Linkando Terms of Use

PREAMBLE

As “Software as a Service (” SaaS “) solutions, LINKANDO offers various services based on the use of Linkando standard software by the customer. The platform is accessed via the Internet via a cloud infrastructure. One of these SaaS solutions is the Digital Assemblies product (“SaaS solution”), which is marketed via the website www.digital-assemblies.co.uk or www.dig-ital-assemblies.com.

The customer intends to use the SaaS solution based on the Linkando standard software and understands its scope of services.

LINKANDO will provide the SaaS solution permanently on the Internet and operate it for its customers.

1. BASICS

  1. LINKANDO provides the agreed operating and maintenance services exclusively on the basis and in accordance with the provisions of these Terms of Use and their appendices and the provisions of the Data Processing Agreement for Linkando Cloud Services (add URL). General terms and conditions of the customer do not apply. This also applies if Linkando does not expressly object to the validity of such conditions.
  2. The following appendices exist for these Terms of Use

2. SCOPE OF OPERATING SERVICES

  1. LINKANDO operates the platform and makes it available for retrieval and use on the Internet, whereby the usability of the overall functionality and not that of the individual modules and functions is essential. The agreed availability of the platform results from the SLA (Appendix 1). If availability is not regulated in the SLA, a minimum availability of 98% applies during the contractually agreed operating and service times. Maintenance times and the times in which the contractor carries out unplanned maintenance work after notification with a period of at least six hours are not included in the availability. Overall, the hosting of the platform, ensuring stable, high-performance and trouble-free operation and continuous availability on the Internet, the technical maintenance of the platform, the integration of the data and content provided by the customer as well as the protection of such data and content against loss and unauthorised access to the essential tasks of LINKANDO.
  2. Part of the services is a powerful connection of the platform to the Internet and ensuring that the platform can be accessed without interruption and interference (with all subdomains). The daily backup of the content and data of the platform is also part of the services. LINKANDO will set up a sufficient number of password-protected online accesses to the website for the customer’s employees or external service providers commissioned and named by the customer, in particular so that the customer can maintain or have the content of the platform updated himself. LINKANDO is responsible for the technical requirements and framework conditions for access and the display and editing of the content of the platform by the customer.
  3. LINKANDO must procure the software licenses required to provide the operating services itself and at its own expense, unless the licenses are designated as a provision of the customer. On request, LINKANDO provides the customer with all information relevant to licensing law at any time, with which the customer can prove the legally compliant use of the software to third parties.
  4. Changes to the systems used by the contractor to provide the operating services require the prior written consent of the customer if they
    1. restrict the customer’s ability to review and control data under data protection law,
    2. increase existing risks or create new risks,
    3. cause additional costs or effort for the customer or
    4. have a negative impact on the price or quality of operational services.
  5. LINKANDO provides the customer with documentation in the form of a wiki or other online formats. The documentation has to describe the functionalities of the platform in such a way that a technically qualified user with appropriate prior knowledge can use it to independently maintain the platform’s contents. LINKANDO must always keep the documentation up to date during the term of this SaaS contract.

3. SERVICE PROVISION

  1. LINKANDO has to provide the services according to the recognised state of the art and in accordance with the respectively applicable legal, official and other regulatory requirements, relevant technical regulations and general norms and safety standards.
  2. LINKANDO is particularly responsible for ensuring that the services are provided in accordance with the relevant data protection provisions, the provisions on IT and data security and the storage of data.
  3. LINKANDO shall be obliged to involve the customer’s contact person if and to the extent necessary for the provisioning of the services.
  4. LINKANDO provides the contractual services independently and with its own employees. LINKANDO employees are not subject to any professional instructions from the customer.

4. SUBCONTRACTORS

  1. The customer hereby authorises LINKANDO to have the contractually agreed services or parts thereof performed by subcontractors, provided the following conditions are met:
    1. In the event of any further transfer of obligations, it must be guaranteed that the third party obliged in this way also fulfils the obligations existing between the customer and LINKANDO. LINKANDO undertakes to design its contractual agreements with subcontractors only in accordance with the provisions of these terms of use. LINKANDO remains responsible for the performance of the activities and tasks outsourced to the subcontractor to the same extent as if they were carried out by LINKANDO itself.
    2. LINKANDO will evaluate the security, data protection and confidentiality practices of a subcontractor prior to their selection in order to determine that they are able to offer the level of protection of customer data required in this contract; and
  2. The consent to the commissioning of the subcontractors listed in the data processing agreement (in particular the data centre operator) is deemed to have been granted upon conclusion of the contract.
  3. The use of subcontractors takes place at LINKANDO’s discretion, provided that the following regulations are observed:
    1. LINKANDO will inform the customer in advance (by email) of any planned additions or replacements within the list of subcontractors, including the name, address and role of the new subcontractor; and
    2. the customer can make such changes in accordance with section 4.4 contradict.
  4. If the customer has a legitimate reason to object to the involvement of the new subcontractor, he must notify LINKANDO of this objection within 14 days. Within a thirty-day period from the date of LINKANDO’s notification to the customer in which the customer is informed about the new subcontractor, the customer can request that the parties come together in good faith and discuss a solution to the objection.
  5. LINKANDO can exchange a new subcontractor without prior notification if the reason for the exchange is beyond the reasonable control of LINKANDO and the immediate exchange is necessary for security or other urgent reasons. In this case, LINKANDO will inform the customer about the new subcontractor immediately after his appointment. Section 4.4 applies accordingly

5. MAINTENANCE SERVICES

  1. LINKANDO will maintain the platform with all its components as a whole from a single source. The main task of LINKANDO is to maintain the operability, operational readiness and performance of the platform as well as the hardware and software used for its operation. In order to ensure the fulfilment of this task, LINKANDO will maintain the hardware and software it uses by means of suitable measures and repair them if necessary. For technical reasons, LINKANDO can temporarily interrupt or restrict the platform for maintenance. During times outside of the operating and service hours (maintenance times), the platform may still be available, possibly with interruptions and restrictions, and its use may be technically possible; however, there is no entitlement to use. LINKANDO provides the maintenance services listed in this Clause 5 and described in more detail in the SLA (Appendix 1). The remuneration for these maintenance services is – unless otherwise stated below – via the uniform monthly usage fee.
  2. LINKANDO provides the customer with updates and other new versions and releases of the standard software components on which the platform is based, as well as the software used for operating the platform, in consultation with the customer after their publication and imports them into the platform. LINKANDO also provides the customer with other adaptations and further developments of its standard software components (e.g. addition of new functions). Expenses for customer-specific adaptation of such further developments are to be paid for separately by the customer.
  3. LINKANDO will advise the customer in the context of maintenance on all questions that arise for the customer in the use and operation of the standard functions of the platform and the standard software components on which the platform is based. To do this, he sets up a hotline that can be reached by telephone and email during normal operating hours (see SLA).
  4. LINKANDO will analyse and correct errors and other malfunctions that occur during the operation of the website and / or become evident in the associated documentation as part of incident management. The response and troubleshooting times specified in the SLA (Appendix 1) apply here.
  5. Fault elimination includes the limitation of the cause of the error, error diagnosis and elimination of the error or, as a transition to final error elimination, restoring the operational readiness of the platform by bypassing the error and its effects (workaround). In the event of a temporary bypassing of the error through a workaround, the final elimination of the error must be made up for using the preventive care service described below.
  6. The customer-specific maintenance services, in particular adjustments (customizing), settings (parameterizations), interfaces and additional programming must be fully releasable with regard to future updates of the standard software components used. In this respect, LINKANDO guarantees that the individual adjustments and additions created by it for the customer as well as additional programming can be run on the platform used without further expenditure.
  7. If legal or regulatory changes make it necessary to adapt and / or supplement the platform or individual functions, LINKANDO will implement these in good time before they come into force. If these changes affect the customer-specific design or customer-specific components of the platform, these changes will be commissioned by the customer as part of a change order. If changed customer-specific compliance requirements require a significant adaptation and / or addition to the platform or individual modules or functions, these must also be commissioned and paid for separately by the customer.
  8. LINKANDO has to document all changes and additions made to the platform and to inform the customer about the scope and type of changes made. He will always keep the documentation provided to the customer up to date.

6. INTEGRATION AND MAINTENANCE OF DATA AND CONTENT

  1. The customer continuously provides LINKANDO with data for integration on the platform or provides them himself. This can be the customer’s own data or data from external data providers with whom the customer has concluded corresponding contracts. The data and content provided by the customer to LINKANDO are protected by copyright in favour of the customer (or his data suppliers and licensors for third-party data and third-party content). The customer grants LINKANDO the simple right, limited to the duration of this SaaS contract, to display the data and content made available by him (own and third-party) exclusively via the platform (including all subdomains) and to reproduce and use them for this purpose to make publicly available, as well as to save the data and content for the purpose of data backup. In particular, LINKANDO is not entitled to pass on the customer’s data to third parties outside the platform or to make them accessible.
  2. The contractor does not receive any further rights to the data and content made available.

7. SERVICE LEVELS

Error classes, reaction and troubleshooting times, recovery times after a disaster, data integration times and the owed availability are defined and described in the SLA (Appendix 1).

8. PARTICIPATION OF THE CUSTOMER

  1. The customer will support LINKANDO in providing the contractual services to an appropriate extent and in good time. The customer is obliged to provide LINKANDO with all information necessary for the respective execution of the order in accordance with the service description in a timely and complete manner.
  2. LINKANDO continuously monitors the proper provision of cooperation services and, in the event of non-compliance with a cooperation period, immediately requests the customer in writing or in text form to provide the outstanding services. If necessary, LINKANDO offers paid support in providing the agreed cooperation services.
  3. If LINKANDO is of the opinion that the provision of services is hindered by the fact that the customer does not meet an obligation to cooperate, does not fulfil it in a timely manner or does not fulfil it properly, LINKANDO shall notify the customer of this in writing, stating the relevant circumstances, in order to avoid any breach of an obligation to cooperate to keep the resulting delay or increase in effort as low as possible.

9. CONFIDENTIALITY AND DATA PROTECTION

  1. LINKANDO undertakes to keep the documents, information and data that the customer has identified as “confidential” (hereinafter referred to as “confidential information”) made available to it or that has come to its attention due to or occasionally for the services to be provided by the customer for the duration and after, to treat the termination of the use of the Linkando platform confidentially and to secure it against unauthorised access. Confidential information includes, in particular, that which has been provided or made accessible
    • Business or trade secrets of the customer or third parties, as well as
    • Information that is subject to data protection
    • Information that represents competitive know-how and
    • other information, provided that it is marked as confidential.
  2. The confidential information may only be used by LINKANDO in the context of the fulfilment of the contract and the purpose of the contract. In addition, they may not be recorded, saved, reproduced, passed on or used or exploited in any form for your own purposes.
  3. Incidentally, LINKANDO may only pass on confidential information of the customer if this is required by statutory provisions or orders from state bodies or if the customer has expressly consented to this in writing. LINKANDO will notify the customer immediately – insofar as this is legally permissible – as soon as an authority asks for information about the customer’s confidential information or is subjected to other sovereign measures.
  4. The confidentiality agreement does not include information,
    • which are or will become generally known or publicly available;
    • which LINKANDO has lawfully received from third parties who are not subject to any confidentiality obligation in this regard;
    • which LINKANDO has demonstrably developed independently of the customer.
  5. The parties undertake to comply with the applicable data protection law. The parties agree that the services of the contractor represent order data processing in the form of the storage and processing of data of the customer and – if it is not personal data – such data must also be legally, technically and organisationally protected in the same way, like personal data. Accordingly, the provisions of the order processing agreement apply uniformly to the processing of all data on behalf of the customer.

10. USAGE RIGHTS

  1. The customer is entitled to use the software on which the platform is based (individual developments and standard software components of the contractor, hereinafter referred to as “software”) for the intended use in accordance with the following regulations.
  2. LINKANDO grants the customer a simple, non-exclusive, time-limited, non-transferable right to use the software.
    The right of use includes in particular the right to use the software
    1. to reproduce non-publicly and publicly on any media for any purpose and to make it non-publicly and publicly accessible in networks (in particular on the Internet or an intranet),
    2. to connect to databases, networks and online services via interfaces, including the right to make the software available to users of the databases, networks and online services for use;
    3. for closed user groups (especially also external service providers or suppliers of the customer), including the right to make the software available in whole or in part to the users of such user groups,
    4. not only to use it for their own purposes within the framework of the platform, but also to use it within the framework of other (online) services of the customer and to provide services to third parties and / or to grant third parties simple rights of use for their own use of the platform.
  3. All rights to the names, brands, logos and other identifications of the customer used in the creation of the platform as well as to the design elements and other content made available by the customer remain exclusively with the customer (or his licensors) in relation to LINKANDO. LINKANDO receives from the customer those simple rights of use to the marks, content and other protectable objects brought in by the customer that he needs to operate the platform in accordance with the contract. Any further use is not permitted for LINKANDO.

11. FREEDOM FROM THIRD PARTY RIGHTS

  1. LINKANDO guarantees that the contractual services and their use by the customer do not infringe the rights of third parties. As far as open source software is used, LINKANDO guarantees that the contractual use of the platform by the customer does not violate the applicable open source license conditions.
  2. The customer will inform LINKANDO immediately of all claims made by third parties and will not recognise such claims without the consent of LINKANDO.
  3. If the rights of third parties are infringed by the software provided by LINKANDO or individually created, or by the use and / or exploitation of the platform (or other services or work results), LINKANDO shall at its own expense and at its option
    • either give the customer the right to use it in accordance with the contract, or
    • design the platform or other work results in such a way that they fall outside the scope of protection of the rights of the third party and nevertheless comply with the contractual provisions, or
    • replace the platform or other work results with other, equivalent software or work results that do not infringe any industrial property rights.

12. LIABILITY

  1. Unless otherwise agreed in the individual contract between the parties, the following liability regulations apply.
  2. LINKANDO pays damages, regardless of the legal reason, as follows:
    1. in the event of intent, gross negligence and the breach of an essential contractual obligation in full;
    2. In all other cases, liability is limited to the damage that LINKANDO would typically have to expect, but limited to a maximum of twice the annual user fee per damage event and year, unless LINKANDO can prove lower damage.
  3. The objection of contributory negligence remains open. The legal liability for personal injury and according to the product liability law remains unaffected.

13. TERMINATION RIGHTS

  1. LINKANDO has the right to extraordinarily terminate the user relationship for important reasons. This is especially true when one party violates the confidentiality and data protection regulations set out in this contract or in Annex 2 or any other essential contractual obligation and does not cease this violation within the period set for this even after a corresponding request by the other party

14. OBLIGATIONS ON END OF CONTRACT/DATA TRANSFER

  1. The customer is obliged to use the export function available on the platform for his own content in good time before the end of the contract.
  2. LINKANDO is obliged to support the customer in the event of termination of use in transferring the content of the platform to a subsequent provider. “Follow-up provider” is the customer himself or a third party commissioned by the customer. This applies regardless of the reason and by whom this SaaS contract is terminated. LINKANDO’s services are remunerated based on the current price list.
  3. The customer can request LINKANDO to support him in transferring the content of the platform to the subsequent provider by providing the customer’s content in CSV file format and uploaded documents in ZIP file format free of charge. The files must be accessed by the customer in self-service.

15. FINAL PROVISIONS

  1. UK law applies exclusively to the exclusion of the UN Sales Convention (CISG).

APPENDIX 1 – SERVICE LEVEL AGREEMENT (SLA)

Summary the service description (“Services Level”) of our “Basic Service” offer:

  • Support Access:
  • Support Times:
    • Mondays to Fridays (except on UK bank holidays) from 8 a.m. to 5 p.m. One support day therefore corresponds to 9 hours.
    • All times outside of the support hours are not included in the response times.
  • Availability:
    • The minimum availability is 98%
  • Response Times, First Response and Max. Use
    • The following response times (measured in support time) are agreed in the Basic Service:
      • Critical support cases: Max. 10 hours (1 day)
      • Other support cases: Max. 30 hours (3 days)
      • Booking requests for live support: Max. 30 hours (3 days)
    • First reaction to support cases:
      • Within the above we confirm response times:
        • The receipt of the support case report
        • An initial confirmation and, if necessary, evaluation of the incident.
        • A message about the next steps we plan to take to solve the problem, if the solution could not be achieved with or before the first response.
      • The first response goes to the inquirer, if possible via the access channel via which we were informed of this support case.
    • Maximum Usage:
      • There is no restriction on “critical support cases”
      • There are no restrictions on “other support cases”, but we can reject support cases that obviously require advice or training as a support case (see below).
      • Live support is not included in basic support. If live support is required, this is classified as a consulting service and provided separately and billed at £ 150.00 per hour.
  • Contact Person and Access:
    • The customer can name up to 2 people at the same time who are entitled to support.
      This means:
      • Support cases in the “Critical” category (see below) can be submitted by these people via the above-mentioned accesses. (NOTE: Support cases in the “Other” category can also be brought in by other people, as long as this person can be clearly associated with the customer. Answers to these inquiries would then also be sent to at least one person authorised to contact support)
      • These people can consume our live support (see below).
      • These people receive individual access to our support centre in the Linkando community
    • Dedicated contact person:
      • (This service is not included in the basic support) We provide the customer with a member of our team as a personal contact in order to assist our internal team in processing support cases and to communicate with them to coordinate the customer in “critical” support cases. The contact person is familiar with the project and the current status of the project. The respective contact details are known to the customer.
  • Support Cases, Categories:
    • Critical support cases:
      • Critical support cases are problems that significantly affect the use of the Linkando SaaS product, including:
        • „Service downtime “, i.e. the SaaS product is not available.
        • „Functional Failure“, i.e. a partial function is not available, but is certainly required at the time of the support message or within 2 days afterwards.
        • „Login Failure“, i.e. Users cannot log into the solution to a large extent and simple „Forgotten Password“ errors are excluded as a reason.
        • „Data Breach“, i.e. there is a suspicion of unauthorised access to data. This includes both generally unauthorised access by third parties as well as unauthorised access to protected areas by users.
        • „Subjective Perception“, i.e. A person entitled to support evaluates the process as being critical on a purely subjective basis, since it is a subjectively critical situation for the customer, even if it is not a critical situation in the technical sense. In general, we always want to accept the assessment of our customers, but in this case we reserve the right to reject the support case as a critical case and to evaluate it as a “different support case”.
    • Other Support Cases:
      • All support cases that are not classified as critical support cases.
      • We reserve the right to reject support cases that obviously require consulting or training services as support cases and to have the further provision of services clarified with the customer via the dedicated contact person (see above).
    • Live-Support:
      • Live support is not a support case in the sense of an error, but an interactive support service from our team.
      • With live support, we reserve online availabilities for our customers who are authorised to support them after making an appointment, so that we can work with the customer live in a video conference on a task of the customer’s choice. This can be an interactive problem solution as well as a desired configuration change or training unit.
      • Live support is offered with a maximum availability per month. Unused times expire at the end of the month.
      • The minimum duration of a live support session is 30 minutes. If the customer is not available online within 5 minutes of the agreed appointment, the time not used will be counted as time used.
      • Live-Support Live support is offered by appointment and should be booked at least 3 days in advance and cancelled at least 1 day in advance (cancellation on the evening before the appointment is sufficient). Our employees are not obliged to postpone other appointments if they are already booked elsewhere during the customer’s requested time (first-come, first-served principle).
  • Monitoring and Reporting
    • System-monitoring
      • We have the SaaS system continuously monitored with a proactive monitoring solution based on a Datadog agent.
      • The customer gets access to a website with excerpts from this monitoring data, as far as they concern the customer and his systems.
      • We are informed about potential system failures, overloads and other performance counters via the proactive system messages from monitoring.
    • Messages
      • Messages from the monitoring system that provide usable information for the customer and to which he should react if necessary are proactively communicated to all users authorised to support via our system blog via the Linkando Community.
      • We also provide information on the system blog about
        • Unscheduled maintenance windows
        • General important system information
        • Notes from our system sub-service providers that are important for our customers
      • The customer decides for himself via his profile settings whether he wants to receive these messages by email and the Linkando mobile app.
  • Extended Support Services
    • Based on this basic SLA, additional support levels can be offered and ordered. The service descriptions of these SLAs will be sent separately if required.