1. Services
1.1 The Provider makes the contractual services available, in particular access to the software, within its area of control (from the data center's interface to the Internet). The scope of services, the characteristics, the intended purpose, and the conditions of use of the contractual services are defined in the respective service description and, supplementarily, in the software's user documentation.
1.2 Services beyond this scope, such as the development of customer-specific solutions or necessary customizations, require a separate agreement.
1.3 The Provider may make updated versions of the software available. The Provider will inform the Customer of updated versions and corresponding usage instructions by electronic means and make them available accordingly.
2. Scope of Use
2.1 The contractual services may only be used by the Customer and only for the purposes agreed in the contract. During the term of the contract, the Customer may access the contractual services via telecommunication (over the Internet) and use the functionalities associated with the software in accordance with the contract through a browser or another suitable application (e.g., an "app"). The Customer does not receive any further rights, in particular to the software or to any infrastructure services provided in the respective data center. Any further use requires the prior written consent of the Provider.
2.2 The Customer may not, in particular, use the services beyond the agreed scope of use or make them available to third parties. In particular, the Customer is not permitted to reproduce, sell, or temporarily transfer, rent, or lend the software or parts thereof.
2.3 The Provider is entitled to take reasonable technical measures to protect against non-contractual use. The contractual use of the services may not be impaired by more than an insignificant amount.
2.4 In the event of a contractual breach of the scope of use by a user or in the event of unauthorized transfer of use, the Customer shall, upon request, immediately provide the Provider with all information available to it for asserting claims arising from the contractual breach, in particular the name and address of the user.
2.5 The Provider may revoke the Customer's access authorization and/or terminate the contract if the Customer significantly exceeds the permitted use or violates provisions for the protection against unauthorized use. In connection with this, the Provider may suspend or block access to the contractual services. The Provider shall generally set the Customer a reasonable grace period for remedial action beforehand. The sole revocation of access authorization does not simultaneously constitute termination of the contract. The Provider may only maintain the revocation of access authorization without termination for a reasonable period, not exceeding 3 months.
2.6 The Provider's claim for remuneration for use beyond the agreed scope remains unaffected.
2.7 The Customer has a right to reinstatement of access authorization and access capability after demonstrating that the contractual breach has been remedied and future contractual breaches have been prevented.
3. Availability, Defects
3.1 The availability of the provided services is defined in the service description.
3.2 In the case of only an insignificant reduction in the suitability of the services for contractual use, no claims of the Customer based on defects shall exist. The no-fault liability of the Provider for defects that already existed at the time of contract conclusion is excluded.
4. Data Protection
4.1 Insofar as the Provider can access the Customer's personal data or data from the Customer's domain, it shall act exclusively as a processor and shall process and use such data only for the purposes of contract performance. The Provider shall comply with the Customer's instructions regarding the handling of such data. The Customer shall bear any adverse consequences of such instructions for contract performance. The Customer shall agree with the Provider on the details for the Provider's handling of the Customer's data in accordance with data protection requirements.
4.2 The Customer remains the controller both in general within the contractual relationship and in the data protection sense. If the Customer processes personal data in connection with the contract (including collection and use), it warrants that it is entitled to do so under the applicable provisions, in particular data protection provisions, and shall indemnify the Provider against any third-party claims in the event of a breach.
4.3 As between the Provider and the Customer: responsibility for the processing (including collection and use) of personal data vis-à-vis the data subject is borne by the Customer, except insofar as the Provider is responsible for any claims of the data subject due to a breach of duty attributable to it. The Customer shall responsibly examine, process, and respond to any inquiries, applications, and claims of the data subject. This also applies in the event of a claim against the Provider by the data subject. The Provider shall support the Customer within the scope of its obligations.
4.4 The Provider warrants that the Customer's data is stored exclusively in the territory of the Federal Republic of Germany, in a Member State of the European Union, or in another Contracting State of the Agreement on the European Economic Area, unless otherwise agreed.
4.5 These Service Terms include the GDPR Data Processing Addendum (DPA, mergua.com/dpa), where the GDPR applies to your use of our Services for the processing of Customer Data (as defined in the DPA).
5. Customer Obligations
5.1 The Customer shall protect the access authorizations as well as identification and authentication information assigned to it or its users from access by third parties and shall not disclose them to unauthorized persons. The Customer is obligated to indemnify the Provider against all third-party claims arising from infringements of rights based on unlawful use of the service by the Customer or with the Customer's approval. If the Customer becomes aware, or should become aware, that such an infringement is imminent, there is an obligation to notify the Provider immediately.
5.2 The Customer shall use the options provided by the Provider to back up its data within its own area of responsibility.
6. Unauthorized Use, Damages
In every case in which a contractual service is used without authorization within the Customer's area of responsibility, the Customer shall pay damages equal to the remuneration that would have been incurred for contractual use within the minimum contract term applicable to that service. The Customer retains the right to prove that the unauthorized use was not attributable to the Customer or that no damage or substantially less damage occurred. The Provider retains the right to claim further damages.
7. Incident Management
7.1 The Provider shall accept incident reports from the Customer, assign them to the agreed incident categories (Section 7.3), and carry out the agreed measures for analysis and resolution of incidents based on this classification.
7.2 The Provider shall accept properly submitted incident reports from the Customer during its regular business hours and assign each a reference number. Upon the Customer's request, the Provider shall confirm receipt of an incident report, specifying the assigned reference number.
7.3 Unless otherwise agreed, the Provider shall classify accepted incident reports after initial review into one of the following categories:
- a) Severe incident: The incident is based on an error in the contractual services that makes the use of the contractual services, in particular the software, impossible or only possible with severe restrictions. The Customer cannot reasonably work around this problem and therefore cannot complete time-critical tasks.
- b) Other incident: The incident is based on an error in the contractual services that restricts the Customer's use of the contractual services, in particular the software, by more than an insignificant amount, without constituting a severe incident.
- c) Other reports: Incident reports that do not fall into categories a) and b) are classified as other reports. Other reports are handled by the Provider only in accordance with the agreements made for this purpose.
7.4 For reports of severe incidents and other incidents, the Provider shall immediately initiate appropriate measures based on the circumstances communicated by the Customer to first locate the cause of the incident.
7.5 If, after initial analysis, the reported incident does not turn out to be an error in the contractual services, in particular the provided software, the Provider shall inform the Customer immediately.
7.6 Otherwise, the Provider shall initiate appropriate measures for further analysis and resolution of the reported incident or, in the case of third-party software, transmit the incident report together with its analysis results to the distributor or manufacturer of the third-party software with a request for resolution.
7.7 The Provider shall make available to the Customer any measures it has for working around or resolving an error in the contractual services, in particular the provided software, such as instructions or corrections to the provided software, without undue delay. The Customer shall implement such measures for working around or resolving incidents without undue delay and shall immediately report to the Provider any remaining incidents after their implementation.
8. Contact Point
8.1 The Provider makes a contact option available to the Customer via email (hello@mergua.com). Inquiries are processed during regular business hours.
8.2 There is no entitlement to telephone support or on-site visits unless otherwise agreed.
9. Contract Duration and Termination
9.1 The contract is concluded for an indefinite period. The Customer selects a billing period (monthly or yearly) at the time of contract conclusion. The contract is automatically renewed for the selected billing period unless it is terminated beforehand.
9.2 The Customer may terminate the contract at any time without notice, effective at the end of the current billing period. Until the end of the already paid period, the Customer retains access to the contractual services.
9.3 The right of each contracting party to extraordinary termination for good cause remains unaffected.
9.4 Termination by the Customer is preferably made electronically via the Provider's customer portal. Alternatively, termination may be made in text form (e.g., by email) to the contact address specified by the Provider. Extraordinary termination by the Provider requires text form.
9.5 The Customer shall ensure timely backup of its data (e.g., by download) before the end of the contract. Upon request, the Provider shall support the Customer in this regard; Section 4.3 of the General Contract Terms applies. Access by the Customer to this data after termination of the contract will generally no longer be possible, not least for data protection reasons.
10. Applicability of General Contract Terms
The General Contract Terms apply supplementarily.
General Contract Terms
1. Remuneration, Payment, Intellectual Property Protection, Deadlines
1.1 Remuneration is based on the plan selected by the Customer at the time of contract conclusion. Current plans and prices are published on the Provider's website. All amounts are net prices plus applicable statutory value-added tax.
1.2 Billing occurs in advance for the selected billing period (monthly or yearly). Payment is processed through the payment service provider engaged by the Provider.
1.4 The Customer may only set off claims or withhold payments due to defects insofar as it actually has payment claims due to material or legal defects. For other defect claims, the Customer may withhold payments only to an extent proportionate to the defect. Section 4.1 applies accordingly. The Customer has no right of retention if its defect claim is time-barred. Otherwise, the Customer may only set off against or exercise a right of retention with undisputed or legally established claims.
1.5 All rights to the software and provided content remain with the Provider. The Customer receives a non-transferable, non-sublicensable right of use for the duration of the contract.
1.6 The Provider is entitled to prohibit the Customer from further use of the services for the duration of a payment default by the Customer. The Provider may exercise this right only for a reasonable period, generally not exceeding 6 months. This does not constitute a withdrawal from the contract.
1.7 If the Customer fails to settle a due claim in whole or in part on the contractually agreed payment date, the Provider may revoke agreed payment terms for all claims. The Provider is further entitled to perform further services only against advance payment or against security by means of a performance bond from a credit institution or credit insurer authorized in the European Union. The advance payment shall cover the respective billing period or, for one-time services, their remuneration.
1.8 In the event of the Customer's economic inability to fulfill its obligations to the Provider, the Provider may immediately terminate existing exchange contracts with the Customer by withdrawal, and continuing obligations by termination, including in the event of an insolvency application by the Customer. § 321 BGB and § 112 InsO remain unaffected. The Customer shall inform the Provider in writing at an early stage of any imminent insolvency.
1.9 Fixed performance deadlines shall be agreed exclusively in documented form. The agreement of a fixed performance deadline is subject to the proviso that the Provider receives the services of its respective suppliers in a timely and contractual manner.
2. Cooperation, Obligations to Cooperate, Confidentiality
2.1 The Customer and the Provider shall each designate a responsible contact person. Unless otherwise agreed, communication between the Customer and the Provider shall be conducted through these contact persons. The contact persons shall bring about all decisions related to contract performance without undue delay. Decisions shall be documented in a binding manner.
2.2 The Customer is obligated to support the Provider as necessary and to create all conditions required for proper order execution within its operational sphere. In particular, the Customer shall provide necessary information and, where possible, enable remote access to the Customer's system. If, for security reasons or other reasons, remote access is not possible, affected deadlines shall be extended appropriately; the contracting parties shall agree on an appropriate arrangement for any further consequences. The Customer shall also ensure that qualified personnel are available to support the Provider.
2.3 Where the contract provides that services may be performed on-site at the Customer's premises, the Customer shall, at the Provider's request, provide adequate workstations and work equipment free of charge.
2.4 Unless otherwise agreed, the Customer shall ensure proper data backup and contingency planning for data and components (such as hardware, software) that is appropriate to their nature and significance.
2.5 The Customer shall report defects immediately in a comprehensible and detailed manner, providing all information useful for defect detection and analysis in writing. In particular, the work steps that led to the occurrence of the defect, the manifestation, and the effects of the defect shall be specified. Unless otherwise agreed, the corresponding forms and procedures of the Provider shall be used for this purpose.
2.6 The Customer shall reasonably support the Provider upon request in examining and asserting claims against other parties involved in the service provision. This applies in particular to the Provider's recourse claims against its suppliers.
2.7 The contracting parties are obligated to maintain confidentiality regarding trade and business secrets and other information designated as confidential that becomes known in connection with contract performance. Disclosure of such information to persons not involved in the conclusion, performance, or settlement of the contract may only be made with the written consent of the other contracting party. Unless otherwise agreed, this obligation expires five years after the respective information became known, but in the case of continuing obligations, not before their termination.
2.8 The contracting parties shall also impose these obligations on their employees and any third parties they engage.
2.9 The contracting parties are aware that electronic and unencrypted communication (e.g., by email) is subject to security risks. In this type of communication, they shall therefore not assert any claims based on the lack of encryption, except insofar as encryption has been previously agreed.
3. Disruptions in Service Provision
3.1 If a cause not attributable to the Provider, including strike or lockout, impairs adherence to deadlines ("Disruption"), the deadlines shall be extended by the duration of the Disruption, if necessary including a reasonable restart phase. A contracting party shall inform the other contracting party immediately of the cause of a Disruption occurring in its area and the duration of the delay.
3.2 If the effort increases due to a Disruption, the Provider may also demand remuneration for additional effort, unless the Customer is not responsible for the Disruption and its cause lies outside the Customer's area of responsibility.
3.3 If the Customer can withdraw from the contract and/or claim damages in lieu of performance due to improper service by the Provider, or asserts such, the Customer shall, upon the Provider's request, declare in writing within a reasonably set period whether it wishes to exercise these rights or desires continued service provision. In the event of withdrawal, the Customer shall reimburse the Provider for the value of previously existing usage possibilities; the same applies to deterioration through intended use.
3.4 If the Provider is in default of service provision, the Customer's damages and expense reimbursement claims due to default are limited to 0.5% of the price for the portion of the contractual service that cannot be used due to the default for each completed week of default. Default liability is limited to a total of no more than 5% of the remuneration for all contractual services affected by the default; for continuing obligations, based on the remuneration for the respective affected services for the full calendar year. Supplementarily and with priority, a percentage of the remuneration agreed at contract conclusion applies. This does not apply insofar as a default is based on gross negligence or intent by the Provider.
3.5 In the event of a delay in service, the Customer has a right of withdrawal within the framework of statutory provisions only if the delay is attributable to the Provider. If the Customer justifiably claims damages or expense reimbursement in lieu of performance due to the delay, the Customer is entitled to demand 1% of the price for the portion of the contractual service that cannot be used due to the delay for each completed week of delay, but no more than a total of 10% of this price; for continuing obligations, based on the remuneration for the respective affected services for the full calendar year. Supplementarily and with priority, a percentage of the remuneration agreed at contract conclusion applies.
4. Material Defects and Expense Reimbursement
4.1 The Provider warrants the contractually owed quality of the services. No claims based on material defects exist for only an insignificant deviation of the Provider's services from the contractual quality.
4.2 Claims based on defects also do not exist in the case of excessive or improper use, natural wear and tear, failure of system environment components, non-reproducible or otherwise not demonstrable software errors by the Customer, or in the case of damage arising from special external influences not anticipated under the contract. This also applies to subsequent modification or repair by the Customer or third parties, unless these do not impede the analysis and rectification of a material defect.
4.3 For damages and expense reimbursement claims, Section 6 applies supplementarily.
4.4 The limitation period for material defect claims is one year from the statutory commencement of the limitation period. The statutory periods for recourse under § 478 BGB remain unaffected. The same applies where the law prescribes longer periods pursuant to § 438 (1) No. 2 or § 634a (1) No. 2 BGB, in the case of intentional or grossly negligent breach of duty by the Provider, in the case of fraudulent concealment of a defect, and in the cases of injury to life, body, or health, as well as for claims under the Product Liability Act.
4.5 The Provider's handling of a material defect notification by the Customer only suspends the limitation period insofar as the statutory requirements are met. A restart of the limitation period does not occur as a result.
4.6 Supplementary performance (new delivery or repair) may only affect the limitation of the defect triggering the supplementary performance.
4.7 The Provider may demand remuneration for its effort insofar as:
- a) it acts on a report without a defect being present, unless the Customer could not recognize with reasonable effort that no defect existed, or
- b) a reported disruption is not reproducible or otherwise demonstrable as a defect by the Customer, or
- c) additional effort arises due to improper fulfillment of the Customer's obligations (see also Sections 2.2, 2.3, 2.4, and 5.2).
5. Legal Defects
5.1 The Provider is liable for infringements of third-party rights by its services only insofar as the services are used unchanged in the contractually agreed, or otherwise intended, operating environment.
5.2 The Provider is liable for infringements of third-party rights only within the European Union and the European Economic Area as well as at the place of contractual use of the service. Section 4.1, sentence 1 applies accordingly.
5.3 If a third party asserts against the Customer that a service of the Provider infringes its rights, the Customer shall immediately notify the Provider. The Provider and, if applicable, its suppliers are entitled, but not obligated, to defend against the asserted claims at their own expense to the extent permissible.
5.4 The Customer is not entitled to acknowledge third-party claims before giving the Provider a reasonable opportunity to defend against the third-party rights in another manner.
5.5 If a service of the Provider infringes third-party rights, the Provider shall, at its own choice and expense:
- a) procure the right for the Customer to use the service, or
- b) make the service non-infringing, or
- c) take back the service with reimbursement of the remuneration paid by the Customer (less a reasonable usage compensation), if the Provider cannot achieve any other remedy with reasonable effort.
5.6 The Customer's interests shall be appropriately considered in this regard.
5.7 Claims of the Customer based on legal defects are subject to limitation in accordance with Section 4.2. For damages and expense reimbursement claims of the Customer, Section 6 applies supplementarily; for additional effort of the Provider, Section 4.3 applies accordingly.
6. General Liability of the Provider
6.1 The Provider is always liable to the Customer:
- a) for damages caused intentionally or through gross negligence by it, its legal representatives, or vicarious agents,
- b) under the Product Liability Act, and
- c) for damages arising from injury to life, body, or health attributable to the Provider, its legal representatives, or vicarious agents.
6.2 The Provider is not liable for slight negligence, except insofar as it has breached a material contractual obligation whose fulfillment is essential for the proper performance of the contract or whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the Customer may regularly rely.
6.3 This liability is limited to the typical and foreseeable damage for material and financial losses. This also applies to lost profits and unrealized savings. Liability for other remote consequential damages is excluded.
6.4 For an individual claim, liability is limited to the contract value, or in the case of recurring remuneration, to the amount of the remuneration per contract year, but not less than € 50,000. For limitation, Section 4.2 applies accordingly. The contracting parties may agree in writing on further liability at contract conclusion, usually against separate remuneration. An individually agreed liability amount takes priority. Liability pursuant to Section 6.1 remains unaffected by this paragraph.
6.5 Supplementarily and with priority, the Provider's liability for slight negligence under the respective contract and its performance is limited in total, regardless of the legal basis, to the percentage of the remuneration agreed at contract conclusion as agreed in this contract. Liability pursuant to Section 6.1 b) remains unaffected by this paragraph.
6.6 The Provider is liable under a guarantee declaration only for damages if this was expressly assumed in the guarantee. This liability is subject to the limitations pursuant to Section 6.2 in the case of slight negligence.
6.7 In the case of necessary restoration of data or components (such as hardware, software), the Provider is liable only for the effort required for restoration given proper data backup and contingency planning by the Customer. In the case of slight negligence by the Provider, this liability arises only if the Customer carried out data backup and contingency planning appropriate to the nature of the data and components before the incident. This does not apply insofar as this is agreed as a service of the Provider.
6.8 For expense reimbursement claims and other liability claims of the Customer against the Provider, Sections 6.1 to 6.4 apply accordingly. Sections 3.3 and 3.4 remain unaffected.
7. Data Protection
The Customer shall conclude with the Provider the data protection agreements necessary for the handling of personal data.
8. Miscellaneous
8.1 German law applies. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
8.2 The Provider renders its services on the basis of its General Terms and Conditions (GTC). The Customer's GTC do not apply, even if the Provider has not expressly objected to them.
8.3 Acceptance of the services by the Customer constitutes acknowledgment of the Provider's GTC with waiver of the Customer's GTC.
8.4 Other terms are only binding if the Provider has acknowledged them in writing; the Provider's GTC apply supplementarily.
8.5 Amendments and supplements to this contract shall be agreed in text form. Where text form is required under these terms, email is sufficient.
8.6 The place of jurisdiction for merchants, legal entities under public law, or special public-law funds is the Provider's registered office. The Provider may also sue the Customer at the Customer's registered office.