Standard Terms of Service MelonBits GmbHMay 2023
1. Scope and conclusion of agreements
- Our services are exclusively available to commercial clients (businesses as defined in § 14 German Civil Code (BGB)). We reserve the right to refuse entering into contracts with consumers and to terminate such contracts without notice for just cause if deceived.
- The customer's terms and conditions shall not be applicable to the agreement, even if we are aware of them, unless we have expressly consented to their incorporation. Our terms and conditions shall prevail even if we perform the agreement without reservation, notwithstanding the customer's conflicting, divergent, or supplementary terms and conditions.
- The option to enter into an agreement on our website does not constitute a legally binding offer by us. Instead, the customer's order represents an offer to establish a corresponding agreement. We reserve the right to decline this offer without providing reasons. Acceptance of the offer occurs through our confirmation of the contract's conclusion, for example, by establishing the customer account.
- Only the statements on our website shall determine the features of our services. Any other public statements or advertisements deviating from these shall not constitute contractual specifications.
2. Provision and use of our services
- Upon the conclusion of the agreement, we shall provide our services to the customer for use via the Internet. The customer is granted a non-exclusive, non-transferable right to use the services for the duration of the agreement.
- The customer shall not violate any third-party rights or laws while using our services. In the event of such a violation, the customer shall indemnify us against any resulting third-party claims, including the reasonable costs of our legal counsel and representation. We shall promptly notify the customer if any such rights are asserted against us and allow the customer to participate in the defense against such claims at the customer's expense. Statutory claims for damages shall remain unaffected.
- If the customer breaches the provisions of paragraph 2, we reserve the right to restrict their access to our services or specific data, provided that, in our reasonable discretion, the violation can be effectively terminated or reasonably mitigated. If, in our reasonable discretion, restricting access to data is insufficient to restore compliance with the agreement, we may also delete the data. The measures described herein shall not contravene any data processing agreement executed with the customer.
- We shall inform the customer of the grounds for assuming a breach of the provisions in paragraph 2 and notify them of the measures we intend to take to restore compliance with the agreement if the violation is not rectified by the customer within a reasonable timeframe specified by us. Prior notification and establishing a deadline shall not be required if such notification is unreasonable or impermissible. The information will be sent via e-mail to the address provided by the customer in their account.
4. Special regulations for the free/trial version
- If the customer utilizes a free version of our services, the following paragraphs shall apply and, in the event of contradictions, take precedence over the other provisions in these Terms and Conditions.
- The free version is provided to the customer on an "as is" basis. We do not warrant that this version includes a specific range of features or that our services are consistently available and error-free during the usage period. We are solely obligated to endeavor to operate the free version with the same level of care as our paid offerings.
- Either party may terminate this Agreement at any time unless a minimum term has been stipulated with the customer.
- The free version may be used only in cases where performance defects, failure of our services, and data loss will not result in any damage to the customer or third parties.
5. Term and termination
This agreement shall remain in effect for the term selected by the customer at the time of placing the order. Before the expiration of the specified term, termination of the agreement may only occur for cause. Absent termination for cause, the agreement may be terminated up until the final day of the stipulated term. In the event of non-termination, the fixed term shall automatically extend each time by the respective term initially established upon the agreement's execution.
- In case of performance defects, the customer shall be entitled to the statutory rights as modified hereinafter, whereby we shall determine whether we shall remedy the defect by repair or new delivery.
- Our no-fault liability for damages (§ 536a BGB) for defects existing at the time of the conclusion of the agreement shall be excluded unless the defect relates to a quality warranted by us (guarantee, § 276 para. 1 BGB).
- A limitation period of one year shall apply to claims. This limitation period shall not apply to claims for damages due to the infringement of claims for defects; in this respect, the provisions on liability shall apply.
- For features, services, software or other offers that are expressly provided by us as beta versions, any claims for defects shall be excluded unless we have acted intentionally. The very nature of such beta versions is that they are unfinished and may have defects. Such defects may, e.g. result in the loss of data or malfunctions. Therefore, the customer should only use beta versions if the occurrence of such defects does not cause any disadvantage for him, especially if it does not cause any damage, for which he would like to hold us or third parties liable.
- Liability for intent and gross negligence is unrestricted.
- In simple negligent violation of essential contractual obligations, the liability is limited to foreseeable and contract-typical damages. This liability is further limited to 25,000 Euro per incident. Essential contractual obligations are those whose fulfillment is essential to the due performance of the agreement and on whose fulfillment the breached party may regularly rely. The limitation period for claims under this paragraph shall be one year.
- Paragraph 2 shall not apply to rights arising from injury to body, health, or life, in the event of fraudulent conduct, in the event of the assumption of a guarantee, in the event of liability for initial incapacity or impossibility for which we are responsible as well as for rights under the Product Liability Act.
- In all other respects, liability is excluded on whatever legal grounds.
8. Applicable law and place of jurisdiction
- The agreement shall be governed exclusively by the laws of the Federal Republic of Germany. International private law shall not apply insofar as it is excludable.
- The sole place of jurisdiction for all disputes in connection with this agreement shall be at our registered office.
- For customers domiciled outside the European Union, the following arbitration agreement shall apply in addition to paragraphs 1 and 2:
- All disputes arising out of or in connection with this agreement or concerning its validity shall be finally settled by the Rules of Arbitration of the German Institution of Arbitration (DIS), excluding the ordinary courts of law.
- The arbitral tribunal shall consist of one arbitrator.
- The language of the proceedings shall be German.
- This agreement contains all stipulations of the parties regarding the subject matter of the agreement. Any deviating ancillary and earlier agreements on the subject matter of the agreement are declared invalid.
- If any provision of this agreement is or becomes void, invalid or unenforceable, in whole or in part, or if any provision necessary in itself is not included, the validity and enforceability of all remaining provisions of this agreement shall not be affected.