netcos GmbH (hereinafter “iHive”) provides products, software and services (hereinafter collectively “Services”) under *.ihive.de* and other top-level subdomains. By using these Services, the User agrees to be bound by these General Terms and Conditions (hereinafter “GTC”).
IHive reserves the right to modify the TOS at any time without prior notice. The latest version of the GTC can be viewed at http://ihive.de/agb.
Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected.
IHive retains all copyright and other rights in the Services. The user is not entitled to remove, cover or change legal notices (e.g. copyright or trademark notices). The user is not allowed to use iHive’s trademarks for own purposes – no matter what kind.
Violation of the provisions shall cause the User to forfeit its right to use the Services and shall entitle iHive to block the affected user account and/or access to the Services
These TOS constitute the entire agreement between the User and iHive and supersede all prior agreements under this title. There are no verbal ancillary agreements.
The scope of services and the current price list or license models of the applications can be found at www.iHive.de.
IHive provides the user with appropriate documentation for the software as online help.
After expiration of the contract term, the right to use the software expires.
Duties of the user:
The user undertakes to use the software as intended and to pay the agreed amounts in due time.
The user is further obliged in particular,
not to transmit any information with illegal or immoral content that incites racial hatred within the meaning of §130, §130a and §131 of the German Penal Code, glorifies or trivializes violence, is sexually offensive, is pornographic within the meaning of §184 of the German Penal Code, glorifies war or is likely to seriously endanger children or young people or impair their well-being. §184 of the German Criminal Code (StGB), glorify war, are likely to seriously endanger the morals of children or adolescents or impair their well-being, offend third parties, or damage the reputation of iHive or refer to offerings with such content.
To indemnify IHive from any third party claims arising from disputes related to name, trademark, copyright or other intellectual property rights associated with the claim, use or registration of a User’s own subdomain name page.
The User is obliged to keep the passwords received from iHive for the purpose of access and its services strictly confidential and to inform the Provider immediately as soon as he/she becomes aware that unauthorized third parties are aware of the password. If, due to the user’s fault, third parties use iHive’s services by misusing the passwords, the user is liable to iHive for usage fees and damages.
The user assures that the information provided by him is correct and complete. The customer undertakes to inform iHive without delay of any changes to the data provided, in particular the bank details.
The user is not entitled to rent or lease the iHive services or otherwise make them available for use by third parties for a fee.
Start, term and termination of the contract
The contract comes into force from the date noted on the user contract (contract start date) and has an indefinite term.
The contract can be terminated with a notice period of 8 calendar weeks to the end of the following month.
IHive may terminate this Agreement without notice in particular if
the user violates a contractual obligation,
insolvency proceedings are applied for or opened against the assets of the user,
the user is in default with the payment of the amount more than three months after the due date.
The right to extraordinary termination for other important reasons remains unaffected.
Ordinary and extraordinary termination must be in writing to be effective. Written form shall also be deemed to have been complied with by means of a fax.
After termination of the contractual relationship, the Provider shall no longer be obliged to provide the contractual services. At the earliest 30 days after the end of the contract, the provider may delete all user data on the server. The timely storage and backup of data is therefore the responsibility of the user.
IHive has the right to increase the monthly amount for the use of iHive at the earliest after a period of use of one year. The same applies to further increases. In the event of an increase in the amount, the user is entitled to terminate the contract with four weeks’ notice to the end of the month before the increase in the contribution becomes effective. IHive must announce a price increase at least 3 months before it takes effect.
The user-related iHive database is backed up by iHive daily at night and can only be restored in its entirety.
Warranties / Updates
IHive points out that according to the state of the art it is not possible to create software in such a way that it works error-free in all applications and under all conditions. IHive ensures that the performance meets the essential function descriptions. The user must report any defects that may occur in writing – logging any error messages that may have been displayed. Excluded from the warranty are defects caused by external influences, operating errors or changes, additions or other manipulations not carried out by iHive or on behalf of iHive, unless the user proves that this use was not the cause of the defect.
IHive ensures server uptime of 98.5% on an annual average. This does not include regular maintenance work and times when the server cannot be reached via the Internet due to technical or other problems beyond iHive’s control (force majeure, fault of third parties, etc.). IHive may restrict access to the Services if required by the security of the network operation, the maintenance of the network integrity, in particular the prevention of serious disturbances of the network, the software or stored data.
If the availability falls short of the above, a credit will be issued, staggered as follows:
Shortfall of 0.1 – 0.5% ? Credit of 10% of the regular monthly fee
Shortfall of 0.5 – 1% ? Credit of 75% of the regular monthly fee
If iHive does not succeed in eliminating an error within 20 working days and the user is not responsible for this error, the user has the right to terminate the contract without notice. Otherwise, the user’s right of termination for non-granting of use pursuant to. § 543 BGB excluded.
IHive will continue to develop the software and update it automatically and free of charge at regular intervals.
IHive shall inform the User in a timely manner about significant changes to the Software or the Service Package that affect the functionalities contractually agreed with the User.
IHive or a vicarious agent of iHive shall be liable for intent or gross negligence. In addition, iHive is liable up to the amount of the typically foreseeable damage, but limited to a maximum of one annual fee, also for such damage caused by iHive or the executive employees of iHive, in violation of an obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the user may regularly rely (essential contractual obligation/cardinal obligation).
This limitation of liability shall apply with regard to all claims for damages and irrespective of their legal basis, in particular also with regard to pre-contractual or ancillary contractual claims. However, it does not limit a legally binding liability under the Product Liability Act or a liability for warranted characteristics, insofar as the warranted characteristic was intended to protect the user from the damage that has occurred, nor does it limit the liability for culpable injury to life, limb or health. The strict liability of iHive for defects already existing at the time of conclusion of the contract according to § 536 BGB is expressly excluded.
Ancillary Agreements, Legal Effectiveness, Offsetting
Subsidiary agreements and amendments to the contract must be made in writing to be effective. This also applies to the written form requirement itself. Should any provision of this contract be or become invalid, this shall not affect the validity of the other provisions. The invalid or missing provision shall rather be replaced by an economically and legally equivalent provision. The same applies in the event of a loophole.
The assertion of a right of retention or the set-off with any counterclaims is excluded, unless these counterclaims have been legally established or expressly recognized by iHive.
Munich is agreed as the place of jurisdiction for all disputes in connection with this contract. German law shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).