These General Terms and Conditions (“GTC”) apply for the services provided by rapidmail GmbH , Wentzingerstraße 21, 79106 Freiburg im Breisgau (also referred to as “we” or “rapidmail”), to customers (hereinafter referred to as “customer” or “you”). The customer’s General Terms and Conditions are not applicable, unless we have given our express consent to their application. With our services and our GTC, we are exclusively addressing entrepreneurs (in line with § 14 BGB [German Civil Code]), legal entities under public law, and special funds under public law, but we are not addressing consumers (§ 13 BGB).
If you have entered into a licensing agreement with us concerning the provision of services, or you have placed your order via our order process including the ensuing order confirmation (altogether hereinafter also referred to as “contract” or “licensing agreement”), you will gain the following services and rights subject to any special agreements in the licensing agreement, in your order, or in the order confirmation.
§ 1 Subject matter of the contract
rapidmail offers software for successful newsletter marketing incl. modern templates, the simple design, management and analysis of individual newsletter campaigns, the sending of transactional emails, and the provision of associated services (all of which are hereinafter also referred to as “services”). The services from this contract can comprise the below-mentioned components. An overview of our services can be found in the services description, the relevant version of which can be accessed on our website https://www.rapidmail.com/features/ or viewed in the contract. The concrete service components that we provide to you as part of the contractual relationship are based on the licensing agreement, or your order/order confirmation.
If, as part of the contractual relationship with you, we process any personal data for you, this data processing shall be conducted on the basis of the data processing contract as per Art. 28 of the GDPR, which shall become valid as soon as the contract takes effect. The respective applicable data processing contract can be found on our website at https://www.rapidmail.de/hilfe/dpa
- Our software is an SaaS (Software as a Service) solution (hereinafter also referred to as “software ,” “software services ,” or “SaaS services”).
- An overview of our entire service portfolio can be found in the services description, the relevant version of which can be accessed on our website https://www.rapidmail.com/features/.
- We generally provide our software services to you as part of a “subscription model.” In legal terms, this means they are on loan for the duration of our contractual relationship. Should we ever provide our services as part of a “pay-as-you-go model,” i.e., calculate your fees on a time and material basis and thus as part of a service contract, the provisions in these GTC apply correspondingly. However, provisions, such as our warranty obligation or our obligation to undertake maintenance, which generally apply to leasing contracts such as the subscription model, do not apply to the “pay-as-you-go model.”
- The concrete service components that we provide to you as part of the contractual relationship are based on the licensing agreement, or your order/order confirmation.
In addition to the SaaS services, we offer optional services (including project services), such as consultation services in conjunction with the use of our software. Should you wish
to be given individual support when using our software, this can be arranged through a separate contract detailing the specific services and payment. Our services are charged on a time and material basis – based on the number of person-days or on an hourly basis.
Web & server hosting
- With respect to our SaaS services, we also provide web & server hosting services. Our web & server hosting services comprise in particular the provision of an IT environment for our software. The IT environment is created within one or several servers. These servers are located locally on our premises or in leased data centers. They can also consist of virtual private servers or be leased from professional hosting providers.
- As part of our web & server hosting services, we provide you with storage space on our server equal to the size booked by you, for the purpose of storing your data.
- We also take care to ensure that your stored data is retrievable over the Internet. You have the exclusive rights to access the data and can request for it to be returned at any time. However, you do not have authorization to allow third parties to use your storage space.
- We also offer complementary support services in relation to our SaaS services.
You can reach us in the following ways:
- Telephone support is available Monday to Friday from 09:00 – 17:00 by calling +49 761 - 55 77 55 77
- Email & ticket system support is available 24/7, with a response service Monday to Friday from 09:00 – 17:00, by emailing email@example.com
§ 2 Fees for our services
- You shall receive our services based in principle on the conditions of the selected price model or based on the conditions of the individual offer created for you.
- In general, our services are charged on a time and material basis.
- All fees are subject to the statutory rate of sales tax based on the time when and place where the services were rendered.
- The fees for the services to be rendered by us shall, as a matter of principle, be paid by you in advance for the respective contractual month, insofar as nothing else is agreed. We also have the right to invoice you for fees covering up to 12 months in advance.
- Unless otherwise agreed, our invoices shall become due as soon as you receive them and shall be paid without deductions into our account, which is specified on the invoice, within fourteen calendar days.
- We reserve the right to increase our prices if a) our service providers increase their prices, b) this becomes necessary for offsetting inflation-related price changes, c) the consumer price index increases correspondingly, or d) in case we wish to make changes to the way our business model is priced. We will, as a matter of course, inform you of any price changes with advance notice, so that you can either agree or object to them. Should you not agree to any particular price increase, we will make every effort to find a solution by mutual agreement. If no solution can be found, each party has the right to terminate this contract with a notice period of 1 month from the moment the negotiations fail.
§ 3 Contract term
- The contract concerning the software shall be concluded for the duration selected in the offer, in the contract, or in the order process. Otherwise, and in the absence of any specific details, the contract shall be concluded for the standard term of one month from contract conclusion (“basic term”).
- It shall be possible to terminate the contract at any time. The provisions governing contract termination shall result from the offer, the contract, or the order process. Otherwise, i.e., in the absence of provisions in the aforementioned documents and processes, the following applies: the notice period for both parties shall be one month until the end of the term. The termination can be carried out through provision of a written notice or through terminating use of our services in your customer area. Unless the contract is terminated, it shall be extended in each case by the duration of the basic term.
- The selected price model can be upgraded or the booked services extended at any time with immediate effect. The number of users can be reduced and a price model downgraded at any time with immediate effect. There shall be no reimbursement for the costs paid for the current invoicing period.
- Once termination of the contract takes effect, access to our services shall be blocked for you and your users. You can export the contents processed using our services until the termination takes effect. After this, your access shall be completely deleted. Upon request and, where applicable, for a separate fee, we can provide support services to assist with the termination process.
- The right to an extraordinary termination of this contract for an important reason shall remain unaffected.
§ 4 Online booking
- If you book your access to our software and other services via our online order process, the following provisions shall also apply in addition to the other contractual conditions.
The licensing agreement concerning the use of our services shall be concluded through the following steps:
- On our website you will find information about the content and costs of the fee-based services that we offer. This information does not yet constitute an offer for concluding a contract for using our services.
- It is not until the applicable booking form is sent that you submit to us a binding offer for concluding a contract for the applicable services.
- Before the booking form is submitted, we shall inform you of the charges that will be incurred for the booking and will give you the opportunity to take note of these GTC and any other contractual conditions. You will also be able to download and save these.
- Furthermore, before the booking form is submitted, we will give you the opportunity to check and, if necessary, correct your details.
- After the booking form is submitted, you will receive confirmation of receipt of your booking at the email address that you provided. In principle, this confirmation of receipt also represents acceptance of your offer for booking the service.
- In this email, or in a separate email, we will send/provide to you the contract text (comprising the order, GTC, and order confirmation and invoice), if necessary as a link (contract confirmation). You can download and save these.
- Once the purchased services have been paid for in full, you shall receive immediate access to the services.
§ 5 Principles on how we render our Services
- With our software and its functions, we are merely providing you with a technical basis for you to fulfill your aims within the framework of the purchased services (see in particular the services description at https://www.rapidmail.com/features/). We accept no responsibility for any actions executed using our software or for any content processed using our software. With respect to all of the actions executed and content processed by you using our software, only the statutory provisions, agreements, and contracts that you conclude with customers, partners, employees, etc., with or for whom you use our software, apply.
- The use of our software is subject to the respective legal leasing provisions. Maintenance measures, such as updates, patches, and hotfixes, form part of our services. Support measures that go beyond these can be provided upon corresponding agreement. Beyond the scope of the maintenance measures, the user’s statutory right to claim in the event of leasing defects applies.
- Adaptations, changes, and additions to the software, as well as measures designed to identify and resolve malfunctions shall only cause a temporary service interruption or impairment if this is absolutely essential for technical reasons.
- You are not permitted to allow third parties to use our services for commercial reasons.
- We have the right to render our services through third parties and sub-contractors.
- We reserve the right to change or adapt our services, as well as the documents and any attachments/appendices/annexes relating to these, in consideration of your interests, as long as in doing so we do not breach our contractual main service obligations to you. We shall only undertake significant modifications and settings that have a negative impact on our contractual relationship with you if you agree to this. If such an agreement is not reached, but we still have to undertake the respective modification or setting as we are changing our business model, or because it is necessary for technical reasons, both parties have the right to terminate this contract on the basis of extraordinary reasons.
- In the event of force majeure, we are released from our duty to render services for the applicable duration, insofar as it is indeed not possible for us to render services. Force majeure is considered to be any of the following for which we or a subcontractor are not responsible: fire, explosion, flooding, war, blockade, embargo, pandemic, or industrial action.
- You are responsible for the actions of your users and shall be held liable for these as well as your own actions.
- Certain links and functions in our software enable you to access third-party websites and software not operated by us and for which we are not responsible. These links or functions are either clearly designated or can be identified through a change in the address bar of the browser or a change in the user interface.
You are not permitted to do any of the following when using our software:
- Carrying out load tests, searching through our software for security gaps, or systematically testing the services of our software in any other way (penetration tests are especially prohibited)
- Breaching third-party property rights, such as brands, copyright, and name rights
- Harassing other customers and third parties
- Using malicious-code-infected or virus-infected documents, files, IT systems of third parties, and data in conjunction with our services
- Using mechanisms, software, and scripts that go beyond the scope of provided functionalities and interfaces, especially if this blocks, modifies, copies, or overwrites our services
- Impairing our services through data alteration (§ 303a StGB [German Criminal Code]), computer sabotage (§ 303b StGB), falsifying evidentiary data (§ 269, 270 StGB), suppressing evidentiary data (§ 274 StGB), computer fraud (§ 263a StGB), spying on data (§ 202a StGB), intercepting data (§ 202b StGB), or other criminal offenses.
- We have the right to refuse access to our software upon specification of legitimate reasons and to block or exclude you as a customer or your users, or to terminate the contract for extraordinary reasons, if we receive repeated complaints about you, or if you repeatedly violate the provisions stipulated in this contract and these GTC, and any other requirements communicated by us, or repeatedly fail to adhere to the legal requirements. Should the case arise, we shall inform you of the matter without delay and give you the opportunity to provide a statement. Before imposing a full block or a full exclusion on you, we shall first inform you of our intention to do so with the corresponding reasons 30 days in advance. If you redress the reasons that led to your being refused, blocked, or excluded from accessing our software, we shall assess whether it is possible for you to resume your services on our platform.
§ 6 General liability
- We shall assume liability – subject to separate provisions in the contract or in these GTC, especially in §§ 6 and 7 – for any direct material damage and financial losses caused by us, our legal representatives, vicarious agents, and the sub-contractors engaged by us, up to a value of EUR 100,000 per damage event, to a maximum of EUR 200,000 per year of the contract term, irrespective of the number of damage events.
- In the event of simple negligence, our liability is limited to the damage that can be considered predictable and expected within the framework of the contract. Outside of breaching our main contractual obligations, we accept no liability for the replacement of indirect material damage and financial losses, especially lost profits, in the event of simple negligence. In the event of force majeure, as well as free-of-charge use of our services, we accept no liability in the event of simple negligence. Contractual obligations are considered to be obligations that must be fulfilled in order for the contract to be carried out in the first place and that can be relied upon to be fulfilled.
- We shall accept liability to an unlimited amount in the event of injury to life or limb or health, as well as in the event of a willful or malicious act. The same applies to the written assumption of a guarantee for the quality or durability of a service to be rendered by us.
- Our liability according to product liability law remains unaffected.
- You are responsible for the actions of your employees, your legal representatives, vicarious agents, and any other users of our services, as well as for your own actions. Furthermore, as part of your responsibilities (see especially § 5 section 1 of these GTC), you shall absolve us of any responsibility upon first request of liability claims filed by third parties due to damages caused to third parties and any other affected parties through your use of our services.
§ 7 Warranty for our services
- In the event of material damage or defects of title, the legal regulations apply subject to the specifications in this clause. § 377 of the HGB (German Commercial Code) applies. All defect claims are conditional upon your immediate notification of the respective defects as per § 377 section 1 and section 3 of the HGB. Your notification of the defects must be submitted in writing (excluding electronic means of communication).
- In the event of material defects, you shall first be entitled to free-of-charge rectification or redelivery (hereinafter “rectification”) of our choice. If the defect cannot be resolved after two rectification attempts, it must be verified whether your interests can be met using an alternative solution before any termination or withdrawal.
- In a lease case, the strict liability for damages for any defects present upon transfer pursuant to § 536a Section 1 in the BGB (German Civil Code) is excluded.
Defects of title
- Our services are provided to you without being subject to any rights of third parties. Please inform us immediately in writing if you are notified of any rights of third parties to our services.
- At our request, you shall entrust to us the defense against the asserted claims from third parties, provide us with all necessary information, give statements, and confer any necessary powers. In return, we shall release you of any claims for payment or damages due to third party rights.
If our services do indeed ever become affected by the rights of third parties, we have the right to choose
- whether to remove the rights of third parties or their assertion of their rights (e.g. through payment of license fees), or
- whether to change our services such that third party rights are no longer violated.
- You shall lose your right to claim for defects if you have made changes to the services without our prior consent, or if you use the services for a purpose that is not covered in this contract and solely this action is responsible for the occurrence of the defect.
- All claims due to defects are limited to 12 months, as long as they are not already limited or excluded based on the aforementioned provisions.
§ 8 Your rights to use our services
Software use & general
- You shall receive a simple, non-exclusive right to use our services that is limited to the duration of the contract but not restricted in terms of space.
- Any group companies in which you own a majority interest also have equal rights to use the software. Any independent right to sub-license or otherwise transfer/assign your usage rights shall not be associated with this. This usage right shall end if the requirements of an associated company (e.g. as defined by §§ 15 ff. of the AktG (German Stock Corporations Act)) are no longer present for the group company.
- You are not authorized to exhibit, make a public reproduction of, especially making access public, process, modify, translate, decompile, or make any other form of modification to the software. Your rights from the UrhG (Copyright Act) §§ 69d section 3, 69e remain unaffected.
- We have the right to use our services, including new releases as well as any other general expertise, experience, methods, and approaches developed in connection with the contract, for any other purposes (provision to third parties, as Open Source Software etc.).
- Test and demo licenses are restricted to a term of up to 30 days, subject to any other agreement.
Open Source Software
- We shall grant you such rights to the Open Source Software that forms part of our services which can be transferred to you according to the licensing conditions that apply to us. You are permitted to use our services exclusively within the context of these licensing conditions. We accept no guarantee or liability for any usage that goes beyond this.
§ 9 Transfer to third parties
- We have the right to transfer the contract to a legal successor or a group company that is associated with us. We shall inform you of this in writing at least two months before the planned transfer.
- Transfer of the contract to a third party requires your prior consent. In the event that you do not consent, the contract shall continue unchanged. Your opposition is considered to be an important reason for us to effect an extraordinary termination of the contract.
§ 10 Non-disclosure
- As part of our cooperation, both parties will receive knowledge of trade secrets of the other party or third parties. A trade secret is information that is neither generally known nor readily accessible to persons who usually deal with this kind of information, which makes this information of economic value and thus subject to suitable non-disclosure measures (cf. § 2 GeschGehG (German Trade Secrets Protection Act)). A trade secret is also information that is designated as a trade secret, protected by industrial property rights or the Copyright Act, falls under banking secrecy or data protection, and for which there is a justified interest in keeping it a secret. Information not considered to be a trade secret includes information already known to the other party before disclosure of the information, information that, following disclosure, becomes known to the public without involvement from the party to whom the information was disclosed, information that the party to whom the information was disclosed found out about through an authorized third party, and information that the party to whom the information was disclosed developed itself.
- The receiving party, as well as all who, as intended, come into contact with trade secrets, are bound to treat the trade secrets with strict confidentiality and only to use them or disclose them to third parties and employees if this is required in connection with the business purpose. Apart from that, the receiving party shall protect the trade secrets from becoming known to third parties.
- At the request of the disclosing party, or no later than the time when the contractual relationship comes to an end, objects, as well as files and other intangible objects that contain trade secrets, shall be immediately deleted or returned to the disclosing party.
§ 11 Final provisions
- The assignment of individual claims from this contract requires the prior written consent of the other party. This excludes the assignment of monetary claims.
- The only law that applies to the whole contractual relationship between the parties is the law of the Federal Republic of Germany with exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
- The place of jurisdiction for any disputes that arise from the contractual relationship is the relevant competent court where we are based.
- You bear sole responsibility for adhering to export control law, as well as all import and export regulations in relation to our services.
- Changes and additions to the GTC, as well as to the entire contract between us need to be in writing to become effective. Changes and additions to the contract which we (have to) make due to changes in legal or technical requirements affecting how we render our services, and which do not have a negative impact on the services to which you are entitled, shall become effective if you do not file a written objection to a change within one month after receiving notification of the change and we gave you advance notice of your right to object. If you object to the change, the contract shall continue to apply unchanged and we shall have the right to terminate the contract on the basis of extraordinary reasons with a notice period of one month to the end of the next calendar month. Changes and additions that we would like to make to the contract due to changes in service requirements, payment requirements, or any other commercial or operational requirements, shall only take effect if you give your express consent. You can give your consent by clicking a consent button in the notification that you receive about the change (email or pop-up when using our services) or by any other simple and transparent means that we provide to you. Changes to this clause on form also need to be made in writing. The priority of individual collateral agreements remains unaffected. Should any changes become necessary to prevent an unforeseen and immediate threat, and in order to protect you against fraud, malware, spam, violations of data privacy, or other cyber security risks, the aforementioned notice periods shall not apply and you will merely have a right to be informed about changes to the contract.
- Should one of the provisions of the contract be ineffective or the contract contains a loophole requiring a provision, this shall not affect the effectiveness of the remaining or incomplete provisions. In this case, the parties shall commit to replacing or completing the ineffective or incomplete provisions with provisions that, in an economical sense, are as similar as possible to the ineffective or incomplete provisions.
Status: June 2022