1. Object and conclusion of contract
1.1. Parties and object of contract.
These General Terms and Conditions govern the legal relationship between us, Brabbler Secure Message and Data Exchange Aktiengesellschaft, Ria-Burkei-Straße 26, 81249 Munich/Germany (referred to hereinafter as "we" or "us") and our customers (referred to hereinafter as "you") as regards the provision of ginlo @work. ginlo @work is an online service for the secure, encrypted exchange of messages and other content for companies.
1.2. No consumers.
We do not provide ginlo @work for consumers but exclusively for the purposes of your commercial or self-employed vocational activity.
1.3. Provisions on contract conclusion.
Section 312i (1) Nos. 1, 2 and 3 of the German Civil Code and Section 312i (1 (2)) of the German Civil Code, that provide for certain information requirements and regulations governing the ordering process for electronic commerce contracts - as stipulated in Section 312i (2 (2)) of the German Civil Code - are waived.
2. Our services
2.1. Service content.
We provide the online service ginlo @work for you to use during the contract period. ginlo @work includes the following components:
a) "ginlo Team Manager", downloadable software for technical and user administration
b) "ginlo @work app", the app for the users to install and use on mobile or stationary devices
c) a "customer portal" for purchasing and managing the subscription, available at https://work.ginlo.net
d) "server services", the services provided using our servers for the encrypted storage of content and the provision of further technical services
The specific functional scope is derived from the software description at www.ginlo.net.
2.2. Scope of services.
Your right to use ginlo @work is limited to the contract period and the booked maximum number of users as well as the booked storage volume per user. If you want more than 200 users, please contact our support to conclude a key account agreement.
A "user" is a natural person who has been authorized by you via the ginlo Team Manager to use ginlo @work. Users shall be designated by name or with a pseudonym in the ginlo Team Manager (so-called "named user model"). Users can not only be your employees and freelancers, but also third parties. One ginlo @work user account may only be used by one natural person. Transfer to third parties or joint use by several persons is impermissible. Each user can install the ginlo @work app on up to 5 devices. The maximum number of users can be increased and reduced in accordance with numbers 9.4 and 9.5.
2.3. Changes to services.
We reserve the right to continue developing ginlo @work and to change it for good cause. Such cause particularly exists if the change is necessary due to (i) a necessary adaptation to a new legal situation or jurisdiction, (ii) a changed technical or legal framework (new encryption standards, operating system environment, changed terms of app store operators), or (iii) the protection of system security. We will not undertake any changes that unreasonably shift the contractual imbalance between us and you at your expense.
Unless otherwise agreed, we will provide free e-mail support for using ginlo @work. This support does not include setup services or general training. You can find out when and with which response times these support services will be provided by us on our website www.ginlo.net.
3. Rights of use to software
3.1. Right of use.
Unless otherwise agreed, we will provide you with the simple, i.e. non-exclusive, worldwide, non-transferable and non-sublicensable right, temporally limited to the period of this contract, to install, run and use the software of the ginlo Team Manager and the ginlo @work app (referred to hereinafter as "software") on your devices in accordance with these General Terms and Conditions and in connection with ginlo @work.
3.2. No rights to source code or editing.
The rights of use that are granted do not include any rights to the source code or rights to edit or decompile. Your statutory powers, particularly those in accordance with Section 69e of the German Copyright Act, remain unaffected.
3.3. No transfer to third parties. You are not entitled to transfer or provide the software to third parties, especially to sell or rent out ginlo @work.
3.4. Legal reservation.
Unless rights of use to the software have been expressly granted to you, all rights remain with us.
3.5. Third-party software/open source software and external web services.
4.1. Server services.
Our server services include the encrypted storage of your users' content (e.g. messages sent via ginlo @work and stored files) up to the agreed storage capacity. The server services also include further services that are required for the functional capability of ginlo @work such as sending and receiving messages, the synchronization of content, the establishment of encrypted connections, and the backup of keys.
We will provide you with the server services with a target availability of 99.0% in a calendar month during the operating time. The server services are considered to be available if all essential functions are available without significant, permanently extended response times. This availability refers to the services available behind our official IP addresses.
4.3. Operating time.
The operating time is 24/7. The operating time does not include maintenance work announced by us by e-mail (e.g. installation of updates or upgrades) of up to 4 hours per calendar month. We shall make every effort to schedule maintenance during the night (11.00 p.m.-5.00 a.m. CET) or at weekends. We shall notify you and the users about planned maintenance work in good time.
4.4. Service credits.
If the availability achieved falls below the target availability in a calendar month, you are entitled to service credits amounting to a certain percentage of the usage fee paid for the calendar month concerned, in accordance with the table below:
On request, we will provide you with a credit note for the service credits and reimburse you using the payment method you have selected.
4.5. No other entitlements.
According to the understanding and intent of the parties, falling below the target availability is not a deficiency in our service. As a unit, the regulations on availability and the service credits represent the description of our service and your consideration. Accordingly, there is no entitlement, other than the service credits, to reduction or compensation for damages, and no right to withdraw from or terminate the contract, if the target availability is not achieved.
5. Your duties and obligations
To use ginlo @work, you and the users shall have installed the latest version of the software.
5.2. Legal use.
You and the users may only use ginlo @work within the framework of the provisions of this contract and in accordance with the applicable legal provisions, and shall not violate any third-party rights during use. In particular, you are not permitted to use ginlo @work in connection with the preparation or performance of criminal acts, such as copyright violations. You shall comply with the applicable regulations for the protection of personal data and the confidentiality of electronic communication during use. You are responsible to us for the actions of your users.
5.3. Export control.
You shall not use ginlo @work in a country, or send, transfer or export it to a country or to a person, if this violates applicable export regulations, especially if this is prohibited in any way by the EU common foreign and security policy or the United States export law. By using ginlo @work, you confirm that you are not currently in such a country, do not reside there, and are not under the control of such a country. To this extent, you accept full responsibility for the use of ginlo @work.
6. Data protection and data security
The users' content in ginlo @work (e.g. messages, stored or shared files) shall be transmitted and stored in encrypted form. It can only be decrypted and read using the user's or the administrator's secret key. Content can also be decrypted by the content recipients. Encryption and decryption are carried out locally on the user's or recipient's device, not on our server (end-to-end encryption).
6.2. Data access.
We have no access to the passwords of administrators or users and therefore no way to decrypt your content and access it in plain text (so-called zero-knowledge approach). You are aware, and you accept, that your content stored in ginlo @work is no longer accessible in plain text and is thus practically "lost" if you can no longer decrypt your team key because you have forgotten the administrator password.
6.3. Unencrypted data.
Only specific data that you make public is unencrypted. Your company master data, which we need for contract processing and invoicing, and the user master data (e.g. e-mail address, stored name), which is required for user administration, are also visible to us.
6.4. Storage location.
All data is stored exclusively in Germany.
6.6. Commissioned-processing contract.
Insofar as we process personal data on your behalf and the provisions of the General Data Protection Regulation (EU) 2016/679 ("GDPR") apply to you, the provisions in accordance with the annex "Commissioned-processing contract for ginlo @work" will be applied as of 25 May 2018. This document is available at https://www.ginlo.net/en/legal/privacy
7. Claims for defects (warranty)
A defect can also be eliminated by means of instructions on eliminating or bypassing the effects of the defect (so-called workaround), insofar as any remaining impairment is reasonable for you.
7.2. Initial impossibility.
Insofar as our services are subject to rental law provisions, strict liability for initial defects in accordance with Section 536a (1), alt. 1 of the German Civil Code is excluded. Fault-based liability remains unaffected.
7.3. Statute of limitations.
Claims for defects and claims for service credits become statute-barred within twelve months. This does not apply in the case of claims for defects, insofar as we are legally liable by law (e.g. in the event of fraudulent intent, see number 8.1, sentence 2).
7.4. Legal regulation.
The legal regulations on liability for defects apply in all other regards subject to number 8.
7.5. Free transfer.
Insofar as we provide you with services free of charge (e.g. during a test phase or beta phase), the provisions governing lending primarily apply, i.e. in particular, our liability for defects is limited to fraudulent intent in accordance with Section 600 of the German Civil Code, liability in accordance with Section 599 of the German Civil Code is limited to intent and gross negligence, and the shortened statute of limitations of 6 months in accordance with Section 606 of the German Civil Code applies.
8. Limitation of liability
8.1. Exclusion in certain cases.
Within the framework of the legal provisions, we are only liable for damages insofar as these
a) have been caused intentionally or through gross negligence by us or
b) have been caused through slight negligence on our part and are attributable to material breaches of duty that jeopardize the achievement of the purpose of this contract, or the breach of duties whose fulfillment enables the proper execution of this contract in the first place and adherence to which you can rely on (cardinal obligation violation).
In all other regards, our liability is excluded irrespective of legal grounds, unless we are legally bound to accept liability, particularly for injury to the life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or according to the Product Liability Act. In case of doubt, warranties shall be construed as such only if they have been expressly designated as a "warranty".
8.2. Limitation in terms of amount.
In the case of number 8.1 sentence 1 letter b) (slightly negligent breach of cardinal obligations), we are only liable for the damage typically foreseeable for such a contract.
8.3. Free services.
In deviation from numbers 8.1 and 8.2, our liability is limited to intent and gross negligence for damage that was caused as part of the free provision of our services (e.g. server services during a test phase or beta phase).
8.4. Our employees and agents.
The liability limitations in 8.1 to 8.3 also apply to claims against our employees and agents.
9. Contract period and termination
9.1. Free test phase.
A free trial phase initially begins on conclusion of the contract (creation of a ginlo @work administrator account). No usage fees are incurred for the test phase. The contract ends automatically at the end of the test phase, unless you book a chargeable subscription during the test phase.
9.2. Paid subscription: monthly or yearly period.
You can book a paid subscription during the test phase and choose between different basic periods, e.g. monthly ("monthly subscription") or yearly ("yearly subscription"). The basic period starts immediately on the date on which the paid subscription is concluded.
9.3. Automatic extension and termination.
The contract is automatically extended at the end of the basic period by the same period ("extension period", i.e. by a further month or a further year), unless you or we terminate it. You can terminate the contract for a yearly subscription up to three weeks, or for a monthly subscription up to five days, before the basic or an extension period expires. You can conveniently terminate the contract online via the customer portal. If we terminate the contract, the notice period is uniformly three weeks.
9.4. Booking additional users.
You can increase the booked maximum number of users at any time via the customer portal, whereby a minimum purchase quantity of users may be specified depending on the basic period. In the case of a monthly period, the usage fee is increased as of the following month. In the case of an annual period, the additional usage fee for the current contract year is invoiced proportionately, whereby the current month is not invoiced.
9.5. Reduction of users.
You can reduce the booked maximum number of users at any time with effect from the end of the basic or extension period (contract month or contract year) with a notice period of two working days. To do so, contact our support.
9.6. Extraordinary termination.
The right of extraordinary termination remains unaffected.
10. Usage fee and payment
10.1. Usage fee.
You pay us a usage fee per booked user and per month for the provision of ginlo @work. No refund is forthcoming if you actually use fewer than the booked maximum number of users.
10.2. Payment methods.
You can pay using the payment methods offered during the purchase process. We can use an external service provider for payment processing; this is currently BS PAYONE GmbH in Frankfurt/Main.
10.3. Due date and collection.
The usage fee is immediately payable in full in advance at the beginning of the basic or an extension period (month or year). When paying by credit card, the booking is carried out immediately by us; for payment on account, the amount shall be paid within two weeks as of the invoice date.
10.4. Net prices.
All prices are net prices plus the respective, applicable value added tax.
Invoicing is carried out online by providing the invoice as a downloadable and printable PDF file in the customer portal or sending it by e-mail (online invoice). You are obliged to check your e-mails daily.
If you default on the payment of the usage fee, the following applies:
a) Default damage. If you default on a payment or a return debit note occurs, we reserve the right to claim the actual default damages (e.g. charge-back fees).
b) Deactivation. If you are in default, we reserve the right to deactivate your ginlo @work administrator account and the user accounts after corresponding, prior notification of at least 7 days, i.e. you can then no longer use ginlo @work or can only use it to a limited extent.
c) Termination. If you are in default and do not pay the usage fee after a further 7 days following a total of 2 reminders, we reserve the right to terminate the contract extraordinarily and/or to engage a collection agency. In the event of termination, you will have no further access to ginlo @work and the data stored therein.
11. Beta phase special conditions
If we provide you with free services as part of a "beta phase", the following applies: The provided functionalities are still in the development and test stage and may contain errors. The availability and integrity of the data are not ensured. The services are made available to you exclusively for the purpose of testing them for errors and giving us feedback on the errors as well as suggestions for improvement. You should not use the services for productive use; in particular, you should not store any important, confidential, or personal data in them. We reserve the right to change the functionalities at any time or to terminate provision.
12. Final provisions
We can send all information and explanations relating to this contract to the e-mail address specified in the administrator account. You ensure that e-mails arriving there are read on a daily basis.
You can only set off claims other than your contractual counterclaims from the respective legal transaction or assert a right of retention if this claim is undisputed by us or has been legally established.
12.3. Written form.
Changes to this contract shall be made in written form (e.g. e-mail). This also applies to any waiver of the written form requirement.
12.4. Changes to the General Terms and Conditions.
We are entitled to change these General Terms and Conditions. We will inform you about the planned change and the content of the new General Terms and Conditions by e-mail at least 6 weeks before they take effect. The change is regarded as approved if you do not object to us within 6 weeks of receiving this information. We will point out this effect of silence to you in the change notification. If you object to the change, the contract will continue subject to the existing conditions, and we reserve the right to terminate the contract at the end of the period.
12.5. Applicable law.
This contract and all disputes associated with it are subject to German law under the exclusion of the United Nations Sales Convention.
12.6. Contract language and interpretation.
The contract text is available in German and English. In the event of objections or ambiguities, the German version shall prevail. Legal terms in all language versions have the meaning according to the understanding of law in Germany in accordance with German law.
12.7. Place of jurisdiction.
If you are a merchant, corporate body under public law, or specialized agency under public law, the exclusive place of jurisdiction is Munich, Germany. We reserve the right to take legal action at your place of domicile.
12.8. Partial ineffectiveness.
Should any provision within this contract be or become ineffective or void, the validity of all remaining provisions herein shall in no way be affected. Version: 25 January 2018