General Terms and Conditions of allpccloud GmbH
allpccloud GmbH, Reichswaldallee 23a, 40472 Düsseldorf, registered in the commercial register of Amtsgericht Düsseldorf under the register number HRB 82885,
– hereafter „Provider“ –
the Client that is defined in the § 2 of these GTC
– hereafter „Client“ –
§ 1 Exclusivity / Applicability
1. These GTC apply exclusively to the contracts between the Provider and the Client. Any general provisions of the Client do not apply, unless the Provider accepts them explicitly and in writing.
§ 2 conclusion of contract
1. A contract between the Provider and the Client is closed when the Provider accepts the application (see application form) of the Client per e-mail or in other textual form
2. The German version of these GTC and the main contract prevail.
§ 3 Contractual duties of the parties
2. The contract is closed only between the Provider and the Client. The Client ensures that his customers receive the notification that a contractual relationship between them and the Provider do not exist.
3. The Client shall not use the services and Software of the Provider for a website that contains
a) Sexual content,
b) Violent content,
c) Defamatory content,
d) Discriminating content regarding the race, nationality, gender, religion, disabled persons, sexual orientation or age,
e) Any content that constitutes or entices to illegal activities
4. The Client shall not upload any materials with the content listed in paragraph (3) above on the website of the Provider.
5. The Client has to ensure that his customers use the Software in accordance with the rules of paragraph (3) above.
6. The Client shall include a notification in his website, in which the Software of the Provider is embedded, that the Provider does not bear any responsibility for the performance of the Client regarding the services or other acts of the Client. In addition, a notification on the website of the Client must be included regarding the data and personal information that is saved by the Software/website of the Provider. The Client can request this information from the Provider anytime.
7. The Client shall indemnify the Provider from all claims resulting from the use of the website of the Client by the Customers of the Client or other persons. This does not apply if the Client has not caused these claims by fault.
§ 4 Intellectual Rights
1. If not agreed otherwise, the Client acquires a license (limited by the duration of the contractual relationship) to use the Software either separate or embedded in the website of the Client. This use license does not entitle the Client to modify the source code of the Software without the consent of the Provider. Other modifications of the Software may be performed if it is allowed by the Provider (e.g., modification of the configuration steps) This use license cannot be transferred to third persons without the consent of the Provider.
2. The user access of the Software by the customers of the Client is not deemed to be transfer of the license.
3. The Provider retains all intellectual rights regarding the content of the Software (e.g., text, graphics, logos, button icons, pictures and data). The Client only acquires a use license for the duration of the contract.
4. The Client shall not replicate the Software unless done to back up a complete System or to transfer the Software from one system to another within the same organization. The Client shall not install the Software on a system if this would lead to a number of systems with the Software that exceeds the number contractually agreed.
§ 5 User account
1. The Client is obliged to ensure the confidentiality of the log-in data for the user account on the website of the Provider.
2. Has this confidentiality been compromised, the Client is obliged to notify the Provider immediately.
3. The Provider is only obliged to delete data from the User account of the client, if the Client demands it in written form and with specific description of the data that is to be deleted.
4. The invoices that are sent to the customers of the Client on its behalf by the Provider are stored in the User account only for a certain time and without a contractual duty of the Provider to store them. The Client receives a copy to the e-mail address that the Client determined and it is the Client’s responsibility to keep them.
§ 6 Payment terms
1. The payments of the remuneration shall be performed as described in the application form.
2. The first payment is due within 14 day after the acceptance of the application by the Provider.
§ 7 Warranty, Modifications
1. If there is a defect in the Software that materially hinders/obstructs the use of the Software on the website of the Client, the Provider is obliged to eliminate the defects within reasonable time after the Client notified the Provider of such defects. If the Provider does not eliminate defects within reasonable time, the Client is entitled to reduce the remuneration to a reasonable extent.
2. Performance failures of the Software that are not material shall not entitle the Client to reduce the remuneration or to terminate the contract. Performance failures shall not be deemed material if the Software does not work for 5 hours cumulative in a month.
3. Defects or failures that are caused by the non-contractual use of the Software by the Client or the customers of the Client shall not entitle the Client to any claims.
4. The Client is not entitled to transfer the source code to third persons or to use it in a different way than contractually agreed.
5. The Client shall embed the Software only into websites that the Client named in the application forms. If the Client wants to embed the Software in another website, the Client must obtain the consent of the Provider.
§ 8 Liability
1. Claims shall not be entitled to claim damages. This does not apply to claims
a) for damage from injury to life, body or health due to negligent breach of duty,
b) for damage due to breach of cardinal duties and
c) for damages due to breach of duty by gross negligence or intent.
2. Cardinal duties are such that are necessary to achieve the contractual purpose. In these cases the claims for damages are limited to the damages that could be foreseen taking the purpose of the contract into account if the breach of duty was not grossly negligent or intentional. This does not apply if the claims for damages also result from injury of life, body or health.
3. The limitations of the paragraphs (1) and (2) above also apply for the representatives of the Provider if the claims are directed towards them directly.
4. The limitations of the paragraphs (1) and (2) above shall not apply if the Provider has intentionally hidden defects of the Software. They shall not apply if the Client and Provider agreed on concrete specifications of the Software. The German Product Liability Act applies.
5. This section 8 does not alter the burden of proof.
6. The liability resulting from a data loss is also limited to the usual backup costs that would have to be paid if the Client had performed backups on a regular basis accordingly to the danger of the data loss.
7. The Provider shall not be liable for damages that result from the cease/interruption of use by the Client, unless the Provider failed to perform the contractual duties.
§ 9 Set-off / Lien
1. The Client shall only be able to set off reciprocal claims if the claims of the Client are not contested by the Provider or have been finally and non-appealably established.
2. The Client shall only be able to exercise a right of retention if the claims of the Client are not contested by the Provider or have been finally and non-appealably established or result from the same contractual relationship.
§ 10 Duration of the contract
1. The contract is closed for the time established in the application form.
2. The contract will be automatically prolonged by one further year if no party gives a written termination notice six weeks prior to the end of the duration of the contract that was valid before the termination notice.
§ 11 Confidentiality
1. The parties are obliged to keep all the information and data confidential that they exchange within the contractual relationship. It is particularly valid for the duration and content of the contract. In particular, the parties are obliged not to transfer such information and data to third persons.
2. This confidentiality agreement does not extend to facts and documents
a) That at time of the disclosure are already disclosed by the other party or are publicly know in other way than by breach of duty by either party.
b) If the other party gave its written consent to the disclosure.
c) Or disclosure made mandatory by an authority or a court. In this case the disclosing party will notify the other party as soon as it is allowed.
§ 12 Miscellaneous
1. All contracts between the Provider and the Client are governed by German law. CISG is not applied.
2. If the Client is a merchant as defined in Section 1 of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or special assets (Sondervermögen) under public law, the court venue for all disputes arising from the contract is the statutory seat of the Provider.
3. If the Client carries out a breach of duty and the Provider does not react regarding this breach, this shall not mean that the Provider waived any rights resulting from such breach of duty for the past and the future.
4. The contract as a whole stays valid even if one or several clauses are or become void unless it would constitute a undue hardship for one of the parties. The void clauses are replaced by the statutory law.