Terms of Service

§ 1 Area of application, contract conclusion

(1) The following terms of use apply between you as the customer and us, the rukzuk AG, Bleicherstr. 10, 78467 Konstanz (hereafter also referred to as the “provider”). The version of our terms of use relevant at the time of ordering applies.

(2) Object of the licence agreement is the provision of the software "rukzuk" (hereafter referred to as “software”) by the provider for online use by the customer via the Internet and the storage of the customer’s data. The customer obtains the technical option and right to use the software, which is hosted on one or multiple central servers by means of the Internet and to use the functionalities of the software in line with this contract (software as a service “SaaS”).

(3) The software licence agreement offered by the provider is aimed at consumers and entrepreneurs alike however, only at end users. For the purposes of these terms of use (i) a “consumer” is any natural person, who enters into the agreement for a purpose, which can neither be attributed to his or her commercial or freelance occupational activity (§ 13 of the German Civil Code) and (ii) an “entrepreneur” is a natural person or legal entity or a general partnership having legal capacity, who/which is exercising his/her/its freelance occupational activity when entering into the agreement (§ 14 sec. 1 of the German Civil Code).

(4) The customer has to register to use the software. After registering, the software is available to the customer free of charge for testing purposes for 30 days (“test period”). The functionality is restricted during the test period. The provider reserves the right to delete all data and the rukzuk space of the customer after 60 days without customer activity. Logins into the rukzuk space are understood as customer activity.

(5) By placing an order, the customer submits an offer to the provider to conclude a licence agreement. The contract is not concluded until the provider sends an order confirmation.

 § 2 Provision of software

(1) Against payment, the provider makes the use of the software via the Internet available to the customer for the term of the agreement and enables access to said software. For this purpose, the provider stores the software on a server, which can be accessed by the customer via the Internet.

(2) The respectively current functional range of the software as well as the service packages/payment plans available, result from the current specifications on the provider’s website at rukzuk.com

(3) The provider will immediately eliminate all software errors according to technical possibilities. An error is given if the software does not fulfil functions specified in the technical specification, supplies faulty results or does not work adequately in other ways, so that the use of the software is impossible or significantly limited.

(4) The provider will continue to develop the software and will improve it using updates and upgrades. The software will be made available in the respectively current version offered, provided that the updated software version is – taking the provider’s interests into account – reasonable for the customer. The provider will duly inform the customer of changes to the applied software. However, the customer is not entitled to the application of a newer version of the software.

§ 3 Assignment of the right of use

(1) For the term of this agreement, the provider grants the customer the basic, non-transferable, non-sublicensable right to use the software on the provider’s system via the Internet for the customer’s own purposes (online use). This includes the right of being permitted to create additional users in the software and editing and publishing the individual websites. There is no further provision of the software to the customer. Insofar as new versions, updates or upgrades of the software are made available by the provider during the term of contract, the aforementioned right of use also applies to these.

(2) The customer is only permitted to copy the software insofar as this is required by the designated use of the software. Loading the software in the main memory is regarded as necessary copying however, the installation, even temporary, or storing of the software on local data medium of the customer’s hardware does not.

(3) Beyond the purposes of this agreement, the customer does not have the right to use, copy or download the software or data other than his/her/its own or to make the software available to third parties free of charge or against payment or to make it accessible outside the stipulated group of users.

(5) Provided that §§ 69d, 69e of the German Copyright Act does not stipulate a mandatory further assignment of rights, no other rights to the software are granted.

§ 4 Data storage

(1) In connection with the use of the provided software, the customer has the option of storing data in a customer-specific memory location (data hosting). The provider is merely obligated to make memory capacity for use by the customer available. The provider does not have any obligations for storage or custodial care regarding the data transmitted and processed by the customer. The customer is responsible for the retention periods under commercial and fiscal law.

(2) The customer engages not to store any content in the memory location which the provision, publication and use of violates applicable law or agreements with third parties.

(3) The customer grants the provider the right to be permitted to copy the data to be stored by the provider for the customer, insofar as this is required to render the services in accordance with this agreement. The provider also has the right store the data in an emergency computer centre.

(5) Insofar as the customer transmits data to the provider – irrespective of the form –, the customer creates back-up copies of this data on the customer’s own data storage media. The provider must provide for sufficient data back-up against data loss in the event of computer crash or unauthorised access by third parties, mainly using back-ups, virus scanning and by installing firewalls.

(6) The provider must ensure the protection of the data against unauthorised access by third parties. The provider’s employees only obtain access to the customer’s stored data or access data, insofar as this is essential in rendering the contractual obligations by the provider.

(7) In any case, the customer remains the sole owner of the data and therefore, can request the surrender of individual or all data from the provider at any time, in particular after termination of the contract. The surrender of data takes place according to the provider’s choice either by surrendering data media or by providing a download option via the Internet. The customer is not entitled to also receive the appropriate software, to use the data.

§5 Availability

(1) The software is available seven days a week respectively 24 hours (“uptime”). The average availability during uptimes is 98% as a monthly average. During the remaining periods (“maintenance times”), the software can still be available; as the case may be with interruptions and limitations. However, there is no entitlement to use during maintenance times.

(2) If the software is not available in the case of maintenance work, the provider will duly inform the customer thereof.

§ 6 Confidentiality, data privacy and data security

(1) The contracting parties are obligated to keep all company and trade secrets or other confidential information they receive or become aware of from the other contracting party while executing the contract confidential. This information and these documents may not be made accessible to third parties, who are not involved in the execution of the contract. The contracting parties must store and protect the objects of agreement in a manner which excludes misuse by third parties.

(2) The obligation to confidentiality does not include information or documents, which was/were public knowledge and accessible at the time of disclosure or was/were known to the receiving contracting party at the time of disclosure or was/were legitimately made accessible to said contracting party at a later point in time by a third party.

(3) Both contracting parties will observe the respectively applicable regulations under data privacy laws, in particular those effective in Germany, and obligate their employees working in connection with the contract to maintain confidentiality, insofar as these employees are not already generally obligated accordingly.

(4) It is necessary to use the customer’s personal data, in order to process the licence agreement concluded with the customer. Any further use requires the customer’s explicit consent. Particulars regarding the collected data and its respective use are explained in the data privacy statement.

(5) If the customer collects, processes or uses personal data, the customer is responsible for being entitled to do so according to the applicable regulations, in particular the regulations under data privacy laws and in the event of a violation, indemnifies the provider from all third party claims.

§ 8 Customer duties

(1) The customer will provide for the data connection via the Internet between the work stations the customer intended for use and the data transfer point specified by the provider at the expense of the customer. The customer is solely responsible for the operation and upkeep of these technical requirements.

(2) The customer engages to keep the access data made available to him/her/it confidential in regard to unauthorised third parties and to store said data safely against access by unauthorised third parties so that a misuse of the access data by third parties is impossible. The personal password must be changed at regular intervals. As soon as the customer detects any signs of a third party having illegally obtained authorisation for use and access or that this authorisation could be misused, the customer is obligated to immediately inform the provider thereof.

(4) The customer will not misuse or let the software be misused in any manner whatsoever, in particular not transmit any content with illegal contents. Furthermore, the customer will refrain from any attempt of accessing information or data without authority himself/herself/itself or using unauthorised third parties or interfering in programs, which the provider operates, or allowing others to interfere in them or infiltrating the provider’s data networks without authority.

(5) When using the software as well as the services covered by the contract, the customer will observe all pertinent laws, legal norms and other applicable laws of the Federal Republic of Germany. In particular, the customer is not permitted to enter data or information, which violates legal provisions or infringes on third party property rights or copyrights or any other third party rights.

(7) The customer will back-up data and content transmitted by the provider on a routine basis and according to risks, at least once per day, and create back-ups, to ensure reconstruction in the event of the loss of said data and information. The customer will check data and information for viruses before sending it and apply antivirus software according to the best available technology. Lastly, the customer will routinely back-up his/her/its existing data pools in the system using downloads until the termination of the agreement.

§ 9 Fees

(1) The customer is obligated to pay the annual or monthly fee plus the respective value added tax to the provider according to the stipulated payment plan for the provision of the software and data hosting.

(2) The provider will charge the customer for the duration (monthly or annually) stipulated in the selected payment plan in advance.

(3) After payment, the customer will receive an invoice as a PDF file via E-mail to the E-mail address indicated in the customer’s information. This E-mail is sent unencrypted.

(4) Objections to the invoice amount can only be made in writing within six weeks after receipt at the indicated address. The provider will explicitly inform the customer of the consequences of failing to observe the time limit at the beginning of the objection period.

§ 10 Terms of contract

(1) This contract is concluded for the fix term indicated in the respective payment plan (minimum term of contract) and is extended respectively after that by the same period (extension term). In case of a monthly term, each contracting party can cancel the contract anytime to the end of the minimum term of contract or the extension term. In case of a yearly term, each contracting party can cancel the contract with 1 month’s notice prior to the end of the minimum term of contract or the extension term.

(2) The provider can cancel the contract without giving notice if the customer is in default of paying the fee resp. a substantial part of the fee resulting in an amount, which equals the fee for six months. In this case, the provider can also request a lump sum compensation, which is immediately due, amounting to a quarter of the remaining fee until the expiration of the scheduled term of contract. The customer reserves the right to provide verification of lesser damage.

(3) Furthermore, the right of cancellation for cause remains unaffected. However, if the party authorised to cancel is aware of the circumstances, which justify the extraordinary cancellation, for longer than 15 work days, this party can no longer base the cancellation on these circumstances.

(4) A cancellation via E-mail must be sent to the E-mail address the customer specified in the customer’s rukzuk space as the contact address. The name of the rukzuk space and the date of cancellation must be indicated in the cancellation.

§ 11 Warranty for defects, liability

(1) The provider ensures the operational capability and availability of the SaaS services according to the provisions of this contract.

(2) In the event that the provider’s services are used by unauthorised third parties using the customer’s access data, the customer is liable for fees, which accrue as a result of that, in line with liability according to civil law until receipt of the customer’s request to change the access data or the notification of loss or theft, provided that the customer is responsible for this access by an unauthorised third party.

(3) The customer is obligated to indemnify the provider from all third party claims, which are based on the data stored by the customer and to reimburse the provider the costs, which result for the provider due to possible infringements.

(4) The provider has the right to immediately block the memory location if there is reasonable suspicion that the stored data is illegal and/or infringes on third party rights. In particular, reasonable suspicion of illegality and/or an infringement is given if a court of law, authorities and/or other third parties inform the provider thereof. The provider must immediately inform the customer of the block and the reason for it. The block must be revoked as soon as the suspicion is refuted.

(5) Claims for damages against the provider are excluded irrespective of legal grounds unless the provider, the provider’s legal representatives or vicarious agents acted with intent or gross negligence. The provider is only liable for slight negligence if essential contractual obligations were breached by the provider, the provider’s legal representatives or chief executives or vicarious agents for the attainment of the contractual purpose as well as for damages resulting from death, physical injuries or damage to health. At the same time, the provider is only liable for foreseeable damages, which are typically to be expected. The provider is not liable for the loss of data if the damage is based on the customer failing to have carried out data back-ups, so that lost data can be retrieved with a reasonable effort.

§ 13 Consumer cancellation, exclusion of cancellation

As a consumer, you have a right of cancellation. The requirements and legal consequences of the right of cancellation result from the following cancellation policy:

Cancellation policy

Right of cancellation

You have the right to cancel the contract within 14 days without stating reasons in writing (e.g. letter, fax, E-mail). The time limit commences upon receipt of this policy in writing however, not prior to contract conclusion and not prior to the fulfilment of our duties to supply information pursuant to article 246 § 2 in conjunction with § 1 sec. 1 and 2 of the Introductory Act to the German Civil Code as well as our duties pursuant to § 312g sec. 1 sentence 1 of the German Civil Code in conjunction with article 246 § 3 of the Introductory Act to the German Civil Code. The punctual dispatch of the cancellation suffices to ensure the cancellation period. Please send the cancellation to:

rukzuk AG
Bleicherstr. 10
78467 Konstanz
Fax: +49 (0) 7531 8914510
Email: info@rukzuk.com

Cancellation consequences:

In the event of an effective cancellation, the performances received by either party must be returned and if applicable, any benefits gained (e.g. interest) must be disbursed. If you cannot return or rather disburse the performance or benefits (e.g. benefits of use) in full or only in part or merely in a deteriorated condition, you must compensate us for lost value in this respect. Nevertheless, this can lead to you having to fulfil the contractual payment obligations for the period until cancellation. Obligations for the reimbursement of payments must be fulfilled within 30 days. For you, the time limit begins with the dispatch of your notice of cancellation, for us, with the receipt thereof.

Special instructions:

Your right of cancellation expires prematurely if the contract is completely fulfilled by both sides upon your explicit request, before you have exercised your right of cancellation.

End of the cancellation policy

§ 14 Subject to change

(1) After the expiration of the minimum term of contract, the provider is entitled to change the amount of the fee for the first time, provided that the provider informs the customer thereof six weeks, at the latest, prior to the change coming into effect. This entitles the customer to an immediate right of cancellation, which becomes effective at the time of the change in price. The provider must explicitly indicate this in the notification. If the customer does not exercise this option within four weeks after receipt of the notification, the change is deemed to be accepted.

(2) Furthermore, the provider also has the right to change these contractual terms, provided that the provider informs the customer thereof in writing six weeks, at the latest, prior to the change coming into effect. The customer can object to the change with a notice period of four weeks after receipt of the notification; otherwise the change is deemed to be accepted. The provider must explicitly indicate this in the notification.

§ 15 Force majeure

(1) The provider is exempt from the obligation to provide services resulting from this contract if and insofar as the non-fulfilment of services can be attributed to the occurrence of circumstances of force majeure after contract conclusion.

(2) For instance wars, strikes, riots, dispossession, storms, flooding and other natural catastrophes as well as other circumstances, which the provider is not responsible for (in particular water penetration, power outages and interruption or destruction of data transmission lines as well as technical problems with the Internet, which cannot be controlled by either of the contracting parties), are deemed to be circumstances of force majeure.

(3) Each of the contracting parties must immediately inform the other contracting party of the occurrence of an event of force majeure in writing and inform the other contracting party in the same manner as soon as said event of force majeure no longer exists.

§ 16 Final provisions

(1) All amendments, additions and cancellations of contractual agreements must be in writing including the waiving of the requirement for written form, provided that this contract does not stipulate text form.

(2) If individual provisions of this contract are or become fully or partially ineffective, the validity of the remaining provisions is not affected hereby. In this case, the contracting parties undertake to replace the ineffective provision with an effective provision, which comes as close as possible to the economic purpose of ineffective provision. The same applies to possible omissions in the contract.

(3) The laws of the Federal Republic of Germany apply. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. If the customer is a merchant, the sole place of jurisdiction for all disputes is the provider’s place of business. However, the provider also has the right to take action against the customer at the customer’s general place of jurisdiction.

rukzuk AG, Konstanz, last updated February 2015

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