These General Terms and Conditions have been created in collaboration with K15t GmbH.
These Data Center General Terms and Conditions are accompanied by the Data Processing Addendum.
1 Scope of these Data Center General Terms and Conditions
1.1 Scope of application
(1) These Data Center General Terms and Conditions (“Data Center GTC”) apply to the lease of software by our company, Lively Apps GmbH, Munich, Germany, to you as a customer (hereinafter, “Customer”), if you lease one of our Software solutions for the current basic Software of Atlassian (e.g. Confluence; Jira) via the Atlassian Marketplace for download and installation on your own system (hereinafter, “Software”), including our support services, which we provide in connection with the respective Software.
(2) Our Data Center GTC apply exclusively. Conflicting, additional or deviating conditions of the Customer from these Data Center GTC shall not become part of the agreement unless we have expressly agreed that they apply. Our Data Center GTC shall also apply if we provide a service without reservation while being aware of conflicting or deviating conditions of the Customer.
(3) Our Data Center GTC shall only apply 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 at the time of the conclusion of the agreement. Please click here for the function description.
(b) our support services for the period of time selected by the Customer on the Atlassian Marketplace for support and update services 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 derive 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.
(3) The Customer is entitled to download a previous version from the Atlassian Marketplace instead of the most current version. However, we do not guarantee compatibility with other software and the security of such older versions.
(4) The above provisions shall apply mutatis mutandis to updated versions of the Software which we make available to the Customer for download at our free discretion during the term of the agreement.
2 Special agreements for the Software lease
2.1 Provision of the Software
(1) We provide the Software for download on the Atlassian Marketplace.
(2) The Customer receives the Software as an executable program. The source code of the Software is not part of the agreement.
(3) 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.
(4) 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 Free Trial Period; Agreement’s term; Termination
(1) The Customer may initially test the Software free of charge for a period of one month (“Free Trial Period”). At the Customer’s request the Free Trial Period is extended up to a total of six months. Within the Free Trial Period we provide support services to the best of our ability without being obliged to do so.
(2) The lease following the Free Trial Period has a term of up to twenty-four months and ends thereafter without the need for termination.
(3) The right of each party to extraordinary termination for good cause shall remain unaffected.
(4) After termination of the contractual relationship the Software can no longer be used.
2.3 Further developments; Updates; End of Life; Compatibility
(1) We aim at continuously further developing the Software. There is no entitlement to a specific further development. The 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) Further developments of the Software will be made available for download as an update or new version on the Atlassian Marketplace.
(3) For a period of two years, we support versions of our Software older than the most current version only by providing security patches for critical security vulnerabilities (“End of Life”). We expressly point out that beyond this period of time, neither compatibility with the current basic Software of Atlassian (e.g. Confluence; Jira) nor sufficient security of such previous versions is guaranteed. If we provide updates, they will be compatible with versions of Atlassian’s Software (e.g. Confluence; Jira) released within the last two years.
2.4 Customer obligations to cooperate
(1) The Customer shall be obliged to keep the Software up to date at all times during the term of the agreement, in particular to install upgrades and new versions of the Software immediately after we have notified the Customer accordingly. To be informed by us about the latest upgrades and versions of the Software, the Customer undertakes to log in to the “Watch” function. Without a corresponding registration, a Customer can always view the latest version of a Software under the history version, which can be found for the relevant product on the Atlassian Marketplace under “Versions > See all versions”. We inform the Customer about critical security updates in any case without the latter having to take any action; the information is sent to the contact data entered by the Customer on https://my.atlassian.com. We shall only provide our support services if the Software is up to date with the latest version delivered by us.
(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 a size that is sufficient to take into account the additional load caused by the subject matters covered by the agreement.
(4) The Customer shall thoroughly test the Software before use to verify any defects and usability in the existing hardware and Software configuration. This also applies to Software which the Customer receives within the scope of warranty and, where applicable, maintenance.
(5) The Customer shall comply with our Company’s instructions for the installation and operation of the Software; it shall regularly keep up to date with our company’s current instructions on the website accessible via the Internet at https://help.livelyapps.com and take them into account during operation.
(6) The Customer shall bear any disadvantages and additional costs resulting from a breach of these obligations.
2.5 Data backup by the Customer; Liability for loss of data
(1) The Customer shall take appropriate measures for the event that the Software does not work properly in whole or in part (e.g. daily data backup, fault diagnosis, regular checking of data processing results). In particular, the Customer shall carry out a complete backup of all system and application data immediately before each update or installation of a newer version of the Software. The data backups shall be stored in such a way that the backed-up data may be restored at any time.
(2) 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 paragraph 1. In all other respects, Article 4.2 shall apply.
2.6 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 (and all copies made by the Customer) - in particular copyright, rights to or in inventions and technical intellectual property rights. This also applies to processing of the Software by our company.
(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 Data Center GTC. This right of use may at the same time only be exercised by the maximum number of users for whom the Customer also owns an Atlassian basic Software license (e.g. Confluence; Jira).
(3) The Customer shall not be entitled to transfer the Software to third parties. In particular, it shall not sell, transfer, grant, lease or sublicense the Software in any other way; publicly reproduce the Software or make it accessible or install it on the systems of third parties. If the Customer intends to install our Software on the servers of third parties, a separate, individual agreement between the Customer and our company is required.
(4) Reproductions of the Software are only permitted insofar as they are necessary for contractual use. The Customer may make backup copies of the Software in accordance with the rules of technology to the extent necessary. Backup copies on movable data carriers shall be labeled as such and marked with a copyright notice.
(5) The Customer is only entitled to make changes, extensions and other modifications to the Software within the meaning of § 69c Nr. 1 and 2 of the German Act on Copyright and Related Rights (“UrhG”) to the extent that this is unconditionally permitted under the UrhG. Before the Customer itself rectifies defects or instructs a third party to do so, it shall first allow our company to attempt to rectify the defect. The Customer is not entitled to rights of use and exploitation in such processing beyond the rights of use granted under this agreement.
(6) The Customer shall only be entitled to decompile the Software within the scope of § 69e UrhG and only if we have not provided the necessary data and/or information in writing within a reasonable period of time following a corresponding request to do so in order to establish interoperability with other Software.
(7) Any supplement (e.g. patches, bug fixes) or new version of the subject matter of the agreement (e.g. update, new version) provided by our company to the Customer to replace the previously provided Software version when remedying a defect shall also be subject to the provisions of these Data Center GTC.
(8) The Customer shall not change or remove any of our copyright notices, marks and/or control numbers or symbols.
(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) The Customer’s rights due to defects shall be excluded insofar as the Customer makes or has made changes to the subject matter of the agreement without our consent, unless the Customer proves that the changes do not have any effects on the analysis and elimination of the defects that are unreasonable for us. The Customer’s rights due to defects shall remain unaffected if the Customer is entitled to make changes, in particular within the scope of exercising the right to self-cleaning in accordance with § 536a para. 2 German Civil Code (“BGB”), and if these changes have been carried out professionally and documented in a comprehensible manner.
(5) 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.
(6) 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 also include the handling of errors or other defects that become known in the Software 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) Adaptation of the Software to a changed hardware or software environment, including adjustment to changed operating systems;
(c) Application and adaptation of interfaces and APIs;
(d) Handling of errors caused by the Customer or by third parties, including the disruption of operations caused by third-party software;
(e) Services for the Software if the latter previously has been modified by programming work not carried out by us;
(f) Services for computer programs or parts thereof that are not included in the Software;
(g) Services for the Software when updates or other bug fixes provided by us have not been installed and the reported bug has already been fixed therein, unless the installation is unreasonable for the Customer for reasons beyond its control;
(h) Services which can be performed at our registered office, but which are performed at another location at the express request of the Customer;
(i) Instructing and training Software users; and
(j) Services that become necessary because the Customer does not comply with its obligations to cooperate according to Article 2.4.
(3) We provide our Support and Update Services only for the latest Software version that we have made available on the Atlassian Marketplace.
(4) 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.
(5) 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).
(6) Pending defect claims of the Customer are not included in support services and remain unaffected by the same.
3.2 Cooperation and Customer 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) providing test plans and test data and, where applicable, create and provide a test environment,
(c) documenting detected defects of services rendered in a reproducible, at any rate comprehensible form and immediately informing our company,
(d) insofar as necessary for the provision of services, making available at its own expense facilities, infrastructures and personnel suitable for cooperation,
(e) performing necessary acts of cooperation in due time.
(2) The Customer shall name at least one contact person. We shall be immediately informed of any changes 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 our company. The Customer shall grant the contact person a corresponding authorisation to represent the Customer, in particular also to receive declarations from our company.
(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) The Customer shall immediately install updates and carry out other troubleshooting measures provided by us.
(5) The Customer shall thoroughly test the Software before use to verify any defects and usability in the existing hardware and software configuration. This also applies to software which the Customer receives within the scope of warranty.
(6) The Customer guarantees permanent management of the system environment. The Customer will continuously service the system environment (hardware and software), in which the software is running.
(7) 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) Our company 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 as well as 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 “Data Center 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.
(1) The parties shall maintain secrecy 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.
(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.
4.5 Data protection
We comply with the rules of data protection, in particular if we are granted access to the Customer’s operation or 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.
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 our company 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 firstname.lastname@example.org 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 in writing with our prior consent.
(2) Place of performance is our registered office in Munich, Germany.
(3) Insofar as the Customer is a merchant within the meaning of Commercial Code (“HGB”), a legal entity under public law 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 bring any actions at the Customer’s place of business as well as at any other admissible place of jurisdiction.
(4) The relations between our company 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.