Last updated November 2020
iLert GmbH, Regentenstraße 42, 51063 Köln (hereinafter referred to as ilert) operates a business-to-business software-as-a-service platform for alerting, uptime monitoring, on-call management, and incident management.
These Terms of Service (hereinafter referred to as Terms) apply to all contracts concluded in the context of the business relationship between ilert and its business customers in connection with the software-as-a-service solutions offered by ilert.
Deviating Terms of the Customer do not apply to contracts, unless ilert expressly agrees to their application in writing.
The capitalised terms used in these Terms shall have the meanings as defined in this Clause 2:
Customer means ilert’s contractual partner named in the Individual Contract.
SaaS Services means the SaaS-based services provided by ilert via the Platform by means of a software-as-a-service solution.
Individual Contract means the SaaS contract concluded between the Customer and ilert for the provision of SaaS Services and/or Additional Services.
Platform means the software-as-a-service platform operated by ilert and accessible via the Website.
Customer Data means all profile information and data as well as other content and information that the Customer provides to ilert in connection with the use of the SaaS Services, including information about Incidents.
Users means the Customer’s employees who are authorised to access the SaaS services within the scope of the rights of use acquired by the Customer.
Incident means an event that leads the Service to alert your Users using certain Contact Information. In order for the Service to recognize and respond to Incidents, the Customer must configure the Service and supply the Contact Information in accordance with the documentation to recognize and respond to Incidents.
Contact Information means the names, email addresses, telephone numbers, and other personal information that you want the Service to alert in the event of an Incident and who have consented to receive such messages via the Service.
Delivery Service means a third-party service provider used to send notifications to a Recipient, for example a telephone service (e.g. T-Mobile), push notification provider (e.g. Google, Apple), SMS provider, or email provider.
First Responder Alert means the notification sent to the User assigned to review a new Incident.
Confidential Information means all information disclosed to one party by the other party, whether in writing, electronically or orally, digitally or in any other form, insofar as such information (a) involves the trade secrets protected under Sect. 2(1) of the German Trade Secrets Act (GeschGehG), and/or (b) relates to the business interests and affairs of the respective party or those of affiliated enterprises within the meaning of Sect. 15 of the German Stock Corporation Act (AktG) and is expressly marked as confidential or should be considered confidential due to the nature of the information or the circumstances of its disclosure. Confidential Information includes, but is not limited to, information relating to technologies, inventions, software and/or hardware, new products, intellectual property, know-how, marketing plans, financial situations, business strategies, business relationships, business plans, business calculations, pricing policy or personnel matters of one of the parties. Confidential Information also includes the content of the Individual Contract concluded between the Customer and ilert.
Website means the website operated by ilert, which is available at: www.ilert.com.
Additional Services means the additional services, if any, to be provided by ilert under the Individual Contract.
GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
Force Majeure means events or circumstances that could not have been foreseen at the time of Contract conclusion despite reasonable care, are beyond ilert’s sphere of influence, and could not have been avoided or overcome by reasonable measures on the part of ilert. In particular, these include but are not limited to: a) war and other military conflicts, terrorist attacks, civil war, riots, insurrections; b) currency and trade restrictions, embargoes; c) explosions and fires not caused by ilert; d) floods, earthquakes, typhoons and other natural disasters or extreme natural events; e) epidemics/pandemics and diseases; f) labour unrest not caused by ilert, such as industrial action; g) actions, failures to act or measures of a government or official orders; h) faults or failure of operating facilities (or parts thereof) not caused by ilert, which are necessary for the fulfilment of the Contract.
The object of the Contract is the provision of the SaaS Services commissioned by the Customer and agreed in the Individual Contract as well as the provision of further services, if and insofar as these are specified in the Individual Contract.
The Contract shall take effect when both parties sign the Individual Contract.
ilert reserves the right to amend or supplement these Terms with effect for the future. ilert shall inform the Customer about any amendments and supplements by notifying the Customer of the content of the amended or supplemented provisions in text form (e.g. by email or by notification when logging onto the Platform) in advance and with a reasonable period of notice, but at least four weeks before the amendments/supplements are scheduled to take effect. The amendments/supplements shall be deemed accepted by the Customer if it does not object to the amendments/supplements in text form within four weeks of receipt of the notification. If, however, the Customer objects in accordance with the previous sentence, the Contract shall continue to apply unchanged under the previous conditions. In its notice of the change, ilert shall point out to the Customer separately the Customer’s right of objection and the aforementioned legal consequences of not responding.
ilert shall make the contractual SaaS Services available to the Customer for temporary use by means of remote access via the internet. For this purpose, ilert hosts the Platform on a server which the Customer can access via an internet connection.
The concrete scope of services and functions of the SaaS Services as well as the scope of the other Contractual Services shall be specified in the Individual Contract.
This Contract covers neither the Customer’s connection to the internet and maintenance of the network connection nor the procurement and provision of the hardware required for this on the part of the Customer. The Customer shall be obliged to create and maintain the technical prerequisites for access to the SaaS Services in its own area, at its own expense and risk (see Clause 8.2(a)).
ilert shall take suitable precautions against data loss and to prevent unauthorised access by third parties to Customer Data, as far as this is possible with reasonable financial and technical effort. In particular, ilert shall make regular backups and install state-of-the-art firewalls and regularly updated virus scanners on the ilert servers in order to prevent unauthorised access to Customer Data and to prevent the transmission of malicious code (viruses, Trojans, diallers, etc.).
ilert continuously develops and enhances the SaaS Services and the Platform. Updates to the core product shall always be provided to the Customer free of charge. However, in the event of extensive updates and extensions of the functional scope (e.g. the addition of modules) of the Platform or the SaaS Services, ilert shall be entitled to classify these as a new product or upgrade and make them available to the Customer for an additional fee. Insofar as ilert provides such upgrades and extensions free of charge, the Customer shall have no legal claim to their provision. ilert shall inform the Customer about any discontinuation of the free services.
ilert reserves the right to make changes in order to adapt the Platform and SaaS Services to the state of the art, changes for optimisation purposes (in particular to enhance user-friendliness), as well as changes to content, insofar as the latter are necessary to correct errors, for updating and completing content, for technically optimising programs or for licensing reasons. If such a change leads to a not only insignificant devaluation of the Contractual Services, the Customer shall be entitled to either demand a reduction of the remuneration in line with the devaluation or terminate the Contract without notice. This right of termination may be exercised within a period of eight weeks from the occurrence of the change.
To use the Service, the Customer must create a User account, providing all required data or information in a complete and truthful manner. The Customer can create User accounts for the number of users agreed upon in the Individual Contract. The Customer’s access to the SaaS Services shall be password-protected via the Platform. The access data is individualised and may only be used by the Customer concerned or the Users. The Customer shall instruct the Users to choose a sufficiently secure password and to keep their access data, including the password, secret and to protect this information against unauthorised access by third parties. For security reasons and to prevent misuse, ilert recommends that Customers change their passwords at regular intervals.
The sharing of access data and otherwise permitting or enabling the use of user accounts or the SaaS Services by third parties is strictly prohibited.
The Customer shall be obliged to inform ilert without undue delay if it is aware of or suspects misuse of access data or passwords. In the event of misuse or suspected misuse, ilert shall be entitled to block access to the Platform until the circumstances have been clarified and the misuse has ceased. ilert also reserves the right to change the Customer’s access data for security reasons; in such cases, ilert shall inform the Customer without undue delay. This shall not affect the assertion of further rights and claims by ilert, in particular claims for damages.
During the Contract period, ilert will use commercially reasonable efforts to meet the following service level commitments for the stated functions from the SaaS Services:
Notification Delivery: Once an Incident is created, ilert will deliver the First Responder Alert within the Notification Delivery Period for 99.9% of the notifications sent by ilert for the Customer during any calendar month. The “Notification Delivery Period” is five minutes and it is measured as the time it takes ilert to deliver a First Responder Alert to telecommunication providers in accordance with the Service configuration and Contact Information. More specifically, the Notification Delivery Period begins at the time ilert receives the alert to the time ilert’s internal logs show that the ilert Service sent a notification to the designated Delivery Service(s), less the delay time (if any) specified in the Service configuration. The Notification Delivery SLA applies only to ilert Services that are required to deliver First Responder Alerts.
Web Application: ilert’s ability to provide basic acknowledgement and resolution functionality via our web application will be available 99.9% of the time during any calendar month.
The following times shall not be considered when calculating the total downtime:
a) Periods of unavailability that are due to internet faults or other circumstances beyond ilert’s control, in particular Force Majeure.
b) Periods of unavailability that are due to the fact that the technical prerequisites on the part of the Customer for accessing the SaaS Services are not available or are temporarily unavailable, for example in the event of faults with the Customer’s own hardware, telecommunications, Delivery Service or internet service providers, email domain server availability or mobile push notification providers.
ilert shall provide the Customer with free customer support at various service levels in order to deal with faults with the SaaS Services. Depending on the Customer’s support plan specified in the Individual Contract, customer support shall be provided by the Customer Success Manager assigned to the Customer (by phone or email), by ilert’s general email support (which is available at: firstname.lastname@example.org), or by live chat via the Website. The Customer’s dedicated Customer Success Manager shall be informed about each support case and assist in finding a solution. Depending on the Customer’s requirements, customer support shall be available in German or English. ilert’s support services shall be available from Monday to Friday from 9am until 6pm (CET). This shall not apply on days that are public holidays in Cologne or on 24 and 31 December of each year. Requests received outside of these support hours shall be deemed to have been received during the next working day. During business hours, the initial response to all support requests shall occur within no more than 24 hours. All support requests shall be processed as quickly as possible and prioritised according to the following disruption severity levels: a) First severity level: Critical software fault leading to a total failure of the SaaS Services.
b) Second severity level: The use of the SaaS Services is considerably limited, as the main features of the SaaS Services are not available.
c) Third severity level: Minor faults affecting non-essential features of the SaaS Services.
The free support shall not include: general transfer of know-how, customizing, integration, consulting and training or adaptation of the Platform and/or SaaS Services.
The Customer shall support the execution of the Contract by actively cooperating in an appropriate manner. In particular, the Customer shall be responsible for ensuring, at no charge, all prerequisites within its sphere of operation that are necessary for the proper provision of ilert’s services. This shall include, in particular, the conditions set out in the Individual Contract as well as those specified in the following Clauses 8.2 and 8.3.
The Customer shall be required a) to create and maintain the technical prerequisites for access to the SaaS Services in its own area, particularly with regard to the hardware and operating system software used, connection to the internet and ensuring that its browser software is up to date;
b) to take the necessary precautions to secure its systems during the entire Contract period, in particular to use the standard browser security settings and to employ up-to-date protection mechanisms to guard against malware;
c) to ensure that the data stored in its user account is always up to date. In the event of changes or inaccuracies in the stored data, the Customer must update or correct this information without undue delay and without being asked.
The Customer shall be required to inform ilert in text form about any service disruptions (service defects, lack of availability) without undue delay after becoming aware of them, at the latest on the following working day, as well as to provide ilert with clear and detailed information about the service disruptions, stating all information that could be useful for identifying and analysing the service disruptions. In particular, the Customer must specify the work steps which led to the occurrence of the defect as well as the appearance and effects of the defect. In the event of service disruptions, the Customer shall support ilert to an appropriate extent in identifying and eliminating errors.
The Customer shall be required to use the SaaS Services provided by ilert only to the contractually agreed extent and for the contractually intended purpose and within the framework of the applicable legal provisions, and to refrain from all actions that could endanger or disrupt the functioning of the SaaS Services.
In particular, the Customer shall be obliged a) not to use the SaaS Services to create, store or send any content that is pornographic, glorifies violence, is discriminatory, prohibited by law, harmful to young people, in violation of moral standards or harmful to public order and safety;
b) not to violate any copyright (e.g. for photos, graphics), trademarks (e.g. logos) and other property rights or other legally protected goods of ilert or third parties (e.g. personal rights) when using the SaaS Services;
c) when using the SaaS Services, to observe and comply with all existing statutory information obligations (e.g. the obligation to provide a provider identification in accordance with Sect. 5 of the German Telemedia Act (TMG));
d) not to use the SaaS Services to send unsolicited messages that could be considered spam;
e) to access the SaaS Services exclusively via the interfaces or API provided by ilert;
f) to ensure that its information and data transmitted via the SaaS Services are not infected with viruses, worms or Trojans;
g) not to use any devices, products or other means that serve to circumvent or overcome technical measures used by ilert for the prevention of unauthorised use;
h) not to use any web crawlers, robots, spiders, site search/retrieval applications or other automated means or comparable technologies to access the SaaS Services or to retrieve or evaluate content.
The Customer shall be obliged to inform the Users of the above provisions and to ensure compliance with them.
The Customer shall indemnify ilert against all claims asserted by third parties against ilert due to violation of their rights or due to rights infringements caused by content created or transmitted by the Customer using the SaaS Services. The Customer shall also bear the necessary costs of ilert’s legal defence in this regard, including court and lawyer fees. This indemnification shall not apply if the Customer is not responsible for the rights infringement. This shall not affect the assertion of further rights and claims by ilert, in particular the right of extraordinary termination for good cause and claims for damages.
The Platform and the SaaS Services, including the homepage layout, the graphics and images used, the content as a whole as well as individual pieces of content including the system presentation texts, as well as the software code on which the SaaS Services and the Platform are based, may be protected in whole or in part by copyright or other intellectual property rights. All rights are exclusively reserved by ilert or ilert’s licensors. This shall not include Customer Data.
In particular, the Customer shall be prohibited from a) reproducing, modifying, adapting, translating, decompiling, disassembling or deriving the Platform or the SaaS Services, performing reverse engineering, or otherwise attempting to derive the source code underlying the SaaS Services or the Platform.
b) using, evaluating or displaying the Platform or the SaaS Services in order to construct, modify or otherwise create a network environment, a program, an infrastructure or parts thereof with features comparable to those of the SaaS Services or the Platform. This shall not affect the mandatory legal regulations on permissible use pursuant to Section 69d para. 2 and 3 and Section 69e of the German Copyright Act.
In accordance with the Individual Contract and the following provisions, the Customer shall be granted the simple, non-exclusive, non-transferable right, limited to the duration of the Individual Contract, to access the SaaS Services using a browser and an internet connection and to use them for its own business purposes. This right of use shall be limited to the number of Users specified in the Individual Contract. ilert shall be entitled to take technical measures to prevent use beyond the permissible scope, in particular to install access barriers.
In its relationship with ilert, the Customer shall be entitled to all rights to the Customer Data provided by the Customer. However, the Customer shall grant ilert the irrevocable right, free of charge, to collect Customer Data in summary and anonymous form to the extent permitted by law, and to use this to create statistical reports and presentations, to provide and enhance the Platform and SaaS Services, and to provide enhanced features. The Customer shall have no rights whatsoever to the aggregated data and results.
ilert shall be entitled to include the Customer in ilert’s reference list and to name the Customer in a suitable manner as a reference on the Website and in printed and digital marketing and advertising materials. For this purpose, the Customer shall grant ilert free of charge a non-exclusive, worldwide, non-transferable right to use the Customer’s company name and logo. If using the company name and/or logo is subject to particular requirements, the Customer shall inform ilert of these without request. The Customer shall be entitled to withdraw the granted right of use at any time, with effect for the future, by submitting a notification to that effect in text form.
The remuneration owed by the Customer for the Contractual Services shall be specified in the Individual Contract.
The remuneration for the Contractual Services shall be paid in advance for the service or billing period specified in the Individual Contract and the subsequent extension periods.
Unless otherwise expressly agreed in the Individual Contract, invoices issued by ilert shall be due for payment in full within 14 days after receipt by the Customer. ilert shall be entitled to send invoices to the Customer by email or to make them available to the Customer online.
Any set-off of claims by the Customer against claims of ilert shall only be possible to the extent to which the Customer’s claims are legally established or not disputed.
All prices are in EUR or USD and – unless they are expressly referred to as gross prices – do not include the statutory turnover tax applicable at the relevant time. Unless expressly stated otherwise, the Customer shall be responsible for all other taxes and duties that apply to the sale and use of the SaaS Services and Additional Services. The Customer shall pay ilert for the SaaS Services and Additional Services without any deductions for such taxes and duties. If ilert is obligated to levy or pay such taxes and duties, ilert shall invoice the Customer for these taxes and duties, unless the Customer submits to ilert a valid exemption certificate issued by the competent tax office which states that no tax needs to be levied.
ilert reserves the right to temporarily or permanently restrict the Customer’s use of the SaaS Services or to temporarily or permanently block the Customer’s access to the SaaS Services if a) there is concrete evidence that the Customer has allowed or in any other way deliberately enabled an unauthorised third party to use the user account or the access data; b) there is concrete evidence that a breach of one of the obligations under Clauses 9.1 and 9.2 has occurred; c) there is concrete evidence of misuse, unauthorised or fraudulent use of the user account or such use is to be feared on the basis of concrete evidence; d) the Customer fails to pay the remuneration owed within 30 days of the due date, despite a reminder; e) the Customer repeatedly violates other provisions of these Terms despite a warning; e) other circumstances exist that would entitle ilert to terminate the Contract for good cause.
When selecting measures according to Clause 12.1, ilert shall take into account its own operational requirements and liability risks as well as the legitimate interests of any claimants and the Customer (e.g. fault, weight of the breach of duty, risks, statement by the Customer) in an appropriate manner.
ilert shall inform the Customer without undue delay of any temporary or permanent restriction or blocking of its user account, stating the reasons.
The Website or the SaaS Services may contain hyperlinks to external applications and websites, over whose content ilert has no influence. Such hyperlinks are provided to the Customer for reference purposes only. ilert assumes no liability for external content. If ilert becomes aware that linked content is illegal, ilert shall remove the corresponding hyperlink without undue delay.
ilert shall only be liable without limitation for damages in case of intent and gross negligence on the part of ilert, its vicarious agents and/or legal representatives. With regard to damages caused by slight negligence, ilert shall only be liable in case of a breach of an essential contractual obligation. Essential contractual obligations are those obligations whose fulfilment make possible the correct execution of the Contract in the first place and on whose compliance the Customer may regularly rely. In the event of a breach of such an essential contractual obligation, the liability of iLert shall be limited to the damages typical for this type of contract which iLert could have foreseen at the time when the Contract was concluded based on the circumstances known at that time.
ilert shall be liable for the loss of data in accordance with the preceding paragraph only if and insofar as such a loss could not have been avoided by the Customer through appropriate data backup measures.
The aforementioned limitations of liability as well as all other limitations of liability contained in these Terms shall not apply in the event of the assumption of express guarantees, in the event of claims due to a lack of warranted characteristics, or to damages resulting from injury to life, limb or health. In these cases, ilert shall also be liable without limitation for slight negligence. The liability of ilert under the German Product Liability Act also remains unaffected.
If ilert is completely or partially prevented from fulfilling the Contractual Services due to Force Majeure, iLert shall be released from these obligations for the period and to the extent that Force Majeure prevents its performance.
As soon as ilert becomes aware of a situation involving Force Majeure that completely or partially prevents iLert from fulfilling the Contractual Services, iLert shall be required to notify the Customer without undue delay (notification) and, as far as reasonably possible, to provide the Customer with an estimate of the extent and the expected duration of its inability to perform within 10 working days. If the notification is not issued without undue delay, ilert shall only be released from its obligation to perform from the point in time when the notification is issued.
If ilert invokes Force Majeure, ilert shall make every economically reasonable effort to minimise the extent of the consequences caused by the Force Majeure for the Contractual Services. ilert shall regularly inform the Customer in an appropriate manner about the current status as well as the extent and the expected duration of the impediment to performance.
The Customer shall be released from its payment obligation to the extent that and for as long as ilert is prevented from fulfilling the Contractual Services due to Force Majeure. ilert shall refund the Customer any relevant amounts already paid.
As soon as it becomes clear that the Contractual Services cannot be fulfilled, or cannot be fulfilled in full, for more than 3 months due to Force Majeure, each party shall be entitled to terminate the Contract with immediate effect.
With regard to Confidential Information of the other party, each party shall be obliged to a) keep such information strictly confidential and only use it in connection with the contractual purposes; b) take appropriate confidentiality measures to secure such information against unauthorised access by third parties. This also includes technical security measures that take into account the state of the art (Art. 32 GDPR); c) only disclose or pass on such information to those employees and bodies as well as commissioned service providers who or which need to know this information for the execution of the Contract, and who or which are subject to an obligation to maintain confidentiality that guarantees at least the same level of protection as this agreement; d) not disclose or pass on such information to third parties, unless the third party is a consultant or potential investor of the receiving party and the respective consultant or investor is subject to an obligation to maintain confidentiality that guarantees at least the same level of protection as this agreement or is already professionally bound to secrecy.
The confidentiality obligations under Clause 16.1 shall not apply to Confidential Information that can be proven to a) have been known or generally accessible to the public before its communication or transfer or becomes known or generally accessible to the public at a later date, as long as there is no breach of a confidentiality obligation; b) have been already known to the receiving party prior to disclosure by the disclosing party, as long as there is no breach of a confidentiality obligation; c) have been developed independently by the receiving party without using or referring to the Confidential Information of the disclosing party; d) have been handed over or made available to the receiving party by an authorised third party, as long as there is no breach of a confidentiality obligation; or e) be required to be disclosed due to mandatory legal provisions or a decision of a court and/or an authority.
The confidentiality obligations under this Clause 16 shall remain in force for a period of 2 years after termination of the Contract.
ilert shall process personal data of the Customer in accordance with the documented instructions of the Customer and only for the contractually agreed purposes in accordance with Art. 28(3) GDPR and in accordance with the Data Processing Agreement concluded between the parties.
The beginning of the Contract, its duration and any ordinary rights of termination shall be regulated in the Individual Contract. This shall not affect the right of extraordinary termination.
ilert shall block the Customer’s access to the Platform immediately after termination of the contractual relationship and permanently erase all of the Customer’s data and other content no later than one month after termination of the Contract. This shall not affect any statutory retention periods. Once erased, the content cannot be restored. It shall be the responsibility of the Customer to ensure that it has backed up or copied all data it requires, in particular Survey Recipient Data, before termination of the contractual relationship. At the Customer’s written request, ilert shall support the Customer in this process in return for appropriate remuneration and make the data available to the Customer on a standard data medium or by way of remote data transmission. The Customer must declare its request at the latest at the time of termination or, in the case of termination by ilert, immediately after receipt of the notice of termination.
With the exception of the provisions in Clause 19.2, neither party may transfer its rights and obligations arising from the Contract to a third party without the consent of the other party.
ilert shall be entitled to transfer the Contract in its entirety to an enterprise affiliated with ilert within the meaning of Sect. 15 of the German Stock Corporation Act (AktG) as well as to any other third party, provided that this other third party acquires ilert’s entire business or a substantial part thereof. ilert shall notify the Customer of a planned transfer at least four weeks in advance in text form. In the event of such notice of transfer, the Customer shall have an extraordinary right of termination at the time when the planned transfer takes effect. In the notice of transfer, ilert shall point out this right separately to the Customer. Notice of termination must be received by ilert in text form within 14 days after the Customer receives the notice of transfer.
If any provision of the Contract is found to be invalid, ineffective, or unenforceable, this shall not affect the validity, effectiveness and enforceability of the other provisions of the Contract. The parties undertake to replace the ineffective provision with a legally permissible provision that comes as close as possible to the purpose of the ineffective provision.
Changes and additions to the Contract must be made in writing. This also applies to a waiver of this formal requirement.
The Contract shall be subject to German law.
The courts in Cologne shall have exclusive jurisdiction for all disputes arising from or in connection with this Contract.