This translation is NOT legally binding and a working translation only. Legally binding and relevant, particularly in case of any discrepancies, is solely the German text.
General License and Terms of Use for SaaS Product azuma mimoto
This License and Terms of Use Agreement (hereinafter "Agreement") is entered into between azuma healthtech GmbH ("azuma") and your organization (hereinafter "Customer" or "you") as of the Effective Date (as defined below). The person accepting these Terms on behalf of the Customer represents that he or she has the authority to bind the Customer to this Agreement. If the person does not have such authority or does not agree to the terms of this Agreement, that person may not accept these Terms and may not use a Free Trial.
1. Scope of Application
1.1.
azuma offers the Customer the opportunity to use the software provided against payment of monthly usage fees. The software is licensed to you in accordance with the following conditions and the license agreement.
1.2.
These General License and Usage Agreements govern the contractually limited use of the software in the form of SaaS (Software as a Service).
1.3.
The software is a full service authorization solution for connection to the healthID infrastructure (sector IDPs and Federation Master). It is integrated as a software module into the Customer's existing software solution. The end user of the software has a contractual relationship with the Customer. Login via the HealthID is used independently of the contractual relationship between the Customer and the end user.
1.4.
azuma may from time to time make changes to the conditions of this user agreement. In this case, azuma will notify the Customer in text form with a notice period of 4 weeks. Unless otherwise stated, the amended terms shall take effect immediately and the Customer's continued use of the services and software confirms acceptance of the amendments. If the Customer does not wish to accept the amended terms and conditions, the Customer must cease using the services and software.
2. Provision
2.1.
azuma shall provide the Customer with the latest version of the software on a server located in Europe for access by the Customer via the World Wide Web. Subject to compliance with these Terms of Use and applicable law, you may access the software provided by azuma for which you have received a license. Your licenses expire at the end of the term specified in your order document or upon termination. You agree that your decision to use the software is not contingent on the provision of any future functionality or features or dependent on any oral or written public comments made by azuma regarding future functionality or features.
2.2.
The scope of services and characteristics of the software are set out in the Product Data Sheet, which is updated when changes are made. The software may be automatically updated by azuma from time to time. These updates may take the form of bug fixes, new functions or new versions. You agree to receive such updates as part of your use of the software.
2.3.
The software is usually integrated into the Customer's software products. azuma is therefore only responsible for the licensed software module. azuma assumes no responsibility for other services and software of the Customer towards the end customer.
2.4.
The number of accesses and thus software users per Customer depends on the contractual agreement on which the provision is based or the additional terms of use.
2.5.
azuma remains the sole owner of all rights, property rights and claims in connection with the software. Except as stated in the terms, azuma does not grant the Customer any rights to copyrights, trade secrets, trademarks or other rights with respect to the components in the software.
2.6.
The Customer grants azuma the right to use the Customer as a reference Customer with a Customer logo (to be provided by the Customer), including the Customer's name, for advertising purposes in print and electronic media, free of charge and without restriction in terms of time, place or content.
2.7.
At the end of your license term, azuma will use commercially reasonable efforts to enable you to transfer your content from the services. End user data will not be transferred. The transfer must be completed within 30 days of the effective date of termination or the end of your license term. At the end of this 30-day transition period, azuma reserves the right to delete your content.
2.8.
After the end of the contract, the Customer can have their client deleted by sending a deletion request to azuma in text form.
3. Permitted Use
3.1.
Subject to full monthly payment of the contractually agreed usage fee due, the Customer shall receive the simple, non-exclusive, non-sublicensable (with the exception of the Customer's end customers) and non-transferable right to use the software, limited to the term of this contract.
3.2.
The intended use of the software is described in the Product Data Sheet.
3.3.
Unless otherwise agreed, the software shall not be transferred to the Customer. The Customer may only use the software for its own business activities.
3.4.
The Customer may not modify the software or examine it by means of so-called "reverse engineering", decompile it, break it down into its components and/or use it as a basis for the creation of its own software programs.
3.5.
The Customer may not carry out any attacks or load tests with the software or otherwise accept that the performance of the software is impaired. Upon request, azuma can provide load tests that it has carried out itself.
3.6.
The Customer is liable for ensuring that the software is not used for unlawful purposes (in particular GDPR) or purposes that violate official regulations or requirements or that corresponding data, in particular, is not created and/or stored on the server or locally.
3.7.
azuma grants access to the DEV environment free of charge. If the Customer is granted access to the software for testing purposes, such access is subject to these terms of use. At any time before or during the free trial period, azuma may, at its sole discretion, terminate the free access without prior notice and without any liability to the Customer, to the extent permitted by applicable law, for any reason, including to prevent misuse of the free trial access. After expiry of the free trial period, which is determined individually by azuma and the Customer, you can only continue to use the software by registering for a paid subscription. During the free trial period, no express or implied warranties apply to the software. The software is provided "as is" with all faults. There is no obligation to provide technical or other support.
4. Application Data
4.1.
All data that is created or generated during the term of the contract through the permitted use of the software provided by azuma by the end user (client of the Customer) is application data.
4.2.
azuma is authorized to process all collected and stored data in accordance with the (data protection) legal basis. The processing of personal data takes place on the basis of Art. 6 para. 1 lit. b GDPR. This data is processed as part of the fulfillment of the contract, among other things to ensure trouble-free operation. azuma is also entitled to evaluate all collected and stored application data that is not personal. This is done in particular for the purpose of customer support, billing and optimization of the application.
4.3.
Application data created in the course of a trial version can be deleted at the end of the trial access. In this respect, there is no right of return.
4.4.
azuma backs up the application data on the server several times a day at regular intervals.
4.5.
azuma does not access application data from the Customer application.
5. Deletion of Data
Upon termination of this license agreement, the Customer's client data will be deleted. The deletion must either be requested by the Customer in text form or an automatic deletion can take place after at least. 180 days.
6. Technical Requirements for Access
The requirements depend on the respective system requirements, which are specified in the Product Data Sheet.
azuma shall take technical measures to ensure that unauthorized systems cannot access the end user's data. The Customer must ensure that no unauthorized technical access by third parties is possible by handling clients/access tokens correctly.
7. Intellectual Property
7.1.
The Customer shall not be entitled to any rights that are not expressly granted to the Customer.
7.2.
This license agreement does not grant any property rights/intellectual property rights or comparable rights to the software. All intellectual property rights remain with azuma even with the acquisition of a license in accordance with this license agreement. In particular, the Customer is not entitled to use the software beyond the agreed scope or to have it used by third parties or to make it accessible to third parties without written permission from azuma. In particular, it is not permitted to reproduce, sell or transfer the software to third parties for a limited period of time, especially not to rent or lend it.
7.3.
azuma uses third-party software products (open source software). Click here for more information.
8. Legal Consequences of Violations
If the Customer violates one of the provisions of these license conditions, this entitles azuma to extraordinary termination if the Customer does not remedy the legal violation within 30 days of being requested to do so.
9. Availability
The availability of the software is at least 99.5% on an annual average, based on twenty-four hours a day and seven days a week. Excluded from the availability are downtimes due to maintenance and software care, in particular planned unavailability, as well as times in which the software cannot be reached due to technical or other problems that are beyond azuma's control (e.g. force majeure, fault of third parties, etc.).
10. Obligations of the Customer
10.1.
The Customer shall ensure that the software is used exclusively within the scope of the permitted use in accordance with 3. and shall protect this permitted use with suitable and necessary measures. The Customer shall inform azuma immediately if it suspects that access may be used by unauthorized persons.
10.2.
The Customer is responsible for all activities that occur under its and its end users' logins for the service. The Customer shall use the service in accordance with this agreement, the applicable order forms, the documentation and all applicable laws and shall not:
(i) copy, rent, sell, lease, distribute, pledge, assign or otherwise transfer or encumber the service or any portion thereof or make it available to anyone other than its users;
(ii) send or store infringing or unlawful material in connection with the service;
(iii) send or store malicious code to the service;
(iv) attempt to provide unauthorized access to the service or the data contained therein or interfere with its integrity or performance;
(v) modify, copy or create derivative works of the service or any part thereof;
(vi) access the service to create a competing product or service or copy its features or user interface;
(vii) delete, alter, amend or fail to reproduce azuma's name and any copyright or other notices appearing in or on the service or required by azuma at any time.
10.3.
The Customer shall notify azuma in text form of any impairments to the use of the software that it believes should be remedied by azuma. In the notification, the Customer shall describe the existing impairment of use as specifically as possible, in particular the conditions under which it occurs, symptoms and effects.
10.4.
The Customer shall ensure that all third-party rights are observed when handling the software and the data it contains or is created. This also includes ensuring that the necessary attention is paid to data protection when using the software and that all necessary consents for data processing are obtained.
10.5.
Any use of the service that violates this Agreement, the Documentation or the Order Forms and, in azuma's judgment, jeopardizes the security, integrity or availability of the service may result in the immediate suspension of the Customer's access to the service by azuma; however, azuma will make all commercially reasonable efforts under the circumstances to notify the Customer and provide the Customer with an opportunity to cure the violation or jeopardy prior to such suspension.
11. Usage Fee
11.1.
The usage fee and scope of use are contractually agreed or are based on azuma's offer.
11.2.
Other services such as user support or training require a separate contractual agreement.
11.3.
All remuneration is due plus VAT at the statutory rate applicable in each case and is payable in advance for the respective agreed invoicing period
12. Warranty Exclusion
Unless otherwise specified in these Terms of Use or other additional terms and conditions, the software is provided "as is". To the extent permitted by law, azuma disclaims all express and implied warranties, including the implied warranties of non-infringement, merchantability and fitness for a particular purpose. azuma assumes no liability in connection with the content of the Customer's services. azuma further disclaims any warranty that
(A) the software will meet your requirements or will be available on an uninterrupted, timely, secure and error-free basis;
(B) the results obtained from the use of the software will be effective, accurate or reliable;
(C) the quality of the software will meet your expectations; or
(D) any errors or defects in the software will be corrected.
13. Limitation of Liability
13.1.
Unless otherwise specified in additional terms, azuma shall not be liable to the Customer or any third party for any special, incidental, indirect or consequential damages whatsoever and howsoever caused, including any loss or damage
(A) resulting from loss of use, loss of data, loss of reputation, loss of revenue or loss of profits;
(B) resulting from any other claim relating to your use of or access to the services or software.
In the event of gross negligence, willful misconduct by azuma or its employees or death or personal injury, azuma's liability shall not be limited or excluded by any provision contained in these Terms.
13.2.
azuma's total liability with respect to matters arising in connection with the Terms shall be limited to the greater of
(A) EUR 5,000 or
(B) the total amount paid by you for access to software during the three-month period prior to the event giving rise to the liability.
13.3.
These Terms govern azuma's entire liability and your exclusive remedy with respect to access to and use of software.
14. Termination
14.1.
Each contracting party may terminate this license and usage agreement with a notice period of three months to the end of the month, unless another agreement has been concluded for this purpose.
14.2.
Unless otherwise provided in an additional agreement, azuma may terminate or suspend your right to use and access the services or software at any time if
a) you breach a material contractual obligation (or act in a way that shows that you do not intend to or are unable to fulfill the contractual obligation)
b) you fail to pay any fees for the software on time.
c) this is necessary for azuma for legal reasons (e.g. if the provision of the software to you is or becomes illegal).
14.3.
Upon expiration or termination of this License and Usage Agreement, the software may cease to function in whole or in part without prior notice.
15. Data Protection
Both azuma and the Customer shall comply with the applicable data protection regulations during and in connection with the execution of this contract.
azuma will process personal data on behalf of the Customer as part of the provision of services. For this purpose, the parties agree on the provisions of the Data Processing Agreement (DPA), which must be approved separately. The current version of the DPA can be accessed at any time via the above link.
16. Data Usage
If the Customer transmits data to azuma for the purpose of order fulfillment, it is agreed that azuma has the right to use and exploit this data. This data processing serves the purposes of product optimization and the development of new services.
17. Miscellaneous
17.1. Assignment.
You may not assign or otherwise transfer the Terms or your rights and obligations under the Terms, in whole or in part, without azuma's written consent. Any such attempt is void. azuma may assign its rights under this User Agreement to a third party.
17.2. Partial Ineffectiveness.
Should one of the provisions of these Terms of Use prove to be invalid, ineffective or unenforceable for any reason, the remaining provisions shall remain in full force and effect. The invalid, ineffective or unenforceable provision shall be replaced by a valid provision that comes as close as possible to the legal and economic intention of the invalid, ineffective or unenforceable provision.
17.3. Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to azuma) under the Terms if the delay or failure is due to unforeseen events occurring after the effective date of the Terms and which are beyond the reasonable control of the parties, such as strikes, blockades, wars, terrorism, riots, natural disasters, if any such event prevents the affected party from performing its obligations or prevents you from fulfilling your obligations, such as strikes, blockades, wars, terrorism, riots, natural disasters, refusal of authorization by the government or other governmental authorities, provided that such event prevents or delays the affected party from performing its obligations and such party is unable to prevent or remedy the force majeure at reasonable cost.
17.4.
This user agreement is subject to German law. The place of jurisdiction is Munich.