Terms and Conditions
Section 1 - Scope of application
1.1 These commercial terms and conditions govern the contractual relationship between IndexDepot UG (haftungsbeschränkt), Schwarzmeerstr. 42, 10319 Berlin (hereinafter referred to as "IndexDepot") and the other contracting party (hereinafter referred to as "customer") for the service offering in all business lines of IndexDepot. They apply in case of ongoing and future business relationships, including precontractual negotiations. These commercial terms and conditions apply exclusively. IndexDepot does not recognize opposing commercial terms and conditions of the customer.
1.2 The full text of the general commercial terms and conditions is available at any time on the IndexDepot website (http://www.indexdepot.com) and can be printed out. IndexDepot will send the customer a print version of these terms and conditions upon the customer's express and written request. IndexDepot reserves the right to amend the general commercial terms and conditions. This applies especially if an amendment becomes necessary because of statutory regulations and conditions, an amended or continually developed case law or due to a change in business processes or business lines of IndexDepot. Amendments of the general commercial terms and conditions are made known to the customer in written or electronic form (via e-mail) or in other suitable means.
1.3 IndexDepot will inform the customer immediately but no later than four weeks before the time of amendment if the service offering is jeopardized or the fees change due to the above reasons. The customer has the right to terminate the contract within four weeks of announcement of the amendments with immediate effect at the time of amendment, insofar as the adoption of the amendments is unacceptable to the customer or the original service to reward ratio is disrupted significantly. If the customer makes no use of its right of termination, the customer tacitly accepts the amended contract terms through the continued use of services of IndexDepot. In the event of amendments, IndexDepot will point out this fact and, in particular, the consequences of a neglected timely termination to the customer. Further rights of the customer are ruled out.
Section 2 - Minors
2.1 IndexDepot concludes a contractual relationship with minors only upon the approval of the statutory representative of the minor.
Section 3 - Subject matter of the contract and service rendered, service provision and delivery
3.1 The business lines of IndexDepot, in particular, cover the supply of Web-based services (hereinafter referred to as "services") as well as software development, maintenance and service. With the services the customer receives the technical possibility and authorization via an Internet connection to access the services and to use the functionalities of the services under the framework of this contract.
3.2 IndexDepot provides the contractually stipulated services and work, including associated additional performance and services as they ensue from the customer order. The concrete subject of service depends on the agreed upon product or add-on product. IndexDepot is under no obligation to render the service itself but may use third-party services as well to fulfill its contractual duties.
3.3 In case of orders that go significantly beyond the delivery of hardware and/or software ("projects"), the customer appoints a knowledgeable contact person who can give the necessary information and make decisions. The appointed contact person is authorized to issue and accept declarations of intention for the customer.
3.4 Unless otherwise confirmed in writing, delivery times named by IndexDepot are nonbinding. Reasonable partial services are allowed and may be invoiced independently.
3.5 Deviations of commodity or other service performance from the original agreement are permissible, provided they meet or exceed the agreed upon performance features.
Section 4 - Cooperation and customer service
4.1 The customer has the duty to cooperate in the handover of required data and information, the preparation of necessary test data, technical trials and test runs, and immediate and complete written error reporting in every stage of service. The customer undertakes, insofar as it is in the position to do so, to check the correctness and completeness of plans, technical specifications and technical information of IndexDepot.
4.2 The customer will be responsible for the acquisition of the necessary approvals from authorities or state institutions. IndexDepot must point out the necessity of such approvals insofar as this is known. There is no duty of disclosure in this regard. IndexDepot will undertake the acquisition of such approvals for a fee upon the express written request of the customer.
4.3 IndexDepot provides a customer service. Customer service can be reached via the following e-mail: email@example.com. IndexDepot is not liable for accessibility and availability. IndexDepot reserves the right to limit or cease customer service without special notification.
Section 5 - offers, prices and terms of payment
5.1 The offers of IndexDepot are nonbinding and are subject to change until the signing of contract. An order is considered accepted if it is confirmed by IndexDepot in writing or electronically (e-mail). In the event of order cancellation, IndexDepot is authorized to charge a flat cancellation fee of 20% of the contract value.
5.2 The amount of remuneration is based on the services agreed upon with the customer and the price list of IndexDepot in the version applicable upon signing of contract. If a price is charged for portions of a calender month, then it is charged for every day at 1/30 of the monthly price. All listed prices are net prices plus the statutory value-added tax.
5.3 IndexDepot is authorized to increase the usual or list prices for the contractual services to compensate for personnel and other cost increases commensurately. IndexDepot will make these price increases known to the customer in writing or by e-mail. The price increases do not apply to the periods for which the customer has already made payments. If the price increase amounts to more than 10 percent of the prior price, the customer is authorized to terminate the contract in its entirety with a notice period of one month and with effect at the end of a calendar month. If the customer exercises this right of termination, the prices before the increase will be charged until the termination enters into force. Prices may not be increased within three months from the signing of contract after the services are rendered for the first time.
5.4 Invoice amounts are payable without deductions upon receipt of invoice. If no payment is done after the expiration of 14 days or the payment period listed in the invoice, a default will occur without notice being served.
5.5 Billing is carried out in writing or electronically via e-mail. Alternatively invoices can be stored for the customer in a closed area online on the website of IndexDepot. The customer is then notified about the invoice via e-mail.
5.6 The customer can pay the outstanding fees either through money transfer into the account of IndexDepot or by authorized collection procedure. Check payments are accepted only after prior agreement. In the event of a return debit note because of insufficient account funds or the customer's opposition to the authorized collection procedure, a processing fee of up to 8.50 euro is collected.
5.7 The customer is entitled to rights of lien only insofar as a counterclaim is based on the same contractual relationship. The customer may only offset claims against claims of IndexDepot if the customer's claims are uncontested or have been recognized by a court of law.
Section 6 - Delay in payment
6.1 If the customer is in delay with payment of an amount that is not significant, IndexDepot is entitled to refuse fulfillment of services two weeks after warning is given to the customer and to deny access to services of IndexDepot, especially Internet access, at the customer's expense. In this case the customer remains obligated to pay outstanding fees. IndexDepot must lift the denial of access immediately as soon as the outstanding payments are paid in full.
6.2 IndexDepot reserves the right to enforce other claims due to payment delay. In particular, the right to termination of the contractual relationship without notice will not be affected by any possible denial of services.
Section 7 - Objections and warranty
7.1 If the customer raises objections against the invoiced services, the customer must indicate this to IndexDepot in writing or by e-mail within ten working days after receipt of the invoice. Failure to raise objections in a timely manner will be considered acceptance. IndexDepot will make a special note in the invoices of the consequence of failure to make a timely notification. Statutory claims of the customer in case of justified objections made after the deadline remain unaffected.The customer cannot decline reasonable partial services. Objection to a partial service does not authorize the rejection of other services from the same or another contractual relationship.
7.2 Complaints about obvious defects must be made immediately no later than within 10 working days after delivery, service provision or acceptance. The same applies to hidden defects after their discovery. Late complaints in respect of defects or such complaints made after the processing of retained goods shall be ignored and lead to the exclusion of warranty.
7.3 The period of limitation of claims for defects is one year, unless IndexDepot has maliciously concealed the defect.
7.4 IndexDepot is initially entitled by its own choice to repair or replace or fabricate the defective commodity or service. If the subsequent performance fails, the customer will be entitled to the statutory claims after the expiration of a sufficient period specified by the customer.The subsequent performance will only be considered as failed if two attempts at subsequent performance were not made within reasonable time to repair the defect. Any type of warranty expires if corrective actions, repairs or other changes are made to the subject of service that were not made by IndexDepot or by IndexDepot-authorized persons. Provided warranty claims are not expired, a duty to carry out subsequent performance can only arise if the type and scope of the customer's corrective action are precisely documented, the customer proves that the detected problem is neither directly nor indirectly due to its corrective action and the customer declares itself ready to bear the additional expense that arises because of its corrective action at IndexDepot. IndexDepot points out that software cannot be developed completely without error.
Section 8 - Retention of title and third-party use
8.1 Ownership of goods manufactured or supplied by IndexDepot passes over to the customer as soon as the customer has fulfilled all, even future or conditional, principal and subsidiary claims from the business relationship with IndexDepot. The customer is not entitled to pledge or transfer the retained goods by way of security to third parties. The customer may resell the goods as part of a proper business transaction. The customer hereby assigns to IndexDepot for security claims resulting from the resale or any other legal ground with regard to the retained goods, including all ancillary rights, and also where the goods are processed or assembled. If the goods are processed or assembled, the assignment will comprise that part of the value which the reserved goods has in proportion to that of the goods as a whole. IndexDepot accepts the assignment. Upon customer request IndexDepot will release the securities to the extent that their value is more than 20% higher than the claims they are given for.
8.2 The customer may not make the product available to third parties without the written consent of IndexDepot. The customer is not entitled to extraordinary termination if IndexDepot refuses to give its consent.
Section 9 - Duties and obligations of the customer
9.1 The customer must refrain from any misuse of services of IndexDepot and must see to it that the use of services does not damage IndexDepot or third parties. The customer is especially obligated to refrain conducting illegal or immoral activities. The customer will ensure that its actions do not breach statutory regulations for the protection of minors and provisions of the Criminal Code as well as rights of privacy and proprietary rights of third parties. The customer must not create any opportunity for such actions.
9.2 In the event of breaches against the duties listed in 9.1, IndexDepot is entitled to refuse its services and to deny Internet access immediately, entirely or partially, depending on the breach at the customer's expense until the circumstance that is contrary to contract is eliminated. In this case the customer remains obligated to pay outstanding fees. Furthermore, IndexDepot is entitled to exercise extraordinary termination of the contractual relationship if the customer, in case of noncompliance with a duty as specified in 9.1, has been pre-warned and termination was threatened, unless the warning and threat to terminate are no guarantee of success or are unnecessary because of a serious breach. The warning and threat to terminate can also be carried out by e-mail.
9.3 The customer must immediately notify IndexDepot about changes to personal data, especially address and bank details.
9.4 In addition, IndexDepot reserves the right to raise further claims of damages in case of breaches of contract.
Section 10 - Property and usage rights
10.1 The customer is granted the non-exclusive right to use via telecommunications the services of IndexDepot and to make use via browser the functionalities associated with this service, with this right limited in time to the term of the contract. The customer does not receive rights that go above and beyond this, especially rights to the service.
10.2 The customer is not entitled to make use of the services beyond the usage allowed according to the scale of this contract or to let third parties use them or to make them accessible to third parties. In particular, the customer is not allowed to reproduce, to sell or permit the temporary use of, or especially hire out or lend, the services or parts thereof.
10.3 Each case in which the customer culpably enables a third party or a user not authorized by the customer to use the services, the customer has to pay a fine which amounts to six times the monthly rate and is payable immediately. IndexDepot reserves the right to claim damages. In this case the contractual penalty paid will be credited to any compensation claim.
10.4 In case of unauthorized surrender of use, the customer must immediately upon request provide IndexDepot with all details for the enforcement of claims against the user, especially the user's name and address.
10.5 If the use of the services as per contract is affected by property rights of third parties with no fault of IndexDepot, IndexDepot is entitled to deny the services thus affected. The customer will immediately inform IndexDepot about this and give IndexDepot access to its data in suitable manner. In this case the customer is not required to pay. Other customer claims or rights remain unaffected.
10.6 Insofar as the transfer of property rights to technical solutions and innovations in the hardware and software field is not the express subject of the contract, these property rights will remain with IndexDepot.
10.7 The assignment of rights to the source code of software is not included in the granting of rights and must be agreed upon separately in writing.
10.8 The customer is not entitled to edit or change the created or supplied software.
10.9 The licensing requirements of the respective third-party licenser also applies with some limitation to software licenses of third parties which IndexDepot grants with respect to the customer.
10.10 If third parties enforce claims against the customer due to an infringement of an industrial property right to created or supplied software, the customer must immediately inform IndexDepot about this in writing to allow IndexDepot to mount a legal defense. In this case the customer will give IndexDepot the pertinent information needed for the legal defense and the comparable dispute settlement.
10.11 Insofar as IndexDepot consents to any usage before paying for the services in full or tolerates such use, this is revocable at any time. In particular, IndexDepot can exercise this right of withdrawal without withdrawing from the contract if the customer is delayed with the payment of the fee.
10.12 IndexDepot is entitled to present the customer's company and logo as reference in the Internet, in marketing materials and in print media, insofar as this is not expressly excluded by the contract or if this is not inadvisable. Any use above and beyond this is not allowed. Both parties also have the right to issue press releases showing the cooperation between the two.
Section 11 - Liability
11.1 In case of willful intent or gross negligence, IndexDepot will have unlimited liability vis-a-vis the customer for all damage it and its legal representatives or vicarious agents cause.
11.2 In case of simple negligence, IndexDepot has unlimited liability in case of injury to life, body or health.
11.3 IndexDepot is not liable for content of customers, the loss of data of customers or the unauthorized obtaining by third parties of personal information of customers.
11.4 The execution of customizations, additions and modifications to software as well as measures that serve to identify and eliminate malfunctions can lead to a temporary interruption or impairment of the accessibility of services for which IndexDepot cannot be made liable.
11.5 IndexDepot assumes no liability for loss of sales or other damage that results from a disruption in performance or non-availability of IndexDepot.
11.6 Furthermore, IndexDepot is liable only insofar as it has breached a significant contractual obligation (cardinal obligation). In such cases liability is limited to the reimbursement of foreseeable, typically occurring damages. For each individual case liability is limited to the contract value, if fees are currently being paid, to the fee amount per contract month.
11.7 Additionally and most importantly, the liability of IndexDepot for compensation for damages and expenses due to simple negligence - irrespective of the legal grounds - is limited in total to 25 percent of the fee agreed upon when the contract was signed. Liability as per 9.1 and 9.2 sentence 1 is unaffected by this paragraph.
11.8 Liability for compensation regardless of negligence or fault of IndexDepot (section 536a of the German Civil Code) for defects existing during contract conclusion is ruled out. Section 9.1 and 9.2 remain unaffected.
11.9 Liability according to provisions of the Product Liability Act remains unaffected.
Section 12 - Data protection
12.1 IndexDepot collects, processes and uses personal data of customers only with the purpose of using and billing for IndexDepot services. The continued use, processing or transmission of personal data is done only if the customer has consented to it.
12.2 Personal data is transmitted to state institutions and authorities only in compliance with mandatory legal provisions.
12.3 In case of complaints, technical services or for handling of payment, personal data of customers can be transmitted to partner companies of IndexDepot in the context of contract data processing. In this case IndexDepot remains the owner of the data and guarantees that the personal data of customers are treated confidentially and that the regulations of data protection law are followed during contract data stipulation. In such cases IndexDepot will require the partner companies to respect confidentiality and to observe data secrecy.
12.4 If data is transmitted to IndexDepot, the customer will create backup copies in advance. In case of data loss, the customer is required to transmit the data in question again to IndexDepot free of charge.
12.5 The customer is required to keep passwords assigned by IndexDepot secret and protect them from third-party access. Any possible loss or the disclosure of the password to a third party must immediately be pointed out to IndexDepot. The customer is responsible for damage that is caused to the customer or IndexDepot by the breach of the customer's duty to observe secrecy. The customer must regularly change its passwords for security reasons.
Section 13 - Termination
13.1 The minimum lease period of the services is 1 month and begins on the day the service is initially provided ready for operation. The service contract is concluded for an indefinite time. The contract can be terminated by both parties with 30 days' notice with effect as the end of the month.
13.2 Service and maintenance contracts are concluded for an indefinite time. The contractual relationship can be terminated in writing by both parties with a notice period of one month with effect at the end of every calendar quarter.
13.3 If the customer wishes to terminate only the usage of parts of the service or of add-on products, then the customer must terminate to that extent by writing to IndexDepot. A unilateral, purely technical termination of the usage of services cannot be considered termination.
13.4 The extraordinary right of termination of IndexDepot or of the customer for just cause remains unaffected.
Section 14 - Miscellaneous
14.1 German law applies to the contractual relationship. The United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL) does not apply. The place of execution of the contract is Berlin. The exclusive place of jurisdiction for commercial customers is Berlin.
14.2 The customer can transfer rights and duties from this contract to a third party only if IndexDepot consents to it.
14.3 Contracts and their amendment and expansion as well as collateral agreements need to be done in writing. Less strict forms, especially transfer via telecommunication or in electronic form, are ruled out for contract amendments. This does not apply to contract execution.
14.4 The invalidity or ineffectiveness of individual provisions of the contractual relationship does not affect the validity of the rest of the provisions. In case of the invalidity or ineffectiveness of individual provisions, the contracting parties will replace the defective provision with an effective clause whose economic and legal sense comes closest to that of the defective provision.
Last revised on February 1st, 2012