14. additional provisions for Software-As-A-Service (SaaS)
a) Principle
MaxBrain provides the customer with storage space on a server connected to the Internet. The server receives and sends data in connection with the Internet. The customer uses the storage space rented to her by MaxBrain to operate a learning management system. The following provisions refer only to the learning management system of the customer explicitly mentioned in the respective order; other persons or organizations are not included.
b) Services
According to the product description, MaxBrain provides the customer with a SaaS (browser, mobile apps, logins, etc.) for a usage fee. The usage fee must be paid in advance; otherwise MaxBrain reserves the right to discontinue the service. With maintenance work on the software or on the servers on which the software runs, MaxBrain optimizes the operation, performance and quality of the software. The customer therefore tolerates short-term restrictions on use caused by maintenance work. MaxBrain carries out maintenance work preferably at off-peak times (between 5.30 p.m. and 8.30 a.m.). Longer interruptions due to maintenance work will be communicated to the customer in good time and planned jointly.
MaxBrain may provide an update or further development of the software or individual components as a new version or update. The customer is obliged to use the new version or update. MaxBrain can offer new functionalities as fee-based extensions. The customer is under no obligation to obtain these. MaxBrain reserves the right to integrate updates without incurring additional costs.
c) Contents
The customer undertakes to treat her access data confidentially. The customer can change her access password at any time. The customer is responsible to MaxBrain for any use of the storage space and is liable for any damage resulting from the misuse of the storage space. The customer is obliged to comply with Swiss and international law and generally recognized rules of conduct (netiquette, etc.) when using the storage space. The customer is responsible for the content of the information that the customer or third parties transmit or have processed, retrieve or make available for retrieval via the MaxBrain servers. In particular, the following information or data may not be distributed via the customer's storage space:
- Information or data that infringes copyrights and related rights, design rights, trademark rights, patent rights or other intellectual property rights and similar rights of third parties;
- Pornographic writings, sound or image recordings and depictions within the meaning of Art. 197 SCC;
- Racial discrimination within the meaning of Art. 261bis SCC;
- Depictions of violence within the meaning of Art. 135 of the Swiss Criminal Code (SCC);
- Incitement to violence within the meaning of Art. 259 SCC;
- Instruction or incitement to criminal behavior;
- Unauthorized games of chance within the meaning of the Lotteries Act.
MaxBrain accepts no liability for the content of customers and third parties.
d) Misuse
In cases of misuse, MaxBrain reserves the right to block the customer's software licenses with immediate effect at the customer's expense. Misuse is deemed to be in particular the non-fulfilment of the customer's contractual obligations specified in Art. 17(c). The blocking shall remain in place until the respective facts have been clarified or the customer provides proof that the content is actually harmless. MaxBrain also reserves the right to block the service at the customer's expense if the customer's user behavior impairs the operating behavior of the servers in any way. Furthermore, the customer is prohibited from reselling, subletting or lending components of a hosting package to third parties.
e) E-mail
The customer must regularly check the access to her personal electronic mailbox (e-mail) and avoid exceeding the storage space. The sending of unsolicited mass e-mails (spamming) via the MaxBrain servers and the operation of mailing lists to an extent that jeopardizes the operational stability of the MaxBrain servers is not permitted and constitutes misuse of the services provided.
f) Data protection
The customer is solely responsible for making backup copies of data that she transmits to MaxBrain. All data entered on MaxBrain is stored daily as a back-up for 3 months. In the event of data loss, the customer is obliged to transmit the data concerned to MaxBrain again free of charge. There are various data protection risks for the customer when using the Internet. For example, data protection is not guaranteed for the unencrypted transmission of data. It is therefore to be expected that unencrypted e-mails can be read, changed or suppressed by third parties without authorization. Encrypting and encrypting transmitted information can improve protection against unauthorized access.
g) Liability
The use of the SaaS is at the customer's own risk. MaxBrain disclaims any responsibility for the completeness, accuracy and quality of the data and information transmitted as part of the SaaS. Notwithstanding the provisions of Art. 9, MaxBrain accepts no responsibility for damage caused by the customer to third parties through misuse of MaxBrain's storage space. This also includes damage caused by computer viruses. MaxBrain does not guarantee that the SaaS can be used without problems from all end devices. MaxBrain accepts no liability for the loss or unauthorized modification of e-mails. MaxBrain is not liable for interruptions in operation due to troubleshooting, maintenance, infrastructure changes (switchovers, etc.) or the introduction of new or other technologies.
h) Support
All requests for technical support can be sent by email to support@maxbrain.com. If the necessary support exceeds the usual level, MaxBrain reserves the right to charge the customer for the work involved at the currently valid rates.
i) User fees
If the total annual storage volume is exceeded, additional fees may be incurred. MaxBrain informs the customer in advance and gives her the option of reducing the amount of storage used by a mutually agreed date.