Terms of Service for the Software-as-a-Service Solutions of mobileX GmbH

mobileX GmbH (hereinafter referred to as: mobileX) provides a Software-as-a-Service solution (hereinafter referred to as: SaaS) for field service management, facilitating the digitalisation of various service and maintenance processes (e.g. mobile operation, resource scheduling). The solution is provided via a customised URL (https://company.serviceplatform.eu) (hereinafter referred to as: ServicePlatform).

1.1 These Terms of Use govern all contracts for the use of one or more components of the mobileX-ServicePlatform as a SaaS solution (hereinafter referred to as: contracts) concluded between customers and mobileX, excluding consumers as defined in Section 13 of the German Civil Code (BGB). This also applies in particular to use during any test period.

1.2 The customer’s General Terms and Conditions shall only apply to contracts if expressly accepted in writing by mobileX.

2.1 Resources:

Resources encompass all users and assets at the customer’s disposal.

2.2 User:

A user is characterised as someone who uses at least one component of the ServicePlatform. This may include, for example, the mobileX-CrossMIP client, the ServicePlatform web interface or other related components.

2.3 Asset/additional assets:

An asset is a plannable resource generated within the ServicePlatform. Assets can be plannable persons, vehicles, tools, etc. Additional assets can, for example, be technicians who cannot be planned but can be generated as a supplement. Additional assets are generally subject to remuneration.

The contract is concluded when the corresponding offer from mobileX is signed in full.

4.1 mobileX delivers the offered services to the customer as SaaS throughout the term of the contract. A claim to the surrender of the source code is excluded.

4.2 The functional scope of the ServicePlatform is detailed in the service description, which is accessible at https://www.serviceplatform.eu/servicespec. Additional descriptions can be found on the help pages of the ServicePlatform at https://documentation.serviceplatform.eu/. The precise range of functions accessible to the customer through fee-based use is outlined in the offer.

4.3 Other services (e.g. setup/implementation of interfaces, creation of plug-ins or CrossForms, design of the service report, customer configuration of the software, creation of data in the ServicePlatform, support related to the customer’s system infrastructure (browser versions, firewall, mobile operating systems, assistance with the creation of the initial account, etc.)) are not the subject of this contract for the use of the ServicePlatform. These and further services can be provided under separate fee-based (service) contracts.

4.4 Under this contract, the customer undertakes to use functions with an unlimited scope of use only to a reasonable extent. Any use exceeding three times the average amount and any use unrelated to the ServicePlatform’s purpose are deemed unreasonable. In the event of a violation, mobileX will notify the customer of the violation and reserves the right to restrict use if the violation persists.

4.5 Contingent functions remain valid even after changes to the software package, such as booking additional modules, but expire at the end of the period if they have a limited duration.

4.6 The mobileX-ServicePlatform integrates third-party software and services (e.g. map services) within its modules. By booking the relevant module, the customer acknowledges and accepts the terms of use of the third-party provider. mobileX reserves the right to change the range of modules, add-ons or integrations with third-party providers, especially if the third-party provider adjusts or terminates their services or imposes price changes on mobileX.

4.7 Should the mobileX-ServicePlatform be integrated with the customer’s third-party systems, the customer shall be responsible for their operation.

4.8 With regard to the choice of modules and number of resources, the customer can upgrade or increase the number of resources at any time, subject to applicable fees. If mobileX’s co-operation is not required for this, the customer undertakes to notify mobileX of any increase or upgrade.

4.9 The client applications may only be used in countries that are not subject to the Export Administration Regulations of the USA and/or the Export Control Regimes of the European Union (EU).

4.10 If a user logs in with more than three end devices at the same time, the device that has been inactive the longest will, for technical reasons, be automatically logged out when the fourth device logs in. Concurrency effects may occur in mobileX-CrossMIP data due to the offline capability of devices when a user uses more than one device. The user shall be responsible for this, and customer support can be contacted for corresponding assistance within this context. Additionally, devices that have remained inactive for over 30 days are, for technical reasons, automatically logged out from the platform. The user can log in again with this device at any time.

4.11 mobileX reserves the right to request proof of resources used from the contractual partner at any time, or to verify compliance with the contractually agreed scope of services by analysing metadata and/or limiting it in accordance with the contract status.

5.1 mobileX commits to making all economically feasible efforts to ensure 24/7 availability of the mobileX-ServicePlatform services. mobileX guarantees 98% availability of the software provided as SaaS on an annual average during the typical operating hours of 7am to 6pm, Monday to Friday (taking into account public holidays at the location in Munich/Germany). Excluded from this are periods when the server is inaccessible due to technical or other issues beyond mobileX’s control (in particular force majeure, third-party faults). Also excluded are scheduled maintenance activities (e.g. software updates) performed either outside the regular business hours of 9am to 6pm, Monday to Friday (taking into account public holidays at the location in Munich/Germany), or those that have been announced in advance.

5.2 mobileX can only provide the services owed, in particular compliance with the aforementioned availability, if the customer ensures compliance with the system requirements valid at the time of use. The current system requirements can be found in the relevant section at https://documentation.serviceplatform.eu/.

5.3 The hardware, software and technical infrastructure used by the contractual partner can also impact the services provided by mobileX. If such circumstances affect the availability or functionality of the services provided by mobileX, this does not affect the contractual conformity of the said services.

5.4 mobileX is entitled to restrict the availability of the software, either in whole or in part, for maintenance purposes and due to other technical requirements. Whenever feasible, maintenance activities are performed outside the regular business hours of 8am to 5pm, Monday to Friday (taking into account public holidays at the location in Munich/Germany). If a maintenance activity is expected to interrupt software use for more than 30 minutes during the regular business hours of 8am to 5pm, Monday to Friday (taking into account public holidays at the location in Munich/Germany), mobileX will provide advance notice of this maintenance activity in text form. This notice will be provided at least 24 hours in advance. At the customer’s request, the announced maintenance activity can be postponed if mobileX can justify this for technical and economic reasons. Maintenance and update activities that do not result in any interruption in the availability of the service can be performed by mobileX at any time.

5.5 Moreover, mobileX may use a designated maintenance window on Sundays from 11am to 3pm without prior notice if necessary for compelling operational or technical reasons.

5.6 The customer must promptly report any disruptions to system availability as soon as they become known. The customer can submit support requests via the available support channels at any time. mobileX aims to ensure a response time of four hours for commencing fault resolution in case of system availability issues leading to total software failure, provided the reports are received within the support hours of 8am to 5pm, Monday to Friday (taking into account public holidays at the location in Munich/Germany). For minor faults that do not result in total software failure and occur during operation, mobileX will strive to respond no later than one working day after receiving the fault report.

5.7 Fault reports or support requests received outside of the support hours will be addressed on the following working day. Delays in fault resolution or processing attributable to the customer (e.g. due to the unavailability of a customer contact or delayed notification) will not be included in the fault resolution time.

6.1 mobileX offers 2nd level support for the customer, accessible to up to three authorised and designated key users of the customer.

6.2 The 2nd level support receives requests from the customer’s key users, internally qualifies them or seeks clarification from the key user, finds a solution independently or collaboratively with the 3rd level support and communicates the resolution to the customer.

6.3 mobileX reserves the right to offer various input channels for support requests at their discretion, such as e-mail, telephone, ticket system, chat, etc.

6.4 mobileX provides three different forms of support:

6.4.1 Application Support: Application Support relates to requests and support regarding the standard functional scope of the ServicePlatform and its use. The cost of this support is included in the user fee.

6.4.2 Customer Support: Customer Support encompasses support related to customer-specific changes, extensions, plug-ins, forms, interfaces and data from customised interfaces that are not part of the standard functional scope of the SaaS. These fee-based support services provided by mobileX are invoiced at the hourly rate specified in the offer for the "Customer Support" service. Invoicing is based on the actual costs incurred. For this purpose, a monthly statement of costs is generated and submitted to the client along with the invoice.

6.4.3 Technical / Developer Support: Technical / Developer Support refers to support for developments the customer or a partner of the customer makes use of in relation to customer-specific developments in the ServicePlatform, such as support and queries concerning the development of plug-ins, forms or interfaces. mobileX’s 2nd or 3rd level support assists the customer or the customer’s partner in implementing new functions. These fee-based support services provided by mobileX are invoiced at the hourly rate specified in the offer for the "Technical / Developer Support" service. Invoicing is based on the actual costs incurred. For this purpose, a monthly statement of costs is generated and submitted to the client along with the invoice.

6.5 Additional services provided by mobileX for the development of customised requirements, e.g. in the form of plug-ins, forms or individual interfaces, are not included in the scope of support and require the conclusion of a separate service contract.

7.1 The customer is obligated to check the functionality and quality of the software before concluding the contract, e.g. within the scope of any test period or on the basis of the information material provided for this purpose. Any quality requirements must be communicated to mobileX in writing before concluding the contract. The customer cannot raise claims regarding known but undisclosed defects and quality requirements against mobileX.

7.2 The customer undertakes to designate a contact authorised to make or facilitate any decisions.

7.3 The customer shall bear sole responsibility for the content of the data processed with the software. Additionally, the customer agrees to use the software solely in accordance with the contract and within the confines of applicable legal provisions, ensuring no violation of third-party rights during its use. In case of misuse or suspected misuse, threats to data security/data protection or any data loss (e.g. due to hacking attacks), the customer must promptly notify mobileX in writing.

7.4 The customer is responsible for ensuring the hardware of end devices, infrastructure outside the operation of the ServicePlatform, activation of firewalls, provision of browsers with activated cookies, installation of apps from app stores, sufficient bandwidth and performance of the internet connection and other technical requirements to avoid any restrictions in usability.

7.5 The customer is responsible for IT security within their organisation. This includes, but is not limited to: State-of-the-art security measures, up-to-date anti-virus software, firewalls and internet connection security, current operating system and browser versions, ensuring the assignment and regular updating of secure passwords in compliance with IT-Grundschutz of the Federal Office for Information Security (BSI) or other equivalent recognised security standards for end devices or the use of corresponding mechanisms, such as 2-factor authentication.

7.6 The customer is responsible for maintaining the confidentiality of their users' authentication data. This may involve implementing organisational or technical measures to prohibit the disclosure of access data.

7.7 The customer is responsible for the technical and administrative setup of the ServicePlatform. This also applies if and insofar as mobileX provides support to the customer in any capacity. This encompasses various activities, including but not limited to: (1) creating users and general master data, (2) managing imports, exports and interfaces, (3) testing functions and rights through test cases and (4) developing plug-ins, CrossForms, service reports or other customisations that are not specifically commissioned separately from mobileX.

7.8 In case of problems or faults, the customer is obligated to notify mobileX and cooperate reasonably in identifying and rectifying the error by providing error descriptions, screenshots, etc. mobileX may offer temporary workarounds while addressing the root cause later.

8.1 mobileX grants the customer a non-exclusive, simple, non-transferable right to use the booked software for the term of the contract. The rights of use for third-party systems are subject to the provisions of the respective provider.

8.2 The use of shared/concurrent accounts is not permitted.

8.3 If a resource leaves the contractual partner’s company, the corresponding authorisation for use can be transferred to and used by another employee of the contractual partner. Technically speaking, this is done by deleting the respective resource and creating a new one. Section 4.11. shall apply accordingly.

8.4 Asset-independent development subscriptions may arise for the provision of developer licenses. They are assigned to a natural person as a named user subscription. Transferability is feasible in case an employee changes; however, concurrent use is not allowed.

8.5 The customer undertakes to use the software exclusively in line with the contract terms and refrain from providing it to third parties for their use. In this context, third parties are also affiliated companies within the meaning of Sections 15 ff. of the German Stock Corporation Act (AktG).

8.6 If the customer intends to grant affiliated companies or subcontractors access to the software for use, explicit consent from mobileX is required in text form. Affiliated companies are companies within the meaning of Sections 15 ff. of the German Stock Corporation Act (AktG). Subcontractors are service providers engaged by the customer to perform agreed-upon services or tasks.

8.7 mobileX is entitled to analyse user behaviour within the ServicePlatform to enhance the application based on the insights gained from the evaluations. This involves an anonymised evaluation of collected data. It is not possible to draw conclusions about users, and no conclusions are drawn about users. No personal data is collected or analysed.

9.1 The prices specified in the offer shall apply. They depend on the number of resources and the modules/functions, etc. booked.

9.2 The accounting period commences on the date when a contract for the fee-based use of the software is concluded. Invoicing takes place annually in advance.

9.3 The term of payment is 14 days from the invoice date.

9.4 If the price increases as a result of subsequent orders in the meantime, in particular for modules/functions or changes as per section 4.8, mobileX shall invoice the difference to the advance payment rendered upon provision. If mobileX was not required to participate in the subsequent order, the difference will be retroactively invoiced from the time of provision.

9.5 mobileX is entitled to annually adjust the prices for the fee-based contractual services by an appropriate amount to compensate for increases in personnel and other costs. mobileX shall notify the customer in text form of these price adjustments and the effective date of the price adjustment. The price adjustments do not apply to periods for which the customer has already made payments. If the price increase exceeds 5% of the previous price, the customer has the right to object to the increase within two weeks of receiving notification. A change in price resulting from changes to the scope of modules/functions or the number of resources will not be regarded as a price adjustment in this sense. If the customer duly and timely objects to the price adjustment, the contractual relationship will be continued under the previous terms and conditions. However, mobileX reserves the right to terminate the contractual relationship extraordinarily with a notice period of one month.

9.6 In the case of default of payment, mobileX shall set the customer a deadline of two calendar weeks, after which mobileX may proceed to block the account. mobileX shall not be held liable for any damages incurred by the customer or third parties due to the account being blocked in such instances. Furthermore, the statutory provisions shall apply in the event of default.

10.1 The minimum term of contracts for the fee-based use of the ServicePlatform is 36 months plus the shortened month in which the contract is concluded. After expiry of the minimum term, the contract shall be extended by a further 12 months in each case, unless terminated by either contractual partner in text form with a notice period of three months to the end of the current contract term.

10.2 The right of both contractual partners to termination for good reason remains unaffected.

10.3 The account will be blocked at the end of the contract.

11.1 The customer is obligated to export and back up all data required by them in good time before the end of the contract.

11.2 mobileX will keep the customer account and the data stored within the scope of software use for two weeks after the end of the contract for backup purposes.

11.3 mobileX will delete the customer account and the data stored within the scope of software use within six weeks after the end of the contract, unless statutory retention periods dictate otherwise.

12.1 mobileX shall be liable without limitation for damages resulting from deliberate or grossly negligent actions by mobileX or their vicarious agents. Further, mobileX shall be liable for damages resulting from culpable injury to life, body or health.

12.2 In the event of slight negligence, mobileX shall only be liable if a significant contractual obligation (cardinal obligation) is violated.

12.3 Significant contractual obligations within the meaning of this contract are obligations whose fulfilment is crucial for the proper execution of this contract and obligations on whose compliance the contractual partner regularly relies and may rely on.

12.4 In the event of liability arising from slight negligence, mobileX’s liability shall be limited to damages that were reasonably foreseeable at the time the contract was concluded.

12.5 In the event of a liability claim against mobileX, contributory negligence on the part of the contractual partner shall be duly considered. Contributory negligence may arise, in particular, from factors such as inadequate error reporting (e.g. due to limited access to error logs and log files) or inadequate data backup procedures in the backend.

12.6 mobileX’s liability for data loss shall be limited to the customary expenses for recovery that would have been incurred if regular backup copies had been made as appropriate.

12.7 If services are rendered free of charge (e.g. during the test period), mobileX shall only be liable for damages resulting from intentional, grossly negligent or fraudulent actions. This limitation of liability shall not apply to damages resulting from injury to life, body or health.

13.1 mobileX and the customer shall comply with the relevant provisions, in particular those of the General Data Protection Regulation (GDPR), when handling personal data. mobileX and the customer shall conclude an order data processing agreement in accordance with the applicable provisions. The contractual partner remains the responsible party with regard to personal data and must therefore always verify whether the processing of such data through the use of the software is compliant with relevant statutory authorisations.

13.2 Information exchanged under the contract is considered confidential if it is inherently confidential or classified, or if the recipient of the information should reasonably recognise it as confidential or classified given the circumstances of its disclosure. Prices, specifications and product descriptions that are not publicly accessible are considered confidential under all circumstances. Confidential information may only be used for the contractually agreed purpose, and at least the same level of precautions must be taken as for the company’s own confidential information.

13.3 The obligation to maintain confidentiality shall also extend beyond the term of the contract until 12 months after the effective termination date of the contract.

13.4 With the customer’s agreement, mobileX is entitled to disclose the customer’s use of the ServicePlatform for marketing purposes. This includes, but is not limited to, featuring the customer’s logo and name on the website and including them in press releases such as announcements of new customers.

14.1 The customer shall bear full responsibility for all content used and data processed within the ServicePlatform, as well as any necessary legal positions. mobileX does not actively monitor or check the content used by the contractual partner with the software, unless legally obligated to do so.

14.2 In this context, the customer undertakes to indemnify mobileX against any liability and associated costs, including possible and actual legal expenses, if claims arise against mobileX by third parties, including employees of the contractual partner, as a result of alleged actions or omissions of the customer. mobileX shall notify the customer of any claims and, where legally permissible, allow the customer to defend against the asserted claims. At the same time, the customer shall promptly provide mobileX with all available information regarding the circumstances underlying the claim.

14.3 Any further claims for damages by mobileX remain unaffected.

15.1 mobileX reserves the right to change these Terms of Use at any time or to extend them if necessary (e.g. if there are changes to the scope of services). The customer will be notified of any changes to these Terms of Use via e-mail at least one month before they take effect. If the customer does not object in text form within a period of two weeks after being notified, they shall be deemed to have given their consent to the changes.

15.2 Furthermore, mobileX reserves the right to change functions of the provided service and the software, or to offer them in a deviating form. This applies if and insofar as the changes are deemed reasonable for the customer. If significant changes to the work processes are to be expected due to deviating functions, mobileX will notify the customer of this in text form at least one month before the change takes effect. If the customer does not object to the change within a period of two weeks after receiving the notification of change in text form, the change shall become part of the contract. mobileX will remind the customer of the specified objection period and the legal implications of not exercising this option whenever changes are communicated.

Further reservations of rights apply in the following cases:

15.3 Additionally, mobileX reserves the right to restrict or terminate the use of additional functions if the service provider of a third-party system or of a third-party component changes, discontinues or limits their services or terms and conditions, thus rendering the service provision unreasonable. This unreasonableness arises, for instance, if there is disproportionately high additional expenditure for mobileX. If advance payment was made, the customer will receive an appropriate pro rata refund of the fees paid, provided that the additional functionality was invoiced separately.

15.4 If the customer duly and timely objects to a change within the meaning of this paragraph, the contractual relationship will be continued under the previous terms and conditions. However, mobileX reserves the right to terminate the contractual relationship extraordinarily with a notice period of one month.

15.5 Changes to these Terms of Use must be made in text form. This also applies to the waiver of the text form.

16.1 If any individual provisions of the Terms of Use have not become part of the contract in whole or in part or are deemed invalid, the remainder of the contract and the Terms of Use shall remain valid. In cases where the provisions have not become part of the contract or are deemed invalid, mobileX and the customer shall strive to find a valid provision to replace the invalid one, aiming to preserve the economic intent of the original provision to the fullest extent possible.

16.2 The contractual relationship between the contractual partners shall be governed solely by the laws of the Federal Republic of Germany, explicitly excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

16.3 The exclusive place of jurisdiction for all disputes arising from or related to this contractual relationship between mobileX and the customer, to the extent legally permissible, shall be Munich/Germany.