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“Customer” refers to the entity that has ordered Software as a Service from billwerk GmbH, Mainzer Landstraße 51, 60329 Frankfurt am Main, Deutschland (»billwerk«) or an authorized distribution partner of billwerk by ordering online or by executing the Ordering Document including its annexes (all such documents, as applicable, collectively the »Agreement«).
»Software as a Service« refers to the services rendered by billwerk to Customer based on the use of the billwerk Application Programs such as billwerk.itero by the Customer’s access to such programs via the internet or a cloud infrastructure. The scope and functionalities of such services comprise contract management, invoicing/billing and integration into the payment service providers listed at https://billwerk.io/product/payment-service-provider/. Such services shall also include any required technical support services as set forth in §§ 2 and 3 below rendered to the Customer („Support“), as well as any other services provided by billwerk as defined in the Ordering Document (collectively, the »Services«). For the avoidance of doubt, the Services shall not include any training or consulting services and shall further not include any other professional services (custom development, integration projects, tools and the like) unless expressly referred to in an Ordering Document or separate agreement. The term »Program Documentation« refers to human readable documentation in written form, video tutorials for Users as well as any other materials accessible by web browser without using any developer tools, provided by billwerk a spart of the Services provisioning.
The term »billwerk Application Programs« refers to the software products owned or distributed by billwerk to which Customer is granted access to via the internet and/or as set forth in § 2 para. 2, including Program Documentation, all in their most recent version.
The term »Users« shall mean those individuals authorized by Customer or by any billwerk distribution partners to use the Services.
The term »Data« where related to Customer refers to the data provided by Customer that reside in Customer’s service environment.
The term »Ordering Document« refers to the ordering document signed by the parties.
(1) This Agreement is valid both for the attached Orde-ing Document and any orders placed online. The scope of the Services shall be limited to those set forth in this Agreement.
(2)In case the billwerk Application Programs are accessed via an on-premises data center of Customer or in case Customer wishes to integrate the billwerk Application Programs as an OEM into other software programs or IT solutions, additional provisions will need to be agreed in the Ordering Document or in a separate agreement. Such agreement will be subject to the Customer using the billwerk Application Programs in their most recent version.
(3)Customer shall be obliged to and shall have the responsibility to provide and maintain any suitable hardware and software and access to the internet necessary or desirable to use and have access to the billwerk Application Programs and the Services in accordance with the provisions of this Agreement. In general, any frontend mobile or customized applications, the admin UI and any self-ser-vices centers beyond the billwerk API shall be the responsibility of Customer. Where any third party software tools (connectors, adapters or interfaces) are used, billwerk’s scope shall not include any third party tools, even if such tools are referred to as „billwerk certified and supported“ in the Ordering Document. Furthermore, where any other software or hardware is provided by any third parties such as system integrators or other IT companies and any such software, hardware or services are not provided correctly in time, scope or otherwise, billwerk shall also be relieved from any obligations hereunder.
(4) billwerk’s Support shall consist of the following services:
i. First and second line Support as defined in § 3;
ii. Updates, fixes, security alerts and critical patch updates;
iii. General maintenance releases, releases relating to specific functionalities, updates to the Program Documentation;
iv. Assistance with service requests during usual business hours (CET) on working days but not on Saturdays, Sunday and on public holidays;
v. Grant of online access to https://support.billwerk.com/ allowing Customer to log service re-quests or Support requests online;
vi. General customer service (non-technical issues only) during normal business hours (CET).
(6) billwerk shall use reasonable commercial efforts to generally respond to any Support requests within a maximum of two business days, unless set forth otherwise in the Ordering Document. billwerk shall only be liable for any delay if any binding dates are expressly agreed and marked as such in the Ordering Document, e.g. delivery dates for a migration or certain functionalities.
(7) billwerk reserves the right to amend or change the terms of Support as set forth herein from time to time by observing four weeks prior notice. Such changes or amendments may not have a material negative effect on the Support level, as long as Customer pays any subscription fees or any other agreed remuneration in full and when due.
(8) billwerk shall keep Customer informed on a regular basis about the most recent or upcoming changes to the billwerk Application Programs and their functionalities and releases and shall communicate via E-mail any inter-ruptions or other issues that concern the use of the Services of billwerk by Customer.
(1) SaaS Fees: The subscription fees agreed in the Ordering Document or on the online ordering page (Plans and prices for Subscription Management by billwerk) include the fees for Support hereunder. Customer will not be separately invoiced for any Support.
(2) Technical Contacts: Users as the technical contacts are the sole liaisons between Customer and billwerk for Support relating to the billwerk Application Programs. The technical contacts must have, as a minimum, initial basic billwerk Application Programs product training and, as needed, supplemental training appropriate for a specific role or implementation phase, or in relation to specific functionalities and/or a migration in relation to the billwerk Application Programs, as the case may be, all so as to be knowledgeable enough about the billwerk Application Programs and the interfaces to Customer`s IT environment and in order to help resolve system issues and to assist billwerk in analyzing and resolving Support requests and to itself prioritize Support requests. When submitting a Support request, Customer`s technical contact should have a baseline understanding of the problem being encountered and an ability to reproduce the problem and shall provide billwerk with any information necessary to resolve the Support request. To avoid interruptions in SaaS Support services, Customer must notify billwerk whenever technical contact responsibilities are transferred to another individual.
(3) billwerk may review Support requests logged by Customer`s technical contacts and may recommend specific training to help avoid future Support requests or their causes. The terms of such training shall be agreed separately in a professional services agreement.
(4) Updates of the billwerk Application Programs: »Update« means a subsequent scheduled release of the billwerk Application Programs which billwerk generally makes available to its customers of the Software-as-a-Service at no additional fee. Updates of the billwerk Application Programs do not include any release, option, services or program that billwerk only and exclusively makes available under a separate license. As part of Support, billwerk will provide updates to the billwerk Application Programs during the term of this Agreement when available (as determined by billwerk). billwerk is under no obligation to develop or make available any future services, programs or functionalities relating to the billwerk Application Programs. If an update of a billwerk Application Program is made available to Customer pursuant to these SaaS Support Policies, it shall replace the previous version of the billwerk Application Programs.
(5) First and Second Line Support: billwerk usually renders both “First Line Support” and “Second Line Support” for the billwerk Application Programs directly to the Users entitled to such Support.
(6) First Line Support shall include but not be limited to the following Services: A direct response to Users with respect to enquiries concerning the performance, functionality or operation of the billwerk Application Programs, a direct response to Users with respect to problems or issues with the billwerk Application Programs, a diagnosis, evaluation and/or recommendations as to the resolution of problems or issues with the billwerk Application Programs.
(7) If after reasonable commercial efforts a diagnosis or resolution of problems or issues of the billwerk Application Programs cannot be effected as part of the First Line Support, the User may contact billwerk for “Second Line Support.” Such Second Line Support shall consist of the following Services: A diagnosis and evaluation of issues with the billwerk Application Programs and reasonable commercial efforts to resolve reported and verifiable errors in the billwerk Application Programs so that the billwerk Application Programs functionalities are fulfilled in all material respects as described in the associated Pro-gram Documentation. (8)billwerk will review Support requests logged by Cus-tomer`s technical contacts and may recommend specific organizational and process changes to Customer. In order to determine the scope and response time for the Second Line Support hereunder, any errors shall be categorized as below. The Support requests shall include error reports to billwerk that enable billwerk to allocate each error to one of the below error categories. Each error report should relate to one particular error only to be remedied by one specific Support request (ticket). billwerk reserves the right to change the error category after consultation with Customer should the allocation to a specific error category seem unsuitable.
(9) Error category
1: Software-as-a-Service as a whole unusable due to errors in the billwerk Application Programs (“Blocker”).
(10) Error category 2: The use of Software-as-a-Service is strongly impaired due to errors in the billwerk Application Programs (“Critical”); core functionalities of the supported software are not usable; the consequences can have a serious impact on the Customer’s business.
(11) Error category 3: The use of Software-as-a-Service is impaired due to errors in the billwerk Application Programs (“Major”); major errors impair the use of the supported software; the Customer’s business may be impaired by it.
(12) Error category 4: The use of Software-as-a-Service is slightly impaired due to errors in the billwerk Application Programs (“Minor”); less important parts of the Services are affected by the problem,or a solution is available for avoiding major consequences. A minor impairment of the Customer’s business is possible.
(13) billwerk will allocate its resources and response times in line with the above error categories and prioritize its activities accordingly.
(14) If Customer is of the opinion that Customer has not received quality or timely assistance in response to a Support request critical to Customer’s business or in case Customer urgently needs to communicate important Support related business issues to billwerk, Customer` technical contact may escalate the Support request by contacting billwerk and requesting that the Support request be escalated. For Support requests so escalated, the billwerk support team member will engage the billwerk Support request escalation manager who will work with Customer to develop an action plan and allocate the appropriate billwerk resources. If the issue underlying the Support request remains unresolved, Customer may contact the billwerk service request escalation manager to review the Support request and request that it be escalated to the next management level within billwerk as required. To facilitate the resolution of an escalated Support request, Customer is required to provide contacts within its organization that are at the same management level as that within billwerk to which the Support request has been escalated.
(1) Upon billwerk’s acceptance of Customer`s order and for the term of the Services, billwerk grants to Customer the nonexclusive, non-assignable, royalty-free, worldwide limited right to use the Services solely for Customer`s own business operations and subject to the terms of the Agreement.
(2) Customer may allow its Users to use the Services for this purpose and Customer shall ascertain that its Users comply with the license restrictions of this Agreement.
(3) billwerk has no delivery obligation of and will not ship any physical copies of the billwerk Application Programs to Customer as part of the Services. Customer acknowledges that the Services and the billwerk Application Programs are only accessible via the internet or on Customer`s premises, as applicable. Customer agrees that it does not acquire under this Agreement any license to the billwerk Application Programs themselves and that these billwerk Application Programs will only be used as part of the Services.
(4) Upon termination of the Agreement or the Services thereunder, Customer`s right to access or use the billwerk Application Programs specified in the Ordering Document and Customer`s right to use the Services shall terminate.
(5) The Program Documentation or the Ordering Document may specify third-party hardware or software that may be helpful or necessary for the use of certain billwerk Application Programs. billwerk hereby points out that Customer`s right to use such third-party technology is exclusively governed by the terms of the third-party license agreement with such third-party licensor and not by this Agreement.
(6) Customer may not:
i.remove or modify any program markings or any notice of billwerk’s or its licensors’ proprietary rights;
ii.make the Services available in any manner to any third party for use in the third party’s business operations (unless expressly permitted for the specific license of Customer);
iII. modify, make derivative works of, disassemble, reverse compile, or reverse engineer or translate any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials);
iv. disclose results of any Services or program benchmark tests relating to the billwerk Application Programs to any third parties; and
v. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, or the billwerk Application Programs available, to any third party other than as expressly permitted under the terms of the Agreement.
(7) The rights granted to Customer under this Agreement are also conditioned on the following:
i.except as expressly provided herein, the Services may neither in whole nor in part be copied, reproduced, distributed, republished, downloaded, displayed, posted or transferred in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
(8) Customer undertakes to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
(9) In case billwerk renders any customized programming or software development services to Customer, any intellectual property rights (including copyrights and patent rights) and title thereto shall be vested in billwerk. This shall expressly comprise and include all intellectual property rights (including copyrights and patent rights) and title to all source code and object code relating to any software so developed and shall further include any algorithms, analyses, diagrams, tests, reports and documentation relating thereto. billwerk grants to Customer a royalty free worldwide perpetual non-exclusive and non-transferable license to commercially use any such developments within Customer`s group of companies
(1) billwerk warrants – subject to Customer`s compliance with its obligations under §§ 2 and 4 above -that the Services will be rendered in accordance with good engineering practice and in line with the standard of care and quality in place at professional IT and software companies applicable at the time when rendering the Services.
(2) If the Services provided to Customer for any given month during the Services term were not performed as warranted, Customer must provide written notice to billwerk no later than five business days after the last day of that particular month or within such other period stated in the Ordering Document. All claims not made in writing and received by billwerk within the time period specified above shall be deemed waived and be forfeited.
(3) In the event of a breach of the foregoing warranty billwerk ́s sole obligation shall be to re-perform the defective Services and to correct any existing non –conformity. Re-performance may also be rendered by a recommendation to the Customer how the effects of any defective Services can be eliminated or significantly be reduced in a way reasonably acceptable to Customer under this Agreement. The warranty period shall be twelve months from the rendering of any Services and any warranty claims shall expire and shall be statute–barred thereafter.
(4)Subject to Customer`s compliance with §§ 2 and 4 above and para. 2 above, the above Services warranty shall also apply in case of any defects of any billwerk Ap-plication Programs in case such billwerk Application Programs do not perform in all material respects in accordance with the Program Documentation. Due to the nature of the Software-as-a-Service business model the warranty for the billwerk Application Programs shall be included in and be considered part of the warranty for Services and there shall not be any warranty as to any defects or deficiencies of the billwerk Application Programs used by Customer hereunder unless this materially and adversely affects the availability of the Services as in more detail specified in para 5 below.
(5)The Services shall in general be available and operational (“Availability”). The Availability of the Services shall be 99.5 % (calculated on a monthly basis for any given month). In general, times during which any updates, upgrades or new releases to the billwerk Application Programs are installed or implemented, shall also be considered as times of Availability, provided that billwerk has informed Customer reasonably in advance. Furthermore, times during which errors of categories 3 and 4 as defined in § 3 above exist shall also be considered times of Availability. Furthermore, where Customer is not in compliance with any supplies or services necessary for billwerk or any third party data processing center contracted by billwerk to render the Services shall also not be considered times of non-Availability. Periods of time during which maintenance works are performed to ascertain the operation of the billwerk Application Programs and the Services –either at billwerk itself or at any subcontractors of or service providers of billwerk –shall be deemed as times of Availability. Services Periods caused by events of Force Majeure as defined in § 15 prevail, shall also be deemed times of Availability.
(6) If the Availability of the Services is not met for a specific month, Customer will be entitled to an adequate reduction of the subscription fees during times of non-Avail-ability. Further claims of Customer for any damage or loss shall be excluded.
(7) Such warranties do further not apply to any defective Services resulting from misuse, casualty loss, use or combination of the Services or the billwerk Application Programs with any products, hardware or services furnished by any third party, any modification of the billwerk Application Programs not made by or for billwerk, or any use of the billwerk Application Programs by Customer in contradiction to the terms of this Agreement, in particular § 4 above or in case of non-compliance with Customer`s obligations set forth under § 2 above. § 6 Use of the Services for Trial and Evaluation Purposes in Testing Systems billwerk agrees –as in more detail specified under https://sandbox.billwerk.com – that Customer may free-of-charge use and have online access to certain Services in testing systems for evaluation and nonproduction purposes only, subject to the terms and conditions of this Agreement. Any personal data, if any, that are entered into or imported by Customer into such testing systems, are to be fully anonymized by Customer prior to their entry in such a way that any subsequent reference to a specific person will be excluded and will be rendered technically impossible. Customer undertakes not to enter any real data of any clients or individuals into the testing systems but to work with “dummy data” only that have no relation to any real persons. For testing purposes only data of Customer employees or unmistakable “dummy data” may be used. Such Services for trial and evaluation purposes are provided “as is”, shall be rendered, and the testing systems shall be used by Customer entirely at Customer`s own risk and billwerk does neither give any warranties for such Services nor shall billwerk render any Support relating to such Services. The free-of-charge trial and evaluation purposes use of the Services shall be limited to a period of thirty days. In case of a termination of this Agreement billwerk reserves the right to delete any data entered into such testing systems by Customer.
billwerk agrees – as in more detail specified under https://sandbox.billwerk.com – that Customer may use and have online access to certain Services in testing systems for evaluation and nonproduction purposes only, subject to the terms and conditions of this Agreement. Any personal data, if any, that are entered into or imported by Customer into such testing systems, are to be fully anonymized by Customer prior to their entry in such a way that any subsequent reference to a specific person will be excluded and will be rendered technically impossible. Customer undertakes not to enter any real data of any clients or individuals into the testing systems but to work with “dummy data” only that have no relation to any real persons.
Such Services for trial and evaluation purposes are provided “as is”, shall be rendered, and the testing systems shall be used by Customer entirely at Customer`s own risk and billwerk does neither give any warranties for such Services nor shall billwerk render any Support relating to such Services. The trial and evaluation purposes use of the Services shall be limited to a period of thirty days.
(1) If a third party brings a claim against either Customer or billwerk stating that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either Customer or billwerk to the other party and used by the other party, infringes such third party claimant`s intellectual property rights, the party providing such Material, at its sole cost and expense, will defend the party that has received the Material against the claim and indemnify and hold such party from any resulting damages, liabilities, costs and expenses, provided that the party that has received the Material complies with the following obligations: -The party that provided the Material is to be notified promptly in writing aboutthe claim, in no case later than 15 days after receipt of the claim; and-the party that provided the Material gives the other party sole control of the defense and any settlement negotiations and provides it with the information, au-thority (power of attorney), and assistance the other party needs to defend against or settle the claim at its discretion.
(2) The indemnifying party shall use all commercially reasonable resources to inform, authorize and support the other party in the defense, settlement and negotiation of the third-party claims.
(3) billwerk is under no obligation to indemnify Customer to the extent that a third-party infringement claim is based upon the combination of any Material with any products or services provided by third parties. billwerk furthermore is under no obligation to indemnify Customer for infringement caused by Customer`s actions against any third party if the Services as delivered and used in accordance with the terms of the Agreement would not otherwise have infringed upon any third-party intellectual property rights.
(1) Services provided under this Software-as-a-Service agreement shall be provided for the period defined in the Ordering Document or as set forth on the online ordering page unless earlier terminated in accordance with the Agreement. At the end of the Services term, all rights to access or use of the Services, including the billwerk Application Programs listed in the Ordering Document or on the online ordering page, shall end. Unless otherwise stated in the Ordering Document the Agreement can be terminated by each party by giving one month ́s notice and the Services term shall renew for periods of one month each in case the Agreement is not terminated by either party.
(2) If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Ordering Document under which the breach occurred for cause. If billwerk terminates the Ordering Document as specified in the preceding sentence, Customer must pay within 30 days all amounts which have accrued prior to such effectiveness of termination, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. Customer agrees that if Customer is in default under the Agreement, Customer may not use the Services ordered.
(3) In addition, billwerk may immediately suspend Customer`s registration, keys, password, account, and access to or use of the Services if Customer fails to pay billwerk as required under the Agreement and does not effect the payments within ten days following notice to do so, or if Customer breaches any obligation pursuant to §§ 2, 4, 7, 13,16 or 17 of this Agreement. billwerk may terminate the Services hereunder if any of the foregoing is not cured within 30 days after billwerk’s initial notice thereof. Any suspension by billwerk of the Services under this paragraph shall not release Customer from its obligations to make payments as set forth in this Agreement.
(4) Upon Customer`s request, and for a period of up to 60 days after the termination of the applicable Ordering Document, billwerk may permit Customer to access the Services solely to the extent necessary to retrieve a file of Customer`s Data in the Services environment. Customer agrees and acknowledges that billwerk has no obligation to retain Customer`s Data and that such Data may be irretrievably deleted after expiry of a period of 120 days thereafter.
(5)Provisions that survive termination or expiration of this Agreement are §§ 7, 11, 12 and 14.
Customer agrees to pay for the Services ordered as set forth in the Ordering Document or on the online ordering page; all fees due are non-cancelable and the sums paid are nonrefundable. Customer may only set off any claims of Customer against billwerk`s claims that are either un-contested or subject to a final decision by a court-of-law. Customer agrees to pay any sales, value-added or other similar taxes, duties and levies imposed by applicable law that billwerk must pay on the Services, except for taxes based on billwerk’s income. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice in their full amount without any deductions.
(1) By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). The parties each agree to keep any Confidential Information and in particular the contents of this Agreement and all information disclosed to each other in connection with the Services confidential and not to disclose them to any third parties except where required for the performance of obligations under this Agreement.
(2) A party’s Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the other party;
(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
(d) is independently developed by the other party.
(3) Each party agrees to hold the other Party’s Confidential Information in confidence and not to disclose them to any third parties for a period of five years from the date of disclosure. Also, each party agrees to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Nothing shall prevent either party from disclosing any Confidential Information in any legal proceeding arising from or in connection with the Agreement or to a governmental entity as required by law.
(1) If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and in full force and such term shall be replaced with a term consistent with and coming as close as possible to the purpose and intent of the Agreement. Any general terms and conditions used by Customer shall not apply. It is expressly agreed that the terms of the Agreement, including any billwerk Ordering Document, shall supersede the terms of any purchase order or other non-billwerk document used by Customer and no terms other than those set forth in this Agreement shall apply to the Services ordered.
(2)Any changes to or amendments of the Agreement shall only be valid when made in writing. This shall also apply to a waiver regarding the written form requirement.
(1) billwerk`s liability for damage or loss shall be limited to such damage or loss reasonably foreseeable.
(2) This limitation shall not in apply in cases of gross negligence or willful misconduct and shall not apply in cases of any liability pursuant to mandatory law.
(3)Customer shall have no rights and remedies other than those expressly set forth in this Agreement.
Export control laws and regulations of Germany and the EU and any other relevant local export control laws and regulations apply to the Services of billwerk. Customer agrees that such export control laws govern access to and the use of the Services. Customer agrees to comply with all such export control laws and regulations. Customer agrees and undertakes that no data, information, software programs and/or materials resulting from the Services will be exported, directly or indirectly, in violation of these laws, and no third party shall be granted access to or be enabled access to them in violation of such export control laws or no such data etc. as above will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weap-ons proliferation, or development of missile technology.
(1) billwerk is an independent contractor and it is agreed that no partnership, joint venture, or agency relationship exists between billwerk and the Customer. Each party will be responsible for paying its own employees, including employment related taxes, social security, benefits and insurance.
(2) Customer shall obtain at its sole expense any rights and consents from third parties necessary for billwerk and its subcontractors to perform the Services under this Agreement.
(3) The Agreement is governed by the substantive and procedural laws of Germany without regard to its rules on conflicts of laws and to the exclusion of CISG. It is agreed to submit to the exclusive jurisdiction of, and venue in, the competent courts in Frankfurt am Main, Germany in any dispute arising out of or relating to this Agreement that cannot be settled amicably.
(4) The transfer or assignment of this Agreement or any rights therein to any third party, shall require the prior written consent of the other party.
(5)Except for actions for nonpayment or breach of billwerk’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one year after the cause of action has accrued and shall be statute-barred by such point in time.
(6)billwerk may audit Customer`s use of the Services. Customer agrees to cooperate with billwerk’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer`s normal business operations. Customer agrees to pay within 30 days of written notification any fees applicable to the use of the Services in excess of Customer`s rights and license hereunder and in the Ordering Document. If the fees are not paid within such time, billwerk may suspend the Services and/or in case the fees are not paid after a payment reminder upon a further 30 days` notice billwerk may terminate the Agreement for default. It is agreed that the parties shall otherwise each bear their own internal third-party cost incurred in connection with the audit.
Neither party shall be responsible for failure or delay of performance if caused by any Force Majeure events, such as but not limited to an act of war, hostility, or sabotage; hacks or cyberattacks; act of God; fire, flood, strikes or labor disputes, electrical, internet, or telecommunication outage or downtime beyond the reasonable control of the obligated party; government restrictions (including the denial or cancellation of any export or other license); or any other event outside the reasonable control of the obligated party (“Force Majeure”). The parties will use reasonable efforts to mitigate the effect of a Force Majeure event. If such Force Majeure event continues for more than 30 days, each party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer`s obligation to pay for the Services.
(2) Attached as Annex 1 to this Agreement is the billwerk Order Processing Agreement which can be accessed and viewed under https://billwerk.io/download-dpa/ the contents of which is hereby approved and agreed by Customer by signature of this Agreement. The billwerk Order Processing Agreement will from time to time be amended to either reflect changes in law or regulations or to reflect any changes subsequent to its conclusion that would materially affect the value of the Services or the remuneration, respectively, of which billwerk shall transparently in-form Customer. In case Customer does not object to such changes within a period of six weeks following receipt of such information, the billwerk Order Processing Agreement shall then be deemed approved by Customer. In case Customer objects to such changes, the prior version of the billwerk Order Processing Agreement shall remain in full force and effect.
(3) billwerk reserves the right to provide the Services from various locations, and/or through use of subcontractors and service providers, with nor geographical limitations to apply. Unless otherwise expressly agreed, all server locations for the billwerk Application Programs are located within the European Union.
(4) billwerk shall carry out data processing in the form of order processing (Auftragsverarbeitung) pursuant to Art. 28 of the EU General Data Protection Regulation (GDPR). Customer undertakes to obtain any third-party consents related to its use of the Services and billwerk’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer`s Data.
(5) In case of any changes to the firm name, the invoice address or tax ID of Customer, an authorized employee of Customer will inform billwerk promptly, but no later than seven days prior to issue of the next billwerk invoice which is to reflect the changed coordinates of Customer.
(6) In case of a merger or amalgamation of Customer into or with another entity or a joint venture company or in case of a spin-off of Customer or a sale of the material assets of Customer to a third party, an authorized employee of Customer shall inform billwerk promptly so as to seamlessly transfer this Agreement to the new entity or conclude a new agreement replacing this Agreement with such entity.
Customer agrees not to use the Services itself nor permit any third parties the useof the Services for any purpose that may:
(a) willfullyor grossly negligent violate any rights of third parties,
(b) involve the publication of any material that is false, hateful, defamatory, vulgar, offensive, harassing or obscene,
(c) violate privacy rights or promote bigotry, racism, hatred or harm or discriminate against certain people,
(d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters,
(e) constitute an infringement of third-party intellectual property or other proprietary rights, or
(f) otherwise violate applicable laws, ordinances or regulations. billwerk reserves the right to remove or disable access to any material that violates the foregoing restrictions when becoming aware of any such violations. In this case, billwerk shall have no liability whatsoever towards Customer in the event that billwerk takes such action. Customer agrees to defend and indemnify and hold harmless billwerk against any claim arising out of a breach of Customer`s above obligations.
(1) billwerk may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve any billwerk Support requests. The Tools will not collect, report or store any of the Data residing in the service production environment, except as necessary to troubleshoot Support requests or other problems in the Services.
(2) Data collected by the Tools (excluding production data of Customer) may also be used to assist in managing billwerk’s product and service portfolio and for license management. Customer agrees that
1. Customer may not access or use the Tools, and
2. Customer will not use or restore the Tools from any tape backup following termination of the Agreement.
billwerk may compile and evaluate statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate or reveal Customer`s Data, Customer`s confidential information or include or reveal Customer`s company name or identity. billwerk retains all intellectual property rights in such information.
As part of billwerk`s Application Programs billwerk will provide an application (self-service-application) which allows the Customer to build its own signup pages with a functionality permitting payment via credit card. The cardholder data is transmitted directly from the browser of the user to the payment-service-provider (PSP) selected by such user. billwerk shall be responsible for the security of this application as well as for the underlying infrastructure delivering this application. billwerk is PCI-DSS compliant.
The Services may enable Customer to add links to websites and may provide Customer access to content, products and services of third parties (including users, advertisers, affiliates and sponsors of such third parties). billwerk does not assume any responsibility for any third-party websites or third-party content provided on or through the Services and Customer bears the full responsibility and all risks associated with the access and use of such websites and third-party content, products and services.
Customer agrees that billwerk may refer to Customer as a customer of the Services of billwerk. Customer further agrees that billwerk may use Customer`s logo and a short profile of Customer in press releases or in any sales or marketing presentations or on billwerk.com as well as on further domains used by billwerk.