Terms and Conditions
- “Customer” means any entity, company, firm, partnership or other group of individuals using the Services.
- “Fees” means the fees payable to rotize for the Services. Unless otherwise agreed, the Fees are the standard fees for the Services as set forth by rotize from time to time in rotize’s reasonable discretion.
- “Services” means the services provided by rotize to the Customer and/or the Customer’s Users, including without limitation the operation and use of the websites and services available under http://www.rotize.de and https://www.rotize.com.
- “Term” means the term of the Agreement as defined in Section 5 hereof.
- “User” means any person, employee, co-worker, agent, designee, administrator or other representative of the Customer who receives access to the Services.
Services / Obligations of rotize
- rotize will perform the Services in accordance with applicable laws in Germany and with a reasonable standard of care and in substantial compliance with the specifications provided by rotize. However, Customer agrees and understands that rotize cannot ensure a 24/7 availability of the Services and that the Services may need to be interrupted or modified e.g. for maintenance, repair or improvement purposes. In particular, rotize may modify and – if reasonably required – temporarily interrupt the Services in rotize’s reasonable discretion to improve the design, performance and quality of the Services.
- rotize shall duly inform Customer of any material changes or interruptions to the Services with reasonable advance notice if reasonably possible to rotize. Upon Customer’s request, rotize shall, on a pro rata basis, refund any Fees paid by Customer for periods where the Services are unavailable for more than 24 consecutive hours during working days for reasons under the reasonable control of rotize, which shall be Customer’s sole remedy for such Service interruptions.
- Any Services and other deliveries by rotize are provided ex works (Incoterms 2000). Any offers made by rotize are without engagement. Any agreed dates and other obligations of rotize are subject to timely delivery by rotize of its suppliers. Unless expressly confirmed by a managing director of rotize in writing, (i) any agreed dates do not constitute a fixed date transaction (Fixgeschäft), and (ii) rotize does not offer any guarantees (Sec. 443, 444 BGB).
- rotize will provide Customer with statistical information on the use of the Services by Customer’s Users. The level of detail and aggregation shall be in rotize’s reasonable sole discretion and in compliance with applicable laws. Customer is not entitled to request the disclosure of individual personal data sets of its Users. rotize is entitled to use statistical and aggregated usage information for the improvement of its Services, for maintenance and bug fixing purposes, and for marketing purposes.
- rotize will collect, use, process and transfer personal data of Customer and the Users with sensitivity and in accordance with applicable data protection laws. In particular, rotize will not disclose names or other personally identifiable information about individual Users in its marketing materials without such Users’ express consent. For the avoidance of doubt, rotize is, however, entitled to generally refer to the Customer in its customer reference lists (limited to Customer name, location and logo).
Fees and Payment
- rotize will issue monthly invoices unless otherwise agreed with the Customer and is entitled to request monthly advance payment. In any event, the Fees are due net (without any deductions) fourteen (14) calendar days from the date of rotize’s invoice.
- If the use of the Services by Customer and its Users exceeds the restrictions of the plan signed-up to by the Customer (including without limitation with respect to the permitted number of Users and the corporate nature of a Customer’s account), rotize is entitled to bill the Customer in accordance with the applicable Fees for the actual usage by Customer and its Users and will notify Customer accordingly.
- Unless expressly indicated otherwise, Fees quoted by rotize do not include the applicable statutory value-added tax which will be added to such Fees as required by applicable tax laws.
- To the extent not expressly agreed otherwise, place of performance for the Services and any other obligations under the Agreement is Frankfurt am Main, Germany.
- The Customer only has rights of set-off and retention if its alleged counterclaims have been finally adjudicated, are undisputed or have been acknowledged by us.
- Rotize is permitted to temporarily suspend the Services when Customer is in default of payment of Fees due or is otherwise in material breach of the Agreement. Any continuation of rotize providing the Services while Customer is in default may not be construed as a waiver of rotize’s rights and Customer’s obligations under the Agreement.
Obligations of Customer and Users
- Customer will, and will procure that the Users will, at all times
- not use the Services in an illegal manner or for an illegal, immoral, inappropriate, nonprofessional or unethical purpose, or with a false or misleading identity;
- not use the Services to publish, transmit, distribute or disseminate any information or material which infringes upon any third party rights including without limitation copyrights, trademark rights, trade secret rights or other intellectual or proprietary rights of third parties;
- not use the Services to publish, transmit, distribute or disseminate any information or material which is unlawful, threatening, harassing, indecent, abusive, defamatory, invasive, stalking, vulgar, obscene, or profane or which may lead to or encourage criminal, civil or administrative offenses or liability;
- use the Services for any advertising or solicitation purposes, or to collect, harvest or provide to third parties information or data about Customers and Users of the Services including personal data and usage information;
- use the Services solely in the normal course of its business for its internal professional business purposes (but in particular not for the provision of services to any third parties); and
- use unique passwords to access the Service (no passwords that are also used for other services, e.g. e-mail, online shopping or bank account passwords), and safely store, not provide to any other person and regularly change such passwords, and immediately notify rotize of any actual or suspected breach of security or unauthorized use of its account; and
- provide the Company with true and complete information as reasonably required by rotize for the performance of the Agreement and the Services, and under applicable laws.
- Customer will ensure that the number of Users does not exceed the maximum number of Users permitted under the Agreement, and that all User have an age of at least 18 years or such higher age as defined as beginning of majority by applicable laws in the territory of the User.
- Customer will inform rotize of any change in its company name, registered address, billing information, majority shareholder or other material change to its business. Customer will keep accurate records of all Users that include at least name, date of birth and residential address of each User, and will provide rotize with access to such information without undue delay upon request if rotize has reasonable reason to believe that the respective User has materially breached the terms of the Agreement.
- Customer guarantees and ensures that Customer and its Users are permitted to provide rotize with the data (including without limitation personal data) that are provided to rotize in connection with, or for the purposes of, the performance or administration of the Agreement or the Services.
Term and Termination
- Unless expressly agreed otherwise, the initial Term of the Agreement is one month from the beginning of the Services. The Term will be extended by additional one month periods unless rotize or Customer terminate the Agreement by giving two weeks prior written notice to the other party (electronic format is sufficient).
- The statutory right to terminate the Agreement for cause remains unaffected. Particularly, rotize is entitled to terminate the Agreement for cause without prior notice if an application for the commencement of insolvency proceedings over the assets of the Customer has been filed or if Customer is subject to any other insolvency measures.
License and Intellectual Property
- Customer and the Users shall not upload, post or otherwise make available on rotize’s websites or through the Services any materials protected by copyrights, trademark rights or other proprietary rights without the express permission of the owner of such rights and the burden of determining that any material is not protected by copyright rests with User. User shall be solely liable for any damage resulting from any infringement of copyrights, trademark rights or other proprietary rights, or any other harm resulting from such a submission.
- By submitting information, materials, feedback, error reports, suggestions and improvements to rotize or its websites, Customer and the Users, respectively, grant rotize a royalty-free, perpetual, irrevocable, transferable, sublicensable, non-exclusive worldwide right and license to use in any manner (whether known today or not), reproduce, create derivatives of, publish, translate and distribute such information, materials, feedback, error reports, suggestions and improvements (in whole or in part, or as part of other works).
In the events of force majeure, particularly in case of wars, terrorist acts, natural disasters, fire, flood, civil disorder, government orders, strikes, lock-outs, riots, delayed or improper supplies by upstream suppliers, disruptions in the internet networks or energy and raw material supply, extraordinary traffic and road conditions as well as other excusable interruptions of operations, rotize is entitled to defer the performance of the Services for the duration of the impediment plus a reasonable time to restore the Services, or, if an end of the impediment cannot be foreseen, to withdraw from the Agreement, in whole or in part, without any further obligations.
- Subject to Section 8.4, rotize is only liable for damages to the extent that the Customer’s claims are based on (i) intentional misconduct or gross negligence by rotize or it vicarious agents, or (ii) a culpable breach by rotize of a material contractual obligation (“Verletzung einer wesentlichen Vertragspflicht“). Subject to Section 8.4, the liability of rotize for any other claims for damages is excluded without regard to the legal nature of the asserted claim and whether based on tort, culpable conduct prior to conclusion of a contract, violations of contractual duties, claims for compensation for fruitless expenditures or other legal theory.
- Subject to Section 8.4, (i) any liability of rotize is limited to foreseeable, typically incurred damages, (ii) rotize is not responsible for lost data, lost business or lost profits, (iii) rotize is not liable for liquidated, indirect, special, consequential, punitive, exemplary or incidental damages, and (iv) the maximum liability of rotize is limited to the Fees paid by Customer for the Services affected by such liability.
- Subject to Section 8.4, in the case of a delay in performance, the liability of rotize is limited to a maximum amount of 10 % of the Fees paid for the Services affected by the delay.
- The limitations of liability contained in Sections 8.1, 8.2 and 8.3 do not apply in the case of (i) intentional misconduct or fraud by rotize, (ii) injury to life, limb or health, (iii) claims under the German Product Liability Act (ProdHaftG), (iv) claims under a guarantee (Sec. 443, 444 BGB), or (v) in case of any other mandatory liability under German law.
- Except in the case of intentional misconduct or fraud, injury to life, limb or health, claims under the Product Liability Act or if other mandatory statutory provisions require a longer period of time, all claims by the Customer for damages are time barred one year after the statutory limitations period commences.
- To the extent that the liability of rotize is excluded or restricted under this Section 8, the same limitation or exclusion also applies with regard to the liability of rotize’s directors, employees, shareholders, affiliates, representatives and vicarious agents.