§1.1 OCELL GmbH, Rosenheimer Str. 139 in 81671 Munich (hereinafter "provider") is the owner of all copyright and other rights of use and exploitation to the Internet-based planning and administration software Dynamic Forest as well as to all geo and information data collected by OCELL and made available via Dynamic Forest. The provider provides this software and data access via remote access via the Internet ("Software-as-a-Service", "SaaS" for short).
§1.2 The general terms and conditions of the provider (hereinafter "GTC") regulate the relationship between the provider and companies that use Dynamic Forest and are not consumers within the meaning of § 13 BGB but entrepreneurs within the meaning of § 14 BGB (hereinafter "customers"). Entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity. A consumer is any natural person who concludes a legal transaction for purposes that are predominantly neither commercial nor self-employed.
§2.1 The subject matter of the contract is the provision of the Dynamic Forest software and any additionally booked geodata in a data center for access and use via the Internet as a software-as-a-service solution and the enabling of the storage of customer data on servers in the Data center operated on behalf of the provider. The service is deemed to be provided as operational as soon as the customer has been granted access to the system.
§2.2 Dynamic Forest is an internet-based system for forest management planning and inventory data management for professional forest management and other companies with comparable processes. In addition, Dynamic Forest offers various functions for the documentation and evaluation of forest management data, the creation of measures and the preparation and implementation of annual budget planning. It includes the functions listed in the general program description, which can be found on the website www.ocell.io, and has a modular structure.
The specific scope of services results from the offer that the provider will send to the customer in accordance with the procedure for concluding the contract described in Section 4 (hereinafter "offer"). The module selected by the customer and any additional services agreed upon are derived from the offer. Modules are the functionalities bundled according to the currently valid price model (hereinafter "modules"). The available modules and the specific scope of services can be found at ocell.io/en-us/dynamic-forest
The provider can provide updated versions of the software and will inform the customer about updated versions and corresponding usage instructions electronically and make them available accordingly. The provider reserves the right to provide certain functionalities only for an additional fee.
§3.2 Data backup
The provider creates backups of the data generated through the use of Dynamic Forest at regular intervals in automated processes. The customer can download the generated data by using the export function and make their own backups. The formats csv, geojson and shape are available to the customer for this purpose.
The contractual scope of services does not include compliance with archiving obligations, e.g. of a commercial or tax nature. These are subject to long-term data backup for which the customer is responsible.
The stored data will be deleted from the provider's servers no later than 80 days after the end of the contract period.
§3.3 Availability or non-availability of Dynamic Forest
99.5 percent availability of the software on the provider's servers is guaranteed over the year. Exceptions to this are restrictions due to maintenance work or the implementation of updates and improvements. Also excluded are times of disruption that arose due to the condition of the infrastructure not to be provided by the provider or its vicarious agents, as well as disruption times that were not caused by the provider or its vicarious agents. In the event of a temporary restriction in the availability of Dynamic Forest due to updates or maintenance work, the customer will be notified in good time by email. As a rule, this work is carried out at night between 00:00 and 04:00.
If the Dynamic Forest service is completely discontinued by the provider because it cannot continue operations, the data generated through the use of Dynamic Forest will be made available to the respective customer in accordance with Section 3.2. The customer will be informed of the cessation of operations within a reasonable period of time. It is the customer's own responsibility to back up the data independently within this period.
§3.4 Individual solutions
Services that go beyond the scope described, such as the development of customer-specific solutions or necessary adjustments, require a separate contract.
§3.5 Customer requirements for the provision of services
§3.5.1 Dynamic Forest is accessed remotely via the Internet.
Requirements for using Dynamic Forest are in particular:
§3.5.2 For reasons of compatibility and security, the provider recommends using the latest version of the Google Chrome browser. The provision of these requirements and the telecommunications services, including the transmission services from the server to the devices used by the customer, are not the subject of this contract, but are the responsibility of the customer.
§3.5.3 The use of Dynamic Forest Web requires a minimum bandwidth of 6 Mbit/s measured download speed and 1Mbit/s measured upload speed.
§3.5.4 The customer is responsible for ensuring that the requirements described in § 3.5 are met and that the hardware and software requirements for the contractual use of the software are met. It is his responsibility to protect his local IT systems against attack by malware, viruses and Trojans by setting up appropriate security software.
§3.5.5 The provider is released by the customer from third-party claims arising from a breach of the obligations specified in § 3.5.
§4.1 Conclusion of contract
$4.1.1 If an offer is sent to the customer, a legally binding contract is created by the acceptance of the customer and the return of the offer signed by the customer or his authorized representative and its receipt by the provider. The return can be sent by post or scanned as an attachment in an e-mail. In addition, the provider supports and accepts the possibility of signing using an electronic signature. Here, the return of the offer letter signed with an electronic signature is considered a declaration of acceptance. A written confirmation of the acceptance of the offer by e-mail is also accepted by the provider.
§4.1.2. The offer contains the essential information on the individual scope of services, the contract period, the payment modalities and the notice period.
§4.1.3 The contract can also be concluded via the provider's web application. By clicking on "Become a customer now" and selecting the product (payment cycle, area size, modules or packages), the offer of the provider is accepted after a last complete overview of the offer by accepting the terms and conditions and clicking on the acceptance of the offer. Until the acceptance of the offer is clicked, the customer can cancel the ordering process at any time by closing the browser window or by clicking on the "Cancel" field. The scope of services and the prices are then listed again in a corresponding order confirmation and sent to the customer by email.
Prices and terms of payment result from the offer. The provider reserves the right to make price adjustments. These take place at reasonable discretion and are limited to the adjustment to the development of costs that are decisive for the price calculation, eg the costs for the provision of server capacities. In particular, the provider will not make any price adjustments that change the interest in equivalence between service and consideration in its favor.
4.3 Upgrading and Downgrading
§4.3.1 There is always the possibility of upgrading and downgrading during the term of the contract. An upgrade describes the increase in the contract towards a higher scope of services. A downgrade, on the other hand, describes the reduction of the scope of services to a lower scope of services. The scope of services is defined by the selected area size and the activated modules (according to the offer).
§4.3.2 If the customer wishes such an upgrade or downgrade, he shall inform the provider accordingly. The provider will send the customer a new offer based on the desired scope of the changes, the remaining term of the contract and the remuneration already paid. In this respect, Section 4.1 applies. The customer is not entitled to an upgrade or downgrade.
The termination of the contract for the use of Dynamic Forest must be in writing in order to be effective and must be sent to the provider, for example by fax, post or email (address see imprint); the electronic form of termination (e.g. termination by “click” on the website) is excluded. The letter of termination must show that the sender is entitled to terminate the contract and is acting as a representative of his company (e.g. stationery, sender address of the email from the system admin). The provider will confirm receipt of the cancellation within a period of 5 working days.
§5.2 Extraordinary termination
Each party has the right to terminate this contract for good cause without observing a period of notice. An important reason for the provider is in particular:
Extraordinary termination due to a gross breach of duty - with the exception of termination due to default in payment - is only possible after a prior written warning, observing a twelve-day period. If the person willing to terminate has known about the circumstances that justify the extraordinary termination for more than twelve days, the termination can no longer be based on these circumstances.
The provider enables customers to contact us via an email ticket system and a telephone hotline (hereinafter "support") during the contract period. Support can be reached to receive fault reports within the provider's office hours from Monday to Friday, provided the aforementioned days are not a public holiday in the state of Bavaria. The applicable times for reaching the telephone hotline can be found on the homepage.
6.2 Error Categories
Unless otherwise agreed, the provider will assign received fault reports to one of the following categories at its reasonable discretion, taking into account the interests of the contractor:
§6.3.1. The provider will endeavor to eliminate the disruptions within a reasonable period of time. The provider will give priority to rectifying serious faults. Other reports are treated subordinately by the provider.
§6.3.2. If the reported disruption is not an error in the contractual services, in particular the software provided, the provider will also inform the customer of this within a reasonable response time.
Otherwise, the provider will initiate appropriate measures for further analysis and rectification of the reported fault or - in the case of third-party software - send the fault report together with its analysis results to the distributor or manufacturer of the third-party software with a request for remedy.
The provider will also provide the customer with measures to circumvent or rectify an error in the contractual services, in particular the software provided, such as instructions or corrections to the software provided.
§6.3.3. The customer will immediately implement such measures to circumvent or rectify faults and immediately report any remaining faults to the provider if they are used.
§6.3.4. Further support services, such as different accessibility as well as on-call services or on-site assignments by the provider to the customer must be agreed in advance in writing and usually paid for separately.
§7.1 Insofar as the provider can access personal data of the customer or from his area, he will only work as an order data processor (Art. 28 DSGVO) and process and use this data only for the execution of the contract. The contract for order data processing can also be concluded online at www.ocell.io. The provider will observe the customer's instructions for handling this data. The customer bears any adverse consequences of such instructions for the execution of the contract. The contractual partners will agree in writing on details for the handling of personal data, insofar as this is necessary in accordance with Art. 28 GDPR or other legal norms. Furthermore, it is pointed out that data transmission on the Internet can have security gaps. A hundred percent protection of the data from access by third parties is not possible.
§7.2 If the customer collects, processes or uses personal data himself or through the use of Dynamic Forest, he guarantees that he is entitled to do so in accordance with the applicable, in particular German and European data protection regulations and, in the event of an infringement, will provide the provider with any Claims by third parties free.
§7.3 The provider does not carry out any control of the stored data and content with regard to the legal admissibility of the collection, processing and use. This responsibility rests exclusively with the customer. The provider is only entitled to process or use customer-specific data on the customer's instructions. In particular, the provider is not permitted to make the customer-specific data accessible to third parties in any way without the prior consent of the customer. This does not affect legal permissions or orders that the provider is legally obliged to follow up.
§7.4 For non-personal data, the provider reserves the right to use servers located outside of Germany.
§7.5 During the period of validity of this contract, the provider is authorized to process and use the customer's data (e.g. to bill for services) within the scope of the data protection law. Upon termination of the contract of use, the provider is no longer entitled to use this data. He will delete the data after 80 days after the end of the contract. During the first 30 days after the end of the contract, the customer has the option of accessing and backing up his data independently via the customer access. During the following 50 days, the customer can request renewed access to his data and/or have it made available on a data carrier for a fee.
§7.6 The provider or his vicarious agents take the technical and organizational security precautions and measures in accordance with Art. 32 DSGVO. In principle, the customer is not entitled to request access to the premises with the software application or other system components from Dynamic Forest. This does not affect the access rights of the customer's data protection officer after written registration to check compliance with the requirements of Art. 32 GDPR and other legal and contractual handling of personal data in the context of the operation of Dynamic Forest.
§7.7 Further information on data protection and data security can be found in the data protection declaration at www.ocell.io.
The customer will fully and properly fulfill all duties and obligations that are required to process the contract.
§8.2 Personal responsibility
The customer himself is responsible for the use of the provider's services, the proper processing of his data and the results achieved. This also includes the fulfillment of legal and regulatory requirements for use, in particular compliance with the requirements of the Minimum Wage Act, the Working Hours Act, the storage and archiving of user data and the scope of collection of personal data from employees.
It is the customer's own responsibility,
§8.3 Other duties and obligations
He will also in particular
§8.3.1 pay the agreed usage fee on time.
§8.3.2 keep the access authorizations assigned to him and other users secret, do not pass them on to unauthorized persons and protect them from access by third parties. If the customer suspects that access data and/or passwords have not been received by authorized persons, he will immediately inform the provider;
§8.3.3 ensure that all industrial property rights and copyrights (e.g. when transferring data from third parties to the provider's server) are taken into account;
§8.3.4 indemnify the provider against all third-party claims due to infringements of rights that are based on an illegal use of the service object by him or with his approval. If the customer recognizes or has to recognize that such a violation is imminent, there is an obligation to inform the provider immediately;
§8.3.5 Use the options provided by the provider to additionally secure their data in their original area of responsibility;
§8.3.6 when using the automatic document creation, ensure that this has been checked carefully and independently. The same applies to the permissibility of a document upload.
§8.3.7 Do not misuse the exchange of electronic messages to send unsolicited messages and information to third parties for advertising purposes (spamming);
§8.3.8 Report defects in contractual services to the provider immediately. If the customer omits the timely notification for reasons for which he is responsible, this constitutes contributory negligence. If the provider was unable to remedy the situation by failing to notify or delaying the notification, the customer is not entitled to reduce the usage fee of the contract in whole or in part , to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily because of the defect;
§8.3.9 refrain from retrieving data or information yourself or through third parties without authorization or from interfering or allowing access to data networks or programs of the provider;
§8.3.10 Obtain the consent required under § 7 from those affected before using Dynamic Forest
collects or processes personal data and this is not permitted by law;
§8.3.11 oblige the users authorized by him to comply with all the provisions listed in § 7;
§8.3.12 Do not misuse Dynamic Forest or allow it to be used, in particular not transmit any information with immoral or illegal content and refer to such information that serves to incite hatred, encourages criminal offenses or glorifies or downplays violence, is sexually offensive or pornographic, are likely to seriously endanger children or young people morally or to impair their well-being or damage the reputation of the provider;
§8.3.13 regularly create your own backup copies of relevant information, such as the annual plan, by downloading (exporting). This does not affect the provider's obligation to back up data in accordance with Section 3.2;
§8.3.14 Movement data/timesheets, e.g. from forest workers at the legally required intervals, have them countersigned by the respective employees.
§8.3.15 transfer rights and obligations from this contract to third parties only with the prior written consent of the provider.
The customer undertakes to maintain confidentiality regarding all contractual agreements and any individual agreements vis-à-vis competitors and third parties who have a business relationship with the company.
§10.1 Dynamic Forest is protected by copyright. The provider is exclusively entitled to the copyrights, patent rights, trademark rights and all other ancillary copyrights to Dynamic Forest and other contractual objects. Insofar as third parties are entitled to the rights, the provider has the corresponding rights of use. The provider grants the customer the limited, non-exclusive, non-transferrable and non-sublicensable right to use the software listed in this contract and any additionally booked geo and information data for the duration of the contract within the scope of the functionality associated with the software use.
§10.2 The customer is not entitled to use Dynamic Forest beyond the use permitted under this contract or to have it used by third parties or to make it accessible to third parties. In particular, the customer is not permitted to duplicate, sell or transfer Dynamic Forest or parts thereof, especially not to rent or lend, to edit, to change, to decompile, to reverse-engineer or to disassemble or use any part of Dynamic Forest to create a separate application or have a third party perform those actions, except as permitted by copyright law.
§10.3 In the event of an unauthorized transfer of use or a culpable enabling of the use of Dynamic Forest by third parties, the customer must pay a contractual penalty of sixty thousand euros. The provider also has the option of claiming damages. In this case, the contractual penalty will be offset against the claim for damages.
§11.1 The provider is liable without limitation for damage to the customer in the event of intent or gross negligence, for all damage caused by him and his legal representatives or vicarious agents.
§11.2 In the event of injury to life, body or health, the provider is liable without limitation for slight negligence.
§11.3 Otherwise, the provider is only liable if he has violated an essential contractual obligation (cardinal obligation). Cardinal obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely, e.g. the provision of the software. In these cases, liability is limited to compensation for the foreseeable, typically occurring damage. The no-fault liability of the provider for damages (according to § 536a BGB) for defects existing at the time of conclusion of the contract is excluded; § 11.1 and 11.2 remain unaffected.
§11.4 In the event of data loss, liability is limited to the typical recovery effort that would have been incurred if backup copies had been made regularly.
§11.5 Liability under the Product Liability Act remains unaffected.
§12.1 The provider is released from the performance of this contract in the event of and for the duration of force majeure, insofar as the non-performance of services is due to the occurrence of this condition after the conclusion of the contract.
§12.2 Circumstances of force majeure are for example:
§12.3 Each contracting party must inform the other party immediately in writing of the occurrence of a case of force majeure.
§13 Collateral agreements, written form requirement
§13.1 If an individual agreement with the customer deviates from the provisions of the general terms and conditions, this has priority according to § 305b BGB. An individual agreement that deviates from the general terms and conditions is valid if this agreement is in written form or has been clearly confirmed by the provider via e-mail.
§13.2 General terms and conditions of the customer, even if they are attached to requests for offers, orders, declarations of acceptance, etc., are not part of the contract, even if the provider has not contradicted these conditions.
§13.3 The provider is entitled to change these general terms and conditions for good reasons, in particular due to new technical developments, changes in case law or other equivalent reasons, by means of a unilateral declaration to the customer in text form or if e-mail communication has been agreed between the parties via email to change. If the contractual balance between the parties is significantly disturbed by the change, it requires the consent of the customer. The customer's consent is deemed to have been given if he has not indicated his rejection within 2 weeks of receipt. The provider will specifically point out this approval effect.
The law of the Federal Republic of Germany applies, excluding the conflict of law rules of international private law and excluding the UN sales law.
The place of jurisdiction is Munich if the customer is a merchant and the contract is part of the operation of his trade or the customer has no general place of jurisdiction in Germany and if there is no exclusive place of jurisdiction. However, the provider is entitled to sue the customer at any other legal place of jurisdiction. The legal places of jurisdiction apply for non-merchants.
The possible ineffectiveness of individual parts of this contract does not affect the validity of the remaining content of the contract. The parties undertake to replace an ineffective provision with an effective provision that comes as close as possible to this provision.