General Terms and Conditions of ProfitBricks GmbH
1. Scope, Power to Alter, Subject Matter of Contract, Change of Contractual Partner
1.1 The following General Terms and Conditions apply for all legal transactions and the Internet services stated in the Specification of Services of ProfitBricks GmbH, Greifswalder Straße 207 in 10405 Berlin, called “ProfitBricks” below, with the contractual partner, called “customer” below.
ProfitBricks will provide the customer with a flexible, virtualized infrastructure (Infrastructure as a Service - IaaS) on servers, storage devices or networks that are not for exclusive use by the customer, or via the Internet. The IT services will be provisioned and managed in real-time, and billed according to usage.
1.2 These Terms and Conditions are an integral part of each contract concluded. They also apply for the future business relations with the customer, without the necessity for express reference thereto.
In addition to these Terms and Conditions, the following regulations also apply:
- Terms of Service of ProfitBricks (TOS),
- Special conditions of ProfitBricks for certain services,
- Specifications of Services and Service Level Agreements (SLA).
1.3 Any deviating terms and conditions from the customer, as well as changes and supplements, are only valid if they have been recognized in writing by ProfitBricks. This also applies if the customer’s General Terms and Conditions have not been explicitly objected to.
1.4 The customer will be informed of changes to these Terms and Conditions by e-mail or in the customer area “ProfitBricks”. If no objections are made to changes within 10 days after the information has been received, the changes will be presumed to be accepted. In the event of changes to the Terms and Conditions, ProfitBricks shall specifically advise of the right to object and the legal consequences of remaining silent.
1.5 ProfitBricks can transfer its rights and/or obligations under the contract to one or more third parties (assumption of contract and/or debt, assignation). In the event of assumption of contract and/or debt, the customer is entitled to extraordinary termination of the contract.
2. ProfitBricks Virtual Data Center, Data Center Designer, API, Customer Registration
2.1. ProfitBricks enables customers to set up their own virtual data center (ProfitBricks Virtual Data Center - “ProfitBricks VDC”) using a graphical user interface (“Data Center Designer”) and the Application Programming Interface (“API”) provided, according to their own requirements.
The Data Center Designer can be freely accessed via ProfitBricks‘ home page. Customers can view and configure the assigned service components (CPU performance, cores, RAM, servers, storage, network speed, network ports, Internet connection [IT infrastructure]) flexibly. The same applies for the API provided.
Customers must be registered to store customer configurations and use services. The Terms of Service, which can be found at www.profitbricks.co.uk, regulate further details.
2.2 ProfitBricks must be notified immediately of all facts that are essential for the business relations, in particular any changes to names, address, offset account, the legal capability and associability of interest of the customer or the persons who are entitled to represent them, as well as powers of representation or disposition that have been notified. If the customer culpably omits to report any changes in its contractual data, it must bear the costs for determining the data required to execute the contractual relations. All changes can be made in the customer area under “ProfitBricks” (see Terms of Service).
3. Offer of Contract, Conclusion of Contract, Termination of Contract
3.1 The customer configures an IaaS solution (the ProfitBricks VDC) using the Data Center Designer. The customer issues an offer for the desired contractual services here (in terms of § 145 of the German Civil Code (BGB)). The customer can also apply for further offers, or contractual services, via the API provided.
3.2 The contract comes into force if ProfitBricks accepts the customer’s offer within 10 working days via e-mail without any reservations or commences with the performance of contractual obligations. In the latter case, the customer dispenses with the receipt of the letter of acceptance.
3.3 After issuing the first contractual offer, the customer receives a technical receipt of confirmation by e-mail. This confirmation of receipt of offer does not constitute a letter of acceptance in terms of 3.2.
Other notices essential to the contract are available to customers in the customer area under “ProfitBricks".
3.4 The customer’s specific service data is stored by ProfitBricks. It can be called up and changed under “ProfitBricks”. In addition, ProfitBricks’ customer service can also be contacted using a contact form (or via e-mail email@example.com or at +49 30 577 008 20), if the address or form of payment for orders need to be changed. Like the other entries in the login area, this is carried out via encrypted data transmission (TLS/ SSL - Transport Layer Security/ Secure Sockets Layer), for customer security.
3.5 Unless otherwise specified, ProfitBricks will provide the contractual services for the period of time requested by the customer (”on demand").
There is generally no minimum contract period. A contractual relationship for an unlimited period of time can be terminated at any time either by ProfitBricks or by the customer, without any reason being stated. The customer area “ProfitBricks” is primarily available to the customer for this purpose.
3.6 If the contract has been concluded for a particular period of time or if a minimum contract period has been agreed with the customer, the contract will be extended by the agreed time or minimum period, but for a maximum of 24 months if it is not terminated with a period of notice of four weeks before the respective expiry of the particular time period or expiry of the minimum contract period.
3.7 The right of both parties to termination without notice for good cause (§ 314 of the German Civil Code (BGB)) is not affected by this. Apart from the cases required by the Terms and Conditions and the supplementary regulations (Sections 1.5, 5.3 of the Terms and Conditions, Sections 2.7 and 3.7 of the TOS), good cause is constituted for ProfitBricks specifically if the customer
- is in default of payment by more than 30 days of the amount due or of a not inconsiderable part of this (at least €75.00), despite a reminder notice,
- contravenes significant provisions (such as 6.3, 7.2, 9.6, 10.1 of the Terms and Conditions; 3.5 of the TOS),
- despite a reminder notice, does not restructure its use of services within a reasonable period of time so that it satisfies the requirements regulated in 3.3, 3.4, 3.5, 4.1 of the TOS and 9.6 of the Terms and Conditions or
- if an application to open insolvency proceedings on the assets of the customer is made, or such an application is rejected due to lack of assets, enforcements against these have been unsuccessful, or enforcement measurements have been implemented and not annulled within one month (e.g. annulment of arrest).
3.8 Notice by the customer must be made in textual form (firstname.lastname@example.org) to become effective. In addition, the customer can terminate the contract in the customer area “ProfitBricks” in the event of 3.5. Application of § 545 of the German Civil Code (BGB) cannot be exercised. Termination by the customer in terms of § 543 Paragraph 2 Sentence 1 No.1 of the German Civil Code (BGB) due to failure to grant use in accordance with the contract is only admissible if ProfitBricks has been granted sufficient opportunity to eliminate defects and this has failed. Failure to rectify defects can only be assumed if this is not possible, if it has been refused by ProfitBricks or has been delayed in an unacceptable manner or if the situation becomes unacceptable to the customer for other reasons.
3.9 In the case of an agreed term and if the contract has been terminated due to a reason for which the customer is responsible, the customer is obliged, irrespective of the termination of the obligation to perform by ProfitBricks, to make the agreed payment by the next possible and proper date of termination; however the customer reserves the right to provide evidence that no damages or only very limited damages have been caused to ProfitBricks by the premature termination.
ProfitBricks‘ right to assert further claims is not affected by this.
3.10 If the content of individual provisions extends beyond the contractual term (such as indemnification clauses, liability limitations, copyrights, data protection) these provisions will remain in force after the end of the contractual period.
With the termination of the contract – irrespective of legal basis – the rights of use and licenses granted under the services provided by ProfitBricks or third parties no longer apply.
4. Provision of Services by ProfitBricks
4.1 ProfitBricks enables customers to have access to a flexible virtualized infrastructure (Infrastructure as a Service - IaaS) on servers, storage devices or networks that are not used exclusively for the customer and makes it available to the customer. The services are provided and managed in real-time, and charged according to use.
4.2 Irrespective of the rights of termination, ProfitBricks is entitled, according to 3.7, to discontinue the performance of contractual service obligations or of several contracts that are related in terms of time and subject matter, in part or completely, if the customer is in default of the payment of the charges due or of a not inconsiderable part of this (at least €75.00), by more than 30 days, despite a reminder, or if there are specific indications that the customer will soon become insolvent. In this case, ProfitBricks can demand payment or partial payment stage by stage in exchange for the performance of services, even if an obligation to pay in advance has been agreed by contract or is intended.
Further claims for compensation shall remain unaffected.
5. Prices and Payment
5.1 The payment owed by the customer is determined according to ProfitBricks’ prices valid at the time when the contract was concluded. Prices can be found on ProfitBricks‘ home page.
Usage-dependent prices are always subject to the statutory sales tax.
5.2 The following conditions apply for payment.
The fees will be charged on the last day of each month. However, ProfitBricks is entitled to send a separate bill if the current receivables exceed the usual (average) invoice amount of the previous months by 50% or more and/or exceed the threshold agreed with the customer, or if not otherwise agreed, exceed a balance in the amount of €500.00.
ProfitBricks provides an electronic invoice in the customer service area (“ProfitBricks”) and/or via e-mail. If the customer requests that the invoice be sent by post, ProfitBricks is entitled to charge an amount of €2.56 per invoice
Payment of the fees can only be made by direct debit for customers located in the Federal Republic of Germany and by credit card for customers located abroad. The customer shall grant ProfitBricks the right to draw incurred payments from the specified account. The customer must reimburse all costs that are incurred by a returned direct debit or by non-executable payment transactions, unless the customer has taken all due care, or the damage would have occurred anyway despite all due care being taken.
All payments are due and payable upon receipt of invoice, unless ProfitBricks specifies a payment deadline in the invoice. The customer will be in arrears of payment in accordance with § 286 Paragraph 2 No. 1 and 2 of the German Civil Code (BGB) without the need for a further reminder if payment is not made within 10 days after receipt of the invoice or within the payment deadline specified in the invoice or within a payment deadline otherwise agreed, with the consequence that interest on arrears in the amount of 9% above the basic interest rate will be due, in accordance with § 288 Paragraph 2 of the German Civil Code (BGB).
If the customer falls into arrears with payments, ProfitBricks will charge a dunning fee for each reminder (of at least €3). ProfitBricks reserves the right to claim for further damages caused by delayed payment.
5.3 ProfitBricks is further entitled to adjust the fees once per quarter at the most, exercising equitable discretion (according to § 315 of the German Civil Code (BGB), in particular if the costs of licensor have increased). The customer must consent to the price increase, if the increase is more than 5%. Consent shall be deemed to be provided if the customer does not object to the price increase within 10 days after receipt of the notification of the change. If the customer objects to the change within the time limit, ProfitBricks is entitled to terminate the contract. ProfitBricks is obliged to indicate the consequences of the failure to object and the objection itself to the customer in the notification of change.
6. Infringement of Property Rights/Indemnity Claims
6.1 If a third party raises a claim in the Federal Republic of Germany against the customer on account of infringement of commercial property rights or of copyright through the use of services owed by ProfitBricks and the use of such is thereby impaired or prohibited, the following provisions will apply.
6.2 ProfitBricks will at its own discretion and own expense either amend or replace the agreed services such that the property rights are not infringed, but essentially fulfill the agreed services in a manner that is reasonable for the customer or that will indemnify the customer against license fees with respect to the owner of the property rights or the third party.
6.3 Preconditional for the liability of ProfitBricks in accordance with Section 6.2 is that the customer informs ProfitBricks immediately about the claims asserted by the third party, does not admit to the alleged infringement of property rights and consigns all disputes including any out-of-court settlements to ProfitBricks or conducts these only with the agreement of ProfitBricks. If the customer discontinues the use on the grounds of damage limitation or for other important reasons, the customer is obliged to inform the third party that such discontinuation is not coupled with admission to the alleged infringement of property rights.
6.4 Inasmuch as the customer is to blame for the infringement of the property rights, the claim of the third party is based on the fact that without the knowledge of ProfitBricks the service content owed by ProfitBricks was altered, revised in some other way and not used with services provided by ProfitBricks, claims against ProfitBricks are ruled out.
6.5 Where applicable, any binding liability laws and Sections 8.1 to 8.4 remain unaffected by the above.
7. License Agreements, Copyright and Rights of Use
7.1 If during the period of contract a customer of ProfitBricks receives a simple right of use of programs/software (licenses) and service components in accordance with contract, then, in addition to the license conditions of the individual manufacturers, the following conditions for use will apply. The license agreements with third parties can be supplied to the customer on request.
The term “program/software” includes the original program, all copies of this and parts of the program, even if these are associated with other programs. A program consists of machine-readable instructions, audiovisual content, documentation and/or the related licensing materials.
7.2 The customer must ensure that every person who uses programs/software services from ProfitBricks adheres to these regulations as well as to the license conditions of the individual manufacturers. The program/software may only be used within the framework of the chosen package.
7.3 If separate license fees are charged by ProfitBricks, such fees depend fundamentally on the frequency of use (for example, the number of users), the resources (for example processor size), the duration of use or a combination of these parameters.
7.4 The customer may perform data backups in accordance with accepted practice and produce the necessary backup copies of the programs. The customer is obliged to neither alter nor remove copyright notices of ProfitBricks or third parties. The customer is not entitled to use, copy, revise, transmit, convert into another form (in particular reverse engineer or decompile) or to translate in any other way – unless such conversion is indispensable and expressly provided for in law - the program/software and the services of ProfitBricks in any way other than as described in the conditions for use or license conditions. The customer is furthermore not entitled to copy, rent out, lease the program/software, to assign sublicenses or to make it available to third parties in any other way.
7.5 If ProfitBricks has provided the customer with a time-limited right of use for the program/software, or the right of use has ended owing to termination of the contract, the customer must upon request by ProfitBricks return or delete all programs/software as well as service components and any copies made thereof together with all related written documentation and other information unless the customer is required by law to keep these in long-term storage.
7.6 The services provided by ProfitBricks are protected by copyright or other property protection rights (including under trademark and trade name law) and may not be used for purposes alien to their contractually permitted use without prior written consent. If the customer is permitted to use graphic elements, pictures, texts, animations, design elements, the customer is given the right to use such content for the duration of the individual contractual relationship and in connection with the VDC of ProfitBricks.
7.7 ProfitBricks has no fundamental right to the use of data, application and information belonging to the customer. Rights and obligations arising from these are the exclusive responsibility of the customer (see Terms of Service/Conditions for Use). The customer will, however, give ProfitBricks a time-unlimited, non-exclusive right of use, free of license fees and covering all forms of use, of data/applications and other information if this is necessary for provision of the contractually agreed services.
7.8 For every case of culpable contravention against the obligations governed by Sections 7.2 to 7.7, and ruling out the assumption of connecting together consecutive infringements, the customer undertakes to pay ProfitBricks contractual damages of €5,100. Further claims for damages remain unaffected by this.
8.1 Regardless of the legal grounds, ProfitBricks is liable for damages or reimbursement of futile costs to the full amount only for damages to the customer caused by deliberate or grossly negligent acts, where express guarantees have been given and properties have been assured, in the case of damages arising out of harm to life, body or health, for claims arising out of product liability and in the case of regulations binding in law.
8.2 In the case of infringement of substantial contractual obligations (cardinal obligations) ProfitBricks accepts liability - notwithstanding the previous paragraph - limited to damages typical for the contract and reasonably foreseeable upon entering into the contract. Cardinal obligations are obligations, the fulfillment of which is essential to enable the contract to be conducted in a proper manner and the adherence to which the contractual partner can normally rely upon.
8.3 Damages foreseeable and typical for the contract are damages in the amount of the average annual turnover of the customer with ProfitBricks (if the contract is of shorter duration, this is to be calculated on the basis of a monthly twelfth part - or a daily equivalent thirtieth part - of the turnover parameters).
8.4 Otherwise, ProfitBricks is liable each year up to the amount of the annual turnover of the customer with ProfitBricks (if the contractual relationship is shorter, this shall be determined using the monthly 1/12 – if necessary same-day 1/30 – turnover parameters). Where applicable, any binding liability laws remain unaffected by this.
8.5 Assured properties and guarantees are solely those which have been expressly specified as such. If the assured properties are not or only partially fulfilled, the customer has a right initially to supplementary performance by ProfitBricks. If the supplementary performance is not or only partially successful, the customer may demand an appropriate reduction of the fees.
8.6 Notwithstanding the cases identified in Sections 8.1 to 8.4, ProfitBricks is not liable for loss of profit, indirect damage, consequential damage and claims by third parties with the exception of claims resulting from the violation of property rights of third parties or faults which arise in connection with any changes to the services of ProfitBricks that have been undertaken or otherwise caused to be undertaken by the customer or with any other outside influences and which arise out of the areas of risk of the customer. It is the customer’s responsibility to provide evidence that any faults which occur have not been caused by a change in the system environment or by any other outside influence.
8.7 Notwithstanding the cases identified in Sections 8.1 to 8.4, ProfitBricks is not liable for claims from third parties which result from any breach of the customer (see 3.3 - 3.6 of the TOS). It is also not liable for statements contained in advertising regarding the products and services of the customer. The customer inasmuch indemnifies ProfitBricks against all claims made by third parties.
8.8 Regarding the loss of data or programs, and notwithstanding the cases identified in Sections 8.1 to 8.4 and notwithstanding the provisions of Section 4.1 of the TOC, ProfitBricks is only liable up to the amount of damage that would have occurred in the event of regular data backup. This limitation of liability also applies inasmuch as the loss results from the customer neglecting to make regular backups which may not be stored in the ProfitBricks VDC itself, thereby ensuring that lost data can be reinstated with reasonable effort.
8.9 For certain security-relevant data transmissions and connections, ProfitBricks employs encryption using TSL/SSL. In spite of this and considering the current state of technology, data communication via the Internet cannot be guaranteed to be error-free and/or available at all times. Notwithstanding the cases identified in Sections 8.1 to 8.4, liability for the permanent and continuous availability is therefore excluded.
8.10 Inasmuch as the liability of ProfitBricks towards the customer is limited or excluded, this applies correspondingly for the legal representative, employees, freelance employees and other agents of ProfitBricks.
9. Obligations of the Customer
9.1 In addition to the Terms of Service/Conditions for Use (available to view at www.profitbricks.co.uk), the following provisions also apply.
9.2 The customer confirms that the data communicated to ProfitBricks is correct and complete. Notwithstanding the provisions of 2.2, the customer is obliged to reconfirm within 14 days after receipt of a relevant request by ProfitBricks that the data is up-to-date.
9.3 The customer will give reasonable support to ProfitBricks to provide the services.
9.4 The customer must read messages from ProfitBricks which are in the customer’s mailbox or in the customer area (“ProfitBricks”) at regular intervals of a maximum of two weeks.
9.5 The customer undertakes to keep passwords received from ProfitBricks for the purpose of accessing its services strictly secret, to inform ProfitBricks immediately if the customer becomes aware that unauthorized third parties have knowledge of the password, and to change it or have it changed by ProfitBricks if there is reason to believe that it is known by unauthorized third parties.
Should third parties use services of ProfitBricks through misuse of passwords for which the customer is to blame, the customer is liable to ProfitBricks for, among other things, payment as well as any claims for losses arising from this.
9.6 The customer must not contravene legal prohibitions (trademarks, trade names, copyright, data protection - in this respect see also Section 3.5 of the TOS, etc.) through the measures initiated by the customer (content of the data center) in connection with the provision of services by ProfitBricks. In particular the customer undertakes not to provide pornographic content or provide or allow to be provided services for profit which are based on pornographic and/or erotic content (e.g. naked pictures, peepshows, etc.). The customer must not enter its website into search engines visible to the public where the website is associated with the services provided by ProfitBricks if the customer through the use of key words in such entries contravenes legal prohibitions, moral standards or the rights of third parties. This also applies if such content is made available through hyperlinks or other connections placed by the customer in web pages of third parties.
10. Secrecy/Data Protection
10.1 The customer and ProfitBricks mutually undertake to treat as confidential without time limits all confidential information and trade secrets of the other contractual party which are made available to the other party through preparation and performance of the contract, to use such information and trade secrets only within the context of the agreed purpose and to observe the applicable provisions of data protection and data security.
10.2 All personal data communicated (such as title, name, address, date of birth, e-mail address, telephone number, telefax number, bank account details) will be collected, processed and used only in accordance with applicable data protection regulations.
10.3 Inasmuch as personal data is required for the foundation, definition of content or amendment of the contractual relationship (fixed data), this will be used only for processing the contracts entered into. Any further use of the fixed data required by the contract, for example for advertising or market research purposes requires the express permission of the customer. It is possible to grant permission before affirming registration or utilizing the services. This permission is given voluntarily and can be withdrawn at any time.
10.4 Personal data which is required to enable the offered services to be used and invoiced (traffic/usage data) will be used to process the contracts entered into. Such traffic data includes, in particular, the characteristics needed to identify the customer as a user and information on the start and end as well as the volume of the individual services used. User-related traffic data can also be used for the purpose of advertising and market research, for customization of ProfitBricks services to meet demands and to produce user profiles using pseudonyms, provided that the customer has given permission for such use. The customer is entitled to oppose this use of the data at any time.
10.5 ProfitBricks makes the customer expressly aware that, with the current state of technology, protection of data transmitted over open networks, such as the Internet, cannot be fully guaranteed. The customer is aware that ProfitBricks is, from a technical perspective, able to view at any time the ProfitBricks VDC and possibly also further customer data stored there. It is also possible that third parties are technically able to breach the network security without authorization and to view the data traffic. The customer is responsible to the full extent for the protection and backup of data transmitted by the customer and stored in the ProfitBricks VDC
10.6 The customer is aware that the provision of services might be order data processing in accordance with §§ 11, 9 of the German Federal Data Protection Act (BDSG). In this respect the customer is the “responsible authority” for observance of the regulations of the BDSG and other regulations on data protection (see § 3 Paragraph 7 of the BDSG). ProfitBricks also declares that the technical and organizational measures in accordance with § 9 together with the Annex to § 9 of the BDSG are observed on their merits.
10.7 The customer vouches for the collection, processing and use of personal data in accordance with the requirements of data protection law and, in case of infringement, indemnifies ProfitBricks against third-party claims.
ProfitBricks will forward complaints and requests for information, corrections, deletions and blocking to the customer (particularly relating to § 6 of the BDSG). If the customer ascertains that particular types of personal data which it has stored (§ 3 Paragraph 9 of the BDSG), personal data which is subject to professional secrecy, personal data which refers to punishable offences or civil penalties or the suspicion of punishable offences or civil penalties, or personal data concerning bank or credit card accounts have been illegally transmitted or have been made known in any other way to third parties, and the threat of a serious negative impact exists to the rights or the interests worthy of protection of the persons affected, the customer must notify this immediately to the responsible regulatory authority, to ProfitBricks and to the persons affected. (See § 42a of the BDSG).
10.8 If the customer wishes to receive further information or withdraw permission on the use of fixed data (address, name, etc.) or oppose the utilization of usage data, the e-mail address email@example.com and the telephone support line +49 30 577 008 20 are available in addition to the customer area.
11. Statute of Limitations
11.1 Claims based on deliberate acts or gross negligence on the part of ProfitBricks or a legal representative or vicarious agent of ProfitBricks as well as claims for damages arising out of harm to life, body or health due to a deliberate or negligent neglect of duty on the part of ProfitBricks, a legal representative or vicarious agent become time-barred in accordance with legal regulations.
11.2 For all other contractual or legal claims against ProfitBricks the statute of limitations is one year.
12. Final Provisions
12.1 Disclaimers by ProfitBricks, for example, raising a claim for contractual penalties, must be made in writing. Should ProfitBricks not insist on the full and/or partial adherence to or fulfillment of one of the conditions or provisions of these General Terms and Conditions as well as of the supplemental provisions, this is not to be understood as acceptance of the infringing act or waiver of any future application of the relevant condition, provision or option of the corresponding right or remedy.
12.2 The customer may offset payment claims of ProfitBricks against receivables only if these have been legally established or recognized by ProfitBricks. The exercise of retention rights must be based on the same contractual relationship.
12.3 Assignment or pledging of demands or rights of the customer against ProfitBricks is excluded without the agreement of ProfitBricks. The same applies to transfer of use (full or partial) to third parties.
12.4 The law of the Federal Republic of Germany applies exclusively, excluding private international law. The contract languages are German and English.
12.5 The place of fulfillment for all disputes arising from or in connection with this contract is the place of business of ProfitBricks. ProfitBricks is furthermore entitled to take proceedings against the customer at the customer’s normal place of jurisdiction. Any exclusive place of jurisdiction remains unaffected.
12.6 In case of a dispute resulting from the contractual relationship, ProfitBricks and the customer are entitled, before entering into legal proceedings, to conduct an arbitration process in accordance with the arbitration regulations of the responsible Arbitration Board for IT disputes of the Chamber of Industry and Commerce in the version valid at the time of commencing arbitration proceedings (should this not exist, then on the basis of the arbitration regulations of the Hamburg Arbitration Board for IT disputes). The purpose of the arbitration proceedings is to fully or partially settle the dispute temporarily or permanently.
12.7 Should individual provisions of these General Terms and Conditions as well as of the supplemental provisions be invalid, unenforceable or ineffective, also if these are later incorporated or covered by a codicil, this does not affect the validity of the other provisions. It is accepted that, inasmuch as this is legally permissible, a provision is agreed in place of the invalid, unenforceable or ineffective provision which corresponds most closely to the commercial intention in terms of the meaning and purpose of the invalid, unenforceable or ineffective provision. The same applies
- for unintentional gaps in the provisions; in this case a provision is accepted as agreed which corresponds most closely to that which in terms of the meaning and purpose of this contract would have been provided for had the parties had knowledge of the gap in the provisions; or
- if a provision is ineffective with regard to a period of time or an established practice.
Document version: 4.1
Last update: October 2016
Terms of Service
The services provided by ProfitBricks GmbH, Greifswalder Strasse 207, 10405 Berlin are conditional on the customer’s acceptance of the following Terms of Service.
Along with the supplementary General Terms and Conditions and the Service Level Agreements (SLA), these form the basis for the service provision of ProfitBricks as essential components of the contract. The contents of individual provisions can be amended at any time, particularly on the grounds of technical changes or changes in regulatory law.
The current version of the Terms of Service can be viewed on the website at www.profitbricks.co.uk.
1. ProfitBricks Virtual Data Center / Registration of Customers
1.1. ProfitBricks makes it possible for customers to design their own virtual data center (ProfitBricks Virtual Data Center - “ProfitBricks VDC”) using a graphical user interface (“Data Center Designer”) or with the supplied Application Programming Interface (“API").
The Data Center Designer is freely accessible through the ProfitBricks website. The assigned components (CPU performance, cores, RAM, servers, storage, network speed, network ports, Internet connection [IT infrastructure]) can be viewed and flexibly configured by the customer. The same applies for the supplied API.
To store customer configurations and service usage, the customer is required to register.
1.2 Registration (first registration) on the ProfitBricks VDC is free of charge.
There is no absolute entitlement to registration. Only corporate bodies and companies in terms of § 14 of the German Civil Code (BGB) are entitled to participate. ProfitBricks may demand the necessary legitimization documents from the customer.
For registration, the on-line registration form on the ProfitBricks website must be completed and sent. The information required for this purpose must be complete and truthful.
On registering, the customer must supply a chosen password for access to the customer area (“ProfitBricks”). The password should consist of an alphanumeric combination of letters and numbers of at least 8 characters. The customer is obliged – notwithstanding the provisions of Section 9.4 of the General Terms and Conditions - to keep the password secret for an unlimited period of time.
1.3 Apart from agreeing to the validity of the General Terms and Conditions, these Terms of Service and the data protection declaration, there are no further obligations attached to registration. The customer can delete or suspend registration in the customer area “ProfitBricks” at any time, provided that no contractual services have been ordered by the customer or are being provided by ProfitBricks at this point in time.
2. Services Provided by ProfitBricks/Limitations
2.1 ProfitBricks enables customers to access a flexible, virtualized infrastructure (see 1.1). If not otherwise specified, the performance data valid at the time when the contract is concluded applies and can be found on the ProfitBricks website or in the ProfitBricks VDC.
In order to maintain the security of the customer’s data center, firewalls and 24/7 monitoring by system administrators are available, among other things.
2.2 The availability guaranteed by ProfitBricks is regulated in the SLA. Exceptions to this are times in which accessibility cannot be upheld on the grounds of technical problems or other problems which are not under the influence of ProfitBricks (e.g. force majeure - see 2.7, culpable third parties and planned maintenance work).
ProfitBricks may temporarily prevent or restrict access to the services if this is required for the security of the network function, maintenance of network integrity, particularly to avoid serious interference in the network, the interoperability of services or by data protection laws.
ProfitBricks will carry out necessary maintenance work as far as possible during times of low usage. The duration of maintenance work should not exceed 4 hours each calendar quarter. If a temporary loss or limitation of service over a longer period is necessary, ProfitBricks will notify its customers of the type, extent and duration of the impairment at least 10 days in advance if this is objectively possible under the circumstances and the notification would not delay the elimination of any disruptions that have already occurred.
2.3 The customer is aware that the services of ProfitBricks are subject to change based on new technical developments and possible new legal and/or official regulations. Services to the customer (e.g. software) can therefore be adapted by ProfitBricks to the individual state of technical development. This only applies, however, inasmuch as that the fulfillment and provision of agreed services is not unreasonably impaired or made impossible and the adaptation is not unreasonable for the customer considering all circumstances or the customer’s rightful interests.
2.4 Within the framework of technical possibilities, applications used by ProfitBricks to provide the services will in every case be of the latest version supplied by the manufacturer, if this is not unreasonable for the customer (equivalent fulfillment of service characteristics). If not otherwise agreed, ProfitBricks will inform the customer before a change in version, thereby giving an appropriate period of notice.
2.5 Dates and deadlines for the provision of services are binding only if confirmed by ProfitBricks in writing and the customer has supplied ProfitBricks in good time with all information and documents necessary for providing the services, has paid any agreed deposits, issued all permits and clearances and has undertaken cooperative acts otherwise required. Agreed service deadlines begin with the provision of the agreed service. In the case of additional orders or enhancement of orders issued later, the deadlines will be correspondingly extended.
Should the customer fail to comply to a sufficient extent with obligations of notification or cooperation and thereby delay the implementation of contractually agreed services from ProfitBricks, the agreed service deadlines will be automatically extended by a reasonable length, by a maximum, however, of the duration of the delay.
2.6 If cooperative acts of the customer are required to bring about the availability / fitness for purpose of the services owed by ProfitBricks (for example the compilation and compatibility of server contents), then these services will not be owed by ProfitBricks. If support services are offered by ProfitBricks and the customer avails himself of these, then a separate agreement must be made.
2.7 Events which are unpredictable, unavoidable and which lie outside the scope of influence of ProfitBricks, and events for which ProfitBricks is not at fault, such as force majeure, war, natural disasters and labor disputes, release ProfitBricks from its obligations to provide services for the duration of the disturbance. The customer will be notified of the occurrence of the disturbance in an appropriate manner. If the end of the disturbance cannot be foreseen and it lasts for longer than one month, each party is entitled to give notice to terminate the agreement. This applies correspondingly if the circumstances mentioned arise at a subcontractor of ProfitBricks.
2.8 Insofar as ProfitBricks provides additional services free of charge (such as the Data Center Designer and the API), the customer has no entitlement to fulfillment of these services. ProfitBricks will inform the customer when free-of-charge services are to be discontinued.
2.9 In order to use software which ProfitBricks offers with a product free of charge, notwithstanding the provisions of Section 7 of the General Terms and Conditions, the customer must activate the software using the license key supplied by ProfitBricks. The license key can have a limited validity period within which the key must be used. After this time activation is no longer possible.
3. Obligations of the Customer / Use of the Services of ProfitBricks
3.1 The customer is aware that use of the ProfitBricks VDC with the Data Center Designer and/or API requires substantial prior knowledge of the administration of server systems (system administration).
3.2 ProfitBricks is not obliged to monitor the information transmitted and stored by the customer or to research into circumstances which would indicate an illegal activity. ProfitBricks has no regulatory means of determining the contents of the customer’s infrastructure and in particular no administrative access. It is a matter for the customer entirely to update and to technically monitor the operation software, applications and developments installed on its data center. Therefore the customer must obtain information on the availability of updates, upgrades, releases and new versions and perform the corresponding updates at its own expense and risk.
3.3 The customer is obliged to identify any Internet presence associated with the services of ProfitBricks as well as the related contents which are accessible to the public while observing the applicable regulations (particularly the obligation to display a site notice in accordance with § 5 of the Teleservices Act (TMG), § 55 of the Interstate Broadcasting Agreement (RStV) and the Regulation on Service Information Requirements (DL-InfoV). The customer indemnifies ProfitBricks against all claims in respect of infringement of the aforementioned obligations.
3.4 The customer undertakes not to send, or cause to be sent, e-mails containing advertising without the express agreement of each recipient (see, for example, § 7 Section 2 of the Law on Unfair Competition (UWG), § 28 of the Federal Data Protection Act (BDSG). This applies particularly when the relevant e-mails having identical content are distributed en masse (known as “spamming").
3.5 The customer furthermore undertakes not to use the resources provided by ProfitBricks for, among other things, the following acts, or to make this possible to third parties:
- Unauthorized spying on or accessing other computer systems (e.g. hacking, phishing, ARP spoofing, web spoofing);
- Blocking other computer systems by sending/forwarding data streams and/or e-mails or operating open mail relays (especially spam and mail bombing, stalking, mail spoofing);
- Searching for open access to computer systems (e.g. port scanning);
- Falsifying IP addresses (e.g. DNS, DHCP, IP/MAC and URL spoofing), mail and news headlines and the propagation of viruses, worms and Trojans, etc.;
- Utilizing servers for the provision of IRC (Internet Relay Chat, e.g. IRC servers, bots, bouncers), anonymization services (e.g. Tor, JAP, proxy server), streaming services, download services, P2P swapping) or linking;
- Interrupting or obstructing of communication services;
- Committing regulatory or criminal offences and
- Collecting, using and distributing right-wing and/or immoral content (such as pornography, extremism, copyright infringements, depiction of violence).
3.6 If the customer is subject to export restrictions within the framework of the services requested (particularly “dual use goods”, embargos), it is responsible for complying with the provisions of foreign trade legislation. After becoming aware of offences in this respect, ProfitBricks is not obliged to provide such contractual services.
3.7 Should the customer contravene one or more of the obligations mentioned (3.3 – 3.6, Section 9.6 of the General Terms and Conditions) or should a third party establish prima facie evidence for such a contravention, ProfitBricks is entitled to immediately suspend the provision of services for the duration of the infringement or the dispute with the third party. The customer will be informed – if possible in advance – of this. The suspension will be limited to certain services in accordance with the technical possibilities and commensurate to the occasion. It may only be maintained as long as the grounds for the suspension continue to exist.
If the customer continues with the contravention in spite of warnings and rebukes, and/or if the continuation of the contractual relationship is no longer reasonable for ProfitBricks, ProfitBricks may terminate the contract on important grounds. Further claims for damages remain unaffected by this.
3.8 The customer undertakes to indemnify ProfitBricks against all claims which arise in connection with the use of the individual services (particularly on account of possible infringements of license conditions in accordance with Section 7 of the General Terms and Conditions).
3.9 Should claims be made against the customer as a result of infringement of the aforementioned obligations, ProfitBricks must be informed of this immediately. For every case of contravention against one of the obligations in Sections 3.3 to 3.6, and ruling out the assumption of connecting together consecutive infringements, the customer promises to pay ProfitBricks contractual damages of €5,100. Further claims for damages remain unaffected by this.
3.10 The services of ProfitBricks do not release the customer from his obligation to adhere to the usual and recognized safety standards such as using regularly updated virus protection software, conducting a plausibility check on data received, performing data backups as well as regular changing of passwords and the usual access controls.
4. Data Protection and Backup
4.1 ProfitBricks will use appropriate technical solutions to guarantee data security. As complete protection is not possible, customers are recommended to use their own security measures in addition to the network and hardware security provided by ProfitBricks.
It must be pointed out to the customer that it is the customer’s responsibility to perform a backup of the data which has been changed by the customer or its vicarious agents or assistants after every working day, whereby data stored on the ProfitBricks servers may not be backed up on these servers. In particular, the customer must carry out a complete backup before each start of service provisioning by ProfitBricks or before the installation of hardware or software. The customer is otherwise obliged to carefully check that all programs/software as well as other service components are fault-free and suitable for use in its specific situation before commencing operative use. This applies also to programs/software which the customer receives from ProfitBricks (see also Section 7 of the General Terms and Conditions). The customer is expressly informed that even minor changes can influence the running ability of the entire system.
4.2 The customer is aware that the provision of services might be order data processing in accordance with §§ 11, 9 of the German Federal Data Protection Act (BDSG). In this respect the customer is the responsible authority for observance of the regulations of the BDSG and other regulations on data protection (see § 3 Section 7 of the BDSG). ProfitBricks also declares that the technical and organizational measures in accordance with § 9 together with the Annex to § 9 of the BDSG are observed on their merits.
4.3 The customer is responsible for archiving and deletion obligations (e.g. relating to commercial law and tax law). ProfitBricks is entitled to delete immediately the information transmitted and stored by the customer (contents of the customer’s infrastructure) after termination of the contractual relationship. If the deletion conflicts with legal or contractual obligations to retain the data, or if these require disproportionate expenditure or affect the best interests of the customer, data will be blocked instead of deleted.
Last update: October 2016
Service Level Agreements ProfitBricks (SLA)
1.1 As an essential part of the currently valid contractual relationship with the customer, these conditions (“SLA”) govern the conditions for the provision of services offered by ProfitBricks. The conditions are to be understood only as a contractually defined minimum content of the entitlements of the customer and supplement the provisions of the General Terms and Conditions as well as the Terms of Service (TOS) and the service specifications.
1.2 ProfitBricks can amend the SLA at any time without stating the reasons, also effective for an existing contractual relationship. ProfitBricks will inform the customer about changes 10 working days before they come into force.
2. System Components / Service Availability of the Services of ProfitBricks
2.1 During configuration of the hardware, system software and system-related software, particular attention was paid to the availability of the whole system and the performance from the customer’s perspective, based on the requirements of the customer. The further scalability of the computer systems is ensured.
2.2 ProfitBricks makes it possible for the customer to access a flexible and virtual infrastructure (Infrastructure as a Service – IaaS) on servers, storage devices or networks that are not for exclusive use by the customer, and makes these available to the customer. The services are provided in real-time, managed and charged according to use.
Unless otherwise specified, the performance data applicable at conclusion of the contract can be found on the ProfitBricks website or in the ProfitBricks VDC.
In order to maintain the security of the customer’s data center, firewalls and 24/7 monitoring by system administrators are available, among other things.
2.3 ProfitBricks guarantees an availability of the IT infrastructure of 99.95 % as an annual average. Excluded from this are times during which availability cannot be upheld on the grounds of technical or other problems which are not under the influence of ProfitBricks (including force majeure - see Section 2.7 of the TOS, culpable third parties and planned maintenance work, etc. in accordance with Section 2 of the TOS). This applies also if the customer makes demands on the system capacity provided in a manner contrary to the terms of contract.
2.4 ProfitBricks may temporarily prevent or restrict access to the services if this is required for the security of the network operation, maintenance of the network integrity, particularly to avoid serious interferences in the network, the interoperability of services and by data protection laws.
ProfitBricks will carry out necessary maintenance work as far as possible during times of low usage. The duration of maintenance work should not exceed 4 hours each calendar quarter. If a temporary loss or limitation of service over a longer period is necessary, ProfitBricks will notify its customers of the type, extent and duration of the impairment at least 10 days in advance if this is objectively possible under the circumstances and the notification would not delay the elimination of any disruptions that have already occurred. The restrictions mentioned above do not count as times of non-availability.
2.5 Qualified personnel (system administrators) are available to the customer at ProfitBricks, 24 hours a day, 365 days a year for troubleshooting problems.
They can be reached as follows:
- in the customer area under "ProfitBricks" under Support
- via e-mail: firstname.lastname@example.org and
- by phone at +49 30 577 008 20
A trained system administrator will contact the customer after receiving the fault report in order to solve the problem. Work to resolve the problem is carried out within the scope of the technical possibilities of ProfitBricks while taking into account the contractual obligations. There is no entitlement to have the problem resolved within a certain time.
2.6 If data transmission is impaired outside of the data networks operated by ProfitBricks, e.g. through line failure or interference at other providers or telecommunication suppliers, this does not constitute a problem to be resolved by ProfitBricks.
Likewise not applicable as times of non-availability are the periods in which ProfitBricks limits or blocks access to the individual products and/or services on the grounds of an acute threat to its data, hardware and/or software infrastructure or the data, hardware and/or software infrastructure of the customer though external hazards (e.g. viruses, Trojans), or because of a serious threat to the security of the network operation or the network integrity. When taking such a decision, ProfitBricks will respect as far as possible the rightful interests of the customer, inform the customer immediately about the measures taken and do everything that is reasonable to lift the access limitation or block without delay.
2.7 The responsibility of ProfitBricks for the components used for the provision of service ends at the data interfaces between the data center and the public data networks, or the data network of the customer where there is a direct connection to its data network on the basis of a contractual agreement.
3. Faults and Troubleshooting
3.1 ProfitBricks will remedy faults in the IT infrastructure required by the customer in accordance with the service specifications or in accordance with the following provisions.
3.2 The customer must check the services provided by ProfitBricks for obvious and recognizable faults without delay and, if found, inform ProfitBricks thereof (in terms of § 377 of the German Commercial Code (HGB)). The customer must notify faults which are not obvious as soon as possible after becoming aware of such. Furthermore, the customer must take the required measures which make it possible to identify and reproduce the fault or damage and its cause, or which simplify and speed up remedying the fault.
3.3 If services of ProfitBricks are deficient, ProfitBricks is obliged to carry out necessary remedial work (at least two attempts) within a reasonable period of time. If the remedial work should fail, the customer may demand a corresponding reduction in payment for the duration of the deficient service, notwithstanding any legal provisions.
If the deficiency in the service is caused by the use of software/programs or service components which ProfitBricks has purchased (or licensed) from a third party for the purpose of providing the service, the warranty rights of the customer are limited to the extent of the rights to which ProfitBricks is entitled over the third party. ProfitBricks is insofar as is possible entitled to assign these rights to the customer.
The customer is not entitled to remedy the fault itself and demand reimbursement of the necessary costs for this.
3.4 In the event of a fault in the network and/or another service, the customer must inform ProfitBricks immediately about the fault. After the responsible customer service department receives the fault report, a trained system administrator will contact the customer and ProfitBricks will implement measures within the scope of its technical possibilities to resolve the problem within a reasonable (or assured) period of time.
3.5 ProfitBricks accepts no responsibility for faults which can be attributed to unauthorized changes made by the customer, the customer’s personnel or other agents (third parties) or which have not been reported in good time in accordance with 3.2 and 3.4. If ProfitBricks in such a case eliminates the interference or remedies the fault, the associated costs must be reimbursed in accordance with the usual rates charged by ProfitBricks.
4. Exclusions to the Responsibility of ProfitBricks
The obligations assumed in the above SLA are also not applicable in the event of the following faults:
- Non-fulfillment of the SLAs caused by the customer or customer software;
- Faulty software/programs installed by the customer;
- Planned maintenance of which the customer was informed within the minimum notification period;
- Faults caused by the manufacturer in the standard software used upon which the ProfitBricks infrastructure is based (e.g. MS Windows Server) and/or hardware;
- Emergency maintenance;
- Force majeure.
Last update: October 2016
Microsoft Volume Licensing End User License Terms
Terms and Conditions regarding use of Microsoft Software
This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by ProfitBricks GmbH (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.
“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.
“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.
2. Ownership of products
The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. Use of Client Software
You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
4. Use of Redistribution Software
In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution Software”). You may use, copy and/or install the Redistribution Software only in accordance with the terns of your agreement with Customer and this document and/or your agreement with Customer.
You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. Limitations on Reverse Engineering, Decompilations and Disassembly
You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. No rental
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
9. No Warranties, Liabilities or Remedies by Microsoft
Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
10. Product Support
Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries
11. Not fault tolerant
The Products are not faulttolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
12. Export Restrictions
The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/
13. Liability for Breach
In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
14. Information Disclosure
You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.
Document version: 4.1
Last update: October 2016