General Terms and Conditions of Xolvis GmbH
§ 1 Preamble
1.1 Xolvis GmbH (hereinafter "Xolvis"), GoIIierstr.70, 80339 Munich, is the owner of all copyright and other rights of use and exploitation of the online payment and billing solution "Xolvis" (hereinafter "Software"). This is software for sending and managing invoices to the end customer, including a payment function for the end customer, which enables the additional connection of related functions and services such as customer administration, invoice management, etc. Xolvis provides this software via remote access via the Internet (“Software-as-a-Service”, “SaaS” for short).
1.2 The General Terms and Conditions of Xolvis for contracts with companies (hereinafter "GTC") regulate the relationship between Xolvis and companies that use the software offered by Xolvis (hereinafter "User"). Xolvis’ offer consists of software that is made available for exclusive use via the Internet. The users organize their company account of the software and at the same time encourage their employees to do so.
1.3 Insofar as special or supplementary conditions are agreed for additional services beyond the use of the software, these take precedence over these GTC. For the use of additional services, additional separate contracts and the user’s consent to a separate usage agreement are required, which do not affect the contract concluded between Xolvis and the user on the basis of these General Terms and Conditions. In order to be able to use the Xolvis software optimally, the user will regularly conclude a contract with a payment service provider (“payment service contract”). The payment service provider is not a vicarious agent of Xolvis.
1.4 The user’s general terms and conditions of contract or business, even if they are attached to requests for quotations, orders, declarations of acceptance, etc., do not become part of the contract, even if Xolvis has not objected to these conditions.
§ 2 Subject matter of the contract and description of services
2.1 The subject matter of the Agreement is the provision of the Software in a data center for access and use via the Internet as a SaaS solution as well as enabling the storage of data by the User on servers operated on behalf of Xolvis ("Hosting"). Unless expressly agreed otherwise, individual extensions and adaptations of the functionality of the Software are not subject matter of the scope of services and this Agreement.
2.2 The contractual services as well as the prices shall be based on the respective offer made to the User.
2.3 The offer made to the User shall depend on the specific usage interest of the User. In case of annual payment Xolvis may offer the User a price reduction. The period of use is determined by the term of the contract. This is at least one year. The term of the contract shall be extended by one year at a time if the contract has not been terminated three months before the end of the term.
2.4 The assumption of a guarantee for certain characteristics (quality) shall require written confirmation by Xolvis in order to be effective.
2.5 The offered application is a standard software. Xolvis is not responsible for the fulfillment of legal and regulatory requirements concerning the User or for services of the payment service provider. It is the User’s responsibility to check Xolvis for suitability for data processing in accordance with the legal and regulatory requirements relevant to the User.
2.6 Xolvis shall be entitled to provide the services regulated herein in accordance with the Data Protection Agreement in whole or in part by third parties as subcontractors (Subcontractors). Documents, information and data of the User and its employees may - to the extent necessary - be made accessible to these subcontractors for the performance of services by Xolvis.
2.7 Xolvis shall not assume, even partially, customer administration for the Client, who shall remain exclusively responsible for the same.
§ 3 Conclusion of contract
Companies interested in concluding a contract may contact Xolvis by e-mail or register as a User on the Xolvis website at www.xoIvis.com by providing the contact details of their company. Upon receipt of the expression of interest and upon acceptance of the user, Xolvis sends an e-mail to the user as an offer to conclude a contract, which may also be provided with a confirmation link. With the express acceptance of the offer by e-mail or the activation of the confirmation link by the user, the conclusion of the contract between the user and Xolvis comes into effect.
§ 4 Support services
Support requests may be made by telephone or email. Xolvis can provide further support channels. Support requests are questions to the support staff of Xolvis regarding the software. The support for the use of Xolvis is limited to the answering of questions about the correct use and setting, as well as assistance to technical problems of the software by a support employee.
§ 5 Contractual Obligations of the User
5.1 The User shall fulfill all obligations necessary for the performance and processing of this Agreement in a timely, complete and professionally proper manner. He himself shall be responsible for the use of the services of Xolvis, the proper processing of his data and the results achieved. This also includes the fulfillment of legal and regulatory requirements for the use, storage and archiving of User Data.
5.2 It is the User’s own responsibility to
- to check and, if necessary, to obtain expert advice as to the extent to which the services offered by Xolvis meet its actual and legal requirements addressed to it;
- to ensure that the minimum requirements of Xolvis for the hardware and software used by the user, which are necessary for the contractual use of the software, are met. Xolvis shall inform the user of the minimum requirements prior to the commencement of the period of use;
- to follow instructions from Xolvis on error prevention;
- to protect its local IT systems against infestation by viruses, Trojans or similar malware by using appropriate software;
- to regularly back up the data and content transmitted to Xolvis and to create his own backup copies in order to be able to guarantee the reconstruction of the data and information in case of loss.
5.3 The user shall not misuse the contractual software in any way or allow it to be misused by third parties and in particular shall not transmit any content with illegal content. The user shall also refrain from any attempt to retrieve information or data himself or through unauthorized third parties without authorization or to intervene in programs operated by Xolvis or to have them intervened in or penetrated. As far as several employees of the User should be involved with the personnel management, Xolvis enables the creation of several administrator accounts in the software.
5.4 In the event of a serious violation of the User's obligations under these GTC or in the event of a violation of legal regulations as well as in the event of repeated violations, Xolvis shall be entitled, at its own discretion, to restrict the use of the contractual services by the User in whole or in part or to terminate the contractual relationship without notice. If the user is responsible for the violation, he shall be obligated to compensate Xolvis for the resulting damage.
5.5 The user shall ensure that the contractual use and provision of data and content does not violate the rights of third parties. Before providing such data and content to Xolvis, the user shall be obliged to check whether it may use such data and content as intended, to ensure that it has any necessary rights of use and to obtain any necessary consents from third parties. The user shall indemnify Xolvis against claims of third parties arising from a breach of the aforementioned obligations.
5.6 If a third party claims a violation of rights by the data or content provided by the user, Xolvis shall be entitled to block the content completely or temporarily if there is a doubt about the legality of the data and/or content justified by objective evidence. In this case, Xolvis will request the user to cease the infringement or to prove the legality of the content within a reasonable period of time. If the user does not comply with this request, Xolvis shall be entitled to terminate the contract without notice, without prejudice to further rights and claims. Xolvis may charge the user for expenses incurred by Xolvis due to the aforementioned measures. If the user is responsible for the infringement, he shall compensate Xolvis for the resulting damage. Further rights shall remain reserved.
5.7 In all other respects, the User shall be obligated to perform all cooperation services required for the fulfillment of the purpose of the Agreement pursuant to Section 5.2 of this Agreement without undue delay and free of charge, in particular if Xolvis requests him to do so and the required measures do not exceed a reasonable effort.
5.8 The Cloud Materials and Xolvis Materials are subject to the export restrictions of various countries. The User agrees not to export these Materials to countries and to persons or companies to which export is prohibited by law without the prior written consent of Xolvis. With regard to the use of the materials, the user is obliged to comply with the applicable legal regulations of the country in which it is registered, as well as the regulations of other countries.
§ 6 Access data
The user shall keep the usage and access authorizations assigned to him as well as other agreed identification and authentication safeguards secret, protect them from access by third parties and not pass them on to unauthorized third parties. This data shall be protected by appropriate and customary measures. Passwords shall be changed for security purposes not only prior to the first use of the Software, but also otherwise at regular intervals in order to prevent use by unauthorized persons using the user’s own passwords or the user's own infrastructure. Passwords shall be chosen in such a way that they cannot be easily guessed, calculated or determined. The user shall inform Xolvis immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized third parties.
The user undertakes to oblige employees who use Xolvis likewise to keep the data and passwords secret.
§ 7 Prices and terms of payment
7.1 The User shall pay for the services of Xolvis according to these GTC a monthly amount depending on the prices provided to the User, which can be taken from an offer made to the User or from the page Prices on our website.
7.2 All prices are exclusive of the legally valid value added tax.
7.3 The User may choose between direct debit or payment on account or by credit card (Visa/Mastercard) as payment methods.
7.4 All invoices are due for payment within 7 days, in the case of direct debit within 14 days, of the invoice date. If not included in the invoice, the user will be informed about the direct debit at least one day before the due date via email to the email address provided by the user.
7.5 The costs for direct debits of the User, which are not honored by his bank, shall be borne by the User if he is responsible for this. Xolvis shall charge a lump sum of 11.00 EUR in case of a returned direct debit. The user is free to prove a lower damage.
7.6 Payments shall be set off against existing claims at the discretion of Xolvis, even if the User has stipulated otherwise. Offsetting with counterclaims of the User that are not recognized or not legally established shall be excluded. The same shall apply to any right of retention of the User.
7.7 Xolvis shall be entitled to suspend the contractual services if the User is in arrears with payment and does not pay despite an express deadline for settlement of the outstanding claims.
7.8 If the User is in default of payment of more than one invoice of Xolvis, all other invoices shall also become due immediately. In the event of default in payment, Xolvis shall be entitled to charge interest at a rate of 9 percentage points above the applicable prime rate without further proof.
7.9 Xolvis shall be entitled to check the creditworthiness of the User by the generally accepted means. If doubts arise as to the creditworthiness of the user or if there is any other significant deterioration in the financial circumstances of the user, Xolvis shall be entitled to perform further services only against advance payment.
8.1 The Software is protected by copyright. Xolvis shall be exclusively entitled to the copyrights, patent rights, trademark rights and all other ancillary copyrights to the Software as well as to other contractual objects. Insofar as third parties are entitled to the rights, Xolvis shall have corresponding rights of use.
8.2 Xolvis grants the User the non-exclusive, non-transferable and non-subordinable right to use the Software to the extent granted in these GTC, limited in time to the term of the agreement.
8.3 The User shall not be entitled to have the Software used by third parties or to make it accessible to third parties; in particular, the User shall not be permitted to reproduce, sell, translate, edit, modify, decompile, reverse engineer or disassemble the Software or any part thereof or to use any part of the Software to create a separate application or to have such actions performed by third parties, unless expressly permitted by Sections 69d and 69e of the German Copyright Act.
8.4 If the user is a test user, Xolvis grants a simple license exclusively for test purposes, which may not be transferred, assigned or sublicensed.
§ 9 Warranty for software elements
9.1 The Software shall be available 24 hours a day, seven days a week ("Uptime"). The average availability ("Average Availability") during the Operating Time shall be at least 98% as an annual average, but the Availability shall not be impaired or interrupted for more than two calendar days in succession. Availability means the ability of the User to use the essential functionalities of the Software. Non-availability does not include maintenance periods as well as restrictions or failures of the Software due to circumstances that are not within the sphere of influence and responsibility of Xolvis (fault of third parties, disruption of telecommunication lines, force majeure, etc.).
9.2 Termination by the User pursuant to Section 543 (2) Sentence 1 No. 1 of the German Civil Code (BGB) due to failure to use the software in accordance with the contract shall only be permissible if Xolvis has been given sufficient opportunity to remedy the defect and such remedy has failed, but also only if the User has immediately notified Xolvis of the lack of functionality. The rectification of defects shall only be deemed to have failed if it is impossible, if it is refused or unreasonably delayed by Xolvis, if there are reasonable doubts as to the prospects of success or if it is unreasonable for the user for other reasons.
9.3 In the event of any defects in the Software, the User may not reduce the remuneration pursuant to Section 7.1. However, any existing right to reclaim remuneration paid under reservation shall remain unaffected.
9.4 Xolvis points out to the customer that limitations or impairments of the software may occur that are beyond the control of Xolvis. This includes in particular actions of third parties not acting on behalf of Xolvis, technical conditions of the Internet that cannot be influenced by Xolvis as well as force majeure. Also the hardware and software and technical infrastructure used by the user can have an influence on the services of Xolvis. Insofar as such circumstances have an influence on the availability or functionality of the service provided by Xolvis, this shall have no effect on the contractual conformity of the services provided.
§ 10 Liability
10.1 Xolvis shall not be liable for damages of the User, unless they result from the violation of essential contractual obligations. Material contractual obligations are those obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the User may regularly rely. Liability for consequential damages, in particular for loss of profit or compensation for damages of third parties, shall also be excluded unless Xolvis is guilty of intent or gross negligence.
10.2 Insofar as other services are provided on the premises and with the means of third parties or by third parties without these being vicarious agents of Xolvis, Xolvis shall likewise not be liable for any damage arising therefrom.
10.3 Insofar as Xolvis is liable on the merits, this liability shall be limited to damages that Xolvis foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the contractually owed service shall also only be compensable insofar as such damage is typically to be expected in the event of conduct in accordance with the contract.
10.4 The aforementioned exclusions of liability shall not apply to liability for damages arising from injury to life, limb or health or pursuant to liability under the Product Liability Act, which are based on at least a negligent breach of duty by Xolvis or an intentional or negligent breach of duty by a vicarious agent of Xolvis. The aforementioned exclusions of liability shall also not apply to liability for other damages based on at least a grossly negligent breach of duty by Xolvis or an intentional or grossly negligent breach of duty by a vicarious agent of Xolvis.
10.5 The strict liability of Xolvis for initial material defects of the Software is excluded.
§ 11 Termination
11.1 The term of the contract shall be at least one year. The term of the contract shall be extended by a further year in each case if the contract has not been terminated three months before the end of the term.
11.2 The right to terminate for cause remains unaffected. Xolvis reserves the right to terminate an account in case of non-use or inactivity with a notice period of four weeks.
11.3.An extraordinary right of termination shall exist for Xolvis in particular if the payment service provider terminates the payment service contract with the user linked to this service.
11.4 All notices of termination under this Agreement shall be in text form in order to be effective.
§ 12 Ancillary Agreements, Written Form Requirement
12.1. The GTC shall govern the mutual contractual obligations conclusively and completely.
12.2 The notifications and declarations of one party to these GTC provided for in the contractual provisions as well as those that become necessary in the other course of business can in principle also be effectively transmitted to the online address of the other party to the contract.
12.3 Xolvis is entitled to make changes to the GTC and other conditions. Xolvis shall inform the customer about changes two weeks in advance by e-mail. Xolvis will only make these changes for valid reasons, in particular due to new technical developments, changes in jurisdiction or other equivalent reasons. If the change significantly disturbs the contractual balance between the parties, it shall require the consent of the User.12.4 Unilateral amendments to these GTC by Xolvis shall become part of the contract if they have been notified to the User by Xolvis in text form, the User has not expressly objected within two weeks of receipt of the notification of amendment and this consequence has been pointed out in the notification of amendment.
12.5 Xolvis reserves the right to change the costs for its services in whole or in part in the future. Xolvis will, of course, not unilaterally make a related change to the GTC, but will always obtain the consent of the User for this.
§ 13 Collection, processing and use of data
13.1 Information on data protection and data security can be found here in the data protection agreement.
13.2 The contracting parties agree that, to the extent that personal data transmitted by the User to Xolvis is processed by Xolvis within the scope of the fulfillment of contractually owed obligations resulting from this Agreement, this shall be done within the scope of a commissioned processing relationship. For this purpose, the Parties shall conclude a contract on commissioned processing pursuant to Art. 28 DSGVO, which is a direct component of this Agreement as Annex I and is included in the contractual relationship.
§ 14 Applicable law and place of jurisdiction
14.1. The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws rules of private international law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.2 The place of jurisdiction shall be Munich if the User is a merchant and the contract is part of the operation of its commercial business or if the User has no general place of jurisdiction in Germany and if there is no exclusive place of jurisdiction. However, Xolvis shall be entitled to sue the user at any other legal place of jurisdiction.
§ 15 Severability clause
If individual clauses of these General Terms and Conditions of the contract concluded with Xolvis are invalid, the validity of the remaining provisions shall not be affected. A wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to the invalid provision and the intention of the parties. The same shall apply in the event of a loophole.