General Terms and Conditions of Service
The service provider, namely d.velop business services GmbH, Schildarpstraße 6-8, D-48712 Gescher, Germany (“d.velop”), provides registered business clients with d.velop cloud which is a web-based Enterprise Content Management System as a Software as a Service solution (“d.velop cloud”).
- These Terms and Conditions of Service (“TCS“) apply for all services offered by d.velop with d.velop.cloud to enterprises/ entrepreneurs (in terms of § 14 BGB – German Civil Code), public law entities or public law special funds (“öffentlich-rechtliche Sondervermögen”) (“clients”) that are domiciled in the EU/ EEA provided that the client has registered as a user of the d.velop cloud according to these TCS.
- The client, when registering as a user of the d.velop cloud, agrees to the TCS valid at this time by acknowledging application of these TCS during the registration process. General terms and conditions of business of the client do not apply. This is without prejudice to the priority of specific individual arrangements, if any, made between the parties.
- With d.velop cloud no services are provided to consumers (in terms of § 13 BGB – German Civil Code).
- All documents that are relevant for the contract are available for retrieval on the website under d-velop.cloud (“website”) upon contract conclusion; d.velop does not store them separately for the client. The said documents include these TCS, the service description, price model and service level. The contract language and performance language is German. If and to the extent that translations of contract-related documents are rendered, only the German version is legally binding.
- d.velop makes d.velop cloud available to the client with no services and service levels other than those agreed upon contract conclusion (“services”). Interaction with SaaS solutions or applications of third parties (“third-party products”) can be included in the services of the d.velop cloud. It is the client’s responsibility to ensure the conditions and prerequisites that are required for using the third-party products in combination with the d.velop cloud. This includes but is not limited to the conclusion of contracts with the providers of the third-party products and the use and installation of the third-party products according to the contract which the client has concluded with the provider of the third-party products. d.velop is not a party to or otherwise involved in these contracts and is not responsible or liable for the services to be provided by the third-party products providers.
- The client is not entitled to claim certain configurations or structures or certain functions of d.velop cloud that go beyond the agreed services. d.velop is only liable to provide a certain quality or condition of d.velop cloud that goes beyond the agreed services or ensure interoperability with existing hardware and software of the client if d.velop has given an explicit warranty to that effect to the client in text form (“Textform” in terms of German law).
- Access to d.velop cloud is made via the Internet. Availability of Internet access and hardware (e.g. router, smart device) or software (e.g. browser, plug-ins, apps), if any, required for the client to access the d.velop cloud are the sole responsibility of the client. Availability of d.velop cloud which d.velop is obliged to ensure to the client according to the service description is deemed given if the d.velop cloud is available for use as agreed in the contract, regardless of whether or not the client can actually access it from outside.
- d.velop cloud is made available to the client solely as a SaaS solution that can be used in the browser (Software as a Service). If d.velop provides additional apps for the use of the d.velop cloud, certain functions of the d.velop cloud may be missing in these apps or they may be contained therein in a form different from that contained in the browser. d.velop reserves the right to modify apps, if any, reduce their scope of functions or completely discontinue apps at any time in its sole reasonably exercised discretion. The client is not entitled to claim provision of apps featuring certain functions for certain operating systems or smart devices.
- d.velop is entitled to operate d.velop cloud by itself or through third parties (“sub-contractors“). d.velop is liable for fault (“Verschulden”) of its sub-contractors to the same extent as it is for its own fault. Solely liability of d.velop for intentional conduct of the sub-contractor alone is excluded.
- d.velop procures important preliminary services for the d.velop cloud in the form of Amazon Web Services from Amazon Web Services, Inc. (”AWS“). The terms and conditions of service which d.velop is obliged to observe with regard to AWS and which are available for retrieval at https://aws.amazon.com/de/agreement/, for some part substantially deviate from these TCS. This may lead to the necessity for d.velop, during the term of the contract, to make changes also to these TCS or the services which pertain to obligations of the parties the fulfilment of which is indispensable to enable use of d.velop cloud and on compliance with which the respective other party generally relies or is reasonably allowed to rely (“vertrauen dürfen”) (fundamental contractual duty – “wesentliche Vertragspflicht”). The client, upon conclusion of the contract for use of the d.velop cloud, is to consider this eventuality and take it into account when using the d.velop cloud, for instance as regards the client’s backup strategy for the contents the client puts in the d.velop cloud. d.velop thus recommends that the client on his/her own keeps him-/herself regularly informed of the current terms and conditions of service of AWS.
Registration as client
- The registration serves to identify the client and conclude the contract with d.velop. After the registration, the client can make all administrative settings for his/her d.velop cloud in the backend provided for such purpose and use the d.velop cloud with the agreed services. The settings, for instance, pertain to the scope of services, the price model and the number of users of the d.velop cloud created by the client.
- The client registers as client by means of a registration form on the website under an administrator name which the client can freely choose in his/her discretion, thereby entering the data necessary for contract performance and, as the case may be, also optional additional information. The data and information the client provides upon registration must be complete and accurate and the client is obliged to adjust them without undue delay (“unverzüglich”) in the case of subsequent changes. The client is not entitled to a particular administrator name. The administrator name chosen by the client must not infringe third-party rights including but not limited to third-party rights in names, marks and labels. The client is entitled to register several times under different administrator names; in this case, each of the various registrations constitutes a separate contract entered into with d.velop.
- The initial password is sent to the client during the registration process by unencrypted transmission to the email address provided in the registration process and the client must necessarily change it upon first log-in into a new password chosen by the client which is deemed secure with regard to current state of the art. The client is obliged to keep the password secret, prevent it from misuse and change it at regular intervals in accordance with current state of the art. The client, in the case of misuse or suspected misuse of the administrator name or password, is obliged to inform d.velop in text form (“Textform” in terms of German law) without undue delay (“unverzüglich”). The client is liable for any occurring misuse; this does not apply if the misuse is not attributable (“nicht zu vertreten haben”) to the client.
- d.velop reserves the right to request disclosure of appropriate information during the registration process and demand evidence demonstrating that the client is not a consumer. This may for instance be a request for entry of the value-added tax identification number or data from the commercial register entry of the client’s business. d.velop, during the registration process but no later than upon commencement of non-gratuitous use of the d.velop cloud, provides an upload option for the transmission of evidence or supporting documents.
- Until the data entered in the registration form is transmitted, it can still be corrected by rewriting or deleted by breaking off the registration process, e.g. by closing the browser window. Only upon clicking the button “Register and sign up for free trial”, the client submits to d.velop a legally binding offer for contract conclusion in accordance with these TCS. The client receives an appropriate confirmation by email. The contract between d.velop and the client is only concluded upon acceptance of the offer by d.velop. Transmission of the administrator name password is also deemed to constitute acceptance of the offer for contract conclusion.
- d.velop reserves the right, as an alternative, to allow the client to register or use the backend or use the d.velop cloud via already existing accesses to third-party services, e.g. via Facebook-Login. In this case, the terms and conditions of service agreed separately between the third-party provider and the client apply in addition.
Users in the d.velop cloud
- The client is to create the users intended for using the d.velop cloud. These may be employees, suppliers or contractual partners of the client as well as third parties authorized by the client (“users”). Users can only be created to the extent that this is part of the d.velop cloud services used by the client. The users’ rights in the d.velop cloud depend on the services agreed with the client under the contract.
- The client is solely responsible for use of the d.velop cloud by the users. The client is liable for the acts of his/her users in the same way and to the same extent as the client is liable for his/her own acts. The client makes sure that, prior to use, the users are committed to comply with the TCS for the d.velop cloud and that they use the services solely to the extent agreed with the client. No contract is entered into between d.velop and the users.
- The client creates users by means of a user creation form in the d.velop cloud, using for such purpose a user name the client chooses for the user, choosing a password and entering the data necessary for the provision of the d.velop cloud to the user and, as the case may be, additional optional data. The user can change these data him-/herself later. The duties to be observed by the client apply accordingly to the provision of user data and the handling of the user name and passwords. After clicking the button “Create user”, the user is activated and d.velop sends the user an unencrypted email to the email address indicated by the client, containing the user’s user name and password.
- Removal of users is done by a user removal form available in the d.velop cloud. There, the client chooses the user to be removed. After the client has clicked the button “Remove user”, the user is deleted and can no longer use the d.velop cloud.
Prices, terms of payment, default
- During a trial period allowed by d.velop, the client can use the d.velop cloud for free. Upon expiry of the trial period, the client is requested to consent to non-gratuitous use, providing for such purpose the data required for the mode of payment chosen. If the client refuses to provide such data, the client’s access authorization including administrator name, all user names and all contents lodged by the client is deleted.
- The fees payable for the use of the d.velop cloud can be seen from the price model agreed with the client in the contract. The price model also states the possible modes of payment. Invoices issued by d.velop are due immediately and payable within two weeks without deductions. Payment is only deemed made if and as soon as d.velop can dispose of the money. If the client is in default of payment, d.velop is entitled to charge default interest at the statutory rate. This is without prejudice to the right to assert other claims, too. If the client is in default of payment of more than one month’s fees, d.velop is entitled to completely block the client’s access for all users. If the client is in default of payment of an amount equal to at least two months’ fees, d.velop is entitled to terminate the contract for cause (extraordinary termination).
- The client is only entitled to set-off if the counter-claims are undisputed or have been acknowledged by d.velop or have been established by a final non-appealable court decision (res judicata). This does not apply in the case of client’s claims for defects against d.velop that are based on the same contract. The client is only entitled to exercise a right of retention if his/her counter-claim is based on the same contract.
- Invoices must be paid in EUR in all cases.
- All figures stated in the price model are inclusive of value-added tax at the statutory rate.
- The client is not entitled to use d.velop cloud for any purposes other than the client’s own business purposes. Any independent economic use or exploitation beyond that is forbidden. This includes but is not limited to the prohibition of non-gratuitous provision by the client of the d.velop cloud to third parties. In this context, third parties are not deemed to include companies affiliated with the client in terms of §§ 15 et seqq. AktG (German Stock Corporation Act) provided that the purposes for which the said affiliated companies use the d.velop cloud at least include own business purposes of the client.
- The client is obliged to comply with the applicable law and safeguard the rights of third parties.
- The client is in particular not allowed to do any of the following which is however a non-exhaustive list:
- Infringe industrial property rights of third parties such as trademark rights, copyrights and rights in names,
- Put insulting, defamatory, pornographic contents or contents harmful to the youth or other contents punishable under criminal law in the cloud,
- Harass other clients and/or third parties in an unacceptable way, for instance by unsolicited advertising (spams) or insinuating or molesting communication;
- Use mechanisms, software and/or scripts beyond the functions and interfaces d.velop provides in the d.velop cloud, especially if this causes services of d.velop to be blocked, modified, copied and/or rewritten and these services are necessary to enable use of the d.velop cloud in accordance with the contract, and
- Try to impair d.velop cloud, the security systems used by d.velop or the contents available for retrieval in the d.velop cloud by alteration of data (§ 303a Strafgesetzbuch – German Criminal Code, “StGB”), computer sabotage (§ 303b StGB), falsification of evidentiary data (§§ 269, 270 StGB), suppression of evidentiary data (§ 274 StGB), computer fraud (§ 263a StGB), spying out of data (§202a StGB), data interception (§ 202b StGB) or other criminal offences whereby d.velop will also file charges with the competent public prosecutor if any of the said criminal offences is attempted.
- The client him-/herself is responsible for compliance with the statutory provisions regarding the contents put in the cloud by the client him-/herself or his/her users. Should the client become aware that contents in the d.velop cloud obviously constitute an infringement of third-party rights (including but not limited to personality rights, rights in names, trademark rights, copyrights), d.velop, upon appropriate notice, will consider the reproach and, if required in legal respect, block access to these contents and delete these contents.
- The client is obliged to take adequate measures to prevent loss of his/her contents in the d.velop cloud. Which measures can be deemed adequate, essentially depends on the specific services the client uses in the d.velop cloud. If the generation of backups by d.velop is not included in the services to be provided by d.velop, adequate measures also comprise the generation of backups of the contents which the client puts in the d.velop cloud, at regular intervals depending on the importance of the client’s contents.
Liability for contents and links
- d.velop, with the d.velop cloud, only provides the technical and organizational platform for the contents that clients, users or third parties put in the cloud. These contents, from the point of view of d.velop, are external third-party contents. If, in exceptional cases, d.velop provides contents of its own in the d.velop cloud, these will be explicitly identified and referred to as own contents of d.velop.
- d.velop only stores and, where applicable, undertakes automated processing of, external third-party contents in connection with the services made available to the client in the d.velop cloud. d.velop has no cognizance of the external third-party contents. d.velop does not select or otherwise control or supervise external third-party contents nor does d.velop supervise the clients and users of d.velop cloud or instruct them. d.velop explicitly dissociates itself from external third-party contents, and provision of the d.velop cloud must by no means be deemed to constitute adoption by d.velop of any such external third-party contents as its own. External third-party contents are the sole responsibility of the client, users or third parties.
- The clients, via links or functions in the d.velop cloud, can be referred to other external websites or SaaS solutions which are not operated by d.velop. Such links or functions are either clearly marked or can be recognized by a change in the address line of the browser or a change of the user surface. d.velop is not responsible for the contents of such external websites; No. 10 remains unaffected.
Rights of use
- The client is granted a simple, non-exclusive right to use the d.velop cloud, which right is, in terms of time, limited to the term of the contract and, in terms of territory, limited to the EU/EEA and, in terms of content, limited to the services agreed in the contract. The client is not allowed to use the d.velop cloud for purposes other than those agreed in the contract. Impermissible other purposes include but are not limited to the adaptation and economic use or exploitation of the d.velop cloud by its non-gratuitous provision by the client to third parties.
- The client, by putting contents in the d.velop cloud, grants to d.velop all simple, non-exclusive rights to use the contents that are required to enable d.velop to provide to the client the services agreed in the contract. d.velop is only allowed to use the contents for other purposes with the client’s prior consent given in text form (“Textform” in terms of German law). If the client puts text, image, graphic, audio or video files in the d.velop cloud, the client is obliged to make sure that he/she holds the necessary rights to use such contents.
- If the client is in breach of these TCS, d.velop is entitled, in its reasonably exercised discretion and in consideration of the client’s interests, to impose sanctions. The severity of the sanction depends on the severity of the client’s breach. The sanction may continue in effect until the client has stopped the breach and there is no longer a risk of repeated breach.
- Possible sanctions are:
- Deactivation or blocking of certain individual services for the client, deletion of the contents which the client has put in the cloud
- Complete or partial blocking of the access to the d.velop cloud.
- d.velop, besides imposing sanctions, is also entitled to terminate the contract for cause (extraordinary termination) and assert further claims based on the breaches in question.
- The parties are liable in accordance with the statutory regulations, subject however to the following provisions. This also applies to the parties’ legal representatives and vicarious agents or other persons engaged by them in the fulfilment of their obligations (“Erfüllungsgehilfen“).
- In the case of force majeure or gratuitous use of the d.velop cloud, the liability of d.velop for simple negligence (“einfache Fahrlässigkeit”) is excluded. Otherwise, in the case of simple negligence, d.velop is only liable for damage incurred as a result of a breach of a fundamental contractual duty (“wesentliche Vertragspflicht”). If d.velop is in breach of a fundamental contractual duty, its liability is limited to the compensation of the foreseeable damage typically incurred and liability for indirect or consequential damage including but not limited to lost profit is excluded. The parties are agreed that twice the amount of the annual fees paid by the client but not less than EUR 25,000.00 per calendar year corresponds to the foreseeable damage typically incurred and that, beyond that, d.velop is only liable for simple negligence if the parties have made an appropriate separate agreement in text form (“Textform” in terms of German law). The preceding limitations of liability do not apply in the case of damage incurred as a result of an injury of the life or limb or health, nor in the case that d.velop has fraudulently concealed a defect or, in exceptional cases, has given a warranty for a certain quality nor in the case of claims under the Produkthaftungsgesetz (German Product Liability Act).
- If the client asserts claims for defects and the defect, after inspection, proves not to exist or proves to be not attributable (“nicht zu vertreten haben”) to d.velop, the client is obliged to reimburse d.velop for the reasonable expenses incurred by it as a result of the inspection. This does not apply if the client was unable to recognize that the reported defect does not exist or is not attributable (“nicht zu vertreten haben”) to d.velop.
- The client him-/herself is liable for his/her breaches of duty. The client indemnifies d.velop from any and all payment claims asserted against d.velop for breaches of law caused by the contents which the client has put in the d.velop cloud or payment claims asserted on grounds of the use of the d.velop cloud by the client. The client will pay upon first request all reasonable costs incurred by d.velop as a result thereof, including but not limited to the necessary costs of legal defence. This does not apply if the breach of law is not attributable (“nicht zu vertreten haben”) to the client. Other claims of d.velop against the client remain unaffected.
- If contents of the client get lost, d.velop is only liable for the loss if the client has duly fulfilled the duties imposed on him/her by these TCS as regards the handling of the client’s data in the d.velop cloud.
- Mutual claims of the parties arising under the contract for use of d.velop cloud become time-barred after expiry of twelve months, computed from the time of provision by d.velop of the specific service giving rise to liability.
- The term of the contract is in all cases one month, computed from the 1st calendar day of a month following expiry of a period of gratuitous use, if any, granted to the client by d.velop. The contract is then extended by another month from time to time unless it is terminated before. The time for giving notice of termination is one calendar day for the client and two weeks for d.velop. Partial termination by the client, for instance reduction of the number of users, is permissible.
- As soon as the termination takes effect, access to the d.velop cloud by the client and all users created by the client is blocked. Upon the client’s request, this will already be done even before the end of the contract term. However, d.velop will not make pro-rata reimbursement of fees paid in excess, if any. The client is given the opportunity to export the contents he/she has put in the cloud by no later than one month after the termination has become effective. After that time, d.velop is entitled to completely delete the client’s access and all names, codes and contents which the client has put in the cloud. Until that time, the client can at any time restore his/her former access by a new registration for non-gratuitous use. d.velop does not provide other support services in connection with the termination of the contract.
- The right to terminate the contract for cause (extraordinary termination) remains unaffected. For d.velop, cause in terms hereof includes but is not limited to the following cases: (a) the client, while using the d.velop cloud and despite a warning issued to him/her, exceeds the average data volume generated by all clients of the d.velop cloud by more than 50% within a period of one month; if the said volume is exceeded by more than 100% no prior warning is required, or (b) AWS as the pre-supplier/sub-supplier terminates the agreement with d.velop for provision of the services required for the provision of the d.velop cloud in accordance with the terms of the agreement but with no fault on the part of d.velop in the way that compliance by d.velop with the regular notice period is impossible or unreasonable for d.velop.
- Notice of termination must in all cases be given in text form (“Textform“ in terms of German law).
Confidentiality and data protection
- The contents in the d.velop cloud are available to no persons other than the client him-/ herself and the users created by him/her. d.velop only takes cognizance of the contents to the extent that this is required for the provision of the services. Client’s contents in the d.velop cloud are only available to third parties if the client him-/herself or his/her users share them with third parties, using for such purpose the functions, if any, provided for such content sharing.
- If use of the d.velop cloud is deemed by the client to constitute contract data processing in terms of § 11 BDSG (German Federal Data Protection Act), the service provider for such purpose makes an appropriate draft agreement for contract data processing which satisfies the statutory requirements of § 11 BDSG available for retrieval on the website. After the client has signed and sent the agreement to d.velop, d.velop will countersign and return one copy of the agreement to the client.
Changes to the TCS
- d.velop explicitly reserves the right to make changes to these TCS. Such changes will take effect as of the beginning of the next calendar month provided d.velop has given to the client at least two weeks’ notice of the changes in text form (“Textform” in terms of German law). If the client rejects the changes, he/she is entitled to terminate the contract by no later than the beginning of the next calendar month, without observing the notice period stipulated in these TCS. The client is not entitled to any other claims on grounds of a change to the TCS.
- Changes that pertain to fundamental contractual duties (“wesentliche Vertragspflichten”) are only permissible if they are indispensable either because AWS has changed the preliminary services which the provider procures from AWS that cannot be implemented in the relationship with the client without a change of the fundamental contractual duties by d.velop or d.velop can no longer provide the services according to the recognized IT security requirements without changing the fundamental contractual duties.
Changes to service description, service level and price model
- d.velop reserves the right, in its reasonably exercised discretion and in consideration of the client’s interests, to change or discontinue d.velop cloud in whole or in part if this does not impair fundamental contractual duties (“wesentliche Vertragspflichten”) and is reasonably acceptable for the client. d.velop will inform the client of any such changes to the service description or the agreed service level in text form (“Textform” in terms of German law) no later than upon such changes taking effect. This can also be done by lodging appropriate information in the client’s administrator name back end.
- The provisions governing changes to these TCS apply accordingly to changes to the service description or the agreed service level which affect fundamental contractual duties (“wesentliche Vertragspflichten”) to the client’s detriment as well as to changes to the price model.
Contract transfer to third parties
- d.velop is entitled to transfer this contract as a whole or the rights and duties arising thereunder, either in whole or in part, to a company affiliated with d.velop in terms of §§ 15 et seqq. AktG (German Stock Corporation Act) (“contract transfer”). d.velop will inform the client of such a contract transfer in text form (“Textform” in terms of German law) no later than upon transfer of the contract.
- Contract transfer to third parties is only permissible if d.velop informs the client no later than one month before the intended contract transfer in text form (”Textform“ in terms of German law) and the client has not objected to the contract transfer in text form within two weeks from receipt (“Zugang” ) of the appropriate information. The objection is thereby deemed to constitute notice of termination of the contract by the client for the end of the term.
- German law applies with the exception of conflict of the laws rules.
- Assignment of client’s claims relating to the use of the d.velop cloud is subject to prior consent by d.velop in text form (“Textform” in terms of German law) which may however only be denied for good cause.
- The parties did not make any oral side agreements. Changes or amendments to these TCS as well as all declarations of the parties made with regard to the contract must be in text form (“Textform” in terms of German law). This also applies in the case of cancellation of this form requirement.
- If individual provisions of these TCS should be or become invalid in whole or in part, this will be without prejudice to the validity of the remaining provisions hereof. In this case, the statutory provisions apply. This also applies in the case of an omission in these TCS.
d.velop cloud – General Terms and Conditions of Service
Version 1.0.0, As of: 01/09/2016
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