1. Scope of Applicability
These SaaS Terms set forth the terms and conditions under which Xolvis GmbH, Gollierstraße 70E, 80339 München (“Xolvis“) will provide the customer (“Customer“) with access to certain applications as set forth on the Purchase Order of the Customer (“Hosted Software”) as well as to the user documentation (“Documentation“). The Hosted Software is a digital application suite for car dealerships, repair shops and other service providers.
2. License Grant and Right of Use
2.1 Xolvis makes available the Hosted Software to the Customer under a Software-as-a-Service (SaaS) model limited to the term of this Agreement as defined in clause 12 (“Subscription Term”).
2.2 Subject to all limitations and restrictions contained in this Agreement, Xolvis grants the Customer a non-exclusive, and non-transferable, non-sublicensable right to access the Hosted Software (and its Documentation) as hosted by Xolvis during the Subscription Term and to use it solely to perform those functions described in the Documentation for its internal business purposes (the “SaaS License”).
2.3 Unless otherwise expressly permitted in the Purchase Order, the Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Hosted Software.
2.4 Xolvis is entitled to update the Hosted Software on a regular basis as part of its overall lifecycle management and product improvement policy. Any updates to the Hosted Software are subject to the terms of this Agreement.
3. Customer Account and Authorized Users
3.1 The Customer may need to register for an account in order to place orders and/or access or receive the Hosted Software (the “Customer Account”). The Customer agrees to keep its Customer Account information current, accurate and complete so that Xolvis may send notices, statements and other information to Customer via email or through its Customer Account, which notifications will be subject to this Agreement and Xolvis’ website privacy notice. The Customer will be responsible for maintaining the confidentiality of user login information and credentials for accessing the Hosted Software and will notify Xolvis promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. Xolvis will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
3.2 Unless agreed otherwise in the Purchase Order, the SaaS License is granted as a license for all car dealership locations of the Customer existing at the time of execution of this Agreement.
3.3 The Customer shall be obliged to inform its employees before the beginning of use of the Hosted Software about the rights and obligations set forth in this Agreement. The Customer will be liable for any violation of obligations by its employees or by other third parties who violate obligations within the Customer’s control.
4. Non-Permitted Uses
4.1 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the SaaS License granted by the Service Provider to the Customer under this Agreement is subject to the following prohibitions:
a) the Customer must not permit any unauthorized person to access or use the Hosted Software;
b) the Customer must not use the Hosted Software to provide services to third parties, unless otherwise specified in the Agreement;
c) the Customer must not republish or redistribute any content or material from the Hosted Software;
d) the Customer must not make any alteration to the Software, except as permitted by the Documentation; and
e) the Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Hosted Software; (ii) modify, translate or create derivative works based on the Hosted Software (except to the extent expressly permitted in the Agreement).
4.2 The Customer agrees not to use the Hosted Software to
a) process data on behalf of any third party other than Customer’s Authorized Users;
b) send unsolicited communications, junk mail, spam, or other forms of duplicative or unsolicited messages in violation of spamming or other laws;
c) engage in unlawful conduct, including but not limited to violation of any person’s privacy or publicity rights;
d) store or transmit any content that infringes upon any third party’s intellectual property rights;
e) interfere with or disrupt the integrity or performance of the Hosted Software and its components;
f) post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory;
g) post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software;
h) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law.
4.3 Xolvis has the right (but not the obligation) to suspend access to the Hosted Software or remove any data or content transmitted via the Hosted Software without liability (i) if Xolvis reasonably believes that the Hosted Software is being used in violation of this Agreement or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Xolvis shall use commercially reasonable efforts to notify the Customer prior to suspending the access to the Hosted Software as permitted under this Agreement, or (iii) as otherwise specified in this Agreement.
4.4 Information on Xolvis’ servers may be unavailable to the Customer during a suspension of access to the Hosted Software. Xolvis will use commercially reasonable efforts to give the Customer at least twelve (12) hours’ notice of a suspension unless Xolvis determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Xolvis or its customers.
5. Service Fees
5.1 The Customer shall pay Xolvis the fees indicated on the Purchase Order (the “Service Fees”), which are determined in accordance with the number of car dealership locations of the Customer, unless otherwise agreed in the Purchase Order.
5.2 Unless otherwise provided in a Purchase Order, all fees are to be paid to Xolvis within thirty (30) days of the date of invoice.
5.3 Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the statutory rate.
5.4 If the Customer has set up a direct debit, Xolvis will not debit the Customer’s designated account before seven (7) days have elapsed from the date of the invoice.
5.5 If the Customer is delinquent on a payment of Service Fees for fifteen (15) days or more, Xolvis may suspend access to the Hosted Software.
5.6 Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by the Customer, additional fees will apply.
5.7 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes or other specific taxes such as withholding tax, which will be added to those amounts and are payable by the Customer to either the Service Provider or, as applicable, directly to the local tax authorities.
6.1 The hosting of the Hosted Software shall be governed by the Service Level Agreement as attached in Annex A.
6.2 Xolvis reserves the right to subcontract any services under this Agreement.
7. IP Ownership
7.1 The Customer acknowledges that, subject to the SaaS Licenses granted herein, the Customer has no ownership interest in the Hosted Software or Xolvis materials provided to the Customer.
7.2 Xolvis will own all right, title, and interest in such Software and Xolvis materials, subject to any limitations associated with intellectual property rights of third parties. Xolvis reserves all rights not specifically granted herein.
7.3 Xolvis’ and the Customer’s trademarks, trade names, service marks, and logos, whether or not registered, are the sole and exclusive property of the respective owning Party, which owns all right, title and interest therein. Xolvis may use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials and/or make such other use of the Customer’s name and/or logo as may be agreed between the Parties.
8.1 "Confidential Information" means any information, documents, items, materials, substances or electronic files disclosed by one Party to the other Party in written, electronic, oral or any other form, which is marked confidential by the disclosing Party or is by its nature to be treated as confidential.
8.2 The Parties undertake to treat the Confidential Information of the other Party as confidential and to use them exclusively for the purposes of the performance of this Agreement.
8.3 The disclosure of the Confidential Information of the disclosing Party by the respective recipient to third parties is only permitted to the extent that this is necessary for the performance of this Agreement, provided that the third party has committed itself to confidentiality vis-à-vis the Party making the Confidential Information available to the third party or is bound to confidentiality for professional reasons. Legal disclosure obligations remain unaffected. The respective Party making the Confidential Information available to the third party shall be responsible for ensuring that the obligations of this Agreement are also observed by such third parties. The Party making the Confidential Information available to the third party shall be liable for breaches of the confidentiality obligations under this Agreement by such third parties as if they were its own breach.
8.4 Each Party undertakes to protect the Confidential Information of the respective other Party by taking appropriate security measures.
8.5 The foregoing obligations shall not apply to information of which the receiving Party can prove that it (i) was or is available to the public in a lawful manner and in a manner not in breach of the provisions of this Agreement, (ii) was previously known to the receiving Party and was available to it without restriction, (iii) was disclosed to the receiving Party by a third party authorized to do so, or (iv) was developed by the receiving Party independently and without use of the Confidential Information disclosed by the disclosing Party.
8.6 The respective receiving Party undertakes to completely and permanently destroy all documents and records containing Confidential Information of the respective other Party or, in the case of electronic data, to permanently delete such data immediately after termination of this Agreement. This shall not affect any statutory storage and archiving obligations.
8.7 After termination of this Agreement, all rights and obligations of each Party with respect to the Confidential Information of the respective other Party shall continue to apply for a period of ten (10) years.
9. Customer Data and Data Protection
9.1 Before entering its data and information to the Hosted Software (such data the “Customer Data”), the Customer shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose.
9.2 In addition, the Customer shall be responsible for the entry and the maintenance of its Customer Data. Xolvis shall create a back-up copy of the Customer Data at least on a weekly basis.
9.3 The Customer grants to Xolvis a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer Data as is reasonable or necessary for Xolvis to perform or provide the Hosted Software.
9.4 The Customer is solely responsible for all Customer Data, in particular that its transfer and use in accordance with this Agreement does not violate any applicable laws, including data protection laws, and/or intellectual property rights of third parties.
9.5 The Customer acknowledges that Xolvis does not exercise any control over Customer Data and that Xolvis acts as a mere or passive conduit in transmitting and handling Customer Data.
9.6 Any processing of personal data of the Customer by Xolvis shall be governed by a separate data processing agreement to be executed in accordance with Art. 28 GDPR.
10. Limitation of Liability
10.1 In case of wilful misconduct, Xolvis shall be liable according to the statutory provisions of applicable law.
10.2 In case of gross negligence, Xolvis shall be liable according to the statutory provisions of applicable law.
10.3 In case of ordinary negligence, Xolvis shall – provided that the standard of liability is not limited according to statutory provisions of applicable law (such as any limitation to the duty of care observed in own affairs) – only be liable for breach of material contractual obligations (material contractual obligations are obligations the breach of which endangers the purpose of the agreement and the fulfilment of which the Customer generally relies and may reasonably rely on); in this case Xolvis’ liability shall be limited to the typical damages that were reasonably foreseeable. Therefore, indirect and consequential damages resulting from defects of the delivered goods and/or work are only eligible for compensation if such damages are typical and reasonably foreseeable and when the goods and/or work are used in conformity with their intended purpose.
10.4 The aforementioned limitations do not apply to
a) damages resulting from injury to life, body or health;
b) liability pursuant to the German Product Liability Act;
c) the assumption of a guarantee for the condition of goods and/or work or fraudulent concealment of defects by Xolvis.
10.5 The aforementioned limitations of liability shall, subject to the provisions of Section 10.4, apply to (i) any liability claims for whatever legal reason but in particular due to impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations in contractual negotiations and tort, as far as such claims are subject to fault, and (ii) any breach of duty by vicarious agents or any other person for whose conduct Xolvis can be held liable according to the statutory provisions of applicable law.
11. Customer Indemnity
11.1 Customer will defend Xolvis from any third party claim (“Claim”), and will indemnify and hold harmless Xolvis from and against any damages and costs awarded against Xolvis, or agreed in settlement by Customer (including attorneys’ fees) resulting from such Claim, to the extent caused by:
a) modifications of the Hosted Software by the Customer, his/her affiliates, users, or third party contractors,
b) Customer’s or its affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including personal data therein, and
c) Customer’s or its affiliate’s violation of laws applicable to Customer’s or its affiliate’s business.
11.2 The Customer will have no liability or obligation with respect to any Claim if such claim is caused in whole or in part by Xolvis’ breach of this Agreement or violation of applicable law.
11.3 In the event of a potential indemnity obligation under this Section, Xolvis will: (i) promptly notify the Customer in writing of the claim, (ii) allow the Customer the right to control the investigation, defense and settlement (if applicable) of such claim at the Customer’s sole cost and expense, and (iii) upon request of the Customer, provide all necessary cooperation at the Customer’s expense.
11.4 Failure by Xolvis to notify the Customer of a claim under this Section will not relieve the Customer of its obligations under this Section, however, the Customer will not be liable for any litigation expenses that Xolvis incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the Customer in accordance with this Section.
11.5 The Customer may not settle any claim that would bind Xolvis to any obligation or require any admission of fault by Xolvis, without Xolvis’ prior written consent.
12. Term and Termination
12.1 The Subscription Term shall be defined in the Purchase Order.
12.2 If the Purchase Order does not contain any specific provisions on the Subscription Term, the Subscription Term shall commence upon execution of the Purchaser Order and shall run for an initial term of one (1) year. Thereafter, it shall extend automatically by consecutive one (1) year renewal terms, unless terminated by either Party with three (3) months’ written notice to the end of the initial term or any renewal term.
12.3 The right to termination for cause remains unaffected for both Parties. This Agreement may be terminated by Xolvis: (i) if the Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to the Customer if the Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) the Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
12.4 Upon termination of this Agreement, the Customer shall no longer access the Hosted Software and the Customer shall not circumvent any security mechanisms contained therein.
12.5 Termination of this Agreement will not limit either Party from pursuing other remedies available to it, including injunctive relief. Furthermore, such termination will not relieve the Customer of its obligation to pay all Service Fees that have accrued or are otherwise owed by the Customer under this Agreement.
12.6 Within thirty (30) days following the termination of this Agreement for any reason and the submission of a request to transfer data (“Data Transfer Request”), depending on whichever is later, Xolvis will provide the Customer with an extract of all Customer Data stored on the Software at the moment of termination, in machine-readable format. A Data Transfer Request must be submitted within seven (7) days of termination. In case the Customer fails to submit such a Data Transfer Request in due time, Xolvis will delete the Customer Data from its Software.
12.7 Anonymized data previously produced from the Customer Data may be retained and used further on by Xolvis. Technical copies produced within an IT archiving system may be retained by Xolvis.
13. Customization Service
13.1 Insofar as the Customer commissions Xolvis to provide customization or other services within the scope of the Purchase Order or subsequently, these services shall be subject to the provisions of this Agreement.
13.2 Unless otherwise agreed in individual cases, these performances shall be rendered as services within the meaning of Sec. 611 German Civil Code.
13.3 Unless otherwise agreed in individual cases, the Customer shall receive those rights to the results of these services that are granted to him/her under this Agreement in respect of the Hosted Software.
13.4 Insofar as the Customer makes available trademarks, company logos or other rights of third parties within the scope of these services, e.g. for "branding" of the Software Solution, the Customer shall ensure and warrant that it is entitled and able to grant Xolvis the respective rights.
14. Final Provision
14.1 Each Party shall bear its own costs incurred in connection with the execution and performance of this Agreement, unless expressly agreed otherwise in this Agreement.
14.2 This Agreement fully reflects the agreements between the Parties regarding the subject matter; no oral or other side agreements exist. Unless expressly agreed otherwise in this Agreement, all previous agreements between the Parties regarding the subject matter shall be fully replaced by this Agreement with effect from the effective date of this Agreement.
14.3 Amendments or additions to this Agreement shall require written form to be effective, unless a stricter form is required under mandatory law. The same applies to the waiver of this written form requirement. Unless expressly agreed otherwise in this Agreement, e-mails do not comply with this written form requirement. The written form requirement under this Agreement shall be deemed to have been met when the copy of a declaration is being transmitted by telecommunications (e.g. as an attachment to an e-mail) and that copy contains the signature of the person making that declaration, unless a stricter form is required under mandatory law.
14.4 Neither Party is entitled to transfer this Agreement or to assign rights or obligations under this Agreement to a third Party without the prior written consent of the other Party.
14.5 This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws rules of private international law. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
14.6 Exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be headquarters of Xolvis, unless otherwise required by mandatory law.
14.7 Should any provision of this Agreement be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions of this Agreement shall not be affected. The same shall apply if and insofar as a gap in this Agreement becomes apparent. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to or corresponds to what the Parties economically intended or would have intended according to the spirit and purpose of this Agreement, had they considered this point.