The General Terms and Conditions (GTCs) of Picalike GmbH Dating: October 6th, 2015
§ 1 Field of Application
(1) These General Terms and Conditions shall 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 shall regulate the use of Picalike products and services.
The Customer requires software applications and storage space for the completion of services (such as a visual similarity search) in order to store the generated Application Data.
Picalike offers the intermittent usage of such software applications on its computers as well as the possibility of storing Application Data in return for a payment/fee.
The Customer shall make use of the Picalike order form to order Picalike products and services. This order, together with the existing GTCs, establishes the contractual relationship between the Customer and Picalike (hereinafter “Contract”).
With this Contract, the parties agree that Picalike is thus making available to the Customer the options to use the necessary software applications for access via a telecommunications connection as well as a storage place for the respective Application Data.
(2) All deliveries, services and offers made by Picalike shall take place solely on the basis of these General Terms and Conditions and the order form.
(3) These General Terms and Conditions are a component of all contract that Picalike concludes with its contractual partners (hereinafter “Customers”) for the deliveries or services that Picalike offers. They also apply to all future deliveries, services or offers to Customers, even if these are not then negotiated separately.
(4) The Customer’s Terms and Conditions or those of a third party shall not be applicable, even if Picalike does not specifically contradict or contest their applicability in an individual case. Also, should Picalike refer to writing that contains the Customer’s Terms and Conditions or those of a third party, or refers to any such items of this nature, this does not signify any form of accordance with the validity of these Terms and Conditions.
(5) Picalike offers various services and performances. Individual offers may include supplementary conditions and license provisions that supersede the provisions of these General Terms and Conditions.
§ 2 Conclusion of Contract
(1) The Picalike offers are non-binding. The subject matter of the contract are the products and services offered by Picalike, as offered in the current product description at the time of the Customer order.
(2) When an order is made (which requires the acceptance of these General Terms and Conditions), the Customer is making a binding offer for the acquisition of the respective product or the respective service.
(3) The Contract with the Customer shall first be realized with the (written) acceptance by Picalike and/or with the activation of the Picalike services. Picalike is not obligated to accept contractual offers or orders.
(4) The Customer is obliged to make truthful specifications when signing the Contract and to ensure that the data remains up-to-date. Should this data be or become incorrect during the term of the Contract, the Customer shall update or correct the data in his/her Picalike account.
§ 3 Contractual Service
(1) Picalike provides various services for a temporally limited use period depending on the selection of the products. With this Picalike shall, as of the contractually negotiated start of that period, keep
i. the contractually negotiated software applications in the respectively current version available for use (as per the following regulations) on a central data processing system or several data processing systems (hereinafter “Server”).
ii. the data created by the Customer through the use of Picalike software and/or the data required to use the Picalike software (hereinafter “Application Data”) on a Server. (Both service points (i.) and (ii.) hereinafter “Picalike Services”).
(2) The subject matter of the contract consists of the Picalike Services as offered in the respective product description in the order form at the time of the Customer order.
(3) The Customer is aware of the essential functional characteristics of the Picalike Services and assumes the risk as to whether they correspond to his/her needs and wishes. In questions of doubt, the Customer must seek consultation from Picalike employees or a competent third party before Contract conclusion.
(4) Picalike shall provide the Customer with the negotiated number of user names and user passwords. All of the Customer user names and passwords are to be immediately changed into names and passwords known only to the Customer. Possible further security measures can be specially negotiated.
(5) If and inasmuch as a change in the functionalities of Picalike software, a change in the Customer work processes supported by the Picalike software, and/or a change in the restrictions in the usability of data generated to date actually accompanies the provision of a new version or an alteration, Picalike shall inform the Customer thereof in writing at least six weeks before such changes become effective. Should the Customer not object to the change in writing within two weeks of receiving the notification of change, the change shall become a part of the Contract. Picalike shall, with every notification of any possible changes, inform the Customer of the above-mentioned deadline and the legal consequences of an expiry if the option to contest is unused.
(6) For the Picalike Services, Picalike guarantees an annual average of 96 percent availability in its area of responsibility. Not included in this percentage are times in which the use of Picalike Services is interrupted as a result of compelling technical reasons or because of required maintenance work, without Picalike being held responsible for this, as explained in the conditions of this Contract. A guarantee in a legal sense is only granted by Picalike based on a written warranty agreement that uses the term “Guarantee”.
(7) The Customer is responsible for establishing the necessary technical requirements that fall within the responsibility of the Customer for the contractual use of the services. Picalike is not liable for providing any consultation in relation hereto to the Customer.
(8) The transfer point for the Picalike Service functions and the Application Data is the router output from the Picalike computation center or that of the commissioned third party.
§ 4 Granting of Rights
(1) Rights of Use of Picalike Software
a) Included in the Picalike software, the Customer receives the simple usage rights (not sublicensable and non-transferrable) limited to the duration & conditions of this Contract as per the following regulations.
b) The Customer is not authorized to make alterations to Picalike software. This does not apply to changes that are required for the rectification of substantial errors as long as Picalike should be in default with the rectification of said error(s), refuses to rectify the error, or should not be in a situation where it can rectify the error due to insolvency proceedings.
c) Should Picalike undertake new versions, updates, upgrades or other new deliveries with respect to the Picalike software during the Contract term, the rights mentioned above shall apply to them as well.
d) Rights mentioned above that are not explicitly granted to the Customer shall not be available to the Customer. The Customer is most especially not authorized to use the Picalike software above and beyond the negotiated 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, sell it, or temporally make it available to the general public. Most especially the renting or lending of the Picalike software is not permitted.
(2) Customer Obligations for Secure Usage
a) The Customer shall undertake the necessary measures to prevent the Picalike software being used by unauthorized parties.
b) The Customer ensures that he/she shall not store any content on the storage space included in the subject matter of this Contract or place such contents online the provision, publication, and use of which breaches criminal law, copyrights, trademark and other labeling or personal rights.
(3) Customer Breach of the Conditions as per Sections (1) and (2)
a) Should the Customer breach the regulations in sections (1) or (2) for reasons that he/she are deemed responsible for, Picalike is permitted to block the Customer’s access to the Picalike Services or the Application Data if this breach can be verifiably discontinued by doing so. In this case, the Customer shall release Picalike of claims from and hold harmless against third parties that arise due to such an unlawful application of the Picalike software and/or the Application Data or that result from data protection-related, copyright-related or other legal disputes for which the Customer is responsible and which are connected with the use of the Picalike software and/or the Application Data.
b) Should the Customer legally breach section (2), part (b), Picalike is authorized to delete the data or Application Data that is affected by this. In the case of an unlawful breach by the user, the Customer must immediately provide Picalike, upon request, all specifications necessary to enforce the claims against the user, particularly the name and address of the user.
Should the Customer, despite corresponding written warnings from Picalike, continually or repeatedly breach the provisions in Section (1) or (2), and should the Customer be responsible for this, Picalike is permitted to terminate the contract without notice.
(4) Customer Rights to emerging Databases and Database Systems
a) In as far and as much as a database or databases should emerge during the duration of this Contract, especially 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 shall belong to the Customer (hereinafter “Contents Protected by Law”). The Customer shall remain the proprietor of the databases or database systems even after the Contract expires.
b) The Customer grants Picalike a non-exclusive right to copy (multiply) the protected contents for the purposes of this Contract onto the Server, on another Server that serves as a mirror site, and onto a sufficient number of back-up copies limited to the Contract term. This can be done in a limited, non-transferrable manner on the site of the respective Server (for back-up copies, on the site where these are safeguarded).
c) For a period limited to the duration of the Contract, the Customer grants Picalike the nontransferrable, worldwide, non-exclusive right to make the Contents Protected by Law available to the general public – via the network maintained by the service provider and the Internet linked to it – in a manner such that the members having public access shall indeed be able to access the website from a location and at a time of their choosing and shall be able to save and store this data by downloading it from the service provider’s Server. Should protected contents from third parties be kept in the cache memory after the Contract expires, this storage shall no longer be ascribed to Picalike.
§ 5 Remuneration
(1) The remuneration for the Picalike Services consists of the combination of use-dependent remunerations and minimum expected remuneration as per the order form. A package deal is also possible. The usage of the Picalike Services is determined according to the so-termed server calls or packages.
(2) The use-dependent fees shall be settled ‘after the fact’ and packages at the beginning of a month on a monthly basis. The use-dependent remuneration as well as any separate form of remuneration shall fall due 14 calendar days after an invoice is received.
(3) Picalike is authorized to extend the minimum/package fee negotiated in the Picalike orders, even if the Server call is reached. The respectively negotiated minimum/package fee accumulates for every begun calendar month as of the provision of the operational service. This fee is due 14 calendar days after an invoice is received.
(4) Picalike is authorized to increase the basic rates for the use-dependent or package remuneration in the first instance following expiry of the 12 months after Contract start with a written notification three months before the beginning of the month following that 12month period, inasmuch and to the extent that Picalike’s costs for the capability to perform the Contract properly have increased. The Customer has the right to cancel the contractual relationship, in writing, within two months after receipt of the notification. Picalike shall inform the Customer of this right of cancellation together with every written notification.
(5) Picalike is, in addition to the regulation above, still authorized to increase the basic/package rates for the use-dependent remuneration at any time with a written notification one month before the start of the month following that 12-month period, inasmuch and to the extent that the maximum number of the picture downloads specified in the order form is exceeded.
(6) Customer realizes that Picalike has to provide substantial infrastructure in order to cater customer needs and pay for the infrastructure in advance. In the event of continuous (more than 2 months) default in the payment of any invoices when due as provided in the contract, Picalike may demand and declare the entire contractual amount until end of contract immediately due and payable.
§ 6 Customer Duties and Obligations
The Customer shall fulfill all of the requirements and obligations negotiated as part of this agreement that are required for the processing of the Contract. The Customer shall in particular:
– ensure that he/she (for example, when providing texts/data of third parties on the provider’s Server) observes all of the rights of the third party with respect to the material being used.
– immediately inform Picalike of defects in contractual services. Should the Customer omit the timely notification for reasons he/she can be held responsible for, this poses a fault causation or contributory negligence. Should Picalike be unable to take remedial action in proper time due to the omission or dilatoriness in notification, the Customer is not authorized or permitted to assert claims for legal consequences. The Customer must explain that he/she cannot be held responsible for the failure to notify.
– make payment on time according to the negotiated remuneration.
– ensure that when he/she transfers data with the aid of the Picalike software for the creation of Application Data, he/she will regularly and correspondingly secure this data and its significance and create individual back-up copies to allow this data to be recreated in cases where the data and information should be lost.
– regularly secure the Application Data stored on the Server via downloading.
§ 7 Responsibility for Defects and other Service Disruptions
(1) When transferring the storage space onto the Server, Picalike precludes all possible strict or regardless of blame attributed liability for initial faults of the Server. That being said, later objections based on manifest and concealed defects are excluded.
(2) Liability for interruptions, disturbances or other damage-causing events that are based on telecommunication services from Picalike or third parties that Picalike is liable for is limited to the amount of the recourse Picalike may have to the respective provider of the telecommunications services. Picalike is not liable for the functionality of the telephone lines for the Server covered by the Contract, for power outages and for Server failures that do not come under the Picalike’s sphere of influence.
(3) Picalike is liable for damages, irrespective of their legal grounds, only if Picalike culpably breaches an essential contractual obligation (Cardinal Obligations) in a manner that endangers the purpose of the Contract or if the damage is the result of willful or gross negligence.
(4) The limitation of liability shall also apply if the damage is the fault of an auxiliary to Picalike.
(5) Should the breaching of an essential contractual obligation (Cardinal Obligation) not be deemed the result of intent or gross negligence, then the liability of the provider is limited to such typical damages or the extent of one such typical damage that, at the point in time the Contract is concluded, were reasonably foreseeable, however, to no more than 250 EUR per damage event and 500 EUR in total for all damage events arising from the Contract.
(6) Taking exception to contributory negligence shall remain open to Picalike. The Customer in particular has the obligation to secure data and to prevent viruses at a level in line with the latest state of technology.
(7) In the event of death, physical injury or impaired health and for claims under the German Product Liability Act, the statutory law shall apply exclusively.
§ 8 Nondisclosure
(1) The contractual partners hereby commit to treat in confidence all of the subject matter given or made known to them before or during the Contract term from the respective other contractual partner (for example, software, documents, information) that are legally protected or which possess business or operational secrets or are deemed confidential, as well as the content of the order form (price, etc.), even that above and beyond the conclusion of the Contract, unless such objects are already in the public domain without breach of this duty. The contracting parties shall store and secure these materials in such a way that third parties are unable to access them.
(2) The Customer shall only make the contractual subject matter available to employees or other third parties that require such access to perform their official tasks. The Customer shall inform these parties of the confidential status of the subject matter.
(3) Picalike processes the data required for business transactions with the Customer in compliance with data protection legislation and guidelines.
§ 9 Contract Period, Cancellation
(1) The contractual relationship begins with the realization of the Contract and shall, should nothing to the contrary be stipulated in the order form, be agreed to for a term of 12 months. The services shall be rendered as of the contractually agreed point in time.
(2) The Contract shall then in each case be renewed for an additional Contract year, should it not be terminated in writing six months before expiration of a Contract year, or should one of the contractual parties be dismissed/terminated in writing. An e-mail does not apply as an applicable written format.
(3) In addition, the contractual relationship can, without prior notice, be terminated in writing by either party for what is deemed an important cause. An important cause is present in particular should the Customer not pay the remuneration or be in material breach of Article 4.
(4) Regardless of the regulation in stipulation 3, Picalike can terminate the Contract without prior notice if the Customer is in default with the payment of the respective price or of a significant portion of the remuneration for two successive months, or with the payment of the remuneration in the amount equivalent to two months remuneration over a period longer than two months.
(5) The Customer is, with the legal expiration of the Contract, obligated to return to Picalike all data media with the Picalike software and to delete all copies of the Picalike software from his/her own data processing equipment and shall attest in writing that this has taken place.
§ 10 Force Majeure
Neither of the parties is obliged to fulfill the contractual obligations in the event of, and for the duration of, force majeure. The following circumstances in particular are to be understood as instances of force majeure:
• Fire/explosion(s)/flooding for which the contractual party is not responsible
• War, mutiny, blockades, embargos
• Labor disputes that last over six weeks and for which the contractual party cannot be held responsible.
• Internet-technical problems that cannot be influenced by a contractual party; this does not apply should the provider be offering the telecommunications service.
Each contracting party is obligated to inform the other party in the case of such an event of force majeure in written form.
§ 11 Final Provisions
(1) Solely the Substantive Law of Germany shall apply to the contractual relationship under the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) Attachments in their respectively valid versions are an integral component of this Contract.
(3) Picalike is authorized to require third parties to fulfill their contractual obligations.
(4) Incidental provisions not included under this contract and its appendices do not exist. Changes or additions to this agreement and the appendices must be made and submitted in written form. This also applies to any possible waiver of the written form requirement.
(5) Should any of the provisions of these General Terms and Conditions become ineffective, the validity of the remaining contractual contents shall remain hereby unaffected.
(6) If loopholes that have not been provided for by either Party become apparent in the Contract once it is implemented, or a regulation should, as stipulated by law or by mutual agreement, become legally ineffective with regards to Paragraph 4 of this contract, both parties are hereby obliged to fill, repair or replace these loopholes in a competent manner that is oriented towards the economic purposes of the Contract.
(7) Hamburg, Germany, shall serve as the exclusive place of jurisdiction, unless a norm should mandatorily designate another place of jurisdiction.