enforceable provision that as closely as possible reflects the economic purpose that the parties hereto had pursued with the invalid or unenforceable provision.
10.4 Any amendment to this Agreement will be made in writing. This shall also apply to the amendment of this provision.
10.5 Camunda reserves the right to use subcontractors for the provision of its services.
10.6 Camunda reserves the right to amend this Agreement from time to time. Camunda will notify the Customer of such amendment via email two weeks before the amendment becomes effective. The Customer may terminate the Agreement according to section 9.1 of this Agreement, should he/she not agree with the amended terms.
Berlin, March 2017