General Terms and Conditions of Cloudbrixx GmbH
General Terms and Conditions of
Eichenweg 25 | D-63683 Ortenberg
- General information
- Licence agreements
- Performance obligations, warranty
- Data security, data centres
- Force majeure
- Obligations of the Customer
- Compensation and terms of payment
- Liability limitation
- Provision on limitation
- Intellectual property rights
- Trial version
- Termination, term
- Access to and deletion of data
- Changes to the GTC
- Data protection, transfer of the Customer’s personal data
- Jurisdiction and place of performance, applicable law, contract language
- Contradictory provisions, written form, severability clause
1.1 Cloudbrixx GmbH, Eichenweg 25, D-63683 Ortenberg, (hereinafter referred to as "Cloudbrixx") provides its customers with cloud-based "software as a service (SaaS)" solutions (hereinafter also referred to as "Cloudbrixx"). These solutions are accessed via the internet. For all services provided by Cloudbrixx and all business relationships between Cloudbrixx and its Customers, these General Terms and Conditions (“GTC”) shall apply exclusively in the case of business transactions, unless another explicit provision is made between the Customer and Cloudbrixx. GTC of Customers and other third parties shall only become part of the contract if this is expressly agreed in writing.
1.2 These GTC shall be accepted through their express inclusion in individual contracts or by clicking on the button/checkbox that indicates “I have read and accept these GTC” during registration. This also applies if an interested person registers to use the free trial version of Cloudbrixx for testing purposes (see Sections 1.6 and 12 Trial version). The current version of the GTC may be accessed, printed or stored locally at any time via cloudbrixx.de
1.3 If the contract is concluded on behalf of a legal entity, the concluding person shall ensure that they are authorised to bind the legal entity to the conditions.
1.4 The SaaS solutions offered by Cloudbrixx include the provision of Cloudbrixx in various product forms, as well as the elimination of any errors in Cloudbrixx and updates, i.e. updates, additions and expansions made to Cloudbrixx during the term of the contract, whereby the implementation and frequency of these updates are at the absolute discretion of Cloudbrixx.
1.5 In this context, Cloudbrixx offers Customers various software modules with different functionalities and ranges of functions. The Cloudbrixx modules can be divided into different licence models according to their range of functions. Depending on the licence model, Cloudbrixx contains diverse functions and services. The scope of the individual modules and services of each licence can be found in the relevant service description on the Cloudbrixx website at cloudbrixx.de
1.6 In addition, a free trial version of Cloudbrixx may be used for testing purposes (hereinafter referred to as the “Trial version”).
2.1 The Customer and the users they add shall receive the non-exclusive right, limited to the term of the contract, to access the provided software functionalities of Cloudbrixx – in accordance with the ordered software modules – via the access provided by Cloudbrixx, and to use them in accordance with these GTC and the selected specification parameters (e.g. number of projects and users).
2.2 The Customer shall not receive any rights beyond this. In particular, the Customer is not entitled to use the software beyond the permitted use in accordance with these provisions, nor may they allow third parties to use or access the software. In particular, the Customer is not entitled to sell, rent, lease, transfer or sub-licence its access to Cloudbrixx. Furthermore, they may not make any changes to the software or the source code.
2.3 If Cloudbrixx provides new versions or updates of the SaaS products or services during the term of this contract as a result of further developments, the licence grant shall apply accordingly, unless Cloudbrixx adds supplementary provisions to this, whereupon the Customer shall be informed of this separately.
2.4 The right to use the licence shall end upon termination of the contractual relationship between the Customer and Cloudbrixx, see Section 13 Termination, term.
2.5 Upon request, the Customer shall provide Cloudbrixx immediately with all information regarding the assertion of claims against third parties, in particular their name and address, as well as the nature and scope of its claims against the third party arising from the unauthorised provision of the program.
2.6 The Customer shall also bear the costs arising from orders placed by users it has added, and who are therefore authorised and have corresponding rights. The same shall apply in the event of unauthorised use by other third parties if and insofar as the Customer is responsible for this use.
2.7 The Customer undertakes to ensure that each user it adds complies with these agreements.
3 Performance obligations, warranty
3.1 Cloudbrixx shall ensure that Cloudbrixx has the functions corresponding to the selected version during the term of the contract. This means that they must not be defective to the point where this nullifies or reduces the value or suitability for the intended use. An insignificant reduction in the value shall not be considered in this regard.
3.2 Cloudbrixx shall aspire to allow access to its SaaS services permanently, i.e. 24 hours a day, 365 days a year. Cloudbrixx shall guarantee an average annual availability of its servers of 99.8%. This excludes times when the servers cannot be reached due to technical or other problems beyond Cloudbrixx’s control (force majeure, fault of third parties, etc.).
3.3 The accessibility of the software solutions provided by Cloudbrixx also depends on the Customer’s technical equipment and data connection via the internet.
3.4 Cloudbrixx does not warrant for any errors caused by the environment provided by the Customer.
3.5 Cloudbrixx reserves the right to temporarily restrict access to its software solutions at any time, if this relates to the security of the Cloudbrixx systems, the maintenance of network integrity, in particular the avoidance of serious disturbances to the network, software or stored data, or to carry out technical measures.
3.6 The Customer has no right to access Cloudbrixx via the same IP address or domain for the entire term of the contract. In the event of a change, Cloudbrixx shall inform its Customers promptly.
3.7 If Cloudbrixx defaults upon its performance obligations, the Customer shall only be entitled to withdraw from the contract if Cloudbrixx does not comply with a reasonable grace period specified by the Customer. The deadline for this shall be set in writing.
3.8 Within the scope of technical and operational feasibility, Cloudbrixx shall remedy any disruptions in access to Cloudbrixx immediately upon receipt of the Customer’s error report. For more information on the obligation to submit an error report, see Section 6.1.
3.9 The provision of the hardware and software required on behalf of the Customer is not subject to this agreement.
3.10 Cloudbrixx does not guarantee that files uploaded by Customers shall be technically processable and virus-free for other users. This also applies in particular with regard to file sizes and file formats.
4.1 Cloudbrixx and the data stored there by the Customer shall be operated and/or stored and processed on servers in data centres contractually connected with Cloudbrixx.
4.2 Only data centres in Germany shall be used for data provision, backup and redundancy, and code backup. The names and contact details of these data centres shall be communicated to the Customer upon request.
4.3 Cloudbrixx is obligated to the Customer to ensure that data is properly backed up and to properly maintain and service the Cloudbrixx software and hardware environment.
4.4 Customer data is regularly and carefully backed up by Cloudbrixx. In the rare case of a total outage, in the most unfavourable circumstances, the data for one or more days may be lost. In this case, Cloudbrixx shall restore data from the last available backup.
4.5 Throughout the entire life cycle of the Customer’s data (database, file folder, data mirroring, file backup), the data of one Customer is separated clearly identifiable from the data of other Customers.
4.6 Cloudbrixx is not responsible for complying with the Customer’s legal retention obligations. These obligations are the sole responsibility of the Customer.
4.7 Data is transferred to and from Cloudbrixx using SSL encryption over the internet at the Customer’s risk with no guarantee from Cloudbrixx. The Customer is aware that, despite encryption during internet transfer, it is generally possible to gain knowledge of data during transmission without authorisation. This Customer accepts this risk.
5.1 Cloudbrixx shall not be liable for instances of force majeure which significantly impede Cloudbrixx from performing the contract, temporarily impede the proper execution of the contract, or which make it impossible. Force majeure refers to all circumstances outside the will and influence of the contractual parties, such as natural disasters, government measures, official decisions, blockades, war and other military conflicts, mobilisation, internal unrest, terrorist attacks, strikes, lockouts and other industrial unrest, seizure, embargo or other circumstances which are unforeseeable, serious and beyond the control of the contractual parties and which occur after the conclusion of this agreement.
5.2 If one of the contractual parties is prevented from fulfilling its contractual obligations as a result of force majeure, this does not constitute a breach of the agreement and the deadlines set out in the agreement or on the basis of the agreement shall be extended appropriately in accordance with the duration of the hindrance.
5.3 Each party shall do everything within its power that is necessary and reasonable to reduce the extent of the consequences caused by the force majeure. The contractual party affected by force majeure shall notify the other party of the beginning and the ending of the hindrance immediately in writing.
5.4 As soon as it is established that the force majeure shall last longer than six months, each contractual party is entitled to terminate the agreement by registered letter.
6.1 The Customer shall immediately inform Cloudbrixx of any errors arising from Cloudbrixx and, insofar as is reasonable, shall support Cloudbrixx in analysing and rectifying the errors. The Customer must notify Cloudbrixx of any apparent access disruptions or other errors without delay, but at the latest within seven calendar days after becoming aware of such disruptions or errors, via the support centre (support.cloudbrixx.de) or by email (firstname.lastname@example.org) (Error report).
6.2 The Customer guarantees that data shared with Cloudbrixx shall be correct and complete. It undertakes to inform Cloudbrixx immediately of any changes to the data shared and to confirm current correctness within 15 days of receipt of any such request. This applies in particular to the name, postal address and email address of the Customer.
6.3 Specified email inboxes and any sensitive information contained therein, in particular login details, must not be made accessible to unauthorised third parties.
6.4 The Customer must ensure the secrecy of the passwords received from Cloudbrixx for the purpose of accessing its services. The Customer undertakes to keep the passwords strictly confidential. The Customer shall inform Cloudbrixx immediately as soon as it learns that unauthorised third parties are aware of the password. If, by fault of the Customer, third parties use Cloudbrixx’s services due to misuse of the passwords, the Customer shall be liable for any costs and losses incurred.
6.5 The Customer guarantees that content on the server does not violate applicable German and/or EU law and that this content and the access granted to the Customer does not violate any protection, copyright or other third-party rights.
6.6 Insofar as the Customer collects, processes or uses personal data when using Cloudbrixx and no statutory permission applies, the required consent of the individual concerned must be obtained.
6.7 The Customer is obliged to indemnify Cloudbrixx against any claims for damages and other claims arising from culpable infringements of the obligations set out in this Section 6 Obligations of the Customer, or to compensate Cloudbrixx for any damages arising therefrom.
6.8 The Customer is obliged to take appropriate measures to protect its data and programs, in particular by making backup copies in machine-readable form at time intervals customary for its business area.
6.9 The Customer shall use all technical measures possible to ensure that their internet security meets the state of the art. Before transferring data and information, the Customer shall check it for harmful content, in particular viruses, and use appropriate anti-virus programs that meet the state of the art.
6.10 The Customer assures Cloudbrixx that it does not use or transmit any technical equipment, software or other data, or run any applications, containing harmful programs or otherwise capable of impairing, modifying or destroying Cloudbrixx technical equipment, software or data.
7 Compensation and terms of payment
7.1 The charges incurred for the use of Cloudbrixx products and services are calculated according to the prices available on the Cloudbrixx website, unless expressly agreed otherwise in writing in individual cases.
7.2 Unless explicitly agreed otherwise, the compensation shall be invoiced monthly by Cloudbrixx according to the scope of services in the following month of the service period. Compensation is due 10 days after invoicing at the latest.
7.3 Invoicing always occurs electronically. If the Customer wants or needs a paper copy of an invoice to be sent to them by mail, they can request this through the basic settings of their Cloudbrixx installation.
7.4 Unless expressly stated otherwise, all of the prices and fees above are net amounts, for which the applicable VAT and, if necessary, any other statutory fees are payable. VAT and any other statutory fees shall be listed separately in the invoice.
7.5 The Customer must lodge any objections concerning the invoice in writing to Cloudbrixx within eight weeks of its receipt. Failure to raise objections in due time shall be considered as acceptance. In the event of valid objections, the legal rights of the Customer shall remain unaffected.
7.6 Compensation or a right of retention on the part of the Customer may only be asserted if set off against legally established or undisputed claims or if such claims are withheld.
7.7 An assignment of claims arising from this contract requires the prior written consent of Cloudbrixx. Cloudbrixx shall not unreasonably withhold consent.
7.8 Invoices are submitted by Cloudbrixx in euros (€). If the Customer wishes to have an invoice issued in another currency, they may request this in their Cloudbrixx installation via the basic settings. The other accepted currencies are US dollars, British pound sterling and Swiss francs. Any exchange fees incurred for foreign currency transactions shall be borne by the Customer.
8.1 The Customer and Cloudbrixx are mutually obliged to treat all information as confidential, in particular trade and business secrets of which they may become aware as part of the execution of the contract and which the other contractual party expressly declares to be confidential, and shall only disclose this information to third parties insofar as necessary to achieve the purpose of the contract. The same applies for information which must remain confidential based on its context.
8.2 Cloudbrixx and the Customer undertake to obligate their employees and vicarious agents who have access to information according to Section 7.1 to maintain secrecy and to monitor compliance with this obligation.
8.3 The provisions adopted in Sections 8.1 and 8.2 shall also remain valid after termination of this contractual relationship.
9.1 Regarding Cloudbrixx’s liability for damages, the following liability exclusions and limitations shall apply without prejudice to the other legal conditions for claims:
9.2 Cloudbrixx shall be liable for breaches of duty if Cloudbrixx is found guilty of acting with wilful intent or gross negligence. Cloudbrixx shall only be liable for ordinary negligence if it breaches an obligation, which, if fulfilled, is essential to the proper execution of the contract and for which compliance may be relied upon by the contractual party (“cardinal obligation”). Otherwise, liability for damages of any kind, regardless of the basis for claim, including liability for culpa in contrahendo, shall be excluded.
9.3 In the event that Cloudbrixx is liable for ordinary negligence, liability shall be limited to the damage that Cloudbrixx could typically expect in the circumstances known upon conclusion of the contract.
9.4 For damage resulting from delays caused by minor negligence, Cloudbrixx’s liability shall be limited to typically foreseeable damage. However, this will incur a maximum amount of 5 per cent of the overall charge agreed in the relevant contract.
9.5 For loss of data or programmes caused by minor negligence, liability shall be limited to the typical recovery expense incurred in the case of regular and appropriate data backups by the Customer.
9.6 If the case does not involve gross negligence on the part of Cloudbrixx, liability shall be limited to the total monthly charge, but shall not exceed the value of the relevant contract for two years. In all cases, the total liability is limited to EUR 5,000 per claim.
9.7 The above liability exclusions and limitations shall not apply if Cloudbrixx is covered by a quality guarantee or has fraudulently concealed a defect. Additionally, they shall not apply to those damages that must be compensated in accordance with the German Product Liability Act or injury to life, body or health.
9.8 If not related to an instance of gross negligence, the above liability exclusions and limitations shall also apply in favour of Cloudbrixx employees, vicarious agents and other third parties appointed by Cloudbrixx in order to fulfil the contract.
9.9 Liability for any other damages shall be excluded, in particular for loss of data or technical faults caused by incompatibility between existing components on the Customer’s technological systems and the new software or soon-to-change software, and for system disruptions that may occur due to existing misconfigurations or older, disruptive drivers that have not yet been uninstalled.
9.10 If Cloudbrixx provides links to third-party websites, no liability shall be assumed for their content. Cloudbrixx has no influence over the content of these websites. Claims of any kind against Cloudbrixx or its employees, which arise from the use of the platform, may only be assigned to third parties upon approval by Cloudbrixx.
9.11 Cloudbrixx shall not be liable for any legal violations on the part of the Customer.
9.12 The Customer shall have the sole responsibility for the internet provider.
9.13 Cloudbrixx shall be responsible for backing up its own systems with the customary and requisite care needed for data traffic. However, no liability can be assumed for unauthorised access gained by hackers or new, unknown viruses, Trojan horses, etc.
9.14 The provisions of the previous paragraphs shall also apply mutatis mutandis to any limitation of the obligation to compensate for wasted expenditure, Section 284 of the German Civil Code.
9.15 Data protection claims shall not be covered by this liability provision.
10.1 Any warranty claims on the part of the Customer shall be subject to a limitation period of one year from receipt of the notification of defects and at most two years after the first occurrence of the defect. Any claims by Cloudbrixx against the Customer by reason of their failure to send notification of the defect shall remain unaffected.
10.2 Other claims for damages against Cloudbrixx are subject to a limitation period commencing when the statutory limitation period begins. This does not apply to damage caused by gross negligence or wilful intent, nor to damage resulting from injury to life and health or damages compensated in accordance with the German Product Liability Act.
11 Intellectual property rights
11.1 Cloudbrixx shall not modify any data stored in Cloudbrixx by the Customer or by third parties authorised by the Customer.
11.2 The Customer hereby grants Cloudbrixx the irrevocable and gratuitous unrestricted right to use and exploit its ideas, requests for the further development of services, feedback, recommendations or other information provided by the Customer or third parties in conjunction with the SaaS solutions, unless it (explicitly identifiable for Cloudbrixx) expressly reserves the relevant rights for Cloudbrixx.
11.3 Cloudbrixx shall not acquire any intellectual property rights in the data belonging to Customers or third parties available in Cloudbrixx.
12.1 Subject to the conditions described in the section below, these GTC shall also apply to the Trial version.
12.2 In order to use the Trial version., the Customer must register on the Cloudbrixx website, where they must state their email address, telephone number and name. By clicking on the checkbox labelled “I have read and accepted the GTC” during registration, an offer to conclude a contract for using the Trial version shall be made, including these GTC. After this declaration has been submitted, the Customer will be informed, through a notification email sent to the email address provided, that a corresponding entry has been made on the Cloudbrixx website. The notification email will contain a confirmation link. The registration will be complete once this confirmation link has been visited. Confirmation of registration by Cloudbrixx shall constitute acceptance of the offer made by the Customer.
12.3 The interested person may use the Trial version free of charge.
12.4 If the Customer chooses to use a paid version of Cloudbrixx, it must do so by selecting the applicable menu item in Cloudbrixx, opening the appropriate input screen and specifying the desired version and payment method on this page.
12.5 Cloudbrixx gives no guarantee to Customers of the Trial version that the services will be free of disruptions or malfunctions.
12.6 Cloudbrixx may suspend the Trial version without prior notice and at its own discretion at any time. Claims for reductions, refunds or damages shall not arise from suspension.
12.7 The contract for use of the Trial version shall end automatically after 30 days and shall not require mutual termination.
13.1 The contract between Cloudbrixx and the Customer concerning the SaaS solutions shall be concluded for an indefinite period. It may be terminated by the Customer at the end of each month, at any time. Cloudbrixx may terminate the contract with a notice period of four weeks to the end of the month.
13.2 Notices of termination must be made in writing (submission by fax or email is sufficient, pursuant to Section 127 II of the German Civil Code). The Customer may also terminate the contract by using the basic settings section of their Cloudbrixx installation.
13.3 The right to termination for good cause remains unaffected. In particular, “good cause” may apply where there are indications that improper use of Cloudbrixx or the relevant login data has occurred, or if the Customer falls into more than two months’ worth of arrears with payment.
14 Access to and deletion of data
14.1 If there is a right to termination for good cause, Cloudbrixx may restrict the Customer’s access to Cloudbrixx in whole or in part.
14.2 Cloudbrixx shall retain the right to irretrievably delete the Customer’s data thirty days after termination of the contractual relationship. The Customer shall be informed of this in writing to its most recently provided email address, prior to the irretrievable deletion.
14.3 Upon termination of the contractual relationship, the Customer shall be exclusively responsible for saving the data. It has the option to download and save its documents on its own computer.
14.4 Cloudbrixx indicates that after termination of this contract by the Customer, their data may not be carried forward to the latest version of the SaaS products or services. In particular, upon termination of the contract, the Customer’s settings, features and master data entries shall be permanently lost.
15.1 Cloudbrixx reserves the right to amend or supplement these GTC at any time, without giving a reason. The amended or supplemented conditions shall be sent to the Customer by email or post no later than two weeks before taking effect. Alternatively, Cloudbrixx may also directly inform the Customer in this regard in Cloudbrixx. The respective supplemented or amended GTC may also be accessed at cloudbrixx.de from that point onwards.
15.2 If, within two weeks of receiving the email, a Customer does not object in writing or in text format in Cloudbrixx to the application of the new GTC, the amended GTC shall be deemed to have been accepted. In their email or letter about the amendment or supplementation to the conditions, Cloudbrixx shall inform Customers separately of the significance of this two-week period. If a Customer disagrees with any conditions which have changed to its disadvantage, it may terminate the contractual relationship without notice. Cloudbrixx shall also indicate this right of termination in the letter about the amendment or supplementation to the conditions.
16 Data protection, transfer of the Customer’s personal data
17 Jurisdiction and place of performance, applicable law, contract language
17.1 The place of performance and exclusive jurisdiction is, if permissible, Friedberg (Hessen), Germany.
17.2 German law applies under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The contract language is German.
18 Contradictory provisions, written form, severability clause
18.1 If there are any inconsistencies between these GTC and other provisions agreed by the Customer, the other regulations shall take precedence.
18.2 If individual provisions of these GTC are or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. German statutory law shall replace general terms and conditions which are unincorporated or ineffective (Section 306 II of the German Civil Code). Otherwise, the Parties shall, in lieu of the unincorporated or ineffective provision, agree upon an effective provision which economically comes as close as possible to that agreed previously, provided that supplementary interpretation of the contract is neither a priority nor possible.
18.3 There are no ancillary agreements to these GTC. Ancillary agreements, guarantees and other agreements, as well as amendments to these GTC, must be made in writing in order to be effective. This also applies to amendments to this clause on written form.