General Terms and Conditions

General Basic Conditions

 

§ 1 General

1.
These Basic Terms and Conditions are an integral part of all our offers and contracts for services, including any consultations, also in current and future business relationships without express reference to them. They are supplemented by additional terms and conditions for our services:
- Software as a Service (SaaS)
- Platform as a Service (PaaS).
In case of doubt, the special additional terms and conditions take precedence over these basic terms and conditions.

2.
Other terms and conditions of the customer are only binding if agreed in writing. We hereby expressly object to any reference by the customer to its own terms and conditions. Verbal promises and agreements are only binding upon written confirmation.

3.
Our offers are to be understood as non-binding invitations to conclude a contract. A contract shall only come into existence upon our order confirmation.

4.
The customer may only assign claims arising from the contract with our prior written consent.

5.
Unless otherwise agreed, the respective DIN, ISO or VDE standards, RFC (Request for Comments) of the Internet Engineering Task Force and specifications of the World Wide Web Consortium (W3C) applicable at the time of conclusion of the contract shall apply to technical terms, designations, symbols, quality requirements, format requirements or similar. If one of these standards and recommendations is changed after conclusion of the contract but before fulfillment of the contract, this agreement shall nevertheless remain in effect unchanged. However, we are free to take into account the requirements of the new standard and to refer to it in case of doubt.

6.
If, in addition to these General Terms and Conditions, other contractual documents have been agreed between the parties in text or written form, the provisions contained therein shall take precedence over these General Terms and Conditions in the event of contradiction.

 

§ 2 Prices

1.
The conditions and price lists applicable at the time of ordering shall apply.

2.
Prices shall only apply as fixed prices if confirmed in writing and are subject to the statutory value added tax applicable at the time of performance.

3.
If costs beyond our control, such as communication fees, increase by more than 10% after conclusion of the contract, we may increase the prices for services due later than four months after conclusion of the contract accordingly on the day of performance.

 

§ 3 Obligations of the Customer to Cooperate

1.
The customer is obliged to provide all information necessary for the execution of our services completely and accurately and in particular to specify the scope of services desired by him. If parts of the specifications are not sufficiently specified by the customer, Blackbit digital Commerce will create a functioning solution that corresponds to the current state of the art. Change requests are chargeable author corrections.

2.
If the customer provides Blackbit with texts, images or other content, he must ensure that this content does not violate the rights of third parties (e.g. copyrights) or other legal norms. In this context, it is pointed out that Blackbit is not authorized by law to provide legal advice to the customer. In particular, Blackbit is not obliged and legally not in a position to check the customer's business model and/or the works created or acquired by the customer (layouts, graphics, texts, etc.) for their compatibility with applicable law. In particular, Blackbit will not carry out any trademark searches or other property right conflict checks with regard to the works provided by the customer. Insofar as the customer issues certain instructions regarding the work to be produced, he is liable for this himself.

3.
The customer is obliged to provide complete and correct information, data and works (e.g. data for the imprint, graphics, etc.) for the purpose of fulfilling the order. Insofar as our services require access to the customer's IT system, the customer must ensure unhindered access, usually by means of direct remote access. He must also ensure that the instructions he issues comply with applicable law.

4.
When providing services, the customer must provide qualified employees at our request. If, in our opinion, the employees provided do not have sufficient qualifications, we may demand the replacement of the employees within a reasonable period of time.

5.
The customer is obliged to back up its data stocks in a suitable form before test runs or other interventions in its data system or to provide systems isolated from its networks for test runs. The customer must inform us of any data backups that have not been made or of any other risks to data stocks. If the customer breaches this obligation, we shall not be liable for any resulting data losses.

6.
The customer is obliged to perform his obligations in advance. If he does not fulfill his obligations within a reasonable period of time, we may withdraw from the contract and invoice the services rendered up to the withdrawal on a pro rata basis at the agreed remuneration. Further statutory rights remain unaffected. The customer is responsible for the procurement of the material for the provision of the agency services (e.g. graphics, videos) and provides these to Blackbit in good time. If the customer does not provide these and does not make any further specifications, Blackbit can, at its own discretion, use image material from common providers (e.g. stock photo service providers) or provide the corresponding parts of the website with a placeholder, taking into account the copyright labeling requirements.

7.
The customer undertakes to keep all passwords of the accesses made available to him carefully and protected from access by third parties and to protect them from misuse and loss. The customer is liable to Blackbit for compliance with the above obligations.

8.
Additional expenses caused by insufficient fulfillment of these obligations (e.g. costs for stock photos and time spent searching for them, functional adjustments and design adjustments due to incorrect and incomplete specifications) shall be borne by the customer. This is presumed to be the case if we can prove that the costs were higher than those offered. Blackbit is in no way responsible to the customer for delays and delays in the implementation of projects caused by delayed (necessary) cooperation or input from the customer; the provisions under the heading "Liability/Release" remain unaffected by this.

9.
The customer must point out data that is subject to special confidentiality. He shall indemnify us against any claims by third parties, unless prior notice has been given.

10.
If the conclusion of an order processing contract in accordance with Art. 28 GDPR is required for individual order components, both contracting parties undertake to conclude such a contract - to be provided by Blackbit - before the start of the service provision

11.
The customer shall indemnify Blackbit digital Commerce GmbH against costs and claims of third parties arising from the breach of the above obligations.

 

§ 4 Provision of Services

1.
We are authorized to have our services provided by third parties at any time.

 

§ 5 Transfer of Risk; Delivery Dates

1.
If our work results are transmitted to a place other than the place of performance, the risk of accidental loss and accidental deterioration shall pass to the customer as soon as we have handed over the work results in embodied form to shipping persons or have made them available in electronic form for transmission via a data transmission network.

2.
Delivery times shall only be deemed to be deadlines within the meaning of fixed trade sales if they have been expressly confirmed as such.

3.
Non-compliance with delivery dates and deadlines shall only entitle the customer to assert the rights to which he is entitled after he has set us a reasonable grace period of at least 15 working days, unless this is legally dispensable.

4.
If we are prevented from fulfilling our obligations due to unforeseen circumstances which could not be avoided despite reasonable care, the delivery period shall be extended by the duration of the hindrance. This shall also apply in the event of labor disputes, disruptions in our own operations, disruptions in the operations of third parties including network operators (insofar as a replacement cannot reasonably be expected) and disruptions due to measures by public authorities.

5.
We are entitled to make partial deliveries insofar as this does not unreasonably disadvantage the customer.

6.
If neither of the contracting parties demands a formal acceptance or if the acceptance date requested by one party does not materialize due to circumstances for which the customer is not responsible, the contractual service of Blackbit shall be deemed accepted at the latest upon use by the customer.

 

§ 6 Payment

1.
We shall issue an invoice for each service, including partial services. The customer is obliged to pay in advance insofar as this is provided for in the additional terms and conditions.

2.
The invoice amount is due and payable immediately.

3.
The customer may only assert a right of retention with regard to a defective service that is based on the same contractual relationship with Blackbit digital Commerce GmbH.

4.
In the event of default of payment, arrears of default interest or significant deterioration of the customer's assets after conclusion of the contract, we may demand advance payment for further services and make all outstanding invoices due immediately.

5.
Interest on arrears shall be calculated in accordance with § 288 BGB.

6.
We charge a fee of € 10.00 for each reminder. Further costs of legal action, including legal reminders, shall be borne by the customer.

7.
Offsetting is only permitted with claims that are undisputed by us or have been legally established.

 

§ 7 Retention of Title

1.
Insofar as software is finally provided during the provision of services, we reserve ownership and all other rights to the software until full payment of the agreed remuneration, including any ancillary claims arising from the contract - in the case of merchants until full payment of all claims resulting from the business relationship.

2.
If the customer is in default of payment, we are entitled to take back the software. In order to exercise this right, we are permitted to enter the customer's business premises during normal business hours and to inspect the customer's existing data storage. Withdrawal from the contract shall be deemed to have been declared if we demand the return of the software delivered subject to retention of title. Upon receipt of the request for surrender, but no later than three days after dispatch, the customer shall be obliged to destroy all copies of the software without delay, to send us embodied software and to affirm the destruction of the copies in lieu of an oath.

3.
The customer is prohibited from pledging the software or assigning it as security before the transfer of ownership and other rights in accordance with No. 1. Furthermore, the customer shall be obliged to notify us immediately in writing if third parties wish to access the software. All necessary documents, in particular a copy of the seizure protocol for an intervention, must be handed over to us. The customer shall be liable for all damages resulting from such access, in particular for all judicial and extrajudicial costs of an enforcement counterclaim (§ 771 ZPO), insofar as third parties cannot offset these costs.

4.
As long as the customer is not in default, he may resell software if and insofar as the license granted to him permits this. If the customer sells the software even though he is in default, he assigns to us all claims (including VAT) arising therefrom.

5.
The customer shall remain authorized to collect claims in a fiduciary capacity, although this shall not affect our authority to collect claims ourselves.

6.
If we wish to collect the claim ourselves, the customer must provide the information required to collect the claim, in particular to name his debtors and provide documents and to notify us of the assignment.

7.
The right to resell and the authorization to collect the assigned claims shall expire upon suspension of payments or filing for insolvency.

 

§ 8 Liability

1.
Blackbit is liable without limitation, for any legal reason, in the event of intent or gross negligence, in the event of intentional or negligent injury to life, limb or health, on the basis of a guarantee promise, unless otherwise regulated in this respect or on the basis of mandatory liability, such as under the Product Liability Act. If Blackbit negligently violates an essential contractual obligation, the liability is limited to the foreseeable damage typical for the contract, unless unlimited liability is assumed in accordance with the preceding sentence. Essential contractual obligations are obligations that the contract imposes on Blackbit according to its content in order to achieve the purpose of the contract, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the customer may regularly rely. Otherwise, Blackbit's liability is excluded. The above liability regulations also apply with regard to the liability of Blackbit for its vicarious agents and legal representatives.

2.
The customer indemnifies Blackbit from any claims of third parties that are asserted against Blackbit due to violations of the customer against these GTC or against applicable law.

 

§ 9 Model Protection

1.
The customer may not imitate software provided to him or have it imitated and distribute imitations; this also applies insofar as § 69a UrhG does not apply. In the event of infringement, we shall be entitled to a contractual penalty of 100% of the agreed service fee (according to the price list valid at the time of infringement). Any further claim for damages shall remain unaffected by this; offsetting shall take place.

 

§ 10 Data Protection

1.
Blackbit digital Commerce GmbH expressly points out to the customer that data protection in open networks, such as the Internet, cannot be comprehensively guaranteed according to the current state of the art. The customer is aware that Blackbit digital Commerce GmbH can view the data stored on the servers at any time. Other participants on the Internet may also be able to intervene in the network security without authorization and control the message traffic.

2.
Blackbit digital Commerce GmbH collects, processes and uses personal data insofar as this is necessary for administrative purposes. In doing so, the resulting requirements of the BDSG and the TDDSG are taken into account.

 

§ 11 Granting of Rights, Self-Promotion and Right of Mention

1.
Subject to other provisions in these terms and conditions, Blackbit grants the customer - after full payment of the order - a simple, non-transferable right of use to the commissioned work results. Further rights can be contractually agreed.

2.
Unless otherwise agreed, the customer expressly grants Blackbit permission to publicly present the project in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, Blackbit is entitled to advertise with the business relationship with the customer and to refer to itself as the author on all advertising material created and in all advertising measures, without the customer being entitled to any remuneration for this.

3.
Furthermore, Blackbit is entitled to place its own name, with a link, in an appropriate manner in the footer and in the imprint of the website(s) created by Blackbit, without the customer being entitled to any remuneration for this.

4.
Unless otherwise contractually agreed, Blackbit may demand that a suitable copyright notice be placed in an appropriate place on works created by it.

 

§ 12 Confidentiality

1.
The parties are obliged at all times, both during the term of the contract and for a period of three (3) years after its termination, to treat all confidential information of the other party as confidential and not to use it for their own purposes unless this is expressly permitted.

2.
The parties will limit disclosure of Confidential Information to their users, employees, agents, legal partners, consultants or professional advisors ("Representatives") who must have access to such Confidential Information and are subject to mandatory use and disclosure restrictions at least as protective as those set forth herein. The Receiving Party shall be responsible for any acts or omissions of such Representatives that, if committed by the Receiving Party, would constitute a breach of this Agreement. The receiving Party shall notify the disclosing Party of any actual or suspected breach of this Confidentiality Section.

3.
To the extent either Party is required by governmental order to disclose Confidential Information, it shall endeavor to limit disclosure and obtain confidential treatment or a protective order. In addition, the disclosing party shall immediately inform the other party of the obligation to disclose (to the extent permitted by law).

 

§ 13 Place of Performance, Place of Jurisdiction, Choice of Law

1.
The place of performance for all services is our registered office.

2.
If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Göttingen.

3.
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

§ 14 Effectiveness of the Provisions

1.
Should individual provisions of these Basic Terms and Conditions and the Supplementary Terms and Conditions be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remaining clauses of these Basic Terms and Conditions and the Supplementary Terms and Conditions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued with the invalid or unenforceable provision.

2.
Blackbit is entitled to change the general terms and conditions including the additional conditions for objectively justified reasons (e.g. changes in jurisdiction, legal situation, market conditions or business or corporate strategy) and subject to a reasonable period of notice. Existing customers will be notified by e-mail at least two weeks before the change comes into effect. If the existing customer does not object within the deadline set in the notification of change, their consent to the change shall be deemed to have been granted. If he objects, the changes do not come into force; in this case, Blackbit is entitled to terminate the contract extraordinarily at the time the change comes into force. The notification of the intended amendment of these GTC will refer to the deadline and the consequences of the objection or its absence.

 

Additional Terms and Conditions: Webapps, Software as a Service (SaaS)

 

§ 1 Conclusion of Contract

1.
Acceptance of the General Terms and Conditions of Black Digital Commerce GmbH (hereinafter: Provider) does not yet constitute a contract between the customer and the Provider. Consent constitutes an offer to the Provider to conclude the following contract. Acceptance takes place through successful completion of the customer's payment transaction, confirmation of the conclusion of the contract in text form by us or provision of the service. An automated e-mail sent by us confirming receipt of the order does not constitute acceptance of the customer's offer to conclude a contract.

By agreeing to the General Terms and Conditions, the customer guarantees that he is authorized to conclude this agreement and that the subscription is concluded within the scope of a commercial activity. The general terms and conditions and these additional terms and conditions govern the subscription concluded by the customer for the use of a web application (hereinafter: "software").

 

§ 2 Subject Matter of the Contract

1.
The subject matter of the contract is the granting of the use of the software in the customer's company via the Internet and the provision of storage space on the provider's servers for a fee and for a limited period of time for the duration of the contract.

 

§ 3 Services of the Provider; Software and Storage Space

1.
The Provider grants the Customer the use of the latest version of the software tested by the Provider for the agreed number of authorized users via the Internet by means of access through a browser after testing and approval by the Provider.

2.
The Provider guarantees the functionality and availability of the software for the duration of the contractual relationship and shall maintain it in a condition suitable for use in accordance with the contract. The functional scope of the software and the conditions of use can be found at https://www.blackbit-hosting.io in addition to this contract.

3.
The Provider shall provide the Customer with access data for the administration access in electronic form immediately after conclusion of the contract.

4.
The Provider shall send the Customer user documentation in electronic form after conclusion of the contract. The user documentation can also be viewed at any time during the use of the software and can be downloaded in a common format.

5.
The Provider may, without being obliged to do so, update or further develop the software at any time and, in particular, adapt it due to changes in the legal situation, technical developments or to improve IT security. In doing so, the Provider shall take appropriate account of the Customer's legitimate interests and inform the Customer in good time of any necessary updates. In the event of a significant impairment of the customer's legitimate interests, the customer shall have a special right of termination.

6.
The Provider is not responsible for adapting the service to the individual needs or IT environment of the Customer.

7.
The Provider shall regularly maintain the software and inform the Customer of any associated restrictions in good time.

8.
The Provider shall provide the Customer with storage space on its servers of up to 100 GB for the storage of data and for the purposes of using the Software. The Provider shall ensure that the data can be retrieved in the context of using the software. The Customer may expand or reduce the storage space volume as required in accordance with the conditions specified at https://www.blackbit-hosting.io/en/prices.

9.
The Provider shall take state-of-the-art measures to protect the Customer's data. However, the Provider shall have no duty of safekeeping or care with regard to the data. The customer is responsible for ensuring that the data is adequately backed up.

10.
The Customer shall remain the owner of the data stored on the Provider's servers and may request their return at any time.

 

§ 4 Scope and Rights of Use

1.
The software is not physically transferred to the customer.

2.
The customer shall receive simple, i.e. non-sublicensable and non-transferable rights, limited in time to the duration of the contract, to use the software by means of access via a browser in accordance with the contractual provisions for the latest version of the software for the contractually agreed number of users.

3.
The customer may only use the software within the scope of its own business activities by its own personnel. Any further use of the software by the customer is not permitted.

 

§ 5 Support

1.
The Provider shall set up a support service for the Customer's inquiries regarding the functions of the Software. Inquiries can be made by e-mail via the support hotline specified on the Provider's website at the times specified there. Inquiries are generally processed in the order in which they are received.

 

§ 6 Service Levels; Troubleshooting

1.
The Provider guarantees an overall availability of services of at least 99% per month at the transfer point. This is determined with the help of the Provider's monitoring system. The transfer point is the router output of the Provider's data center.

2.
Availability is defined as the customer's ability to use all the main functions of the software. Maintenance times, times of malfunction in compliance with the rectification time as well as times of malfunction due to force majeure or the fault of third parties are considered times of availability of the software. Times of insignificant malfunctions shall not be taken into account when calculating availability. The provider's measuring instruments in the data center are decisive for the proof of availability.

3.
The customer must report faults immediately to the Blackbit Helpdesk at https://help.blackbit.com/en/kb-tickets/new or by e-mail to hilfe@blackbit.de. Fault reporting and rectification is guaranteed Monday to Friday (excluding national holidays) between 9:00 a.m. and 6:00 p.m. (service hours).

4.
Serious faults (the use of the software as a whole or a main function of the software is not possible) will also be rectified by the Provider outside service hours within 4 hours of receipt of the fault report at the latest - provided the report is made within service hours (rectification time). If it is foreseeable that it will not be possible to rectify the fault within this period of time, the Provider shall inform the Customer of this immediately and notify the Customer that the period of time is likely to be exceeded.

5.
Other significant faults (main or secondary functions of the software are disrupted but can be used; or other not merely insignificant faults) shall be rectified within 12 hours at the latest within the service hours (rectification time).

6.
The above-mentioned repair times shall apply unless otherwise stipulated in an individual service and support contract.

7.
The elimination of minor faults is at the discretion of the Provider.

 

§ 7 Obligations of the Customer

1.
The customer must protect and store the access data transmitted to him against access by third parties in accordance with the state of the art. The customer shall ensure that use is only made within the contractually agreed scope. The Provider must be informed immediately of any unauthorized access.

2.
The customer is obliged not to store any data on the storage space provided whose use violates applicable law, official orders, third-party rights or agreements with third parties.

3.
The customer shall check the data for viruses or other harmful components before storing or using it in the software and shall use state-of-the-art measures (e.g. virus protection programs) for this purpose.

4.
The customer shall be responsible for regularly making appropriate data backups.

 

§ 8 Warranty

1.
With regard to the granting of the use of the software and the provision of storage space, the warranty provisions of tenancy law (§§ 535 ff. BGB) apply with the proviso that the Provider's warranty liability within the meaning of § 536a BGB is excluded, unless the Provider has expressly concealed the defect or has expressly assumed a guarantee.

2.
The Customer must notify the Provider of any defects without delay. Failure to do so may result in the limitation of his rights/loss of rights.

3.
The warranty for only insignificant reductions in the suitability of the service is excluded. Strict liability pursuant to Section 536a (1) BGB for defects that already existed at the time the contract was concluded is excluded.

4.
With the exception of payment obligations for amounts due, neither party shall be liable for non-performance or delay in performance if this is caused by the following circumstances: War, hostilities, terrorism, riots, strikes or sabotage, acts of God such as pandemics, epidemics, fire or floods, energy crises or power, internet or telecommunications failures not caused by the obligated party, government restrictions or embargoes or other events beyond the reasonable control of the obligated party. Any such failure or delay shall not be deemed a material breach of this Agreement. The obligation in question shall continue in full force and effect and shall be performed as soon as practicable after the circumstances giving rise to the default or delay have ceased. The other Party reserves the right to terminate this Agreement upon 15 days' notice if the Party in question is prevented from performing for more than 60 days. Each party shall use reasonable efforts to mitigate the effects of a force majeure event.

 

§ 9 Defects of Title; Indemnification

1.
The Provider warrants that the software does not infringe any third-party rights. The Provider shall indemnify the Customer on first demand against all claims by third parties due to infringements of property rights for which the Provider is responsible in connection with the contractual use of the software and shall reimburse the costs of appropriate legal action. The Customer shall inform the Provider immediately of any claims asserted against it by third parties due to the contractual use of the software and shall grant it all necessary powers of attorney and authorizations to defend the claims.

2.
The Customer warrants that the content and data stored on the Provider's servers and its use and provision by the Provider do not violate applicable law, official orders, third-party rights or agreements with third parties. The Customer shall indemnify the Provider against claims asserted by third parties due to a breach of this clause upon first request.

 

§ 10 Terms of Remuneration and Payment

1.
The Customer shall pay an annual fee to the Provider, the amount of which is essentially determined by the selected package and selected storage space volume and is shown in the "Price list". The price list can be viewed at https://www.blackbit-hosting.io/en/prices.

2.
The annual fee to be paid shall be adjusted in the event of changes in the number of users or the storage space volume in accordance with the conditions in the "Price list" appendix.

3.
By providing payment card details or signing a SEPA direct debit mandate, you authorize the Provider to debit your payment card or to debit your account automatically at the billing frequency and in the amount selected by you on the basis of the tariff you have subscribed to and your use of the services. You also authorize the Provider to engage a third party to process payments and consent to the disclosure of your payment information to that third party. You must ensure that your payment information is correct and up to date at all times and that your credit card limit or account linked to your payment card or SEPA is sufficiently available. If the information you provide is incorrect or out of date and a debit is therefore refused, you will be in default.

4.
The Provider is entitled to change the "Price List". You will be informed of any price changes by e-mail 30 days before the next billing period. If you do not agree with the updated prices, you can terminate your subscription extraordinarily at the beginning of the next billing period from which the price increase takes effect.

 

§ 11 Free Trial Period

1.
If you are using the services covered by this contract for the first time, you can register for a free trial period. Use of the services during the free trial period is subject to our terms and conditions, including these additional terms and conditions. Use during the trial period is limited to internal evaluation and testing of the Services for the sole purpose of determining whether the Services meet your requirements and whether you wish to continue using the Services.

2.
The duration of the trial period is 30 days. The use of the contractual services is free of charge for you during this period - notwithstanding § 10.

3.
The services provided during the free trial period may have limited functions and resources, may be restricted to development environments and should not be used for production purposes.

4.
Provider reserves the right to determine, in its sole discretion, whether you are eligible for a Free Trial. Provider may deny your request for a free trial if it suspects that you are attempting to obtain additional benefits of the free trial.

5.
Provider will delete your projects and terminate the Service at the end of the trial period unless you convert your trial to a paid subscription.

6.
You are entitled to terminate the free trial period at any time at your own discretion by deleting your project. Provider also reserves the right to terminate, suspend or modify the Free Trial at any time at its sole discretion upon three business days' prior notice. Notwithstanding the Liability section, Provider's liability for damages of any kind incurred during the Free Trial Period is completely excluded, including any obligation or liability with respect to Your Content to the extent such exclusion of liability is permitted by law

 

§ 12 Contract Term and Termination

1.
The contract shall enter into force on the date specified in § 1. The contract is concluded for a period of one year plus the test period stipulated in § 11. If neither party terminates the contract by no later than one month before the end of the aforementioned period, the contract shall be automatically extended for a further year. The same applies to the following years.

2.
The contract can be terminated by either party with a notice period of one month to the end of the contract.

3.
The right to terminate without notice for good cause remains unaffected. In any case, notice of termination must be given in text form (e-mail).

4.
The Provider shall provide the Customer with reasonable support in retransferring or backing up the data after termination of the contract at the Customer's expense.

5.
The Provider shall irrevocably delete all of the Customer's data remaining on its servers 15 days after termination of the contractual relationship. There is no right of retention or lien on the data in favor of the Provider.

 

Additional Terms and Conditions: Hosting, Platform as a Service (PaaS)

 

§ 1 Conclusion of Contract, Duration and Termination

1.
With the consent to the General Terms and Conditions (Basic Terms and Conditions and Additional Terms and Conditions) of Blackbit digital Commerce GmbH (hereinafter: Blackbit), no contract is concluded between the customer and Blackbit. The consent represents an offer to Blackbit to conclude the following contract.

Acceptance takes place through successful execution of the customer's payment transaction, confirmation of the conclusion of the contract in text form by us or provision of the service listed below. An automated e-mail sent by us confirming receipt of the order is not an acceptance of the customer's offer to conclude a contract.

2.
By agreeing to the general terms and conditions, the customer guarantees that he is authorized to conclude this agreement and that the conclusion of the subscription is part of a commercial activity. Blackbit does not conclude contracts with consumers within the meaning of European consumer protection law.

3.
The General Terms and Conditions and these Additional Terms and Conditions govern the subscription concluded by the customer for the use of the software provided (hereinafter: "Software").

4.
The contract is concluded for a period of one year plus the test period regulated in § 10. If neither party terminates the contract at the latest one month before the end of the aforementioned period, the contract shall be automatically extended for a further year. The same applies to the following years. The right to terminate the contract without notice for good cause remains unaffected. In any case, notice of termination must be given in writing.

5.
Blackbit will support the customer appropriately at his expense after termination of the contract in the retransfer or backup of the data.

6.
Blackbit will irrevocably delete all customer data remaining on its servers 15 days after termination of the contractual relationship, unless the storage of the data is required by applicable law or is necessary for the establishment, exercise or defense against legal claims.

 

§ 2 Contractual Service

1.
Blackbit provides you with a PaaS - a Platform-as-a-Service - that supports you in the development, deployment, hosting, monitoring and maintenance of your applications ("Your Project(s)"). For the term of this Agreement, Blackbit will provide you with access to and use of the Blackbit PaaS service (the "Services"), the details of which are set out in the Agreement below and in the documentation for each Service. The documentation can be viewed at https://www.blackbit-hosting.io/en/documentation.

2.
The organizational level, service offering and available capacity, storage space, resources, add-ons and containers are described in the documentation. As explained in more detail in the documentation, some services and add-ons may be subject to certain usage restrictions. Depending on the organization level, service or add-on you select and use, Blackbit may prohibit or charge you for any use beyond this.

3.
Blackbit is entitled to commission subcontractors to fulfill the obligations arising from this contract.

 

§ 3 Registration, Administration

1.
When creating an account ("Account") with Blackbit and for as long as you use our Services, you must provide information that is accurate, complete and current at all times. You must not provide false or misleading information about yourself and, upon request from Blackbit, provide any additional information required by Blackbit to verify your identity as a customer.

2.
Changes to your projects, resources or users may incur additional costs. You acknowledge and agree that any changes made by you or a user with the appropriate authorization level may result in additional costs and fees charged by Blackbit.

3.
You are responsible for managing the access rights of your users and ensuring that these access rights are up to date at all times. You shall ensure that the login and other access data of the users are treated confidentially, are individual and are not shared by several persons. You and your users must comply with the Terms of Use and applicable laws. You are responsible and liable to Blackbit for the acts and omissions of your Users and are responsible for each User's compliance with this Agreement. You will notify us immediately and block the person's access to the Services if you become aware of a breach of this Agreement by a User or possible misuse of a User's credentials.

 

§ 4 Content, Responsibility for Content

1.
The Services provide you with the ability to develop, test, scale and host your projects and all information and content relating to or in connection with your projects, including but not limited to related data files, written text, software or program source code, images, music, audio or video files or other images or materials (individually and all together, your "Content").

2.
You and your users are solely responsible for the use and transmission of all Content. Before posting, uploading, sharing, storing, performing, providing or otherwise transmitting any Content subject to intellectual property rights, such as trademarks, copyrights or patents, on the Services, you must ensure that you have a valid license for such Content for the intended use. You are solely responsible for complying with the license agreements for the software and programs contained in your content.

3.
If your projects that you have developed or that are hosted on the Services allow third parties to publish, transmit or host Content (e.g., but not limited to the users of your application or website hosted on Blackbit), you acknowledge and agree that you are solely responsible for reviewing such Content for possible violations of this Agreement or for possible violations of any applicable laws or regulations, including laws or regulations relating to the protection of personal data, and for promptly removing such Content if necessary.

4.
You represent and warrant that Your Content does not violate any provision of this Agreement, does not infringe or misappropriate the rights of any third party, and does not violate any applicable law or regulation, including any law or regulation relating to the protection of personal information. You shall, at your own expense, defend, indemnify and hold Blackbit and its officers, directors, employees, vendors, agents or affiliates harmless from any claims, settlements, expenses, damages or actions (including attorneys' fees and costs) arising out of Your Content, including misuse of any third party licenses, tools or services used in connection with Your Content or the Services.

5.
You agree to promptly remove any Content that violates this Agreement upon Blackbit's first request or upon becoming aware of such violation. Blackbit is not in a position and/or obliged to intervene directly in your content. You alone are responsible for the removal of such content.

6.
Applicable law may require that you publish your name, address, telephone number and e-mail address, among other things, when publishing content. To the extent these requirements apply to you, you agree to comply with applicable law and to disclose all required information along with your Content.

 

§5 Service Uptime, Maintenance and Customization

1.
Blackbit will use commercially reasonable efforts to ensure that the uptime of the hosting infrastructure of your projects in the production environment meets or exceeds 99% on a monthly basis. The foregoing best effort uptime obligation does not apply to development and test environments and excludes any maintenance interruptions and incidents caused by Your Projects and/or caused by the failure of TLS Certificates provided by You.

2.
Unless otherwise agreed in writing between you and Blackbit, the Services do not include any specific support obligations. However, Blackbit will make commercially reasonable efforts to provide you with support services via an online service desk.

3.
Blackbit reserves the right to interrupt the Services in whole or in part in order to carry out a technical intervention to ensure the proper operation of the Services and the security and stability of the infrastructure behind the Services. Blackbit will use commercially reasonable efforts to limit the occurrence and duration of the interruption and will, as far as possible, provide you with reasonable prior notice of Blackbit's intervention.

4.
Blackbit reserves the right, in its sole discretion, to modify, add or remove portions and/or features of the Service, temporarily or permanently, without liability to you or any third party. Except in cases where an urgent change is required for security reasons, Blackbit will notify you prior to any material change that has an adverse effect by posting a prominent notice within the Services and/or by sending an e-mail to the e-mail address provided during registration or, if applicable, subsequently updated. If you do not agree with the change, you can terminate your subscription extraordinarily with effect from the date on which the change takes effect. If you continue to use the services after a change, this shall be deemed as your consent to these changes. New functions and services are also subject to this agreement

 

§ 6 Beta Function

1.
Blackbit will occasionally offer you to try out certain beta or pre-release features that are still in the testing phase and not generally available (each a "Beta Feature") at your option. Beta Features are for evaluation purposes and are not intended for production use. Beta Features are not associated with an uptime commitment or a support commitment. Your use of such beta features is voluntary. Beta Features may be modified, removed or discontinued at our sole discretion for any reason and without any liability of Blackbit to you, or made generally available to all of our customers for production use (including for a fee). All Beta Features are provided "as is" without warranty or representation of any kind. Notwithstanding the "Liability" section, Blackbit's liability for any damages arising out of or in connection with any Beta Feature is completely excluded, including any obligation or liability relating to Your Content to the extent an exclusion of liability can be agreed under applicable law. You assume all risks associated with your use of a Beta Feature.

 

§ 7 Account Suspensions

1.
Blackbit is entitled to immediately block your access to your account and/or your project(s) if you or your user(s) violate the Terms of Use or applicable law; if your account has overdue invoices and/or your payment information has expired and needs to be updated to allow further payments; and/or if this is necessary to prevent damage to Blackbit, Blackbit's customers, the Services or the underlying infrastructure.

2.
Blocked accounts may be restricted in their functionality or rendered completely unusable, in particular with regard to the ability to make configuration changes. The functionality of blocked projects can also be restricted or rendered completely unusable.

3.
Such a block will be lifted once the circumstances that led to it have been rectified. The blocking does not release you from your payment obligation.

4.
The above right to block the account does not limit the right of Blackbit to immediately and permanently delete your project or your account and to terminate this contract if you substantially violate the contractual provisions or applicable law or if you do not remedy the circumstances that led to the blocking within a reasonable period of time.

 

§ 8 Third Party Services

1.
Blackbit may provide you with access to third-party tools and links that lead to third-party websites. Blackbit is not responsible for examining or evaluating the content or accuracy of such third party tools and websites and does not warrant or assume any liability or responsibility for any third party materials or websites or for any other third party materials, products or services. Any such access to third party links or tools is provided "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. Blackbit assumes no liability whatsoever for any damages incurred in connection with the purchase or use of goods, services, resources, content or other transactions related to third party tools or websites in connection with your use of optional third party tools. These Terms of Use do not apply to third-party links, tools or integrations, and you should consult the terms of use applicable to such links, tools or integrations.

2.
The Services may include features for integration or interoperability with third party services, tools or components. However, Blackbit cannot guarantee the continued availability of such features and may discontinue providing such features without entitling you to a refund, credit or other compensation if the provider of a third party service, tool or component ceases to make its service, tool or component available for interoperability with the Services in a manner acceptable to Blackbit or changes the terms of the third party's services in a manner that no longer allows Blackbit to provide said integration or interoperability feature. If you or a User agrees to an integration through with third party services, this will be deemed consent to the sharing of data with the partner for that integration.

 

§ 9 Fees, Payment Terms, SEPA Direct Debit Mandate

1.
For the services of Blackbit, a monthly fee is due for payment, the amount of which is determined by the subscribed services and can be seen in the "price list". The price list can be viewed at https://www.blackbit-hosting.io/en/prices Invoices are issued monthly. The invoice is due for payment immediately.

2.
The monthly fee to be paid shall be adjusted in the event of changes in the number of users or other adjustments in accordance with the conditions in the "Price list".

3.
By providing payment card details or signing a SEPA direct debit mandate, you authorize Blackbit to debit your payment card or to automatically debit your account at the billing frequency and amount you have chosen based on the tariff you have subscribed to and your use of the services. You also authorize Blackbit to engage a third party to process payments and consent to the disclosure of your payment information to that third party. You must ensure that your payment information is correct and up to date at all times and that your credit card limit or account linked to your payment card or SEPA is sufficiently available. If the information you provide is inaccurate or out of date and a debit is therefore refused, you will be in default.

4.
Blackbit is entitled to change the price list. You will be informed of any price changes by e-mail 30 days before the next billing period. If you do not agree with the updated prices, you can terminate your subscription extraordinarily at the beginning of the next billing period from which the price increase takes effect.

 

§ 10 Free Trial Period

1.
If you are using the services covered by this contract for the first time, you can register for a free trial period. Use of the services during the free trial period is subject to our terms and conditions, including these additional terms and conditions. Use during the trial period is limited to internal evaluation and testing of the Services for the sole purpose of determining whether the Services meet your requirements and whether you wish to continue using the Services.

2.
The duration of the trial period is 30 days. The use of the contractual services is free of charge for you during this period - notwithstanding § 9.

3.
The services provided during the free trial period may have limited functions and resources, may be restricted to development environments and should not be used for production purposes.

4.
Blackbit reserves the right to determine, in its sole discretion, whether you are eligible for a Free Trial. Blackbit may deny your request for a free trial if it suspects that you are attempting to obtain additional free trial benefits.

5.
Blackbit will delete your projects and terminate the Service at the end of the trial period unless you convert your trial to a paid subscription.

6.
You are entitled to terminate the free trial period at any time at your own discretion by deleting your project. Blackbit also reserves the right to terminate, suspend or modify the free trial period at its sole discretion at any time upon three business days' prior notice. Notwithstanding the Liability section, Blackbit's liability for damages of any kind incurred during the Free Trial Period is completely excluded, including any obligation or liability with respect to your Content to the extent such exclusion of liability is permitted by law.

 

§ 11 Intellectual Property

1.
Blackbit and its licensors, if any, are and shall remain the sole and exclusive owners of all right, title and interest in and to the Services. Notwithstanding the foregoing and subject to this Agreement, Blackbit hereby grants you a perpetual, worldwide, non-transferable, non-assignable, non-sublicensable and non-exclusive right to use the Services provided to you by Blackbit in the manner permitted by this Agreement and subject to the restrictions on use as further described in the Terms of Use and Documentation. Blackbit reserves all rights not expressly granted to you under this Agreement or by law.

2.
You may not copy, republish, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services. You may not modify, translate or create derivative works of the Services, nor may you allow users or others under your control to do so. You may not rent, lease, distribute, sell, assign or otherwise transfer any intellectual property rights in the Services; otherwise use the Services for the benefit of any third party; remove any trademark or proprietary notices from the Services; or make any evaluation of the Services without prior written consent and only to the extent of such consent.

3.
You are and shall remain the sole and exclusive owner of all right, title and interest in and to the Content. Notwithstanding the foregoing, by using the Services, you grant Blackbit a non-exclusive, transferable, sublicensable, royalty-free, worldwide license to host, reproduce, distribute, use, publicly perform, publicly display and digitally perform the Content to the extent necessary to provide the Services and not in conflict with any substantial legitimate interests of yours.

4.
Certain software elements made available via the Services may be open source software. Such open source software is not subject to the provisions of this Agreement with respect to its licensing to the extent that separate terms exist for the end user licenses of the individual elements of the open source software. Such separate end user licenses shall be attached to the respective open source software.

 

§ 12 Protection of Services and Content

1.
Blackbit will take appropriate administrative, physical and technical security precautions to protect the security, availability, confidentiality and integrity of the Service and the underlying infrastructure.

2.
Notwithstanding paragraph 1, you are also responsible for the security of the Services and are obliged to refrain from any actions that could jeopardize this security.

3.
You are solely responsible for the security of all projects that you use as part of the use of the Software, both in development and production environments. You are responsible for creating regular backups for your production environment, in particular before you integrate another environment into it or each time you change the resource allocations (CPU, RAM, storage) of your production environment.

4.
Blackbit may notify you of security vulnerabilities that relate to elements within your control and responsibility, but is under no obligation to notify you of or verify security vulnerabilities. You must close any reported vulnerabilities as soon as possible. Failure to address reported vulnerabilities may result in immediate suspension of your projects and services at Blackbit's sole discretion. Blackbit bears no responsibility for such vulnerabilities, whether or not they have been identified and reported by Blackbit. You remain solely responsible for applying security patches and are solely liable for the consequences of failing to apply the required security patches.

 

§ 13 Warranty, Force Majeure

1.
Blackbit does not assume any guarantees for the services offered, unless otherwise expressly regulated. Unless otherwise regulated, a guarantee has been assumed for this or the defect has been fraudulently concealed, Blackbit also assumes no warranty for any defects in the service.

2.
With the exception of payment obligations for amounts due, neither party shall be liable for non-performance or delay in performance if this is caused by the following circumstances: War, hostilities, terrorism, riots, strikes or sabotage, acts of God such as pandemics, epidemics, fire or floods, energy crises or power, internet or telecommunications failures not caused by the obligated party, government restrictions or embargoes or other events beyond the reasonable control of the obligated party. Any such failure or delay shall not be deemed a material breach of this Agreement. The obligation in question shall continue in full force and effect and shall be performed as soon as practicable after the circumstances giving rise to the default or delay have ceased. The other Party reserves the right to terminate this Agreement upon 15 days' notice if the Party in question is prevented from performing for more than 60 days. Each party shall use reasonable efforts to mitigate the effects of a force majeure event.

 

§ 14 Miscellaneous

1.
Your notifications to Blackbit under this contract must be made by e-mail via the Blackbit support portal. Insofar as notifications require the written form due to contractual or legal regulations, these must be transmitted in advance in the aforementioned manner. Blackbit will make all notifications within the scope of this contract accessible by e-mail or by notification in the respective service, unless otherwise required by contractual or legal provisions.

2.
You are not entitled to transfer rights under this contract to third parties without the prior consent of Blackbit. Blackbit is entitled to assign this contract in whole or in part to a company affiliated with Blackbit. In the event of a merger, reorganization, sale of all or a substantial part of Blackbit's assets, Blackbit's rights and obligations under this Agreement shall be transferred to the new entity.