1. Material Scope and Subject Matter of the Agreement
The following terms and conditions (the “General Terms and Conditions”) apply to end customers and the use and operational support of the standard software programs CalculationTool/LeadsHUB, the provision of which is ensured by DCP Instruments Limited (hereinafter referred to as DCP Ltd.) as a software-as-a-service (software as a service) via the medium of the Internet.
The objects of these contractual conditions are
– the provision of SaaS CalculationTool listed at https://ct.fooda.cc
– the provision of SaaS LeadsHUB listed at https://leadshub.polinet.de
for use via the Internet and
– the storage of the customer’s data on the servers of the computer centre.
Individually developed software programs are not subject to these contractual conditions.
2. Type and scope of the services
The nature and scope of the services provided by both parties shall be governed by the contractual agreements. The scope of services defined in the contract shall be deemed to be the agreed quality.
The following shall be decisive
the defined scope of performance of the software listed in the contract, which is set out in the respective product description and FAQs,
the suitability for the use assumed in the contract,
the conditions specified in the contract,
the conditions set out below,
generally applied technical guidelines and professional standards, in particular the international standards and proposals of the Internet Engineering Task Force (IETF) as documented in the Request-for-Comments (RFC) and the W3C (World Wide Web Consortium).
In the event of discrepancies, the contractual agreements shall apply in the above order.
Further conditions, in particular general terms and conditions of the contracting party, shall not apply, even if DCP Ltd. does not expressly object to them. The general terms and conditions of DCP Ltd. shall apply exclusively.
3. Terms of use
3.1. Rights of the Customer to the Software
DCP Ltd. grants the customer a non-exclusive, non-transferable, and non-sublicensable right to use the software mentioned in the contract for the duration of the contract. The software is provided via the Internet. The transfer point for the SaaS services is the router exit of the data centre used by DCP Ltd. to the Internet. The customer undertakes to use the software exclusively by the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. The Customer is not entitled to “reverse engineer”, decompile, disassemble, duplicate or use any part of the Software to create a separate application.
The Customer hereby acknowledges DCP Ltd. as the sole licensor of the Softwares and the associated copyrights. DCP Ltd’s rights as sole licensor shall also apply to any enhancements to the Software provided by DCP Ltd to the Customer unless otherwise agreed in writing.
The Customer shall not remove, alter or otherwise modify any copyright or other similar proprietary notices contained in the Software, Product descriptions, and FAQs.
3.2. Rights of the customer to the data
The data collected, processed, and generated by the Softwares are stored on the servers of the netcup GmbH computer centre in Nuremberg (Germany). In any case, the client remains the sole owner of the data and can therefore demand DCP Ltd. hand over individual or all data at any time, in particular after the termination of the contract, without DCP Ltd. having a right of retention. The surrender of the data is effected by electronic transmission via a data network or after a separate agreement by handing over of data carriers. The client has no right to receive software suitable for the use of the data. The responsibility for the permissibility of the collection, processing, and use of the data as well as for the protection of the rights of the persons concerned (information, use, correction, blocking, deletion) lies with the customer.
3.3. Violation of the Terms of Use
In case of infringement against the mentioned terms of use, DCP Ltd. is entitled to terminate the contract completely or partly without notice. In this case, DCP Ltd. additionally reserves the right to assert claims for damages against the customer resulting from the breach of contract.
3.4. Contract duration and termination
The minimum contract term for the provision of the SaaS service results from the leasing/rental contract. The contract is then extended by the minimum contract term in each case if it is not terminated in writing by the contractual partner at the latest with a notice period of three months to the end of the contract. The amounts are collected from the most recently deposited direct debit or credit card data.
Basic tariffs are an exception. Here, the minimum contract period is one month and this is automatically extended for the prepaid period by the same amount, but at least by a further month. After the minimum contract period, a notice period of 10 working days to the end of the current month applies. This has to be done in writing to info@dcp-instruments.uk.
DCP Ltd. is entitled to terminate the contract for a good cause, in particular in case of failed direct debits or credit card collections.
4. Maintenance Conditions and Service Level
4.1. Further Developments/Changes in Performance
DCP Ltd. reserves the right to further developments and performance changes (e.g. by using newer or different technologies, systems, procedures, or standards) in the course of technical progress and performance optimization after the conclusion of the contract. In case of significant changes in performance, DCP Ltd. will inform the customer in due time. In case of provision of new versions of the software, DCP Ltd. grants the customer the rights listed in section 3 accordingly also for the respective new version.
4.2. System Operation
DCP Ltd. shall ensure that the provided software is operated in an environment and configuration suitable for the customer’s requirements as well as on hardware suitable for the customer’s purpose of use. This includes the number and type of servers, regular backups, scalability, redundant power supply, air conditioning, firewalling, and broadband internet connection.
DCP Ltd. carries out daily backups of the data stocks. DCP Ltd. can carry out a restore procedure to restore the customer’s data at the express request of the customer.
4.3. System availability
The availability of the data centre network at the router output on the Internet is 99% on an annual average. The client-side connection to the Internet is the responsibility of the customer. This is not part of the SaaS scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are those periods which DCP Ltd. marks as so-called maintenance windows for optimization and performance increase as well as loss of time during fault clearance due to reasons which are not the responsibility of DCP Ltd. due to force majeure.
4.4. Disturbances in the system availability
Disturbances of the system availability have to be reported by the customer immediately after becoming known. Before reporting the disturbance the customer has to check his area of responsibility. In the case of fault reports received within the support hours, the fault clearance shall begin within four hours. In the case of fault reports received outside the support hours, the fault clearance shall begin on 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’s side) shall not be counted towards the fault clearance time.
5. Warranty
According to the state of the art, it is not possible to exclude errors in software under all fields of application. However, DCP Ltd. warrants that the software CalculationTool mentioned at https://ct.fooda.cc and the software LeadsHUB mentioned at https://leadshub.polinet.de are usable. The limitation period is one year.
Errors in the software and the associated documentation will be eliminated by DCP Ltd. free of charge within a reasonable period. The prerequisite for this claim for the removal of errors is that the error is reproducible. DCP Ltd. may, at its discretion, either repair or replace the software to fulfil the warranty obligation. In particular, DCP Ltd. can provide the customer with a new version of the software CalculationTool/LeadsHUB to fulfil the warranty obligation. It is equal to fault elimination if DCP Ltd. delivers an alternative solution to the faulty function, allowing the customer to use the software according to the contract.
The warranty claims are excluded if the software is not used according to the contract. Furthermore, warranty claims are excluded if the customer makes changes or extensions to the software mentioned in the contract.
If a significant program error is not corrected by DCP Ltd. according to the mentioned conditions, the customer can demand a reduction of the monthly SaaS fee. DCP Ltd. has the same right if the production of the error correction is not possible with reasonable effort. If in the course of the error correction it turns out that the problems are due to operating errors or improper use of the customer, DCP Ltd. may demand reasonable compensation for the incurred effort.
DCP Ltd. does not guarantee the fulfilment of the individual requirements of the customer by the software mentioned in the contract. This applies in particular to the non-achievement of the intended economic success.
6. Limitation of liability
In any case, the contractual, as well as the tortious liability of DCP Ltd., shall be limited to EUR 500,000 for personal injury, EUR 100,000 for financial loss, property damage, and damage to activities, and EUR 50,000 for loss of data, except in cases of intent or gross negligence. Liability for loss of profit is excluded.
DCP Ltd. shall not be liable for disturbances on telecommunication connections, for disturbances on line paths within the internet, in case of force majeure, in case of fault of third parties, or the customer himself. DCP Ltd. shall not be liable for damages that occur if the customer passes on passwords or user identifications to unauthorised persons.
A monthly fee agreed in the contract will be charged for the SaaS services. The accruing fees will be invoiced in advance over a period of time.
8. Terms of payment
Payments are made by direct debit or credit card clearing. If the payment deadline is exceeded, services may be restricted in the event of default.
The client is not entitled to set off claims against DCP Ltd. unless they are legally established claims recognised in writing by DCP Ltd. Warranty claims against DCP Ltd. are only due to the direct customer and cannot be assigned.
9. Confidentiality, data protection
The contracting parties undertake to keep secret the knowledge gained within the scope of the subject matter of the contract – in particular, technical or economic data as well as other knowledge – and to use it exclusively for the subject matter of the contract.
This shall not apply to information that is publicly accessible or becomes publicly accessible without unauthorised action or omission on the part of the contracting parties or which must be made accessible by a court order or a law. The Customer hereby agrees that its company logo, and company name together with the registered office of DCP Ltd. may be used and made public for reference purposes. In the event of support assistance with the Client’s problems, it may be necessary to access the Client’s records. The access can take place via a web meeting with the customer or via database analysis. This access is limited to the period of the respective support measure.
If personal data has to be processed within the scope of the subject matter of the contract, DCP Ltd. and the customer shall comply with the statutory data protection provisions.
DCP Ltd. hereby extends these statutory data protection provisions on its initiative to prescription-related data of the contractual partner.
DCP Ltd. points out to the customer according to the Federal Data Protection Act (BDSG) that data will be stored.
10. Final provisions
The place of the performance is Nuremberg/Germany. The place of jurisdiction for both contracting parties is London. International law shall apply. The contract, its supplements, amendments, and changes in the form must be in writing.
Should any provision of these contractual conditions be or become invalid, this shall not affect the validity of the remaining provisions of these contractual conditions. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intention. The same shall apply if a contractual loophole should become apparent in the terms and conditions.
