Software-as-a-Service Agreement
onOffice GmbH
Charlottenburger Allee 5
52068 Aachen
Germany
onOffice GmbH, hereinafter referred to as “Provider”
“Customer” and “Provider” jointly hereinafter referred to as “Parties”
Preamble
The Provider offers an effective online administrative and marketing software platform for real estate agents (Software) and sells it to the Customer. The Software is provided to the Customer through a software-as-a-service (SaaS) model, allowing the Customer to access and use the software via the Internet. This Software as a Service Contract (the Contract) outlines the terms and conditions for the purchase of the license and governs the permissible extent of its usage.
§ 1 Area of Application
(1) All the Provider’s goods and services supplied to the Customer within the framework of Software as a Service (hereinafter called “SaaS”) shall be based solely on the terms and conditions set forth in this Contract. Unless expressly agreed mutually in writing, this Contract shall reflect the entire agreement between the Parties and supersedes all prior oral and written agreements and understandings with respect thereto.
(2) Notwithstanding the provisions in paragraph 1.1, the Provider shall supply, if requested in writing by the Customer, additional services to which special conditions and specific regulations may apply. If additional services are offered, additional terms and conditions attached in the form of annexes may apply and shall therefore become an integral part of the Contract.
(3) This Contract includes and incorporates in their entirety, onOffice’s Offer above (Offer), onOffice’s Privacy Policy (Privacy Policy as hyperlinked below), as well as onOffice’s General Terms and Conditions below (General Terms and Conditions). This Contract, together with the Offer, the Privacy Policy, and the General Terms and Conditions, shall be known as the Agreement.
§ 2 Subject of the Contract – SaaS Services –
(1) The subject matter of the Contract shall be as follows:
- Provider hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted by this Contract) license to use the Software (as defined above and as further described below).
- Provision of computing power and storage space by the Provider for storage of data according to the offer.
(hereinafter together called the “Services”)
(2) Creation and maintenance of the data link between the transfer point as defined in § 3 (3) and the Customer’s Information Technology (IT) systems shall not be included within the Services. The Customer shall be solely responsible for the operability of his Internet access, including the transmission paths, as well as of his own computers (required hardware and software).
(3) The software source code shall not be included as part of the Services.
§ 3 Transfer of Software
(1) Upon payment of all applicable fees outlined in the Offer, the Provider shall grant access to the latest version of the Software to the Customer through the internet. To facilitate this, the Provider shall host the Software on a server for download. Access to the Software will be granted through a currently valid browser or another suitable application (e.g., app).
(2) The Software provided shall be available for use in accordance with the specifications outlined in the Offer and shall include the functional characteristics described therein.
(3) The transfer of the software shall be deemed to occur when the data leaves the computer center.
(4) Throughout the term of the contract (as defined in paragraph 17 herein), the Provider shall make necessary adaptations to the Services to accommodate market-related technical changes. However, the Customer shall not have the right to request specific improvements to the Software.
§ 4 Provision of Storage Space
(1) To accommodate the Customer’s data, encompassing all submitted, inputted, uploaded, stored, posted, displayed, or transmitted content, referred to as ‘Customer Data’, the Customer shall be granted storage space on a server. The Customer is permitted to store Customer Data up to a volume specified in the Offer’s technical specifications. Should the allocated storage space become insufficient for the Customer Data, the Provider will notify the Customer accordingly. Depending on availability, the Customer may expand their storage capacity for a fee, details of which can be obtained from the Provider. In cases where the storage space is used in violation of the Contract terms or excessively (beyond 100 GB per user), the Provider reserves the right to terminate the storage capacity or impose a flat-rate storage charge. Prior to termination, the Customer will receive a warning and will be given a four-week period to reduce the storage usage.
(2) The Provider shall ensure that Customer Data is accessible on the internet, although continuous availability cannot be guaranteed.
(3) The Provider is obligated to take normal, reasonable precautions to prevent data loss and unauthorized access to Customer Data by third parties. These precautions must be at least equivalent to those utilized by the Provider for its own data and systems. The Provider shall regularly create security backups of Customer Data. These security measures are detailed in the Technical and Organizational Measures (TOMs), which are an integral part of this Contract. The Customer retains the right to audit the Provider’s compliance with the TOMs at any time during the Term and for seven (7) years following the termination of this Agreement.
Any data loss shall be promptly reported to the Customer. In the event of data loss, the Provider will restore the latest backup. If the loss of data is attributable to the Customer’s gross negligence, fraud, or willful misconduct, the Customer shall reimburse the Provider for costs incurred as a result of the data loss.
§ 5 Support
In addition to the software, the Provider shall provide support services as part of the Services. The scope of these support services shall be determined by the description of the selected service package in the Offer. Additionally, the Customer may request technical support via phone for up to 30 minutes per month. Unused phone support time cannot be carried over to the following month. Supplementary support packages may be arranged through individual agreements with the Provider’s sales department.
Support hours are from Monday to Friday, 8:00 am to 8:00 pm on working days, and cover the receipt of malfunction reports, rectification of technical issues, and assistance with operational queries regarding our Software. Outside these hours, including weekends and national holidays, an emergency hotline is available, charging £ 5.95 net for every starting 5-minute block.
§ 6 Access
(1) Upon the Effective Date (as defined below in paragraph 17), the Provider shall transmit the Software administration access data to the Customer.
(2) The Customer is authorized to create users who have the right to access and utilize the Software for administrative, editing, analytical, and viewing purposes (‘End Users’). Only individuals with real names may be registered as End Users. The Customer is responsible for verifying the identity of the End Users and maintaining a record of their End User data in a list of registered users (‘Named End Users’), along with their respective access codes.
(3) The Software may only be accessed by the number of End Users specified in the Offer. Additional orders can be made through the Provider’s sales department contact person or the relevant Software shopping center. Each End User will be assigned a fixed license for permanent use, which cannot be divided among multiple individuals. Licenses may only be transferred to another End User under justified circumstances (e.g., the End User is no longer employed by, acting on behalf of, or consulting for the Customer, or due to reasons such as leave, illness, or cessation of Software use). In such cases, the previous End User’s license will be revoked, and the change of user must be documented with the new user’s data in the list of registered users.
§ 7 Rights to Use the Software
(1) The Customer shall be granted a non-exclusive and non-transferable right to access the software via the Internet and use it in accordance with the provisions of the Contract. This right shall be limited to the Term of the Contract.
(2) The Customer and End Users are not permitted to utilize the Software beyond the rights granted in this Contract. Additionally, the Customer is prohibited from transferring its rights in the Software to third parties for their use. For the purpose of this clause, ‘Third Parties’ do not include Customer employees, consultants, directors, officers, affiliates, or third parties providing services to the Customer (‘Customer Parties’). Use of the Software is restricted solely to Customer Parties. Specifically, Customer Parties are prohibited from reproducing or exploiting the Software or its components, whether for sale, rental, or any other form of usage. However, the Parties acknowledge and agree that the Customer shall take commercially reasonable actions to ensure that End Users comply with the terms and conditions herein. The Customer shall not be held responsible for any actual or alleged acts, omissions, or conduct of End Users directly related to their misuse of the Software.
(3) The Customer shall grant the Provider necessary data rights to Customer Data for the limited purpose of performing the Contract. These rights shall be transferred by the Customer in connection with the use of the Software on the provided storage space. This includes the right to make Customer Data accessible for queries over the internet, reproduce and transmit the data for this purpose, and reproduce the data for data backup purposes. The Customer retains sole ownership of Customer Data and may export them as a CSV file from the Software (download) at any time without any right of retention by the Provider. Upon termination of the Contract, the Customer may request deletion or return of all Customer Data, or commission a backup to comply with deadlines in its business activities. Details can be obtained from the Provider. The Customer is not entitled to obtain software from the Provider suitable for further use of Customer Data. In the event Provider receives an enquiry from a data subject or regulatory body related to Customer Data, Provider shall promptly notify Customer and offer necessary assistance to comply with the enquiry.
§ 8 Interrupted Accessibility
(1) Adjustments, amendments, and additions to the Services, as well as measures used to detect and rectify malfunctions, shall result in temporary interruptions in accessibility only if deemed essential for technical reasons. Planned and announced maintenance work shall not be considered downtime. The Provider shall make reasonable efforts to announce maintenance work at least 7 days before its scheduled commencement.
(2) The Provider shall strive to maintain high availability of the Services.
§ 9 Obligations of the Customer
(1) The Customer shall refrain from knowingly storing any data on the provided storage space that violates laws, official regulations, or the rights of third parties. Upon discovering any such violation, the Customer shall promptly notify the Provider and take reasonable steps to rectify the misuse of the storage space. Upon initial request, the Customer shall indemnify the Provider from all third-party claims arising from such violations. The Provider shall bear responsibility for any third-party claims resulting from the Provider’s failure to comply with initial requests.
(2) The Customer undertakes not to store immoral data on the provided storage space or use the data in a manner unreasonable for the Provider. Unreasonable use includes the dissemination of extreme political, ideological, or religious opinions, xenophobic or discriminatory comments. Upon initial request, the Customer shall release the Provider from all third-party claims arising from such violations. The Provider shall bear responsibility for any third-party claims resulting from the Provider’s failure to comply with initial requests.
(3) The Customer shall make commercially reasonable efforts to encourage End Users to deploy antivirus software on devices used to upload Customer Data.
(4) The Customer shall not attempt, without permission, to access or retrieve information or data personally or through unauthorized third parties, or intervene in programs operated by the Provider, or enter Provider’s data networks without authorization.
(5) The Customer shall not misuse electronic messaging for unsolicited transmission of messages or information to third parties for advertising purposes (spamming).
(6) The Customer shall take reasonable precautions to prevent unauthorized access by third parties to protected areas of the software.
(7) The Customer shall keep access data confidential and not disclose them to third parties.
(8) Customer Data stored on the provided storage space may be protected by copyright or data protection law. The Customer shall ensure compliance with all third-party intellectual property rights and copyrights. Additionally, the Customer grants the Provider the right to make stored content available for internet queries and reproduce content for data backup purposes.
(9) The Customer shall ensure that its End Users comply with the provisions and obligations set forth in this Contract relating to the use of Services.
(10) Despite the Provider’s obligation to back up Customer Data, the Customer remains responsible for entering and updating Customer Data for Service usage.
(11) During the contract term, the Customer must ensure the technical requirements for the use of the subjects of performance. Failure to do so may result in malfunction, for which the Provider is not liable. This pertains to the following, but not exclusively:
- Sufficient bandwidth and Quality-of-Service, both in the Customer’s local network and on the Customer’s network operator’s line,
- VPN-capable routers.
Further technical requirements may be separately disclosed to the Customer before the conclusion of the contract.
(12) In case of faults or malfunctions, the Customer must promptly and accurately inform the Provider. If the Customer fails to notify the Provider, § 536 c of the German Civil Code (BGB) shall apply analogously. If remote maintenance access is required, the Customer shall grant such access to the Provider.
(13) After submitting a fault report (within the service description from the Offer), the Customer shall reimburse the Provider for test costs if it is determined that no fault existed in the Provider’s technical equipment, which the Customer could have discovered with reasonable effort.
(14) When using portal interfaces (e.g. to ImmobilienScout24, Immonet, Immowelt, etc.), the Customer shall verify successful transmission personally. The Provider does not warrant transmission or the absence of transmission errors.
(15) If the Customer’s data stored on the provided storage space contains personal data, the Customer must sign the Provider’s Data Processing Agreement.
§ 10 Unauthorized Use of the Software
(1) If the Customer allows third parties or users not included in the Named End Users to access the Software, penalties may apply. The Provider will determine the penalty at its discretion. Payment of the penalty offsets any further claims for damages.
(2) In the event of a material breach of the terms and conditions herein, particularly the obligations outlined in Sections 9.1 to 9.7, by the Customer or any End User, the Provider shall notify the Customer in writing. The Customer shall, upon request, immediately provide the Provider with all information required to assert claims against the user, in particular the name and address of the user. If the alleged breach is not remedied by the Customer within ten (10) days, the Provider is entitled to block the Customer’s access to the Software and Customer Data. Access shall only be restored upon remedy or rectification of the alleged failure. However, if the Customer materially breaches this Contract, the Customer shall continue to pay the Fees specified in the Offer until the breach is cured or the Contract is terminated by either Party. The Provider may delete the relevant data in the event of a breach of Sections 9.1 to 9.3.
§ 11 Fees
(1) The user license fee, setup fee, and automation package, as detailed in the Offer (the ‘Fees’), shall be payable in advance on the first working day of each month. Payment of fees shall commence from the month in which the software is provided ready for use. Default shall occur 14 days after the due date without the need for a warning. The Customer authorizes the Provider to collect the Fees using the SEPA direct deposit procedure and ensures the availability of necessary funds in its bank account. In the event of a bounced SEPA direct deposit, the Customer is responsible for reimbursing the Provider for associated costs. The Customer must provide the necessary bank account details to the Provider within five (5) days of the Effective Date and inform the Provider of any subsequent changes.
(2) The user license fee, as stated in the Offer, is calculated based on the number of users, the term of the Contract, efficiency, and other specified aspects.
(3) In addition to the monthly fee, a one-off set-up fee may be charged, payable within fourteen (14) days of the signature date. The amount and scope of services for the set-up fee are detailed in the Offer.
(4) Costs related to out-of-scope services, not included in the Services, shall be invoiced upon receipt of an invoice from the Provider.
(5) Invoicing shall be conducted electronically via email to the Customer’s provided email address. Paper invoices are available upon the Customer’s request, subject to an administrative fee of £ 2.00 per invoice.
(6) The Customer must obtain prior written consent from the Provider to use any out-of-scope Services not included in the Offer.
(7) All prices are invoiced in Euro plus applicable VAT. The Provider will charge indirect taxes where legally obliged to do so.
(8) The Provider may increase the price of the Services once a year with a three (3) month written notice to account for inflation or cost increases. However, prices remain unchanged for the minimum term specified in the Offer. If the increase exceeds 10 %, the Customer may terminate the Contract within six (6) weeks of receiving the notice. In the event of termination, predetermined prices remain until termination occurs.
§ 12 Default
(1) If the Customer fails to pay the Fees for a period exceeding two (2) months, the Provider may demand immediate flat-rate compensation equivalent to the remaining monthly Fees up to the end of the regular Contract term. Failure to pay outstanding amounts within ten (10) days’ notice may result in termination of the Contract by the Provider. If the Customer is significantly overdue (three or more months outstanding), the Provider may block access to the software and Customer Data due to non-payment. The Provider will notify the Customer via system report and grant a reasonable grace period to settle outstanding claims.
(2) The Provider reserves the right to pursue other claims arising from default in payment.
(3) If the Provider fails to deliver the Software on time, liability shall be as per Section 13. The Customer may terminate the Contract if the Provider fails to deliver the Software in accordance with the Contract terms and does not remedy the breach within a reasonable grace period of fourteen (14) days granted by the Customer.
§ 13 Warranty and Liability
(1) The Provider shall warrant the agreed quality of the Services in accordance with rental law provisions. A security framework comprising policies, procedures, and controls consistent with the Provider’s information security policy shall be maintained to protect the security and integrity of the Services and Customer Data. This includes administrative, physical, and technical safeguards, utilizing available technologies and industry practices such as encryption, backup, disaster recovery, and business continuity.
(2) In the event of a third-party intellectual property rights claim limiting or impairing Software use, the Provider may terminate the affected Services. The Customer shall be promptly informed and granted access to Customer Data. No outstanding Fees shall be payable by the Customer, and other rights or claims shall remain unaffected.
(3) Defects in the Software, including online help and documents, shall be rectified by the Provider within a reasonable period after notification by the Customer, orally or in writing. This provision also applies to other technical issues related to Software use. Defect rights under a rental contract apply, and the Provider may rectify defects as long as the Customer is not in default on fee payment.
(4) The Customer’s right to terminate the Contract due to failure to grant Software use, as per § 543 (2) Sentence 1 No. 1 of the German Civil Code (BGB), is excluded unless the Provider fails to rectify the grant of use within ten (10) days of Customer notification.
(5) Information regarding Service properties, technical data, and specifications in the Offer and contract-related documents serve solely to describe the service and do not constitute a warranty under the German Civil Code. The Provider makes no warranty promises.
(6) If the Provider breaches the Contract, compensation shall be as follows:
a) Unlimited in cases of intent and gross negligence;
b) In cases of slight negligence, compensation shall be limited to foreseeable damage typical of the Contract solely due to infringement of a material contractual obligation.
All other liability shall be excluded.
(7) In accordance with § 536 a (1), 1 Alternative German Civil Code, the Provider’s liability without fault for defects existing at the time of Contract conclusion is excluded.
(8) Liability for data loss is limited to typical recovery costs that would have been incurred if the Customer had regularly backed up data, unless § 13 (5) applies.
(9) These liability limitations also apply to the personal liability of Provider employees, representatives, and officers.
(10) Minor technical issues acceptable to the Customer, not resulting in Service failure or unavailability, are permissible. In such cases, no claims may be made against the Provider. Minor issues include use of unsuitable hardware or software by the Customer or its internet Provider, issues not significantly impairing Services, force majeure, system failures, line outages, network problems, or server downtime not exceeding 8 hours within 30 days.
Liability restrictions do not apply to physical injury or liability under Germany’s Product Liability Act.
(11) Claims under this Contract for warranty and liability are barred after 12 months from Contract termination and claim notification, except for cases of intent, gross negligence, physical injury, non-fulfillment of independent warranties, or Provider malice. The period starts at the end of the month in which the claim arose and the Customer became aware.
(12) The Provider shall activate a spam detection for outgoing mails, which shall ensure that the onOffice software is not misused for sending spam emails. In this regard, the Customer will receive a corresponding notice. This is to ensure the improvement and the reputation of the mail system for automatically generated emails from the onOffice server.
§ 14 Transfer of Rights and Obligations
Neither Party may transfer the rights and obligations outlined in this Contract to third parties without obtaining prior written consent from the other Party. However, the Provider is entitled to transfer these rights and obligations to a group company within the meaning of § 15 of the German Joint Stock Corporation Act (AktG).
§ 15 Maintenance of Confidentiality
During the Term and for ten (10) years thereafter, each Receiving Party agrees to keep confidential any Confidential Information received from the Disclosing Party under this Contract, except as expressly authorized or agreed in writing. The Receiving Party shall not publish, disclose, or use such Confidential Information for any purpose other than as provided for in this Contract. However, this obligation does not apply if the Confidential Information:
- Was already known to the Receiving Party without an obligation of confidentiality;
- Was disclosed to the Receiving Party by a third party not bound by confidentiality obligations to the Disclosing Party;
- Was publicly available or part of the public domain before or after disclosure, without breaching this confidentiality obligation; or
- Was independently discovered or developed by the Receiving Party without using the Confidential Information of the other Party.
Notwithstanding the above, each Party may disclose Confidential Information to:
- Prosecute or defend litigation;
- Exercise rights under this Contract, provided similar confidentiality terms are observed; and
- Comply with applicable governmental laws and regulations.
If a Party must disclose Confidential Information to a third party, it shall give reasonable advance notice to the other Party and take measures to ensure confidential treatment.
Each Party has the right to use the other Party’s Confidential Information to fulfill its obligations under this Contract, including research, development, manufacture, and commercialization of products.
The Parties shall discuss and agree on the information content regarding this Contract that may be publicly disclosed, upon request by either Party.
§ 16 Force Majeure
(1) In the event of a Force Majeure event, neither Party shall be obligated to fulfill the terms of this Contract. For the purposes of this Contract, a Force Majeure event shall include delays caused by the other Party, acts of God, or any other cause beyond a Party’s reasonable control, which it could not have prevented by reasonable precautions. This encompasses failures or fluctuations in electric power, heat, light, air conditioning, or telecommunication equipment, as well as floods, earthquakes, war, civil unrest, rioting, terrorism, or any legal requirement, order, proclamation, regulation, ordinance, demand, or requirement with legal effect from any governmental authority having jurisdiction, or any other act, omission, or cause beyond the reasonable control of the obligated Party.
(2) Each Party shall promptly inform the other Party in writing about the occurrence of a Force Majeure event. Such delay in performance shall not constitute a breach of this Contract.
§ 17 Start and Term of Contract, Termination
(1) The commencement of the Contract (“Effective Date”) and any mandatory minimum term shall be specified in the Offer (the “Initial Term”). Upon the conclusion of the Initial Term, the Contract shall automatically extend for successive twelve-month periods (“Subsequent Term”) unless otherwise agreed upon by the Parties. The Contract may be terminated by either Party in accordance with the provisions outlined in paragraph (§) 17.2 below. The Initial Term and Subsequent Term collectively constitute the “Term” of the Contract.
(2) The Contract may be terminated by either Party with a minimum notice period of thirty (30) days in writing. The Parties’ right to terminate the Contract for cause remains unaffected. Either Party may immediately terminate the Contract if there are grounds for termination, including but not limited to:
- Repeated breaches of essential contractual obligations by the other Party, with essential obligations primarily encompassing timely payment of Fees;
- The commission of a criminal act by the other Party in connection with this Contract;
- Dissolution of the other Party’s business without assurance of immediate continuation by a legal successor;
- Commencement of bankruptcy proceedings against the assets of the Customer or the Customer’s inability to pay.
(3) The termination of the Contract shall be communicated in writing.
(4) Upon expiration of the Contract, regardless of the reason, the Customer’s contractual usage rights shall cease.
(5) The Customer may request the Provider to transfer the stored data in a standard digital format within three (3) months following the termination of the Contract. Depending on the scope, this may require a separate offer for data backup (prices available in the current price list upon request). After the expiration of this three-month period, all Customer Data shall be deleted without further notice.
§ 18 Miscellaneous
(1) In delivering the Services, the Provider shall adhere to the Privacy Policy accessible at https://onOffice.com/en/privacy-policy/, which is hereby incorporated by reference into this Contract. The commitments outlined in the Privacy Policy shall complement, and not replace, those made in this Contract. The Privacy Policy may be subject to modifications at the discretion of the Provider; however, such policy changes shall not materially reduce the level of protection afforded to Customer Data during the Term.
(2) This Contract shall be governed solely by German law, to the exclusion of international private law.
(3) Aachen shall serve as the place of performance, and it shall be the exclusive place of jurisdiction for any disputes arising from this Contract.
(4) No amendments, changes, modifications, or alterations to the terms and conditions of this Contract shall be binding upon either Party unless made in writing and signed by both Parties.
(5) Each provision of this Contract is separate and distinct from the others. If any provision of this Contract is or becomes invalid or unenforceable, the validity or enforceability of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be deemed to be replaced by a provision that, to the extent permitted by law, achieves the closest possible intent and purpose of the invalid or unenforceable provision. The same principle shall apply if the Parties unintentionally fail to address a certain matter in this Contract.
(6) Throughout the Term, the Parties shall act as independent contractors. In all communications and interactions with third parties, the Parties shall explicitly indicate that they are acting on their own behalf and for their own account. Neither Party shall implicitly or explicitly represent itself as the agent or representative of the other Party and/or its affiliates. The execution of this Contract or the performance of any of its provisions shall not be construed to establish one Party as an agent or legal representative of the other Party and/or its affiliates.
Contact Information
For questions, please contact the following address:
onOffice GmbH
Charlottenburger Allee 5
52068 Aachen
Germany
Tel. +44 20 33430 900
Fax. +49 (0)241 44 686-250
www.onOffice.com
For questions regarding data protection:
Email: m.menne@onOffice.com