Terms & Conditions

Terms & Conditions

General Terms and Conditions of Business of Synqion

Preamble

The General Terms and Conditions of Business govern the contractual relations between SNAP Innovation GmbH (hereinafter referred to as “SNAP”) and the customer.

1. Scope: power to make changes, subject matter of the contract, change of the contractual partner

1.1 The following terms and conditions govern the transfer and use of the SNAP software products and the accompanying hosting services by SNAP or its hosting partners.

1.2 SNAP is entitled to change the subject matter of this contract with the agreement of the customer, provided that the change is not unreasonable for the customer taking into account the interests of SNAP. The consent to make changes to the contract shall be deemed granted, provided that the customer does not object to the change within four weeks of the receipt of the change notification. SNAP undertakes to notify the customer with the change notification of the consequences of not making an objection. If the customer exercises his right to object, the changes shall be deemed as rejected and the contract shall then be continued without the proposed changes. The right of the contractual partners to terminate the contract remains unaffected.

1.3 We do not recognize general business terms of the customer deviating in whole or in part from these terms and conditions of business, unless we have specifically agreed to them in writing. These terms and conditions of business shall apply exclusively even if we unconditionally provide our services in knowledge of conflicting general business terms of the customer.

1.4 These General Terms and Conditions of Business shall also apply to future transactions of the parties.

1.5 SNAP can transfer its rights and obligations arising from this contract to one or several third parties (taking-over a contract). The customer is entitled to terminate the contract without notice in the event of the taking-over of a contract.

1.6 SNAP may appoint subcontractors. In particular, SNAP may decide freely which subcontractor will provide the services that were agreed upon with the customer.

1.7 The minimum age for entering into a contract with SNAP and the use of the SNAP software and services is 14.

2. Obligations to Perform

2.1 SNAP guarantees a 99.0 % availability of its servers on a yearly average. Times in which the servers are not available due to technical or other problems which are outside the sphere of influence of SNAP (Acts of God, negligence of third parties etc.) shall be excluded from this. SNAP Innovation can limit the access to the services, provided that the security of the network operation, the maintenance of network integrity, in particular the prevention of serious malfunctions of the network, the software or stored data require this.

2.2 The customer selects a product, a service or a combination of both when ordering. These services can be charged on a one-off, monthly, six-monthly or annual basis, provided that no other arrangement has been agreed. The customer can expand the order at any time during the contract period.

2.3 In addition to the regularly agreed licence and basic fees, usage-based charges for the use of corresponding services can be incurred in individual cases. The usage-based services that have accumulated in such a case over and above the free quotas included in the respective range of services will be invoiced monthly in arrears by SNAP.

3. Licence Agreements: Copyright

3.1 The customer receives a non-exclusive right of use for the programs (license) from SNAP for the term of the contract. If the customer is authorized by SNAP for multiple licenses of the program, the following terms of use shall apply for each individual one of these licenses. The term “program” encompasses the original program which the customer receives or acquires, all duplications (copies) of the same, as well as parts of the program even if these are linked to other programs. A program consists of readable instructions, audio-visual contents and the associated licence materials. In other respects, the terms of the licenses of the respective program manufacturers shall apply.

3.2 The customer undertakes to ensure that everyone who uses this program observes this license agreement. The customer may only use the program simultaneously on one computer. A “use” of the program shall be deemed to exist if the program is in the main memory or on a storage medium of a computer. A program which has only been installed on a network server for the purposes of program distribution shall be deemed not used.

3.3 The license fees charged by SNAP are based on the frequency of the use (for example the number of users), the resources (for example the processor size) or a combination of both. If the access to a program is controlled by a license administration program, copies may be made and stored on all machines which are under the control of this license administration program, the use may not, however, exceed the total number of permissible users or resources.

3.4 The customer may operate data backup in accordance with the technical rules and prepare the backup copies of the programs necessary for this. If the manual is available on data media, it may be printed out on paper. The customer must not change or remove copyright notices of SNAP. The customer is not entitled to use, copy, process or transfer the program in a different way than described herein, or convert it into a different form of expression (reverse-assemble-reverse-compile) or otherwise translate it, provided that such a conversion is not essentially envisaged by express legal regulations. He is not entitled to rent out or lease out the program against payment or to grant sublicences. Reselling and similar business models, for which the separate written approval of SNAP must be obtained, come in particular under the term of passing on against payment.

3.5 Insofar as the customer has been granted a right of use for the programs or advertising material by SNAP for a limited period or the right of use ends due to termination, the customer must return all data media with programs, any copies and all written documentation and advertising aids to SNAP. The customer shall delete all stored programs from his computer systems, unless he is legally required to retain them for a longer period. The remaining contractual accessory obligations of the customer to SNAP shall continue to exist beyond a possible cancellation or termination of the contract.

4. Contract Offer, Conclusion of the Contract, Termination of the Contract

4.1 SNAP is entitled to accept the application of the customer to conclude the contract within a period of two weeks (14 days) after a telephone order or sending off of the order by the customer.

4.2 The contract shall only come into being with the countersigning of the customer’s application by SNAP or with the first performance.

4.3 Particular attention is drawn to the right of the customer to cancel in section 5 of these General Terms and Conditions of Business.

4.4 The contract is concluded with an indefinite term, unless agreed otherwise. Minimum contract periods can be agreed for contracts for backup and relay server solutions. If the contract has been concluded for a specific term, or a minimum contract period was agreed with the customer, the contract is extended in each case by the agreed period or minimum period, but no more than by one year, if it is not terminated with a period of notice of 4 weeks to the respective expiry of the specific term or expiry of the minimum contract period. SNAP is entitled to terminate the contract with a period of notice of four weeks to the end of the month in the case of contracts which have a term or a minimum contract period of up to twelve months. This also applies if the contract has been extended by a specific term. In this case of termination by SNAP the customer is entitled to repayment on a pro rata basis of the invoice amounts not yet used and paid in advance. A contractual relationship running for an indefinite period may be terminated by either party without stating any reasons with a period of notice of 4 weeks to the end of the following month. In this respect, the customer is not entitled to repayment on a pro rata basis of the invoice amounts not yet used and paid in advance.

4.5 The right of both parties to terminate without notice for good cause remains unaffected. A good cause shall be deemed to exist in particular for SNAP if the customer defaults in payment of the fees by more than 20 calendar days, or insolvency proceedings have been opened against the customer.

4.6 Every notice of termination must be served in writing to be effective, which is also deemed to be kept by fax or e-mail. These declarations of intention are to be sent to one of the following addresses: SNAP Innovation GmbH, Max-Brauer-Allee 50, D-22765 Hamburg, Fax +49-40-38904444, E-Mail: info@synqion.com

4.7 All products and services ordered by the customer are the subject matter of this contract. If the contract is terminated before the agreed date, payments made in advance are not refunded, unless SNAP is to blame for the termination. This also applies to other separable individual services of a scale of charges or additional options booked.

5. Instructions for Cancellation

5.1 Right of cancellation for orders via the Internet

You have the right to cancel your contractual statement in writing within two weeks without stating reasons (e.g. letter, fax, e-mail). The deadline commences at the earliest with the receipt of these instructions. The punctual sending off of the cancellation suffices to safeguard the cancellation deadline. The cancellation is to be addressed to: SNAP Innovation GmbH, Max-Brauer-Allee 50, D-22765 Hamburg, Fax +49-40-38904444, E-Mail:info@synqion.com

5.2 Consequences of a cancellation

In the case of an effective cancellation, the services received on both sides are to be returned and benefits enjoyed (e.g. hosting services) paid. If you are unable to return the service received entirely, only in part, or only in a worse condition, you are obliged to replace the value of the service wherever necessary. This can lead to you nevertheless having to settle the contractual payment obligations for the period until the cancellation. You must fulfil any obligations to refund payments within 30 days of sending off your cancellation declaration.

5.3 Special information on the cancellation:

Your right of cancellation lapses prematurely if the contract has been completely fulfilled and you have expressly agreed to it.

6. Prices and payment

6.1 SNAP is entitled to increase the fees a maximum of once per quarter. The price increase requires the agreement of the customer. The agreement shall be deemed granted, provided that the customer does not object to the price increase within 4 weeks of the receipt of the change notification. SNAP undertakes to notify the customer with the change notification of the consequences of not making an objection. The prices are fixed prices. Unless the primary obligation to perform, i.e. the obligation to pay the usage-independent basic fee is affected, SNAP will determine the fees by means of the current price list at its reasonably exercised discretion. In case of default, SNAP will charge interest at ten percent annually and is entitled to immediately block the use of the customer, as well as the use of the customer of the reseller.

6.2 Unless otherwise agreed in writing, the usage-independent fees fall due monthly in advance. The use-based fees fall due with invoicing. The customer must pay other fees in advance. The accounting period is determined by the scale of charges ordered in each case (as per the current performance specification), at the most however at twelve months. Separate agreements with the customer take precedence. The customer receives an invoice by e-mail in electronic form. If the customer requests that the invoice is to be sent by post, SNAP is entitled to demand EUR 2.56 per invoice for this. In case of direct debit returns, SNAP will charge a processing fee of EUR 9.60 per direct debit plus the bank charges incurred for SNAP. If a higher amount is stated in the current price list for this, SNAP will charge this amount.

6.3 The obligation to pay also exists for invoice amounts incurred due to authorised or unauthorised use of the products or services ordered with customer access by third parties, unless the customer is not responsible for the use. It is incumbent upon the customer to provide evidence that he is not responsible for the use.

6.4 The customer authorises SNAP to collect the payments to be made by him to the debit of an account to be named by the customer.

6.5 The customer may only offset against our claims with claims which are unchallenged or have been recognised by declaratory judgement.

7. Liability

7.1 SNAP is liable for damage only if SNAP or one of its vicarious agents has breached a fundamental contractual obligation (cardinal obligation) in a manner endangering the contractual purpose or the damage is to be attributed to gross negligence or wilful intent of SNAP or one of its vicarious agents. If the culpable breach of a fundamental contractual obligation (cardinal obligation) is not carried out with gross negligence or wilful intent, the liability of SNAP is limited to the damage which was foreseeable within reason for SNAP on conclusion of the contract.

7.2 The liability of SNAP on account of warranted features, in case of injuries to persons, as well as on the basis of mandatory statutory provisions remains unaffected.

8. Data Protection, Security & Customer Obligations

8.1 SNAP collects, processes and uses personal data of a user without further consent only as far as it necessary for entering into the contract and processing as well as for accounting purposes. Further information is available online under data protection information.

8.2 SNAP expressly points out to the customer that data protection for data transfers in open networks such as the Internet cannot be completely guaranteed in accordance with the current state of technology. The customer himself is fully responsible for ensuring the security and the backing up of the data stored and transferred in SNAP by the customer. The customer has a special duty to exercise care in particular for the secure handling of the keys which are generated and reserved for encryption of the data on the customer’s computers.

8.3 Keywords and passwords must not be disclosed to third parties and are to be kept protected against access by third parties.

8.4 All communication within the SNAP solution between the client PCs is carried out exclusively encrypted and SNAP never has access or knowledge of data contents and communication participants within the shared spaces.

8.5 The regular data backups carried out by SNAP within the hosting services are used exclusively for the maintenance and the operational readiness of the SNAP services and do not include any data backup of the customer data. Every customer is personally responsible for the backing up of his data within the shared spaces on his client. In particular the secure keys for access to the personal data are located exclusively in the client and cannot be recovered. Relevant information for backing up data is contained in the user manual.

8.6 The customer has in particular the duty not to carry out or allow the carrying out of unlawful acts using the SNAP software and services.

8.7 In the event of a cancellation of the contract, a termination effected or a delay in payment of more than 20 days, SNAP has the right to bring all data cached on the hosting servers for the customer to an automatic deletion process after 45 days.

9. Place of Jurisdiction, Applicable Law, Changes of the General Terms and Conditions of Business

9.1 Should individual provisions of these General Terms and Conditions of Business be or become invalid, this shall not affect the validity of the remaining provisions.

9.2 The sole place of jurisdiction for all disputes arising from this contract is Hamburg if the customer is a businessman, a legal person under public law, a special fund under public law or is without a place of jurisdiction in the Federal Republic of Germany. SNAP shall additionally be entitled to institute legal proceedings against the customer at his general place of jurisdiction. The contracts concluded by SNAP on the basis of these General Terms and Conditions of Business and the claims ensuing from them irrespective of the type shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the provisions on the uniform UN law on the international sale of movable objects (CISG).

Position as August 2011, © SNAP, 2011