General Terms & Conditions
General terms and conditions of 3Q GmbH
for using 3Q SDN and for complementary services
1. Subject matter, scope and structure
1.1 These general terms and conditions (the “3Q GTC”) apply to all contracts between 3Q GmbH Belfortstr. 5, 81667 Munich (“3Q”) and the contractual partner (the “customer”) for the paid provision of the 3Q SDN platform as SaaS (the “Service”) and for supplementary services to assist the customer in using the service (“Additional Services”). 3Q and the customer will be individually Also referred to as “party” and collectively as “parties.”
1.2 Details of the functions of the service, the additional services commissioned by the customer and the remuneration to be paid by the customer for the provision of the service and the additional services are set out in the order or order form (the “order form”), which includes these 3Q terms and conditions.
1.3 The order form, these 3Q terms and conditions, the order processing agreement (see Section 16.1) and included attachments are collectively referred to as the “user agreement” below. The order form (2) these 3Q terms and conditions, (3) including attachments apply in descending order; the order processing agreement always prevails within its scope of application.
1.4 The user contract is concluded upon confirmation of the customer's order by 3Q, to which 3Q is not obliged. 3Q only offers the service and corresponding additional services to entrepreneurs within the meaning of § 14 BGB and reserves the right to request proof of the customer's entrepreneurial status.
1.5 The terms of the user agreement also apply to changes to the service that 3Q makes during the contract period, for example through patches, updates, upgrades or other changes to the service (collectively “updates”).
1.6 The customer's general terms and conditions do not apply unless 3Q expressly agrees to their validity, at least in text form.
2. General rules for the provision of services
2.1 3Q provides the contractual services in agreed quality and with agreed availability. Performance times and dates are non-binding, unless they are expressly agreed as binding in the order form.
2.2 3Q may use vicarious agents (e.g. hosting service providers) to provide services. 3Q is liable for vicarious agents as for its own actions (see Section 13).
3. Operation and provision of the service
3.1 3Q provides the customer with the functions of the service during the contract period within the promised availability (see section 5) for access and use via the Internet. In principle, the functions of the service can be accessed worldwide via the Internet. The customer also has access to the latest version of the electronic user manual for the service.
3.2 3Q gives the customer the opportunity to use the service by creating an account for the customer and either providing the customer with a user name and password (together “login data”) or by giving the customer the opportunity to set up access data himself. The customer will set up access data exclusively for persons authorized to use the service by him (“Authorized Users”). It ensures that only authorized users receive access data and access to the service. The customer will oblige each Authorized User in advance to treat the access data confidentially and to comply with the usage rights and restrictions in accordance with Section 6.
3.3 Any use of the access data and the service, even contrary to contract and otherwise unauthorised, is considered to be used on behalf of the customer in relation to 3Q, unless the customer is not responsible for the unauthorised use. If the customer becomes aware of unauthorised access to login data or the service, he will immediately receive 3Q at least in
Provide information in writing and have the login details changed or changed.
4. Quality of the service
4.1 The service includes features for providing and playing video content (VoD) and for live streaming. Details can be found in the service description in the order form.
4.2 The customer is aware and agrees that the use of the service in accordance with the contract requires compliance with the current minimum technical requirements communicated by 3Q and an adequately sized Internet connection. The current minimum technical requirements are described in the user manual.
4.3 3Q may update and otherwise make appropriate changes to the service at any time without the customer's separate consent, in particular to adapt to a changed legal situation, technical developments or to improve IT security. 3Q will take appropriate account of the customer's legitimate interests. Where necessary and reasonable, the customer participates in a change, for example by re-entering login data or simply
changes to its systems.
5. Availability of the service
5.1 Unless different availability has been agreed in the order form, 3Q promises a minimum availability of the service of 99.9% in the annual contract average.
5.2 The service is considered unavailable if essential functions of the service or the service as a whole cannot be accessed. The data center's Internet hub from which the service is made available is decisive.
5.3 Excluded from the commitment of minimum availability in accordance with Section 5.1 are (i) downtime of the service as a result of maintenance or care of the hardware or software used to provide the service, including the installation of updates, (ii) availability disruptions due to causes beyond 3Q's immediate control, such as force majeure or attacks by third parties on the infrastructure used to provide the service, and (iii) times for which 3Q provides the customer with access to the service Service in accordance with Section 9 is blocked or restricts.
5.4 If necessary, maintenance and care can also be carried out by 3Q on working days. 3Q will endeavour to keep service downtime as a result of maintenance and care as low as possible.
6. Rights of use and restrictions
6.1 3Q allows the customer to access the service via the Internet by authorized users during the contract period and to use the functions of the service as intended. This includes the customer's authority to use the service to make customer content (see Section 8.1) publicly and non-publicly available to third parties, for example as a VoD or live stream.
6.2 The customer is not permitted to use the service by 3Q in excess of Section 6.1. In particular, the customer is not authorized
a) to (sub) rent out the service itself in whole or in part without the separate consent of 3Q or otherwise make it available to third parties for a fee;
b) to carry out, promote, or condone acts which disrupt or damage the service, or which temporarily or permanently impair or make impossible its use by other customers;
c) Enter, upload, otherwise store customer content into the service contrary to Section 8.3, or stream or otherwise process customer content with the service contrary to Section 8.3.
The customer's legally binding rights remain unaffected.
6.3 The customer will immediately inform 3Q, at least in text form, if he becomes aware of a violation of this Section 6.
7. Customer involvement and responsibilities
7.1 The customer appoints a competent contact person and representative for the execution of the user agreement. The contact details can be stored and changed in the account administration interface.
7.2 Information reasonably requested by 3Q in order to execute the user contract from the customer's sphere will be made available to the customer in full and within a reasonable period of time. The customer is obliged to provide the necessary data completely and correctly and to report changes immediately. This applies in particular to address details, bank details, telephone numbers and email address.
7.3 3Q can send information and explanations relating to the contractual relationship to the customer's email address provided. The customer will regularly retrieve the email address that serves as contact address for 3Q.
7.4 The customer is solely responsible for meeting the minimum technical requirements communicated by 3Q and for the functionality and adequate dimensioning of the Internet connection to access the service.
7.5 The customer is obliged to set up its systems and programs in such a way that neither security nor integrity nor the systems used to operate the service by or on behalf of 3Q are compromised. He is solely responsible for the security of his own systems and their protection against malware and attacks. He will continuously take appropriate and suitable precautions to prevent and reduce the potential effects of disruptions or deficiencies in the service; this includes creating regular backups of customer content.
7.6 The customer will only use the service to the extent permitted by contract and comply with all legal and regulatory requirements applicable to him.
7.7 The contractual partner shall make its systems available as far as it is necessary for the provision of services and cannot be provided by 3Q through the use of work equipment, materials and systems. It also ensures that appropriate 3Q premises can be entered during normal working hours.
7.8 The customer will perform all cooperation services at his own expense, in a timely, complete and professionally correct manner.
8. Customer content
8.1 The customer is responsible for the images, videos, streams, information, logos and other content (collectively “Customer Content”) entered, uploaded, otherwise stored or otherwise processed with the service by him or on his behalf. At the customer's request, 3Q may change customer content on behalf of the customer, but without being obliged to make changes on behalf of the customer. The customer is aware and agrees that 3Q does not review customer content in terms of content or legality.
8.2 By entering, uploading, storing or otherwise providing customer content until the user contract has been completed in full, the customer grants 3Q a non-exclusive, irrevocable, worldwide right to use the customer content to fulfill and process the user contract, in particular to reproduce, process and display this right for itself by third parties, such as through acting agents (e.g. hosting service providers). Insofar as the customer cannot grant this right to customer content himself, he grants 3Q this right.
The customer assures that he has all necessary rights to the customer content, in particular the necessary image, trademark and copyrights, and that all necessary consents and consents, in particular for the processing of personal data, are effective
to have caught up.
8.3 The customer shall ensure and warrant that
a) neither customer content itself nor its input, storage, retrieval or processing infringe the rights of third parties (including copyrights, personal rights and industrial property rights) or violate applicable law;
b) Customer content is neither wholly or partially glamorizing, shocking, discriminatory, seditious, inhuman, racist, extremist, sexist or otherwise immoral, punishable, abusive, threatening, defamatory or insulting acts;
c) the customer has effectively obtained and maintains all consents and consents from third parties required for the input, storage and processing of customer content, including consents required under data protection law; and
d) Customer content does not contain or distribute viruses or other malicious software.
8.4 The customer will not enter, upload, otherwise store, stream or otherwise process customer content via or in connection with the service in accordance with Section 8.3 or tolerate the aforementioned actions. If the customer discovers that customer content is stored in the service or otherwise processed using or in connection with the service contrary to Section 8.3, he will immediately inform 3Q of this and coordinate the joint procedure. Any claims and rights of 3Q remain unaffected by this Section 8.4.
8.5 The customer assumes sole and unlimited liability against anyone who claims an infringement of rights in connection with customer content against 3Q or vicarious agents employed. At 3Q's request, the customer will provide extrajudicial and judicial defense against third-party claims made against 3Q in connection with customer content. 3Q's right to (also) defend itself remains unaffected. The customer may only carry out negotiations, a comparative settlement of a dispute and litigation with effect for 3Q with the prior consent of 3Q. The customer bears the costs of defending claims made in connection with customer content, including reasonable costs of legal defense. All other rights and claims of 3Q remain unaffected.
9. Restriction, blocking and deletion
9.1 If, on the basis of actual evidence, 3Q suspects that the customer's access data is being misused or used in breach of contract, 3Q may block and replace this login data.
9.2 3Q may temporarily block the customer's access to the service (i) as long as the customer is in default of payment with a not only insignificant proportion of agreed payments or (ii) the customer's systems act or react differently from normal operating behavior and the security, integrity or availability of the service is affected as a result. In addition, 3Q may block the customer's access to the service if the collection of due fees from the account specified by the customer (see section 12.5) was unsuccessful three times, i.e. the charges have not been permanently credited to 3Q; the blocking can be maintained until the outstanding amounts have been paid in full.
9.3 If, on the basis of actual evidence, 3Q has entered or processed customer content in breach of contract, in particular contrary to Section 8.4, 3Q may inform the customer of this and give him the opportunity to either (i) remove the relevant customer content or (ii) prove that input and processing is carried out in accordance with the contract. If the customer does not fulfill any of these options within a reasonable period of time, 3Q may remove or block the customer content.
9.4 3Q will take reasonable account of the customer's legitimate interests when deciding and implementing the above measures.
9.5 All other claims and rights of 3Q, in particular retention and termination rights, remain unaffected by this Section 9.
10. Material and legal deficiencies
10.1 3Q guarantees the provision of the service in accordance with the contract within the agreed availability. 3Q will remedy any deficiencies in the service within a reasonable period of time after proper notification of the defect by the customer. The defect can also be corrected by means of an update.
10.2 Insofar as the customer is completely or partially deprived of the contractual use of the service due to a legal defect, 3Q may also remedy the defect at its own discretion by 3Q
a) provides the customer with the necessary rights to use the service in accordance with the contract, or
b) changes the service in such a way that the right of the third party no longer precludes the use by the customer in accordance with the contract.
3Q will take appropriate account of the customer's legitimate interests.
10.3 In addition, in the event of service deficiencies, Sections 535 et seq. of the German Civil Code apply, with the proviso that liability regardless of fault for defects existing at the time of conclusion of the contract is excluded in accordance with Section 536a (1) of the German Civil Code (BGB). Section 5 applies to the availability of the service.
10.4 If a third party claims against the customer a violation of rights through the service, the customer will immediately inform 3Q of this in text or written form. 3Q will provide the customer with appropriate assistance in defending and — to the extent permitted by law, in particular data protection law — provide relevant information. 3Q's obligation to correct defects in accordance with Section 10 remains unaffected by this.
11. Additional services
11.1 The provisions of this Section 11 apply to agreed additional services, in particular services for instructing and training authorized users, application support via e-mail or other communication channels set up for this purpose, and other consulting services provided by 3Q to assist the customer in setting up or using the service.
11.2 If the parties have agreed support for the use of the service as additional services, the customer may contact 3Q to an appropriate extent via the communication channels provided for this purpose by 3Q. 3Q will handle the support request during 3Q's business hours and will respond to the support request within a reasonable period of time.
11.3 If training is agreed by 3Q in connection with the service as additional services, the customer is solely responsible for the participants taking part in the respective training on the agreed day at the agreed time. 3Q is not obliged to offer further training dates if participants do not attend a training session.
11.4 Insofar as intellectual property rights arise when performing additional services, 3Q grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the work result in connection with the functions of the service during the contract period.
11.5 3Q provides additional services with the care of an ordinary businessman. 3Q is not obliged to achieve or deliver specific results or a specific success.
12. Remuneration, invoicing and payment terms
12.1 The customer is obliged to pay (i) one-time fees, (ii) ongoing, usage-independent charges and (iii) usage-based charges.
12.2 The 3Q price list valid at the time the contract is concluded applies, unless different prices have been agreed between the parties in text or written form. All charges are exclusive of statutory value added tax at the applicable rate.
12.3 One-off charges, such as for set-up assistance, must be paid by the customer together with the first usage-independent fee for the service. Current, usage-independent charges must be paid monthly in advance by the customer, unless a different billing period has been agreed. Usage-based charges must be paid by the customer after the end of the month to which the usage-based fee relates.
12.4 The customer agrees that 3Q will send invoices as a PDF by email to the email address stored by the customer in the account; there will be no additional postal transmission.
12.5 Invoice amounts are due for payment upon receipt of the invoice. If the customer has issued a direct debit mandate or if the customer pays by credit card, invoiced amounts will be collected at the earliest when the due date is made by 3Q. The customer is obliged to ensure that there is sufficient funds in the specified account. Fees and processing costs arising from the chargeback of due charges shall be borne by the customer in the amount of at least 20 euros, provided that the chargeback is based on causes within the customer's area of responsibility. 3Q is entitled to proof of higher chargeback costs. If the customer withdraws his consent to the direct debit procedure, 3Q charges an appropriate processing fee for administrative processing.
12.6 3Q may reasonably adjust the usage-based and usage-independent charges to be paid by the customer during the contract period, even without the customer's separate consent. Reasons for an adjustment may include, in particular, changes in energy costs, personnel costs, license costs for third-party software or services used or changes in other infrastructure costs in connection with the development, provision and/or maintenance of the service or hardware or software used for this purpose. 3Q will inform the customer of an intended fee adjustment and the date of its entry into force at least sixty (60) days before its entry into force. In the event of an announced increase in the fee, the customer may terminate the user agreement with a notice period of thirty (30) days from the date of change; Section 14 remains unaffected by this.
13. Liability limitation
13.1 3Q is fully liable in the event of intent, gross negligence and culpable injury to life, body or health.
13.2 In the event of slight negligence, 3Q is only liable for breaches of essential contractual obligations, i.e. obligations whose fulfilment makes the proper execution of the contract possible in the first place or whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the customer may regularly rely. In these cases, 3Q's liability is limited to the contract-typical damage foreseeable at the time of conclusion of the contract. The unlimited liability in accordance with Section 13.1 remains unaffected by this.
13.3 In addition to Section 13.1 and Section 13.2, 3Q is not liable for slight negligence.
13.4 The above limitations of liability do not apply to liability under the Product Liability Act and within the scope of guarantees assumed in writing.
13.5 Section 13 also applies in favour of employees, representatives, organs and vicarious agents of 3Q.
13.6 The parties are required to maintain business liability insurance that covers personal injury, property damage and financial damage. Should there be changes in connection with business liability during the term of this contract, the parties are obliged to immediately inform the other party, at least in text form.
14. Contract period and termination
14.1 The user agreement comes into force on the date stated in the order form and ends in accordance with the following provisions (the “contract period”).
14.2 The user agreement is concluded for an indefinite period and can be duly terminated by either party with a notice period of one (1) month after expiry of a minimum contract period of three (3) months. Ordinary termination is excluded during the minimum term. Any deviating agreements between the parties in the order form shall prevail.
14.3 The right to extraordinary termination for good cause remains unaffected. There is an important reason for 3Q in particular when
a) the customer is in default of payment for two consecutive months with the remuneration owed between a not insignificant part of this remuneration or in a period of more than two months with a remuneration equal to the amount after two monthly basic payments and the outstanding amount is at least 50 euros;
b) the customer repeatedly uses the service beyond the right of use or violates agreed usage restrictions in accordance with Section 6;
c) the customer has initiated proceedings for its dissolution, liquidation or settlement; the customer has ceased its business activities or is insolvent.
14.4 Terminations must be made at least in writing in order to be effective.
15. Confidentiality
15.1 “Confidential information” provided by a party means information on know-how relevant to competition, information marked as confidential or otherwise identifiable as confidential on the basis of an objective recipient horizon, and trade secrets. Confidential information also includes the commercial terms of the user agreement.
15.2 In the course of initiating or executing the contract, the parties will become aware of confidential information from the other party
a) keep confidential and use it exclusively for the execution of the contract;
b) Do not disclose or make available to employees and third parties, except insofar as this is absolutely necessary for the execution of the contract (need-to-know) and only if these employees or third parties have been required to maintain confidentiality;
c) protect against access by unauthorized persons through appropriate and appropriate measures (e.g. access control, encryption).
15.3 Section 15.2 does not apply to confidential information that
a) a party has received or receives from third parties lawfully, in particular without breach of a confidentiality obligation;
b) were already generally known at the time the contract was concluded or become generally known subsequently without breach of the obligations contained in this contract;
c) existed with a party before the start of the business relationship and are not subject to any obligation of confidentiality; or
d) be developed independently by a party.
In addition, the parties are entitled to use and disclose confidential information insofar as they are required to do so by law or authority. In such a case, the relevant party will immediately notify the other party in writing of the scope and basis of the use or disclosure.
15.4 This confidentiality obligation continues to apply for a further three (3) years over the term of the user agreement.
16. data protection
16.1 Insofar as 3Q processes personal data on behalf of the customer as part of the provision of services, this is done in accordance with the Order Processing Agreement (“AVV”) between the parties. The AVV always has priority in its area of application.
16.2 The customer is solely responsible for the admissibility of processing personal data and for meeting the requirements of applicable data protection law, in particular for providing data subjects with proper information (Art. 12 ff. GDPR).
16.3 The customer fully indemnifies 3Q from all claims as well as from judicial and administrative measures and sanctions in connection with the processing of personal data, except to the extent that 3Q alone is responsible for the improper processing and has carried it out contrary to the customer's instructions. The customer's liability includes reimbursement of reasonable costs of legal defense. All other claims and rights of 3Q remain unaffected.
17. Free trial period
17.1 During the agreed test phase (“test phase”), the provisions of this Section 17 shall prevail over the other provisions of the user agreement. During the test phase, the customer is not obliged to pay usage fees.
17.2 During the test phase, contrary to Section 6.1, the customer is only allowed to access the service via the Internet in order to test the functions of the service by authorized users who are employed by the customer as employees. The customer is not permitted to use it for any other purpose. In particular, during the test phase, the customer is not permitted to use the service for commercial purposes or purposes of third parties, to allow or grant third parties access to the service or functions of the service during the test phase.
17.3 The customer is aware and agrees that the service may not be available during the trial period, only to a limited extent, with significant interruptions and/or errors. 3Q does not guarantee availability of the service during the trial period. Paragraph 5 does not apply.
17.4 During the test phase, 3Q is liable in accordance with the provisions of loan contract law (Sections 598 et seq. BGB). Sections 10 and 13 also do not apply.
17.5 The test phase automatically ends at the end of the agreed duration of the test phase of seven (7) days. The customer can end the test phase early at any time using the process provided for this purpose in the service. If the test phase ends without the customer terminating the user contract during the test phase (see Section 17.7), the user contract will be continued for a fee. This paragraph 17 will then no longer apply.
17.6 During the test phase, either party may terminate the user agreement with immediate effect without notice.
18. Final provisions
18.1 The user agreement and all claims and rights arising from or otherwise related to it are subject to the laws of the Federal Republic of Germany. The UN Sales Convention (CISG) is excluded. The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with the user agreement is Berlin.
18.2 The user agreement contains the final regulation of all rights and obligations of the parties with regard to the subject matter of the contract. There are no ancillary agreements when the contract is concluded.
18.3 Unless otherwise agreed, amendments and additions to the user agreement must be made at least in writing. This also applies to the waiver of this formal requirement. Section 4.3 remains unaffected.
18.4 The customer can only offset undisputed, legally established or decisive claims arising from this user agreement against 3Q and make use of a right of retention only on the basis of such claims.
18.5 The parties may assign or transfer claims or rights under the user agreement only with the consent of the other party. Section 354a HGB remains unaffected.
Munich, 16.02.2022
