Terms of Service for OpenProject Enterprise Cloud

Last updated: 2021-06-21

§ 1 Preamble

OpenProject GmbH, Karl-Liebknecht-Straße 5, 10178 Berlin, Germany (“OpenProject”) develops and maintains the project management software OpenProject. OpenProject offers this Open Source Software to its customers as Software as a Service (“SaaS”) also.

OpenProject is using these terms to offer customers the benefits and freedoms of an open source application, while continuing to develop the application through an active developer community.

§ 2 Scope

These Terms of Use are for natural or legal entity or a partnership with legal capacity, who want to use OpenProject software as a SaaS solution in their commercial or independent professional activity (hereinafter referred to as Customers). They operate as entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), which is a legal entity under public law or a special investment fund under public law.

No other terms and conditions stipulated by the Customer shall apply, even if OpenProject does not expressly object to their application. Any deviating or contradicting provisions shall therefore only apply if OpenProject has expressly acknowledged such in writing. This shall apply also when referring to the precedence and application of the Customer’s own general terms and conditions, when a quote is submitted or accepted by the Customer.

Along with the statement of work, this Agreement stipulates the only applicable contractual terms and conditions. Any individual agreements made with the Customer in a particular case (including side agreements, additions and amendments) shall always take precedence over this Agreement. Subject to evidence to the contrary, written contracts or acknowledgments from the supplier shall be decisive for the content of such agreements.

§ 3 Rights to use the Software

The subject matter of these Terms of Use is the provision of the services described in the valid service description/subscription, in particular access to the “OpenProject Enterprise Cloud” software (hereafter referred to as “Software”) via the Internet.

The software shall be provided in the OpenProject area of availability (data center to Internet interface) for the agreed term of the contract.

Further details regarding the services that OpenProject will provide, in particular as regards the functional scope of the software or its technical and temporal availability, the data portability, or the applicable service levels, can be found in the service description/subscription.

OpenProject can make updated versions of the software available. The customer will be in any case be informed electronically about the updated versions and any usage instructions.

The currently applicable performance specification can be accessed at any time at https://www.openproject.org/de/rechtliches/leistungsbeschreibung/.

§ 4 Scope of Use

The Customer shall take appropriate security precautions to ensure that no unauthorized persons gain access to the Software via the Customer’s user account. Intended use shall include sharing content with third parties also. For third parties to have permanent access, they must be added as users.

Further software rights of use, in particular the reproduction, sale and/or rental rights thereof or thereto, are not the subject matter of these terms and conditions and not granted.

OpenProject shall have the right to take reasonable technical measures to prevent non-contractual use.

§ 5 Remuneration/Billing

The Customer undertakes to pay the agreed fee in advance for the intended period of use and the number of users as specified by the Customer. Any discounts shall be displayed immediately in the order/booking process and reduce the fee. The fee shall exclude any applicable statutory taxes.

If during the term of the contract, the customer realizes that an insufficient number of users has been booked, an additional booking should be done.

Based on the respective current price list, OpenProject shall be entitled to demand additional payment for services required that are caused by the Customer due to a breach of an obligation pursuant to § 5, or which the Customer has additionally commissioned.

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 six weeks of receiving the invoice. Once this period has lapsed, the invoice shall be 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.

§ 7 Customer Duties

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 their password secret and not to disclose it to third parties.

The customer shall be the responsible person and the sole owner of the processed data. OpenProject shall process data on behalf of the Customer only (See below § 10 Data Protection). The customer shall take advantage of the options provided for backing up the data, notwithstanding any obligation on the part of OpenProject itself to back up the data (see service description for details).

The Customer is obliged to scan their 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 shall use the Software only in accordance with the applicable law, in particular the applicable legislation, court decisions, official requirements or orders, as well as in compliance with the rights of third parties as per these Terms of Use.

The Customer is obliged to compensate OpenProject for all damage that arises from failure to comply with the obligations laid out in paragraph 5 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.

§ 7 Bug-fixing, availability, maintenance, liability for initial defects

Troubleshooting, availability and maintenance details are in the service description.

OpenProject’s strict liability as a result of defects already existing at the time of the conclusion of the contract shall be excluded.

§ 8 Limitation of liability/Account blocking

If unauthorized third parties use OpenProject’s services using the Customer’s login details, the Customer s 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.

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 Terms of Use, that were crucial for the conclusion of the Terms of Use 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 neglected 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.

OpenProject has the right to immediately disable accounts or storage space if it has reasonable grounds to suspect that the stored data is illegal and/or the use of the software is illegal 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.

§ 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).

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.

  1. Good cause exists in particular for one party, if the other party becomes insolvent or ceases its business activities;
  2. 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.

When the contractual relationship ends, OpenProject shall provide the Customer with all the data stored in the storage space allocated to it. The data is released by making it available in the administration interface of the customer’s OpenProject application. The customer can also access the data in the On-Premises Version (Community or Enterprise). The respective terms of use shall apply here.

OpenProject has neither a right of retention nor a statutory lessor’s lien in respect of the Customer’s data.

§ 10 Data protection

To the extent that OpenProject can access the Customer’s personal data, it shall act purely as an order processor for the Customer. The question of the permissibility of order processing shall be the sole responsibility of the customer.

The Parties agree that, in particular, the object and duration of the processing, the nature and purpose of the processing, the nature of the personal data, the categories of persons affected, and the Parties’ rights and obligations in relation to the order processing, will be stipulated in a separate Order Processing Agreement.

§ 11 Right to make amendments

OpenProject reserves the right to amend or adapt the provisions of these Terms of Use and/or the services it is contractually obliged to provide,

  1. 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,
  2. if technical or procedural changes with no significant effects for the Customer render an amendment necessary,
  3. 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
  4. 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.

§ 12 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 OpenProject’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

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.