General terms & conditions of fortrabbit

last amended on November 21th, 2016

Preamble

The following provider is fortrabbit GmbH, Görlitzer Str. 52, 10997 Berlin. Regulations to the terms and conditions as well as to these T&C's diverged agreements are legal, preconditioned they have been formally approved in written form by the provider.

§ 1 Subject

Subject to these conditions of use is the provision of data storage and the computing capacity for connecting to the internet (Cloud Webhosting Platform). The client will have access to upload the source code and to adjust the service.
All services described in this terms and conditions are available only to business units, public agencies and entrepreneurs. The registration of private customers is prohibited.

§ 2 Conclusion of the contract

The customer's registration for one of provider’s service shall be deemed to be an offer to enter into a contract. The provider may accept or refuse this offer. The acceptance of this offer takes place either expressly or impliedly by activation of the user's account The concluded contract is not permanently stored by the provider.
It is agreed on concluding this contract between the provider and the customer that there is a contract for the performance of a continuing obligation. If the customer selects the service with costs, he will be obliged to pay monthly the arising fees until the cancellation of the contract. If the customer select the service for less than one calendar month, the fee for the service will be charged proportionately. The billing will be carried out on the following month and on a monthly basis. Customers paying by credit card expressly agree to have their credit card account billed monthly for the recurring charges for the life of the contract including any automatic renewal periods.
A right of revocation does not exist for the customer. But the customer can cancel the contract at any time.

§ 3 Obligations of the provider

The provider shall ensure that customer has access to the provider's services.

§ 4 Obligations of the customer

If the customer is facing any failures using the system, the customer shall inform the provider and without delay of such interferences.
The customer is obliged to use his access data carefully and to avoid an unauthorised use by third parties. Furthermore, the customer shall inform the provider of such unauthorised use by third parties without delay.
The customer shall keep his data up to date at all times and right continuously. The customer is not allowed to sublet the service, unless otherwise agreed with the provider.
The client is not allowed to sublet any service to or with third parties, unless otherwise agreed with the provider.
The customer agrees to be called as a reference customer by the provider in a written and electronic form.
The customer shall receive the necessary permit of the relevant person to the extent that he collects, processes and uses person-related data within the scope of the provider's service, unless there is an legal basis permission for it.
The customer will save the data and the value of it periodically and appropriately and must create backup copies in order to prevent the loss of data and to secure information that will guarantee its reconstruction. The customer has the obligation to provide regular, risk-appropriate, data assurance at least once a day. Furthermore, the customer shall exhaustively verify all data and information for virus contamination with the latest virus detection before uploading them.
The customer is obligated not to save any data or content on the storage space whose provision, publishing or use violates the law or an agreement with a third party; law in this context means criminal and copyright laws, trademark laws, privacy rights, and other rights of a third party.
The customer shall not distribute any pornographic, obscene, offensive contents or immoral contents which are adapted to a negative development of children and teenagers or the education to a wrong self-reliance and personality.
The customer has the obligation of diligence for the software he installed and programmed. The customer must update the software which is used to avoid hacking attempts if a security problem is known.The customer ensures that in his specific area any unsecured programs or scripts will not be used. The use of open mail relays or similar systems on which e.g. spam mails are circulated gives the provider the right to immediately block the customer's access. The customer will immediately inform the provider as soon as there is evidence that a third party has unauthorized use of his or her service.
The customer commits to refraining from procedures which cause an excessive utilization of the provider's facilities.
The customer is obligated to exempt the provider from all claims of third parties, no matter of which kind, which arise from the illegality of contents that the customer has stored on the storage covered by the contract. This obligation of indemnity shall also include the obligation to completely indemnify the provider from any legal defense costs (e.g. court and statutory legal fees). This also applies to sub-domains which are registered at the provider but are provided to the customer.
If and so far as the customer uses the contractual storage in contrary to the assurance the non-distribution of illegal content, the provider will have the right to block access via world wide web to such content.

§ 5 Remuneration and methods of payment

The up-to-date price list applies at all the times (fortrabbit.com/pricing) if not otherwise agreed in a written form.
The cost related service is to be paid monthly.
The usage based billing of data traffic and storage is due to the sum of all transferred data (such as, download, upload, website visitors) related to the customer's contract. 1 gigabytes=1.000 megabytes; 1megabyte=1.000 kilobytes; 1 kilobyte=1.000 bytes.
If a debit order cannot be redeemed or in the event of a claim back his bank or credit card company, the provider is entitled to charge the customer for the fees and bank expenses it incurs for each returned debit order of the customer (currently € 15,-). The customer may prove that the actual damage has been lower, and the provider may prove that the actual damage has been higher.
The provider has the right to determine the amount of the remunerations by its own reasonable assessment (sec. 315 of the German Civil Code) if more than 6 months after the last price increase. The provider shall inform the customer about the price adjustment in advance in a written form (email). If the customer does not agree to the price adjustment, he may cancel the contract in respect to the cancellation period.
The customer's fee will be billed in a written form for remuneration, if expressly required.

§ 7 Guarantee or liability

In the event of a material breach of this agreement caused by slight negligence, the provider excludes all liability unless the liability involves injury of life, body or health or the breach of fundamental contractual duties that facilitate the enforcement of this contract in such due form the customer trustfully relies upon or to the claims granted by the Product Liability Act.
In cases of force majeure (in particular in case of strikes, lockouts, official or legal orders, technical difficulties, negligence of a third party) that are not in the responsibility of the provider, the provider will not be liable.
The limitation of liability related to section 7 (1) of this agreement also applies to the providers vicarious agents within the scope of the contract compliance.

§ 8 Duration and termination

The contract is agreed for an indefinite time period, and both parties have the right to terminate the contract.
The customer may terminate the contract without reason for the future effect in the Dashboard.
The provider shall terminate the contract with a term of 12 weeks.
In all cases each of the parties may terminate the contract instantly, if the termination party can base the termination on an important reason.
A due and sufficient cause for cancellation without notice exists if the customer comes into default of payment obligations, has suspended payments, or if the customer fails to meet its contractual obligations.
In the event of a severe violation of § 4 of this Terms and Conditions the provider may terminate the contract instantly.

§ 9 Data protection

The parties shall comply with all applicable statutes on data protection in Germany and commit their employees concerned by the present contract and its execution to data secrecy according to number 5, Federal Law on Data Protection (BDSG), insofar as these are not already already bound by its provisions.
If the customer collects, processes or utilises personal data, he vouches for the fact that he is authorised to do so under applicable legal requirements, especially with respect to data protection, and in case of violation releases the provider from third-party claims.
Insofar as the data to be processed are personal data, order data processing is present and the provider shall comply with the legal requirements (sec. 11 BDSG) of order data processing and customer instructions (e.g., concerning compliance with deletion and blocking obligations). Instructions must be provided in writing and in a timely manner.
The provider may subcontract but must impose obligation to the subcontractor regarded to the regulation above.
Insofar the customer authorized third parties under this contract in the order to have access to the information that are stored in the provider's systems, the responsibility of the data protection also applies to the customer and its authorized third party.
The provider shall take technical and organisational security precautions and measures according to the annex to number 9 Federal Law on Data Protection (BDSG).
In the case of threat caused by change of employee or organisation, the customer will ensure that this will be changed by the provider.
The customer shall not be entitled to require access to the areas of the software application, server and the service software or any other system components. This does not apply to data protection supervisor with the regard to sec. 11, 2 BGSG with a written approval in compliance with legal and regulatory provision of BDSG.

§ 10 Final provisions

The contract shall be governed by German law, without regard to any choice of law rules adopted thereunder.
Court of jurisdiction will the providers head office, if the customer is a merchant as defined in sec. 1 to 7 HGB (German Code of Commerce).
The invalidity or inoperativeness of one or more provisions of this contract does not affect the validity of the rest of the contract and the remaining provisions shall thereby remain unaffected.
The provider is not subject to a code of conduct.
Contracting languages are German and English. The German version of the T&C shall be binding for the interpretation of the contract.