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Terms of Service (English)#

Status: 23.10.2024

German version: Nutzungsbedingungen (DE)

Binding version

This English version is provided for convenience only. In the event of any discrepancy, ambiguity, or conflict, the German version of the Terms of Service prevails.

1. Subject Matter of the Agreement#

  1. These Terms of Service for the Mobile2b digitization platform govern the legal relationship between Mobile2b GmbH ("Provider") and business customers within the meaning of Section 14 German Civil Code (BGB) (hereinafter referred to as "Customer").
  2. The software is operated by the Provider as a SaaS or cloud solution. The Customer is enabled to use the software via an internet connection for its own purposes during the term of the agreement and to store and process its data with the help of the software. The software is stored and operated on servers rented by the Provider in data centers.

2. Customer/User Account#

  1. In order to use Mobile2b, a user account must be created. During the registration process, the Customer confirms these Terms of Service and the Provider's privacy policy. This creates an agreement for the use of Mobile2b. The Customer has the opportunity to test the software free of charge and without obligation for 14 days with full functionality, without automatic renewal and without any further obligation whatsoever. A paid agreement is only concluded upon written order or order confirmation by the Customer. In addition, the software contains a function that enables the Customer to activate the account for a fee on its own.
  2. Registration is only permitted by or on behalf of entrepreneurs within the meaning of Section 14 German Civil Code (BGB).

3. Availability of the Software#

The Provider informs the Customer that restrictions or impairments of the services provided may occur that are outside the Provider's sphere of influence. This includes technical conditions of the internet beyond the Provider's control as well as force majeure events such as strikes, natural disasters, fire, or terrorist attacks. The hardware, software, and technical infrastructure used by the Customer may also affect the Provider's services. To the extent that such circumstances affect the availability or functionality of the services provided by the Provider, this does not affect the contractual conformity of the services rendered. The contractual interface for the SaaS services is the transfer point to the internet of the data center used by the Provider.

4. Customer Obligations When Using Mobile2b#

  1. The Customer must comply with all applicable laws and regulations when using Mobile2b. It is prohibited to use Mobile2b to carry out anti-competitive business practices, commit administrative offenses, or facilitate such conduct.
  2. To the extent that the Customer integrates its own graphics, videos, content, or other protected material into Mobile2b, the Customer must hold the necessary copyright, trademark, design protection rights, or sufficient licenses.
  3. If a third party asserts a legal infringement against the Provider that is based on at least negligent conduct by the Customer, each party shall indemnify the other against all resulting costs, in particular damages claims, procedural costs, and the costs of appropriate legal defense.
  4. The Customer is obliged to notify the Provider without undue delay of any defects in the software. In doing so, the Customer shall take into account the Provider's guidance for problem analysis to the extent reasonable and shall forward all information available to it that is required to remedy the defect.
  5. In order to use the software, the system requirements arising from the product description or the offer must be met by the Customer. The Customer bears sole responsibility for this.
  6. The Customer must keep the access credentials provided to it confidential and ensure that any employees to whom access credentials are made available do the same. The Provider's service may not be made available to third parties unless expressly agreed by the parties.

5. Customer Usage Rights#

  1. The Provider grants the Customer the simple, non-transferable right to use Mobile2b for its own business purposes within the contracting company's organization in accordance with these Terms of Service for the duration of the agreement.
  2. The Provider expressly reserves the right to decide, at its own discretion, on the offering of individual platform functionalities. If essential functionalities used by the Customer are no longer available, the Customer shall be granted a special right of termination by the Provider.
  3. The Provider strives to improve the platform continuously and to provide its customers with a continuously improving platform. If new features are developed in cooperation with a customer, the Provider is entitled to make those new features available to all Mobile2b customers. This applies regardless of whether the realization of the new features for that customer was free of charge or subject to payment.
  4. The Customer acknowledges and agrees that the form and nature of Mobile2b may change during the term of the agreement. This may be the case, for example, if:
    1. new legal or regulatory requirements make a change necessary,
    2. the agreed services no longer reflect the current state of the art, security requirements, or data protection requirements, or their operability can no longer be ensured, or
    3. agreed services are replaced in whole or in part by services of equal or greater value, provided that the agreed target characteristics remain essentially unchanged and the associated change in performance is reasonable.
  5. The software made available to the Customer for use regularly receives automatic updates from the Provider. These updates serve to improve, enhance, and further develop the offering and may consist of bug fixes, improved functions, or entirely new versions. The Customer agrees to receive and use such updates as part of the service.
  6. Licenses acquired by the Customer may be used within the Customer's own group of companies and affiliated companies. Affiliated companies shall mean affiliated companies within the meaning of Section 15 German Stock Corporation Act (AktG).

6. Free Trial Accounts#

  1. Mobile2b may be used free of charge as a trial account for a period of 14 days. Termination by the Customer is not required. After expiry of the 14-day free trial period, the platform will be blocked for further use. By upgrading to a paid version at any time, the block may be lifted without data loss and the account can be reactivated.
  2. Free trial accounts that are not upgraded to a paid account within a period of three months may be deleted by the Provider. The data created in a trial account as well as the data generated through the use of Mobile2b shall be permanently lost.
  3. In the context of free use of Mobile2b, the Provider is not obliged to remedy defects.

7. Rights Regarding Data Processing and Data Backup#

  1. In the operation of Mobile2b, the Provider only collects the data that is strictly necessary for operating the platform. Further information can be found in the Privacy Policy.
  2. For the purpose of performing the agreement, the Customer grants the Provider the right to reproduce the data to be stored by the Provider for the Customer to the extent necessary for providing the services owed under this agreement. The Provider is also entitled to maintain the data in a failover system or separate backup data center. In order to remedy faults, the Provider is furthermore entitled to make changes to the structure of the data or the data format.
  3. The Provider regularly backs up the Customer's data on a backup server under the Provider's responsibility.
  4. If and to the extent that the Customer processes or has processed personal data on IT systems for which the Provider is technically responsible, a data processing agreement must be concluded. This means that the Customer is the controller within the meaning of Article 4 No. 7 GDPR with regard to the collection, processing, and use of such data. It is the Customer's responsibility to obtain any necessary consent declarations from users and to provide any required notices pursuant to Section 13 German Telemedia Act (TMG).
  5. Within the scope of free use under 6. Free Trial Accounts, the Customer is prohibited from collecting, processing, and storing personal data by means of Mobile2b.
  6. The processing of special categories of personal data pursuant to Article 9 GDPR using Mobile2b is excluded.

8. Support#

  1. The Provider is not obliged to provide product support ("support") for the use of the functionalities. If the Provider nevertheless provides support, this is done on a voluntary basis. A support case is free of charge for the Customer if the software does not provide the contractual functions according to the product description. In all other cases, a support case is chargeable for the Customer in accordance with the current service conditions.
  2. A separate support agreement or a Service Level Agreement (SLA), in particular for agreeing guaranteed response times, may be concluded at any time.
  3. If the Customer reports a support case, it must provide a detailed description of the respective malfunction in order to enable efficient troubleshooting. The report shall be made by email or via a ticket system provided by the Provider.

9. Fees#

  1. The booking of a license package takes place for a defined term. Unless the Customer terminates the agreement in writing with one month's notice before the end of the term, the agreement will automatically renew for the same term at the applicable license conditions.
  2. License fees are due in full at the beginning of each term.
  3. If no individual license package has been agreed with the Provider, the prices according to the current price list shall apply.
  4. If the Customer delays payment of a due remuneration by more than four weeks, the Provider is entitled, after prior reminder with a deadline and expiry of that deadline, to block access to the software. The Provider's claim to remuneration remains unaffected by the blocking. Access to the software will be reactivated without undue delay after settlement of the outstanding amounts. The right to block access also exists as a milder remedy if the Provider has a right to extraordinary termination.
  5. The remuneration for other services such as consulting, training, programming, configuration, customization, etc. is EUR 165 per hour plus VAT, billed in 15-minute intervals.
  6. The following are generally included free of charge for the Customer in the scope of license use:
    • Maintenance
    • Updates
    • Bug fixing / error correction

Technical support is not included in the scope of the license. Service Level Agreements (SLA) and support packages can therefore be concluded additionally.

If this is not the case, the tariff for technical support applies. The hourly rate for support services is EUR 116 plus VAT. One hour is divided into four service units of 15 minutes each, and one service unit is the smallest billing interval (EUR 29 plus VAT). Started service units are billed in full.

In addition, the Provider offers various technical services through its service catalog.

10. Customer Rights in the Event of Defects and Warranty#

  1. The statutory warranty provisions shall apply in principle. Sections 536b (tenant's knowledge of a defect at the time of contract conclusion or acceptance) and 536c (defects occurring during the rental period; notification of defects by the tenant) German Civil Code apply. However, the application of Section 536a para. 2 German Civil Code (tenant's right of self-remedy) is excluded. The application of Section 536a para. 1 German Civil Code (landlord's liability for damages) is also excluded insofar as the provision provides for strict liability.
  2. The Provider is obliged to remedy defects in the software made available within the framework of a license package pursuant to 9. Fees.
  3. Termination by the Customer pursuant to Section 543 para. 2 sentence 1 no. 1 German Civil Code due to the non-granting of the contractual use is only permissible after the Provider has been given sufficient opportunity to remedy the defect and such remedy has failed. The time required for bug fixing or defect remediation shall be determined by the parties on a case-by-case basis.

11. Liability and Damages#

  1. It is the Customer's responsibility to verify whether the use of Mobile2b may create risks to the Customer's own legal interests or to the legal interests of third parties. The Provider is exclusively responsible for making the platform available. The Customer alone is responsible for all damages occurring in connection with the actual use of Mobile2b and may also be liable to third parties in this respect. This applies in particular to loss of earnings.
  2. The Provider is liable within the framework of statutory provisions for damages:
    1. resulting from injury to life, body, or health based on an intentional or negligent breach of duty or other intentional or negligent conduct by the Provider or its legal representatives or vicarious agents;
    2. based on an intentional or grossly negligent breach of duty or other intentional or grossly negligent conduct by the Provider or its legal representatives or vicarious agents.
  3. The Provider is liable, limited to compensation for the typical foreseeable contractual damage, for damages caused by a slightly negligent breach of essential obligations by the Provider or one of its legal representatives or vicarious agents. Essential obligations are obligations whose fulfillment is a prerequisite for the proper performance of the agreement and on whose compliance the Customer may regularly rely. Liability is limited to six times the monthly license fees per damage event.
  4. The Provider's strict liability under Section 536a para. 1 German Civil Code for defects already existing at the time of contract conclusion is excluded. Any defects existing at the time of contract conclusion shall be remedied by the Provider within the response and resolution times defined on a case-by-case basis in the context of bug fixing and error correction.
  5. In the event of data loss caused by simple negligence, the Provider is liable only for the damage that would also have occurred if the Customer had performed proper and regular backups appropriate to the importance of the data; this limitation does not apply if backups were prevented or made impossible for reasons attributable to the Provider.
  6. The above provisions apply accordingly to the Provider's liability with regard to reimbursement of futile expenses.
  7. If damages suffered by the Customer result from loss of data, the Provider shall not be liable to that extent insofar as such damages could have been avoided by regular and complete backup of all relevant data by the Customer. The Customer shall perform or arrange regular and complete backups itself or through a third party and bears sole responsibility for doing so.

12. Customer Data and Indemnification Against Third-Party Claims#

  1. As a technical service provider, the Provider stores content and data for the Customer that the Customer enters, stores, and makes available for retrieval when using the software. The Customer undertakes vis-a-vis the Provider not to post any criminal or otherwise absolutely unlawful content or data, or content or data unlawful in relation to individual third parties, and not to use any programs containing viruses or other malicious software in connection with the software. With regard to personal data, the Customer remains the responsible controller and must therefore always verify whether the processing of such data through use of the software is covered by the necessary legal basis.
  2. The Customer is solely responsible for all content and processed data used by it, as well as for any legal positions required for such use. The Provider does not obtain knowledge of the Customer's content and does not, in principle, review the content used by the Customer with the software.
  3. In this context, the Customer undertakes to indemnify the Provider against any liability and any costs, including possible and actual costs of legal proceedings, if the Provider is claimed against by third parties, including the Customer's employees personally, as a result of alleged acts or omissions by the Customer. The Provider will inform the Customer about such claims and, to the extent legally possible, give the Customer the opportunity to defend against the asserted claim. At the same time, the Customer shall immediately provide the Provider with all information available to it regarding the facts underlying the claim.
  4. Further claims for damages by the Provider remain unaffected.

13. Termination of the Agreement#

  1. The Customer may terminate the ongoing agreement in writing with one month's notice before the end of the contractual term. If no such termination is made, the agreement shall renew for another license period at the then applicable prices, usually 12 months.
  2. The right of either party to extraordinary termination for good cause remains unaffected. Good cause for the Provider exists in particular if the Customer remains in default with payment of due remuneration for more than two months despite a reminder. If the Customer is responsible for the cause of termination, the Customer is obliged to pay the agreed remuneration, less expenses saved by the Provider, until the date on which the agreement would have ended at the earliest in the event of ordinary termination.
  3. Upon termination of the contractual relationship, the workflows, business objects, and data on the Mobile2b backend will be irrevocably deleted. Each contracting party is responsible for carrying out regular backups.
  4. Notices of termination must be in text form to be effective. Compliance with this form is a prerequisite for the validity of the termination.

14. Confidentiality#

The parties are obliged to permanently keep confidential all information about the other party that has become or becomes known to them in connection with this agreement and that is marked as confidential or can be identified as business or trade secrets from the circumstances, and not to disclose, record, or otherwise use such information unless the other party has expressly consented to the disclosure or use in writing or unless the information must be disclosed by law, court order, or administrative decision.

15. Transfer of Rights and Obligations#

The assignment of rights and obligations under this agreement is only permissible with the Provider's prior written consent. The Provider is entitled to commission third parties with the performance of obligations under this agreement.

16. Miscellaneous#

  1. This agreement and its amendments, as well as all contract-relevant declarations, notification obligations, and documentation obligations, must be made in writing unless another form has been agreed or is required by law.
  2. This agreement is governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is the Provider's registered seat, provided that the Customer is a merchant, a legal entity under public law, or a special fund under public law.
  3. Should individual provisions of this agreement be invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties shall cooperate to replace the invalid provisions with provisions that come as close as possible to the economic intent of the invalid provisions.

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