§ 1 Scope of Application
(1) These General Terms and Conditions apply to all contracts and service agreements between Picalike GmbH, represented by Managing Director Sebastian Kielmann, c/o betahaus, Eifflerstraße 43, 22769 Hamburg, Germany (hereinafter “Picalike”) and its customers and govern the use of Picalike products and services.
The customer requires software applications and storage space to perform services (such as a visual similarity search) to store the generated application data.
Picalike provides temporary use of such software applications on its computers and the ability to store application data for a payment/fee.
The customer uses the Picalike order form to order Picalike products and services. This order, together with the existing GTC, establishes the contractual relationship between the customer and Picalike (hereinafter “Contract”).
With this Contract, the parties agree that Picalike thereby enables the customer to use the necessary software applications for access via a telecommunication connection as well as a storage location for the respective application data.
(2) All deliveries, services and offers of Picalike are exclusively based on these General Terms and Conditions and the order form.
(3) These General Terms and Conditions are an integral part of all contracts concluded by Picalike with its contractual partners (hereinafter referred to as “Customers”) regarding the deliveries or services offered by Picalike. They also apply to all future deliveries, services or offers to customers, even if these are not negotiated separately.
(4) Terms and conditions of the customer or third parties shall not apply, even if Picalike does not expressly object to or contradict their applicability in individual cases. Should Picalike refer to a letter containing the terms and conditions of the customer or a third party, or refer to such items of this kind, this does not imply agreement with the validity of these terms and conditions.
(5) Picalike offers various services and benefits. Individual offers may contain supplementary conditions and license terms that replace the provisions of these General Terms and Conditions.
§ 2 Conclusion of Contract
(1) Picalike’s offers are subject to change. The subject matter of the contract are the products and services offered by Picalike as described in the product description current at the time of the customer’s order.
(2) When placing an order (which requires acceptance of these General Terms and Conditions), the customer makes a binding offer to purchase the respective product or service.
(3) The contract with the customer is only concluded upon (written) acceptance by Picalike and / or upon activation of the Picalike services. Picalike is not obligated to accept contractual offers or orders.
(4) The customer is obligated to provide truthful information upon conclusion of the contract and to ensure that the data is up-to-date. Should this data be or become incorrect during the term of the contract, the customer must update or correct the data in his Picalike account.
§ 3 Contractual Performance
(1) Picalike provides various services for a limited period of time depending on the selection of products. With this Picalike will retain from the contractually negotiated beginning of this period
i. the contractually negotiated software applications in the respective current version, which are available for use (in accordance with the following provisions) on a central data processing system or several data processing systems (hereinafter referred to as “Server”).
ii. the data created by the Customer using the Picalike Software and / or the data required for the use of the Picalike Software (hereinafter “Application Data”) on a Server. (Both service points (i.) And (ii.) Hereinafter “Picalike Services”).
(2) Subject matter of the contract are the Picalike Services as offered in the respective product description in the order form at the time of the customer’s order.
(3) The customer is aware of the essential functional features of the Picalike Services and assumes the risk as to whether these meet his needs and wishes. In cases of doubt, the customer must seek advice from Picalike employees or a competent third party before concluding the contract.
(4) Picalike shall inform the customer of the agreed number of user names and user passwords. All user names and passwords of the customer shall be changed immediately to names and passwords known only to the customer. Possible further security measures may be specially negotiated.
(5) If and to the extent that the functionalities of the Picalike Software change, a change in the Customer’s workflows supported by the Picalike Software and / or a change in the restrictions on the usability of the data generated to date actually goes hand in hand with the provision of In the event of a new version or change, Picalike will notify the Customer in writing at least six weeks before such changes come into effect. If the customer does not object to the change in writing within two weeks after receipt of the change notification, the change will become part of the contract. Picalike will inform the customer about the above-mentioned deadline and the legal consequences of an expiration in each notification of possible changes if the option to object is not used.
(6) Picalike guarantees for the Picalike Services an availability of 96 percent per year on average in its area of responsibility. This percentage does not include times when the use of Picalike Services is interrupted due to compelling technical reasons or due to necessary maintenance, without Picalike being held responsible, as explained in the terms of this Agreement. A warranty in the legal sense is provided by Picalike only on the basis of a written warranty agreement in which the term “warranty” is used.
(7) The Customer is responsible for determining the necessary technical requirements that are the Customer’s responsibility for the contractual use of the Services. Picalike shall not be liable for providing advice to the Customer in this regard.
(8) The handover point for the Picalike service functions and the application data is the router output of the Picalike data center or the commissioned third party.
§ 4 Granting of Rights
(1) Rights of Use to Picalike Software
a) The customer receives the simple rights of use (non-sublicensable and non-transferable) contained in the Picalike Software, which are limited to the duration and the terms of this contract according to the following provisions.
b) The customer is not entitled to make changes to the Picalike Software. This does not apply to changes necessary to correct material errors as long as Picalike is in default of correcting such error, refuses to correct the error or is not in a situation where the error can be corrected the error due to insolvency proceedings.
c) If Picalike makes any new versions, updates, upgrades or other new deliveries with respect to the Picalike Software during the term of the Agreement, the above rights shall also apply to them.
d) The aforementioned rights, which are not expressly granted to the customer, are not available to the customer. In particular, the customer is not entitled to use the Picalike Software beyond the agreed use or to allow third parties to use it or to make the Picalike Software available to third parties. It is also not permitted to make copies of the Picalike software, to sell it or to make it temporarily available to the public. In particular, renting or lending the Picalike software is not permitted.
(2) Obligations of the customer for safe use
a) The customer shall take the necessary measures to prevent the use of the Picalike Software by unauthorized persons.
b) The customer shall ensure that he does not store any content on the storage space contained in the subject matter of the contract or place such content online, the provision, publication and use of which violates criminal law, copyrights, trademarks and other designations or violates personal rights.
(3) Violation of the customer against the conditions according to paragraphs (1) and (2)
a) If the Customer violates the terms in paragraph (1) or (2) for reasons for which the Customer is responsible, Picalike is entitled to block the Customer’s access to the Picalike Services or the Application Data, if such violation is demonstrably discontinued thereby. In this case, the customer indemnifies Picalike against claims of third parties arising from such unlawful use of the Picalike software and / or the application data or from data protection, copyright or other legal disputes for which the customer is responsible and which are related to the use of the Picalike software and / or the application data.
b) Should the customer violate section (2), part (b), Picalike is entitled to delete the data or application data affected thereby. In the event of an unlawful violation by the user, the customer shall immediately provide Picalike upon request with all information necessary to enforce the claims against the user, in particular the name and address of the user.
If the customer repeatedly or repeatedly violates the provisions in paragraph 1 or 2 despite appropriate written warnings from Picalike and if the customer is responsible for this, Picalike is entitled to terminate the contract without notice.
(4) Customer Rights to Emerging Databases and Database Systems
a) If and to the extent that a database or databases should arise during the term of this contract, in particular through the compilation of application data and as a result of customer activities on the Picalike server, as permitted under this contract, all rights to these belong to the customer (hereinafter “legally protected content”). The customer remains the owner of the databases or database systems even after the end of the contract.
b) The Customer grants Picalike a non-exclusive right to copy (duplicate) the Protected Content for the purposes of this Agreement to the Server, to another server serving as a mirror site, and to a sufficient number of backup copies for the term of the Agreement. This may be done to a limited extent and in a non-transferable manner on the site of the relevant server (in the case of backup copies, on the site on which they are backed up).
c) The Customer grants Picalike, for a period limited to the term of the Contract, the non-transferable, worldwide, non-exclusive right to make the legally protected content available to the public – to be connected to it via the network maintained by the Service Provider and the Internet – in such a way that members with public access can actually access the website from a place and at a time of their choice and store and save this data by downloading it from the Service Provider’s server . If after the end of the contract protected content of third parties is stored in the cache, this storage is no longer attributed to Picalike.
§ 5 Remuneration
(1) The remuneration for the Picalike Services consists of a combination of usage-based remuneration and expected minimum remuneration according to the order form. A lump sum offer is also possible. The usage of the Picalike Services is based on the so-called server calls or packages.
(2) The usage-dependent fees are billed “in arrears” and packages are billed monthly at the beginning of the month. The usage-dependent fee as well as any separate fee are due 14 calendar days after receipt of the invoice.
(3) Picalike is entitled to extend the minimum / package fee agreed upon in the Picalike orders, even if the server call has been reached. The respective negotiated minimum / package fee is due for each commenced calendar month from the provision of the operative service. This fee is due 14 calendar days after receipt of invoice.
(4) Picalike is entitled to increase the principles for the usage-based fee or the package fee in the first instance after the expiration of the 12-month period after the start of the contract with a written notice three months before the beginning of the month following this 12-month period and to the extent that Picalike’s costs for the proper execution of the contract have increased. The customer has the right to terminate the contractual relationship in writing within two months after receipt of the notice. Picalike shall inform the customer of this right of cancellation with each written notice.
(5) Picalike is entitled, in addition to the above provision, to increase the basic / flat rates for the usage-dependent remuneration at any time with a written notice one month before the beginning of the month following this period of 12 months. if and to the extent that the maximum number of image downloads specified in the order form is exceeded.
(6) The Customer recognizes that Picalike must provide extensive infrastructure to meet the Customer’s needs and pay for the infrastructure in advance. In case of persistent (more than 2 months) delay in payment of invoices when due according to the contract, Picalike may declare and declare the entire contract amount due immediately until the end of the contract.
§ 6 Duties and obligations of the customer
The Customer shall comply with all requirements and obligations negotiated under this Agreement that are necessary for the execution of the Agreement. In particular, the customer shall:
– ensure that he / she (for example when providing third party texts / data on the Provider’s server) observes all third party rights with regard to the material used.
– inform Picalike immediately of any defects in the contractual services. If the customer fails to notify Picalike in a timely manner for reasons for which the customer is responsible, Picalike shall be deemed to be at fault or contributorily negligent. If Picalike is unable to remedy the situation in a timely manner due to the failure to notify or due diligence on the part of Picalike, the customer is not entitled or entitled to assert claims for legal consequences. The customer must declare that he cannot be held responsible for the failure to notify.
– make payment on time according to the negotiated remuneration.
– Ensure that when transferring data using the Picalike application data creation software, he / she regularly and appropriately backs up such data and its meaning and creates individual backup copies so that such data can be restored in cases where the data and information should be lost.
– Regularly back up the application data stored on the server by downloading it.
§ 7 Liability for defects and other performance problems
(1) When transferring the storage space to the server, Picalike excludes any possible strict liability for initial defects of the server. However, later complaints due to obvious and hidden defects are excluded.
(2) Liability for interruptions, malfunctions or other events causing damage, which are based on telecommunication services provided by Picalike or third parties for which Picalike is responsible, is limited to the extent of the recourse Picalike has to the respective provider of the telecommunication services. Picalike is not liable for the functionality of the telephone lines for the server covered by the contract, for power failures and for server failures that are beyond Picalike’s control.
(3) Picalike shall only be liable for damages, regardless of the legal reason, if Picalike culpably violates an essential contractual obligation (cardinal obligations) in a manner that endangers the purpose of the contract or if the damage is based on intent or gross negligence .
(4) The limitation of liability shall also apply if the damage is the fault of a vicarious agent of Picalike.
(5) If the breach of an essential contractual obligation (cardinal obligation) is not based on intent or gross negligence, the liability of the Provider shall be limited to such typical damage or the extent of such typical damage that was reasonably foreseeable at the time of the conclusion of the contract, however, not more than EUR 250 per damage event and a total of EUR 500 for all damage events resulting from the contract.
(6) Picalike reserves the right to make an exception for contributory negligence. In particular, the customer is obligated to back up data and prevent viruses at the latest state of the art.
(7) In case of death, bodily injury or health impairments as well as for claims according to the Product Liability Act, the statutory law shall apply exclusively.
§ 8 Secrecy
(1) The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) disclosed or made known to them by the other contracting party before or during the term of the contract which are protected by law or which contain business or trade secrets or are deemed to be confidential, as well as the contents of the order form (price, etc.), even after the conclusion of the contract, unless such items are already in the public domain without any breach of this obligation. The contracting parties shall store and secure such materials in such a way that third parties cannot access them.
(2) The Customer shall make the subject matter of the contract available only to employees or other third parties who require such access for the performance of their official duties. The Customer shall inform these parties about the confidentiality status of the Subject Matter.
(3) Picalike shall process the data required for business transactions with the customer in compliance with the provisions and guidelines of data protection law.
§ 9 Contractual term, termination
(1) The contractual relationship shall commence upon conclusion of the contract and shall be agreed for a period of 12 months, unless otherwise stated in the order form. The services shall be provided from the contractually agreed date.
(2) The contract shall be extended by a further contract year in each case if it is not terminated in writing six months before the end of a contract year or if one of the contracting parties gives written notice of termination. An e-mail shall not be considered a valid written format.
(3) In addition, the contractual relationship may be terminated in writing by either party for good cause without prior notice. An important reason exists in particular if the customer does not pay the remuneration or violates Article 4.
(4) Notwithstanding the provision in clause 3, Picalike may terminate the contract without prior notice if the customer is in default with the payment of the respective price or a substantial part of the remuneration for two consecutive months or with the payment of remuneration in the amount of two months remuneration for a period of more than two months.
(5) The Customer is obliged to return all data carriers containing the Picalike Software to Picalike upon expiration of the contract and to delete all copies of the Picalike Software from its own data processing equipment and to confirm this in writing that has taken place.
§ 10 Force Majeure
Neither party shall be obliged to perform its contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances are to be understood as cases of force majeure:
– fire / explosions / floods, for which the contracting party is not responsible
– war, mutiny, blockades, embargoes
– Labor disputes lasting longer than six weeks for which the contracting party cannot be held responsible.
– Internet technical problems that cannot be influenced by a contracting party; This does not apply if the provider offers the telecommunication service.
Each contracting party is obliged to inform the other party in writing in case of such force majeure event.
§ Section 11 Final Provisions
(1) The contractual relationship shall be governed exclusively by the substantive law of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) Annexes in their respective valid version are part of this contract.
(3) Picalike is entitled to demand performance of its contractual obligations from third parties.
(4) There are no collateral clauses which are not part of this Agreement and its Annexes. Amendments or supplements to this agreement and its appendices must be made in writing. This shall also apply to any waiver of the written form requirement.
(5) Should any provision of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions of the Agreement.
(6) Should any loopholes become apparent in the contract after its implementation which were not provided for by either party, or should any provision become legally ineffective in accordance with the law or by mutual agreement with regard to paragraph 4 of this contract, both parties are hereby obliged to fill, repair or replace such loopholes in a competent manner which is oriented towards the economic purposes of the contract.
(7) The exclusive place of jurisdiction shall be Hamburg, unless a norm mandatorily determines a different place of jurisdiction.