Terms and Conditions
II. Use of the Software as SaaS
1. Provision of Software as SaaS
- These ToU govern the provision of the Software by way of a SaaS or any other cloud based solution for the use of User. User needs to ensure the technical requirements to use the Software and the rights to use the Software from Notch in accordance with these ToU. Notch is not obliged to create any interface integration of the Software for User. Notch is entitled to use third parties for the provision of its services.
- From the date agreed between the parties, Notch will provide access to the Software from its or a third party's server-infrastructure (the "Server") in the respective actual version. User may access the Software over a browser on the internet. User acknowledges that registration is required for the User to utilize the full benefits of the Software. Upon registration, Notch will provide the relevant login data to access and use the Software (the "Login Data") to User. In the case that User requires to establish a user account, Notch will create such account to User after confirmation of these ToU. The creation of a user account is free of charge. The user account or the Login Data cannot be transferred and User is liable for any acts committed from its user account. User is responsible for all passwords and Login Data required, their confidentiality and any misuse of them.
2. Updates / Support
- Notch will make the Software available to User and use commercially reasonable efforts to make the Software available online as a service 24 hours a day, 7 days a week, except for planned and announced downtime for updates, upgrades or maintenance and any unavailability caused by circumstances beyond Notch's reasonable control, including, any force majeure events for example, an act of God, act of government, flood, fire, war, earthquake, civil unrest, act of terror, strike or other general labor problem, general internet service provider failure or delay, hosting service provider failure or delay or denial of service attack.
- Notch offers a first level support to User via email for any technical disruptions causing problems with the use of the Software. Upon notification of a disruption, Notch will take immediate action as far as reasonable possible and keep User informed of the status of the disruption and the required time to solve it. In the case the disruption is due to a circumstance that is in the sole control of User, it will be User's responsibility to solve the disruption.
- Notch will provide to User during the term of this Agreement the relevant information to use the Software in its respective actual version in electronic form. Notch will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Software and/or the data that User has to provide in order to, is providing in the course of using the Software or any information entered in, uploaded to or in any other way generated by User and stored uploaded, implemented or installed on the Software or SaaS (the "Usage Data"). Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Software and/or Usage Data by Notch personnel except (i) to provide the subscribed services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as the User expressly permits in writing. Sec. 5 shall remain unaffected.
- Any further services by Notch, in particular support services not governed by these ToU and integration services as well as advisory services require a separate written agreement between the parties.
3. Usage Rights
- Notch grants User for the term of this Agreement a simple, not sublicensable and not transferrable right to access and use the Software within the scope of its functionalities and its agreed use. User initially receives the right for one user with a specific email address logging in on the SaaS and using the Software (a "User-Seat"). User is entitled to invite other users as agreed between the parties. Upon acceptance of such invitation and these ToU other User-Seats with the corresponding rights of use are being activated.
- The Software is provided to User by way of a SaaS with remote access. The Software is therefore neither sold nor any license is granted to User and User is not entitled to store it permanently or to make it accessible to third parties either for free or against a fee unless stipulated otherwise in these ToU. In particular, the provision of SaaS does not include any exploitation rights, in particular but not limited to any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG).
- In case of a breach of aforementioned provisions, Notch is entitled to block User's access and right of use the Software after notification in electronic form. If the reason for blocking User is solved, Notch will unblock User's access again. In the case of a continued breach of these ToU and in particular the provisions under Sec. 3, Notch is entitled to terminate this Agreement for cause with immediate effect unless the breaches are not caused by User. The right to claim damages is not affected by a termination.
4. Usage Data
- User hereby grants Notch, its affiliates according to Sec. 15 German Stock Company Act (§§ 15 AktG ff.) and applicable contractors a worldwide, limited-term license to host, copy, transmit and display its uploaded data information, its Usage Data and any applications not related to Notch or the Software and program code created by or for User using the Software, as reasonably necessary for Notch to provide the services in accordance with this Agreement. Subject to the limited licenses granted herein, Notch does not acquire a right, title or interest from the User or his licensors under these ToU in or to any of the User’s uploaded data information, applications not related to Notch or the Software or such program code. With regard to the Usage Data, User grants Notch for the purpose of fulfilling this Agreement the right to collect, process and use such Usage Data, in particular to duplicate it (e.g. for data backups), to modify it and to provide access to it. User is obliged to save its Usage Data despite Notch's maintenance of data security. Notch is furthermore entitled to collect and utilize Usage Data as well as technical information gathered as part of the Software support services and SaaS provided to User. Data captured in this form will only be used to improve the products of Notch and/or provide customized services to User and will not be disclosed or disseminated to third parties except in an anonymized form and in accordance with applicable law. User confirms that it has not agreed with any third party in a way contradicting the use of the Usage Data.
5. Reserved Rights
- User acknowledges and agrees that the Software, all of its content like text, graphics, symbols, images, logos and alike are a proprietary product of Notch protected by copyright and other applicable intellectual property laws and treaty provisions. User further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with Notch.
- Rights that are not explicitly granted under these ToU are retained by Notch. User, in particular is not entitled to (i) use the Software or a respective user account in any other way as specified in these ToU, in particular not for the benefit of third parties, (ii) make its user account or Login Data available to third parties unless specifically agreed with Notch, or (iii) copy the Software and/or rent/lease/sell or in any other way provide it to any third party.
6. Free Trial / Subscription / Compensation
- User may test the Software free of charge for a maximum of three (3) months after its registration if agreed accordingly with Notch. Software identified as free trial, demo, evaluation, and beta versions may not be used for any purpose other than the User’s testing or evaluation unless specified otherwise pursuant to a separate arrangement between the parties. Upon termination of the free trial period, User will be asked to enter into a subscription module or terminate its usage.
- The Software can be ordered online and provided on a subscription basis in different modules as described in more detail on the Notch website available at [insert link] and as applicable at the time the subscription is ordered. The compensation due for using the Software depends on the module selected by User and the underlying agreement between the parties.
- Notch is entitled to increase the agreed compensation for the first time twelve (12) months after User has become a user of the Software either by a free trial or by fee-based module with three (3) months prior notice in electronic form to the end of a month. Such increase may not exceed the price level of other comparable services of Notch offered on its website or in its fee overview. Further price increases can only be introduced another twelve (12) months after the last price increase became valid. If a price increase exceeds 10% compared to the last applicable prices, User is entitled to terminate the Agreement with six (6) weeks prior written notice.
- All prices are in EUR plus applicable VAT. The compensation becomes due and payable within 30 days after the date of the respective invoice.
- User has the option to increase the number of User-Seats at any time with immediate effect. In case User increases the number of User-Seats the fees will be adjusted accordingly on a pro rata basis and User will be charged for the increase of the fees on the next day following the ordered increase. The subscription will be automatically renewed for the User-Seas that User booked at the last day of each term.
- User has the option of decreasing the number of User-Seats at any time with effect to the end of the term of its subscription. The fees will be reduced for the next term, while the fees for the current term of the subscription need to be paid in full. For annual subscriptions with auto-renewal, the minimum amount of User-Seats of the new term is the amount of users subscribed for in the initial module.
7. Duties of User
User will perform all acts of cooperation necessary on the side of User to fulfill this Agreement, in particular:
- The setup of a functional hardware and software environment for use of the Software shall be solely in the User’s responsibility. The same shall apply to regular data backups.
- Change any passwords or Login Data received from Notch into such passwords only known to User, keep all data related to accessing the Software and SaaS confidential and protected against any access by third parties and not to share it with unauthorized users. User will use reasonable protective measures to ensure the aforementioned. User will inform Notch immediately if it has reason to believe that any password or other access data could have been made accessible to third parties.
- Comply with the usage rights granted under this Agreement and respect the rights reserved by Notch. User will use best efforts to avoid breaches thereof and follow up on any breaches it becomes aware of.
- Ensure the approval of the respective party in case of personal data being collected, used or processed in the course of the use of the Software and such collection, usage or processing is not permitted by law.
- Check any information or data before transmitting it to Notch with respect to viruses or other malware and to use a state-of-the-art virus protection system.
- Bring any faulty performance of services under this Agreement to Notch's attention without undue delay (i.e. on the following day the latest).
User is not entitled to:
- Gain access to such parts of the Software or SaaS or any technical systems that are not publicly available;
- Share or use a subscription for the SaaS concurrently on different devices, or to support multiple users or operational requests as indicated above. As a result, User may not use the SaaS in an automated, unattended, non-interactive server application or component (including ASP) where: (i) multiple user requests from different users are queued for processing; or (ii) multiple requests from one user are queued for processing but acting against content created or edited by other users.
- Make use of robots, spiders, scrapers or other comparable tools for the collection of data or of extraction, programs, algorithms or methods for searching, accessing, acquiring or copying the Software provided under this Agreement.
- Knowingly transmit User data with viruses, worms, trojans or other malware or to intervene in the Software or the SaaS in any other way.
- Decipher, decompose, reconstruct, reverse engineer or disassemble the Software for the purpose of achieving interoperability with other computer programs according to section 69e UrhG or examine in any other way any source code, software or other proprietary algorithms as far as aforementioned is not permitted by imperative law.
8. Term and Termination
- If User breaches the terms and conditions of this ToU, Notch may terminate this Agreement with immediate effect and without prejudicing any of its other rights. In such event the User must cease use of the Software with immediate effect.
- Insofar as a term is not agreed as part of a subscription module selected by User, this Agreement is entered into for an unlimited term. In the case of an unlimited term each party may terminate this Agreement with one (1) month prior notice in electronic form to the end of a month. Any termination of this Agreement also terminates any user account created by User.
- In the case of a subscription with a limited term, User may terminate the subscription to the end of such term in electronic form. In the case of no termination, the subscription is extended by the same term again.
- The right to extraordinary terminate this Agreement for cause with immediate effect remains unaffected for both parties. A cause may in particular exist in the case a party breaches its duties under this Agreement or is or becomes subject to insolvency proceedings in any way. Notch is entitled to terminate this Agreement for cause with immediate effect if User does not pay all or significant parts of the fees due under this Agreement for two (2) months in a row. In this case, Notch is entitled to liquidated damages in the amount of 50% of the fees payable until the end of the regular term of the Agreement. User is entitled to provide proof that the damages incurred by Notch are lower.
- In the case of a termination of this Agreement all rights and access granted with regard to the Software or SaaS are terminated. Notch will delete any data of User one month after the termination became effective unless applicable laws request Notch to store such data for a longer period of time. Upon specific request and against a remuneration to be agreed between the parties, Notch may assist User with exporting its data and/or transferring it to another supplier.
9. Limited warranty
- Unless expressly agreed otherwise, the Software/SaaS provided by Notch shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications provided by Notch, including those in the documentation provided by Notch or made available through the website of Notch. Notch does not warrant that the Software under this Agreement will be fit for purposes beyond the fulfillment of any obligations under this Agreement.
- User is advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest diligence. The parties acknowledge that the Software and SaaS may not be completely free of errors due to its complexity. Notch does not accept liability for insignificant defects, including but not limited to errors that can be easily corrected and will not show up as a performance defect and defects discovered in the Software or SaaS that has been modified, altered, or enhanced by anyone other than Notch.
- Any errors or defects in the Software shall be corrected by Notch within a reasonable period after notification. Notch may either repair or substitute the Software free of charge within 48 hours after becoming aware of the respective error. Thereafter, User's right to reduce the fees payable under this Agreement for the time the defect persists remains unaffected. User is only entitled to an extraordinary termination of this Agreement due to the failure to grant use in accordance with the Agreement if Notch has been given sufficient opportunity to rectify the defect and such attempt has failed.
- If User uses the Software or SaaS within a free trial, defects in the Software shall be rectified by Notch only in case they were resulting from gross negligent or intentional behavior of Notch, provided however rectification of a defect in the Software is not otherwise mandatory according to statutory law.
- It shall be assumed that the repair or substitution of Software has failed only if Notch has been given sufficient opportunity to effect a repair or substitution delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by Notch. If rectification of a defect in the form of repair or subsequent delivery is only possible for Notch at unreasonable expenses, Notch may refuse to rectify the defect and refer User to its right to rescind or terminate the Agreement.
10. Limited warranty
Notwithstanding the legal nature of the relevant claim, the following shall apply to User’s damage claims and claims for expenses incurred in vain ("Ersatz vergeblicher Aufwendungen"):
- Notch shall be liable towards User in accordance with applicable law if (i) acting with gross negligent or intentional behavior, (ii) life, body, and health are injured, (iii) a guarantee provided by Notch is breached or (iv) in accordance with the Product Liability Act.
- In all other cases of negligent behavior the liability of Notch for damages of User is limited to the infringement of material obligations of the Agreement (Kardinalspflichten). Material obligations are only such obligations which fulfillments allow the proper execution of the Agreement and where User may rely on the compliance with these obligations. In these cases, any liability of Notch is limited to the damages reasonably foreseeable at the time of conclusion of this Agreement and typical in this case. The liability of Notch for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to User’s obligation for regular data backups according to Sec. 7a) above. Irrespective of lit. a) of this Sec. 10, the liability of Notch for an infringement of material obligations for which User can provide proof is limited for all damage events in such calendar year to the compensation paid by User in such year.
- Any strict liability (verschuldensunabhängige Haftung) for errors already existing at the conclusion of this Agreement is excluded.
- The Software is not designed, manufactured, or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. Accordingly, Notch specifically disclaims any express or implied warranty or liability of fitness for aforementioned activities.
- The aforementioned limitations of liability apply accordingly to any faults or negligence committed by vicarious agents of Notch and any potential personal liability of employees, legal representatives or legal bodies of Notch.
- Insofar as the Software or SaaS is provided by way of a free trial without charges, any liability of Notch is excluded to the extent permitted by law.
- All claims against Notch for damages shall be time barred six (6) months after User became aware of the underlying breaches.
- Notch does not accept any liability for any loss, damage, or misappropriation of data information provided by User under any circumstances or for any consequences related to changes, restrictions, suspensions, or termination of the Software or the Agreement or caused by Usage Data.
11. INTEGRATION OF 3RD PARTY ACCOUNTS
- Certain features of the Software/SaaS allow User to integrate his account with third party services (the "Third Party Accounts") like e.g. E-Mail (e.g. Gmail), Salesforce, etc. via Application Programming Interface (the “API”) provided by such third party. By enabling those features, User grants to Notch access to data stored in Third Party Accounts provided via API and certain rights to use functions of Third Party Accounts provided via API, like e.g. sending out e-mails for invitations of scheduled demo sessions etc., as far as agreed upon while activating integration of a Third Party Account, such as e.g. e-mails, inbox history, contacts etc., to enable Notch to identify relevant data to be stored within the SaaS or to execute certain communications with contacts of the User.
- Certain features of the Software/SaaS allow User to share a web application with one or more external User(s) like e.g. Salesforce, via interactive meetings (with e.g. the option to instantly share mouse and keyboard control with a customer). By using this feature, User may grant to external Users insight or access to private and potentially personal data stored in web application. User understands the it bears sole responsibility for (i) the use of such feature with external Users and (ii) adherence to any applicable data protection laws in this regards.
- Certain features of the Software/SaaS allow User to save a session cookies on cloud servers of Notch or third parties. This feature is disabled by default. User understands that it bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature.
- Certain features of the Software/SaaS allow User to record the audio, video and screen sharing streams transmitted in a session on cloud servers of Notch or third parties. This feature is disabled by default and needs to be activated by User before each session. User can activate either (i) recording of its own audio, video and screen sharing streams only or (ii) recording also audio, video and screen sharing streams by all individuals (whether or not they are users of Notch) who are present in a session. User understands that it bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature. Notch may save recordings for a limited period of days before permanently deleting them.
- Certain features of the Software/SaaS allow User to analyze the aforementioned audio, video and screen sharing recordings by transcribing and saving such analysis on cloud servers of Notch or third parties. This feature is disabled by default and needs to be activated by User before each session. User can activate either (i) analysis of its own audio, video and screen sharing stream only or (ii) also analysis of the audio, video and screen sharing stream by all individuals (whether or not they are users of Notch) who are present in a session. User understands that it bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature.
1. Data Protection
- Both parties will comply with all applicable data protection laws and ensure data confidentiality with regard to all persons involved in the execution of this Agreement.
- In the case User collects, processes or uses personal data, it will ensure that it is entitled to do so under applicable law, in particular data protection law. In the case of a breach by User it will indemnify Notch accordingly from any claims of third parties. If the fulfillment of this Agreement requires the execution of a data processing agreement, the parties will use their best efforts to conclude such an agreement in due course.
- Notch will only collect, process and use personal data of User to the extent necessary to fulfill its duties and obligations under this Agreement. User approves the collection, processing and use of its personal data in this context. In any case, User will remain the owner with the sole authorization to dispose of its personal data.
2. Amendments to these ToU
Notch reserves the right to change or terminate any services, Software or SaaS provided free of charge for trial purposes taking User's interest into account. In addition, Notch reserves the right, in its sole discretion, to make reasonable amendments to the ToU from time to time to reflect any changes in its business, the underlying technology or the legal environment. Notch will inform User of any changes to these ToU in due course and with one (1) month prior notice via email as far as these adjustments lead to any negative effects for User. Material changes to these ToU will be effective upon the User’s first use of the Software with actual knowledge of such change, i.e. any use of the Software by User after being informed about the changes to these ToU constitutes the acceptance of User of the latest version of the ToU. In the case of a disagreement, the parties will use reasonable efforts to solve such disagreements. If this is not possible, Notch is entitled to terminate this Agreement with one (1) month prior notice in electronic form.
2. Final provisions
- In the case of disagreements or disputes between the parties, the parties shall use reasonable efforts to solve such disputes amicably, potentially also with the help of top management representatives. If a dispute is not resolved within 15 working days of its first submission to the respective other party, each party may bring forward formal legal proceeding.
- Unless expressly prohibited by local law, this Agreement is controlled by and construed under the laws of Germany, notwithstanding any conflicts of law provisions. The German courts in Hamburg shall have exclusive jurisdiction over any claim arising under or in connection with this Agreement. The UN Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
- The provisions of this ToU shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement. Gaps or an invalid provision of this Agreement shall be negotiated between the parties in good faith and filled with a provision that economically comes closest to the purpose of this Agreement.