Version of 19 October 2019
Please note: this English text is a translation provided for your convenience. Only the German version of this document is legally binding. In the event of any discrepancy or ambiguity between the two versions, the German version shall prevail. You can read it by switching this site to German.
(1) SWINDI GmbH (hereinafter the provider) reserves the right to amend these General Terms and Conditions in whole or in part at any time.
(2) By accepting services, using the provider's services or receiving goods, the provider's General Terms and Conditions are deemed to have been accepted.
(3) These General Terms and Conditions also apply to companies, legal entities under public law and special funds under public law within the meaning of § 310 (1) sentence 1 BGB (German Civil Code).
(1) A contractual relationship with the provider is only entered into in text form.
(2) The specific scope of services for goods or a service can be taken from the provider's website before ordering. For services provided over a period of time, the scope of services applies for the entire term of the service ordered.
(3) The presentation of goods and services on the provider's website does not constitute a legally binding offer, but an invitation to place an order. By ordering the desired goods or service via the internet or by email, the customer submits a binding offer to conclude a contract of sale with the provider.
(4) When ordering via the provider's website, the customer submits a binding offer to conclude a contract of sale for the goods or service in question as soon as they have entered all the required details in the ordering process and, in the final step, clicked the button labelled „Order with obligation to pay“.
(5) After receiving an offer to conclude a contract of sale, the provider sends a confirmation of the content of the offer, which does not, however, constitute acceptance of the offer to conclude a contract of sale. The provider is entitled to accept the customer's offer within 14 calendar days by sending an order confirmation to the customer, by delivering the goods to the customer or to a representative named by the customer, or by granting the customer access to the service purchased. The contract comes into existence at that point.
(6) Third-party purchasing conditions are not accepted unless expressly agreed otherwise.
(1) The charges for goods and services follow from the description of prices and services in force at the time the respective contract is concluded.
(2) Invoiced amounts fall due for payment immediately and are to be settled without any deduction, unless they were already settled before the invoice was received.
(3) A service that has not been used cannot be paid out.
(4) Where payment is made using a payment method offered by PayPal, payment is processed by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to the PayPal terms of use, available at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or — if the customer does not have a PayPal account — subject to the conditions for payments without a PayPal account, available at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.
(5) In the event of default of payment, the provider is entitled to suspend the contractual services, and in particular to block the customer's access to their services, until the customer has settled their outstanding liabilities. The provider is obliged to notify the customer of an intended blocking in advance.
(6) The provider is entitled to obtain the information it considers necessary as part of a credit check, in particular from credit agencies. The provider is further entitled to report data to credit agencies on the basis of conduct not in accordance with the contract (for example an application for a court order for payment in respect of undisputed claims, an enforcement order issued, or enforcement measures). Such data is only transmitted once and to the extent that this is necessary to safeguard the provider's legitimate interests and no overriding interests of the customer worthy of protection preclude the processing or use of the data.
(1) Goods delivered remain the property of the provider until the purchase price has been paid in full.
(2) Before title passes, pledging, transfer by way of security, processing or alteration is not permitted without the provider's express consent.
(3) The customer is obliged to insure the items subject to the provider's retention of title appropriately (that is, against theft, fire, water and low-voltage damage) and to provide the provider with evidence of such insurance on request. In the event of damage, the customer's insurance claim is deemed assigned to the provider.
(1) The provider ensures that the software products are as far as possible free of defects through regular quality assurance measures. The customer is aware that, according to the state of the art, errors in software cannot be ruled out.
(2) The customer only has a right of rescission or reduction if a program error proves to be significant and material for the contractual services as a whole and the error cannot be resolved by other means within the software.
(3) Any further warranty, in particular that the software is fit for the customer's purposes, as well as for damage caused directly or indirectly (such as lost profits or business interruption) and for loss of data or damage arising in connection with restoring lost data, is expressly excluded, unless intent or gross negligence can be demonstrated on the part of the provider or its employees.
(4) The provider reserves the right to make, or have made, changes to the programs even after delivery, where those changes improve the program's performance or do not impair the remaining software.
(1) The provider guarantees availability of the service offered of 95% on an annual average. Excluded from the guarantee are service defects for which the provider is not responsible and cases of force majeure.
(1) The contract may be terminated with two (2) weeks' notice to the end of the term.
(2) Where good cause exists, the provider is entitled to terminate the contract without notice. Examples of good cause:
(a) Breaches of applicable law
(b) Breaches of the General Terms and Conditions
(c) Intentionally untrue statements
(d) Payment arrears
(d) Breaches of other agreements entered into with the customer (for
example the Terms of Use)
(3) In the case of contracts within the meaning of §5 that extend the usage rights of a free basic offering, the customer may be downgraded to the free basic offering (where one exists) once the agreed term has expired.
(4) When a contract within the meaning of §5 ends, all extended usage rights acquired by the customer under the contract cease to apply. Where limits or restrictions on the storage of data by the customer, or by users authorised by the customer, with the provider are affected by this, the provider may irrevocably delete, as of the date the contract ends, any data exceeding the limits or restrictions of the free basic offering then in force. In determining which data falls within the limits or restrictions of the free basic offering, more recent data takes precedence.
(5) For contracts under which payments were made in advance, a pro rata refund may be made for the period from the point at which the termination takes effect until the regular end of the contract or of the billing interval.
(1) In the case of contracts within the meaning of §5, the provider is in particular entitled,
without prior notice and at its own discretion, to deactivate or discontinue services for a
customer in whole or in part, permanently or temporarily, or to delete the customer's data in
whole or in part:
(a) if the provider becomes aware, through notification by third
parties or through its own proactive measures, of an infringement of rights, in particular on
account of the storage and/or making publicly available of information and/or media that breach
applicable law, or
(b) if authorities or courts, citing an infringement of rights, require
the provider to cease storing and/or making content publicly available.
(c) Breaches of the General Terms and Conditions
(d) Intentionally untrue statements
(e) Payment arrears
(f) Breaches of other agreements entered into with the customer (for
example the Terms of Use)
(1) The provider is liable for all damage it causes in cases of intent or gross negligence.
(2) In cases of slight negligence, the provider is liable without limitation for injury to life, body or health.
(3) In all other respects the provider is only liable where it has breached a material contractual obligation. Material contractual obligations are understood in the abstract as those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the customer may regularly rely. In such cases liability is limited to compensation for the foreseeable damage typical of such contracts.
(4) Liability under the Produkthaftungsgesetz (German Product Liability Act) remains unaffected.
(5) The customer is responsible for backing up their data regularly — that is, in principle daily — in accordance with the state of the art.
(6) In the event of data loss for which the provider is responsible, the provider is liable exclusively for the cost of restoring the data from existing backup copies and for restoring the data that would have been lost even if the data had been backed up properly.
(7) The customer is responsible for password-protecting their own data. In particular, the provider accepts no liability for the unlawful use of data as a result of inadequate or absent password protection.
(8) There is no contractual relationship whatsoever between the customer's own customers and the provider.
(9) Except in the case of direct personal injury or damage to property, the provider's total liability is limited to EUR 500.00. The provider is not liable for lost profits, production downtime, savings not achieved, or indirect and/or consequential damage, unless the provider acted with gross negligence or intent. The provider is not liable for the recovery of data, unless the destruction of the data is attributable to it through gross negligence or intent and the customer has ensured, through appropriate security measures corresponding to the state of the art, that this data can be reconstructed with reasonable effort from data material held by the customer in machine-readable form.
(1) All declarations by the provider may be addressed to the customer by electronic means (by email, for example). This also applies to order confirmations, invoices and reminders. Declarations by the customer may likewise be transmitted to the provider by electronic means.
(2) The law of the Federal Republic of Germany applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) If the user makes use of the provider's services as a freelancer, merchant, legal entity under public law or special fund under public law, the provider's registered office is the exclusive place of jurisdiction for all disputes arising from the contractual relationship.
(4) Where provisions have not become part of the contract or are invalid, the content of the contract is governed by the statutory provisions.