General Terms and Conditions (GTC) for entrepreneurs

§ 1 Scope of application of the GTC

§ 2 Subject of the contract

§ 3 Speed and availability of the server

§ 4 Customer’s obligations to cooperate

§ 5 Responsibility for the customer’s content

§ 6 Rights of use and copyright notices

§ 7 References

§ 8 Remuneration

§ 9 Limitation of liability for damages

§ 10 Data protection

§ 11 Set-off, right of retention

§ 12 Contractual term, termination, data backup obligation

§ 13 Applicable law

§ 14 Place of jurisdiction

§ 15 Severability clause

§ 16 Written form clause

 

§ 1 Scope of application of the GTC 

(1) These GTC only apply to services provided by the provider to entrepreneurs (hereinafter referred to as the customer) within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).

(2) These GTC shall also apply exclusively to all future transactions between the contracting parties.

(3) The customer’s GTC only apply to the extent that the provider has expressly agreed to them in writing before the respective contract is concluded.

§ 2 Subject of the contract 

(1) The provider offers the customer ‘software as a service products’ (hereinafter also referred to as ‘software’). Details of the services offered by the provider can be found in the individual service descriptions on the provider’s website. By concluding the contract, the customer acquires the right to use the software provided by the provider on its server during the contractual term within the scope of these GTC.

(2) The provider is entitled to independently carry out updates and extensions to the software at any time, provided that this is reasonable for the customer.

(3) If the provider offers free software for use, this is a voluntary service offered by the provider. There is no entitlement to the service and the fulfilment of certain requirements—particularly availability—for the provider’s free software. The provider can block these free services at any time without justification or terminate availability.

§ 3 Speed and availability of the server 

(1) The provider owes bandwidth in line with the latest state of technological advancement to connect its portals to the next Internet node.

(2) The provider makes the software available on a web server 24 hours a day, seven days a week with an availability of 96% on annual average. This excludes downtime due to maintenance and software updates as well as times when the web server cannot be reached via the Internet due to technical issues or other problems that are not within the provider’s control (force majeure, fault of third parties, etc.). If it is foreseeable for the provider that downtime for maintenance and software updates will last longer than three hours, the provider will inform the customer at least three days before the respective work starts.

(3) Any reduction in remuneration or termination by the customer in accordance with § 543 of the BGB due to unavailability of the portals outside the previously mentioned maintenance windows is only permissible if the customer has set the provider a reasonable deadline in writing to rectify the issue and this has failed.

(4) If the provider is prevented from fulfilling its above obligations by force majeure—in particular by the occurrence of unforeseeable, extraordinary circumstances (e.g. power issues, operational disruptions)—despite applying reasonable care, the agreed times for maintenance work shall be extended to an appropriate extent, provided this is reasonable for the customer. If the service becomes impossible for the provider in these cases and/or a reasonable extension is not reasonable for the customer in individual cases, the provider will be released from its performance obligations.

§ 4 Obligations of the customer to cooperate 

(1) The customer will provide the provider with all documents and information available to it and required for the provision of services in a timely and fully active manner. The customer will also support the provider in the provision of the contractual services to the extent reasonable, necessary and appropriate.

(2) The customer will immediately inform the provider if obstacles or impairments or defects occur that may have an effect on the services or the customer has reason to expect that such obstacles, impairments or defects have occurred. The customer will forward the provider’s instructions for problem analysis and all information available to it that is necessary to remove obstacles, impairments or defects to the provider, provided that this is reasonable for the customer.

(3) If the provider is aware that the services to be provided by it must be modified with regard to facts or requirements that have become known to it in the meantime, the provider will inform the customer of this immediately.

(4) The customer is obliged to keep its login details to the provider’s portals secret from unauthorised third parties. In particular, the username and password must be stored in such a way that access to this data by unauthorised third parties is impossible in order to exclude access misuse by third parties. The customer is obliged to inform the provider immediately as soon as it becomes aware that the login details are known to unauthorised third parties or may become known in the future.

(5) Unauthorised third parties are not considered to be persons who use the respective service of the provider, which is the subject of the respective contract, with the customer’s knowledge and in line with its wishes.

§ 5 Responsibility for the customer’s content 

(1) The customer is solely responsible for the content posted by the customer. The customer therefore guarantees to the provider that it is the sole owner of all rights to the content provided by it, or is otherwise entitled (e.g. by effective permission of the rights holder) to make the content available to the provider for the fulfilment of the contract. The provider is under no circumstances obliged to check the content supplied by the customer for possible legal violations.

(2) The provider is also not obliged to check the content supplied by the customer for completeness, accuracy, flawlessness, timeliness, quality and suitability for a specific purpose.

(3) If the customer uses the provider’s service, the customer is also solely responsible for complying with its own legal obligations (e.g. imprint obligations, data protection obligations, etc.).

(4) If the customer violates the aforementioned obligations, it is obliged to refrain from further violation, to compensate the provider for the damage incurred and still arising as well as to indemnify and hold harmless the provider from claims for damages and reimbursement of expenses of third parties caused by the violation. The indemnification obligation also includes the obligation to fully indemnify the provider from legal defence costs (court and attorney’s fees, etc.). Other claims of the provider, in particular for blocking the content and for extraordinary termination, remain unaffected.

§ 6 Rights of use and copyright notices 

(1) The provider grants the customer the non-exclusive, non-transferable right to use the leased software for the agreed contractual purpose in accordance with the following provisions, limited to the contractual term.

(2) The customer is not entitled to transfer access to the provider’s software to third parties without the express permission of the provider, with particular reference to selling or leasing access. Dependent use by the employees of the customer or other third parties subject to the customer’s right of instruction within the scope of the intended use is permitted.

(3) Labels and markings of the provider’s software, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognisable.

(4) The customer is not entitled to release source code and design material or other secret information of the provider relating to the software.

§ 7 References 

(1) The provider may name the customer by name, address and/or logo on its website, in brochures and in other standard forms as a reference. The customer grants the provider a free right of use, without any restriction on time or place, to its trademark, name and copyright for these purposes.

(2) The customer may terminate the granting of rights of use in accordance with the above paragraph with a notice period of 6 months in writing by registered letter, unless a shorter notice period is absolutely necessary in individual cases, e.g. because there is a risk of legal violations as a result of granting rights of use or use by the provider.

(3) However, 30 days after expiry of the notice period, the provider is also entitled to deliver reference lists available in finished print products which contain the name, trademark and/or logo of the customer, unless immediate termination of use is absolutely necessary in individual cases. At the written request of the customer, the provider is obliged to provide information on the current stock of print products containing the customer’s name, trademark and/or logo on the date of termination of the contract.

§ 8 Remuneration 

(1) The customer shall pay the provider the remuneration shown in the respective offer of the provider plus the statutory rate of VAT for the agreed services.

(2) Unless otherwise agreed, invoiced amounts are due immediately after provision of the service and invoicing.

(3) If a delivery and/or service cannot be provided or only provided late for reasons within the customer’s area of responsibility, in particular because the customer has not fulfilled its contractual obligations or has not performed them on time, the customer will reimburse the provider for any proven expenses incurred as a result based on the provider’s respective applicable hourly rates.

§ 9 Limitation of liability for damages 

(1) The liability of the provider for damages for any legal reason is limited in accordance with the above provision.

(2) The liability of the provider for damages caused by the provider or one of its vicarious agents or legal representatives intentionally or through gross negligence is not limited.

(3) In the case of damage resulting from injury to life, limb or health, liability is not limited even in the case of a simple negligent breach of duty by the provider or a legal representative or vicarious agent of the provider.

(4) Liability is also not limited for damages that are caused by serious organisational fault on the part of the provider, as well as for damages caused by the lack of guaranteed quality.

(5) In the event of a breach of essential contractual obligations by the provider or one of its vicarious agents or legal representatives and if none of the cases mentioned in the preceding paragraphs (2)–(4) apply, liability is limited to contractually typically foreseeable damage; essential contractual obligations are obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely.

(6) Any further liability for damages is excluded, in particular the strict liability of the provider according to § 536a (1), Alternative 1 of the BGB due to defects that are already present at the time of conclusion of the contract is excluded. (7) Liability under the Product Liability Act (Produkthaftungsgesetz) remains unaffected. (8) If damage is attributable both to the fault of the provider and to the fault of the customer, the customer must allow itself to be credited for its contributory negligence.

§ 10 Data protection 

(1) The provider takes the protection of the customer’s data very seriously. The collection, processing and use of customer data is carried out in strict compliance with the relevant legal regulations (in particular the Federal Data Protection Act [Bundesdatenschutzgesetz, BDSG] and the EU General Data Protection Regulation [GDPR]) as well as the provisions of this contract.

(2) The details of data processing are regulated in a separate data processing agreement (DPA) of the provider.

§ 11 Set-off, right of retention 

(1) The customer can only offset against claims of the provider with counterclaims that are undisputed, legally established or where a ruling is anticipated.

(2) The customer is only authorised to exercise a right of retention insofar as the counterclaim on which it bases the right of retention is undisputed, legally established or where a ruling is anticipated and is based on the same contractual relationship.

§ 12 Contractual term, termination, data backup obligation 

(1) The contract for the use of the provider’s platform is valid for an unlimited period of time. Each party is entitled to terminate the contract with a notice period of 2 weeks.

(2) The right of each contracting party to terminate the contract extraordinarily and without notice if there is good cause remains unaffected.

(3) Termination must be declared in writing by letter or via a corresponding platform function via the customer’s account.

(4) As soon as termination takes effect, the customer’s user account will be blocked and any content still stored there will be deleted or blocked until any legal retention obligations expire. The customer is therefore obliged to make copies of all data stored by it with the provider before the end of the contractual term and to store them on its own systems.

§ 13 Applicable law 

All disputes arising from the parties’ legal relationship are subject to the law of the Federal Republic of Germany. The validity of UN sales law is excluded.

§ 14 Place of jurisdiction 

(1) The courts at the provider’s registered office shall have exclusive jurisdiction for disputes arising from or in connection with the provider’s services and/or these GTC, provided that the customer is a merchant or the customer is a legal entity under public law or a special fund under public law, or the customer does not have a permanent place of residence in Germany, the customer has moved its place of residence or its usual place of residence abroad after these GTC have become effective, or if the customer’s place of residence or usual place of residence is not known at the time the action is filed.

(2) Only the provider remains entitled to file or initiate legal action or other legal proceedings at the customer’s general place of jurisdiction. If the provider files a lawsuit at the customer’s general place of jurisdiction, the customer is not entitled to file a counterclaim at this place of jurisdiction. Rather, the customer must assert its claims at the place of jurisdiction agreed in paragraph 1.

(3) The right of the parties to seek interim legal protection before another court is not affected by the above jurisdiction agreement.

§ 15 Severability clause 

Should individual provisions of these GTC be ineffective or lose their effectiveness due to a later occurring circumstance, the effectiveness of this contract remains unaffected.

§ 16 Written form clause 

All other agreements of the parties with the exception of the separate data processing agreement (DPA) of the provider must be in writing. This also applies to a change to this written form clause.

GTC date: 11/10/2019