DocuWare Online Terms of Service – USA
DocuWare AG (“DocuWare“) provides for use to you DocuWare Live Trial as part of DocuWare Online Services free of costs. The free usage period lasts for 30 days. After that it automatically prolongs until DocuWare cancels the service at any time with 7 days notice. Such notice will be sent via e-mail.
Your full agreement to these Terms of Service is prerequisite of your use of the DocuWare Online Services. You must not use DocuWare Online Services if you do not agree to these Terms. You are accepting these Terms by clicking on a respective button or a respective form field when ordering DocuWare Online Services.
If you are entering into this agreement on behalf of a company or other legal entity, you confirm that you have the authority to bind this entity to these DocuWare Online Terms of Service. In this case the terms “You” or “Your” in the subsequent paragraphs shall refer to this entity. If you do not have the authority you must not accept these terms and must not use the DocuWare Online Services.
Right of Use
You shall obtain access to the DocuWare Online Services which are offered partly for a fee and partly for free. You will be provided with details about the Services and the respective fee once access to the DocuWare Online Services has been granted. Effective use of the DocuWare Online Services requires that you have appropriate computer systems and appropriate internet connections.
Access to Data
When using the DocuWare Online Services you are granting DocuWare access to all data which you transfer to DocuWare Online Services within the course of use of the DocuWare Online Services. You are further granting access to such data on your own computer systems as you make accessible for the use of DocuWare Online Services by installation of the programs pertinent to this purpose (e.g. automatic upload services, scan client programs etc.). The scope of the data access by DocuWare is set forth below.
Types of Data
The DocuWare Online Services distinguish the data to which you grant access in four categories. Commercial data include all data relating to the set-up and the maintenance of the business relationship between you and DocuWare. This includes address, contact person, scope of use and payment terms. Organizational data contain all information about the configuration of the DocuWare Online Services which were made according to your needs by you or a person authorized by you. This includes archive structure, user accounts and rights of access. Usage Data are those data which you or other users whom you authorized accordingly when configuring the DocuWare Online Services transfer to the DocuWare Online Services for storage and provision within the course of the ongoing use of the DocuWare Online Services. These are mainly document files and information about these files which serve to categorize and retrieve the files, so-called index data. Connection data are those data which are exchanged within the course of the communication between web pages and local computer systems (e.g. user behavior, cookies, IP addresses, browsers and operating systems used etc.). All four mentioned categories may contain personal data. Data are personal if they are unequivocally associated with a specific individual or if such association may – at least indirectly – be established.
You are using the DocuWare Online Services as a member of a defined organization. Such an organization shall represent your company, your agency, your association or any other team of which you are a member or which has commissioned you within the DocuWare Online Services. Generally, other users of the DocuWare Online Services are a part of the organization and you will share with them access to the Organizational Data and the Usage Data of this organization. The first user set up upon the initial installation of an organization will automatically receive administrator rights and thus the possibility to set up further user accounts and to grant or withdraw access rights to Organizational and Usage Data to or from other users of the organization. Administrator rights may be transferred to other users of an organization at any time. By agreeing to these Terms of Service you as bearer of administrator rights are assuming unrestricted responsibility and liability for each of the organization’s members you set up.
DocuWare shall ensure that the users of the DocuWare Online Services receive access exclusively to Organizational and Usage Data of the organization of which they themselves are members. The restrictions of data access for users within the organization to which they belong, respectively, is solely within the responsibility of those users of an organization who hold the corresponding administrator rights.
DocuWare and commissioned third party contractors, if any, shall use the access to the data regarding all types of data solely to ensure the smooth operation of the DocuWare Online Services as well as to improve and further develop such, unless otherwise stated in the following paragraph “Transfer of Data”. Access to your Usage Data in the ongoing operation by any persons who are not members of your organization is excluded by technical precautions or restricted to special maintenance needs. By implementing appropriate control systems, DocuWare ensures that an access to data – both within the scope of special maintenance needs and ongoing operation – occurs solely under strict confidentiality and in compliance to the statutory data protection requirements.
Within an organization, an exchange of data occurs which is outside the control of DocuWare. The administrator is thus required to inform each user who receives access to the organization about the respective data protection provisions in force and to obtain his/her signature to a pertinent confidentiality statement, if applicable. By agreeing to these Terms of Service you acknowledge that you are aware that in particular the user of your organization endowed with administrator rights has very extensive access to all data and documents of the organization and may assign such rights to other users of your organization, as well. Any responsibility on the part of DocuWare for any infringements arises solely to the extent that these infringements are based on a system error for which DocuWare is responsible. In this respect, therefore, DocuWare merely provides the environment for data exchange between the users of an organization. DocuWare does not assume any responsibility for issues of confidentiality and/or data protection within an organization.
Transfer of Data
To the extent that applicable data protection law does not provide otherwise, you agree that DocuWare may use parts of your Commercial Data in order to develop business or to expand the business relationship with you.
The data processing center used to provide the DocuWare Online Services meets the technical, structural and organizational requirements of large modern data processing centers. The DocuWare Online Services regularly and redundantly store all Organizational Data and Usage Data. Redundancy is ensured by mirroring the data storage on two independent systems, which are separated at least insofar as they are installed in different fire areas of a building. The safeguarding against data loss above and beyond the said measures taken by DocuWare is solely your responsibility.
The data processing center used to provide the DocuWare Online Services and to store the related data is located within the European Union or within the United States of America.
The term of the DocuWare Online Services depends upon the scope of services you ordered.
The possibility to use DocuWare Online Services provided for free (e.g. for testing purposes) automatically ends upon the expiration of the agreed period of free use. DocuWare Online Services shall inform about the upcoming end of the period of free use at least 7 days ahead of time by emailing the email address indicated by you in the Commercial Data.
DocuWare Online Services subject to a fee are initially available until the end of the term agreed upon the start of use. After expiration of the first term, the provision will automatically extend by terms of one month, respectively, until the use is duly terminated by you or by DocuWare.
Due termination by you is possible at any time by giving notice of 7 days prior to the end of a term through a user of your organization endowed with administrator rights.
Due termination of DocuWare Online Services by DocuWare is possible at any time by giving notice of 60 days prior to the end of a term. Due termination by DocuWare shall be effected by registered mail or by an electronic medium of equivalent access protection to the invoice recipient specified in the Commercial Data.
Invoice, Payment, Default
Payments for DocuWare Online Services subject to a fee are due monthly in advance. Payment shall be effected using the payment method agreed at the start of the period of use. If payment is not received by DocuWare within 7 days after the due date, you will automatically be in default on the 8th day, unless you are able to prove by submitting a valid payment order that the failure to receive payment was attributable to DocuWare. You may cure the default and its consequences by ensuring DocuWare receives payment of the outstanding arrears and any other payments due at that time no later than within 20 days after onset of the default. DocuWare shall inform you about the onset of the default by email to the email address specified in the Commercial Data of the invoice recipient.
Automatic End of Term
The possibility to use DocuWare Online Services subject to a fee shall automatically cease 30 days after you fell into arrears with respect to payment of a user fee and if the default has not been cured since in the manner stated above.
Consequences of the End of Term
Immediately after the end of term of the DocuWare Online Services your access shall be blocked. In case of a due termination by DocuWare, your Usage Data will be posted to you on a data carrier at no additional charge.
In other cases than due termination by DocuWare and where necessary, it is your responsibility to transfer Usage Data to your own system prior to the blocking of access, using the functions and services provided by DocuWare for this purpose (such functions and services may be subject to a fee).
All Organizational and Usage Data of your organization will be deleted 30 days after the end of the term.
The DocuWare Online Services (both free and subject to a fee) are available to you only for the Regular Use specified below. In the case of the use of services subject to a fee, any use exceeding the scope of Regular Use may lead to the charge of a special user fee or to due termination by DocuWare.
When using free DocuWare Online Services, any use exceeding Regular Use may lead to the immediate blocking of access for your organization without any notice.
Use is always considered Regular Use if:
- storage and retrieval of data and documents are undertaken individually and manually by the user and
- on average per month, the data traffic between DocuWare Online Services and your organization’s computer systems does not amount to more than the equivalent of the exact amount of all Usage Data stored with the DocuWare Online Services and
- data traffic substantially exceeding the usual amount and a processor load substantially exceeding the usual amount are not caused by machine workflows configured within the DocuWare Online Services and through external computer controlled processes. The usual amount is determined by the average scope of use of all DocuWare Online Services users, proportionate to the booked user number, storage volume and additional services, if any, respectively. A substantial excess occurs upon reaching 120% of the Regular Use.
As user of DocuWare Online Services subject to a fee you will be informed in detail by DocuWare in case of a substantial excess of the scope of Regular Use. In case of DocuWare Online Services subject to a fee and in case of the first substantial excess, you will be given opportunity to reduce use to the regular scope within 30 days prior to DocuWare taking any further action.
DocuWare may immediately and without notice block your access both in case of free DocuWare Online Services and in case of DocuWare Online Services subject to a fee if you are severely restricting or eliminating the possibility to use the DocuWare Online Services for other users of your own or of other organizations by a substantial excess of the scope of use or if you are in breach of material duties under these Terms. DocuWare will immediately end the blocking if the reason for the excess of the scope of use is eliminated for a lasting period.
Availability, Scope of Service
DocuWare undertakes to make DocuWare Online Services available during 99.5% of the time of a year, based on an operation on 24 hours per day and 7 days per week, minus, however, scheduled maintenance times. Such maintenance times will be used no more than 6 times per year for a period of no more than 8 hours outside the usual office business hours. Maintenance times will be announced at least 7 days in advance.
Should the availability of the DocuWare Online Services fall short of the pledged level, you may reduce the user fee for a calendar year at the end of a calendar year by as many percent as the pledged availability fell short during this calendar year. If this claim is not asserted within the first quarter of the year, it is forfeited. Any other claims on your part exceeding this are excluded unless DocuWare acts with willful intent or gross negligence.
You are using the DocuWare Online Services “as they are”. You have the possibility to assess within a limited period of free use whether the DocuWare Online Services “as they are” meet your requirements. Any statements about functions or possibilities of use of the DocuWare Online Services by whichever person or from whatever source do not establish any claims with regard to the actual scope of service, nor a right to extraordinarily terminate the DocuWare Online Services or retain payments. Your right to duly terminate the DocuWare Online Services remains unaffected.
You undertake to regularly check the email address provided by you for mailings from DocuWare or the DocuWare Online Services and in particular to effectively prevent the blockage by spam filters etc.
You undertake not to transfer any information and any documents to the DocuWare Online Services the collection, storage or publication of which violates applicable law (e.g. offensive, racist, anti-competitive etc. contents). You undertake not to transfer any data to the DocuWare Online Services which may adversely affect their operation (e.g. viruses, spam, malware etc.). You undertake to do everything within your power to prevent other users of your organization from transferring such data and contents to the DocuWare Online Services.
You further undertake to protect, defend and indemnify DocuWare against any attacks, lawsuits of third parties and damage claims of third parties which were indirectly or directly caused by the use of the DocuWare Online Services by you or other users of your organization.
You are using the free DocuWare Online Services at your own peril and own risk unless DocuWare should willfully cause any damages. Apart from that in case of DocuWare Online Services subject to a fee, DocuWare will be liable only for grossly negligent and willful breaches of material duties under this Agreement.
An invalidity of individual provisions of these Terms of Service does not affect the validity of the remaining provisions. Differing agreements require written form.
The parties hereto shall use good faith efforts to settle any dispute arising under this Agreement. In the event any such dispute cannot be resolved, it is expressly acknowledged that if any litigation should arise between the parties under this Agreement, said litigation shall be resolved exclusively by the courts in Orange County, State of New York, United States of America, and the substantive law of the State of New York shall govern.