1. SCOPE OF APPLICATION, SUBJECT MATTER OF THE TERMS AND RIGHT OF AMENDMENT
Bitperium GmbH (“Bitperium”) offers its “CUSTOMER” to use the software application Videos for Confluence (“SOFTWARE”), which is provided to CUSTOMER for download and use via the Atlassian Marketplace. 1.2 Scope of Application
These Terms and Conditions shall apply exclusively to contracts between Bitperium and the CUSTOMER – for the use of the SOFTWARE in its most current version at the time of the conclusion of the contract and
– Bitperium support services for the period of time selected by the CUSTOMER on the Atlassian Marketplace for support and update services including documentation. For the scope of the Bitperium support services see www.bitperium.com.
Other terms and conditions shall not become part of the contract, even if Bitperium does not expressly object to them.
1.3 Exclusion of Consumers
These Terms and Conditions apply only to entrepreneurs (sec. 14 German Civil Code, “BGB”), legal entities under public law or special assets under public law within the meaning of sec. 310 para. 1 BGB. Bitperium does not provide its services to consumers, but exclusively for the purpose of the CUSTOMER’s commercial or independent professional activity.
1.4 Right of Amendment of these Term and Conditions
Bitperium shall be entitled to amend or supplement these Terms and Conditions to the extent required for legal reasons or if the amendment or supplement is reasonable for the CUSTOMER taking into account the interests of Bitperium. In such cases, Bitperium shall notify the CUSTOMER of the amended or supplemented contractual terms and conditions at least four (4) weeks before they come into force (“Amendment Notice”). The CUSTOMER may object to such amendment or supplement within a period of four (4) weeks from receipt of the Amendment Notice by e-mail to email@example.com. In the event of a failure to object, the changes or additions shall become effective. Bitperium shall specifically point out the legal consequences of a failure to object in the notification of change. If the CUSTOMER objects in a timely manner, the contractual terms and conditions shall remain effective for the CUSTOMER without the change or amendment.
2. CONCLUSION OF THE USAGE CONTRACT, FREE TRIAL PERIOD
2.1 Conclusion of the usage contract
The use of the SOFTWARE requires in any case the conclusion of a usage contract between the CUSTOMER and Bitperium.
2.2 Trial period
Use of the SOFTWARE is free of charge during the trial period specified in the Atlassian Marketplace for testing the SOFTWARE, if Bitperium offers such a trial period. Unless otherwise specified, the free trial period shall be one month. Each CUSTOMER may use a trial period only once, unless Bitperium expressly grants the CUSTOMER another trial period. The Trial Period shall commence upon execution of the SOFTWARE Usage Agreement and successful download of the SOFTWARE from the Atlassian Marketplace.
2.3 Conclusion of a paid usage contract with a prior free trial period
If the CUSTOMER wishes to continue using the SOFTWARE after the expiration of the free trial period, the CUSTOMER shall enter into a paid usage agreement with Bitperium via the Atlassian Marketplace.
3. BITPERIUM SERVICES
3.1 Access to the SOFTWARE and scope of services of the SOFTWARE
The SOFTWARE is provided for download on the Atlassian Marketplace.
CUSTOMER receives the SOFTWARE in executable form. The source code of the SOFTWARE is not delivered to the CUSTOMER. The scope of services of the SOFTWARE results from the service description, which is available to the CUSTOMER via www.bitperium.com.
3.2 Grant of rights to use the SOFTWARE
Bitperium grants the CUSTOMER a non-exclusive, non-sublicensable and non-transferable right to use the SOFTWARE, which is limited to the term of the license agreement and subject to the following provisions. The SOFTWARE may only be used by a maximum of the number of natural persons corresponding to the licenses purchased by the CUSTOMER. Unless otherwise agreed in individual cases, the CUSTOMER requires one license for each user of the SOFTWARE.
3.3 Unauthorized Use
When using the SOFTWARE, the CUSTOMER is prohibited from: (1) copy, translate, disassemble, decompile, reverse engineer or otherwise modify any portion of the SOFTWARE, (2) transmit any content, data or information that is unlawful, harmful, threatening, infringing, harassing, tortious or libelous, (2) transmitting any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, or libelous; (3) infringing the privacy or publicity rights of any person or entity; (4) transmitting any Content that is hateful, discriminatory, or objectionable to any race or ethnic group; or (5) infringing the intellectual property rights of any person or entity.
4. BITPERIUM’S RIGHTS TO THE SOFTWARE
4.1 Rights in and to the SOFTWARE
Bitperium is entitled to all rights to the software – in particular the copyright, the rights to inventions as well as technical property rights. This also applies to the rights to documents handed over.
4.2 No transfer of property rights
The CUSTOMER shall be granted exclusively the rights of use listed in Section 3.2. In particular, no industrial property rights shall be transferred to the CUSTOMER.
5. FURTHER DEVELOPMENT, SUPPORT FOR OLDER VERSIONS AND SECURITY
5.1 Further developments, Updates
Bitperium aims at continuously further developing the SOFTWARE. The CUSTOMER is not entitled to receiving specific further development. Bitperium may extend and/or modify the SOFTWARE and make new functionalities available or optimize existing functionalities. Such further developments (updates or new versions) are made available for download on the Atlassian Marketplace. Updates will be compatible with versions of Atlassian’s Software (e.g. Confluence; Jira) released within the last two years.
5.2 Support for older versions
During a period of two years after a new version is made available Bitperium provides support for any older versions than the current available version by providing security patches for critical security vulnerabilities. After this period, Bitperium does not guarantee compatibility with the current basic Atlassian Software (e.g. Confluence; Jira) nor sufficient security of any previous versions.
The parties shall use and observe to an economically reasonable extent the security technologies (such as encryption, password protection) corresponding to the generally accepted rules of technology when providing the SOFTWARE and other related services and in the use of the SOFTWARE and related services.
6. SUPPORT SERVICES
6.1 Scope of Support and Update Services
The Support and Update Services include handling of errors or other defects of the SOFTWARE regardless of its use by the CUSTOMER, unless specified otherwise below.
The Support and Update Services do not include:
(a) Services for the SOFTWARE if the SOFTWARE is not used under the conditions of use as specified by Bitperium;
(b) Adaptation of the SOFTWARE to a changed hardware or software environment, including adjustment to changed operating systems;
(c) Application and adaptation of interfaces and APIs;
(d) Handling of errors caused by the CUSTOMER and/or by third parties, including the disruption of operations caused by third-party software;
(e) Services for the SOFTWARE if the CUSTOMER and/or a third party modified the SOFTWARE on behalf of the CUSTOMER;
(f) Services for computer programs or parts thereof that are not included in the SOFTWARE;
(g) Services for the SOFTWARE when the CUSTOMER has not installed Updates or other bug fixes provided by Bitperium and the reported bug is already fixed in such Updates and bug fixes, unless the installation is unreasonable for the CUSTOMER for reasons beyond its control;
(h) Services which can be performed at Bitperium’s place of business, but which are performed at another location at the CUSTOMER’s express request;
(i) Instructing and training SOFTWARE users; and
(j) Services that are necessary because the CUSTOMER does not comply with its cooperation obligations.
6.2 Supported version
Support and Update Services is only provided for the latest SOFTWARE version that is made available on the Atlassian Marketplace. For older versions see clause 5.2.
6.3 Ticketing system
Support is provided via a ticketing system and via email to firstname.lastname@example.org. We are not required to provide a telephone hotline.
6.4 Support hours
Support shall be provided during Bitperium’s working hours Monday-Friday, with the exception of public holidays in Bavaria, Germany, from 9:00 a.m. to 5:00 p.m. Central European Time (CET).
6.5 CUSTOMER Cooperation obligations
6.5.1 The CUSTOMER shall provide the necessary information in the event of a support request and shall cooperate in answering its request, in particular by:
(a) providing the relevant documents, documentation and information required for the provision of services, in particular concerning existing systems, devices, computer programs and computer program parts which are to interact with the SOFTWARE,
(b) providing test plans and test data and, where applicable, create and provide a test environment,
(c) documenting detected defects of services rendered in a reproducible, at any rate comprehensible form and immediately informing Bitperium,
(d) insofar as necessary for the provision of services, making available at its own expense facilities, infrastructures and personnel suitable for cooperation,
(e) performing necessary acts of cooperation in due time.
6.5.2 The CUSTOMER shall name at least one contact person authorized to represent the CUSTOMER and shall notify Bitperium immediately about any changes in the contact person. The contact person shall have experience in handling the SOFTWARE and must be able to provide information on the installation environment and the reported SOFTWARE error, if necessary.
6.5.3 Prior to reporting the error, the CUSTOMER shall carry out an analysis of the system environment within the scope of its possibilities to ensure that the error is not attributable to system components that are not covered by this contract.
6.5.4 The CUSTOMER shall immediately install updates and carry out other troubleshooting measures provided by Bitperium.
6.5.5 The CUSTOMER shall thoroughly test the SOFTWARE before use to verify any defects and usability in the existing hardware and software configuration. This also applies to any software the CUSTOMER receives within the remedy of defects.
6.5.6 The CUSTOMER guarantees permanent management of the system environment. The CUSTOMER will continuously service the system environment (hardware and software), in which the SOFTWARE is running.
6.6 Suspension of services
In case the CUSTOMER is in default with carrying out the required activities, Bitperium shall be entitled to suspend performance of those services, if CUSTOMER’s activities cannot be performed at all or can only be performed with disproportionate additional expense, until CUSTOMER performs such activities. CUSTOMER shall remunerate Bitperium for any additional expenses incurred by Bitperium in addition to the agreed remuneration based on the applicable hourly rates. Bitperium’s further legal rights shall remain unaffected.
6.7 Defects in support services
The support services are subject to the statutory provisions on service contracts (secs. 611 et seq. BGB). Liability for defects in the support services is subject to clause 14.
7. SERVICE CHANGES FOR GOOD CAUSE
Bitperium is entitled to make changes to its services. Bitperium will only make such changes for valid reasons, in particular due to new technical developments, changes in jurisdiction or other equally valid reasons. If the contractual balance between the parties is significantly disturbed by the change, the change shall not be made. Otherwise, changes require the consent of the CUSTOMER.
8. CUSTOMER COOPERATION, SYSTEM REQUIREMENTS
8.1 Installation of new versions
The CUSTOMER is obligated to provide information truthfully and, if necessary, to indicate changes without delay. The CUSTOMER is obliged to keep the SOFTWARE up to date at all times during the term of the usage contract. This includes, but is not limited to installing upgrades and new versions of the SOFTWARE immediately after notification. In order to receive such notifications, CUSTOMER shall log in to the “Watch” function. Without such registration, CUSTOMER can always view the latest version of the SOFTWARE under the history version, which can be found for the relevant product on the Atlassian Marketplace under “Versions > See all versions”. Bitperium shall inform the CUSTOMER about critical security updates in any case, without the latter having to take any action; the information is sent to the contact data entered by the CUSTOMER on https://my.atlassian.com. Support services are provided only if the SOFTWARE is up to date with the latest version delivered by Bitperium. For older versions see clause 5.2.
8.2 Features of the SOFTWARE
The CUSTOMER knows the essential functional features of the SOFTWARE and tested them during the Free Trial Period. The CUSTOMER agrees that the SOFTWARE meets the CUSTOMER’s requests and needs.
8.3 System Requirements
System requirements for the CUSTOMER may result from the service description. The CUSTOMER shall be responsible for setting up a functional hardware and software environment for the SOFTWARE that is sufficient to take into account the additional load caused by the subject matters covered by the agreement.
The CUSTOMER shall thoroughly test the SOFTWARE before use to verify any defects and usability in the existing hardware and software configuration. This also applies to software which the CUSTOMER receives within the scope of warranty and, where applicable, maintenance.
The CUSTOMER shall install the SOFTWARE and shall comply with Bitperium’s instructions for the installation and operation of the SOFTWARE. The CUSTOMER shall regularly keep up to date with Bitperium’s current instructions on the website accessible via the Internet at https://bitperium.com/documentation and shall take them into account during operation.
Any disadvantages and additional costs resulting from a breach of these obligations are to borne by the CUSTOMER.
8.6 Data backups
The CUSTOMER is obliged to meet appropriate measures for the event that the Software does not function properly in whole or in part. This includes but is not limited to carrying out complete backups of all system and application data immediately before each update or installation of new versions of the SOFTWARE. The data backups shall be stored in such a way that the CUSTOMER can restore such data, if necessary.
9.1 Agreed quality
The SOFTWARE has the agreed quality during the term of this usage contract. There are no defects that may cancel or reduce the value or suitability for normal use or the use stipulated in the contract, including viruses or other malware.
9.2 Notification of defects
In case of notification of a defect, Bitperium shall, at Bitperium’s sole discretion immediately remedy the defect or deliver a replacement that is free of defects. The CUSTOMER shall support Bitperium in the error analysis and elimination of defects, in particular by specifically describing any problems that occur, providing with comprehensive information, where feasible, and granting the time and opportunity required to remedy the reported defects.
9.3 Remedy of defects
The CUSTOMERS’s rights due to defects are excluded insofar as the CUSTOMER makes or has made changes to the SOFTWARE without Bitperium’s consent. The CUSTOMER’s rights due to defects shall remain unaffected if the CUSTOMER is entitled to make changes, in particular within the scope of exercising the rights in accordance with sec. 536a para. 2 BGB, and if these changes have been carried out professionally and documented in a comprehensible manner. The CUSTOMER shall pay for Services performed by Bitperium for analysis or removal of defects without an obligation of Bitperium in accordance with Bitperium’s usual hourly rates. This applies in particular in cases where a defect cannot be proven, cannot be reproduced or is not attributable to Bitperium.
9.4 Limitation period
The limitation period for defects shall be one year from the provision of the specific SOFTWARE.
10. TERM AND TERMINATION
Unless otherwise agreed in individual cases, the trial period for testing the SOFTWARE begins with the download of the SOFTWARE and usually runs for 30 days. The paid user contract has a term of 12 months and ends without the need for termination.
The right of both parties to terminate without notice for good cause shall remain unaffected.
10.3 Consequences of Termination
The CUSTOMER’s right to use the SOFTWARE shall cease.
11. REMUNERATION, DUE DATE, PAYMENT MODALITIES, PRICE INCREASE AND DELAY IN PAYMENT
Unless otherwise agreed between the parties, the remuneration shall be based on the number of users and on Bitperium’s current price list. The prices are net prices, i.e. excluding applicable VAT.
Billing is carried out via Atlassian Pty Ltd., which is authorised to collect Bitperium’s claims in its own name.
Confidential information may only be used for the purpose of fulfilling the user contract. The contractual partners undertake to treat confidential information as strictly confidential and to take all necessary measures to prevent confidential information from becoming accessible to unauthorized third parties. The contractual partners undertake to make confidential information available only to those third parties who need to know such information (assigned employees, subcontractors, auditors and legal advisors, supervisory authorities). The respective contractual partner shall ensure that the third parties to whom confidential information is made available have undertaken to maintain confidentiality in accordance with this provision prior to disclosure.
The provisions of Clause 10.1 shall not apply to such information with respect to which the other party can prove that
– it was lawfully in its possession prior to the date on which it received the information, without any restriction as to confidentiality;
– he has received it from a third party who was entitled to give him this information without
without any restriction as to confidentiality;
– the information was already in the public domain, i.e. published or generally accessible, at the time it was received;
– the information is required by law, administrative or judicial decision to be disclosed or made available under the terms of this Agreement.
13. DATA PROTECTION
Both contracting parties undertake to comply with the statutory provisions on data protection and will oblige their employees to observe confidentiality.
14.1 No responsibility
Bitperium is not responsible for any damage or other malfunction due to the defectiveness or incompatibility of CUSTOMER’s software or hardware.
14.2 Liability for intent and gross negligence in the case of gratuitous services
Bitperium shall only be liable for services provided free of charge (Section 2.3.) if the infringement of rights is due to gross negligence or intentional conduct on the part of Bitperium.
14.3 Bitperium’s liability for services provided against payment
Bitperium is liable for damages for any legal reason in accordance with the following provisions in the case of the provision of paid services:
- Intent and gross negligence
Bitperium’s liability for damages caused by Bitperium or one of its vicarious agents or legal representatives intentionally or through gross negligence is unlimited in amount.
- Personal injury
In the event of damages resulting from injury to life, body or health, Bitperium’s liability is unlimited in amount, regardless of the degree of fault.
- Organizational fault and guarantee
The liability is also unlimited for damages caused by serious organizational fault of Bitperium and for damages caused by the lack of a guaranteed quality.
- Breach of essential contractual obligations
In the event of a breach of such contractual obligations of Bitperium, the fulfillment of which is a prerequisite for the proper performance of this contract, the breach of which jeopardizes the achievement of the purpose of the contract and the observance of which the CUSTOMER regularly relies on, Bitperium’s liability shall be limited to the amount of the foreseeable damage typical for this type of contract, unless one of the cases mentioned in clauses 13.3 a. to c. applies.
- Liability exclusion
Any further liability of Bitperium is excluded. In particular, liability without fault is excluded.
14.4 Product liability
Liability according to the provisions of the Product Liability Act remains unaffected.
14.5 Contributory negligence
If a damage is due to the fault of Bitperium as well as to the fault of the CUSTOMER, the CUSTOMER must allow his contributory negligence to be taken into account.
14.6 Data loss
In the event of data loss, Bitperium shall be liable within the scope of the above provisions only for the amount that would have been incurred even if the CUSTOMER had properly and regularly backed up the data.
15. Export and import control
15.1 The CUSTOMER is aware that the services under this agreement may be subject to export and import restrictions. In particular, there may be licensing obligations, or the use of the SOFTWARE or associated technologies may be subject to restrictions in certain countries.
15.2 The CUSTOMER shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America as well as all other relevant regulations.
15.3 The performance of the agreement by Bitperium is subject to the proviso that there are no obstacles to performance due to national and international export and import law provisions or any other statutory provisions.
16.1 Place of fulfillment
The place of performance is the registered office of Bitperium.
16.2 Applicable law
This User Agreement is governed by German law, excluding both the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the provisions of the IPR.
16.3 Place of jurisdiction
The place of jurisdiction is Munich, Germany.
16.4 Severability clause
In case one or more of these provisions are or become partially or fully invalid or unenforceable for any other reason, this shall not affect the validity and enforceability of the remaining provisions. In this case, the parties undertake to agree on a legally effective replacement clause which comes as close as possible to the economic objectives of the respective provision.