General terms of contract – JonnyGit GmbH
As of: March 01, 2020
The present General Terms of Contract (GTC) apply to the services of JonnyGit GmbH, Lohmühlenstraße 65, 12345 Berlin (also referred to as “we”, “us”, “service”, “JonnyGit”), which are provided to customers (also referred to as “customer” or “you”). General terms and conditions of the customer shall not apply unless we expressly agree to their validity. With our services and our GTC we are exclusively directed at companies in the sense of § 14 German Civil Code.
Provided you have concluded a contract of use, a project contract or any other contract with us for the provision of services (hereinafter also referred to as “contract”), you acquire the following services and rights, subject to special agreements in the contract or offer:
1. Subject of Contract
JonnyGit provides a cloud-based software solution for analyzing data from Git-based source code management systems (including GitHub, GitLab and Bitbucket) and from project management systems (including Atlassian Jira) to improve software development processes and to increase the speed and quality of software development.
- The software is a SaaS (Software as a Service) solution.
- The software allows you to analyze data from your Git repository and project management tool. This allows all parties involved in the development to transparently understand the current development processes and the challenges to be mastered.
- The specific services you have subscribed to are described in the service description, which is available in its current version under the following link (https://jonnygit.com/service_specifications) or in the offer.
Besides the SaaS services we offer services (including project services), such as workshops, customizing or consulting services in connection with the use of JonnyGit. If you wish for example an individual support for the use of JonnyGit (e.g. by coaching, moderation and consulting services), this is possible by an individual agreement about service content and remuneration in the contract as well as the corresponding offer. When providing services, our expenses will be invoiced on the basis of the person days or hours worked. In these cases, the assignment is made as an order for the provision of services and is agreed separately. A success is not owed with regard to these additional services.
2. Registration for our SaaS services
- Our SaaS services can be accessed at any time via our website https://app.jonnygit.com/.
- To use our SaaS services, registration with an admin account is required. User accounts can be created under this admin account. To create an admin account, you will receive appropriate credentials from us, with which you can create your account.
- After providing your access token or access to the git provider you use and other software solutions supported by us (see service description), JonnyGit connects to them. This initiates the regular data exchange process between the data sources and JonnyGit.
3. Payment for our SaaS solution
- The SaaS services to be provided by us shall always be remunerated according to the selected price model (http://jonnygit.com/pricing) or according to the price listed in the offer.
- Other services are generally charged on a time and material basis.
- Every remuneration is understood to be plus VAT at the statutory rate at the time and place of performance of the service.
- The remuneration for the services to be provided by us is to be paid by you in advance for the respective contractual month. In addition, we are entitled to invoice you for the respective remuneration for up to 12 months in advance, depending on the price model chosen by you.
- Our invoices are due upon receipt and are payable without deductions within fourteen calendar days to our account specified in the invoice.
- Travel costs and expenses shall be reimbursed separately. If the parties have not agreed on this, this shall be done according to the maximum tax rates applicable at the time of performance of the service.
4. Duration of the user contract for our SaaS services
- The contract of use for the SaaS services is concluded for an indefinite period.
- A change of the selected price model is possible at any time with effect from the following month. There will be no reimbursement of costs paid/to be paid for the current month.
- A termination is possible at any time. The notice period for both parties is two weeks to the end of the month. The cancellation can be made in text form or by corresponding termination of the services in your admin area.
- With the effective date of termination, access to our services will be blocked for you and your users. We will completely delete your access. Support services in connection with the termination can be provided by us upon request and, if necessary, against separate remuneration.
- The right to terminate this contract for exceptional reason remains unaffected.
5. Principles for providing our SaaS services
- We cannot guarantee/warranty the interoperability of the Services provided by us with your IT system or other hardware and software used by you. This is your responsibility.
- Our SaaS services are subject to the provisions of tenancy law. We are therefore obliged to maintain them. Maintenance measures such as updates, patches, hotfixes are part of our SaaS service & maintenance obligations. Further support is currently not offered. Beyond the maintenance measures, the statutory warranty law for rental defects applies.
- The availability of our services may be limited. This applies in particular to periods during which maintenance work is carried out. If possible, we will carry out such maintenance work outside normal business hours (weekdays 08.00 – 17.00 hours).
- We reserve the right to change, reduce or discontinue our services (services, software, support services, apps, etc.) as well as the documents and attachments related thereto (such as service description, service level, price model) at our own discretion, taking into account your interests. We will inform you in text form about essential changes and settings that change the contractual relationship with you at least four weeks before they come into effect. You have the right to object to the change. If you object to the change, we have the right to terminate this contract extraordinarily.
- It is your responsibility to create the technical and legal prerequisites for the use of third-party products you have specifically selected with our services. This applies in particular to the conclusion of contracts with providers of third-party products and to your use or installation of the third-party products.
- In case of force majeure we are released from our obligation to provide the services. Force majeure shall be fire, explosion, flood, war, blockade, embargo and industrial action at our premises or those of a subcontractor for which we or a subcontractor are not responsible.
- You must independently take appropriate measures against the loss of your content processed with JonnyGit.
- You are responsible for the actions of your users and are liable for these as for your own actions.
- Via links or functionalities of our services, you can access external websites and SaaS solutions that are not operated by us and for which we are not responsible. Such links or functionalities are clearly marked or can be recognized by a change in the address line of the browser or a change in the user interface.
- In the event that you violate this contract, we may impose appropriate sanctions (in particular deactivation or blocking of individual services, as well as blocking access to our services). The severity of the sanctions depends on the severity of the violation. Other claims remain unaffected, in particular our right to extraordinary termination for good cause.
- When using our services, you are prohibited from:
- to violate the property rights of third parties such as trademarks, copyrights and rights to a name,
- to harass other customers and third parties,
- to use mechanisms, software and scripts that go beyond the functionality and interfaces provided, in particular if our services are blocked, modified, copied or overwritten as a result, and
- to impair our services by altering data (§ 303a German Penal Code), sabotage of computers (§ 303b German Penal Code), falsification of evidentiary data (§ 269, 270 German Penal Code), suppression of evidentiary data (§ 274 German Penal Code), computer fraud (§ 263a German Penal Code), spying on data (§ 202a German Penal Code), interception of data (§ 202b German Penal Code) or other criminal offences.
6. Your obligations to cooperate for our SaaS services
- The following provisions and contributions are to be provided by you in particular as ancillary obligations free of charge to us:
- If necessary: Granting of necessary rights of use to third-party software, in particular databases, server operating systems and applications.
- If necessary: Creation of backups of the IT system and other IT components.
- Reports of material defects and defects of title as well as malfunctions must contain a description of the problem (e.g. with screenshots, anonymised log files).
- If necessary: Notification of the guidelines applicable to remote access to your IT system.
- If necessary: Provision of test cases, test data and test environments.
- We reserve the right to adapt our services at short notice in the case of security-relevant updates. Any resulting adjustments to your IT systems must be carried out by you. If required, we will provide you with support.
7. General liability
- The parties shall be liable for themselves, their legal representatives, vicarious agents and the subcontractors/suppliers engaged by them to each other for direct property damage and financial losses caused by them up to € 100,000 per damaging event, up to a maximum of € 200,000 per year of the contract term, irrespective of the number of damaging events.
- In the case of simple negligence, liability is limited to the foreseeable damage typical for the contract. Apart from the violation of essential contractual obligations, liability for the compensation of indirect material damage and financial losses, in particular loss of profit, is completely excluded in cases of simple negligence. In the event of force majeure as well as in the event of free use of our services, our liability for simple negligence is completely excluded.
- The parties shall be liable without limitation in terms of amount in the event of injury to life, body or health and in the event of wilful or fraudulent acts. The same shall apply in the event of the written assumption of a guarantee for the quality or durability of a service to be provided by us.
- Our liability under the Product Liability Act remains unaffected.
- You shall be responsible for the actions of your employees, legal representatives, vicarious agents and any other users of our services as for your own actions.
- Twice the annual remuneration paid by you corresponds to the foreseeable, typically occurring damage. In addition, liability for simple negligence shall only exist in the event of a separate agreement in text form. The above limitation of liability shall not apply in the case of damages resulting from injury to life, body or health, if we have fraudulently concealed a defect or, exceptionally, have assumed a quality agreement, or in the case of intentional or grossly negligent action, as well as in the case of claims under the Product Liability Act.
8. Guarantee for our SaaS services
- In the event of any defects of material and defects of title in the case of purchase, rental and services, the statutory provisions shall apply subject to the provisions of this clause.
- In the event of material defects, you shall initially be entitled to the right to free repair or new delivery (hereinafter “subsequent performance”) at our discretion. If the defect cannot be remedied after two attempts at subsequent performance, it must be checked before any termination or withdrawal, whether your interests can be met by an alternative solution offered by us.
- In the case of rental, the strict liability for compensation for damages for defects existing at the time of transfer is excluded from § 536a para. 1 German Civil Code. Your obligations as a merchant under §§ 377, 381 para. 2 HGB (German Commercial Code) shall remain unaffected.
Defects of title
- Our services are provided to you free of third party rights. Please inform us immediately in text form if you become aware of third party rights to our services.
- At our request, you shall leave the defence against claims asserted by third parties to us, provide us with all information necessary for this purpose, make declarations and grant us powers. In return, we shall indemnify you against payment and damage claims based on the rights of third parties.
- If our services are actually encumbered with rights of third parties, we shall be entitled at our discretion,
- to eliminate the rights of third parties or their assertion (e.g. by payment of license fees), or
- to change our services in such a way that the rights of third parties are no longer violated.
- If the defect cannot be remedied after two attempts at subsequent performance, it must be determined whether your interests can be met by an alternative solution offered by us before any termination or withdrawal.
- Claims for defects shall not apply if you have made changes to the services or had them made by a third party without our prior consent or if the services are used by you for a purpose not covered by this contract and the change or use contrary to contract is solely responsible for the occurrence of the defect.
- Claims for defects shall become statute-barred after 12 months.
9. Your right to use our SaaS services
Use of software & general information
- You are granted a simple, non-exclusive right to use our services, which is limited to the duration of the contract and geographically unlimited.
- Your majority-owned Group companies are equally entitled to use the Software. This does not constitute an independent authority to sublicense or otherwise transfer your rights of use. This right of use shall end if the requirements of an affiliated company (e.g. within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG)) no longer apply to the Group company.
- You are not entitled to exhibit, publicly display, in particular to make publicly accessible, edit, redesign, translate, decompile or otherwise modify the software. Your rights under §§ 69d para. 3, 69e UrhG (German Copyright Act) remain unaffected.
- We are entitled to use our services, including new releases, as well as general know-how, experience, methods and procedures otherwise developed in connection with the contract for other purposes (provision to third parties, as open source software etc.).
- Test and demo licenses are limited to a term of up to 30 days, unless otherwise agreed.
Open Source Software
- We grant you such rights to open source software contained in our software that can be transferred to you in accordance with the licence conditions applicable to us. We permit you to use open source software provided that you ensure that our rights to the software are not impaired by the rights of third parties due to a so-called “viral effect” of the open source software..
10. Transfer to third parties
- We are entitled to transfer the contract to a legal successor or an affiliated group company without your consent. We will inform you of this in text form at least two months before the planned transfer.
- A transfer of the contract to a third party requires your prior consent. In the event of your objection, the contract will continue unchanged. The objection shall be deemed to be an important reason for us to terminate the contract for exceptional reasons.
- The parties shall become aware of business secrets of the other party or third parties. A business secret is information which is neither as a whole nor in the exact arrangement and composition of its components generally known or readily accessible to persons in the circles which usually deal with this type of information and which is therefore of economic value and which is the subject of appropriate secrecy measures by its rightful owner and where there is a legitimate interest in secrecy (see § 2 GeschGehG), which is marked as a business secret, which is protected by industrial property rights or copyright and which is covered by banking secrecy or data protection. No trade secret is information which is known to the respective other party before disclosure, which has become known to the public after disclosure without the participation of the disclosed party, which the disclosed party has learned through an authorized third party and which the disclosed party has developed itself.
- The disclosed party, as well as all those who come into contact with business secrets in accordance with the intended purpose, are obliged to treat the business secrets as strictly confidential and to use them only or disclose them to third parties and employees if this is necessary in connection with the business purpose. In all other respects, the disclosed party shall protect the trade secrets from disclosure to third parties.
- The parties are entitled to use IT services of third parties in connection with the business purpose. This applies in particular to software and infrastructure (including maintenance, care and support) and the use of cloud services (infrastructure, platform, software). In this case, the respective party shall, in connection with the use of business secrets of the disclosing party, impose a reasonable obligation on the third party to protect such business secrets.
- Objects as well as files or other intangible objects containing business secrets shall be deleted or handed over to the disclosing party immediately upon request of the disclosing party or at the latest upon termination of the contractual relationship.
Taking into account the respective interests, both parties are entitled to name the other party as contractual partner vis-à-vis third parties or in public. The public naming includes in particular the use and presentation of the logos and company trademarks for advertising and marketing purposes in online and offline advertising material.
13. Final provisions
- The assignment of individual claims from this contract requires the prior consent of the respective other party in text form.
- The entire contractual relationship between the parties shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention.
- Place of jurisdiction for all disputes arising from the contractual relationship shall be the competent court at our registered office.
- In the event of disputes arising from the contractual relationship, the parties shall attempt to reach an amicable agreement in out-of-court negotiations. If an out-of-court settlement between the parties does not lead to a mutually satisfactory result, they shall conduct mediation in accordance with the Dispute Resolution Rules 10 before resorting to a court. Until the mediation has failed, no recourse to the court is permitted.
- No additional verbal agreements were made. Amendments and supplements to this contract must be in text form to be effective. Amendments to the contract shall become effective if you do not object to the amendment in text form within one month after receipt of a notification of amendment. If you object to the amendment, the contract shall continue to apply unchanged and we shall be entitled to terminate the contract for exceptional reasons with a notice period of one month to the end of the next calendar month. The text form also applies to a change of this form clause. The priority of individual subsidiary agreements remains unaffected.
- Should one of the terms of the contract be or become invalid or the contract contain a loophole in need of regulation, this shall not affect the validity of the remaining or incomplete terms. In this case, the parties undertake to replace or complete the invalid or incomplete provisions with provisions that come closest to the invalid or incomplete terms in economic terms.