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General Terms and Conditions for bohris.cloud

ESK GmbH

Version 06/2020

These Terms of Use apply to the use of software applications based on Software-as-a-Service (SaaS) from ESK GmbH, Dortmund, Germany (hereinafter referred to as "Provider") by the Customer (hereinafter also referred to as "User"; Customer and Provider hereinafter jointly referred to as "Parties" and individually referred to as "Party").

§ 1 General information

ESK provides the customer with the software product "bohris.cloud" exclusively on the basis of these terms and conditions. Deviating conditions of the customer shall not become part of the contract even if we do not expressly object to them in individual cases or if the delivery/service is carried out. Any contractual offers made by the customer with reference to his terms and conditions are hereby rejected.

§ 2 Subject matter and conclusion of the contract

  1. The subject matter of the contract is

    1. the provision of the product "bohris.cloud" for the documentation and visualisation of welldata as a software-as-a-service (SaaS model) for use by the customer within the framework of the functionalities,
    2. the storage space required for this and
    3. the granting or brokering of rights of use to the service by the provider against payment of the agreed fee.
  2. Upon the customer's order, which is made by selecting a price model on our online platform, ESK grants the customer the simple, non-sublicensable and non-transferable right to use the software product bohris.cloud for the documentation and visualization of drilling data for the duration of the contract. The customer acknowledges that the software is a protectable computer program within the meaning of § 2 para. 1 no. 1, § 69 a UrhG and that the provider is the author within the meaning of §§7, 69 b UrhG. The customer undertakes to use the software only for the intended purpose of the contract. A claim to the surrender of the source code is excluded.The source code shall remain a trade secret of ESK protected by copyright. The customer shall not be entitled to reproduce, transfer, further license or process the software. If the customer violates any of the above provisions, all rights of use granted under this contract shall immediately become invalid and shall automatically revert to ESK. In this case, the customer must cease using the software immediately and completely.
  3. The Provider shall make the Service available in the SaaS model (Software-as-a-Service) by remote access. This is neither made available to the customer for his own permanent storage nor is the customer entitled to make it accessible himself or to operate a computer centre.
  4. The Provider owes the availability of the Service. The customer is solely responsible for fulfilling the system requirements.
  5. The Provider is only responsible for the proper functioning of his systems up to the Internet nodes of his computer centre.
  6. The realization of an interface integration to the customer's existing system landscape is not subject to the terms of usebut requires a separate written agreement between the parties.
  7. The Provider is entitled to provide the services through third parties (including affiliated group companies of the Provider) as subcontractors.
  8. The Provider shall provide and install updates to the Service and carry them out as required.
  9. The Provider shall provide the Customer with documentation for the Service in the current version in electronic form during the term of the contract.

§ 3 Data storage

  1. In accordancewith statutory provisions (in particular the German Tax Code, HGB), we are obliged to store the contractual data.
  2. The customer hereby agrees that anonymised analyses, reports and statistics produced as part of the order may also be used for ESK's own purposes.
  3. Within the framework of the conclusion of the contract, the customer hereby consents to our storing further data on his behalf which go beyond the statutory provisions. This includes all data in connection with the performance of the contract. We reserve the right to delete this data without prior notice after a period of five (5) years in which no further use of the data has taken place. In the online platform, the customer is entitled to delete the data independently at any time.

§ 4 Prices

  1. The prices stated on our online platform at the time of the order shall apply to all deliveries and services.
  2. Our prices are net prices plus applicable sales tax (currently 19%) and other taxes, duties and customs duties if the Provider is obliged to pay. The user is obliged to inform the Provider in writing or in text form within 14 days of conclusion of the contract at the latest whether such taxes and duties are incurred or, if so, to inform the Provider of the most economically advantageous and legally permissible course of action under tax law.
  3. The customer shall pay the Provider the fees agreed in the order.
  4. Payment is due 14 days after receipt of invoice by the customer.
  5. The prices quoted on the online platform are subject to annual indexation according to the Consumer Price Index (CPI) for Germany (Federal Statistical Office). The start of the basic indexing is always 1 January of each year. A negative development in the CPI is not taken into account; in this case, no price increases are made.
  6. All payments made by the Customer to the Provider under this Agreement will be made without deductions or retentions. If such deduction or withholding (including but not limited to cross-border withholding taxes) on a payment is required by law, Customer shall be obliged to clarify and notify Provider in a timely manner of all legal procedures enabling the net amount received by Provider to correspond to the net amount due under this Agreement.

§ 5 Default of payment

  1. The user contract is concluded for an indefinite period of time. The period of notice shall be three months to the end of the year, but at the earliest after expiry of the minimum term of 24 months. If the contract is not terminated in time, the contract is automatically extended by 12 months. Notice of termination must be given in writing.
  2. The contract may only be terminated by either party extraordinarily for good cause. An extraordinary reason for termination exists in particular if the customer does not fulfil his obligations to cooperate according to § 4 paragraphs 2 and 6 or also if the customer infringes the rights of use of the provider by using the software beyond the extent permitted according to this contract and does not remedy the infringement within a reasonable period of time following a warning from the provider.
  3. If a termination is made for a reason for which the Provider is not responsible, the Provider shall receive 100% of the agreed remuneration for the services not yet provided without proof in addition to the full remuneration for the services already provided (deductions for saved expenses are already taken into account; the proof of higher or lower saved expenses remains unaffected).

§ 7 Duties and responsibilities of the user

  1. The customer is obliged to create the necessary system requirements.
  2. The use of the platform requires a successful registration of the customer. The prerequisite for registration is that the customer concerned fills in the mandatory fields shown on the electronic form on the platform and transmits them to the platform operator.
  3. The following are entitled to register
    • natural persons of full age and unrestricted legal capacity,
    • legal entities,
    • partnerships with legal capacity,
    if the registration as a customer of the platform takes place in the exercise of their commercial or self-employed professional activity (§ 14 of the German Civil Code).
  4. Registration on the online platform of a legal entity or partnership with legal capacity may only be carried out by a natural personauthorised to represent the company, who must be named during registration.
  5. Upon request, the user must prove the existence of his company.
  6. The customer is not entitled to registration. Created profiles or accounts are not transferable to other persons.
  7. The data requested in the course of registration must be provided by the customer completely and accurately. If there are subsequent changes to the user data, the customer is obliged to correct or update the data within his account on the platform independently and without delay.
  8. The customer is responsible for ensuring that all data is made available to the Provider in a timely manner and free of defects.
  9. The password is freely selectable by the customer and for security reasons should not contain any conspicuous repetitions of the same sign, should not consist of generally known words and names and should not be used elsewhere by the customer. All passwords shall be changed immediately by the customer into passwords known only to the customer and kept secret.
  10. The customer shall ensure that his password is kept secret and safe. He shall inform the platform operator immediately if he has cause for concern that an unauthorised third party has gained knowledge of his password or that the password is being used unauthorised or that this is likely. The Provider is not responsible for the consequences of the misuse of user passwords.
  11. Defects in contractual services must be reported to the Provider by e-mail immediately (at the lateston the following working day) after becoming aware of them.
  12. The customer is obliged to ensure compliance with the provisions of these Terms of Use.
  13. If the Customer violates the provisions of these Terms of Use, the Provider may, after prior written notification of the Customer, block the Customer's access to the Service if the violation can be remedied thereby. The block must be lifted as soon as the reason for the block no longer exists. If the customer continues to violate or repeats the provisions of these Terms of Use despite a written warning from the Provider, the Provider may terminate the contractual relationship without notice, unless the customer is not responsible for these violations. The right of the Provider to claim damages remains unaffected.
  14. In the event of an infringement of copyright by the customer, the customer licence shall automatically expire and access shall be blocked.

§ 8 Privacy

  1. The parties agree not to disclose confidential information.This obligation shall not apply to such confidential information,
    1. which were demonstrably already known to the recipient when the contract was concluded or which subsequently become known to the recipient by third parties, without this infringing any confidentiality agreement, statutory regulations or official orders;
    2. which are publicly known when the contract is entered into or are subsequently made publicly known, unless this is due to a breach of this contract;
    3. which are required to be disclosed by law or by order of a court or authority. To the extent permitted and possible, the recipient subject to the disclosure obligation shall give prior notice to the other party and the opportunity to take action against the disclosure.
  2. The Parties shall grant access to confidential information only to consultants who are bound by professional secrecy or have previously been bound by obligations equivalent to those contained in this Treaty. In addition, the Parties shall disclose the confidential information only to those employees who need to know it in order to perform this Agreement and shall require such employees to maintain confidentiality to the extent permitted by employment law even after they have left the Company.
  3. Any culpable violation of the above confidentiality obligations shall result in a contractual penalty of EUR 1000. Further claims of the parties remain unaffected.

§ 9 Statute of limitations for claims based on defects

  1. Warranty claims become statute-barred after one year.
  2. In the event of liability due to intent or gross negligence, the statutory limitation periods shall apply.

§ 10 Liability/exclusion of liability

  1. ESK shall only be liable -subject to the provisions of § 11 -on whatever legal grounds if the damage
    1. is the result of culpable injury to life, limbor health, or
    2. is due to an intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents.
  2. ESK shall also be liable in the event of culpable breach of material contractual obligations (material contractual obligations are obligations the fulfilment of which is necessary for the proper performance of the contract, the fulfilment of which you therefore rely on and may rely on), but in the event of slight negligence the amount of liability shall be limited to the typical contractual damage foreseeable at the time the contract was concluded. In the case of damages which are attributable to a slightly negligent breach of nonessential contractual obligations, we shall only be liable to the extent that such damages concern bodily injury and damage to health.
  3. ESK shall not be liable for unforeseeable damage, consequential damage caused by a defect or loss of profit, unless there is a case of paragraph 1.To the extent permitted by law, ESK shall under no circumstances be liable for any damage resulting from the use of this software or from the fact that it cannot be used, even if ESK has been informed of the possibility of such damage. In any event, the total liability of ESK under any provision of thisagreement shall be limited to the sum of the usage price.
  4. Insofar as the Service is provided free of charge, the Provider assumes no liability for damages resulting from the use of the Service, unless it is gross negligence or intent.
  5. ESK assumes no warranty for drawings prepared by the customer.

§ 11 Product Liability and Liability Act

  1. The provisions of the Product Liability Act shall remain unaffected.
  2. The liability for damages to property according to the liability law is excluded. The liability according to the liability law for personal injury remains unaffected.

§ 12 Force majeure and similar

  1. Should ESK be forced to take industrial action at its own premises or at those of its vicarious agents due to force majeure, war, terror, forces of nature, epidemics, pandemics as well as related personnel shortfalls at its own premises or at those of its vicarious agents, industrial action at its own premises or at those of its vicarious agents, the ESK shall be entitled to terminate the contract. its suppliers, damage to the production, transmission, distribution or communication systems or computer hardware and software, orders of public authorities or by other circumstances which are not culpably caused by ESK and which it is not in its power to avert or which cannot be achieved with reasonable technical and economic effort, its performance obligations shall be suspended until these circumstances and their consequences have been eliminated. In such cases, the customer may not claim damages from ESK. In such cases, ESK shall ensure by all reasonable means that it can again meet its obligations under this contract as soon as possible.
  2. In case of clause 1, the customer shall be released from his counter-performance obligations for the period of suspension of our obligations.

§ 13 Text form requirement

  1. Verbal ancillary agreements do not exist.
  2. Additional agreements to this contract as well as amendments to the contract require text form to be effective. This also applies to an amendment or cancellation of this clause.

§ 14 Place of jurisdiction/choice of law

  1. Place of jurisdiction is Essen.
  2. The legal relationship between the parties is subject exclusively to the law of the Federal Republic of Germany to the exclusion of its international private law.

§ 15 Data protection and privacy

  1. Each party is entitled to collect, process and use the contact data arising in connection with the contractual relationship within the meaning of the applicable data protection law in its currently valid version and to pass on this data - insofar as necessary in connection with the contractual relationship and its execution - with the same rights to affiliated companies within the meaning of §§ 15 ff of the German Stock Corporation Act (AktG) and to third parties entrusted with the execution.
  2. ESK shall have individual tasks and services performed by carefully selected and commissioned service providers, in particular IT service providers, which are based outside the EU/EEA (third country). Personal data is therefore transferred to third countries. The transfer of personal data to third countries is carried out in compliance with the data protection regulations of the EU and the applicable national data protection law. For this purpose, data protection agreements to establish an appropriate level of data protection are contractually agreed with our contractual partners in accordance with the legal requirements, including EU standard contractual clauses. A sample of these guarantees can be requested from ESK. Each contractual partner shall ensure that the persons concerned have been informed of this. Questions regarding data protection can be directed to gdpr@esk-projects.com

§ 16Succession in title

  1. Each party is entitled by way of individual succession to transfer the rights and obligations arising from the contract to a legal successor at any time with the consent of the other party.
  2. The consent is dispensable if the legal successor is an affiliated company within the meaning of Section 15 AktG.
  3. Each transfer shall be notified immediately to the other party in text form.
  4. In the cases of universal succession, in particular under conversion law, the statutory provisions shall apply.
  5. These provisions shall also apply to repeated legal successions.

§ 17 Severability clause

  1. Should any provision or a future provision included here be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions.
  2. In such a case, the invalid or unenforceable provision shall be replaced by a valid and enforceable provision which comes as close as possible to the economic intent of the invalid or unenforceable provision.
  3. This shall also apply mutatis mutandis to any unintended gaps in the contract.