1. Scope of Application
1.1. Sawayo/Infoniqa offers a digital administration service in the area of compliance and contract management, time recording and absences, as well as other services for entrepreneurs. The SaaS product enables entrepreneurs to manage parts of their entrepreneurial and employer obligations as well as contract management in an efficient and structured manner. This SaaS product is intended for business use only and is intended for business users.
1.2. These Terms and Conditions govern the legal relationship between Sawayo/Infoniqa and the Contracting Party in relation to the provision and use of Software-as-a-Service products and the Subscription Service.
2. Definition of terms
2.1. "Subscription" or "Subscription" refers to a specific type of provision of Software or Digital Services in which the Contracting Party gains access to the Services. This is a continuous service in which the contractual partner has access to the software or services of Sawayo/Infoniqa over a certain period of time.
2.2. "T&Cs" means these Terms and Conditions for Software as a Service (SaaS) & Subscriptions.
2.3. "Software as a Service or SaaS Services": In the case of Software-as-a-Service (SaaS), the Subscription Service includes access to the Software via the Internet without the need for the Contracting Party to physically purchase or install the Software.
2.4. "Sawayo/Infoniqa" means the company of the Infoniqa Group that enters into a contract with the Contracting Party for the provision of Software as a Service and/or a Subscription under the inclusion of these T&Cs.
2.5. "Infoniqa Group" means all companies affiliated with Infoniqa Holding GmbH that are legally independent companies.
2.6. "Contracting Party" means the company that enters into a contract with Sawayo/Infoniqa for the provision of Software as a Service (SaaS) and subscriptions in accordance with these GTC.
2.7. "Contracting Parties" means Sawayo/Infoniqa and Contracting Parties.
2.8. "Contracting Party" means Sawayo/Infoniqa or Contracting Party.
3. Priority of Application/Exclusion
3.1. The agreements made individually between the contracting parties (including ancillary agreements, supplements, amendments, extensions, etc.) take precedence over these GTC.
3.2. The Contracting Party confirms that it has read, understood and accepted these T&Cs.
3.3. Sawayo/Infoniqa reserves the right to amend or supplement the T&Cs at any time if this is necessary due to changes in the legal, economic or technical framework conditions. The Contracting Party will be informed of the changes to the T&Cs by posting the amended T&Cs on the website of the
Sawayo/Infoniqa and the effective date is indicated; furthermore, the contractual partner receives information to the e-mail address used for the exchange between the contracting parties. If the contractual partner does not object to the amended GTC within a period of 14 days after publication, the amended GTC shall be deemed to have been accepted by the contractual partner. In the event of an objection by the contractual partner to the amended T&Cs, Sawayo/Infoniqa reserves the right to terminate the contractual relationship.
3.4. The content of all agreements pursuant to this paragraph 3 requires a written contract or written confirmation by Sawayo/Infoniqa in order to be valid.
3.5. These T&Cs and all documents referred to herein shall apply exclusively. Deviating, conflicting or supplementary GTC of the contractual partner shall only become part of the contract to the extent that the contracting parties expressly agree on their validity in writing. This consent requirement on the part of Sawayo/Infoniqa always applies, even if, for example, Sawayo/Infoniqa begins to provide the service without reservation in knowledge of the general terms and conditions of business or purchase of the contractual partner.
4. Registration/conclusion of contract and content of the contract
4.1. The use of SaaS Services requires registration by providing an e-mail address and a username or by means of a single sign-on procedure via a third-party provider. A contract is concluded as soon as the contractual partner has completed the registration process in full and declares his acceptance of these GTC by clicking on the button "Complete registration" (or a similar name of the button). Upon completion of the registration, a binding contractual relationship is established between Sawayo/Infoniqa and the contractual partner.
4.2. When registering, the Contracting Party provides its e-mail address and assigns a password, which can be changed at any time and must be kept secret in any case. After registration, the contractual partner receives a user account.
4.3. The Contracting Party may create sub-accounts in its account for other persons authorised to access its company. The contracting party is then considered the administrator of these accounts and is responsible for determining the authorizations that the individual sub-accounts have. In addition, he is responsible for ensuring that the sub-accounts are used in accordance with the regulations set out here.
4.4. The Contracting Party may only register one personal account per e-mail address. Multiple accounts for different purposes (e.g., for different tenants) are allowed, as long as they are set up properly. Accounts and sub-accounts are not transferable to third parties and may only be used by the contractual partner himself. Use by other persons, for example by passing on the password, is not permitted. Violations of the above provisions entitle Sawayo/Infoniqa to terminate the contractual relationship without notice and to immediately delete the account including all sub-accounts of the contractual partner.
4.5. Sawayo/Infoniqa points out that it cannot guarantee complete availability of the Software. Due to reasons outside the sphere of Sawayo/Infoniqa, there may be restrictions and impairments of parts or all of the Services. Sawayo/Infoniqa is exempt from the obligation to perform in such phases.
4.6. Planned works that lead to an impairment of availability will be carried out by Sawayo/Infoniqa, as far as possible, during low-traffic periods. The display quality of the digital content may also vary from device to device and may depend on the speed of the contractual partner's Internet connection and other factors. In this respect, Sawayo/Infoniqa cannot be held liable for any deviations.
4.7. Sawayo/Infoniqa may adapt the Services due to, for example, new technical developments, changes in the law, changes in case law, changes in economic parameters, etc., and in this context change the technical characteristics and functionality. If, from the point of view of the Contracting Party, such adjustments significantly reduce the originally agreed services or the parameters are changed in an unreasonable manner for the Contracting Party, Sawayo/Infoniqa shall have four weeks prior to the implementation of the adjustment to inform the Contracting Party thereof. If the contractual partner does not object within these four weeks of receipt of the notification, the change shall be deemed to have been approved by mutual agreement. If the Contracting Party does not accept the changes, both Contracting Parties are entitled to terminate the Contract with effect from the time the amendment comes into force.
4.8. Unless otherwise agreed in the Agreement, Sawayo/Infoniqa does not owe any other services, in particular no installation, setup, consulting, adaptation and/or training services. If the contractual partner makes use of these services, the agreed hourly rates will be charged. If no hourly rates have been agreed, the standard hourly rates of Sawayo/Infoniqa will be charged. Further information about the Services, for example in flyers, brochures, homepages, etc., is not part of the Services, unless this information has also expressly become part of the contract.
4.9. A fee-based contract is concluded exclusively in the Software. The content of the contract is based exclusively on the current service description in the software at the time of registration. This can also be viewed under www.sawayo.de/preise . The prices displayed on the website are informative and may differ – the prices displayed in the software at the time of conclusion of the contract are binding.
4.10. Sawayo/Infoniqa makes the Software available to the Contracting Party via a website (Cloud Software). In order to retrieve the content, the contractual partner requires an internet-enabled device, a browser installed on it and an internet connection. The owed software is made available for use at the router exit of the data center in which the server with the software is located ("transfer point"). The contractual partner is responsible for the stability of the Internet connection.
5. Rights of access and use, blocking of access, rights of third parties
5.1. The Contracting Party is granted a right of use, limited to the term of this Agreement, to load the user interface of the Software into the working memory of the end devices used for this purpose in accordance with the Agreement for display on the screen and to make the resulting reproductions of the user interface, and has the right to access and use the respective Services for internal use for business purposes in accordance with the Agreement. The rights of use are non-transferable and non-exclusive.
5.2. The contractual partner must ensure that user and identification authorizations assigned to him or his users are protected from access by unauthorized third parties. Should unauthorized third parties nevertheless gain access, the contractual partner must report this immediately to Sawayo/Infoniqa.
5.3. The Contracting Party shall ensure that the services offered are not misused in any way, in particular no data with illegal content is transmitted. The Contracting Party also confirms that it will not access any data without authorization or interfere or cause to be interfered with on the software operated by Sawayo/Infoniqa or its subcontractors, or penetrate the networks of Sawayo/Infoniqa or its subcontractors without authorization.
5.4. Sawayo/Infoniqa is entitled to temporarily or permanently block the Contracting Party's access to the respective Service if there is a suspicion that the Contracting Party is or has violated these GTC, the Contract and/or applicable law, or if Sawayo/Infoniqa has a legitimate interest in the blocking (e.g. IT maintenance, cyber attacks, imminent insolvency of the Contracting Party, default of payment, etc.). In the event of a possible blocking, Sawayo/Infoniqa will appropriately assess and take into account the interests of the contractual partner in advance and, if possible, threaten in writing in advance. In individual cases and in the event of imminent danger, this can also be done without prior notice. Sawayo/Infoniqa's entitlement to remuneration for services remains unaffected during the blocking.
5.5. The Services may only be used by the Contracting Party and only for the purposes agreed in the Agreement. The contractual partner may access the respective services during the term of the contract and use the agreed functionalities in accordance with the contract. The contractual partner does not receive any additional rights, in particular to the Sawayo/Infoniqa software, the associated IT services or the infrastructure services that may be provided. Any further use of the Services requires the prior written consent of Sawayo/Infoniqa. Sawayo/Infoniqa reserves all rights to work products, trademarks, know-how and other industrial property rights that exist for the respective services or that arise in connection with the use of the services.
5.6. In particular, the contractual partner is not permitted to make use of services beyond the agreed scope of use or to have them generally used or made accessible by third parties. Any further exploitation is prohibited to the contractual partner.
6. Subcontractors
Sawayo/Infoniqa is entitled to commission suitable, competent subcontractors for (parts of) the Services. This also includes support services provided by other companies in the Infoniqa Group. However, any claims for performance and liability can only be asserted against Sawayo/Infoniqa.
7. Involvement of the Contracting Party
7.1. The Contracting Party shall ensure that all cooperation services required for the provision of the contractually agreed services are provided in a timely and complete manner. Furthermore, employees of the contractual partner who accompany the provision of services for the contractual partner must be available at the agreed times and these employees must be trained, educated and experienced accordingly.
7.2. The Contracting Party is prohibited from using mechanisms, software or other scripts in connection with the use of the SaaS Services that impair the functionality or accessibility of the Software or to modify, delete or overwrite content created and managed by Sawayo/Infoniqa.
7.3. If the contractual partner's obligations to cooperate are not performed or are not sufficiently performed, Sawayo/Infoniqa shall be released from the obligation to perform in whole or in part to the extent that Sawayo/Infoniqa is dependent on the respective cooperation. If this results in additional expenses for Sawayo/Infoniqa, this will be invoiced separately according to the expenses; any further claims remain unaffected by this.
7.4. The Contracting Party is obliged to inform Sawayo/Infoniqa immediately of any use that exceeds the contractually agreed use (in particular if the agreed scope of services is exceeded). In this case, the contractual partner is obliged to sign an additional agreement, which also shows the additional use and the additional remuneration for this (retroactively from the day of the exceedance). Sawayo/Infoniqa is entitled to check compliance with the scope of services at any time.
7.5. The Contracting Party is obliged to report any functional failures, malfunctions or impairments to Sawayo/Infoniqa immediately and as precisely as possible.
7.6. The Contracting Party is solely responsible for keeping documents in accordance with the applicable legal norms.
7.7. The Contracting Party is solely responsible for the accuracy and timeliness of the information provided. Likewise, the contractual partner is responsible for the availability and reliability of the communication links used by him in accordance with the provisions of the GTC.
7.8. Sawayo/Infoniqa does not provide legal, accounting or tax advice to the Contracting Party; he is solely responsible for it.
8. Remuneration
8.1. The entitlement to remuneration arises upon conclusion of the contract and is based on the service and price description in the Software valid at the time of registration. If a free trial period is granted, no compensation will be charged for the duration of the trial period. The amount of the remuneration is calculated according to the agreed scope of services in connection with the selected calculation cycle (usually monthly or annual) and must be paid in advance. The use of the Services is monitored and recorded in order to capture actual consumption within the framework of a pay-per-use model. The different remuneration for the additional or reduced use of the Services in accordance with the pay-per-use model will be invoiced or credited in the following month after the end of the selected term. Any credit from a previous period will be credited in the next calculation cycle; the credit balance will not be paid out, not even if the contract is terminated.
8.2. Additional services in excess of the agreed scope of services will be remunerated either monthly or upon completion of the activities to be performed, whichever is earlier. Billing is based on the agreed hourly rate or a flat rate. If no specific remuneration agreement has been made, Sawayo/Infoniqa's standard hourly rates apply.
8.3. Unless otherwise agreed, all prices are to be understood in euros plus the statutory value added tax to be borne by the contractual partner in the applicable amount.
8.4. All invoices are to be paid without any deduction within 10 days of the invoice date, unless otherwise agreed in writing. The day of payment is the day on which the money is received in the account of Sawayo/Infoniqa.
8.5. The Contracting Party has a period of 10 days after receipt of the invoice to object in writing to Sawayo/Infoniqa about the invoice received and to complain about any discrepancies or errors. If no written objection is made by the contractual partner within this period, the invoice is considered accepted and binding. Objections to the invoice after the expiry of the above-mentioned 10-day period will not be considered by the Company, unless there is a demonstrable error or obvious inaccuracy.
8.6. One-off services or work, in particular in the context of the necessary implementation of the services requested by the Contracting Party, but which are not part of the services agreed in the contract, will be invoiced by Sawayo/Infoniqa on the basis of a separate agreement. In the absence of such an agreement, Sawayo/Infoniqa will issue an invoice in accordance with the price list in force at the time.
8.7. Sawayo/Infoniqa reserves the right to adjust the prices of the products and/or services in order to take into account, for example, changed market conditions, rising labour costs, significant changes in procurement costs or other factors. Sawayo/Infoniqa will notify the Contracting Party of the change in writing at least four weeks before it takes effect.
8.8. Offsetting is only permissible with undisputed or legally established claims. A right of retention can only be exercised if it is based on the same contractual relationship.
8.9. In the event of late payment, the statutory default interest will be charged. The assertion of claims beyond this remains unaffected.
9. Deficiencies in performance
9.1. A defect in the Services exists if they do not have the contractually agreed quality or functionality. If the condition has not been agreed upon or has not been agreed in detail, it must be assessed in accordance with the statutory provisions whether a defect exists or not.
9.2. The Contract Partner must report defects in relation to the contractually agreed services immediately and in writing, stating the information known and available to him. The defects must be described in detail so that the elimination of defects is made easier accordingly. Furthermore, the contractual partner must make findings with regard to the defects that facilitate the determination of causes.
9.3. If it turns out that there is no defect or that Sawayo/Infoniqa is not responsible for the disruption of the service, Sawayo/Infoniqa is not obliged to make a possible change. Should the service nevertheless be changed, the contractual partner is obliged to bear the costs incurred.
9.4. Sawayo/Infoniqa may, at its sole discretion, remedy defects in the Services by eliminating, circumventing or replacing them. If Sawayo/Infoniqa does not successfully complete the remedy of the defect within a reasonable period of time, the contractual partner must set Sawayo/Infoniqa a further reasonable grace period. After the expiry of the grace period, the contractual partner may demand an appropriate reduction in the remuneration or terminate the contract. If it is unreasonable to set a grace period, it can be omitted.
9.5. A reduction of the ongoing remuneration for the Services is only permissible if the reduction claim is undisputed or has been legally established.
9.6. If the Contracting Party makes changes to the Services without the consent of Sawayo/Infoniqa and thereby causes defects, the Contracting Party shall have no claims whatsoever to remedy the defects. If the contractual partner wishes to remedy the defect in such cases, the costs will be invoiced separately accordingly.
10. Liability
10.1. Sawayo/Infoniqa shall only be liable for damages incurred by the Contracting Party through the use of the Services in the event of intent or gross negligence.
10.2. Liability for damages due to injury to life, limb or health as well as under the Product Liability Act remains unaffected by the above limitation of liability.
10.3. In all other respects, Sawayo/Infoniqa shall only be liable for damages that are based on a culpable breach of a material contractual obligation or main performance obligations. Liability is limited to the foreseeable damage typical of the contract. The foreseeable damage typical for the contract is the damage that Sawayo/Infoniqa foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or that Sawayo/Infoniqa should have foreseen if it had exercised customary care. Indirect and consequential damages that are the result of a non-contractual provision of services are also only compensable to the extent that such damages are typically to be expected when the services are used as intended. However, damages are limited to EUR 50,000 per claim.
10.4. The above limitations of liability also apply to the vicarious agents and procurement agents of Sawayo/Infoniqa or to the personal liability of the employees, representatives and bodies of Sawayo/Infoniqa.
10.5. Unless expressly agreed otherwise, the warranty period for Services is one year from the date of delivery. This warranty period applies regardless of the statutory provisions and excludes the assertion of warranty claims after the expiry of the one-year period. The extension of the scope of use does not trigger a new warranty period.
10.6. Claims for damages shall become time-barred within one year and, unless otherwise specified, the period shall commence at the end of the year in which the claim arose. This shall not apply to claims pursuant to subsection (1).
11. Confidentiality & Data Protection
11.1. The Parties agree not to disclose Confidential Information (means information about the content of the Agreements, as well as any information made available to a Party by the other Party, and any information and knowledge that a Party has been able to gain through or in the course of cooperating with the other Party under this Agreement that has not already been obtained in a lawful manner and without breach of confidentiality agreements) and used exclusively for cooperation with the other contracting party.
11.2. The obligation of confidentiality does not apply to information
- which were already known to a Contracting Party at the time they were made available to it by the other Contracting Party, without any obligation to treat them confidentially, or
- which were already in the public domain at the time they were made available to one Party by the other Party or later became publicly available through no fault of the Party, or
- which a party to the contract has lawfully received from a third party without any obligation of confidential treatment, or
- where the other party has expressly waived confidentiality by means of a written declaration to the party.
11.3. The obligation of confidentiality shall also not apply to the extent that a Contracting Party is obliged to disclose the confidential information on the basis of statutory provisions or court or official orders. In the event of such a possible obligation to disclose, the other Party shall be informed immediately.
11.4. Sawayo/Infoniqa is entitled to refer to the contractual relationship with the contractual partner in an appropriate form in brochures and publications (e.g. reference lists), this includes the use of the company logo of the contractual partner. If the Contracting Party does not agree to this, it will inform Sawayo/Infoniqa accordingly in writing or in text form.
11.5. In the event of a breach by the Contracting Party of the obligation of confidentiality regulated herein, the Contracting Party undertakes to pay an appropriate contractual penalty to be determined by Sawayo/Infoniqa and reviewable by the competent court, without prejudice to the assertion of further claims (in particular claims for damages) by Sawayo/Infoniqa. Liability does not apply if proof is provided that fault does not lie with the contractual partner.
11.6. The assertion of further claims for damages remains unaffected.
11.7. The Contracting Party is also responsible for compliance with all relevant statutory data protection provisions, in particular for the lawfulness of the data transfer and data processing of personal data of its employees and other data subjects in connection with the provision of services by Sawayo/Infoniqa. Sawayo/Infoniqa will only process the personal data of the contractual partner within the scope of the contractually owed provision of services and in accordance with the provisions of data protection law.
11.8. Upon conclusion of the contract, the order processing agreement attached as Annex 1 to the GTC shall be concluded between the contracting parties. Appendix 1 can be viewed under www.sawayo.de/auftragsverarbeitung .
12. Term & Termination
12.1. The contractual relationship is subject to a minimum term corresponding to the duration of the selected calculation cycle (usually monthly or annual), which begins with the conclusion of the contract or with the changeover to another calculation cycle. The contract can be terminated at the end of the agreed minimum contract period in the software; otherwise, the contract will be automatically extended by the minimum term or another, newly selected calculation cycle.
12.2. The contracting parties always reserve the right to extraordinary termination for good cause. Good cause exists, among other things, if there are facts which, taking into account all the circumstances of the individual case and weighing up the interests of the contracting parties, can no longer be expected of a contracting party to continue the contract. If this situation is based on the breach of a contractual obligation of a contracting party, a reasonable grace period must be set in advance to eliminate the good cause.
12.3. Sawayo/Infoniqa is always entitled to terminate for good cause if the contractual partner is at least 30 days in arrears with payment. There is no need to set a grace period.
12.4. Upon termination of the contractual relationship, regardless of the reason, (i) all rights of use and other rights granted to the contractual partner in the context of the contractual relationship shall cease; (ii) all Confidential Information under the Contractual Relationship shall be returned by each Contracting Party in a readable data format at the request of the other Contracting Party, to the extent technically feasible; and (iii) all royalties will be payable immediately.
12.5. Prior to termination of the contract, the Contracting Party shall be independently responsible for ensuring that all data required by it is backed up and transferred to a system of the Contracting Party at the latest upon termination. Upon termination, Sawayo/Infoniqa will delete the data in accordance with legal provisions.
12.6. Sawayo/Infoniqa reserves the right to offer the Contracting Party a free trial period. The contractual partner can terminate the user relationship at any time until the end of the agreed trial period or (if available) select a service package offered by Sawayo/Infoniqa. If no cancellation or package selection is made by the end of the trial period, the user account will be inactive after the end of the trial period.
13. Miscellaneous provisions
13.1. The place of performance for all contractual obligations shall be the registered office of the company concluding this contract.
13.2. Sawayo/Infoniqa is ready at any time to transfer rights and obligations arising from the contractual relationship with the contractual partner to other companies of the Infoniqa Group.
13.3. Additional terms and conditions of the contractual partner are not recognised. Any terms and conditions that may be referred to in offers, order confirmations or other documents of the contractual partner are invalid.
13.4. Amendments and additions to the contract must be made in writing in order to be effective, this also applies to the waiver of this written form requirement. The telecommunicative transmission of declarations, in particular by e-mail, is sufficient for this purpose, provided that the transmitted declarations are sent by authorised employees.
13.5. Should one or more provisions of the contract or the contractual relationship be or become void or legally invalid, they shall not apply. This did not affect the validity and legal validity of all other contractual provisions. The non-applicable provisions shall be replaced by what best corresponds to the will of the contracting parties in terms of the content and meaning of the provision.
13.6. The contract or contractual relationship shall be governed exclusively by the law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), in which the Infoniqa company concluding the contract is located. The application of the rules of private international law is excluded to the extent that it would lead to the application of foreign law. The parties agree to the exclusive jurisdiction of the competent court in which the Infoniqa entity concluding the contract has its registered office.
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