§1 Definitions
(1) The terms quoted and defined in paragraph 1 of §1 shall always have the meaning given below when used in the chapters of these Terms of Use, whether in the singular or plural.
| Term | Meaning |
|---|---|
| SaaS product | are the websites, web applications, mobile applications and other products and services offered to users by cyberphinix Online. |
| Platform | The entirety of all SaaS products from cyberphinix. |
| Subscriber | is a visitor who has a customer account with cyberphinix. |
| Customer | is a subscriber who rents products and services from cyberphinix. |
| Users | are visitors, guests, subscribers and customers |
| cyberphinix | stands for the operator, who is listed in the imprint. |
§2 Subject matter of the contract / type and scope of the service
(1) The contractual agreement relates to the provision, customization and use of the SaaS products offered by cyberphinix. These contractual conditions apply to the use of the provider’s software in accordance with the current product descriptions.
(2) Cyberphinix offers the further development of SaaS products in the form of product and technology maintenance automatically and free of charge. New functions and features are made available to the customer and can be purchased at additional cost if they are not included in the selected offer.
(3) These contractual terms and conditions shall apply exclusively. Any contractual terms and conditions of the customer shall not apply unless an exception/addition has been explicitly discussed. The customer’s objection that its own terms and conditions apply is expressly rejected.
(4) cyberphinix always provides the software in the latest version. The customer will be informed at least one week before the update. The software is only updated between 10 p.m. and 6 a.m. and only if this is reasonable for the customer. cyberphinix is not liable for ensuring that the software is available during the update process.
(5) The subject of the contract is the provision of software by cyberphinix by means of access to the data center used by cyberphinix via the Internet.
(6) cyberphinix provides the user with the use of all software at the router output of the data center (“transfer point”) operated by cyberphinix. The scope of the individual services is set out in the current description of the SaaS products at the time the contract is concluded. The software remains on the cyberphinix server at all times. cyberphinix is not responsible for guaranteeing the data connection between the transition point and the customer’s IT systems. It is the customer’s responsibility to create the technical conditions for receiving and using the software at the transfer point.
(7) cyberphinix is entitled to make adjustments to the SaaS products insofar as this is reasonable taking into account the interests of the customer.
(8) cyberphinix reserves the right to modify its services insofar as this is reasonable taking into account the interests of the customer.
(9) In order to ensure the security, availability and resilience of the SaaS products, cyberphinix reserves the right to make adjustments to the SaaS products, including updates and upgrades, insofar as this is reasonable taking into account the interests of the customer.
(10) Services such as the creation of individual solutions or special adaptations to the SaaS products are not automatically included in the contract and require a separate agreement.
(11) Should disruptions occur, the contracting parties undertake to inform each other of the relevant disruptions and to rectify the causes of the disruptions in their own area without delay. Each party shall bear the costs of remedying the disruptions caused by it or for which it is responsible.
(12) The implementation/integration of cyberphinix’s SaaS products into the customer’s own website, applications or other programs and the verification of functionality within the framework of a test system as well as the maintenance of the integration are the sole responsibility of the customer. cyberphinix offers optional support for this after separate commissioning.
§4 Fees and terms of payment
(1) Please refer to the current cyberphinix price list for prices and fees depending on the software and usage.
(2) The fees are payable monthly and annually and are to be paid in advance for the duration of the contract, unless a shorter billing period has been agreed.
(3) Even after termination of the contract, the customer remains obliged to pay the fees incurred during the term of the contract, which depend on usage.
(4) All invoices are made available to the customer in electronic form by e-mail and in the customer portal. Should the customer wish to receive an invoice by post, cyberphinix reserves the right to charge a fee for this in the amount of the shipping costs incurred.
(5) cyberphinix has the right to change the prices at the beginning of the next contract period with a reasonable notice period of at least one month. If the customer does not object to the price change within a reasonable period set by cyberphinix, the price change is deemed to have been approved. In the announcement of the price adjustment cyberphinix points out to the customer that the price adjustment will take effect if the customer does not object.
(6) If the customer delays payment of a due fee by more than four weeks, cyberphinix has the right to block access to the corresponding SaaS products after four prior reminders and expiry of the deadline. This blocking does not affect cyberphinix’s entitlement to remuneration. After payment of the arrears, access will be reactivated immediately. The right to block access also exists as a milder measure if cyberphinix has a right to extraordinary termination in accordance with Section 10 Paragraph 2.
§5 Rights of use
(1) The customer receives the non-exclusive, non-transferable and non-sublicensable right to use the SaaS products for the term of the contract. The contractual use includes access to the SaaS products via telecommunications (via the Internet) and the use of a browser for the functionalities of the SaaS products.
(2) The customer is obliged to use the software exclusively within the agreed scope of use and any use beyond the agreed scope is prohibited.
(3) The customer is not entitled to pass on the SaaS products or parts thereof to third parties. In particular, the customer may not sell, lend, rent or otherwise sublicense the SaaS products or parts thereof. Excluded from this are those parts of the SaaS Products that must be made publicly accessible as part of the scope of services of the SaaS Products.
(4) The customer shall not receive any further rights of use, in particular to the software or middleware itself or the infrastructure services in the respective data center.
(5) cyberphinix grants the customer the right to use cyberphinix’s SaaS products on the domains and their subdomains listed below:
- cyberphinix.de
- marketplace.cyberphinix.de
§6 Support
(1) A support case occurs if the SaaS products are not able to fulfill the functions agreed in accordance with the product description. The type and nature of the error message and the scope of the support services are based on the order form.
(2) If the customer reports a support case, he is obliged to provide as detailed a description as possible of the respective malfunction in order to enable efficient troubleshooting.
(3) The parties have the option of entering into a separate agreement regarding the provision of support, maintenance and care services.
(4) During the term of the SaaS contract cyberphinix will provide the customer with support services for the SaaS products in accordance with Section 5 (5) in the form of e-mail support (support@cyberphinix.de) in accordance with the following conditions:
(i) Full support to resolve and work around errors, in particular acceptance and documentation of e-mails, prioritization according to urgency, analysis and containment of the error.
(ii) cyberphinix will provide the support services during business hours from Monday to Friday between 08:00 and 17:00 in cyberphinix’s time zone. The service hours do not apply on public holidays in Germany.
(5) Consulting and support services which go beyond the pure support services, in particular in connection with the functions of cyberphinix, as well as configuration and training services are not included in the scope of support services. However, at the customer’s request cyberphinix can offer a separate agreement for this.
§7 Obligations of the customer to cooperate
(1) It is the customer’s responsibility to take appropriate measures to protect the access authorizations and identification and authentication information assigned to him or the users authorized by him from access by third parties and not to pass them on to unauthorized persons.
(2) The customer is obliged to support cyberphinix in the provision of the SaaS products and in particular to provide all necessary information, records and other documents required for the respective SaaS products.
(3) The customer is obliged to indemnify cyberphinix against all claims by third parties which arise as a result of legal infringements caused by the unlawful use of the SaaS products by the customer or with the customer’s approval. Should the customer or should he recognize that such an infringement is imminent, he is obliged to inform cyberphinix immediately.
(4) The customer undertakes to use a state-of-the-art virus protection program and in particular to check data for viruses before sending it to cyberphinix in order to avoid a possible threat to cyberphinix’s IT systems.
(5) The customer is obliged to comply with the applicable laws of the Federal Republic of Germany and to adhere to the rules and regulations laid down therein. He is also obliged to provide the publicly accessible areas of the SaaS products with a provider identification (imprint) that complies with the legal requirements and thus meets the requirements for transparency and traceability of the provider identity.
(6) Defects in cyberphinix’s SaaS products must always be described in detail, in particular stating the symptoms and effects of the defect and any other relevant circumstances. This enables precise reproducibility of the defect and thus effective troubleshooting by cyberphinix. Where necessary, the customer shall support cyberphinix free of charge in the diagnosis and rectification of defects within reasonable limits by providing the necessary information and support.
(7) The customer bears full responsibility for the content which it distributes via cyberphinix’s SaaS products. He must ensure that the data he makes accessible does not infringe the rights of third parties, in particular industrial property rights or personal rights. The customer is fully liable for ensuring that the data provided, entered or fed in by him complies with the applicable laws and regulations, in particular in the area of competition law, trademark law, naming rights and copyright law. Furthermore, the customer undertakes not to make any content available or to feed or enter any content into the SaaS products that violates applicable law or morality, in particular no content that is pornographic, glorifies violence, is discriminatory or harmful to minors or endangers public order and security. This also applies to content that is made accessible via hyperlinks set up by the customer to third-party websites.
(8) The customer is solely responsible for the proper and regular backup of his data, as well as any documents provided to the customer by cyberphinix in the course of processing the contract. It is recommended to make regular back-up copies of the data and documents in order to be able to access a backup copy in the event of data loss or data damage.
(9) In order to use cyberphinix’s SaaS products, the system requirements specified in the product description and the order form must be fulfilled by the customer. It is the sole responsibility of the customer to ensure that the necessary technical requirements are met in order to be able to use the SaaS products properly.
(10) The customer is responsible for the integration of cyberphinix’s SaaS products into its website, applications or other programs, as well as for checking the functionality as part of a test system and maintaining the integration, for example by using the API interface. Cyberphinix can optionally offer support with these tasks on request, but this requires a separate order.
§8 Data storage, data backup, data protection
(1) The parties undertake to carefully and conscientiously implement the relevant statutory provisions on the handling of personal data, in particular the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). Insofar as cyberphinix receives access to personal data of the customer or from one of the SaaS products, it will only act as a processor and will only process and use this data for the execution of the contract.
(2) In accordance with Article 28 of the EU General Data Protection Regulation (GDPR), the customer and cyberphinix shall enter into an agreement on order processing if the provider processes personal data on behalf of the customer.
(3) The customer remains responsible both generally in the contractual relationship and in terms of data protection. He undertakes to ensure that he processes personal data (including collection and use) in connection with the contract and the SaaS products in accordance with the applicable data protection provisions. In the event of a breach of these provisions, the customer shall indemnify cyberphinix against any third-party claims.
(4) cyberphinix regularly carries out a comprehensive daily backup of all the customer’s data and settings and stores this backup data for a period of one month. This serves as a disaster recovery measure, whereby data losses of no more than one day can occur.
(5) The customer is responsible for additional data backups and can either carry these out independently or agree them in a separate contract with cyberphinix.
§9 Warranty / Liability
(1) cyberphinix is not liable for damages of any kind. This exclusion of liability does not apply
(i) for damage caused by cyberphinix intentionally or through gross negligence;
(ii) in the event of slight negligence for damages resulting from injury to life, limb or health;
(iii) subject to the provision in paragraph 9.2 for damages resulting from a breach of material contractual obligations by cyberphinix. Material contractual obligations are all obligations whose fulfillment is essential for the proper performance of the SaaS contract and on whose fulfillment the customer may regularly rely.
(2) In the event of a negligent breach of essential contractual obligations, cyberphinix’s liability is limited to the foreseeable damage typical of the contract. This exclusion of liability does not apply to damages due to injury to life, body or health or to claims under the Product Liability Act.
(3) Claims for damages due to negligent breaches of duty by cyberphinix are excluded unless they are asserted in court within three months of the rejection of the claim by the customer or the customer’s insurer. Claims for damages due to negligent breaches of duty lapse within one year of knowledge of the claim, taking into account § 199 BGB and the exceptions in § 9 Para. 2 Sentence 2.
(4) The liability of cyberphinix in accordance with § 536a Para. 1 Alternative 1 BGB (German Civil Code) due to defects which already existed when the contract was concluded is excluded.
(5) cyberphinix is not liable for disruptions to telecommunication connections on line paths within the Internet, in the event of force majeure, the fault of third parties or the customer himself.
(6) If the customer is a merchant, a legal entity under public law or a special fund under public law, cyberphinix’s liability is limited, except in cases of intent and gross negligence, to the sum of the contractual fees which the customer has paid to cyberphinix for the period of the last 12 months prior to the occurrence of the damaging event within the framework of the specific contractual relationship.
(7) cyberphinix shall not be liable beyond the limitations of liability set out in these provisions.
§10 Term, termination
(1) The duration of the contract depends on the offers presented on the website.
(2) Both contracting parties reserve the right to extraordinary termination for good cause, taking into account the legal requirements. An important reason for cyberphinix exists in particular if the customer is more than two months in arrears of payment despite a reminder. If the customer is responsible for the reason for termination, he undertakes to pay cyberphinix the agreed remuneration up to the time of ordinary termination, less the expenses saved by cyberphinix.
(3) cyberphinix reserves the right to restrict, deactivate, revoke, change or delete a user account or access to the platform at any time and without prior notice if the user violates the terms of use. In the event of a suspension, revocation or deletion of the user account, the subscriber will no longer have access to the user account or associated content. In this context, the subscriber may also suffer the loss of login information and rights.
(4) Declarations of termination must be made in text form in order to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination. Notices of termination by fax or e-mail do not satisfy the written form requirement.
(5) cyberphinix can terminate a customer’s user account by giving fourteen (14) days’ notice to the e-mail address provided by the customer on the website https://cyberphinix.de.
(6) The customer has the option of canceling cyberphinix SaaS products that are subject to a charge at any time by writing to the e-mail address support@cyberphinix.de.
§11 Release, deletion of data
(1) In return for payment of an hourly fee, cyberphinix transfers the customer’s data in a suitable format to a third party of the customer’s choice.
(2) As long as the customer’s user account is not explicitly deleted, all his data will continue to be stored if he wishes to continue using the corresponding services.
(3) All customer data will only be deleted when the customer permanently deletes it via the settings in their user account. The deletion takes two (2) weeks, as cyberphinix grants the customer this period as a deadline. If the customer decides to reactivate their account before the 14 days have expired, they simply have to log in again with their e-mail address and password.
§12 Final provisions
The law of the Federal Republic of Germany shall apply.
