Terms of use
Preamble
Engagently is a B2B SaaS solution for digital user interaction and participation.
Engagently does not act independently vis-à-vis private users, but integrates itself into existing platforms as an additional digital offering - for example as a commenting function in connection with news articles on the media offering of a news publisher.
User registration and configuration of the usable service is entirely in the hands of the integrating platform.
The following terms of use apply to the use of engagently:
§ 1 Subject matter of the contract
The Provider provides its services on the basis of an offer, which may contain agreements that deviate from these Terms of Use. Deviating agreements in the offer shall take precedence over these Terms of Use. The provider provides SaaS services in the area of social media software. The subject of the contract is the provision of the “engagently” software for use via the Internet and the storage of the customer's data (hosting). The functional scope of the contractual software (hereinafter: “Software”) results from the functions specified in the offer and described on the provider's website.
The elimination of malfunctions and damage caused by improper handling on the part of the customer, by the influence of third parties or by force majeure is not the subject of this contract, but can be agreed in individual cases for a separate fee. The same applies to damage and faults caused by environmental conditions at the installation site, faults or non-performance of the power supply, faulty hardware or other influences for which the provider is not responsible.
§ 2 Scope of services
The contract applies to the number of users and number of engagement processes specified in the offer. The Provider has the right to carry out a review or have a review carried out at the Customer's premises once a year or in the event of a justified reason in order to determine whether the agreed scope of use is being complied with.
The provider shall provide the customer with the necessary capacity for the number of engagement processes owed immediately after conclusion of the contract. The commissioning of the software and the connection to the customer's respective channels shall be carried out by the customer, if necessary with the support of the provider.
The customer has the option of integrating engagently into its own channels, i.e. desktop, mobile web, mobile app. Further channels may be added as the software is further developed. Furthermore, the customer's own systems can be connected to the “engagently” software via API.
The scope of the rights of use granted is governed by § 9.
In addition to the provision of the software, the provider also provides services in the areas of further development (a), troubleshooting (b) and support (c).
a. Within the scope of further development, the provider shall continue to develop the software in terms of quality and modernity, adapt it to changed requirements, process errors in order to maintain the quality owed, and provide the customer with new versions of the software resulting from this. Minor functional enhancements are also included.
b. Within the scope of troubleshooting/error rectification, the Provider is obliged to investigate errors in the software reported by the Customer and to rectify any errors. The prerequisite for troubleshooting and error elimination is the fulfillment of the customer's obligation to cooperate in accordance with § 3. Errors shall be rectified in accordance with Section 6.
c. The Provider also undertakes to provide support to the Customer or the Customer's personnel.
The Provider's employees shall not enter into any employment relationship with the Customer. The Customer shall issue instructions exclusively to the responsible employee designated by the Provider with effect for and against the Provider.
Additional services not covered by the contract shall be provided by the provider at the request of the customer against separate payment if sufficient nursing staff are available at the time of the request. Invoicing shall be based on the provider's hourly rates valid at the time of performance, taking into account the time required.
§ 3 Obligations of the customer to cooperate
The customer shall notify the provider immediately of any errors that occur and support the provider in investigating and rectifying the error within reasonable limits. This includes, in particular, submitting defect reports to the provider in written or text form at the provider's request and providing other data and logs suitable for analyzing the error.
§ 4 Telephone advice
The customer shall receive assistance by telephone or e-mail in the event of faults in the software and operating problems.
The “Hotline” can be reached Monday to Friday from 09:00 to 18:00 on +49 30 330 830 900
Any further availability requires special agreement.
§ 5 Hosting, availability and service level
The contractual software is available 24 hours a day, seven days a week (“operating time”). The average availability of the software during the operating time is guaranteed at 99% on an annual average. The services of the customer's own connected channels are not part of the software. The provider is not responsible for their malfunctions. If the security of network operation or the maintenance of network integrity is at risk, access to the services may be temporarily restricted as required.
The connection to the customer's own channels is encrypted using a 256-bit SSL certificate.
Adjustments, changes and additions to the software, as well as measures that serve to identify and rectify malfunctions, will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
The basic functions of the software are monitored daily. The software is generally maintained from Monday to Friday from 09:00 to 18:00 (service hours).
Errors are rectified within the service hours as follows:
Error class 1: Serious error (Definition: The use of the software is no longer possible overall) -> Response time and start of troubleshooting: 4 hours
Error class 2: Medium error (Definition: The use of the software is no longer possible or severely restricted with regard to one or more parts. However, the software can still be used at least in part). -> Response time and start of troubleshooting: 24 hours
Error class 3: Minor error (All errors that cannot be assigned to another error class) -> Response time and start of error correction: As part of the next update cycle
In the case of serious errors - the use of the software is no longer possible or is seriously restricted - maintenance is carried out within 4 hours of the customer becoming aware of or being notified of the error. The provider shall inform the customer of the maintenance work in good time and carry it out as quickly as possible.
If it is not possible to rectify the error within 12 hours, the Provider shall notify the Customer, stating the reasons and the estimated time required to rectify the error. The Provider shall use all means at its disposal to offer the Customer a workaround solution.
The customer's statutory warranty rights shall remain unaffected by the provision in this clause.
§ 6 Remuneration
The customer undertakes to pay the provider for software access and hosting the fee agreed in the offer plus the applicable statutory VAT.
The provider shall send the customer a statement of the contractually owed remuneration.
Payment shall be made monthly in advance within 14 days of invoicing.
The lump-sum price does not include maintenance work caused by incorrect operation or negligent or intentional damage or modification of the software. This maintenance work shall be charged on the basis of the provider's hourly rates generally applicable at the time the order is placed according to the time spent.
§ 7 Data protection, confidentiality
Both parties shall maintain secrecy about all business and operational matters of which they become aware and shall treat all information in connection with the fulfillment of this contract as strictly confidential, even after its expiry. The same applies to personal data covered by the provisions of data protection legislation.
The provider undertakes to instruct its personnel accordingly and to oblige them to comply with data protection regulations.
Content posted via the software is the sole property of the customer and will be deleted at the end of the contract at the customer's request. This includes, in particular, user profiles, comments in all variations and the media elements they contain.
§ 8 Rights of use
The Provider grants the Customer the paid, non-exclusive, non-transferable and non-sublicensable right to use the contractual software on the Provider's systems for the term of this contract. The contractual software shall not be transferred to the customer.
The Customer shall also receive a right of use to the contractual items which the Provider provides to it within the scope of its maintenance obligations under this contract (e.g. updates, supplementary software manuals). The Provider shall indemnify the Customer against claims that may be asserted by third parties due to the use of this software.
If the customer uses contractual objects that are to replace earlier ones, the right of use to the replaced contractual object shall expire.
§ 9 Warranty
Strict liability for initial defects in the software is excluded. In all other respects, the customer's warranty claims shall be governed by the statutory provisions.
Warranty claims of the customer shall expire within a period of two years from receipt of the notification of defects.
§ 10 Liability of the provider
Within the framework of this contract, the Provider shall only be liable for damages (a) which the Provider or its legal representatives or vicarious agents have caused intentionally or through gross negligence or (b) which have arisen from injury to life, limb or health due to a breach of duty by the Provider or one of its legal representatives or vicarious agents. The Provider shall also be liable (c) if the damage was caused by the breach of an obligation of the Provider, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the Customer regularly relies and may rely (cardinal obligation).
In the cases of paragraph 1, letters (a) and (b), the provider shall be liable without limitation in terms of amount. Otherwise, the claim for damages shall be limited to the foreseeable damage typical for the contract.
In cases other than those mentioned in paragraph 1, the liability of the provider is excluded regardless of the legal grounds.
The liability regulations in the above paragraphs also apply to the personal liability of the bodies, employees and vicarious agents of the provider.
Insofar as liability under the Product Liability Act from the assumption of a guarantee or due to fraudulent misrepresentation comes into consideration, it remains unaffected by the above liability regulations.
§ 11 Term of the contract
This contract has the term specified in the offer.
The term shall be extended after the expiry of the term by the originally agreed term if the contract is not terminated in due form and time at the end of the term.
The contractual relationship begins with the conclusion of this contract and can be terminated by either party after expiry of the minimum contract term with a notice period of three months to the end of the term.
The right to terminate for good cause remains unaffected by the provisions of this paragraph.
Any termination must be in writing or in text form to be effective.
§ 12 Miscellaneous
This contract and its annexes as well as the contract on commissioned data processing regulate the relevant agreements between the parties conclusively and completely. The provider does not accept the customer's general terms and conditions.
Should individual provisions of this contract be or become invalid, or should an essential point not be regulated, the validity of the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a provision that comes closest to the intended result and which the parties would have agreed if they had been aware of the invalidity of the provision.
Amendments and supplements to this contract are only effective in writing and with reference to this contract and must be signed by both parties.
The place of performance and jurisdiction for all disputes arising from this contract is the registered office of the provider, provided that the customer is a merchant or a legal entity under public law.
Updated: December 2024