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§1 Contracting Parties
The mbi Unternehmehmensberatungs-GmbH (hereinafter referred to as: „mbi“) is only entering into contracts with ventures according to §14 BGB (hereinafter referred to as: customer).
General terms and conditions of the customer will only become part of the agreement, if mbi explicitly agrees with their application, including terms like requests for proposal, orders, statements of acceptance and so forth, in written form.
§2 Object of Agreement
- 2.1. Object of Agreement is the utilisation of the Cloud Plus Standard software “WINPACCS” via rental. WINPACCS online (WINPACCS Cloud) delivers a web-based solution for managing varied data und processes of aid organisations via a Cloud Service. The Plus means the three established modules of the WINPACCS suite. The PC application for project accounting (WINPACCS accounting), cost accounting (WINPACCS cost control), and cash journal (WINPACCS cashbook) are asynchronously connected to the WINPACCS Cloud. The three applications can be used offline without a permanent internet connection.
- 2.2 mbi currently provides three different licensing packages, whose content can be learnt from the price list. This price list containing the pricing packages will be provided on the website of mbi, where customers are able to view and print this list.
- 2.3 mbi states that for the modules of the WINPACCS suite a local installation on stationary computers of the customers is necessary.
- 2.4 Diverging arrangements are subject to acceptance in written form. Acceptance of a guarantee for certain properties (composition) are also subject to acceptance in written form.
§3 Contracts and Offers
- 3.1. Subject to a special arrangement the contract concludes with the inflow of the acceptance of order, at the latest by providing the service by mbi.
- 3.2. Days of delivery or delivery times are only mandatory if they have been called mandatory by mbi by written statement.
- 3.3. All offers of mbi are without obligation, except the offers states differently. Negligible deviations due to technical reasons are reserved by mbi even after the customer has accepted the offer.
§4 Responsibilities and Obligations of the Customer
- 4.1. The customer particularly has the following responsibilities:
- a) For every not initiated or reverted direct debit payment the customer has to refund the costs of mbi to the extent of his responsibility of the occurrence.
- b) After having given a malfunction information the customer has to refund the costs of mbi, if there actually is no malfunction and the customer could have realised this by reasonable fault finding.
- c) The provided services are not to be used abusively, particularly no information shall be transmitted containing libelous or other illicit or immoral contents or be put on the internet, nor may reference to such content be made. Such content is considered to be information relating to mass instigation according to §§ 130, 130a and 131 of the German Penal Code (StGB), promotes sedition, leads to criminal offences or glorifies or trivialises violence, is sexually indecent or is pornographic according to § 184 StGB, also information which immorally endanger children or teenager badly or which affect their well-being and which harm the prestige of mbi. The provisions of the State Treaty for the Protection of Minors in the Media (Jugendmedienstaatsvertrag) and the Youth Protection Law (Jugendschutzgesetz) shall be complied with. The customer has to observe national and international copyrights, trademark, patent, and name rights, as well as other industrial and personal rights of third parties.
- d) The customer is obligated to inform his users about the contents of this agreement and the general terms and conditions before using the services provided by mbi. The customer is liable for all violations of the obligations by his users and of third parties which violate the obligations and were influenceable by the customer as far as he furnishes proof that he cannot be held reliable for the violation of obligation.
- e) If the customer collects, stores and processes personal data of his users while using WINPACCS and there is no legal basis for using this personal data, the customer has to get the required consent of the data subject.
- f) The customer indemnifies mbi and its vicarious agents against all claims of third parties, which are based on an illegal use of WINPACCS and its services by the customer or by others with the customers consent or that arise, in particular, from disputes involving data protection, copyright or other legal disputes caused by the customers use of WINPACCS. If the customer recognises such a violation of obligations or if he recognises the danger of such a violation occuring, he has to notify mbi of this violation without delay.
- g) Personal Access Information (User Name and Password) are not to be given to third parties and must be protected from third-party access. For security reasons, the data must be changed before first-time use of the service and afterwards at regular intervals. If there is reason to believe that a third party got access to the personal access information, the customer has to change them immediately.
- h) If mbi is to process sensible data within WINPACCS according to §3 Abs. 9 Bundesdatenschutzgesetz, the customer has to inform mbi immediately in written form.
- i) The customer commits himself to check the files he intents to upload into the WINPACCS cloud with a state-of-the-art anti-virus and anti-malware software. The customer also commits himself to install and maintain a state-of-the-art firewall and an anti-virus software on the PC workstations. If files of the customer contain viruses or malware, mbi is allowed to delete those files, if the removal of the viruses or the malware is not possible without reasonable amount of time and effort.
- j) The customer commits himself not to disrupt or disconnect the servers and networks of WINPACCS, which are provided by mbi or its subcontractors.
- k) If mbi needs a remote connection to the local PCs of the customer for providing repairs and maintenances, the customer will perform any required collaborative action, particularly installing the software TeamViewer.
- 4.2. mbi has the right, in the event of serious offences against the obligations of the customer as well as if there are substantial grounds for suspecting a breach of contract against § 4 Abs. 1 to close down the services at the customer’s expense.
- 4.3. The customer is obligated to back up his local data while using the WINPACCS suite on his own responsibility.
- 4.4. The customer commits himself to install updates for the WINPACCS suite provided by mbi within six months after their release. The customer is informed, that the full functionality of WINPACCS can only be guaranteed by installing the latest updates. mbi reserves the right to stop the support as mentioned in § 12 for older versions of the WINPACCS suite.
§5 Individual Rights of Use
- 5.1. The customer and his named users will be granted the non-exclusive right, to access the software with its functionality for the duration of this contract and within the number of user roles the customer has registered. The customer does not receive further rights.
- 5.2. The customer is not allowed to use the software without accordance to the agreed conditions. With expressive allowance of mbi the customer is allowed, on his expense, to grant registered user roles to external partners. Except for these allowances, the customer is not allowed to offer access to WINPACCS to third parties as well as to let WINPACCS be made accessible to any third party. In particular, the customer does not have the right to decompile or reproduce the source code as well as to sell or offer access to source code or parts of it to third parties. All functions and graphical illustrations of WINPACCS are not to be used for private purposes, particularly not within software of the customer or of associated firms. It is expressively forbidden to use WINPACCS in order to develop similar software. On the demand of mbi the customer has to provide any detail and information required for asserting claims against third parties, including their name and address as well as type and scope of the claim against the third party debtor arising from the unauthorised use of the software.
- 5.3. The use of WINPACCS is forbidden for competitors of mbi, as well as associated firms of competitors of mbi.
- 5.4. The customer has to pay the prices for services demanded by the registered and therefore authorised users. The customer has to also pay the prices for the unauthorised use by third parties if and as far as the customer has to represent the unauthorised use.
- 5.5. The customer is only allowed to install the WINPACCS suite modules twice as much as the amount of user roles with permission to write are registered for the mentioned modules.
- 6.1. Fees and ancillary costs are in principle net remunerations plus legally applicable taxes and duties.
- 6.2. The invoice amount must be paid to the account specified in the invoice. It has to be credited not later than 14 days after the receipt of the invoice. If the customer allows mbi to use direct debit authorisation, mbi will not debit the agreed account with the amount until the seventh day following the receipt of the invoice.
- 6.3. Other charges shall be payable after the relevant service has been performed.
- 6.4. The customer only has a set-off right on existing legally binding or non-objected counterclaim; the customer is only insofar entitled to enforce a set-off right, if its counterclaim is based on this contract.
- 7.1. If the customer
- a) defaults on payment of the monthly subscription for three consecutive months or
- b) during a period that extends over more than three months, defaults on payment that reaches the monthly subscription for three months, mbi shall have the right to terminate the agreement without notice and cease the services on the expense of the customer.
- 7.2 mbi reserves the right to assert further claims regarding default of payment.
§8 Reserval of Rights
- 8.1. mbi reserves the right to change the provided services in an acceptable manner. The change is acceptable, if
- a) new legal or executive regulations make the change a necessity,
- b) the services are not state-of-the-art anymore or do not comply to security regulations or data protection law anymore or if it cannot be guaranteed anymore that the provided services will work,
- c) or the services are replaced, in part or in total, by similar or better services, the amount of service provided will remain essentially the same and the change of service is reasonable.
- The customer will be informed of the change of service in a timely manner.
- 8.2. mbi reserves the right to change or expand its conditions (particularly prices and the general terms and conditions). In such a case mbi will inform the customer of those changes and/or expansions one month before. Those changes and addendums will only be applicable if the customer, after having been informed, continues to use WINPACCS after the next possible option to terminate the contract and he has been informed of these consequences. This procedure applies mutatis mutandis for feeless services.
- 9.1. In the case of wilful intent, gross negligence or due to the lack of a guaranteed characteristic mbi shall be unlimitedly liable for all damage arising therefrom.
- 9.2. In case of mild negligence mbi shall be unlimitedly liable for all damage resulting from hurting life, body or health of another. In other cases of mild negligence mbi shall only be liable if an obligation is violated, whose fulfilment is necessary in order to accomplish the contract, whose violation endangers the purpose of the contract and on whose observance the customer may duly rely (major obligation). If a major obligation is violated, the liability is limited to foreseeable damage typical of the contract concerned. This also applies to liability for lost profits and failure to make savings. Liability for other distant consequential harm caused by a defect is excluded.
- 9.3. The liability for strict liabilities for compensation (§ 536 lit. a BGB) for defects existing at the time of signing of the contract is excluded.
- 9.4. Liability for all other damage is excluded, including liability for lost data or hardware defects arising due to incompatibility of the components on the PC of the customer with other hard- and software and system faults which may arise due to misconfigurations or old, disturbing, not completely deleted drivers.
- 9.5. Liability due to regulations of the Product Liability Code (Produkthaftungsgesetz) remain untouched.
§10 Liability for Material Deficiencies
- 10.1. mbi provides a warranty that the service provided exhibits the agreed condition and the customer is able to use WINPACCS without infringement of third-party rights. The guarantee against material deficiencies does not apply to defects or damages arising from using WINPACCS in a hard- and software environment which does not meet the needs stated in the software description or for changes and modifications on the software made by the customer without having the right to do so via law, this contract or due to prior written consent of mbi.
- 10.2. After having been granted access to WINPACCS the customer has to check the product for apparent defects and has to inform mbi in a timely manner if such a defect is detected; if such information is not provided, mbi cannot be held liable for this defect. The same applies, if such a defect becomes apparent later. § 377 German Commercial Code will be applied. The information has to be given in such a manner that mbi is able to detect the defect on the basis of the information given by the customer. The information has to contain all reasonable data concerning the defect, the module, in which the defect occurred and the work which was done when the defect appeared.
- 10.3. In case of a material defect mbi is initially entitled to rectify the defect, meaning remedial or replacement on their own choice. Replacement can be made by delivering a new product version, which the customer will use as far as the effort to using it remains reasonable. mbi may present various reasonable possibilities to the customer to avoid the effects of the defect. In the event of legal defects mbi will provide the customer a legally impeccable possibility to use the software or will change the software in such a manner that no rights of third parties are infringed.
- 10.4 mbi has the right to perform the rectification within the premises of the customer. mbi also has the right to provide rectification via providing updates with a setup wizard on their homepage and providing the customer support by telephone to solve problems occurring due to the setup wizard.
- 10.5 If the supplementary performance has failed in spite of at least two attempts to do so, the customer shall be authorised at its own discretion to reduce the price or to withdraw from the contract. The right to withdraw from the contract does not exist for insignificant defects. If the customer demands compensation or reimbursement of frustrated expenditure, mbi shall be held liable according to § 9.
- 10.6 With exception of claim of damages warranty claims are time-barred within one year. The limitation period starts with the delivery of WINPACCS if an installation medium is provided, and if WINPACCS is provided via a download link the limitation period starts after informing and registering the access details of the download area.
§11 Software Availability and Liability for Material Deficiencies of WINPACCS Cloud
- 11.1. mbi provides access to WINPACCS Cloud including its functions and storage space for data generated by the user and/or the data required to use the software from the agreed date on.
- 11.2. mbi pursues a 99% availability of the software WINPACCS Cloud per year. In this context availability means the technical usability of the software and the data provided by the software at interconnection point for the usage by the customer. Excluded are interruptions caused by usual and planned necessary maintenance. mbi shall inform the customer of these interruptions in a timely manner. However, a guarantee for that will not be provided.
- 11.3. Interruptions of the services which do not occure due to a planned necessary maintenance have to be communicated unhesitatingly by the customer to mbi. mbi shall commence fault rectification after having been informed by the customer or after having received an error message by the server or the installed system by mbi and will inform the customer of doing so (reaction time). mbi will ensure that communicated or discovered technical defects will be remedied in an acceptable amount of time (recovery time). Reaction time and recovery time are measured within disruption categories, which are defined in the following manner:
- a) Disruption category I: Faults, which do not affect the usage of WINPACCS Cloud or just in a minor degree.
- b) Disruption category II: Faults, which affect the usage of WINPACCS Cloud more than only to a lesser extent, but usage of WINPACCS is still possible.
- c) Disruption category III: Faults which make it impossible to use WINPACCS Cloud or affect the usage of the service considerably.
- The following reaction times and recovery times are agreed upon:
|Disruption category||Reaction time||Recovery time|
|I||Once per year||Once per year|
|II||One week||Two weeks|
|III||24 hours||48 hours|
- 11.4. The customer has to maintain his own direct internet link within his own responsibility.
- 11.5. Unless otherwise agreed upon in this section, the general conditions according to § 10 shall be applicable on WINPACCS Cloud as well.
§12 Support Services
- 12.1. Employees of mbi will provide support via telephone for the customer in German and English from Monday until Friday, 9 am until 5 pm (CEST) with the exception of nationwide holidays.
- 12.2. The customer may also ask questions to WINPACCS in written form in German, English, French and Spanish via fax or e-mail.
- 12.3. mbi shall commence processing the support request on the same working day if the request is received before 12 pm (CEST), if the support request is received after 12 pm (CEST) not later than the next working day. Working days are Monday until Friday with the exception of nationwide holidays.
- 12.4. According to the chosen license package the customer receives support times which are included in the monthly payment. Every additional support request is to be payed according to the hourly wage rate of the price list in effect at the time the support is requested. mbi shall bill the support requests monthly and at quarter of an hour intervals.
The customer agrees that mbi is allowed to communicate via the e-mail addresses of the declared coordinators. In particularly, the transmission of information regarding inquired or existing contracts and contract management shall be directed to those addresses. The customer will check those addresses for incoming mails in a manner that is customary to business and inform mbi of a change in address in a timely manner. The customer agrees that mbi has the right to use (save, process and use) existing e-mail addresses of his WINPACCS users in order to transmit utilisation data, like information of planned maintenances or change of functions.
§14 Data Protection
- 14.1. mbi does not acquire rights on the data (particularly the personal data of third parties) saved by the customer while using WINPACCS. mbi shall receive the right to use the data in accordance to the following provisions and within the scope of this contract on instruction of the customer.
- 14.2. For the contract data processing the customer is responsible to act accordingly to the Federal Data Protection Act concerning personal data.
- 14.3. mbi only uses the personal data having received in connection with execution of this contract according to the Federal Data Protection Act only in order to realise and fulfil the contract.
- 14.4. The customer stays “ruler of the data” in the contractual, as well as in the data protection sense. If and how third parties enter or access data, stays within the disposition of the customer. If the customer includes third parties to use personal data, he is responsible to provide the necessary organisation of authorisation management, password registration etc.
- 14.5. The customer is in principle not authorised to gain access to the premises within the data centres of the parties providing the server capacity for mbi, in which WINPACCS is operated. The exception to this is the right of access of the data protection officer of the customer upon receipt of written application in order to examine whether the requirements of the appendix of § 9 of the Federal Data Protection Act as well as the other legal and contractual provisions concerning the use of personal data by mbi providing WINPACCS in accordance to this contract is abided.
- 14.6. mbi will take the necessary technical and organisational measures to guarantee the security of this personal data according to § 9 of the Federal Data Protection Act.
- 14.7. mbi has the right to provide services by subcontractors at home and abroad but has to agree with them on terms according to § 11 Abs. 2 No. 1-10 of the Federal Data Protection Act. The data entered by the customer into the WINPACCS server will only be hosted on servers in Germany.
- 14.8. For reasons of contract performance, the billing of the provided services in particular, mbi reserves the right to monitor and save data concerning the usage behaviour and usage scope of the registered users.
- 14.9. The customer shall agree that mbi is allowed to log into the user interface of the customer in order to be able to provide support services, if the login is necessary to provide those services. mbi will record the necessary logins, inform the customer of the logins and assures the customer of confidential treatment of any personal data received. Employees of mbi dealing with providing the support will be sworn to secrecy.
§15 Higher Force
- 15.1. For events of higher force which significantly hinder mbi to provide its service, in part or in total, mbi cannot be held liable. A reduction of the agreed remuneration or a reclaim is not accepted. All conditions which are independent of the will and influence of the parties such as natural disasters, government measures, decisions of government agencies blockades, war and other military conflicts, mobilisation, civil unrest, terroristic attacks, strikes, lockouts and other industrial unrest, confiscation, embargoes and other unforeseeable, serious conditions which are not the fault of the parties and which arise after conclusion of this agreement.
- 15.2. If a party is hindered to fulfil its contractual obligation by higher force it is not counted as a violation of contract and the determined time limits are extended in relation to the hindrance. The same applies to hindrances of third parties on whose prior performance mbi relies.
- 15.3. Each party shall do all that is necessary and reasonable within its power to reduce the extent of the consequence arising from higher force. The party affected by higher force shall notify in written form the other party without delay about the reasons and prospective duration of the hindrance.
- 15.4. If it is certain that the higher force will last longer than six months, every party has the right to terminate the contract via registered letter.
§16 Contract Period and Termination
- 16.1. The contract period and cancellation period are determined by the chosen licence package.
- 16.2. The right to extraordinary termination of the contract remains untouched. An extraordinary reason for termination of the contract by mbi exists particularly in the cases, in which the customer violates the obliging responsibility considerably.
- 16.3. With the termination of the contract concerning the use of WINPACCS each and every other contract concerning additional services relying on WINPACCS is terminated as well.
- 16.4. Use of the provided software will be barred after the ending of the contract. The data existing on the provided servers has to be saved by the customer on his local system before the day of the end of contract. For this reason mbi provides opportunity to export or save the data on a physical drive in an interoperable format if the customer wishes so. Billing for this support is determined via § 11. mbi will irretrievably delete all data and user profiles one month after the end of the contract.
- 16.5. When the contract ends, the customer has to delete locally installed software provided by mbi without leaving any remains. The same applies to backups made of the modules.
§17 Other Conditions
- 17.1. The place of jurisdiction for all disputes concerning this contract is Wetzlar. An exclusive place of jurisdiction takes priority.
- 17.2. The customer is only allowed to assign its rights and duties to a third party after getting a written consent by mbi.
- 17.3. The contractual relationship between the parties shall be governed by German law, excluding the United Nations’ Convention on Contracts.