14 Additional Provisions for Software-As-A-Service (SaaS)
MaxBrain provides the client 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 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 organisations are not included.
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, the performance and the quality of the Software. The customer therefore tolerates short-term restrictions on use that arise from 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 client in good time and planned jointly.
MaxBrain can 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 not obliged to purchase these. The integration of updates without incurring additional costs remains reserved.
The customer undertakes to treat her access data confidentially. The client can change her access password at any time. The client 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. When using the storage space, the customer is obliged to comply with Swiss and international law as well as generally accepted rules of conduct (netiquette, etc.). The Customer is responsible for the content of the information that the Customer or third parties transmit or have processed, retrieve or hold ready for retrieval via the MaxBrain servers. In particular, the following information or data may not be disseminated via the client's storage space:
- Information or data that infringe copyrights and related rights, design rights, trademark rights, patent rights or other intellectual property rights and similar proprietary 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;
- Instructing or inciting criminal conduct;
- Unauthorised gambling within the meaning of the Lottery Act.
MaxBrain disclaims any liability for the content of clients and third parties.
In cases of improper use, MaxBrain reserves the right to block the Customer's software licenses with immediate effect at the Customer's expense. Abusive use is in particular the non-fulfilment of the contractual obligations of the Customer mentioned in Art. 17(c). The blocking remains in place until the respective facts have been clarified or the customer provides proof of the actual harmlessness of the content. MaxBrain also reserves the right to block the service at the expense of the client, if the user's behaviour in any way impairs the operational behaviour of the servers. Furthermore, the customer is prohibited from reselling, subletting or lending components of a hosting package to third parties.
The client must regularly check the accesses in 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 endangers the operational stability of the MaxBrain servers is not permitted and constitutes misuse of the services provided.
f) Data protection
The client is solely responsible for making back-up 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 relevant data again to MaxBrain free of charge. There are various data protection risks for the customer when using the Internet. For example, data protection is not guaranteed when data is transmitted unencrypted. It is therefore to be expected that unencrypted e-mails can be read, changed or suppressed by third parties without authorisation. Encryption and ciphering of transmitted information can improve protection against unauthorised access.
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 transferred within the framework of the SaaS. Notwithstanding the provisions of article 9, MaxBrain does not assume any responsibility for damages caused by the customer to third parties through misuse of MaxBrain's storage space. This includes damages caused by computer viruses. MaxBrain does not guarantee that the SaaS can be used from all end devices without any problems. MaxBrain disclaims any liability for the loss or unauthorised modification of emails. MaxBrain is not liable for interruptions of service for the purpose of troubleshooting, maintenance, changeover of infrastructure (switchovers, etc.) or the introduction of new or different technologies.
All requests for technical support can be sent by email to firstname.lastname@example.org. If the necessary support exceeds the usual extent, MaxBrain reserves the right to charge the customer for the effort according to the currently valid rates.
i) User fees
If the annual total storage amount is exceeded, additional charges may apply. MaxBrain will inform the customer in advance and give her the option to reduce the amount of storage used by a mutually defined date.