OpenProject GmbH, Karl-Liebknecht-Straße 5, 10178 Berlin (see the imprint available at https://www.openproject.org/imprint for further details) is an international software developer that develops open source project management software products and distributes them to entrepreneurs as defined in Article 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), legal persons under public law and special funds under public law.
OpenProject also offers its customers services enabling the temporary use of such software products over a telecommunications connection or the Internet as “Software as a Service” by way of access to a server (hereinafter abbreviated to “SaaS”). One of these products is the software provided as SaaS OpenProject Enterprise Cloud.
The Customer is not a consumer but a natural or legal person or a partnership having legal personality which, when entering into a legal transaction, acts in exercise of its trade, business or profession and is therefore an entrepreneur as defined in Article 14 BGB, a legal person under public law or a special fund under public law.
The Customer is concluding this Agreement with the intention of using the aforementioned “OpenProject Cloud Edition” software provided by OpenProject as SaaS via a telecommunications connection.
On this basis, the Parties conclude the following Agreement:
§ 1 Subject of the Agreement
The subject of the Agreement is the supply of the “OpenProject Enterprise Cloud” software provided as SaaS (hereinafter referred to as the “Software”) by OpenProject to the Customer for use over the Internet, limited to the term of the Agreement, as well as the use of storage space on OpenProject’s servers for the application data generated during use of the Software. Details of the services to be provided by OpenProject are laid out in the relevant statement of work. The current statement of work always applies; the Customer can access this at https://www.openproject.org/legal/description-of-services.
Together with the statement of work, this Agreement lays out the only applicable contractual terms and conditions. Any individual agreements made with the Customer in a particular case (including ancillary contracts, addenda and amendments) always take precedence over this Agreement. Written contracts or written acknowledgments from the supplier are definitive for the content of such agreements, subject to counter-evidence.
Any other terms and conditions stipulated by the Customer do not apply, even if OpenProject does not expressly object to the application of them. Any deviating or contradicting provisions therefore only apply if OpenProject has expressly acknowledged them in writing. This also applies if reference to the precedence and application of the Customer’s own general terms and conditions is made when a quote is submitted or accepted by the Customer.
References to the application of legal provisions are only made for clarification. The legal provisions therefore still apply even when such clarification is not provided, unless they are directly amended or expressly excluded in this Agreement.
§ 2 OpenProject’s services
OpenProject provides the Customer with the latest version of the Software over the Internet for a fee for the term of the Agreement. For this purpose, OpenProject keeps the Software on a server which the Customer can access over the Internet. OpenProject gives the Customer defined storage space on a server for the purpose of saving the application data generated during use of the Software. Details of the services to be provided by OpenProject, particularly with regard to the range of the Software’s functions or its technical availability and when it is available, are laid out in the statement of work.
OpenProject fixes software bugs where possible in technical terms. There is deemed to be a bug when the Software does not perform the functions stipulated in the statement of work, produces incorrect results or does not work properly in any other way, so that use of the Software is impossible or limited. Details regarding bug-fixing are laid out in the statement of work.
OpenProject continuously develops the Software and improves it by way of regular updates and upgrades. Details regarding updates and upgrades are laid out in the statement of work.
Details regarding the scope of the support services to be provided by OpenProject in response to queries from the Customer concerning use of the Software covered by this Agreement are laid out in the statement of work.
OpenProject is permitted to use sub-contractors to render the services in accordance with this Agreement. The use of sub-contractors does not release OpenProject from its contractual obligations toward the Customer.
The subject of the Agreement is the latest version of the Software. The Customer has no right to use any other versions of the Software, particularly any older versions.
§ 3 Rights to use the Software
OpenProject grants the Customer an ordinary, non-exclusive and non-transferable right to use the Software specified in this Agreement for the term of the Agreement in the form of SaaS services, using a supported web browser, for the Customer’s own internal business purposes as intended; sub-licenses cannot be granted. The precise scope of intended use, including the permitted number of users in particular, is laid out in the statement of work.
Unless otherwise expressly agreed or expressly permitted in accordance with mandatory legal provisions, the above granting of rights of use is subject to the following restrictions:
The Customer does not have the right to grant sub-licenses or to transfer the rights of use granted to it;
The Customer does not have the right to allow third parties to access or use the Software or the other components associated with it, either free of charge or for a fee; in particular, sub-leasing it is not permitted;
The Customer does not have the right to edit the Software, particularly to modify it, decompile it, reverse engineer it or make other changes to it, unless this is permitted in the statement of work;
The Customer does not have the right to copy the Software or the other components associated with it, unless this is considered intended use of the Software in accordance with the latest statement of work. Necessary copying of the SaaS services includes loading the Software in the primary memory on OpenProject’s server, but not installing or saving the Software on the data storage media (such as hard drives and memory chips) of the hardware used by the Customer, even temporarily.
For clarity, it should be noted here that this Agreement does not include the assignment or transfer of any intellectual property rights to the Software supplied by OpenProject or the other components associated with it to the Customer.
Where applicable, OpenProject provides end user license agreements (hereinafter referred to “EULA”) for third-party software components contained in the Software to the Customer. The scope of the rights of use to be granted by third-party suppliers to the Customer for third-party software components is exclusively based on the relevant third-party supplier’s EULA.
If OpenProject makes changes to the Software during the term of the Agreement, particularly new versions, updates, upgrades or other modifications, the above provisions on the granting of rights of use apply accordingly.
§ 4 Remuneration
The Customer is obliged to pay OpenProject the agreed fee plus VAT monthly, unless otherwise agreed, in return for the provision of services in accordance with Section 2 and the granting of rights of use in accordance with Section 3. Unless otherwise agreed, the fee is based on the OpenProject price list that applies on the date of contract conclusion. The Customer can obtain details of this and of the free-of-charge test phase from the statement of work and the following OpenProject website: https://www.openproject.org/pricing. The customer undertakes to make the payment with the accepted payment methods. Payment by check or PayPal is not allowed.
OpenProject has the right to charge an extra fee based on its current price list for services that the Customer causes as a result of a breach of an obligation laid out in Section 5, that are necessary as a result of improper use or an incorrect software environment, or that are requested by the Customer.
The Customer must submit any objections to the charge for the services provided by OpenProject in writing, to the body stated on the invoice, within eight weeks of receiving the invoice. Once this period has lapsed, the invoice is deemed to have been accepted by the Customer. When sending the invoice to the Customer, OpenProject shall make specific reference to the importance of its conduct.
§ 5 The Customer’s obligations
The Customer is obliged to prevent unauthorized third-party access to the Software or to the other components associated with it, particularly to the secure parts of the Software. The Customer shall take appropriate security precautions to ensure that no unauthorized persons gain access to the Software via the Customer’s user account. For this purpose, the Customer shall advise its employees on compliance with copyright law, where necessary.
To access and use the SaaS services, the Customer creates its own “user ID” and password, which are then required for subsequent use of the SaaS services. The Customer is obliged to keep its “user ID” and password secret and it must not disclose them to third parties.
The Customer remains the sole owner of the data at all times and, notwithstanding any obligations to back up data on OpenProject’s part, remains responsible for entering and updating the data and information required to use the SaaS services.
The Customer is obliged to scan its data and information for viruses or other malware before entering it and to use state-of-the-art virus protection programs to do so.
The Customer is obliged to not use the Software in a way that damages or can damage the Software itself, the other components associated with it or the SaaS services, or that impairs or can impair the availability, accessibility or functionality of the Software itself. In particular, the Customer is prohibited from using it for spam or for storing or spreading viruses or other malware.
The Customer is obliged to only use the Software in accordance with the applicable law, particularly in accordance with the applicable legislation, court rulings, official requirements or orders, whilst respecting third-party rights and complying with this Agreement. In particular, the Customer shall take steps to ensure that it does not store, supply, disclose or use any content in a way that
is punishable by a penalty or fine in accordance with legal regulations,
infringes or could infringe third-party rights, particularly personality rights, rights relating to names, copyrights, industrial property rights such as patents, utility models, trademarks or other rights relating to distinctive signs, rights arising from registered designs or legal rights protected by data protection law,
breaches moral standards, particularly that contains references to pornography, content that is harmful for young people or that glorifies violence, weapons, drugs, other products that pose a risk to consumer safety or propaganda from anti-constitutional organizations and parties; or
is associated with or promotes the purposes or activities stated in (a) to (c).
The Customer is obliged to compensate OpenProject for all damage that arises from failure to comply with the obligations laid out in paragraph 6 and to indemnify OpenProject against all third-party claims, including those relating to any lawyers’ fees and court costs which are incurred in this regard, that third parties make against OpenProject as a result of failure by the Customer to comply with these obligations.
The content filed and saved by the Customer when using the Software may be protected by copyright and data protection law. The Customer hereby grants OpenProject the right to make the content stored on the server accessible to the Customer, at its request, over the Internet for use of the SaaS services, particularly to copy and transmit this for this purpose and to copy it for the purpose of backing up data.
§ 6 Bug-fixing, availability, maintenance, liability for initial defects
During the term of the Agreement, OpenProject shall fix bugs in the Software in accordance with the statement of work where possible in technical terms. There is deemed to be a bug when the Software does not perform the functions stipulated in the statement of work, produces incorrect results or does not work properly in any other way, so that use of the Software is impossible or limited. Details of categories of bugs and how bugs are handled, the availability of the Software and the SaaS services, disruptions to availability, maintenance periods and additional services such as support, where applicable, are laid out in the statement of work.
OpenProject shall immediately notify the Customer of any maintenance work and perform it as quickly as possible subject to technical conditions.
The Customer must report bugs immediately, in writing or electronically. When reporting the bug, the Customer must place the bug in one of the fault categories stated in the statement of work. The Customer shall provide OpenProject with all the information about the reported bug that is required to identify and fix the bug.
The above provisions do not affect the provisions laid out in Section 7.
Except for in the cases of intent and gross negligence laid out in Section 7(3) and in the cases laid out in Section 7(6), strict liability for damages on the part of OpenProject (Section 536 a BGB) is excluded in relation to defects that existed when the Agreement was concluded.
§ 7 Limitation of liability
If unauthorized third parties use OpenProject’s services using the Customer’s login details, the Customer is liable for any resulting charges in line with civil liability up to the point of receipt of the Customer’s request to change its login details or notification of the loss or theft thereof, where the Customer is to blame for such unauthorized third-party access.
OpenProject has the right to immediately disable storage space if it has reasonable grounds to suspect that the stored data is illegal and/or infringes third-party rights. In particular, there are reasonable grounds for suspicion of illegality and/or an infringement of rights if courts, authorities and/or other third parties inform OpenProject of this. OpenProject must inform the Customer of the ban and the reason for it immediately. The ban is lifted as soon as the suspicions are refuted.
Damages claims against OpenProject on any legal grounds are excluded, unless OpenProject or its legal representatives or agents have acted with intent or gross negligence.
OpenProject only accepts liability for ordinary negligence if OpenProject or its legal representatives, executive employees or agents have breached one of its fundamental contractual obligations. In this case, OpenProject only accepts liability for foreseeable damage that could typically have been expected to occur. Fundamental contractual obligations are obligations that form the basis of the Agreement, that were crucial for the conclusion of the Agreement and that the Customer can expect to be fulfilled.
OpenProject shall not be held liable for the loss of data if the damage is due to the fact that the Customer has failed to back the data up and to therefore ensure that lost data can be restored with reasonable effort.
OpenProject accepts unlimited liability for damages arising from loss of life, physical injury or damage to health caused by OpenProject or its legal representatives or agents through intent or gross negligence.
§ 8 Force majeure
OpenProject shall not be held liable if it is unable to render its services due to force majeure. Force majeure events are external events that are unrelated to the Company’s operations and that cannot be avoided, even with the utmost diligence, e.g. natural disasters of any kind, particularly earthquakes, floods, storms, volcanic eruptions and pandemics, but also those that are less likely, such as riots, blockades, boycotts, fires, civil war, embargoes, hostage situations, war, revolution, sabotage, strikes (in relation to a third party), terrorism or manufacturing disruptions in an industrial sense. This also includes service disruptions on the part of OpenProject’s subcontractors if the subcontractor is unable to render the service it is obliged to render due to a force majeure event in accordance with the above clause.
The Party concerned shall immediately inform the other Party of the occurrence and end of the force majeure event and endeavor to the best of its ability to remedy the force majeure event and limit its effects as much as possible.
If a force majeure event means that a Party cannot fulfill an obligation from this Agreement (except for payment obligations) on time, this obligation is suspended for the duration of the force majeure event. Performance periods or deadlines are extended or postponed for the duration of the hindrance resulting from force majeure, plus a reasonable grace period. The Party affected by the force majeure event shall inform the other Party of the length of time for which this non-performance or delay is expected to last.
If the Customer cannot be reasonably expected to use or approve a service as a result of the delay, it can withdraw from the Agreement by immediately submitting written notice to OpenProject. The Customer must still pay for the services rendered by OpenProject up to this date.
If a force majeure event makes the provision of one of the Party’s services extremely difficult or even impossible and the hindrance is not merely temporary, the Party has the right to terminate the Agreement.
This does not affect either Party’s right to terminate the Agreement with good cause if a force majeure event lasts for a longer period of time. The grounds for termination laid out in Section 9 are not affected.
The provisions of this Section do not affect Section 7.
§ 9 Term and termination of the Agreement
The contractual relationship begins when the Customer signs up and registers for use of the Software (contract conclusion).
Unless otherwise agreed with the Customer, the Agreement is concluded from the date of contract conclusion in accordance with paragraph 1 for a minimum term of 12 months. Subject to any agreement to the contrary with the Customer, the Agreement is then automatically extended for an extension period of 12 months unless it is terminated by the Customer up to one day before the end of the minimum term or the extension period. The Customer can obtain details of the contractual term from the statement of work and the following OpenProject website: https://www.openproject.org/pricing
Both Parties’ rights to terminate the Agreement without notice with good cause are not affected. There is good cause when the Party terminating the Agreement cannot be reasonably expected to continue with the contractual relationship until the agreed expiry date or the end of a notice period, taking all of the circumstances of each particular case and both Parties’ interests into account. Termination without notice is always subject to the requirement that the other Party is warned and requested in writing to remedy the alleged grounds for the termination without notice within a reasonable period of time.
In particular, a Party has good cause if the other Party becomes insolvent or ceases to trade.
In particular, OpenProject has good cause if the Customer ceases to make payments despite a reminder and a grace period or breaches the contractual provisions regarding use of the SaaS services.
OpenProject has neither a right of retention nor a statutory lessor’s lien in respect of the Customer’s data.
§ 10 Data protection
The Customer shall comply with the applicable legal data protection regulations when using the Software. OpenProject is not the controller as defined in Article 4(7) GDPR in this respect.
The Parties agree that the object and duration of the processing, the nature and purpose of the processing, the nature of the personal data, the categories of data subjects and the Customer’s rights and obligations in relation to the processing in particular will be stipulated in a data processing agreement.
§ 11 Transfer of rights and obligations
OpenProject has the right to assign or transfer contractual rights and obligations from this Agreement to an affiliated company (Article 15 of the German Stock Corporation Act (Aktiengesetz, AktG)) or to a legal successor of the majority or a significant part of OpenProject’s business.
The Customer cannot assign or transfer its contractual rights and/or obligations from this Agreement to another party without prior written consent from OpenProject. Section 354a of the German Commercial Code (Handelsgesetzbuch, HGB) is not affected.
§ 12 Right to make amendments
OpenProject reserves the right to amend or adapt the provisions of this Agreement and/or the services it is contractually obliged to provide
if these must be adapted to the applicable law, particularly in the event of changes in the legal situation or developments in case law or if OpenProject has to comply with a legal or official ruling,
if technical or procedural changes with no significant effects for the Customer render an amendment necessary,
if OpenProject offers new or additional services that have to be included in the Agreement and this does not entail any disadvantages for the existing contractual relationship with the Customer, or
if the changes entail only legal benefits for the Customer.
The Customer is notified of amendments in writing by email. If the Customer does not object to the change within six (6) weeks of receiving such notice, the amendments are deemed to have been accepted by the Customer. The Customer is specifically advised of its right to object and the legal consequences of remaining silent.
The Customer’s rights regarding termination of the contractual relationship in accordance with Section 9 are not affected.
§ 13 Applicable law, place of performance, place of jurisdiction
This Agreement is subject to German law, to the exclusion of the UN Sales of Goods Convention.
The exclusive place of jurisdiction for disputes arising from this Agreement is Berlin’s registered office in Berlin. OpenProject also has the right to make claims in the location where the Customer is registered, however. The same also applies if the Customer does not have a general place of jurisdiction in the Federal Republic of Germany. The applicable legal provisions otherwise apply with regard to local and international jurisdiction.
§ 14 Other provisions
No verbal ancillary agreements have been made. Amendments, additions and additions to this Agreement are only valid if the Parties to the Agreement have agreed them in writing. This also applies to the amendment of this contractual provision.
If this Agreement is delivered to the Customer in a different language, this is done only to aid understanding. Only the German version is definitive for legal effects on the Parties.
If individual provisions of the Agreement concluded by the Parties are invalid or contravene legal regulations, this does not affect the rest of the Agreement. In this case, the Parties to the Agreement enter into negotiations and replace the invalid provision by mutual agreement with the legally valid provision that most closely reflects the economic meaning and purpose of the invalid provision. If the Parties to the Agreement cannot reach an agreement in this regard, the legal provisions apply in this regard. The above provision also applies in the event of loopholes.