Terms of use of the Software-as-a-Service surround-view


Software Services Agreement – surround-view
Website Edition

V2.0e 26th October 2020

This Software Service Agreement (the „Agreement“) is a legal agreement between HRDigital GmbH („HRDIGITAL“) and you, or the legal entity you represent („Customer“) which governs the provision and use of the Software-as-a-Service surround-view („SaaS“ or „Software Services“). surround-view consists of websites (* .surround-view.com), including a browser-based version of surround-view, as well as a mobile app version that can be installed on Android and Apple mobile devices. The terms “Software Services” and “SaaS” used herein include both websites and mobile apps.

By using the Software Services, Customer agrees to the terms of this agreement. The agreement becomes effective on the date on which the Customer uses the Software Services for the first time, unless agreed otherwise in writing (the “Effective Date”).
If you are using the Software Service on behalf of an organization, and HRDIGITAL and your organization have an agreement in place, the terms and conditions of such signed agreement shall prevail over the terms of this Agreement.

1. Right of use

1.1 Grant of Rights. HRDIGITAL will provide the Software Services to the Customer, Customer’s designated employees and third parties entitled to use the Software Services („Authorized Users“) during the Term of this Agreement. For the number of subscriptions purchased, HRDIGITAL grants the Customer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable right to access and use the Software Services during the Term of the Agreement, provided that the Customer complies with this Agreement.

1.2 Evaluation / Demo / Test Accounts. If the Software Services are provided to Customer for evaluation, HRDIGITAL grants Customer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable, time-limited right to use the Software Service for evaluation prior to a potential purchase, during the evaluation period, subject to Customer’s compliance with this Agreement. Notwithstanding any other provisions contained herein, the Software Services are provided „as is“ during an evaluation, without any indemnification, liability or warranty (expressed or implied). Except to the extent such terms conflict with the prevailing specific evaluation terms set forth in this Section 1.2, all other terms of this Software Services Agreement shall apply to the Software Services under an Evaluation Subscription.

2. Obligations of the customer

With regards to the Software Services, Customer shall (i) ensure that Customer and Authorized Users comply with the terms and conditions of this Agreement; (ii) not provide, make available to, or permit individuals other than Authorized Users, to use or access the Software Services; (iii) not resell, sublicense, rent, or lease the Software Services to third parties; (iv) not decompile, disassemble, reverse engineer, modify, create derivative works, or in any other way access the source code, or attempt to do any of the foregoing; (v) not remove any proprietary notices on the Software Services; (vi) be responsible for the correctness, quality, integrity and legality of the Customer Data; (vii) not use the Software Services to transmit or store infringing, unlawful, offensive or tortious material; (viii) not use the Software Services to transmit or store malicious code; (ix) not attack or disrupt performance and integrity of the Software Services.

3. Duration and termination

3.1 Duration. This Agreement will begin on the Effective Date and will (unless terminated earlier in accordance with Section 3.2) continue until the end of the period specified in the applicable offer or purchase order for the Software Services (the “Initial Subscription Period”). It shall automatically renew for additional periods of the same duration as the Initial Subscription Period (each, a “Renewal Subscriptions Period”; collectively with the Initial Subscription Period, the “Term”). Unless agreed otherwise the Initial Subscription Period shall be one (1) year.

3.2 Termination. Each party may terminate this Agreement for convenience with a thirty (30) day prior written notice to the end of the then-current monthly or annual (depending on which has been contractually agreed) Subscription Period. Each party may terminate the Agreement for cause in accordance with applicable law. In case the cause is due to unpaid Fees by Customer, HRDIGITAL may terminate this Agreement only after having given a prior warning with a thirty (30) day period to remedy the breach, and if full payment of outstanding amounts has not been made within such warning period.

4. Fees & payment

4.1 Invoices. Invoices are due immediately and payable within fourteen (14) days from the invoice date. Invoices for any Renewal Subscription Period are based on the then valid HRDIGITAL standard prices, unless otherwise agreed in writing. If Customer fails to pay in accordance with the agreed payment terms, HRDIGITAL shall be entitled (i) to charge interest for late payment in accordance with the law and/or (ii) to suspend the Software Service until Customer has paid the outstanding amounts. Unless otherwise agreed, all prices are in Euros and all payments are payable in Euros. Unless explicitly defined otherwise in this agreement, all fees are non-refundable.

4.2 Taxes. Fees are net prices, i.e. exclusive of taxes, and Customer shall pay or reimburse HRDIGITAL any related sales taxes, VAT (USt(MwSt.) or similar taxes.

5. Confidentiality

„Confidential Information“ shall be any information disclosed by one party to the other party, which the disclosing party designates as confidential or which due to its nature will typically be seen as confidential information. The receiving party shall: (i) not disclose, share or make available Confidential Information to third parties unless allowed in accordance with this Agreement; (ii) make sure employees and subcontractors having access to Confidential Information are bound by adequate confidentiality obligations; (iii) use Confidential Information only in accordance with this Agreement and for the purposes it was disclosed for. These restrictions shall not apply to the extent the Confidential Information (i) was public available at the time of disclosure; (ii) became publicly available after it was disclosed to the receiving party without breach of this Agreement; (iii) was known to the receiving party prior to receiving the Confidential Information from the disclosing party; (iv) was independently developed by the receiving party without breaching this Agreement.

Confidential Information may be disclosed by the receiving party to public authorities to the extent the receiving party is obliged to do so in accordance with applicable law.

6. Customer Data

HRDIGITAL acknowledges and understands that Customer’s data is very important for Customer. Customer’s data uploaded by Customer and its’ Authorized Users (the “Customer Data”), which is stored and processed via the Software Services (the “Customer Data”) shall be confidential in accordance with Section 5 and will always remain Customer’s sole and exclusive property.

Privacy-by-design was a key design principle for surround-view, and HRDIGITAL has very limited access to Customer’s Data, as we believe this is the best possible protection of Customer data. Feedback given by means of the Software Services to Authorized Users is not being read or checked by HRDIGITAL when feedback is given. HRDIGITAL cannot be responsible or liable for such feedback or consequences of its submission to Authorized Users or other recipients.

Details about the processing of data can be found in the Privacy Policy, as well as the Data Processing Agreement entered into between Customer and HRDIGITAL, which shall apply in addition to this Agreement to address data protection and security requirements, in particular with regards to the EU General Data Protection Regulation (GDPR).

Customer agrees that HRDIGITAL collects and tracks technical and related information about the use of the Software Services by Customer and Authorized Users, including, but not limited to, Customer’s IP addresses, the hardware and software used by Customer and various usage statistics that may be used to support the installation of new versions of the software, the provisioning of services, research and development, billing and marketing. Data provided by Customers and Authorized Users in connection with the use of the Software Services, including usage data and feedback data, may be used by HRDIGITAL in anonymous form during and after the Term of the Agreement.

Back-ups of Customer Data are done by HRDIGITAL’s cloud service provider (currently Microsoft Azure) according to their standard processes as configured by HRDIGITAL. This data is deleted no later than three (3) months after the Term of this Agreement.

7. Proprietary Rights

The Software Services are provided as a service. Use of the word “purchase” in relation to the Software Services shall not imply any transfer of ownership. Except for the rights expressly granted by HRDIGITAL to Customer in Section 1 (“Right of Use”) of this Agreement, Customer acknowledges and agrees that, regarding the relationship between Customer and HRDIGITAL, all rights, title and interest, including all patent, copyright, trademark, trade secret, intellectual property and other proprietary rights, arising out of or related to the provision of the Software Services belong exclusively to HRDIGITAL, other than the Customer Data. HRDIGITAL is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, perpetual and irrevocable license to use or incorporate into its products and services any enhancement suggestions or requests, recommendations, information or other feedback provided by Customer or its’ Authorized Users with regards to the Software Services. All rights not expressly granted under this Agreement are reserved by HRDIGITAL.

8. Warranty

HRDIGITAL warrants to Customer that, during the Term of the Agreement, the Software Services are performing substantially in conformance with the product description shared at the time of the initial purchase.
The Software Services, and all other products and services provided on behalf of HRDIGITAL under this Agreement (including hosting services provided by third parties) are provided “as-is” without any express or implied representations or warranties. Except as explicitly set forth in this Section 7, HRDIGITAL disclaims any representations and warranties (whether expressed, implied or statutory), to the extent permitted by applicable mandatory law. In particular, HRDIGITAL disclaims any representations or warranties for a particular fitness for purpose, for the condition, value or quality of the Software Services or any other service, information or material provided under this Agreement. This includes if the Software Services, other services, information or materials are accurate, complete, uninterrupted or error-free. HRDIGITAL also specifically disclaims any responsibility for third party products and services with which customer may use the Software Services. Customer is aware and acknowledges that HRDIGITAL may discontinue or change features of the Software Services from time to time in its sole discretion.
Each party warrants that the person signing this Agreement or a purchase order on the party’s behalf has been duly authorized and empowered to enter into this Agreement.

9. Limitation of liability

HRDIGITAL shall be liable for all damages caused by wilful misconduct or gross negligence, without any exclusions or limitations. HRDIGITAL shall also be liable without exclusions or limitations for all damages to life, body or health of humans directly caused by HRDIGITAL’s actions. Other than for these damages defined in the preceding sentences of this Section 8, and to the extent permitted in accordance with applicable law, (i) HRDIGITAL shall not in any way be liable for any indirect, incidental or consequential damages (including in particular lost profit, lost revenue, unrealized savings or cost reductions, lost or corrupted data, loss of goodwill, equipment failure or malfunction) resulting out of or in connection with this Agreement, the Software Services, or any other services or products provided hereunder, regardless of the legal basis such claim may be based on (e.g. contract, statute, tort) and regardless if HRDIGITAL has been noticed by Customer of the possibility of such damage; and (ii) the total liability of HRDIGITAL to Customer during the Term shall be limited to the total amount paid by Customer to HRDIGITAL under this Agreement during the twelve (12) months prior to the damaging event.

surround-view allows authorized users of the customer to customize the system-generated emails within a specified framework. Any technical, content or design customization made to it by the customer is the sole responsibility of the customer. HRDigital is not liable in any way for these customizations.

10. No exclusivity

Nothing in this Agreement creates an exclusive relationship. HRDIGITAL is not in any way restricted in providing Software Services or similar services to other customers. Customer acknowledges that HRDIGITAL is free to use data, information, techniques, methodologies, algorithms, forms, designs, layouts or results of any of the products or services provided by HRDIGITAL under this Agreement in providing products or services to other customers.

11. Assignment

Neither party may assign this Agreement to a third party without the prior written consent of the other party. Any attempted assignment without consent shall be null and void. Neither party shall unreasonably withhold its consent to such assignment; in particular the parties shall generally not object to assignments within the same company group.

12. Final Agreement

13.1 Change of Terms. The terms of this Agreement may not be changed by unilateral declarations of the Customer by means of orders or in any other text form, unless HRDIGITAL has expressly agreed to such changes in writing.

13.2 13. Severability. Other than a written Agreement signed by duly authorized representatives of both parties, this Agreement constitutes the complete and exclusive agreement between the parties and supersedes all prior agreements or understandings, whether in written, oral, electronic, or other form, relating to the subject matter hereof. Any terms and conditions on a purchase order of the Customer are not applicable and do not become part of the Agreement if not confirmed in writing by HRDIGITAL.

13. Severability

No waiver shall be effective unless declared in writing and signed by the party waiving a right or claim.

In the event that any provision of this agreement is declared void, invalid or otherwise unenforceable by a competent court, the rest of this Agreement shall not be affected, and the void, invalid or unenforceable provision shall be substituted with a valid and enforceable term that gets as close to the intent and effect of such invalid or unenforceable provision as permitted in accordance with applicable law.

14. Export restrictions

Customer agrees that it will not make the Software Services or any product or materials delivered under this Agreement available to users in countries, which are subject to applicable EU or US embargo, including in particular designated denied persons or prohibited entities (“Denied Parties”). Customer will comply with all applicable export control legislations, including the respective US and EU regulations.

15. Applicable law and place of jurisdiction

This Agreement shall be construed in accordance with and is governed by the laws of Germany, excluding its’ conflict of law provisions. All disputes arising out of or in relation to this Agreement, which cannot be resolved amicably between the parties, shall be referred to the competent court in Düsseldorf, Germany.