apinity GmbH | Status: 12.09.2023
I. Subject Matter of the Contract, Changes
1.1. apinity GmbH, Streitfeldstr. 17, D-81547 Munich (“apinity”) provides a platform on https://apinity.io and via this platform offers various Software-as-a-Service products (all such products collectively called “apinity Software”). You may promote and/or distribute your services as provider or access such services offered by others as customer via the apinity Software. apinity offers access to the apinity Software only to persons which use it for commercial or independent professional purposes (in particular companies, individual entrepreneurs), not individuals.
2.2 If you do not object to these changes within thirty (30) days of receipt of the notification and continue to use the services after the end of the objection period, the changes shall be deemed to have been agreed upon as of the end of the period. In case of your objection, the contract will be continued under the previous conditions.
II. Registration, Login Credentials, Termination
3.2. The contact and other information requested by apinity during the registration process must be complete and correct and kept up to date during the period of the contract. If you are registering for a legal entity, you must be authorized to represent the entity and specify the nature of your authorization.
4. Responsibility for your Login Credentials
4.1. During the registration process, you will be asked to set your login credentials. It is your sole responsibility to ensure that your credentials do not infringe the rights of third parties (e.g., name rights, trademarks). You shall keep your login credentials and in particular the password secret.
4.2. It is your responsibility to ensure that your access to the apinity Software and the use of the services available via the apinity Software is exclusively carried out by you or by persons authorized by you. If there is reason to believe that unauthorized third parties have obtained or will obtain knowledge of your login credentials, apinity must be informed immediately.
5.1. You may terminate your access to the apinity Software for convenience at any time by unsubscribing from participation in the apinity Software. To do so, you must send a notice of termination to apinity via email@example.com. Likewise, apinity may terminate your access to the apinity Software for convenience at any time with one (1) week prior notice. Such termination must be notified to you via e-mail. Either party shall be entitled to terminate the access to the apinity Software for good cause (aus wichtigem Grund).
5.2. If fee-based services of apinity or third parties are used through the apinity Software, the termination of access by you shall only take effect at the time of termination of the last contract for fee-based services.
5.3. From the date the termination becomes effective, you may no longer access the apinity Software and use your account. Your login credentials will be blocked.
5.4. From the date the termination becomes effective, apinity shall not be obliged to store (or grant access to) any data or information relating to you (including but not limited to login credentials) after the relevant termination date pursuant to paragraphs 5.1. or 5.2. above.
III. Third Party Services provided via the apinity Software
6. General Principles
6.2. apinity may also promote, offer and provide its own services via the apinity Software like a third party provider. In this case, you may access and obtain these services by entering into a separate contractual relationship regarding such services with apinity. Paragraph 6.1. above shall apply mutatis mutandis.
6.3. The apinity Software does not comprise any specific data backup functionality for you (e.g. customer and provider), and corresponding functions and services are not included in apinity Software.
6.4. You may use the services available on the apinity Software only within the scope of the technical and operational capabilities of the apinity Software. apinity will use best efforts to facilitate that the apinity Software can be used as uninterrupted as possible whereas apinity shall in no event be held responsible for impairments or interruptions taking place outside the data center on which the apinity Software is operated. However, apinity is not able to secure an uninterrupted and continuous availability of the apinity Software. Temporary restrictions or interruptions may occur due to technical faults (such as interruption of the power supply, hardware and software faults, technical problems in the data lines) or maintenance works.
6.5. It is your responsibility to check and ensure that the IT systems and environment operated by you (e.g., hardware, software deployed in your business) meet the applicable technical and legal (in particular regulatory) requirements and do fulfill common web technology standards (e.g. commonly used and updated web browser). apinity shall not be obliged to advise you in this regard.
7. Services provided by apinity
7.1. To the extent apinity offers its own services on the apinity Software, apinity’s services are free of charge, except where it is explicitly stated that they must be obtained against payment.
7.3. All stated fees are understood to be net of the applicable statutory value added tax.
7.4. At apinity’s sole discretion, the invoice for the fee-based services used shall be submitted via e-mail or alternatively be made available for download in your personal area; this applies equally to services offered by apinity and services offered by third parties via the apinity Software.
8. Changes to Services and APIs
8.1. apinity is entitled at any time to change services if they are offered free of charge via the apinity Software, to make new services available either free of charge or against payment.
8.2. To the extent services of apinity qualify as continuing obligations (Dauerschuldverhältnisse), apinity shall be entitled to terminate them for convenience and discontinue them with a one (1) week prior notice.
8.3. To the extent apinity provides an API to you, apinity may change such API from time to time at its reasonable discretion (e.g., in order to realize technological advancements or better efficiency). Furthermore, apinity shall be entitled to discontinue any API with a one (1) week prior notice. For each discontinuation or material change to an API or a Service, apinity will use reasonable efforts to continue to support previous API versions for a reasonable period of time, but no longer than twelve (12) months. This shall not apply to the extent that such continued support would violate the rights of any third party, would violate any legal, regulatory or court order or regulation, or would not be commercially viable.
9. Intellectual Property Rights and Use Rights
9.1. To the extent the apinity Software contain intellectual property of apinity, all rights related to such intellectual property shall vest exclusively in apinity. In particular you shall refrain from editing, modifying, translating, presenting or demonstrating, publishing, exhibiting, copying or distributing the content available via the apinity Software in whole or in part. It is also prohibited to remove or change copyright notices, logos and other marks or protection notices.
9.2. To the extent content or services are offered by third parties, these items are subject to the respective license terms of the third party. apinity assumes no responsibility for such third party content and services and shall not be liable to you in this respect.
9.3. You grant apinity a non-exclusive, worldwide, perpetual, irrevocable, sublicensable, and transferable use right in the contents you upload to the apinity Software.
9.4. If you offer and distribute content or services (e. g., ASP or SaaS) via the apinity Software, you must make sure that you have obtained all use rights and licenses that are required to do so. If a third party asserts a claim against apinity because content or services offered or distributed by you via the apinity Software allegedly infringe a third party right, you shall, on first demand, indemnify and hold harmless apinity from such claims (including reasonable attorneys’ fees).
IV. Use of the services by you via the apinity Software
10. Scope of Permitted Use, Monitoring of Use Activities
V. General duties
11. Prohibited activities
11.1. You must refrain from any activities on or in connection with the apinity Software that violate applicable law, infringe the rights of third parties or violate the principles of the protection of minors. In particular you are prohibited from the following activities:
- the posting, distribution, offering and advertising of pornographic content, services and/or products that violate youth protection laws, data protection laws and/or other laws and/or are fraudulent;
- the use of content which insults or defames other participants or third parties; and
- the use, provision and distribution of content, services and/or products that are protected by law or encumbered with third-party rights (e.g.: copyrights) without being expressly authorized to do so.
11.2. Furthermore, regardless of any possible violation of the law, you are also prohibited from the following activities when posting your own content via the apinity Software and communicating with other participants (e.g. by sending personal messages, participating in discussion forums, writing comments and product reviews):
- the distribution of viruses, Trojan horses and other harmful files;
- the sending of junk or spam mails and chain letters;
- the distribution of offensive, sexually oriented, obscene or defamatory content or communication as well as such content or communication that is/are likely to promote or support (explicitly or implicitly) racism, fanaticism, hatred, physical violence or illegal activities;
- the harassment of other participants, e.g. by multiple personal contacts without or against the reaction of the other participant as well as the encouragement or support of such harassment;
- asking other participants to disclose passwords or personal data for commercial or illegal purposes; and
- the distribution and/or public reproduction of content available on the apinity Software unless this is expressly permitted by the respective author or is expressly made available to you as a functionality on the apinity Software.
11.3. You shall also refrain from any action that may impair the smooth operation of the apinity Software, in particular from placing an excessive load on the apinity systems.
11.4. Should you become aware of any illegal, abusive, or otherwise unauthorized use of the apinity Software, please contact firstname.lastname@example.org. apinity will then review the matter and take appropriate action if necessary.
12. Suspending of Access
12.1. apinity may temporarily or permanently suspend your access to the apinity Software if there are certain indications that you are in breach of Clause 11. apinity will give reasonable consideration to your legitimate interests in deciding whether to suspend you. In the event of temporary or permanent suspension, apinity will block your access authorization and notify you by e-mail.
12.2. In the event of a temporary suspension, apinity will reactivate your access authorization after the suspension period has expired and will notify you of this by e-mail. A permanently blocked access authorization cannot be restored. Persons permanently blocked are permanently excluded from usage of any apinity Software and may not log in to the apinity Software again.
VI. Processing of your Personal Data
13. Data protection
13.1. You and apinity shall each comply with their obligations under European and applicable Member States’ data protection law.
13.2. The personal data resulting from your registration on the apinity Software as well as from the use of the available services will therefore only be collected, stored, and processed by apinity to the extent that this is necessary for the contractual provision of services and is permitted by statutory provisions or ordered by law.
13.3. To the extent that you transmit other personal data (e. g. personal data of your customers) via the apinity Software, apinity shall act as a data processor. In this case, the parties shall conclude a data processing agreement.
14. Limitation of Liability
As far as claims for damages or reimbursement of wasted expenses are concerned, apinity shall be liable for all resulting damages, irrespective of the legal basis, in particular due to breach of contract (§§ 241 para. 2 in conjunction with 311 para. 2 BGB), defects of quality, defects of title or tort (unerlaubte Handlung), only in accordance with the following provisions:
14.1. In the event of intent, claims under the German Product Liability Act (Produkthaftungsgesetz), claims under the General Data Protection Regulation (GDPR), fraudulent concealment of a defect or the assumption of a guarantee for the quality of products (§ 444 BGB), as well as in the event of injury to life, body or health, apinity shall be liable exclusively in accordance with the statutory provisions.
14.2. In all other cases the following regulations apply:
(a) In the event of gross negligence, apinity’s liability shall be limited to the compensation of the typical foreseeable damage.
(b) In the case of simple negligence, apinity shall only be liable if a material contractual obligation has been breached. In this case, liability is limited to the typical foreseeable damage. In all other cases of ordinary negligence, apinity’s liability is excluded.
(c) Where non-chargeable services of apinity are concerned, apinity’s liability for damages or reimbursement of wasted expenses in connection with such non-chargeable services shall be excluded in cases of simple negligence.
14.3. In the event of a loss of data caused by simple negligence, apinity shall only be liable for the damage that would have occurred even if you had properly and regularly backed up the data in a manner commensurate with the importance of the data; this limitation shall not apply if the backing up of the data was impeded or impossible for reasons for which apinity is responsible.
VIII. Supplementary Rules for Providers of Services
15. Subject Matter of the Supplementary Rules
These supplementary rules stipulate the conditions under which you may offer your own services to third parties via the apinity Software.
16. Activation as Provider, Distribution Agreement
16.1. It is possible at any time to install your own service for testing purposes and watch a preview, but without this service being available to other users. Offering your own services via the apinity Software to third parties (customers) require the conclusion of an additional Distribution Agreement between apinity and you.
16.2. apinity reserves the right to accept services and activate them for distribution via the apinity Software only after a technical review. Furthermore, apinity reserves the right to refuse services for technical or product-policy reasons or to remove services from the apinity Software at any time at its reasonable discretion; in doing so, apinity shall take into account your legitimate interests.
16.4. The billing and payment are regulated in detail in the respective Distribution Agreement.
17. Your Obligations as a Provider
17.1. Insofar as you offer services to third parties via the apinity Software, you are obliged to provide a complete and transparent service description of each service offered to customers. It is your duty to take into account and implement any legal requirements for the description and labeling of your services.
17.2. You are advised to agree service level agreements (“SLAs”) with the users of your services offered through the apinity Software, in which you at least submit to common standards regarding service quality and availability of the services offered. Otherwise, you may draft your SLAs at your sole discretion.
17.3. apinity reserves the right to review the service description and SLAs offered by you and, if the service description, labels and/or SLA do not meet legal requirements and/or fall below the minimum level (determined by apinity in its own discretion) in parts or as a whole and you do not remedy the situation upon request, apinity shall block the sale of the relevant service via the apinity Software.
IX. Other provisions
apinity is entitled to assign this agreement to a third party (e. g., in the context of an M&A transaction).
19. Severability Clause
20. Applicable Law
The agreement between you and apinity is subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
Whether you are a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes is Munich, Germany.