Terms & Conditions for classmate CLOUD
Version 1.1 dated July 1, 2019
- Application / Potential Contracting Parties / Subject Matter of the Contract
1.1 These Terms and Conditions (“Terms”) apply to “classmate CLOUD”, a platform that can be used online (“Application”).
1.2 Only traders [“Unternehmer”] as defined by German Civil Code [BGB] § 14, a legal entity under public law or an investment fund constituted under public law can be contracting parties (“Customer”). The Application cannot be used by consumers.
These Terms apply exclusively. We are not bound by the Customer’s Terms even if we do not expressly object to them again upon receipt.
- Subject Matter of the Contract
2.1 The subject matter of the contract is the Application in its current version as well as in updated versions if we provide such updated versions during the term of the contract.
We may upgrade and update the Application at any time as long as this does not render the main current functions of the Application unavailable. In particular, we may make reasonable changes to how the Application is used or insignificant modifications to its functions.
2.2 If we add new functions or upgrade current functions, we can decide at our discretion whether to require the Customer to pay an extra fee to use these new or upgraded functions, and if so, how much. This does not affect the Customer’s ability to use the Application with its current functions. The Customer is not entitled to updates or upgrades.
2.3 We provide a free demo version of the Application in which users can view certain predefined demo models and perform corresponding calculations (with predefined values). The Customer must be registered before using the Application for individual models.
2.4 The Application is available 99% of the time (calculated for the year), except for maintenance windows that are announced on the website in advance and scheduled during the night (in German time) where possible. Availability is computed based on the availability on our server, i.e. excluding any general internet outages.
- Formation of Contract / Billing / Contract Term
3.1 The Customer can register for the Application electronically. To do so, the Customer must provide his or her email address for identification. The Customer must also provide the salutation, first and last name, company name and a password. CAPTCHA or another security mechanism prevents automated registrations. Furthermore, the Customer must review and accept information on data protection and the reliability of the calculation. Once the form is submitted, a confirmation email with a link is sent to the email address specified by the Customer. Once the Customer clicks the link, the user account is activated and registration is complete.
The service can be used free of charge for a limited period. Once this period expires, login access is deactivated unless the Customer enters into a fee-based contract with us. This contract may require additional information concerning the payment method (bank details) and a billing address.
3.2 The Customer receives a registration confirmation email that contains the relevant information from the registration process and these Terms, which collectively constitute the contract.
3.3 The Customer can perform a certain agreed-upon number of calculations per month for the fee shown in the price list and/or later in the order process. Should the Customer require more than the agreed-upon number of calculations, the Customer can order additional calculations for a fee.
Unused calculations do not roll over to the following month.
3.4 The contract can be formed in the English or German language. The Customer can set the language by choosing the language icon shown at the bottom of the page.
3.5 The contract can be entered into for one month or one year.
A monthly contract renews monthly for the same number of calculations as in the last contract month unless terminated by either of the parties at least one day prior to the end of the contract. A yearly contract renews yearly for the same number of calculations as in the last contract month unless terminated by either of the parties at least one month prior to the end of the contract. This does not affect the right to terminate the contract for cause. Such cause may exist if, for example, the Customer fails to pay the fee he or she owes for a period of two months.
- Fee / Payment Methods / Default Interest
4.1 All prices are stated in euros. They are firm and exclude the applicable value-added tax owed under tax law and, barring an agreement to the contrary, are due and payable in advance for the relevant billing period.
4.2 We indicate our accepted payment methods during the registration process.
If advance payment is offered as a payment method, we will provide our bank details in the order confirmation. In this case, the invoice amount must be paid to our account by bank transfer within 10 days.
If payment is made by direct debit, the withdrawal will be made following registration. By selecting payment by direct debit, the Customer gives us a SEPA Direct Debit Mandate that authorizes us to collect the invoice amount from the Customer’s account. We generally provide advance notice of an upcoming withdrawal along with the invoice no later than one day before the direct debit is due to be paid. The Customer shall ensure that there is enough money in the account to cover the direct debit.
If payment is refused for insufficient funds or incorrect bank details, or if the Customer illegitimately disputes the payment, the Customer shall be responsible for the fees charged by the relevant bank for the reversal wherever the Customer is responsible for the reversal.
We accept Visa and MasterCard for payments by credit card. Our payment service provider is NovalnetAG. The purchase price is generally charged to the account on the day of the order.
4.3 If the Customer fails to pay the agreed-upon fee when due, the fee will incur interest at a rate of 9 percentage points above the base interest rate until it is paid. We reserve the right to prove and claim higher damages due to the default.
4.4 Invoices are sent and/or made available online only.
4.5 The Customer does not have a right of retention or set-off except where the claim against us is based on the same contractual relationship (German Civil Code [BGB] § 320) or is undisputed, acknowledged or upheld by final and absolute judgment.
- Rights of the Customer
5.1 The Customer is granted a non-exclusive, non-transferable and non-sublicensable license to use the Application to the extent agreed upon during the term of the contract as stipulated by the contractual agreement. The Application is not loaned to the Customer. The Application may only be used for the Customer’s own business activities and only by the Customer’s own staff.
5.2 The Customer is not authorized to modify the Application. Nor is the Customer authorized to use the Application beyond the agreed-upon scope or to allow third parties to use or access the Application.
In particular, the Customer is not authorized to sell the license to the Application or to grant others temporary use of the license, especially not to rent it out or lend it.
- Duties of Care on the Part of the Customer
6.1 The Customer specifies a user name and a user password. The Customer shall securely store both the user name and the user password to prevent unauthorized use.
6.2 The Customer shall set the parameters in the Application in accordance with his or her own requirements. While the default settings made by us are based on relevant experience, they may be different from the values that are relevant for the Customer’s specific use case.
6.3 The Customer is aware that the Application is a calculation tool. The Application cannot take the place of a precise calculation. For this reason and because of the (non-exhaustive) information provided below, the Customer must check the result of the calculation process for plausibility. It must be noted, for example, that the Application only considers certain processing steps, such as turned parts, milled parts and bent parts. In addition, ambiguous information contained in CAD models provided by the Customer (on the required precision of processing steps etc.), for example, may lead to significant differences between the calculation results of the Application and the real costs.
6.4 The Customer is also solely responsible for performing appropriate data backups. The Application is not designed to store completed calculations and – barring an agreement to the contrary – only provides access to up to 100 calculations that are no more than one month old.
- Rights of Third Parties
7.1 We guarantee that the proper use of the Application does not violate any rights of third parties and that the Customer can use the calculations generated with the Application for its own commercial purposes.
7.2 The Customer guarantees that any data transferred to us does not infringe on any rights of third parties and in particular that the Customer has the right to use the data/models transferred to us. If this is not the case, the Customer shall hold us harmless from and against any third-party claims, including the cost of an adequate legal defense.
- Data Security, Data Protection
8.1 We strictly comply with all applicable laws and regulations relating to data protection, including, without limitation, the laws and regulations applicable in Germany.
Nevertheless, the Customer will ensure only to include such personal data in the transferred data required for the calculation that is required to use the Application (such as data that makes it possible to individually label the calculation and that also constitutes personal data) or that cannot be prevented from being transferred without putting an undue burden on the Customer, for example, because it is provided by the CAD software used.
8.2 Notwithstanding the above, we will obviously handle with utmost care any technical data that is transferred to us. After the calculation, the CAD model data is deleted and only our own “S3D” 3D format is stored with reduced information in the calculation history.
- Liability and Liability Limits
9.1 The contracting parties are mutually liable without limitation for any damages willfully or grossly negligently caused by them and by their directors, officers and agents for whom they are vicariously liable. The same applies to liability under the German Product Liability Act [Produkthaftungsgesetz].
9.2 The contracting parties are liable without limitation for injuries to life, limb or health due to slight negligence.
9.3 In all other cases, a contracting party will only be liable if it has violated a material contractual obligation. Material contractual obligations are those obligations that are particularly important to achieving the purpose of the contract as well as all those obligations whose culpable violation could frustrate the purpose of the contract. In cases like these, liability is limited to the payment of foreseeable, typical damages.
- Force Majeure
Neither contracting party is obligated to perform the contractual duties in case and for the duration of events of force majeure. For the purposes of this provision, force majeure events for which the contracting party cannot be held responsible include fire/explosion/inundation/power outage (including in the premises of a server service provider whom we have contracted to provide the contractual services if the service provider cannot be held responsible for these circumstances, either), war, mutiny, blockade, embargo, labor dispute lasting more than 6 weeks and not culpably brought about by the contracting party, or technical internet problems beyond a contracting party’s control.
Each contracting party shall notify the other party in writing without undue delay as soon as a force majeure event occurs.
- Final Provisions
11.1 This contract is governed by German substantive law.
11.2 There are no side agreements to this contract. Modifications or additions to this contract and its annexes must be made in text form to be valid. This also applies to a waiver of the text-form requirement.
11.3 Any invalidity of individual provisions of this contract does not affect the validity of the remaining contract terms.
11.4 The place of performance (including for any subsequent defect remedies) and the exclusive place of jurisdiction is Karlsruhe, Germany, provided that another place of jurisdiction is not required by law.