General terms and conditions
General terms and conditions of Experience Area Münsingen GmbH
Rev. Level 02/23/2016
1. SCOPE AND DEFINITIONS
1.1. These General Terms and Conditions apply to all contracts concluded with us under bytejail.com (including all sub-domains). Contrary contract provisions or contract provisions of customers deviating from our General Terms and Conditions are only valid and apply if we have expressly agreed to this.
1.2. In case of continuous obligations, we are entitled to change or amend these General Terms and Conditions insofar as a continuation under the terms of the existing contract is not a reasonable option for us. Especially legal or necessary changes due to changed conditions constitute reasons to consider a continuation under the terms of the existing contract unreasonable. Changes are allowed only insofar as they are appropriate and reasonable for the customer. The customer will be informed in writing (e.g., email, fax, letter) about the amended General Terms and Conditions by highlighting the changes, complying with a reasonable notice period prior to the changes becoming effective. If the customer does not object to the revisions within a period of 4 weeks after receipt of the revised General Terms and Conditions, they become part of the contract. If the customer objects to the revised General Terms and Conditions, we are entitled to an extraordinary termination valid at the time the new General Terms and Conditions come into effect, if a continuation of the contract under the old terms and conditions is not reasonable for us.
1.3. Consumers in the sense of these General Terms and Conditions are all natural persons concluding a legal transaction for purposes that are for the most part neither an element of their commercial nor their independent employment activity.
1.4. Entrepreneurs as defined by the General Terms and Conditions are natural or legal persons or judicable partnerships who - upon conclusion of their contract with us - act within the scope of exercising their commercial or independent professional activity.
2. SUBJECT MATTER OF THE CONTRACT
Subject of the contract is the provision of the bytejail client software (hereinafter "bytejail client") and the Web application bytejail console (hereinafter "bytejail console") limited to the duration of the contract period, the provision of storage space on Internet accessible servers on which customers can operate virtual lockers (hereinafter "jail" or plural "jails"), and upload of data to the jail(s) of the customers in encrypted form using the technical tool bytejail client. Nature and scope of our services are resulting from the respective performance description of the service package chosen by customers.
3. OFFER AND CONCLUSION OF CONTRACT
3.1. Our offers are directed only at persons of legal age and with full legal capacity.
3.2. Our offers are not binding but represent an invitation for customers to submit an offer.
3.3. The order of a customer represents a binding offer to conclude a contract. We are entitled to accept this offer within two working days. The acceptance takes place by means of explicit declaration to the customer.
3.4. The automatically generated email following the order of the customer, which confirms the receipt of the order, does not yet represent a contract acceptance, but serves only to inform the customer and the fulfillment of legal obligations.
3.5. If not agreed otherwise, the contract period starts immediately upon conclusion of the contract.
4. PROVIDING SOFTWARE AND STORAGE SPACE
4.1. The bytejail software in its current version located exclusively on our servers is ready for download and installation by the customer . It is not possible to receive bytejail in a physical form on a data medium.
4.2. Customers are responsible for ensuring that their computer/mobile device meets the system requirements specified under https://bytejail.com/requirements.
4.3. We provide customers with the agreed amount of storage space during the contract period at the agreed upon scope and extent and allow customers to set up the agreed number of jails in this storage space and use the bytejail client to access these jails.
4.4. Any access data or licensing keys possibly required for the use of bytejail, the storage space, or for setting up/configuring jails are delivered by us to the customer at the beginning of the contract.
4.5 Customers use the bytejail clients to generate a cryptographically secure asymmetric key pair. Customers use two passwords (selected by the customers) as the basis for generating the key pair. The generated key pair consists of a public key and a private key. The public key is forwarded to us (manually by the customer via the bytejail console) after being generated. With the help of the public keys, we can provide the customer with jails, without knowledge of the password or private key. The passwords are not known to us and should be carefully safeguarded and saved by the customer. If the customer loses or forgets the passwords, these passwords and key pair created with them cannot be restored or recovered by us, which means the data to be decrypted with the key pair becomes inaccessible.
5. AVAILABILITY, MAINTENANCE, SYSTEM UPGRADES
5.1. The disk space with its jails is available 24/7 at the transfer point. Transfer point is the router output of the data center where the server with the storage space is located.
5.2. Availability as defined in Section 5.1 is restricted by times for scheduled maintenance on our systems.
5.3. Planned maintenance work consists of activities carried out for the purpose of technical adjustments, ensuring functionality and interoperability, technical developments, and other changes to the platform. We will inform customers about scheduled maintenance in a timely and suitable manner, including the nature, extent and duration of any restrictions.
5.4. In addition to planned maintenance, availability can be restricted by unplanned and unforeseen downtimes.
5.5. Unplanned and unforeseen downtimes are times when the storage space is not available die to unplanned and unforeseen events such as force majeure, technical system failures, system failures due to attacks on the system by third parties and system errors, which affect the continued operation of the system.
5.6. Not unforeseen or unplanned downtimes are those based on circumstances, which occur due to an intentional or grossly negligent breach of contractual or statutory obligations by us and lead to a nonavailability of the storage space.
5.7. We are entitled to further develop bytejail and related infrastructures, and to adapt either to legal requirements, general market standards, or the general technological development.
6. USAGE RIGHTS
6.1. Customers are granted a general, non-transferable, non sub-licensable usage right concerning bytejail limited to the duration of the contract period, which entitles them to install the bytejail client on their computer(s)/mobile device(s) and to use the software on this equipment to encrypt and decrypt data with bytejail and to upload and download this data to/from their jail(s). Furthermore, customers are granted a general, non-transferable, non sub-licensable usage right limited to the contract period for the bytejail console, which entitles them to use the bytejail console via their browser.
6.2. If we deploy new versions, updates, or upgrades for bytejail during the contract period, rights as per Section 6.1 apply to these as well as.
7. OBLIGATIONS OF THE CUSTOMER, DATA PROTECTION, EXEMPTION
7.1. Since data in the jails is encrypted and we do not have the private key of the customers needed for decryption, we have no way to view the data of the customer. This means we have no knowledge or any way to obtain knowledge about the data contained in the jails.
7.2. Customers are solely responsible for the data stored in their jails.
7.3. Customers declare that the data stored by them in their jail(s) does not violate any rights of third parties (especially industrial property rights, copyright and personality rights) and also does not violate in any way other applicable laws in the Federal Republic of Germany.
7.4. Customer will not use our offer to carry out illegal activities of any type or scope.
7.5. Customers must ensure that the data stored by them contains no malicious software, which can damage, diminish, or negatively affect our systems.
7.6. If customer data contains personal information, customers bear sole responsibility for the admissibility of storing such data in the jails on our servers as outlined by privacy and data protection laws.
7.7. Customers indemnify us from all claims by third parties upon first request including the costs of legal defense asserted against us due to customers violating Section 7.3., Section 7.4., Section 7.5., and/or Section 7.6.
8. PRICES, PAYMENT, DUE DATE AND ARREARS
8.1. The stated prices include applicable sales tax.
8.2. We accept only the payment methods listed within the scope of our offer.
8.3. Monthly payments are due by the 3rd of the month for the current month, quarterly payments by the 3rd of the first month of the quarter for the current quarter, and annual payments within the first 14 days of a year for the current year. Any other payments are not due until after receipt of the invoice or billing statement.
9. CONTRACT PERIOD, TERMINATION, CONSEQUENCES OF CONTRACT TERMINATION
9.1. The contract period is 3 months.
9.2. If we or the customer does not terminate the contract two weeks before the end of the contract period, the respective contract is extended each time for another 3 months.
9.3. The right of extraordinary termination remains unaffected.
9.4. Moreover, we are entitled in particular to an extraordinary termination without notice if:
9.4.1 the customer is in arrears more than 14 days with a payment and was reminded by us at least once,
9.4.2. the customer violates or is suspected of violating Section 7.3., Section 7.4., Section 7.5.
9.5. The termination notice must be in writing.
9.6. We are entitled to irrevocably delete the jails and their contained data in the storage space of customers upon termination of their contract. Customers are responsible for downloading and saving any data from the jails they wish to keep before termination of their contract. If the customer raises legal objections to a termination of the contract by us and asks us not to delete his or her jails along with the data, we will not delete the data until the final legal clarification; however, access by the customer will be blocked.
10. RIGHT OF RETENTION
Customers are entitled to exercise their right of retention only to the extent that their counterclaim is based on the same contractual relationship.
11.1. We are liable for gross negligence and intentionally committed breaches of duty. If the customer is an entrepreneur, our liability for gross negligence is limited to the damage typically foreseeable upon conclusion of the contract.
11.2. In case of minor negligence, we are liable only for breaching essential contractual obligations and our liability is limited to the damage typically foreseeable upon conclusion of the contract. We are not liable for any other damages caused by a fault or defect resulting in minor negligence.
11.3. Foregoing limitations do not apply in the event of damages to life, body or health. Any possible liability for pre-contractual fault or according to the product liability law also remains unaffected by these limitations of liability.
11.4. Regardless of any fault, we are liable only for fraudulent concealment of a defect or due to an issued warranty or guarantee. Our no-fault liability for damages (§ 536a BGB) for faults that exist at the conclusion of the contract is excluded.
11.5. Insofar as the liability for damages against us is excluded or limited, this applies also with regard to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.
12. FINAL PROVISIONS
12.1. The law of the Federal Republic of Germany applies under exclusion of the UN Sales Convention. If the customer is a consumer and is not domiciled in Germany, mandatory provisions of the country in which the consumer is domiciled are not affected by this law.
12.2. If the customer is a merchant, legal entity under public law or special fund under public law, the town of Münsingen is agreed as place of jurisdiction for all disputes arising from this contractual relationship.
12.3. If individual provisions of this contract - wholly or partially - become invalid, the effectiveness of the remaining clauses or parts of a clause thereof is not affected.