Contractual conditions for the use of software via the Internet (Software as a Service)

top.legal GmbH, Trogerstr. 19a, 81675 Munich (hereafter”contractors“or “top.legal”) has developed a web-based software solution for contract automation (”softwares“).

top.legal offers companies an end-to-end platform for collaboration and management of contracts, with the aim of concluding contracts more quickly and analysing contracts one by one after another after negotiation time and time until conclusion. The AI-enabled system offers contract creation, contract negotiation, e-signature and contract analysis and saves companies up to 90% of the time they normally have to spend on contracts.

For the use of the software and the provision of additional services (”Services“), these general terms and conditions apply (”TERMS AND CONDITIONS“). For more information about the functionalities of the platform and services, please visit https://www.top.legal.

For the term of the contract, the contractor grants the client the paid, worldwide, non-exclusive and non-transferable right to use the software as intended, subject to the suspensive condition of full payment of the agreed remuneration. The client may only use the software within the framework of the contractual provisions. The client is not entitled to the source code of the software. The client may only use the software for his own purposes. Use for own purposes includes the intended use of the products for general business purposes of the client and the processing of the client's data. This does not include the use of the products for third parties, for example as a service provider or any other transfer or mediation of use to third parties.

The client is entitled to have the software used by his own employees or by third parties for his own purposes. As part of the initial registration, the client creates a super admin user account. The super admin user can then create standard user accounts. The software may be used by a corresponding number of named users in accordance with the number of users agreed in the respective order (”Named user license“). The client must document the respective authorized users. Joint use of the software by different users under a common user account is excluded. The client is responsible for the use of the software by its users and for all damage caused by negligent or intentional breaches of duty by its users.

Unless otherwise agreed, all rights to software and services provided by the contractor or developed under this contract belong exclusively to the contractor. All rights to any type of change, development or improvement of the products or services carried out by the client are also exclusively owned by the contractor.

The software may contain open source software components. The use of these components is exclusively subject to the corresponding terms of use of the open source software components, which are transmitted and/or referenced as part of the open source software components. No provision of this contract affects the rights or obligations of the client arising from the corresponding terms of use of the open source software components. In the event of contradictions or conflicting provisions between the license terms of the open source software and the provisions of this contract, the license terms of the open source software shall prevail.

The right to use the software also extends to fixes, patches, developments and updates that the contractor makes available to the client. The right to updates does not include the right to use new/additional products and functionalities that are made available as a separate product/module.

The contractor provides the software and detailed software documentation in electronic form in German and English.

The contractor can revoke the client's access authorization and/or cancel the contract if the client significantly exceeds the permitted use or violates regulations to protect against unauthorised use. In connection with this, the contractor can interrupt or block access to the contractual services. In principle, the contractor must first set the client a reasonable period of grace to remedy the situation. The sole revocation of access authorization does not also mean termination of the contract. The contractor can only maintain the revocation of access authorization without notice for a reasonable period of time, a maximum of 3 months.

The client has a right to reinstate access authorization and access after he has proven that he has discontinued use in breach of contract and prevented future use that is contrary to contract.

Unless otherwise agreed or prescribed due to mandatory law or applicable open source software terms of use, the client is not entitled to

1. to copy the software beyond what is necessary for contractual use, either in whole or in part;
   

2. to modify, correct, adapt, translate, improve or otherwise carry out derivative developments on the software;
   

3. to rent, lend, sell, license, transfer or otherwise make the software available to third parties;
   

4. reverse engineer, decompile, disassemble, or otherwise attempt to decipher the source code of the software, either in whole or in part;
   

5. to circumvent or violate safety devices or protection mechanisms included in or used for the software;
   

6. take measures that are likely to cause damage to the contractor's software or servers;
   

7. to remove, delete, erase, alter, obscure, translate, combine, supplement, or otherwise modify trademarks, documentation, warranties, disclaimers, or other rights, such as intellectual property, signs, messages, marks, or serial numbers associated with the software or documentation;
   

8. to use the software in a way that infringes applicable law and/or the rights of third parties;
   

9. to use the software for purposes of benchmarking or competitive analysis of the software, for the development, use or provision of a competing software product or services, or for any other purpose that is detrimental to the contractor; and/or
   

10. to use the software for or in connection with the planning, construction, maintenance, operation, or use of hazardous environments, systems or applications, or other safety-critical applications, or otherwise use the software in a way that the software could result in physical damage or serious property damage.
    

top.legal strives to continuously develop the platform and services. As part of these further developments, top.legal intends to improve, expand, delete and/or otherwise change individual functions of the platform or individual services. The functionalities of the platform or services can be changed by top.legal if this is necessary for good reason and the user is not objectively placed worse than the service agreed upon at the time of conclusion of the contract (e.g. when functionalities are improved). There is a valid reason in particular when the functionalities are changed due to technical innovations.

The client will support the contractor to an appropriate extent in providing the contractual services. The client must provide in advance all cooperation services, information, data, files, materials required for the fulfilment of contractual obligations by the contractor.

Should the client not sufficiently cooperate and/or cause a delay, the contractor is not obliged to fulfill the contractual obligations as long and to the extent that the contractor is prevented from fulfilling the contractual obligations due to insufficient and/or late cooperation on the part of the client. The contractor must inform the client of its inadequate or timely cooperation and set a reasonable deadline for subsequent fulfilment. If the client nevertheless fails to comply with his obligations to cooperate, any resulting increases in remuneration, additional expenses (e.g. extra work, cancellation costs, travel expenses) and postponements of deadlines that are unavoidable for the contractor will be borne by him. After the grace period expires without result, the affected software or service is considered to have been made available or provided.

The client is responsible for (i) appropriate security processes, tools and controls for systems and networks that interact with the software, (ii) maintaining alternative processes in the event of a lack of availability of the software, (iii) determining whether the technical and organizational data protection and data security measures provided by the contractor meet the client's specific requirements; (iv) the appropriate internal training of users and the provision of internal technical support; and (v) the proper backup of all programs and data located on its system environment and all data and work results transferred to or created with the software at the start of use of the software and then at reasonable regular intervals.

Unless otherwise agreed, services will be charged based on expenditure (“time and material”) at the end of the calendar month in which they were provided. Billing is based on the contractor's time sheets. Unless otherwise agreed, reasonable travel expenses will be borne by the client at expense and against proof and invoiced monthly.

Insofar as employees of the contractor are on the client's premises, they will comply with the client's safety instructions. To this end, the client must send these instructions to the contractor in writing in advance.

The contractor reserves all rights to work results that are created when providing services. This includes in particular software/code, interfaces, methods, processes and templates that are used, created or modified by the contractor. The contractor grants the client a non-exclusive, non-transferable right to use such work results for its own purposes in accordance with Section 2.1 Right to use the software of these terms and conditions as intended.

Work results created by the contractor as part of providing services to the client, in particular customising/modification of the software, are not covered by the contractor's standard support unless these work results are incorporated into the standard software. In principle, such work results can only be used with the current version/release of the software at the time of creation. Each upgrade or update may require additional paid migration services.

Software and services are provided or provided by the contractor free of defects and, when used as intended, essentially comply with the specifications stated in the documentation. The contractor's services are carried out expertly and professionally in accordance with industry standards by guided and experienced personnel. The granting of the agreed rights of use to the client is not precluded by the rights of third parties. Technical data, specifications and performance information in public statements, in particular in advertising material, are not quality information.

In the event of defectiveness, the client's claims for defects are initially limited to subsequent performance. The client will notify the contractor in writing of any defects with a description of the defect and request that the defect be rectified. In the event of proven defects, the contractor guarantees subsequent performance in such a way that the contractor makes the software or service available again in a fault-free condition or rectifies the defect.

If the rectification finally fails after two attempts at rectification, the client may withdraw from the respective individual contract or reduce the remuneration accordingly. The contractor will pay compensation or compensation for futile expenses due to a defect within the limits of liability set out in these terms and conditions.

The software is provided in accordance with the contractor's Service Level Agreement (SLA), which is available at https://www.top.legal/de/sla and which is expressly incorporated into these terms and conditions and the contract.

To use the software, the client requires a current standard web browser (Google Chrome or Mozilla Firefox). The client is responsible for the provision and operation of all hardware and operating software as well as for the secure and fast connection of the IT devices to the server on which the software and work descriptions are implemented.

Unless otherwise expressly agreed, setup/setup and configuration of the software are to be remunerated in accordance with the hourly rates for services agreed in the respective individual order.

Software and other work results are considered to have been handed over as soon as they have been made available to the client. Services are considered to have been provided as soon as the respective service has been completed. Support/maintenance may be regarded as provided on a pro rata basis over time.

Unless otherwise agreed, software and services are not subject to separate acceptance by the client, but are considered accepted upon delivery. If an acceptance has been contractually agreed and the client has not complied with the acceptance schedule or test schedule or if there is no such test plan or a time limit for testing and acceptance, software and services are considered accepted ten working days after delivery.

The contractor is entitled to use subcontractors or other vicarious agents (collectively referred to as “subcontractors”) to fulfill the contractual obligations. The contractor will ensure that subcontractors are bound by obligations regarding confidentiality and data protection in accordance with these terms and conditions. The appointment of subcontractors does not affect the contractor's contractual obligations towards the client. The contractor is liable for any poor performance by a subcontractor as for his own fault.

For every case in which an unjustified claim is made of a contractual service within the contractor's area of responsibility, the contractor must pay compensation in the amount of the remuneration that would have been incurred for use in accordance with the contract within the minimum contract period applicable to this service. The contractor reserves the right to prove that the contractor is not responsible for the unauthorised use or that there is no damage or that there is significantly less damage. The contractor remains entitled to claim further damage.

Unless otherwise agreed, software will be invoiced annually in advance upon delivery. The client must pay invoices within 14 days of the invoice date without discount or other deductions. Unless otherwise agreed, providing an order number or purchase order number on the invoice is not a prerequisite for the payment obligation.

In the event of late payment, interest on arrears is due at the statutory rate. The contractor is entitled to temporarily deactivate the client's access to the software in the event of a payment delay of more than 30 days until the overdue invoice has been paid. The prices shown do not include sales tax or other taxes. These may be charged separately to the client.

The contractor is only liable for simple negligence, both for his own conduct and for attributed conduct, if essential contractual obligations (cardinal obligations) have been breached. In this case, liability is limited to the foreseeable damage typical of the contract. Essential contractual obligations are those obligations whose violation jeopardizes the achievement of the purpose of the contract, the fulfilment of which enables the proper execution of the contract in the first place and on whose compliance the client regularly relies.

The contractor is only liable for indirect and consequential damage as well as for lost profit, additional personnel costs, useless expenses and omitted savings, etc., in the event of intent and gross negligence.

The limitations of liability do not apply to claims due to intent and gross negligence, personal injury, malice, insofar as the Product Liability Act applies, and to damage that falls within the scope of an independent warranty, quality or durability guarantee given by the contractor, unless otherwise stated in the respective warranty agreement.

If the client breaches his obligation to properly back up data, the contractor is liable, within the framework of the above provisions, in the event of loss of data limited to the amount of damage that would have occurred even if the client had properly and regularly backed up the data.

Each of the parties undertakes to use all information received as part of the contractual cooperation which (a) is marked as “confidential” or with an equivalent notice or is orally described as confidential; (b) is to be regarded as confidential because of its content; or (c) was derived from confidential information that has been made available; to use it exclusively for the purposes of contractual cooperation, to treat it confidentially and before becoming aware of it by unauthorised To protect third parties. This confidentiality obligation is imposed on all persons who are entrusted with the execution of this contract.

Excluded from the confidentiality obligation is information that (a) is publicly available or subsequently became publicly available or was already known to the other party when the contract was concluded; (b) was developed independently and independently by the other party; (c) was disclosed to the other party by a third party who is not subject to a confidentiality obligation, or (d) must be disclosed due to legal provisions or administrative or judicial order (in this case, the party concerned is aware of this to be notified immediately).

As a technical service provider, the contractor stores content and data for the client. The client undertakes vis-à-vis the contractor not to process any illegal content and data and/or content and data that infringe the rights of third parties with the software and not to use viruses or other programs containing malware in connection with the software. In particular, he undertakes not to use the software to offer or in connection with illegal services or goods.

The client is solely responsible for all content and processed data used by him or his users as well as for any legal positions required for this purpose. The contractor does not take note of the content of the client or its users and does not check the content used with the software.

In this context, the client undertakes to indemnify the contractor against any liability and any costs, including possible and actual costs of legal proceedings, if the contractor is claimed by third parties, including by employees of the client personally, as a result of alleged acts or omissions by the client. The contractor will inform the client of the claim and, as far as this is legally possible, give him the opportunity to defend the asserted claim. At the same time, the client will immediately provide the contractor with all information available to him about the facts that are the subject of the claim. Any further claims for compensation by the provider remain unaffected.

The contractor processes personal data that is provided in connection with the creation of an account in relation to the users of the software (name, first name, email address, telephone number, password) and personal data relating to the use of the software (log files). This personal data is processed by the contractor as the person responsible to enable users to use the software. This personal data is processed for the fulfilment of the contract between the client and the contractor; the legal basis is accordingly Art. 6 para. 1 lit. b) GDPR. With regard to the relevant rights of data subjects and other information obligations, reference is made to the privacy policy on the contractor's website.

The contractor is entitled to use anonymized data in connection with the use of the software for internal business and/or operational purposes, in particular to analyze the use of the software and to improve the software. The client issues appropriate instructions to anonymize the data required for this purpose.

When using the software, the client can process personal data of its end customers and other data subjects. The client is responsible for this and the contractor is a contract processor. This order processing is regulated in the order processing agreement between the parties, which is available at https://www.top.legal/de/avvis available and is expressly incorporated into these terms and conditions and the contract between the parties.

The contractual relationship between the parties is established via the order form on top.legal, the acceptance of a service package via the top.legal portal, or the e-mail confirmation.

The duration of the respective individual orders is agreed in the respective individual order. Individual orders can be terminated by either party at any time in the event of a material breach of contract by the other party if the breach of contract is not cured within 30 days. This period starts from the date of delivery of the written notification of the material breach of contract. The contractor can cancel individual orders at any time without notice if the client is dissolved or liquidated or takes steps to do so and/or if the client becomes insolvent or bankrupt.

This contract is subject to German law. In the event of disagreements arising from this contract, the parties agree to reach an amicable settlement first. Should this not be possible, the parties already agree on Munich as the general place of jurisdiction.

The contractor has the right to publicly state the fact that the client uses his software or is his customer and to use the client's name and logo for this purpose in his marketing materials, including on the Internet on his website and/or on his social media pages. Any other use of the client's name or logo requires the prior consent of the client.

All notifications under this contract must be made in writing and are effective upon first delivery.

The contractor may make changes to these contractual conditions if these become necessary for the client due to changed circumstances, for example in the event of significant changes in legislation or case law, the relevant market and business environment, or due to technical developments. The contractor will inform the client of the changes in electronic form within a reasonable period of time, at least one month, before the changes come into force. The client is entitled to object to such changes within 14 days of receipt of the notification of change. In the event of an objection by the client, the contractor has the right to terminate the contractual relationship extraordinarily without observing a notice period. If the client does not object, his consent is deemed to have been given after the expiry of the above-mentioned periods. When announcing the changes to the terms and conditions, the contractor will expressly point out the duration of the period and the significance of its inconclusive expiry.

The invalidity of individual provisions of this agreement does not result in the invalidity of the remaining provisions of this agreement. The parties agree to replace ineffective provisions with new, effective provisions which come closest economically to what the parties intended. This applies mutatis mutandis if a provision of this agreement should subsequently become invalid or in the event of gaps in this agreement.