Babtec Qube is a digital application for mutual exchange of quality data between a company and its suppliers. The company provides a specific set of facts (e.g., a complaint) in Babtec Qube and, if applicable, asserts claims against its supplier, which for its part can compose statements and messages and reply with Babtec Qube.
The exchange of the quality data via Babtec Qube presupposes that this exchange of quality data via Babtec Qube has been agreed between the customer and the supplier, in particular that this manner of asserting claims (e.g., a complaint) respects the regulations, whether statutory or contractual, applicable to the relationship between the customer and the supplier concerning the assertion of claims (complaints, warranties, guarantees, and the like).
§1 Description of Service and Use
The object of this agreement is the non-exclusive and non-transferable right to use the digital Babtec Qube application (hereinafter also referred to as "application") installed on a computer of Babtec Informationssysteme GmbH (hereinafter referred to as "Babtec") or on the computer of a third party commissioned by Babtec, especially Microsoft, and operated by Babtec. By using the application the user declares its consent to the following provisions.
The service to be performed by Babtec includes providing the application and granting the rights of use necessary for this. Babtec shall make technical access to the application possible for the user.
Babtec shall operate the application and perform the data center services and other services necessary for this, or have them performed, according to this agreement. The application is located on the MS Azure platform and based on its infrastructure.
(2) The current version of the service description provided on the start page ("microsite") is definitive with respect to the properties of the application provided by Babtec. Babtec has no obligations to provide properties beyond these. In particular, the customer may not derive such an obligation from other descriptions of the application in public statements or in the advertising of Babtec, its employees, or its sales partners, unless Babtec has confirmed the property going beyond these expressly in writing.
User registration is necessary in order to use the application. The basis for registration and thus for use of the application is a Microsoft Azure Active Directory account (hereinafter also referred to as "MS ADD user account").
a) An MS ADD user account and a "Qube user account" are created during the initial registration. The Babtec start page ("microsite") forwards the user to the registration page of the application, where the user enters the data request. The user is required to enter the data of the companies. Babtec makes no guarantee that the user has used the data of the company. The respective user of the application is itself responsible for verifying the data, including the data of its contractual partner.
b) If a user already has an MS ADD user account (e.g., an MS ADD user account of another company), it can use this to register. The authentication is initially performed via the external MS ADD user account. Registration for the application occurs after successful authentication.
MS ADD is an account for the MS Azure cloud computing platform. It is required for the application in order to authenticate the user and simultaneously ensure the security conditions on data production that this makes possible. The data stored in MS ADD include the user name and password.
The application requests the following data for initial registration:
- user name
- display name
- e-mail address
Any MS ADD account that already exists for the user has already generated the user name and password data. The other data are added in the registration process. The master data of the user for identification in the company and of the end user are required in order to use the application further. These master data are not transferred into MS ADD but rather stored within the Qube account.
Babtec does not operate the infrastructure necessary for running the application itself but rather via the Microsoft cloud computing platform MS Azure. However, Babtec is entitled to operate the infrastructure itself, replace the infrastructure used, or have it replaced, at any time. Babtec is also entitled to have third parties run the application as part of outsourcing. Therefore Babtec currently does not service the infrastructure itself. Microsoft services the infrastructure at its own discretion insofar as this is necessary to maintain operation of the infrastructure. Babtec shall ensure that rights of use and, if applicable, maintenance agreements required for the infrastructure exist/are obtained.
(5) Data storage and backup
The user data generated with the application and the data transferred to the user through the message exchange of the application are stored as part of operation of the application. The data are generally stored for the duration of this agreement (§4 para. (4) of this agreement applies in the event of termination of this agreement). However Babtec is entitled to delete the stored data within 90 days of cessation of use or have them deleted. Babtec shall notify the user of the pending deletion 90 days before the deletion of the data and offer to provide the data of the user (available at this time) to the user, at the user's corresponding express request and in exchange for separate payment.
Data shall be backed up within the infrastructure according to the respective terms valid for the infrastructure and its use. However, Babtec does not guarantee the data backup; the user is responsible itself for protection against data loss and can print out the data at any time, for example. Accordingly, the user is responsible for complying with contractual or statutory retention requirements and periods, especially under commercial or tax law, with respect to these data itself.
(6) Network connections
The connection between the users and the application is not the scope of service of this agreement; Babtec does not provide this and is not responsible for it. Each user must ensure the appropriate connection between the application and its network itself and establish it. The user must bear the costs incurred for this itself. The nature and form of this connection must meet the respective requirements of the application and be designed in such a way that the availability of the network connection corresponds to nature and extent of the use of the application by the user.
(7) Technical preconditions
The user undertakes to establish the technical preconditions for use of the application at its own expense. Babtec shall store the respective current technical preconditions on the microsite of the application.
Babtec notes that the technical preconditions for use of the application may change. The respective user is obligated to inform itself regularly about the status of the technical preconditions and to establish the respective current modified technical preconditions immediately at its own expense. If the respective current technical preconditions are not met, use of the application may be limited or impossible.
(8) Maintaining the application
Babtec shall maintain the application at its own discretion. If the user of the application or a module for the application is not subject to fees, Babtec has no obligation to maintain the application. Apart from that the maintenance includes the ongoing improvement of the organizational process and program operation of the application.
Babtec may demand payment from a user in accordance with the usual payment for comparable services plus the statutory value added tax if Babtec has been active due to a fault report of by the user without the actual existence of a defect (for which Babtec is responsible), or if Babtec has been active due to a fault report based on insufficient knowledge of the application and technical knowledge on the part of the user or its employees.
(9) Hours of operation
As a general rule the application shall be available continuously and thus without time restriction insofar as it does not need to be deactivated for technical reasons, e.g., for data backup or maintenance of the application or infrastructure. Therefore continuous operation of the application cannot be guaranteed. The following applies in addition with respect to availability:
Microsoft guarantees availability of 99.9% per unit per year for the MS Azure platform. The phases in which the server are switched off should not be longer than 30 minutes according to statements by Microsoft. Running the application demands multiple units (database, processors, memory space, and the like), so the availability of the MS Azure platform on which the application runs is anticipated to be about 98%. The maintenance work on the application to be performed by Babtec itself may reduce the above-named availability of the application during the hours of operation. For this reason Babtec guarantees no specific availability. Downtimes of the application due to maintenance work on the application or the infrastructure cannot be scheduled in advance, but are possible.
§2 Scope of the Rights of Use
(1) The user receives the non-transferable and non-exclusive right, limited in time to the duration of this agreement, to use the application provided by Babtec within the scope of use agreed here.
(2) Babtec pledges that the application covered by the present agreement is free of third-party rights.
(3) No cession of the application or other work results to the user occurs.
(4) The user is not entitled to use the application or other work results beyond the agreed use or make them accessible to third parties unless this access is made possible in order to allow third parties to process business transactions of the customer.
§3 Payment and Payment Terms
Babtec does not charge a separate payment at this time for the use of the application within the scope of service described in §1. Babtec plans to expand the application in the future with further modules and functions and reserves the right to offer the application or individual modules and functions of the application subject to fees in the future.
(1) This agreement is of indefinite duration and begins upon registration; cf. §1 (2) of this agreement.
(2) Termination notice periods
The user may discontinue use of the application at any time. The user is obligated to inform Babtec of this in writing before discontinuing use and to inform all users associated with it (customers and/or suppliers) of this in writing in a timely fashion before discontinuing use so that they can prepare for the discontinuation of use. If such notification is not given, the use is considered not discontinued, both vis-à-vis Babtec and vis-à-vis the users of the application associated with the user (customers and/or suppliers) unless the user has deleted the connection to another user so that messages can no longer be exchanged. In this case it remains the obligation of the user to inform all users of the application associated with the user (customers and/or suppliers) immediately in writing of the deletion of the connection in order to allow exchange of messages by other means.
Babtec is entitled to terminate this agreement at any time with three months' notice at the end of any calendar month.
(3) The termination of the agreement for cause for by both parties remains unaffected.
(4) The right of use expires upon termination of the agreement. Babtec shall provide the data of the user existing at the time of the termination to the user at the user's corresponding express request and in exchange for separate payment. If no such request by the user is forthcoming, Babtec is entitled to delete these data within 90 days of the discontinuance of the use of the application by the user or to have them deleted. The user is responsible for complying with contractual or statutory retention requirements and periods, especially under commercial or tax law, with respect to these data itself.
§5 Data Ownership
Babtec is granted processing rights to the data of the users only in order to perform the contractual services. In other respects the rights remain the user's.
§6 Cooperation and Obligations of the Customer
(1) The user shall provide Babtec immediately with all information accessible to it to the best of its knowledge and belief that are necessary in order for Babtec to perform the services.
(2) The user must support Babtec as far as is reasonable in remedying defects.
(3) The user shall provide the cooperation incumbent upon it at no cost.
§7 Liability for Defects and Damages
(1) Liability for defects and damages is based on the General Terms and Conditions of Babtec and the following provisions in addition.
(2) Any liability of Babtec regardless of fault according to §536 a para. 1 of the German Civil Code (Bürgerliches Gesetzbuch –BGB), a right of remedy, and a claim to compensation for expenses according to §536 a para. 2 BGB are excluded. This does not apply if the defect is based on intent or gross negligence by Babtec, its legal representatives, or its vicarious agents; furthermore the liability exclusion does not apply in the event of fatal injury, bodily harm, or injury to health.
(3) By way of clarification, circumstances imposing on Babtec a warranty obligation or obligation to remedy defects do not obtain if downtimes or faults are attributable to circumstances outside Babtec's domain of influence and risk, especially downtimes or faults in the transmission network to be rented by the user separately or force majeure.
(4) Babtec has no warranty obligation or obligation to provide compensation for damages in the event of faults that the user has caused through negligent, grossly negligent, or deliberate actions, or through measures taken by it associated with the application. Therefore in this case as well Babtec does not owe successful remediation of defects but is rather only obligated to endeavor to remedy the defects.
(5) When a defect arises, the user must describe, immediately and in a comprehensible form, providing the information useful for identifying the defect, how the defect or defects make themselves known and what effect they have and provide the necessary documents.
(6) If in reviewing a defect reported by the user it becomes apparent that a defect reported by the customer does not exist, the customer must reimburse Babtec for all associated costs.
§8 Data Protection
Babtec notes that the personal data of the user are gathered, processed, and, in particular, stored and used in accordance with the German Federal Data Protection Act (Bundesdatenschutzgesetz) insofar as this is necessary in order to conclude and execute this agreement and for the transmission of the data between the users. As a precaution, insofar as this is necessary, the user expressly declares by its registration according to §1 (2) its consent to the gathering, processing, and use of its personal data for this purpose; the user can revoke this consent at any time in writing. If the user revokes this consent or is not willing to make the above-named declaration of consent, which it must declare expressly and in writing, the agreement between Babtec and the user does not come into being, or ends with the declaration in question, since execution of the agreement, especially transmission of data between the users, is then not (or no longer) possible.
(1) The contracting parties shall maintain the secrecy of all information which is to be treated as confidential and of which they become aware within the scope of this contractual relationship and to use it vis-à-vis third parties – for whatever purpose – only with prior written agreement of the other party. The information to be treated as confidential includes only information expressly designated as confidential by the party providing the information and information whose confidentiality follows clearly from the circumstances under which it was conveyed.
(2) The obligations according to para. 1 do not apply to information or portions thereof such that the receiving party demonstrates that
- it was aware of them, or they were generally accessible, before the date of receipt;
- the public was aware of them, or they were generally accessible, before the date of receipt;
- the public became aware of them, or they were generally accessible, after the date of receipt and the party receiving the information was not responsible for this.
(3) Public declarations of the parties about a cooperation shall only be made with prior mutual agreement.
(4) The obligations according to para. (1) also persist beyond the termination of the agreement for an indefinite period of time, as long as no exceptional circumstances according to para. (2) are demonstrated.
§10 Final Provisions
(1) The place of fulfillment for all services to be performed by the parties on the basis of this agreement is the registered seat of Babtec in Germany unless something to the contrary is stipulated in this agreement.
(2) Unless the present agreement contains provisions to the contrary, the General Terms and Conditions of Babtec, stored at http://www.babtec.de/en/company/terms-and-conditions.html, apply.
(3) The sole place of jurisdiction for all disputes between the parties arising from the conclusion and execution of this agreement, including any actions on checks and bills of exchange, is the registered seat of Babtec in Germany. Babtec is also entitled to sue the user in another jurisdiction applicable for it.
(4) The relationship between the contracting parties is governed exclusively by the law valid in the Federal Republic of Germany with the exclusion of international law on sale of goods, especially the United Nations Convention on Contracts for the International Sale of Goods and other international conventions harmonizing the law on sale of goods.