Software as a Service Contract
§ 1 Scope of application
These license, usage and operating conditions (contract) apply to all service versions of onOffice Schweiz AG (onOffice Swiss AG, Rathausstrasse 14 6340 Baar, Switzerland; hereinafter “provider”) and the customer. This contract also applies to contract extensions, even if not expressly agreed upon again. All deliveries and services provided by the Provider to the Customer within the scope of this Agreement shall be exclusively governed by this Agreement and its annexes. Unless otherwise agreed in writing, any deviating terms and conditions shall not apply, including the customer’s general terms and conditions.
§ 2 Contractual Rights and Obligations of the Provider
(1) The subject of this contract is the transfer of the onOffice software for use, as well as the provision of computing power and storage space by the provider for data storage, in accordance with the offer and product portfolio (referred to as “services”). Depending on the service version, onOffice provides the customer with software components. onOffice commits to securely storing the electronic data transferred from the customer’s location on protected servers. onOffice guarantees the basic usability of the supplied software components throughout the contract duration and is responsible for regular and free updates to the supplied software. All software components, along with detailed technical manuals, are accessible at any time on www.onOffice.de and are considered part of this contract.
(2) The provider also offers support services in conjunction with the software. The scope of the support services is outlined in the description of the selected service package in the offer and product portfolio.
(3) The provider is entitled to increase the usual or list prices for the contractual services no more than once a year. Such price adjustments will be communicated to the customer in writing with three months’ notice, aiming to compensate for inflation or increased costs. However, the first price increase can only occur after 12 months from the contract’s conclusion. If the announced increase exceeds 10 %, the customer has the right to terminate the rental relationship within six weeks after receiving the notification. In such cases, the non-increased prices will be charged until the termination becomes effective.
§ 3 Contractual Rights and Obligations of the Customer
(1) The customer agrees to make payment for the agreed amount stated in the offer within the specified deadline, without any deductions or offsetting. If no payment deadline has been explicitly agreed upon, the invoice will be due within thirty days from the invoice date (due date transaction). Invoices will be issued exclusively in electronic form and sent via email to the customer’s provided email address. Upon the customer’s explicit request, a parallel dispatch of the invoice in paper form can be arranged, subject to an administration fee of CHF 2 per invoice.
(2) The customer is further responsible for downloading the provided software components and installing them on their own IT infrastructure, as well as integrating any necessary hardware components. It is highly recommended to create a backup of the entire database before each installation and integration, and to regularly perform independent data backups. Additionally, the customer is responsible for ensuring an Internet connection that corresponds to the selected scope of service.
(3) The customer explicitly agrees to ensure their data does not contain any illegal, criminal, civil, or public law-relevant content. The customer acknowledges that in the event of criminal prosecution, onOffice will fully cooperate with the authorities in accordance with applicable legal provisions. The provider reserves the right to immediately block access if there are indications of incriminating content, and expressly reserves the right to claim damages in such cases. The customer must use the supplied software components and online services with care, and the storage of access data is their responsibility.
(4) The customer is obligated to check their data for viruses or other harmful components before uploading it to the provided storage space, and to use up-to-date virus protection programs for this purpose. The provider is not obligated to perform these checks. The customer is liable to the provider for any damages incurred by the provider due to viruses or other harmful components transferred from the customer to the provider’s IT infrastructure.
(5) The customer is obliged to keep their access data confidential and not make it accessible to third parties. The same obligation must be imposed on their employees.
(6) When using the portal interfaces (e.g., ImmobilienScout24, Immonet, Immowelt, etc.) within the software, the customer is responsible for independently verifying the success of the data transfer. The provider does not provide any warranty regarding transmission or exclude transmission errors.
§ 4 Rights of use to the software
(1) Ownership and Copyrights: onOffice retains full ownership and/or other rights to the delivered software components at all times. The customer does not receive any proprietary rights (ownership, pledge, or right of retention) to the used, provided, or delivered components and waives such rights. The customer is granted the right to use the delivered software and hardware components solely for the duration of the contract. After the contract ends, the customer’s authorization to use the software expires. Ownership, copyright, trademark, and/or license rights to software components, characters, logos, websites, and other documents and data of onOffice remain exclusively with onOffice. The customer is not entitled to modify, copy, reverse engineer, disassemble, lease, sell, pledge, or derive the source code of the software, in whole or in part, or to use the software as a basis for creating other software programs, derivative works, or in any other way that could infringe on the rights of onOffice or third parties. However, the customer may make a copy of the software for backup and archiving purposes. All notices and marks, including copyright, trademark, and license rights, must be affixed to the backup copies. onOffice is generally entitled to use ideas, concepts, and processes developed or discovered during the development of services solely or in collaboration with the customer’s personnel for the same or similar projects with third parties.
(2) The data stored by the customer under this contract on any onOffice media solely and exclusively belong to the customer. onOffice does not acquire any ownership or intellectual property rights to this data at any time. The customer has the right to demand the immediate surrender of all data, even during the term of this contract. In the event of contract termination, the customer can request a written declaration from onOffice stating that no further customer data will be stored in any form or on any media by onOffice.
(3) Transmission of Customer Data: The customer agrees to the electronic transmission of their data via a public network infrastructure (Internet). The customer bears the risk of any data loss during transportation. onOffice is responsible for the data from the moment it is received in the onOffice data center until its delivery from there.
(4) The functional description provided in the offer and product portfolio is conclusively authoritative for the software’s quality.
(5) The customer has the ability to create users within the software. Only natural persons with real names may be registered as users. The customer is responsible for verifying the identity of the users and documenting their user data in a directory of registered users (“named user”), along with their respective access codes. The software may only be used by a specified number of named users, as indicated in the offer.
(6) After the start of the contract, the customer will receive the access data for the administration access to the software from the provider. The customer is solely responsible for ensuring the security of this access.
(7) The software may only be used by the number of employees specified in the offer. Additional orders can be placed through the sales contact or the software’s own shopping center. Each license is permanently assigned to one employee and should be used exclusively by that employee. It is not permitted to split a license among multiple employees. Licenses may only be transferred to another employee in justified cases, such as when an employee resigns, takes extended vacation, or experiences extended illness. In such cases, the previous employee loses their license, and the change of user must be documented in the list of registered users with the new user data.
§ 5 Provision of Storage Space
(1) The customer will be provided with storage space on a server to store their data. The customer can store data up to a volume specified in the technical specifications outlined in the offer and product portfolio. If the storage space becomes insufficient for storing the data, the provider will notify the customer accordingly. Subject to availability, the customer can extend the storage space for a fee. The conditions for extension can be requested from the provider. The provider reserves the right to terminate a storage quota or storage flat rate if the storage space is not used in accordance with the contract or if the storage space is used disproportionately (more than 100 GB per user). The customer will receive a warning prior to termination and will have four weeks to reduce the storage.
(2) The provider will ensure that the stored data can be accessed via the Internet. However, uninterrupted accessibility is not guaranteed.
(3) The provider is obligated to take the necessary precautions to prevent data loss and unauthorized access to the customer’s data by third parties. As part of this obligation, the provider will regularly create backup copies of the customer’s data. The specific security measures are described in the Technical and Organizational Measures (TOM), which form part of the order processing agreement. Any loss of data must be immediately reported to the provider. In the event of data loss, the provider will restore the most recent backup. Further rights on the part of the customer are excluded. If the customer is responsible for the loss of data, they will be required to reimburse the provider for any expenses incurred as a result.
§ 6 Interruption of Accessibility
(1) Adjustments, changes, and additions to the service items, as well as measures to identify and rectify malfunctions, will only result in a temporary interruption inavailability if it is absolutely necessary for technical reasons. Planned and announced maintenance work does not count as downtime. The provider will make an effort to announce maintenance work at least 7 days before it begins.
(2) The provider shall strive to ensure a high availability of the service items. However, there is no specific claim to minimum availability.
§ 7 Warranty and Liability
(1) The provider guarantees the basic usability of the delivered software for the duration of the contract and is responsible for regular, free updates to the software. If a defect is rightfully reported, onOffice has the discretion to remedy the defect through immediate removal, bypassing, or new delivery. If onOffice fails to successfully remedy the defect within a reasonable period of time, the customer may set a grace period. After the unsuccessful expiration of this grace period, the customer may demand a reasonable reduction in remuneration for minor defects, terminate the contract for major defects, and, if the legal and agreed conditions are met, claim damages.
(2) onOffice excludes liability to the extent legally possible and permissible, including liability to third parties.
(3) Claims of the customer arising from this contract, including warranty and liability, expire at the latest 12 months after the due date and the possible knowledge of the claim. The period starts at the end of the month in which the reason for the claim arose and the sales partner became aware of the entitlement to the claim.
§ 8 Confidentiality
The contracting parties undertake to treat as confidential any business and trade secrets that they, including their vicarious agents, have acquired during the initiation or fulfillment of the contract. These obligations do not apply to information, knowledge, and experience that are demonstrably generally known without a breach of this confidentiality obligation, were demonstrably already known to the parties prior to receipt of the information, knowledge, and experience, were received from a third party without an obligation of confidentiality, or were demonstrably developed independently.
§ 9 Term and Termination
(1) The start of the contract and any minimum terms are set out in the offer. The minimum contract term for services purchased as part of the offer is 24 months. The contract is automatically extended (after the expiry of the minimum contract term) by 12 months if not terminated and can be terminated in writing by either party with a notice period of three months (for the first time at the end of the minimum term). If the contractual relationship is not terminated by either party, the contractual relationship is automatically extended by 12 months in each case.
(2) Up to one month after the termination of the contract, the customer may request the provider to return their stored data in a commonly used digital format. Depending on the request, a separate offer for data backup may be required (prices can be found in the current price list upon request). After the one-month period expires, all data, including all mailboxes, will be permanently deleted without further notice.
§ 10 Further Provisions
(1) The provider is released from the obligation to perform under this contract if the disruption to performance is due to the occurrence of force majeure circumstances after the conclusion of the contract. Force majeure circumstances include, for example, war, strikes, riots, epidemics and pandemics, expropriation, storms, floods, and other natural disasters, as well as other circumstances for which the provider is not responsible. These include, in particular, water ingress, power failures, interruptions, or the destruction of data-carrying lines or infrastructure through no fault of the customer.
(2) All agreements that contain an amendment, supplement, or specification of these contractual terms and conditions, as well as special assurances and agreements, must be recorded in writing. This also applies to changes to the written form requirement itself. If they are declared by representatives or auxiliary persons of the provider, they shall only be binding if the provider gives its written consent.
(3) Should a provision of this contract be or become invalid, it shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by a valid provision that most closely achieves the objective pursued by the contracting parties with the invalid provision.
(4) This contract shall be governed exclusively by Swiss law, excluding any conflict of laws rules and the Vienna Sales Convention.
(5) The place of performance is Baar. The exclusive place of jurisdiction for disputes arising from this contract is Zug.