These General Terms and Conditions have been created in collaboration with K15t GmbH.
These Cloud General Terms and Conditions are accompanied by the Data Processing Addendum.
1 Scope of these Cloud General Terms and Conditions
1.1 Scope of application
(1) These Cloud General Terms and Conditions (“Cloud GTC”) shall apply if you as a customer (hereinafter, “Customer”) access one of our (Lively Apps GmbH, Munich, Germany) software solutions for the current basic Atlassian Software (e.g. Confluence; Jira) (hereinafter, “Software”) available on the Atlassian Marketplace via a telecommunications connection and the data generated by the use of the Software and/or the data required for the use of the Software (hereinafter, “Application Data”), including our support services which we provide in connection with the respective Software.
(2) Our Cloud GTC apply exclusively. Conflicting, additional or deviating terms and conditions of the Customer shall not become part of the agreement unless we have expressly agreed that they apply. Our Cloud GTC shall also apply if we provide a service without reservation while being aware of conflicting or deviating conditions of the Customer.
(3) Our Cloud GTC apply only if the Customer is an entrepreneur (§ 14 German Civil Code, “BGB”), a legal entity under public law or a special fund under public law.
1.2 Subject matter of the agreement
(1) The agreement covers:
(a) the Software selected by the Customer in its most current version. Please click here for the function description.
(b) our support services during the agreement’s term, including documentation. For the scope of our support services please click here.
(2) We do not owe any additional Software qualities and/or further services. In particular, the Customer may not deduce such an obligation from other representations of the Software or our services in public statements or in advertising by our sales partners, unless we have expressly confirmed such a quality.
2 Special agreements on the use of the Software
2.1 Provision of Software; Storage space for Application Data
(1) We keep the Software available for use on a central data processing system or several data processing systems (hereinafter, “Server”).
(2) We keep storage space available on the server for the Application Data.
(3) The Software and Application Data shall be backed up on the server on a regular basis, at least every calendar day. The Customer is responsible for compliance with commercial and tax record retention periods.
(4) The point of interconnection for the Software and Application Data is the exit router of our data center.
(5) We are not responsible for the quality of the necessary hardware and software on the part of the Customer or for the telecommunications connection between the Customer and our company up to the point of interconnection.
(6) Delays in performance due to force majeure, e.g. strike or lockout in third companies or in our company (in the latter case, however, only if the labour dispute is lawful), official orders, statutory prohibitions, general disruptions of telecommunications or other circumstances beyond the control of the Customer (hereinafter, “Force Majeure”) or circumstances within the sphere of influence of the Customer, e.g. delay in cooperating, delays by third parties attributable to the Customer, etc., entitle our company to postpone the provision of the services concerned for the duration of the hindrance plus a reasonable start-up period. If said event of force majeure continues for more than three months, both parties shall be released from their obligation to perform. Our further (statutory) claims or rights, in particular arising from delay of acceptance by the Customer, remain unaffected.
(7) Otherwise the provisions of Article 4.2 shall otherwise apply to claims by the Customer for damages or reimbursement of unnecessary expenses in the event that delivery is delayed, or performance is impossible.
2.2 Technical availability of the Software; Access to Application Data
(1) We undertake to provide the following availability of the Software and Application Data at the point of interconnection. The parties agree that availability shall mean the Software and Application Data technical usability at the point of interconnection for use by the Customer.
(2) The annual average availability of the Software shall be 99.5%.
(3) The available use (given availability) also includes the periods during which
a) malfunctions occur in or due to the condition of technical infrastructure’s parts required for the execution of the Software which are not to be provided by us or our agents;
b) only an insignificant reduction in fitness for contractual use occurs
2.3 Free test phase; Agreement’s term; Termination
(1) The Customer may initially test the Software free of charge for a period of one month (“Free Trial Period”). Within the Free Trial Period we provide support services to the best of our ability without being obliged to do so.
(2) The Customer can choose the term of the agreement on the Atlassian Marketplace according to the options available therein. The term is automatically extended by the originally selected term, unless the agreement is terminated by either party at the end of the term.
(3) The right of each party to extraordinary termination for good cause shall remain unaffected.
(4) Termination can be declared by clicking the button “Unsubscribe” within the administration of the basic Software (see Article 1.1 (1)).
(5) After termination of the contractual relationship the Software may no longer be used.
2.4 Further development; Updates
(1) We continuously aim to further improve the Software. There is no entitlement to a specific further development. Further development of the Software can lead to an extension and/or modification of the Software with the result that new functionalities are available, existing functionalities in the process and/or the user guidance are optimised, or the data management is adapted to the state of the art.
(2) The Customer may inform itself about innovations and updates via the means available on the Atlassian Marketplace.
(3) If necessary, the Customer administrator of the basic Software can update the Software to the latest version by clicking on “Update” in the administration of the basic Software.
2.5 Customer obligations to cooperate
(1) The Customer shall fulfil all obligations required to perform the agreement. It shall in particular
(a) take the necessary precautions to prevent unauthorised use of the application. In particular, it will ensure that no unauthorized third party can access the application by means of suitable protective measures (e.g. password strength, passwords on its computers, burglary protection). The Customer shall inform us immediately if it believes that access data and/or passwords may have become known to unauthorised persons;
(b) create and maintain the access, functional and system requirements agreed in the order as well as other requirements for the use of the application;
(c) ensure that the users authorized to use the application are sufficiently familiar with the operation of the application on the part of the Customer, in particular that the users receive sufficient training;
(d) ensure that (e.g. when transmitting information of third parties to our server) all rights of third parties to material used by the same are observed;
(e) inform its employees about our data processing for optimisation purposes and their right to object at any time in accordance with section 4.5 as soon as it grants them access to the software
(f) if relevant, check data and information about viruses before sending them to our company and use state-of-the-art virus protection programs;
(g) only send encrypted user data;
(h) cause entitled users to comply with the provisions of this Agreement applicable to them.
(2) The Customer is aware of the essential functional features of the Software and was able to test them within the Free Trial Period. The Customer bears the risk that the Software meets its requests and needs.
(3) The Customer shall be solely responsible for setting up a functional hardware and software environment for the Software of sufficient size to take into account the additional load caused by the subject matters covered by the agreement.
(4) The Customer shall bear any disadvantages and additional costs resulting from a breach of these obligations.
2.6 Data backup by the Customer; Liability for loss of data
(1) Provided that the Customer is given the technical opportunity to do so via our software, it will regularly back up the data stored on the server by downloading it to its own computer system.
(2) The Customer shall store its data backups in such a way that the backed-up data may be restored at any time.
(3) Our company shall not be liable for the loss of Customer data insofar as the damage is due to the Customer failing to carry out data backups and thereby ensuring that lost data can be restored with reasonable effort, contrary to its obligation under paragraphs 1 and 2. In all other respects, Article 4.2 shall apply.
2.7 Rights of Use; Software protection
(1) Unless the Customer is expressly granted rights under this agreement, our company exclusively holds all rights to the Software - in particular copyright, rights to or as part of inventions and technical intellectual property rights. This also applies to processing of the Software by us.
(2) We grant the Customer a simple right, that may not be transferred or sub-licensed, to use the Software in accordance with the provisions of the functional description and (supplementary) of these Cloud GTC. This right of use may at the same time only be exercised simultaneously by the maximum number of users for whom the Customer also owns Atlassian basic Software license (e.g. Confluence, Jira).
(3) The Customer shall not be entitled to transfer access to the Software to third parties.
(1) We guarantee that the software has the agreed quality during the license period. It is not afflicted with defects that cancel or reduce the value or suitability for normal use or the use stipulated in the contract. This includes the non-existence of malicious program parts (“viruses”).
(2) If the Customer notifies us of a defect, we are obliged, at our discretion, to immediately remedy the defect or to deliver a replacement free of defects.
(3) The Customer shall support us in the error analysis and elimination of defects, in particular by specifically describing any problems that occur, providing us with comprehensive information and granting us the time and opportunity required to remedy the defects reported.
(4) If we perform services in the search for or removal of defects without being obliged to do so, we may demand remuneration in accordance with our usual hourly rates. This applies in particular if a defect cannot be proven, cannot be reproduced or is not attributable to us.
(5) Warranty claims shall become statute-barred within one year of the software being provided by us.
3 Special agreements on the provision of support services
We provide Software support services during the term of the agreement in accordance with the following provisions (hereinafter, “Support and Update Services”).
3.1 Scope of support and Update Services
(1) The Support and Update Services include the handling of errors or other defects of the software that become known regardless of its use by the Customer, unless specified otherwise below.
(2) Our Support and Update Services do not include:
(a) Services for the software if the latter is not used under the conditions of use specified by us;
(b) Application and adaptation of interfaces and APIs;
(c) Handling errors caused by the Customer or by third parties, including the disruption of operations caused by third-party software;
(d) Services for computer programs or parts thereof that are not included in the software;
(e) Services which can be performed at our registered office, but which are performed at another location at the express request of the Customer;
(f) Instructing and training software users; and
(g) Services that become necessary because the Customer does not comply with its obligations to cooperate according to Article 2.5.
(3) We provide our support via a ticketing system (see https://lively-apps.atlassian.net/servicedesk/customer/portals). We are not required to provide a telephone hotline.
(4) Support for the Customer shall be provided during our working hours Monday-Friday, with the exception of public holidays in Bavaria, Germany, from 9:00 a.m. to 5:00 p.m. Central European Time (CET).
(5) Pending defect claims of the Customer (Article 2.8) are not included in support services and remain unaffected by the same.
3.2 Customer cooperation and obligations with regard to Support and Update Services
(1) The Customer shall provide us with the necessary information in the event of a support request and shall cooperate in answering its request, in particular by:
(a) providing the relevant documents, documentation and information required for the provision of services, in particular concerning existing systems, devices, computer programs and computer program parts which are to interact with our Software;
(b) documenting detected defects of services rendered in a reproducible, at any rate comprehensible form and immediately informing us about said defects;
(c) making available at its own expense facilities, infrastructures and personnel suitable for cooperation, insofar as necessary for the provision of services;
(d) performing necessary acts of cooperation in due time.
(2) The Customer shall name at least one contact person. We shall be immediately informed about any changes regarding in the contact person. The contact person shall have experience in handling the Software and must be able to provide information on the installation environment and the Software error reported in the event of queries from us. The Customer shall grant the contact person a corresponding authorisation to represent the Customer, in particular to also receive declarations from us.
(3) Prior to reporting the error, the Customer shall carry out an analysis of the system environment within the scope of its possibilities to ensure that the error is not attributable to system components that are not covered by this Agreement.
(4) As long as the Customer is in default with carrying out the required actions our company will be entitled to suspend performance of those services that without said Customer’s actions cannot be performed at all or can only be performed with disproportionate additional expense. Any additional expenditure actually caused shall be reimbursed to our company by the Customer in addition to the agreed remuneration on the basis of our applicable hourly rates. Our further legal rights remain unaffected.
3.3 Defects in support services
(1) The support services are subject to the statutory provisions on service contracts (§§ 611 ff. BGB).
(2) We shall only be liable for damages due to a defect in our support services within the limits specified in Article 4.2.
4 General provisions
The following provisions apply to all of our aforementioned services (software lease and Support and Update Services):
4.1 Fees; Payment
(1) The fee for our services depends on the number of users and can be found under the heading “Cloud Pricing” on the Atlassian Marketplace. The prices are net prices, i.e. not including applicable value-added tax.
(2) Billing will be carried out via Atlassian Pty Ltd., which we have authorised to collect our claims in its own name.
(1) Both parties are liable for damages due to the violation of contractual obligations to the extent that they are at fault.
(2) The amount of liability for simple negligence shall be limited to the damage typically foreseeable for the damaging party at the time of the breach of duty, however, limited to a maximum amount of US-$ 10,000 per damaging event.
(3) Liability for loss of profit is excluded.
(4) We shall not be liable for the loss of data to the extent that the damage is due to the fact that the Customer has failed to carry out regular data backups ensuring that lost data can be restored with reasonable effort.
(5) Non-contractual liability remains unaffected.
4.3 Third Party Rights
(1) If third parties assert claims against the Customer due to infringement of intellectual property rights in connection with the services rendered by us, we shall indemnify the Customer against these claims and shall cover all necessary and reasonable costs of legal action.
(2) If the Customer is sued by third parties, the Customer shall coordinate with us and shall take legal action, in particular acknowledgements and settlements, only with our consent. We shall defend ourselves against claims by third parties at our own expense if they are based on our attributable breach of duty.
(3) If third parties assert claims which prevent the Customer from exercising the rights of use granted to him in this agreement, the Customer shall inform us immediately in text form. At the same time, he authorizes us to conduct legal actions against third parties both in and out of court on our own.
(1) The parties shall remain silent about all confidential matters, in particular business or trade secrets, which come to their knowledge in the course of the preparation, execution and performance of this contract and shall neither pass them on nor exploit them in any other way.
(2) The obligation of confidentiality does not apply if the information in question is to be disclosed pursuant to a court order, an administrative order or a law. The parties shall inform each other without delay of the disclosure and shall disclose the information in such a way as to preserve confidentiality to the greatest extent possible.
4.5 Data protection; Data processing
(1) We comply with the rules of data protection, in particular if we are granted access to the Customer’s establishment or its hardware and software. We ensure that our agents also comply with these provisions, in particular we oblige them to maintain data secrecy before commencing their activities. We do not intend to process or use personal data on behalf of the Customer. If the Customer cannot exclude access by us to its personal data, the parties will conclude an agreement for data processing. Please contact us in the latter case.
(2) In order to continuously improve the software, we collect the following data during the access to the software by the user:
Usage of individual functions
Errors in frontend code
(3) The data is collected and analysed by a processor who is subject to the Data Processing Addendum linked in 4.5 (1). Once analyzation is completed, the data will be deleted. Under no circumstances will the data be passed on to third parties.
(4) The user will be informed about the activated data processing on the user interface of the software. He may object to this at any time.
(5) Insofar as the Customer collects, processes or uses personal data when using the application, it shall obtain the consent of the respective person affected if not otherwise authorized.
4.6 Export and import control
(1) The Customer is aware that the services under this agreement may be subject to export and import restrictions. In particular, there may be licensing obligations, or the use of the Software or associated technologies may be subject to restrictions in certain countries.
(2) The Customer shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America as well as all other relevant regulations.
(3) The performance of the agreement by us is subject to the proviso that there are no obstacles to performance due to national and international export and import law provisions or any other statutory provisions.
4.7 Quotation as reference
We are entitled to use the Customer’s name including its logo as a reference for advertising purposes. If the Customer does not agree, it can send an e-mail to email@example.com at any time, together with a request to cease use. We will comply with this request immediately.
4.8 Final provisions
(1) The Customer may only transfer rights and obligations arising from or in connection with this agreement to third parties with our prior consent in writing.
(2) Place of performance is our registered office in Munich, Germany.
(3) Insofar as the Customer is a merchant within the meaning of the German Commercial Code (“HGB”), a legal entity or special fund under public law, the place of jurisdiction for any disputes arising from the business relationship between our company and the Customer shall be our registered office in Munich, Germany. We shall also be entitled to file suit at the Customer’s place of business as well as at any other admissible place of jurisdiction.
(4) The relations between us and the Customer are subject to the law of the Federal Republic of Germany exclusively. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.