Personal trainer and studios

Responsible according to § 55 Abs. 2RStVT

OptiOffice GbR
Mittelweg 149
20148 Hamburg

Represented by: 
Rohit Mathur & Martin Blume

Phone: 040 6696 327 777
E-Mail: mail@optioffice.de

Software as a Service

Cloud Computing Contract /

Terms of Use

 

The Optioffice GbR, Mittelweg 149, 20148 D-Hamburg, represented by the shareholders
Mr. Rohit Mathur & Martin Blume (hereinafter "OPTIOFFICE "called) agrees with customers (exclusively entrepreneurs / b2b) the use of the software "OptiOffice" in accordance with the following terms of use.

These terms of use (hereinafter also referred to as the "contract") apply to all contracts that are concluded via the online at ...

The customer accepts these terms of use and agrees to them as soon as he has completed his registration under ...

 

§ 1 Article

(1) OPTIOFFICE provides SaaS services for the customer via the Internet in the field of business software.

(2) The subject matter of the contract is

(a) Provision of the software "OptiOffice" (hereinafter referred to as "SOFTWARE") by OPTIOFFICE for use via the Internet (SaaS service) and
(b) Maintenance and updating of the aforementioned software (SaaS service) and
(c) Allocation of storage space and computing power on the servers of OPTIOFFICE (cloud computing).

(3) OPTIOFFICE is permitted to commission a subcontractor or cloud provider to provide storage space and computing power. The use of this provider does not release OPTIOFFICE from its sole obligation towards the customer to fulfill the contract in full.

 

 

§ 2 Provision of software

(1) OPTIOFFICE provides the customer with the current version of the SOFTWARE for the duration of this contract for a fee. For this purpose, OPTIOFFICE sets up the SOFTWARE on a server that is accessible to the customer via the Internet.

(2) The current functional scope of the SOFTWARE results from its current description of services

on the OPTIOFFICE website at optioffice.net.

(3) OPTIOFFICE will immediately remove all software errors as far as possible. An error is present if the SOFTWARE does not fulfill the functions specified in the service description, delivers incorrect results or does not work properly in some other way, so that the use of the SOFTWARE is impossible or restricted.

(4) OPTIOFFICE is continuously developing the SOFTWARE and will improve it through ongoing updates and upgrades.

 

 

§ 3 Rights of Use to the SOFTWARE

(1) OPTIOFFICE grants the customer the non-exclusive and non-transferable right to use the SOFTWARE described in this contract, including software adjustments according to § 10 (updates etc.), as intended during the duration of the contract.

(2) The customer may only edit the SOFTWARE insofar as this is covered by the intended use of the SOFTWARE according to the current service description.

(3) The customer may only reproduce the SOFTWARE insofar as this is covered by the intended use of the software according to the current service description. Necessary duplication includes loading the SOFTWARE into the main memory on the server, but not even temporary installation or storage of the SOFTWARE on data carriers (such as hard drives) or the hardware used by the customer.

(4) Diese Software-Nutzungslizenz bezieht sich nur auf einen Standort. Für die Nutzung dieser SOFTWARE an mehreren Standorten ist der Erwerb zusätzlicher Lizenzen (Hauptzugänge) erforderlich. Pro Standort wird ein Hauptzugang benötigt.

(5) Der Kunde ist nicht berechtigt, die SOFTWARE Dritten entgeltlich oder unentgeltlich zur Nutzung zur Verfügung zu stellen. Eine Weitervermietung der SOFTWARE wird dem Kunden somit ausdrücklich nicht gestattet.

 

§ 4 Allocation of storage space and computing power

(1) OPTIOFFICE provides the customer with storage space and computing power on a server for storing and processing his data. The customer can store content up to 1 GB on this server (maximum file size 8 MB, common file formats such as Word, Excel, PDF, image and photo files). If the storage space is no longer sufficient to store the data, OPTIOFFICE will inform the customer about this.

(2) OPTIOFFICE ensures that the stored data can be accessed via the Internet.

(3) The customer is not entitled to allow a third party to use this storage space in whole or in part, against payment or free of charge.

(4) The customer undertakes not to save any content on the storage space, the provision, publication or use of which violates applicable law or agreements with third parties.

(5) OPTIOFFICE is obliged to take suitable precautions against data loss and to prevent unauthorized third-party access to the customer's data. For this purpose, OPTIOFFICE will make daily backups and install firewalls according to the state of the art. The customer is obliged to check his files for viruses before uploading them.

(6) In any case, the customer remains the sole owner of the data and can therefore request the surrender of individual or all of the data at any time.

(7) The customer can terminate the contractual relationship via his online access to the software (login) and choose whether OPTIOFFICE should delete or save the data that he has uploaded to the server / cloud. The data storage will be deleted by OPTIOFFICE at the earliest 6 months and at the latest 24 months after termination of the contractual relationship if the customer chooses to save it upon termination.

(8) The customer can download the customer's data via his online access in his profile at any time. Therefore, OPTOFFICE is not obliged to store and release this data after the contractual relationship has ended. The above §4 (7) remains unaffected. The customer is not entitled to receive software that is suitable for using the data.

(9) OPTIOFFICE has neither a right of retention nor the statutory landlord's lien (§ 62 BGB) with regard to the customer's data.

 

§ 5 Support

(1) Support - i.e. questions about the SOFTWARE and software operation - is generally guaranteed on working days by e-mail and by phone between 9 a.m. and 5 p.m.

(2) Corresponding support inquiries will be processed by OPTIOFFICE according to Priorat and answered as soon as possible.

 

§ 6 Impairment of the accessibility of the SOFTWARE

(1) Adjustments, changes and additions to the SOFTWARE and SaaS services as well as measures that serve to identify and correct malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.

(2) Maintenance or troubleshooting of the SOFWARE and SaaS services is generally guaranteed from Monday to Friday 9:00 a.m. - 5:00 p.m. In the event of serious errors - the use of the SaaS services is no longer possible or severely restricted - maintenance is carried out within 12 hours of knowledge or information from the customer. OPTIOFFICE will immediately notify the customer of the maintenance work and carry out the technical conditions in the shortest possible time. If the error correction is not possible within 24 hours, OPTIOFFICE will notify the customer.

(3) The availability of the agreed services according to § 1 (2) of this contract is 97% on an annual average including maintenance work, but the availability must not be interrupted for more than three calendar days in a row.

(4) Section 10 applies here to the response times and classification of software errors.

 

§ 7 Obligations of the customer

(1) The customer undertakes not to store any illegal content that violates laws, official requirements or the rights of third parties on the storage space made available.

(2) The customer is obliged to prevent unauthorized access by third parties to the protected areas of the SOFTWARE by taking suitable precautions. For this purpose, the customer will, if necessary, inform his employees of compliance with copyright law.

(3) Without prejudice to OPTIOFFICE's obligation to back up data, the customer is responsible for entering and maintaining the data and information required to use the SaaS services.

(4) The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs.

(5) The customer will use his email address to access the SOFTWARE and generate a password that is required for further use of the SOFTWARE. The customer is obliged to keep this access data secret and not to make it accessible to third parties.

(6) The content stored by the customer in the storage space intended for him may be protected by copyright and data protection law. The customer hereby grants OPTIOFFICE the right to be able to make the content stored on the server accessible to the customer when he queries it via the Internet and, in particular, to reproduce and transmit it for this purpose and to be able to reproduce it for the purpose of data backup.

 

§ 8 Remuneration

(1) The customer undertakes to pay OPTIOFFICE the agreed monthly fee plus statutory VAT for the provision of the SOFTWARE and the provision of cloud computing. Unless otherwise agreed, the remuneration is based on the OPTIOFFICE price list valid at the time the contract is concluded.

(2) Objections to the billing of the services provided by OPTIOFFICE must be raised by the customer in writing within a period of 8 weeks after receipt of the invoice at the point indicated on the invoice. After the aforementioned period has expired, the invoice is deemed to have been approved by the customer. When sending the invoice, OPTIOFFICE will specifically point out the importance of its behavior to the customer.

(3) Gerät der Kunde mit zwei Monatsbeiträgen schuldhaft in Verzug, so kann OPTIOFFICE automatisch sämtliche Kosten bis zum Vertragsende fällig stellen. Zudem ist es OptiOffice erlaubt, den Zugang zur Software zu verweigern.

 

 

§ 9 Liability for Defects / Liability

(1) OPTIOFFICE guarantees the functionality and operational readiness of the SOFTWARE in accordance with the provisions of this contract.

(2) In the event that OPTIOFFICE services are used by unauthorized third parties using the customer's access data, the customer is liable for fees incurred as a result within the framework of civil liability until the customer order to change the access data or the notification of the Loss or theft, if the customer is to blame for the access of the unauthorized third party.

(3) OPTIOFFICE is entitled to block the storage space immediately if there is reasonable suspicion that the stored data is illegal and / or violates the rights of third parties. A justified suspicion of illegality and / or a violation of the law exists in particular if courts, authorities and / or other third parties inform OPTIOFFICE of this. OPTIOFFICE has to inform the customer about the block and the reason for it immediately. The ban is to be lifted as soon as the suspicion is invalidated.

(4) Claims for damages against OPTIOFFICE are excluded regardless of the legal basis, unless OPTIOFFICE, its legal representatives or vicarious agents have acted with intent or gross negligence. For slight negligence, OPTIOFFICE is only liable if one of the essential contractual obligations has been violated by OPTIOFFICE (cardinal obligations), its legal representatives, executives or vicarious agents. OPTIOFFICE is only liable for foreseeable damage, the occurrence of which must typically be expected. Essential contractual obligations are those obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer can rely.

(5) In the case of slight negligence, liability is limited to a total of 12 monthly fees or an annual fee for the SOFTWARE, which corresponds to a maximum of the amount of foreseeable damage that is typically to be expected.

(6) OPTIOFFICE is not liable for the loss of data insofar as the damage is due to the fact that the customer has failed to back up data and thereby ensure that lost data can be restored with reasonable effort.

(7) OPTIOFFICE has unlimited liability for damage caused intentionally or negligently from injury to life, limb or health caused by OPTIOFFICE, its legal representatives or vicarious agents.

 

 

§ 10 Software maintenance contract

For the maintenance of the software, the parties agree on the following:

§ 10.1 Terms

The terms used in this contract have the following meanings:
• Software adjustments are maintenance services related to the software, which are not excluded according to § 10.6. They may also involve providing a newer version of the software that may require reinstallation.

• An error is present if the software does not have the owed functionality in the system environment contractually provided for it and when used as intended, this has more than insignificant effects and the customer does not have a permanent claim to the removal of this error from the Has lease agreement.

• A deficiency relates to a care service. It is in accordance with the statutory provisions if a service provided according to this maintenance contract does not have the agreed quality or, if the quality has not been agreed, the service is not suitable for the use assumed in this contract. In addition, the service is defective if it lacks a quality that is customary for services of the same type and which the customer can expect depending on the type of service. It is the same as a defect if the customer provides a maintenance service other than the one ordered or if the maintenance service is too small.

• Supplementary performance means the removal of defects that are to be provided free of charge according to this § 10, which arise from maintenance services. Defects in the software itself are regulated in Section 9. The elimination can also be done by providing a changed software version.

§ 10.2 Maintenance Services

OPTIOFFICE takes care of the maintenance of the software from the conclusion of the contract, but not before the time at which the customer has reported the operational use of the software.

§ 10.3 Elimination of Errors

(1) The aim of troubleshooting is to restore the functionality of the software.

(2) OPTIOFFICE will eliminate errors in the software notified by the customer within a reasonable period in accordance with the following provisions. The period within which OPTIOFFICE can analyze and eliminate the reported errors without undue hesitation is reasonable, taking into account its order situation and the availability of suitable employees.

(3) The way in which errors are eliminated takes place at the discretion of OPTIOFFICE and regularly through the provision of software adaptations that change and / or supplement the software, which can also be done via online help.

(4) OPTIOFFICE provides the services for troubleshooting within the framework of the care customary in the industry. The OPTIOFFICE does not guarantee the elimination of errors at all or within a certain period of time.

(5) Errors are to be reported by OPTIOFFICE by email, stating the priority given by the customer. If the error reaches a higher priority level, the customer must inform OPTIOFFICE of this immediately. In addition to the assessment of the priority, the error message should contain the following information (if not queried by the system): • Customer, • In which module the error occurred, • The work steps during which the error occurred or which caused the error, • the description of the error using screenshots, logs or similar information, • the day and time of the error detection and • information on reproducibility (yes / no).

 

(6) The failure symptoms are classified as follows:

Priority 1.Classification = urgently: The operation is interrupted.

Description: The application cannot run; program crashes occur; the printing and selection and / or the transfer of data cannot be started; Data is not saved or read incorrectly or in full.

Response time (R):  R = 12 hours

 

Priority 2. Classification = high: The operation is impaired.

Description: The functionality of the application is impaired or malfunctions occur, in particular: messages are incomprehensible or are not in the correct context for the function called; Functionalities do not show the expected results; the response time behavior prevents normal use of the software

Response time (R): R = 360 min

Priority 3. Classification = low: Operations are not affected

Description: Working with the software is possible, even if not consistently within the agreed parameters; Ease of use is in need of improvement; Malfunctions can be avoided.

Response time (R): R = 2 days

 

(6) At the customer's request, after reporting an error, OPTIOFFICE will provide the customer with a non-binding estimate of the time likely to be required to rectify the error.

(7) The response time starts from the receipt of the error message at OPTIOFFICE. The information provided by email is decisive for receipt. The response time runs during OPTIOFFICE's operating hours from 9:00 a.m. to 5:00 p.m. and is maintained if OPTIOFFICE initiates troubleshooting measures within the course of the response time.

(8) OPTIOFFICE is entitled, but not obliged, to rectify errors outside of its business hours; However, this only if the customer guarantees his participation to a sufficient extent and bears the additional fees incurred for these services.

(9) OPTIOFFICE can eliminate any errors that occur, taking into account the prioritization carried out at its own discretion, by means of the following measures: • Provision of software adaptations on data carriers or online, which the customer must install himself. This regularly includes the provision of software components ("patches"), • troubleshooting via remote access to the customer's systems, through which the software itself or the settings can be changed, • suggestions to the customer for bypassing the errors or for troubleshooting, • in the event that the above measures are not possible or not promising, by troubleshooting on site.

(10) In the case of errors of priority III, the rectification can be postponed by providing a software adaptation to the next suitable point in time at which OPTIOFFICE will provide other extensions and / or changes according to its planning.

(11) The obligations of OPTIOFFICE are determined according to the objectively given priority level. A breach of duty by OPTIOFFICE is only given if the response time is not adhered to if the customer has objectively stated the priority.

 

§ 10.4 Further developments

(1) The further development of the software can lead to an expansion and / or change of the software with the result that new functionalities are available, existing functionalities in the process and / or the user guidance are optimized or the data management is adapted to the state of the art.

(2) OPTIOFFICE will make further developments of the SOFTWARE available to the customer without any further payment obligations, depending on the extent of the further development. The customer can book significant further developments for a fee if they are available - e.g. as a software module. There is no entitlement to a specific further development.

 

§ 10.5 Services not owed

(1) Unless otherwise agreed in individual cases, there is no entitlement to the following care services:

• The adaptation of the software to stands that are used by other users or that are sold by OPTIOFFICE.

• The adaptation of the software to a changed hardware or software environment including the adaptation to changed operating systems.

• The adaptation of the software to legal or other sovereign requirements.

• The elimination of errors from the customer's risk area, in particular errors caused by the contamination of software components with computer viruses, use of unsuitable data carriers, abnormal operating conditions that do not correspond to the contractually agreed, faulty hardware, failure of the power supply or data-carrying lines, errors due to insufficient Information security, unsuitable environmental conditions at the location of the software operation or force majeure.

• The elimination of errors that have arisen from adjustments to the software or parts thereof (in particular reports, key figures, validations) by the customer or at his instigation by third parties.

• The installation of the software delivered under this contract and of software adaptations.

• Advice that goes beyond the fault elimination owed.

• The instruction and training of the customer with regard to further developments of the software.

 

(2) The list is not exhaustive. If services are not mentioned, it cannot be concluded that these services are the subject of the contractual obligations of the OPTIOFFICEs. The rights of the customer due to the liability owed by OPTIOFFICE according to this contract for service disruptions according to § 9 remain unaffected.

(3) OPTIOFFICE agrees to provide services that are not owed under this contract on the basis of a separate agreement.

 

§ 10.6 Cooperation services of the customer

(1) The prerequisite for the provision of the maintenance services according to this contract, in particular for the elimination and handling of errors as well as application support by OPTIOFFICE, is that the customer uses the software up to date. The software is up-to-date if all software adaptations delivered according to this contract have been installed or if a software version that can be regarded as equivalent by OPTIOFFICE is used. There is no obligation to use the current software version if this is not reasonable for the customer, for example because the latest software version is faulty and the customer's operations are impaired as a result. The customer has to inform OPTIOFFICE immediately in writing of the unreasonableness in his opinion, stating the reasons. If the customer is not obliged to use the current version of the software, the obligations of OPTIOFFICE from § 10.3 and § 10.4 are suspended.

(2) The customer will support OPTIOFFICE in every respect in the fulfillment of the maintenance services according to this contract. In particular, in the interest of efficient troubleshooting and troubleshooting when the contract is concluded (via online interface / online form), the customer will appoint a responsible employee (so-called key user) as the contact person for OPTIOFFICE and name OPTIOFFICE.

(3) The key user bundles and coordinates messages and inquiries from the customer. Before passing them on, they will first check the reports and inquiries based on their own expertise as to how they can help the users concerned. If you cannot solve the problems that arise, forward the messages and inquiries to OPTIOFFICE. Other employees of the customer are not authorized to notify OPTIOFFICE or make inquiries.

(4) The key user also supports OPTIOFFICE during the troubleshooting work, for example by transmitting test cases and / or test data, providing error logs, screen shots, etc.

(5) If it turns out that a defect reported by the customer does not actually exist or is not attributable to the software (pseudo defect), the customer bears the costs incurred in the course of error analysis and other processing at OPTIOFFICE in the amount of the hourly rate of 100, - EUR plus VAT, unless the customer could not recognize the existence of such a pseudo deficiency even after taking the necessary care.

 

§ 10.7 Obligation to examine and notify

(1) The customer will examine the maintenance services, including any changed or supplemented documentation, immediately after they have been made available, in particular with regard to the completeness and functionality of basic program functions.

(2) Defects that are discovered here must be reported to OPTIOFFICE immediately in writing. The notification of defects must contain a description of the defects that is as detailed and concrete as possible.

(3) Defects that could not be detected during the proper inspection described must in turn be reported in writing immediately after their discovery. This notification of defects must also contain a description of the defects that is as detailed and concrete as possible.

 

§ 10.8 Supplementary performance

(1) OPTIOFFICE has to carry out subsequent performance in accordance with the statutory regulations, unless otherwise stipulated in this contract.

(2) Defects caused by the maintenance services and reported by the customer to OPTIOFFICE during the term of this contract will be remedied by OPTIOFFICE free of charge.

(3) If OPTIOFFICE leaves the customer with software adjustments in the context of troubleshooting according to § 9.3 or the further development according to § 9.4, the customer has the right to subsequent performance according to this § 10.9 with regard to the software parts that lead to a change and addition to the software used so far . Insofar as the software adaptation provided is identical to the software already in use, the previously existing rights from §6 and 9 and the associated statute of limitations remain for the existing software parts.

(4) If the customer has installed software adaptations made available within the scope of this § 10.8 according to their type and intended use in such a way that they have become part of an IT system from which the software adaptations cannot be easily removed in the event of their deficiency OPTIOFFICE does not remove the software adjustments from this IT system as part of the supplementary performance. Likewise, OPTIOFFICE owes no reimbursement of expenses for this if it can remedy the error at short notice by means of an update and this can be expected of the customer. The liability of OPTIOFFICE for damages under this contract remains unaffected.

(5) Claims for subsequent performance with regard to maintenance services expire within 12 months. § 10.9 Usage Rights
The rights of use are regulated in § 3 (1).

 

 

§ 11 Term and Termination

(1) The contract is concluded for an indefinite period. The contractual relationship begins with the registration and registration by the customer and can be terminated by both parties at any time in writing with a notice period of 30 days to the end of a month.

(2) The right of each contracting party to terminate the contract without notice for an important reason remains unaffected. OPTIOFFICE is particularly entitled to terminate the contract without notice if the customer does not make payments due despite a reminder and a grace period or if the contractual provisions on the use of SaaS services are violated. In any case, termination without notice presupposes that the other party is warned in writing and requested to remove the alleged reason for termination without notice within a reasonable period of time.

 

 

§ 12 data protection / confidentiality

(1) The customer will comply with the applicable data protection regulations when using the SOFTWARE. In this respect, OPTIOFFICE is not responsible within the meaning of Art. 4 No. 7 GDPR.

(2) The contracting parties agree that, separately in a contract for order processing, in particular the subject matter and duration of the processing, the type and purpose of the processing, the type of personal data, the categories of data subjects and the obligations and rights of the person concerned in the context of the order processing Customers are set.

 

This order processing contract (AV contract) can be viewed, saved and printed out at any time in the SOFTWARE
in the "Data Protection" menu. It is also
attached to this contract. By accepting this contract, the customer confirms
that he has read and accepted the AV contract.

 

(3) OPTIOFFICE undertakes to maintain the strictest confidentiality about all confidential processes that it becomes aware of in the course of the preparation, implementation and fulfillment of this contract, in particular business or company secrets of the customer, and neither to pass them on nor to exploit them in any other way. This applies to any unauthorized third parties, i.e. also to unauthorized employees of both OPTIOFFICE and the customer, provided that the disclosure of information is not necessary for the proper fulfillment of the contractual obligations of OPTIOFFICE. In cases of doubt, OPTIOFFICE will obtain consent from the customer prior to such disclosure.

(4) OPTIOFFICE undertakes to agree with all employees and subcontractors employed by it in connection with the preparation, implementation and fulfillment of this contract a regulation identical in content to the above paragraph.

 

 

§ 13 Applicable law, place of jurisdiction

(1) German law applies to this contract to the exclusion of the UN sales law.

(2) The exclusive place of jurisdiction for disputes arising from this contract is Hamburg in Germany.

 

 

§ 14 Miscellaneous

OPTIOFFICE is entitled to unilaterally change these terms of use, insofar as this is necessary to remove equivalence disruptions that subsequently arise or to adapt to changed legal or technical framework conditions. OPTIOFFICE will inform the customer of a change by sending the content of the changed regulations to the last known e-mail address of the customer.

The change becomes part of the contract if the customer does not object to the inclusion in the contractual relationship with us in writing within six weeks after receipt of the notification of change.

 

 

§ 15 Miscellaneous

(1) Verbal subsidiary agreements have not been made. Changes, additions and additions to this contract are only valid if they are agreed in writing between the contracting parties. This also applies to changes to this contractual provision.

(2) Should a provision of this contract be or become ineffective, this does not affect the effectiveness of the rest of the contract. The ineffective provision is deemed to be replaced by an effective provision that comes closest to the economic purpose of the ineffective provision. The same applies in the event of a loophole in the contract.

(3) Attachments to which reference is made in this contract are part of the contract.

 

 

Annex 1: Order processing contract (AV contract).