graphapi®
AGB
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We offer the conclusion of agreements about the use of the product Turbofy® only to businesses according to § 14 BGB. We refuse to conclude agreements with consumers and will terminate such agreements without notice for good cause if we have been deceived.
The customer's terms and conditions shall not form part of the agreement, even if we are aware of them unless we have expressly agreed to their inclusion. Our terms and conditions shall also apply if we execute the agreement without reservation in the knowledge of the customer's conflicting, deviating, or additional terms and conditions.
The option to conclude an agreement on our website is not a legally binding offer by us. Rather, the customer's order is an offer to conclude a corresponding agreement. We may reject this offer without giving reasons. The acceptance of the offer takes place through the confirmation of the conclusion of the contract by us, e.g., by setting up the customer account.
The customer must provide truthful and complete information when registering. Subsequent changes to these must be made by the customer without undue delay using the options for change offered by us. If the information has not been updated by the customer, he has no right to correction of invoices issued accordingly.
For determining the features of Turbofy®, only our statements at the time of the conclusion of the agreement are decisive. Public statements or advertisements deviating from these are not contractual quality specifications.
Upon execution of this Agreement, we grant the customer access to Turbofy® for use via the internet. The customer is hereby granted a non-transferable right to use Turbofy® for their own purposes for the duration of this Agreement. The customer is authorized to develop their own offerings using Turbofy® (e.g., web apps, apps) which they may provide to third parties, provided that these offerings are not mere replicas of the functionalities of Turbofy® without additional services for the users. The customer is not permitted to represent themselves as a reseller, distributor, or similar of our services in this context, unless expressly authorized by us. Requests for such authorization should be directed to partner@turbofy.com. We reserve the right to deny any request without providing justification. With our authorization Sec. 19 applies additionally.
The use of Turbofy® for critical infrastructures in the meaning of Section 2 (10) of the German Federal Office for Information Security Act (Gesetz über das Bundesamt für Sicherheit in der Informationstechnik) is subject to a separate agreement with us, which we may decline to conclude for any reason.
Turbofy® may be used with a standard web browser.
The customer is not permitted to violate rights of third parties or laws using Turbofy®. Failure to do so obligates the customer to hold us harmless from any third-party rights resulting from the infringement. The indemnity claim also includes the reasonable costs of our legal advice and representation. We shall inform the customer without undue delay if corresponding rights are asserted against us and enable the customer to cooperate in the defense against such rights at the customer's expense. Statutory claims for damages shall remain unaffected.
Should the customer violate the provisions of paragraph 4, we are entitled to block his access to Turbofy® or access to data stored in Turbofy®, provided that in our reasonable discretion, the violation can thereby be ceased or reasonably mitigated. If in our reasonable discretion, blocking access to data is not sufficient to restore compliance with the agreement, we shall also be entitled to delete data. The provisions of any data processing agreement concluded with the customer may not be violated by the measures described hereinbefore.
Should the customer permit third parties to utilize Turbofy® pursuant to the authority granted under paragraph 1, the customer shall obligate such third parties in accordance with paragraph 4 and shall be liable to us for the actions of their users. We shall retain the rights concerning user content as specified in paragraph 5. Paragraph 6 shall apply mutatis mutandis.
We shall inform the customer, stating the grounds, if we should assume a breach of the provisions of paragraph 4 by the customer or third parties using Turbofy® via the customer and shall advise what measures we intend to take to restore compliance with the agreement if the violation is not remedied by the customer within a reasonable period of time specified by us. Prior information and setting of a deadline shall not be required if such information is not acceptable to us or if such information is inadmissible. The information will be sent by e-mail to the address provided by the customer in his account.
If the customer is aware of the information pursuant to paragraph 7 and either the customer or third parties using Turbofy® via the customer violate the provisions of paragraph 4 repeatedly, we are entitled to terminate the agreement for cause without notice if the continuation of the agreement is unreasonable for us. We shall also be entitled to terminate the agreement for cause if the first violation of the provisions of paragraph 4 is so severe that we cannot reasonably be expected to continue the agreement.
Each party shall utilize proven technology to protect the access data of the customer's users from being accessed by unauthorized third parties. If one party should assume that unauthorized third parties have gained knowledge of access data, it shall inform the other party without undue delay. As soon as the customer knows of a possible breach, it will arrange for the access data of the affected users to be changed. In this case, we are also entitled to reset the access data of the users so that they have to provide a new password when logging into the system the next time.
We warrant the availability of Turbofy®, including the APIs provided for the customer of 99% per contractual month. The availability is measured at the interface to the internet of the data center utilized by us ("measuring point"). Availability is given if Turbofy® can be utilized at the measuring point according to the agreement, unless we are responsible for the specific non-usability by the customer.
When determining availability, the following periods are not taken into account:
Non-availability announced with at least one week's notice between 8 p.m. and 8 a.m. Monday through Friday at our headquarters, on weekends and on national holidays in Germany.;
Non-availability notified with at least one hour's notice if it is required urgently to remedy or avert more than insignificant risks to IT security or data protection. The unavailability may not exceed a duration of eight hours per month.
Information pursuant to paragraph 2 will be sent by e-mail to the address provided by the customer.
The customer grants for the contents stored by him or its users in Turbofy® all rights necessary for the execution of the agreement and guarantees to be able to transfer these rights to us. This includes, in particular, the right to utilize, process, reproduce, distribute, edit and keep available for use to the extent technically required for the execution of the agreement. Otherwise, the indemnification claim from section 2.4 shall apply.
The customer may grant third parties access to his customer account and the services provided to him (e.g., several employees each have a user account and are given rights to administer the services used).
The actions or omissions performed by the third parties shall be attributed to the customers; this shall apply in particular if the third parties utilize the rights granted to them to use chargeable services.
To the extent that the customer utilizes the free version of Turbofy®, the following paragraphs shall apply, which in case of contradictions, shall take precedence over the further provisions of these Terms and Conditions.
The free version is provided to the customer as is. We do not owe for this version that it includes a certain scope of functions and that the services owed by us are always available and error-free during the utilization period. We are solely obliged to endeavor to operate the free version with the same care as our paid offers..
Each party may terminate this Agreement at any time unless a minimum term has been stipulated with the customer.
The free version may be utilized only for such cases where defects in performance, failure of our performance, and loss of data will not cause any damage to the customer or third parties.
Any fixed charges agreed with the customer upon conclusion of an agreement will be invoiced by us in advance for the agreed term of the agreement. Any discounts granted to the customer for longer-term agreements are consideration for the longer term of the agreement that the customer enters into with us. Variable charges are billed monthly in arrears.
If we are entitled to unbilled receivables of more than 1,000 Euro from variable charges stipulated with the customer, we shall be entitled to invoice such receivables before the end of the respective month.
All prices indicated by us are net and are to be understood in the respective currency stipulated.
If the customer has provided a credit card for payment, the customer warrants that the credit card is issued to the contracting party and may be utilized to collect the fees due to us. The customer must update the deposited credit card in good time before its validity expires.
Customers for which VAT is invoiced under the reverse charge procedure shall deposit their VAT ID in their customer profile; otherwise, we shall be entitled to invoice German VAT to the customer. The customer has no right to subsequent correction of corresponding invoices.
In the event of a default of payment by the customer, we shall be entitled to charge a one-time, flat-rate default fee per corresponding invoice per § 288 para. 5 BGB (German Civil Code). The possibility of asserting any further damages caused by default shall remain unaffected.
Invoices can be issued in digital form, sent by e-mail, or made available on our website in the customer area.
We are entitled to adjust the fees stipulated with the customer. Information about the adjustment must be sent by e-mail to the customer's e-mail address stored in the customer profile at least two weeks before the end of the notice period for the agreement. The adjustment may take effect at the earliest after the date the customer can terminate the agreement after receipt of the information.
The agreement is binding for the term selected by the customer when placing the order. Before the specified term expires, the agreement can only be terminated for good cause. Otherwise, termination is possible until the end of the last day of the stipulated term of the agreement. If the agreement is not terminated, the fixed term shall be extended by the respective term stipulated at the time of the conclusion of the agreement.
The right to terminate for good cause remains unaffected. The following reasons, in particular shall be deemed to be good cause if they exist for the other party:
breach of essential contractual obligations by the other party if the breach is not remedied despite issuance of a notice of default and setting of a reasonable deadline with reference to the right of termination. A reminder and setting of a deadline shall not be required if the violation is considered to be unreasonable;
the rejection of the opening of insolvency proceedings for lack of assets;
the opening of liquidation proceedings;
We shall be entitled to terminate the agreement without notice if the provisions of Section 543 (2) No. 3 of the German Civil Code (BGB) apply.
Termination according to § 543 para. 2 clause 1 No. 1 BGB due to failure to use Turbofy® in accordance with the agreement is only permissible if we have been given a reasonable opportunity to remedy the defect that failed.
Cancellations can be made by e-mail. A notice of termination by the customer shall be sent to support@turbofy.com. Alternatively, a termination can be effected in the customer area.
Before the expiry of the agreement, the customer has to export the data stored in Turbofy®. With the agreement's expiration, the data is no longer available to the customer and will be deleted. If the data is personal data, the customer has to exercise his rights from the separately concluded data processing agreement in time before the end of the agreement. The customer may export the data at any time; no cooperation on our part is required for this. In addition, the customer's data will be deleted automatically at the end of the contract. The deletion is carried out in a manner that makes it impossible to restore the data.
Turbofy® is not a static product. Instead, we intend to develop Turbofy® further to offer new features and offerings that make Turbofy® more attractive and secure. The scope of Turbofy® is, therefore, subject to change. If changes should be made, with which existing essential features should be omitted or significantly restricted, we will inform the customer about this in reasonable time to the e-mail address provided in his customer account.
If changes to Turbofy® should be objectively unreasonable against the background of the services owed by us, the customer has a right of extraordinary termination, which must be exercised with a notice period of two weeks. The period shall commence when the customer becomes aware of the change. This right of termination does not apply to changes that implement legal changes, court orders, or to ensure IT security, as well as to changes to and the omission of features that we have made available to the customer as part of a beta test. For these, we reserve the right at any time not to continue to offer them or only to provide them in a modified form.
We are looking forward to any suggestion for improvement from a customer. For good order, however, we must stipulate that the customer transfers to us, free of charge, all rights to his suggestion that are necessary for its possible implementation and any exploitation. In other words, every suggestion is welcome, but we do not provide any compensation for it.
If the owed availability of Turbofy® is not met for a contractual month, the agreed usage fee shall be reduced proportionally for the period in which Turbofy® was not available to the customer to the extent stipulated.
We have to demonstrate that we are not liable for the shortfall. If the customer has not notified us of the lack of availability of Turbofy®, he has to prove upon our objection that we have otherwise gained knowledge of the lack of availability.
In case of defects of performance, 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 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.
If the customer notifies the existence of a defect and if, as a result of our resulting activity, it is determined that no defect exists in our performance, the customer shall reimburse our expenses incurred for this in accordance with the agreed hourly rates or, in the absence of an agreement, with reasonable hourly rates. This paragraph shall not apply if the absence of the defect was not identifiable by the customer when applying the care and knowledge to be expected of him.
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 the inability of Turbofy® to function. 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.
The customer is obliged to notify us without undue delay of any defects in performance of the contract, in particular defects of Turbofy®. If we were not able to remedy the defect as a result of the omission or delay of the notification, the customer is not entitled to reduce the agreed remuneration in whole or in part for the corresponding period, to demand compensation for the damage caused by the defect or to terminate the agreement for cause without notice. The customer must demonstrate that he is not responsible for the failure to notify the defect.
We warrant that the use of Turbofy® per the agreement does not infringe on third parties copyrights or other proprietary rights.
Should this be the case, we shall, at our discretion, acquire the rights required at our own expense or modify Turbofy® at our own cost to ensure that no rights of third parties are infringed anymore while maintaining the services owed to the customer.
Liability for intent and gross negligence is unrestricted.
In case of 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 - on whatever legal grounds - is excluded.
We shall keep confidential the data stored by the customer in Turbofy®. We will use this data only to fulfill the agreement with the customer. It shall be disclosed to third parties only insofar as it is necessary to fulfill the agreement in our reasonable discretion.
Data shall not be subject to confidentiality which (i) was generally known at the time of transmission or becomes generally known thereafter - through no fault of our own, (ii) was already lawfully known to us at the time of disclosure without the existence of a confidentiality obligation, (iii) is lawfully made known to us by third parties after the time of transmission without the existence of a confidentiality obligation, (iv) has been independently developed by us without us having utilized confidential information of the customer for this purpose, (v) become known to us through a permissible analysis of publicly available services or products of the customer or (vi) must be disclosed due to mandatory statutory, official or judicial regulations or court order.
This confidentiality obligations shall not be affected by any termination of the agreement.
Any processing of the customer's personal data by Turbofy® is subject to the attached data processing agreement according to Art. 28 GDPR.
Apart from that, we undertake to process personal data, which is not subject to the commissioned processing, which the customer provides to us for the fulfillment of the agreement per the applicable data protection regulations.
Each party shall be entitled to exercise a right of retention or set-off only to the extent that the underlying counterclaim has been legally established or is not disputed.
The assignment of rights and obligations under this agreement or the agreement as a whole to a third party shall only be permitted with the prior consent of the other contracting party. Such consent may not be unreasonably withheld or delayed.
If we authorize a customer as a reseller, distributor, or similar pursuant to Clause 2.1, the regulations set forth in this Clause 19 shall additionally apply.
We reserve the right to revoke the customer's authorization at any time with one month's notice, unless a longer period has been agreed upon with the customer. We are entitled to an immediate revocation of authorization for just cause.
Upon the issuance of authorization, the customer is permitted to represent themselves in a customary and reasonable manner as a "Turbofy® Partner." They must not create the impression that they legally represent us or possess the authority to enter into contracts on our behalf. We maintain the liberty to choose our partners and may appoint additional partners at any time. The customer shall have no entitlement to exclusivity.
The customer is prohibited from registering intellectual property rights or domains that include "Turbofy" or any term confusingly similar thereto. Should such registration occur, we may demand the free transfer or deletion of such registrations at any time. If we grant permission to the customer in a specific instance, they are obligated upon termination of their partnership to transfer or delete these at our discretion without charge.
The customer is forbidden from engaging in or authorizing advertising that uses "Turbofy" as a keyword (particularly to prevent so-called brand bidding).
The responsibility to ensure that the use of "Turbofy® Partner" does not infringe upon third-party rights rests with the customer. They are obligated to conduct their own legal review. Upon request, we will inform the customer whether we are aware of any third-party claims of rights infringement.
The customer has been informed that the right to use Turbofy® may involve services subject to export and import restrictions, sanctions, or embargoes under applicable laws. Consequently, specific approvals may be required, or the use of Turbofy® and related technologies may be subject to restrictions.
For this reason, the customer shall comply with applicable export and import control regulations, particularly those of the Federal Republic of Germany, the European Union, and the United States of America, as well as all other relevant regulations, and shall monitor compliance in accordance with legal requirements. If the services of Turbofy® are prohibited from use by the customer, any of their users, or any third party who is permitted to receive services under the terms of this Agreement, according to export and import control regulations, the customer must refrain from or prevent such use. Similarly, the customer shall not grant any third party access to the services of Turbofy® in violation of export and import control regulations. The customer is required to promptly inform us of any such violation and, in the event of fault, indemnify us from all damages and third-party claims, including reasonable costs of legal review and defense, upon first demand.
Our performance under the contract concluded with the customer is conditional upon the absence of any national or international export and import law regulations, as well as any other legal provisions that may conflict with it.
Each party shall be temporarily released from its obligation to perform to the extent and for the duration that it is prevented from performing due to force majeure (the "Prevented Performance"). This shall also apply if the party is already in default. If a party claims occurrence of an act of force majeure, the other party shall also be temporarily released from the performance owed by it to that extent that such performance is the counter-performance of the prevented performance or such performance can only be performed based on or together with the prevented performance.
Force majeure shall be events within the meaning of Section 206 of the German Civil Code (BGB) as well as any other unusual and unforeseen event, if the party invoking the force majeure did not cause the event, could not expect the event to occur, could not influence its occurrence, could not prevent its consequence despite exercising due care, and is prevented from rendering performance for the event. This applies in particular to war, terrorism, riots, pandemics, severe weather, environmental disasters, cyber-attacks, or if the performance hindrance is otherwise due to government order resulting in a performance hindrance. Force majeure shall also include impediments to performance due to shortages of raw materials and/or government actions due to shortages of raw materials and resulting general disruptions to performance (including in supply chains).
The party invoking the existence of force majeure shall
inform the other party without undue delay in text form about the fact, the reasons for it, and the effects;
with the diligence of a prudent businessman, undertake the measures necessary to resume full performance of its obligations without undue delay, if possible;
to make reasonable efforts to minimize, as far as possible, the negative impact on the performance of the agreement;
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 in the USA, the following arbitration agreement shall apply:
All disputes arising out of or in connection with this agreement or concerning its validity shall be finally settled in accordance with 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.
Amendments and supplements to this agreement must be made in writing unless a stricter form is required by law. This shall also apply to any waiver of the formal requirement.
The customer's general terms and conditions shall not apply to this agreement. This shall also apply if reference was made to their inclusion in later documents in connection with this agreement without objection.
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.
Only the German version of these Terms and Conditions shall be legally binding. This English translation is for information purposes only and shall not be used to interpret the German version.