General Terms and Conditions
Thank you for using an IBODigital cloud process solution.
These General Terms and Conditions of IBODigital describe your rights and obligations as a customer of our cloud process solution trustkey. If you are invited to trustkey or added to trustkey by an IBODigital customer, the user note governs your access and use of trustkey.
1. Scope of Application
IBODigital GmbH (hereinafter: IBODigital) offers on its website “trustkey” (hereinafter: trustkey) a web-based Workflow Collaboration System (hereinafter: software) for small and medium-sized companies, especially for process-based collaboration and knowledge management.
The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to all contracts of use (hereinafter referred to as “contracts”) which are concluded between IBODigital and customers, who are not consumers within the meaning of § 13 BGB (German Civil Code) or other relevant legal provisions, via the “trustkey” platform.
Deviating terms and conditions of the customer shall not apply to contracts unless IBODigital expressly agrees to their application in writing.
2. Contract Conclusion Between the Customer and IBODigital, Trial Period
The offer provided on trustkey to use the web-based software designed there does not constitute a binding offer by IBODigital.
The use of IBODigital’s software requires the creation of a customer account (hereinafter referred to as “account”). For the creation of an account the necessary data must be provided and a password must be set. By confirming the creation of the account the customer makes first a binding offer to conclude a contract for the free use of the software for test purposes. IBODigital can accept this offer by setting up and granting access to the account or by sending a message to the e-mail address provided with the access data for the account set up.
By concluding a contract for free use according to section 2.2 IBODigital grants the customer the right to use the software for 14 days from the date of granting access to the software or communication of the access data by IBODigital exclusively for test purposes (trial period). Each customer is only entitled to one trial period. However, the trial period can be extended upon request by IBODigital. IBODigital reserves the right to extend the trial period at its sole discretion. At the end of the trial period, the customer’s account will be blocked. There will be no automatic conversion to a contract for the paid use of the software.
After expiry of the trial period according to section 2.3, the customer has the possibility to conclude a contract with IBODigital for the chargeable use of the software. The customer can choose the type of billing – monthly or annual – and the number of licenses.
For the preparation of offers and conclusion of a contract with monthly or annual billing, the contract is concluded in the account itself. To do this, the customer must select the number of licenses and confirm his selection. Then, in addition to the company name and billing address, credit card data must also be entered. By confirming and sending these details, the customer concludes a contract for chargeable use of the software with monthly or yearly billing with IBODigital.
3. Services, Change of Versions
IBODigital provides the customer with access to the version of the software offered on trustkey and selected by the customer as Software-as-a-Service (hereinafter referred to as “SaaS”) via the Internet for the duration of a contract. The scope of functions of the booked software version is described on the trustkey website under the heading “Pricing” and “Functions”. Additional services (e.g. the (remote) support during the initial creation of an account or the setup of templates) are not subject of a contract for the (chargeable) use of the software. Such further services can be provided by IBODigital on the basis of a separate offer.
In principle, the customer can change between the offered versions of the software and the maximum number of licenses which can be used by one version at any time with effect from the time of the change of the customer access by IBODigital. The resulting remuneration is set out in section 7.6 of these General Terms and Conditions.
Customers can make this version change directly in their account. If during a current billing period the customer changes to a version with a larger scope of functions or with a larger number of users to be managed, the customer can use the additional functions of the software or manage a larger number of licenses from the date the account is changed by IBODigital. If the customer changes to a version with a lower feature set or lower number of licenses to manage, the customer may only use the reduced features of the software or a lower number of licenses from the date of the adjustment of customer access by IBODigital.
4. Availability and Response Time in the Event of Disruptions
IBODigital guarantees a 99% availability of the trustkey software provided as SaaS on an annual average. This does not include times when the server cannot be reached due to other technical problems which are beyond IBODigital’s control (in particular force majeure, fault of third parties). Also excluded are planned maintenance work (e.g. updates of the software), which are either outside the usual business hours from Monday to Friday (taking into account the public holidays at the Munich location) between 9:00 and 18:00 hours, or which have been announced in advance in accordance with section 4.2.
IBODigital is entitled to interrupt the availability of the software for maintenance purposes and as a result of other technical requirements. As far as possible, maintenance work shall be carried out outside normal business hours from Monday to Friday (taking into account the public holidays at the Munich location) between 9:00 and 18:00 hours. If a maintenance work will lead to an interruption of the use of the software of more than 30 minutes within the usual business hours from Monday to Friday (taking into account the public holidays at the Munich location) between 9:00 and 18:00 hours, IBODigital will announce this maintenance work by e-mail. The announcement will be made at least 24 hours in advance. Upon customer request, the announced maintenance work can be postponed, if IBODigital is responsible for this, for technical and economic reasons.
Disruptions to system availability must be reported by the customer immediately after they become known. IBODigital shall endeavour to ensure a response time of four hours for the beginning of the fault clearance in case of reports of disturbances of the system availability which lead to a total failure of the software and which are received within the support hours (Monday to Thursday between 9:00 and 18:00 hours and Friday between 9:00 and 17:00 hours taking into account the public holidays at the Munich location). For minor errors which do not lead to a total failure of the software and which occur during operation, IBODigital will endeavour to respond no later than one working day after receipt of the error message.
In the case of fault reports received outside support hours, fault clearance begins the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side or late notification of the fault) shall not be counted towards the fault clearance time.
5. Cooperation Services of the Customer
The following cooperation services are main service obligations of the customer and are not to be classified solely as secondary obligations or duties.
During the trial period, the customer is obliged to check the functionality and general quality of the software in accordance with sections 2.2 and 2.3 and to notify IBODigital of any defects or other deviations from the quality requirements prior to the conclusion of a fee-based contract for use of the software. The customer may not invoke defects or other deviations from the quality requirements which were already known or existing during the trial period but were not notified to IBODigital prior to the conclusion of a fee-based contract for the use of the software.
The customer is obliged to provide a qualified contact person together with a deputy who is entitled to make or immediately bring about all necessary decisions which are necessary for the provision of the contractually agreed service. The customer is obligated to inform us immediately of any changes in the contact person (including deputy).
The customer is solely responsible for the contents and data processed with the software. The customer hereby undertakes to use IBODigital’s software only in accordance with the contract and within the scope of the applicable statutory provisions and not to infringe any rights of third parties when using it. The customer shall inform IBODigital immediately, if possible in writing, about (i) the misuse or suspected misuse of the contractually agreed service; (ii) a danger or suspected danger for the observance of data protection or data security which occurs in the course of providing the contractually agreed service; (iii) a danger or suspected danger for the service provided by IBODigital, e.g. through loss of access data or hacker attack.
The customer is obliged to ensure the technical requirements himself.
The connection to the Internet in sufficient bandwidth and latency is the responsibility of the customer.
The customer is responsible for implementing state-of-the-art IT security measures within its own organization and for its employees. This includes, but is not limited to, the installation and regular updating of a common antivirus software on the laptops, computers or other mobile devices of the customer’s employees, ensuring the allocation and regular updating of secure passwords in accordance with the BSI IT basic protection or other equivalent, recognized security standards for the trustkey account as well as for the laptops, computers or other mobile devices of the employees or the use of corresponding mechanisms such as 2-factor authentication, automatic inactivity block, firewall, etc.
The customer is further obliged to ensure the secrecy of the identification and authentication data assigned to his users, i.e. also, for example, the organizational and, if applicable, technical prohibition of the passing on of passwords and prohibition of the use of so-called “shared accounts”. The ban on the use of “shared accounts” refers to the trustkey account.
In addition, the customer must ensure the security of the Internet connection used, i.e. in particular the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks.
The customer is responsible for the professional setup and administration of the account. This applies regardless of whether IBODigital assists the customer with the setup of the account in any form whatsoever. This includes in particular: (i) the technical set-up of the account, in particular migration of data, configuration of processes and products; (ii) the technical connection of interfaces on the customer’s side according to the specification for incoming and outgoing data; (iii) the administration of the account, in particular the creation of users and roles and the assignment of access to the account.
The customer is obliged to inform IBODigital immediately in text form about occurring service disruptions (deficiencies of the services, lack of availability) and to transmit comprehensible information about occurring service disruptions. The customer shall support IBODigital to a reasonable extent in identifying and remedying any faults. IBODigital shall be entitled to temporarily show the customer possibilities to circumvent the error and to eliminate the actual cause later by adapting the trustkey software, provided this is reasonable for the customer.
6. Grant of Rights
IBODigital grants the customer a non-exclusive, simple, non-transferable right to use the booked software which is limited to the term of the contract.
The customer undertakes to use the software exclusively in accordance with the contract and not to make it available for use by third parties. When booking the functionalities of the Enterprise Version, the customer’s rights of use shall also extend to any contracts concluded with the customer within the meaning of § 271 HGB, §§ 15 ff. AktG (German Stock Corporation Act) or the respectively applicable company law regulations of affiliated companies/ associated companies/ subsidiaries.
Except as expressly permitted in these General Terms and Conditions, the documentation or order, the customer may not (and does not have a license to):
- copy, modify, adapt or create derivative works of the Software,
- rent, lease, distribute, sell, sublicense, transfer or provide access to the software to third parties,
- use the software for the benefit of third parties,
- incorporate the software into a product or service provided to a third party,
- interfere with the software or otherwise circumvent mechanisms designed to restrict the use of the software,
- reverse engineer, diassemble, decompile, translate or otherwise attempt to derive or obtain the source code, underlying ideas, algorithms, file formats or non-public APIs, except to the extent expressly permitted by applicable law (and then only after prior notice to IBODigital),
- remove or obscure any proprietary or other notices contained in the software,
- encourage or support third parties to do any of the above.
7. Prices, Payment Method and Terms of Payment
The prices stated at the time of the order are valid, as they are displayed on the trustkey website. The prices there are monthly or yearly net prices in Euro and are exclusive of the statutory value added tax at the statutory rate applicable at the time, if applicable. The amount of the monthly or yearly remuneration for the use of the software is based on the price class for the selected version of the software, which in turn depends on the billing period and the selected number of licenses and additionally booked add-ons and modules.
The customer has the choice between monthly and annual billing. All payments are due in advance upon invoicing.
The billing period begins on the day of the conclusion of a contract for the chargeable use of the software via the account and ends after one month in case of monthly billing and after one year in case of annual billing.
Payments for fee-based contracts for the use of the software shall be made by credit card in advance. The credit card will be charged on the due date.
In the case of payment by credit card, IBODigital reserves the right to check the validity of the card, to check the credit limit for the debit and to check the address details. IBODigital is entitled to refuse the credit card entered as a means of payment if there is good reason to do so.
The customer will receive an invoice from IBODigital in electronic form in his or her profile for retrieval as well as sent by e-mail.
In addition, the customer has the option of paying by direct debit for monthly and annual billing. If a payment method by direct debit is chosen, we use the SEPA direct debit procedure. IBODigital will inform the customer prior to the execution of a direct debit in the SEPA Direct Debit Scheme with reasonable advance notice, usually two days in advance. However, the parties agree that the period for the advance information of the SEPA Direct Debit is reduced to one day.
In the event of a return debit note (in particular due to a lack of necessary cover for the account, due to the account expiring, unjustified objection by the account holder or incorrect entry of the account data) the customer authorises IBODigital to submit the debit note for the respective due payment obligation a second time. In such a case the customer shall be obliged to pay the costs incurred by the return debit note. Further claims are reserved.
If, at the time of invoicing, the price plan of the version is increased due to a change in the number of licenses or scope of functions (add-ons, modules etc.) (section 3.2), IBODigital shall invoice the difference between the advance payment already made and the changed price by the end of the month of invoicing either immediately or with the following invoice for the next month of invoicing. If, at the time of invoicing, the price plan of the version is reduced due to a change in the number of licenses or the scope of functions (add-ons, modules etc.) during the billing period (section 3.2), the customer shall not be entitled to a (proportional) refund of the advance payment already made.
In the event of default on the part of the customer, if no payment has been made even after the expiry of a deadline set to the customer of one calendar week after the due date, IBODigital shall be entitled to immediately block the customer’s access to the software. IBODigital shall inform the customer in advance of this blocking and set a further deadline of one calendar week. In this case the customer shall remain obliged to continue to pay the agreed remuneration plus any default interest. Any damage to the customer caused by the suspension for this reason cannot be claimed against IBODigital. Furthermore, IBODigital has no right to block access to the software. Furthermore, in case of default, the statutory provisions of §§ 286, 288 BGB or other relevant statutory provisions shall apply.
8. Start of Contract, Minimum Term and Termination
As soon as the customer has received his access data, a free 14-day trial period begins (see sections 2.2 and 2.3). After the expiry of this 14-day trial period, the term of the contract is not automatically extended. After the end of the trial period, the customer can decide whether he wishes to conclude a fee-based contract for the use of the software.
Fee-based contracts for the use of the software with monthly billing have a minimum term of one month. After expiry of the minimum term, the contract shall be extended by extension periods of one month each, unless the customer terminates the contract before the beginning of an extension period.
Fee-based contracts for the use of the software with annual billing have a minimum term of one year. After expiry of the minimum term, the contract shall be extended by renewal periods of one year each unless the customer terminates the contract before the beginning of a renewal period.
IBODigital has the right to terminate contracts for the paid use of the software with monthly billing with a notice period of two weeks and contracts for the paid use of the software with annual billing with a notice period of three months to the end of the respective billing period.
The right of both contracting parties to terminate the contract for good cause remains unaffected.
The notice of termination must be given in text form. The customer’s account will be blocked when the cancellation becomes effective.
9. Limitation of Liability
Legal liability in the case of services rendered against payment. In the case of services provided against payment IBODigital shall be liable in accordance with the statutory provisions for damages resulting from injury to life, body or health, as well as for other damages which are based on an intentional or grossly negligent breach of duty or fraudulent intent. In addition, IBODigital shall be liable in accordance with the statutory provisions for damage covered by liability under mandatory statutory provisions in the case of fee-based contracts for the use of the software, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by IBODigital shall only be made in writing and, in case of doubt, shall only be interpreted as such if they are referred to as “guarantee”.
Limitation of liability in the case of services rendered against payment. In the case of slight negligence IBODigital shall only be liable for damages caused by IBODigital and which are attributable to such material breaches of duty which endanger the achievement of the purpose of this contract or to the breach of duties the fulfilment of which makes the proper execution of the contract possible in the first place and the observance of which the customer may rely on (so-called cardinal breaches of duty). In these cases IBODigital’s liability shall be limited to the foreseeable damage typical for the contract. Liability for the slightly negligent breach of obligations which are not cardinal obligations (see section 9.2. sentence 1) shall be excluded, unless IBODigital is liable by law (see section 9.1. sentence 2).
Liability in the case of services provided free of charge. In the case of free of charge service provision (e.g. within the trial period) IBODigital shall only be liable for damages caused by intent, gross negligence and fraudulent intent. This limitation of liability does not apply to damages resulting from injury to life, body or health, for which IBODigital is liable without limitation.
Claims against third parties. The limitations of liability in sections 9.1. to 9.3. shall also apply to claims against executives, employees, other vicarious agents or subcontractors of IBODigital.
Disclaimer of liability. Except as expressly provided in section 9, the software, support and ancillary services are provided “as is” and IBODigital and its subcontractors expressly disclaim all warranties and representations of any kind, including warranties of non-infringement of third party rights, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory. Without limiting our express obligations under these terms and conditions, we do not warrant that use of the software will be uninterrupted or error-free, that IBODigital will review customer data for accuracy, or that IBODigital will maintain or maintain customer data without loss. Customer understands that use of the software necessarily involves the transmission of data over networks that are not owned, operated or controlled by IBODigital and IBODigital is not responsible for the loss, alteration, interception or storage of the customer’s data over such networks. IBODigital cannot guarantee that transmissions of customer data will always be secure or that unauthorized persons will never be able to circumvent the security measures or those of the subcontractors. IBODigital shall not be liable for any delays, service interruptions or other problems associated with the use of the Internet and electronic communications or other systems outside of IBODigital’s reasonable control. The duration of any statutory warranty, if any, is limited to the shortest duration permitted by law.
10. Data Protection and Confidentiality
IBODigital collects and uses the personal data of the customer only within the scope of the applicable legal provisions. For this purpose, the parties to the contract conclude an agreement to the extent required by the respective applicable provisions.
Neither of the contracting parties is entitled to transmit confidential information of the other contracting party to third parties without express consent (at least in text form). This applies to customers with contracts for both free and paid use. All information, whether fixed in writing or transmitted orally, which (i) by its nature is considered confidential or secret or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or secret due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contractual partners undertake to use confidential information only for contractually agreed purposes. Both contractual partners shall take at least the same precautionary measures as they take with regard to their own confidential information. Such precautionary measures must at least be appropriate to prevent disclosure to unauthorized third parties. In addition, both contractual partners are obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties will inform each other in writing if there is any misuse of confidential information. Exempted from the above obligation is such information which (i) was already known to the other party prior to its transmission and without an existing non-disclosure agreement, (ii) is transmitted by a third party not subject to a comparable non-disclosure agreement, (iii) is otherwise publicly known, (iv) was developed independently and without use of the confidential information, (v) is released for publication in writing or (vi) must be transmitted due to a court or governmental order, provided that the party affected by the transmission is informed in time to enable legal action to be taken. The obligation to confidentiality shall also apply beyond the duration of the contract until twelve months after the effective termination of the contract.
11. Reservation of Changes
IBODigital has the right to amend these General Terms and Conditions at any time or to add provisions for the use of any newly introduced additional services or functions of the software. The changes and amendments to the General Terms and Conditions shall be notified to the customer by e-mail to the e-mail address provided by the customer at least four weeks before the planned effective date. The Customer’s consent to the amendment of the General Terms and Conditions shall be deemed to have been given if the Customer does not object to the amendment in text form (e.g. letter, fax, e-mail) within a period of two weeks, beginning on the day following the announcement of the amendment. IBODigital undertakes to separately refer to the possibility of objection, the time limit for objection, the text form requirement as well as the meaning or the consequences of not objecting to an amendment in the amendment notification.
IBODigital reserves the right to change the software or to offer different functionalities, unless changes and deviations are not reasonable for the customer. If the provision of a changed version of the software or a change in the functionality of the software is accompanied by a significant change in the customer’s work processes supported by the software and/or restrictions in the usability of previously generated data, IBODigital shall notify the customer of this in text form at least four weeks before such a change takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the notification of change, the change shall become part of the contract. IBODigital shall draw the customer’s attention to the above-mentioned period and the legal consequences of its expiration in the event that the customer does not exercise his right to object.
IBODigital further reserves the right to modify the software or offer different functionalities (i) to the extent necessary to bring the services offered by IBODigital into compliance with the law applicable to such services, in particular if the legal situation changes; (ii) to the extent that IBODigital thereby complies with a court or authority decision addressed to IBODigital; (iii) to the extent necessary to eliminate security gaps in the software; or (iv) to the extent that this is predominantly beneficial to the customer.
IBODigital shall be entitled to adjust the prices for the contractual services subject to charges annually by an appropriate amount to compensate for personnel and other cost increases. IBODigital shall notify the customer in writing of these price adjustments and the time of the effectiveness of the price adjustment. The price adjustments shall not apply to the periods for which the customer has already made payments. If the price increase amounts to more than 5% of the previous price, the customer may object to this price increase with a period of two weeks from notification. A change in the price resulting from a change in the scope of functions or number of licenses shall not be deemed a price adjustment within the meaning of this section 11.4.
If the customer objects to a change within the meaning of this section 11 in due form and time, the contractual relationship shall be continued under the previous conditions. In this case IBODigital reserves the right to terminate the contractual relationship with one month’s notice.
Changes to these general terms and conditions must be made in text form. This also applies to the cancellation of the text form itself.
12. Final Provisions
If individual provisions of the General Terms and Conditions of Business have not become part of the contract in whole or in part or are ineffective, the remainder of the contract shall remain effective. If the provisions have not become part of the contract or are ineffective, the content of the contract shall be governed by the statutory provisions.
The contractual relationship existing between the contracting parties shall be governed exclusively by the law of the Federal Republic of Germany, expressly excluding the UN Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between IBODigital and the customer is, as far as legally permissible, the place of business of IBODigital.
For the conclusion of the contract the customer has the languages in which these GTC are available on the IBODigital and trustkey website. For customers from the DACH region – Germany, Austria, Switzerland – the German version valid at the time of the conclusion of the contract is decisive for the conclusion of the contract.
IBODigital will comply with all laws and regulations necessary for the provision of the services. IBODigital will obtain and maintain all permits, licenses, registrations or registrations necessary for the provision of the offers and will comply with all laws (including laws relating to export, corruption, money laundering or any combination thereof). The Customer is obliged to comply with the laws applicable to its use of the offers.