- cubemos GmbH (hereinafter: cubemos) offers a web-based ESG toolSoftware (hereinafter: Software) for small and medium-sized enterprises on the website "cubemos" (hereinafter: cubemos), in particular for reporting ESG key figures and processes in accordance with the CSRD.
- The following General Terms and Conditions (hereinafter: GTC) shall apply to all contracts of use (hereinafter referred to as "Contracts") concluded between cubemos and customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB) or other corresponding relevant statutory provisions via the platform "cubemos".
- Deviating GTC of the customer shall not apply to contracts unless cubemos expressly agrees to their application in writing.
2. conclusion of the contract between the customer and cubemos
- The offer provided on app.cubemos.com to use the web-based Software designated and described therein does not constitute a binding offer by cubemos .
- The use of Software from cubemos requires the creation of a customer account (hereinafter: account). To create an account, you must enter the required data and set a password.
- Customers can request a test account at firstname.lastname@example.org.
- The customer has the option of concluding a fee-based contract for the use of Software with cubemos at any time. The customer can choose between the Software versions offered ("Basic", "Advanced", "Enterprise").
- For the conclusion of a contract for the chargeable use of Software with annual billing, the sales team of cubemos will prepare a corresponding offer in writing or text form upon request, which will be accepted by the customer by confirmation in text form, writing or verbally, but at the latest by payment of the invoice.
- cubemos provides the customer with access to the version of Software offered on cubemos and selected by the customer as Software-as-a-Service (hereinafter: SaaS) via the Internet for the term of a contract. The functional scope of the booked Software version, including any additional functionalities, is set out in the description on the cubemos website. Further services (e.g. support with the initial creation of an account, technical setup of interfaces) are not the subject of a contract for the (fee-based) use of Software. Such additional services can be provided by cubemos on the basis of a separate offer.
- Additional functionalities whose scope of use is not limited may only be used to a reasonable extent ("fair use"), in particular to ensure the functionality and economic efficiency of the provision for all customers. In case of doubt, an unreasonable use shall be deemed to exist if - per maximum number of employees that can be managed by a version - it exceeds the monthly use of the additional functionality by a factor of three. Inappropriate use is also use that is unrelated to the essence of the software, i.e. if the additional functionality is not used in relation to the functionality of the software. cubemos reserves the right to restrict the use of the additional functionality by the customer in the event of a violation of the fair use principle after cubemos has notified the customer of this. If quotas are provided for additional functionalities, they shall remain in force even if the Software version is changed; unused quotas cannot be carried over to the next billing period.
4. availability & response time in case of malfunctions
- cubemos guarantees 99% availability of Software provided as SaaS on an annual average. Excluded from this are times when the server cannot be reached due to other technical problems that are beyond the control of cubemos (in particular force majeure, fault of third parties). Also excluded are planned maintenance work (e.g. updates of Software), which are either outside normal business hours from Monday to Friday (taking into account public holidays at the Munich location) between 9:00 and 18:00, or which have been announced in advance in accordance with section 4.2. The current availability can be viewed here at any time: https://status.cubemos.com/.
- cubemos is entitled to interrupt the availability of Software for maintenance purposes and due to other technical requirements. As far as possible, maintenance work will be carried out outside normal business hours from Monday to Friday (taking into account public holidays at the Munich location) between 9:00 and 18:00. If a maintenance measure will lead to an interruption in the use of Software of more than 30 minutes within normal business hours from Monday to Friday (taking into account public holidays at the Munich location) between 9:00 and 18:00, cubemos will announce this maintenance work by e-mail. The announcement will be made at least 24 hours in advance. At the customer's request, the announced maintenance work can be postponed if this is justifiable from cubemos 's point of view for technical and economic reasons.
- System availability faults must be reported by the customer immediately after they become known. cubemos will endeavor to ensure a response time for the start of fault clearance of four hours for reports of system availability faults that lead to a total failure of Software and that are received within the support hours (Monday to Thursday between 9:00 and 18:00 and Friday between 9:00 and 17:00, taking into account public holidays at the Munich site). In the case of minor faults that do not lead to a total failure of the Software and occur during ongoing operation, cubemos will endeavor to respond no later than one working day after receipt of the fault report.
- In the case of fault reports received outside support hours, fault clearance shall commence on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer's side or delayed reporting of the fault) shall not be counted towards the fault clearance time.
5. cooperation services of the customer
- The following cooperation services are primary obligations of the customer and are not to be classified solely as secondary obligations or duties.
- The customer is obliged to report any defects or other deviations from the quality requirements of Software to cubemos .
- The customer is obligated to provide a qualified contact person and deputy who is authorized to make or immediately bring about all necessary decisions that are required to provide the contractually agreed service. The customer is obligated to notify changes in the contact person (including deputy) without delay.
- The customer is solely responsible for the content and data processed with Software . The customer hereby undertakes to use the Software of cubemos only in accordance with the contract and within the scope of the applicable legal provisions and not to infringe any third-party rights in the use thereof. The customer will inform cubemos immediately, if possible in writing, about: (i) misuse or suspicion of misuse of the contractually agreed service; (ii) a risk or suspicion of a risk to compliance with data protection or data security that occurs in the course of providing the contractually agreed service; (iii) a risk or suspicion of a risk to the service provided by cubemos , e.g. due to loss of access data or hacker attack.
- The customer is obliged to ensure the technical requirements himself.
5.5.1 The connection to the internet in sufficient bandwidth and latency is the responsibility of the customer.
5.5.3 The customer is responsible for implementing state-of-the-art IT security measures within its own organization and for its employees. These include, but are not limited to, the installation and regular updating of a common antivirus Software on the laptops, computers or other mobile end devices of the Customer's employees, ensuring the assignment and regular updating of secure passwords in accordance with the BSI IT Grundschutz or other equivalent, recognized security standards for the cubemos account as well as for the laptops, computers or other mobile end devices of the employees or the use of appropriate mechanisms such as 2-factor authentication, automatic inactivity blocking, firewall, etc.
5..5.4 Furthermore, the Customer shall be obligated to ensure the confidentiality of the identification and authentication data assigned to its users as well as of access data for interfaces, i.e. also, for example, the organizational and, if necessary, technical prohibition of the disclosure of passwords as well as the prohibition of the use of so-called "shared accounts". The prohibition of the use of "shared accounts" refers to the cubemos account.
5.5.5 In addition, the Customer shall ensure the security of the Internet connection used, i.e. in particular the use of company-owned instead of public virtual private networks (VPN) as well as ensuring the use of VPN connections in public networks.
- The customer is responsible for the technical setup and administration of the account. This applies regardless of whether cubemos supports the customer in setting up the account, in whatever form. This includes in particular: (i) the functional setup of the account, in particular migration of data, configuration of processes and products; (ii) the functional setup of integrations in the cubemos account and in the third party system, e.g. determining whether certain data fields are to be transferred and how customer-specific values from multiple selection fields are to be assigned; (iii) checking the correctness of the function of the integration using test cases (e.g. regarding the text length of free text fields).e.g. concerning the text length of free text fields) prior to productive use; (iv) the technical connection of interfaces on the Customer's side according to the specification for incoming and outgoing data, including the entry of API keys and the activation of interfaces in the third-party system; (v) the administration of the account, in particular the creation of users and roles and assignment of accesses to the account.
- The customer is obligated to inform cubemos immediately in text form about occurring service disruptions (defects of the services, lack of availability) and to provide comprehensible information about occurring service disruptions. The customer will support cubemos to a reasonable extent in the identification and elimination of errors when performance problems occur. cubemos is entitled to show the customer temporary error avoidance options and to eliminate the actual cause later by adjusting the cubemos Software , provided this is reasonable for the customer.
6. granting of rights
- cubemos grants the customer a non-exclusive, simple, non-transferable right to use the booked Software , limited in time to the term of the contract. The terms and conditions of the respective provider shall apply to the rights of use for third-party systems and partner integrations.
- The customer undertakes to use the Software exclusively in accordance with the contract and not to make it available for use by third parties. When booking the functionalities of the Enterprise Version, the Customer's rights of use shall also extend to companies/participating companies/subsidiaries affiliated with the Customer within the meaning of § 271 HGB, §§ 15 et seq. AktG or the respective applicable provisions of company law.
7. prices, payment methods & payment terms
- The prices stated at the time of the order, as shown on the website or sales material of cubemos , shall apply. The prices stated there are annual net prices in euros and do not include statutory VAT at the applicable statutory rate, if applicable. The amount of the annual fee for the use of Software may depend on the following factors ("order parameters") and is indicated accordingly during the order process:
7.1.1 the selected package size, i.e. the maximum number of employees or assets of the customer to be managed,
7.1.2 the selected version of Software (Basic, Advanced, Enterprise), also referred to as "plan" or "package",
7.1.3 any onboarding option selected,
7.1.4 any add-ons ordered,
7.1.5 any additional functionalities ordered for a fee (if not already included),
7.1.6 any cubemos integrations ordered for a fee.
- All payments are due in advance when the invoice is issued.
- In exceptional cases, quarterly billing can be agreed. Payments for contracts for the fee-based use of Software with quarterly billing are made quarterly in advance.
- In the case of annual billing, the billing period begins on the day the account is activated and ends at the end of one year. cubemos initially activates customer access for one year in accordance with the service period agreed with the customer and stated on the invoice. Payments for contracts for the fee-based use of Software with annual billing are usually made by bank transfer annually in advance. In the case of annual billing, the customer will be sent an invoice for 12 months in electronic form by e-mail. The payment term for the bank transfer is two weeks from the invoice date.
- In addition, payment by direct debit is available to the customer for annual billing. If a direct debit payment method is selected, we will use the SEPA Direct Debit Scheme. cubemos will inform the customer of the execution of a direct debit using the SEPA Direct Debit Scheme with reasonable advance notice, usually two days in advance. However, the parties agree that the period for advance notification of the SEPA direct debit shall be shortened to one day.
- In case of a return debit note (in particular due to lack of required coverage of the account, due to expiration of the account, unauthorized objection of the account holder or incorrect entry of the account data), the customer authorizes cubemos to submit the debit note for the respective due payment obligation one more time. In such a case, the customer is obliged to pay the costs incurred by the return debit note. Further claims are reserved.
- Should the price increase due to a change in the order parameters (Section7.1), cubemos shall invoice the difference between the advance payment already made and the changed price until the end of the billing period either immediately or with the following invoice for the next billing period.
- If, in the case of annual billing, the price should increase due to a change in the order parameters (clause 7.1), cubemos shall additionally bill the difference between the advance payment already made or the amount already billed and the amount based on the changed price until the end of the annual term (daily billing). If, in the case of annual billing, the price is reduced due to a change in the order parameters (Section 7.1), the customer shall not be entitled to a (pro rata) refund of the advance payment already made.
- In the event of default on the part of the customer, insofar as no payment has been made even after the expiry of a deadline set to the customer of one calendar week after the due date, cubemos is entitled to block the customer's access to Software without delay. cubemos will inform the customer of this blocking in advance, setting a further deadline of one calendar week. In this case, the customer remains obliged to continue paying the agreed remuneration plus any interest on arrears. Any damages caused to the customer by the blocking for this reason cannot be claimed against cubemos . Furthermore, cubemos has no right to block access to the Software . Furthermore, in case of default, the legal provisions of §§ 286,288 BGB (German Civil Code) or other relevant legal provisions shall apply.
8. contract start, minimum term & termination
- The contract term begins as soon as the customer has received their access data.
- Contracts for the fee-based use of Software are subject to a minimum term of 12 months. After expiry of the minimum term, the contract is extended by renewal periods of 12 months each, unless the customer cancels before the start of a renewal period.
- Contracts for the fee-based use of Software with multi-year billing are subject to a minimum term of 24 months. After expiry of the minimum term, the contract is extended by renewal periods of one year each, unless the customer terminates the contract with a notice period of three months before the start of a renewal period. For the renewal of contracts for the fee-based use of Software with multi-year billing, cubemos will provide the customer with a new annual invoice for transfer at the latest at the start of the new renewal period.
- cubemos has the right to terminate contracts for the fee-based use of Software with annual billing with three months' notice to the end of the respective billing period.
- The right of both contracting parties to terminate for cause shall remain unaffected.
- Notice of termination must be given in text form. The customer's account will be blocked when the termination takes effect. The notice period is 1 month before the end of the billing period.
9. limitation of liability
- Legal liability in the case of provision of services against payment. In the case of the provision of services against payment, cubemos shall be liable in accordance with the statutory provisions for damages arising from injury to life, limb or health, as well as for other damages based on an intentional or grossly negligent breach of duty and fraudulent intent. Furthermore, in the case of contracts for the use of Software for which a charge is made, cubemos shall be liable in accordance with the statutory provisions for damages covered by liability under mandatory statutory provisions, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by cubemos shall only be made in writing and, in case of doubt, shall only be construed as such if they are designated as a "guarantee".
- Limitation of liability in case of provision of services against payment. In the case of slight negligence, cubemos is only liable for damages caused by cubemos that are due to such essential breaches of duty that jeopardize the achievement of the purpose of this contract, or to the breach of duties whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer may rely (so-called cardinal breaches of duty). In these cases, the liability of cubemos is limited to the foreseeable damage typical for the contract. Liability for the slightly negligent breach of obligations that are not cardinal obligations (see clause 9.2 sentence 1) is excluded, unless cubemos is compulsorily liable by law (see clause 9.1 sentence 2).
- Liability for services provided free of charge. If services are provided free of charge (e.g. within a test period), cubemos shall only be liable for damages caused by intent, gross negligence or fraudulent intent. This limitation of liability does not apply to damages resulting from injury to life, body or health, for which cubemos is liable without limitation.
- claims against third parties. The limitations of liability of clauses 9.1 to 9.3 shall also apply to claims against officers, employees, other vicarious agents or subcontractors of cubemos.
10. data protection, confidentiality & IP
- cubemos collects and uses the customer's personal data only within the scope of the respectively applicable legal provisions. The contractual partners shall conclude an agreement to this effect to the extent required by the respective applicable provisions.
- Neither of the contracting parties is entitled to disclose confidential information of the other contracting party to third parties without express consent (at least in text form). This applies to customers with contracts for both free and paid use. All information, whether fixed in writing or transmitted orally, which (i) by its nature is considered confidential or in need of secrecy or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or in need of secrecy due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties shall take at least those precautionary measures which they also take with regard to their own confidential information. Such precautions shall at least be adequate to prevent disclosure to unauthorized third parties. Both contractual partners shall furthermore be obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing in the event of misuse of confidential information. Excluded from the above obligation is such information which (i) was already known to the other contracting party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) were developed independently and without use of the confidential information, (v) have been released for publication in writing, or (vi) must be transmitted due to a court or official order, provided that the contractual partner affected by the transmission is informed in good time in order to still be able to initiate legal protection measures. The obligation to maintain confidentiality shall also apply beyond the term of the contract until twelve months after the effective termination date of the contract.
- Neither party shall directly or indirectly use or attempt to produce or reproduce for itself, including but not limited to "reverse engineering", any information, products or materials provided by the other party in the course of the cooperation outside the purpose of the contract. This shall apply unless expressly agreed otherwise or insofar as such information, products or materials are already freely available.
11. reservations for changes
- cubemos has the right to amend these General Terms and Conditions at any time or to supplement them with regulations for the use of any newly introduced additional services or functions of Software . The changes and amendments to the General Terms and Conditions shall be announced to the customer by e-mail to the e-mail address provided by the customer no later than four weeks before the planned entry into force. The customer's consent to the amendment of the General Terms and Conditions shall be deemed granted if the customer does not object to the amendment in text form (e.g. letter, fax, e-mail) within a period of two weeks, starting on the day following the amendment announcement. cubemos undertakes to separately point out in the amendment announcement the possibility of objecting, the deadline for objecting, the text form requirement as well as the significance or consequences of failing to object.
- cubemos reserves the right to change the Software or to offer deviating functionalities, unless changes and deviations are unreasonable for the customer. If the provision of a modified version of Software or a modification of functionalities of Software is accompanied by a significant change in the customer's workflows supported by Software and/or restrictions in the usability of previously generated data, cubemos will announce this to the customer in text form no later than four weeks before such a modification takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the change notification, the change shall become an integral part of the contract. cubemos shall draw the customer's attention to the aforementioned period and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.
- cubemos furthermore reserves the right to change Software or to offer different functionalities (i) to the extent necessary to ensure that the services offered by cubemos comply with the law applicable to these services, in particular if the legal situation changes; (ii) to the extent that cubemos thereby complies with a court or authority decision addressed to cubemos ; (iii) to the extent necessary to eliminate security gaps in Software ; (iv) because the services or contractual conditions of third-party providers (e.g. in the case of integrations or subcontractors) have changed.integration) or subcontractors (e.g. in the case of additional(v) if this is predominantly advantageous for the customer. In particular, cubemos reserves the right to restrict or terminate the provision of additional functionalities or integrations if the technical partners of the additional functionalities or the providers of the third-party systems significantly restrict or change their services or service conditions and cubemos can therefore no longer be reasonably expected to continue to provide them, e.g. because the additional effort required by cubemos is disproportionately high. In this case, the customer shall receive an appropriate pro rata reimbursement of fees paid in advance in the case of annual billing, provided that the additional functionality or integration was billed separately.
- cubemos shall be entitled to adjust the prices for the contractual services subject to a charge by an appropriate amount each year to compensate for increases in personnel and other costs. cubemos shall notify the customer of these price adjustments and the effective date of the price adjustment in text form. The price adjustments do not apply to the periods for which the customer has already made payments. If the price increase amounts to more than 15% of the previous price, the customer may object to this price increase within two weeks of notification. A change in the price resulting from a change in the scope of features or number of employees to be managed shall not be deemed a price adjustment within the meaning of this Section 11.4.
- If the customer objects to a change within the meaning of this clause 11 in due form and time, the contractual relationship shall be continued under the previous conditions. cubemos reserves the right in this case to terminate the contractual relationship extraordinarily with one month's notice.
- Amendments to these General Terms and Conditions must be made in text form. This also applies to the waiver of the text form itself.
12. final provisions
- If individual provisions of the General Terms and Conditions of Business have not become part of the contract in whole or in part or are ineffective, the remainder of the contract shall remain effective. Insofar as the provisions have not become an integral part of the contract or are invalid, the content of the contract shall be governed by the statutory provisions.
- The contractual relationship existing between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the express exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between cubemos and the customer is, as far as legally permissible, the registered office of cubemos.