Last revision: 2014-12-16
For German version of this document, click here

1. Subject matter of the contract and area of applicability

  1. The Cloud-Hosting-Platform paas.anynines.com (‘Platform in the following’) is a 'platform as a service' solution, which is operated by Avarteq GmbH, Science Park 2, 66123 Saarbrücken (anynines in the following)
  2. anynines only offers its cloud hosting services of the Platform to business customers (Section 14 Bürgerliches Gesetzbuch [German Civil Code]) (Customer in the following). Use as a consumer (Section 13) is not possible.
  3. The Platform permits the Customer to upload, to install and to scale its own web applications (Apps in the following) independently in order to post these later on the internet for access to the end user by the Customer. Apart from this, the Customer can book additional services on the Platform for its Apps, which are made available by anynines at its own discretion. At the choosing of anynines these can also include services provided by third parties, which, however, are only referred to the Customer.
  4. These General Terms and Conditions apply to access to the Platform and its use as a cloud hosting service as part of the range of functions, in particular the runtime environment for applications (in the following collectively referred to as 'use'). In addition the General Terms and Conditions also apply to further services made available by anynines. The general terms and conditions of the third-party provider in question shall apply to services made available additionally by third-party providers.
  5. Use of the platform shall take place entirely on the basis of these General Terms and Conditions unless any deviating or supplementary agreements were agreed in the written form (Section 126 Bürgerliches Gesetzbuch). Conflicting, supplementary or deviating terms of the Customer shall not become an integral part of the contract unless this is explicitly agreed between the provider and the Customer in the written form (Section 126 Bürgerliches Gesetzbuch).
  6. Creation of data backup is not part of the subject matter of the contract.
  7. The provision of a dedicated hardware and/or software infrastructure (IaaS) is also not part of the subject matter of the contract.

2. Conclusion of the contract

  1. The presentation of range of functions of the Platform on the internet or in other media by anynines does not constitute a binding offer by anynines. It merely gives the Customer the possibility to make a binding offer to conclude a contract on use of the Platform. anynines is not obliged to accept this offer.
  2. Conclusion of the contract on the use of the Platform first requires registration of the Customer with a valid e-mail address (sign up) as well as the name of the company and the name of an authorised employee responsible. By providing a valid e-mail address and then applying for registration by pressing the 'submit' button, the Customer makes anynines a legally binding offer to conclude a contract on use of the Platform. The contract will come into being by activation of the customer's account by anynines pursuant to paragraph (3).
  3. Apart from provision of a valid e-mail address a password to be decided by the user (login data) is necessary to activate a customer's account. In order to check the validity of the e-mail address provided anynines will send the Customer an e-mail with a confirmation link.
  4. Activation of the customer's account can only take place after the Customer has confirmed its e-mail address and then provided a password. The customer's account can only be activated if the Customer presses the activation link within 48 hours. The Customer needs the login data to be able to log in after activating a customer account. The e-mail address of the Customer also serves to communicate with anynines.
  5. By activating the customer's account pursuant to paragraph (3) the Customer has limited access only to the range of functions of the Platform chosen by anynines as part of the trial period pursuant No. 3. By providing further data in the customer account (in particular payment data), the Customer can activate the Platform for unrestricted use. The Customer covenants that the data provided in the customer account are correct and complete. In particular no data of any third party may be posted. Provision of a technical contact is permitted, provided the adequate necessary consent can be obtained by the Customer from the person named. Use of a pseudonym is not permitted.

3. Trial period

  1. After its first registration, the Customer is permitted to test the Platform free of charge for a period of 30 days as of activation (trial period). During the trial period the Platform will only be available to the Customer to a restricted extent at the choosing of anynines.
  2. The trial period will be ended by the input of payment data in the profile of the Customer. Resources that are used up as of the time of input of the payment data shall be billed pursuant to No. 11. This particularly applies to Apps created and services booked during the free trial period.
  3. In the event that no payment data have been stored, the Apps and the services will be deleted irrevocably.
  4. After entering payment data or after expiry of the trial period, the Customer does not have the right to register for a customer's account again in order to use the Platform repeatedly free of charge within a trial period. The Customer will therefore store payment data without delay in the case of new registration.

4. Services of anynines

  1. anynines enables the Customer to upload its own Apps onto the Platform via the internet, to install and scale these. This gives the Customer the possibility to make its Apps available to third parties on the internet.
  2. anynines makes execution of the Customer's App possible by means of a Buildpack. This is third-party software which is subject to the licence terms of the third-party provider. The Buildpack is made available by anynines via the Platform unless the Customer provides a Buildpack itself. The services of anynines are confined to provision of the Buildpack and/or its execution. The range of functions and the working order of the Buildpack will not be provided by anynines.
  3. anynines also enables the Customer to book additional services pursuant to No. 5 that can be used for the Apps of the Customer or independently of these. The services provided will be offered by anynines itself if it is question of its own services or just referred to the Customer if the services are offered by a third party.
  4. anynines enables the Customer to access and use the Platform with the help of technical and functional support by anynines pursuant to No. 6. The scope of the support services is determined by the support option chosen by the Customer and also extends to the measure to remove disruptions pursuant to No. 7.

5. Additional services

  1. anynines offers the Customer the possibility of booking additional services and making these available for the uploaded Apps or using them independently of these Apps.
  2. The range of additional individual services available at the time in question can be seen from the information on the Platform relevant at the time.
  3. Booking an additional service takes place by means of a booking request to anynines by the Customer via the Platform. anynines will then inform the Customer whether the booking request can be met.
  4. If a booking request is met, anynines and the Customer shall conclude a contract on making use of the additional service as a supplement to the General Terms and Conditions provided that this service is made available and offered by anynines.
  5. Insofar as the additional service is one offered by a third-party provider, anynines shall only be broker of a contract with the third-party provider on making use of the service. In this case the contract shall only come about between the Customer and the third party. anynines shall only be responsible for processing payments.
  6. Remuneration for additional services is determined by No. 11 (3).

6. Support

  1. For support concerning questions on the application of a technical nature or in terms of functions and in the case of any faults on the Platform, anynines shall provide the Customer with a customer care service (Support), which the Customer can make use of via the support website under support.anynines.com. Alternatively the Customer can send a request to support@anynines.com. The Support serves entirely to assist the Customer in making use of the services to be provided under this contract (No. 4) by anynines. anynines can choose to extend the Support to the additional services as well without the Customer incurring any costs for this. The Support will also be made available to other customers.
  2. The Customer shall receive assistance in the general approach with anynines without reference to the application code of the Customer (Standard Support) at no additional charge within normal hours of business (Monday to Friday with the exception of public holidays) between 9 am and 5 pm.
  3. The Customer can also book an Extended Support at a separate charge. This Support consists of
    • Help with using Buildpacks
    • Help and advice in the case of problems in the application code
    • Advice on the architecture and refactoring of applications for operation on the Platform
    (Extended Support) Monday to Friday with the exception of public holidays) between 9 am and 5 pm.
  4. Pursuant to No. 7 anynines will also remove the faults on the Platform of which it was notified by the Customer.

7. Removal of faults

  1. If anynines receives notification of a fault via the ticket system provided, it will initiate measures to remove the fault within the defined reaction times and remove the fault. Notification of a fault shall indicate the fault category.
  2. A fault exists if the Platform does not provide the range of functions specified (No. 4).
  3. Faults occurring on the platform shall be allocated to the following categories:
    Incident Level 1
    Fault preventing operations: the use of the Platform is impossible as a whole or in essential parts or restricted in full.
    Incident Level 2
    Fault preventing operations: the use of the Platform is substantially restricted as a whole or in essential parts.
    Incident Level 3
    Minor faults: the use of the Platform is possible as a whole without or with insubstantial restrictions only.
    A fault preventing operations (Incident Level 2) also exists if several minor faults together lead to a not insubstantial restriction of use of the Platform.
  4. The final allocation of the faults to the different categories shall be carried out by anynines at its reasonable discretion and giving adequate consideration to the consequences that the fault in question has for the use of the Platform.
  5. anynines has the right to select the form of removal of the fault at its own discretion.
  6. After receipt of notification of a fault, the following reaction times shall apply depending on the support booked, the receipt of notification and the fault category:
    Standard support
    Receipt / fault category Within business hours Outside business hours Public holidays
    Fault preventing operations 1h 4h 4h
    Fault impending operations 1h 4h 4h
    Minor fault 2h 8h 8h
    Extended support
    Receipt / fault category Within business hours Outside business hours Public holidays
    Fault preventing operations 1h 2h 2h
    Fault impending operations 1h 2h 2h
    Minor fault 1h 4h 4h

8. Distribution of roles

  1. anynines enables the Customer to carry out a distribution of functions and allocation of different roles and tasks to administer its customer account and its Apps. For this the Customer can name the e-mail address of a third party in order to invite the latter to provide a link with its own customer account to the Platform and to select various user roles. In the event that the third-party accepts the invitation, this will not result in conclusion of a new contract between anynines and the third party.
  2. The Customer may only name such e-mail addresses for which anynines has already given its explicit consent to an invitation to the Platform. The business name and the contact person of the Customer shall be used for the invitation.
  3. The Customer shall ensure that the third party complies with the duties of the Customer arising from these General Terms and Conditions, in particular these include the following duties named in No. 9 and No. 10.

9. General duties of The Customer

  1. The Customer is obliged to provide information that is true when registering (No. 2) and to enter any change without delay by a corresponding change in its details in its profile on the Platform.
  2. The Customer shall ensure that the e-mail account named by it can be contacted as of the time it was named and is not prevented from receiving e-mail messages due to rerouting, disconnection or overfilling of the e-mail account.
  3. The Customer does not have the right to pass its login data on. The Customer is obliged to treat its login data with care and prevent any improper use of the login data by third parties. In the event that the Customer has reason to assume that its customer account is being improperly used by a third party, it shall inform the provider without delay by an e-mail to support@anynines.com. A third party is not the party named by the Customer as the party with right of access and use. The Customer shall ensure that such a person complies with the obligations of the Customer arising from these General Terms and Conditions.
  4. The Customer shall refrain from engaging in any activities that are suited to impairing and/or excessively overloading operation of the Platform or the underlying technical infrastructure.
  5. anynines has the right to take steps (e.g. blocking access) to prevent a use that exceeds the permitted scope of use. The Customer may not deploy anything by means of which these technical measures are disabled.
  6. Should faults occur when the Platform or individual functions are used, the Customer shall inform anynines of this without delay. The same shall apply if the Customer obtains knowledge of content and/or applications published by a third party that manifestly infringe valid law or third-party rights or contravene paragraph 3.

10. Duties of The Customer when uploading and executing Apps

  1. The Customer undertakes to comply with valid law when uploading, installing and executing its Apps (e.g. criminal, competition and youth protection legislation) and not to infringe any third-party rights (e.g. personal, brand, authorship or data privacy rights). In particular, it covenants that it has the necessary rights of use and can prove this to anynines on request.
  2. The Customer undertakes that by its Apps or use of additional services no content will be shown and/or executed that infringes valid law or moral standards. The same shall apply to placing external links. In particular dissemination of content that depicts, relates to or contains
    1. concrete medical diagnoses, consultations or treatment;
    2. racism;
    3. glorification of violence or extremism of any kind;
    4. calls for and incitement to criminal offences and infringement of laws, threats to life, limb or property;
    5. agitation against persons or businesses
    6. statements infringing personal rights, defamation, libel and slander regarding users and third parties as well as infringements of the principles of fair competition;
    7. content infringing copyright or other infringement of rights regarding intangible goods;
    8. sexual harassment of users or third parties;
    9. pornography;
    10. offensive, sexist, obscene, vulgar, abhorrent or sickening materials and forms of expression;
    11. religious proselytising
    is not permitted.
  3. The Customer shall ensure that the content pursuant to paragraph 2 is not disseminated by any third party with access to its Apps.

11. Charges & billing

  1. The Customer shall pay anynines a monthly charge which is based on the price list. The price list can be viewed at paas.anynines.com/pricing. The prices shown on the price list are net prices plus the statutory value-added tax applicable at the time in question.
  2. The charge will only be made for those Apps for which resources were booked irrespective of actual use. Relevant for the calculation are the number of application instances selected and the RAM memory selected per application instance. Time-based services are billed to the minute. A tolerance of + / - 5 minutes is reserved.
  3. The charge made for additional services is based on the length of use. The applicable time is the length of time between generating a service deployment and the time of drawing up accounts or deletion of the service. This period of use will be offset against the price of the service selected in the specified service option (service plan).
  4. Insofar as the Customer booked Extended Support, it will pay a monthly charge for this, which is also shown on the price list.
  5. anynines shall bill the Customer for the contractually agreed charge monthly. Bills are always due for immediate payment without any deductions.
  6. anynines has the right to alter the price list at its reasonable discretion (Section 315 Bürgerliches Gesetzbuch) and increase the prices listed if further provision of services without a price adjustment cannot be expected of anynines after weighing up the interests of both parties. anynines is entitled to make further price increases if the last price increase was at least 6 months previously. anynines shall announce price increases one month in advance. Unless the Customer opposes the price increase within two weeks of announcement of the planned price increase in text form by e-mail, this is deemed to be consent to the price increase. anynines shall make separate reference to this in the announcement.

12. Rights of use of the customer

  1. The Customer hereby grants anynines a non-exclusive right of use, unlimited in territory, irrevocable, transferable to third parties, with sub-licence rights at no charge in the Apps uploaded via the Platform. Rights are granted so that anynines can provide the Customer's Apps and content pursuant to these General Terms and Conditions and within the framework of the services offered and additional services on behalf of the Customer.
  2. Granting right pursuant to paragraph 1 entitles anynines to use, to edit and to exploit the Apps and content insofar as this is necessary for provision of its services. In particular, this includes the right to reproduce, to disseminate, to adapt, to edit, to publish and to make them publicly accessible on the internet.
  3. Granting rights also covers the content linked to the App.

13. Rights of use of anynines

  1. anynines hereby grants the Customer a non-exclusive personal right to use - unlimited in territory, non-transferable, non sub-licensable - to use the Platform and its services on the terms and conditions of these General Terms and Conditions provided that this is not a question of a use of software whose use is permitted under another licence (e.g. open source software). The rights are granted so that the Customer can make its uploaded Apps available on the internet executable for access to the end users.
  2. In addition anynines grants the Customer the necessary rights in third-party software insofar as this is required by these General Terms and Conditions for use of the Platform and the services offered.

14. Blocking and deactivation

  1. If and to the extent that the Customer uses its customer account contrary to the duties named in No. 9 or No. 10 or in cases of other serious infringements of a duty or in the case of legitimate grounds for suspecting a culpable infringement of a duty, anynines has the right to block access to the customer account temporarily and/or to deactivate it temporarily.
  2. To the extent that this is possible, the Customer shall be heard before the account is blocked and/or deactivated; otherwise it shall be notified without delay after its account has been blocked.
  3. If the account is blocked and/or deactivated under paragraph 1, the Customer does not have any right to open another account.
  4. If and to the extent that it comes to anynines's attention that third parties are using the customer account of the Customer, anynines has the right to block access to the customer account to the extent necessary and/or to deactivate it in order to prevent improper use by third parties.anynines is authorised to act as above if there are grounds only for suspecting improper use by a third party. Improper use by a third party is to be understood even as access to the customer account of the Customer by a third party. anynines shall inform the Customer of such a blocking or deactivation without delay and in the case of the customer's account being blocked at the same time offer the option of activating the access in question by the selection of new access data. anynines will only activate a customer account that has previously been deactivated if it has been shown that the risk of improper use by a third party no longer exists. In cases of doubt responsibility shall lie with the Customer.

15. Term of contract, termination and deletion of The Customer account

  1. The contract for use of the Platform has been concluded for an indefinite period and can be terminated to the end of a month by either party at any time without adherence to a period of notice and without stating reasons.
  2. In addition to and beyond this, the right of the parties to end the contractual relationship by means of extraordinary termination for cause is not affected.
  3. For anynines terminating the contract for cause exists in particular if
    1. the Customer infringes its obligations pursuant to No. 9 or No. 10 on a sustained basis or in the case of other serious infringements of a duty;
    2. in the case of less serious infringements of a duty the Customer, despite having been cautioned, continues or repeats the conduct objected to or does not remove the consequences of such an infringement of a duty that have already occurred.
    3. the Customer defaults on payment of the charge or a not insubstantial portion of the charge on two consecutive payment dates;
    4. the Customer discontinues its payments generally;
    5. insolvency proceedings have been instituted regarding the estate of the Customer or opening of such proceedings was refused for lack of assets.
  4. Any termination shall be in the written form. Alternatively the Customer can apply for the immediate and irrevocable deletion of its customer account in its customer account at any time.
  5. In the case of termination, the Customer no longer has any access to its customer account and its content will be deleted without delay.
  6. In the case of extraordinary termination of the Customer by anynines the Customer does not have the right to create a new customer account.

16. Provision of Warranty

  1. The warranty provisions of lease law, Bürgerliches Gesetzbuch apply. The liability irrespective of fault pursuant to Section 536a (1) Alt. 1 Bürgerliches Gesetzbuch is excluded. There is a warranty period of one year unless anynines concealed the defect maliciously.
  2. Apart from this, the regulations of service contracts law apply 3).
  3. anynines will make every effort to provide undisrupted operation of the platform on a continuous basis. It goes without saying that this is confined to services which anynines can influence. However, the Customer recognises that complete, uninterrupted availability of the Platform cannot be achieved for technical reasons Therefore anynines reserves the right to limit access to the Platform in full or partly, temporarily or permanently due to maintenance work, capacity matters or due to other occurrences that are beyond its control
  4. anynines does not accept any responsibility for the working order of the link to the resources forming the subject matter hereof in the case of power outages and failure of servers for reasons beyond its control.
  5. The Customer has no claim to retention of individual functions of the platform or the use of existing functions of the Platform.

17. Liability

  1. Unlimited liability: anynines is liable in cases of intent and gross negligence. In cases of slight negligence anynines is liable in accordance with the provisions of the Produkthaftungsgesetz [product liability act] as well as in the case of damage arising from damage to life or limb or the health of persons.
  2. Limitation of liability: otherwise anynines is liable in the case of slight negligence only
    1. in case of infringement of an essential contractual duty, discharge of which makes due implementation of the contract possible in the first place and adherence to which the Customer can regularly expect (cardinal duty), and
    2. in terms of its amount is limited to damage that was foreseeable and typical of the contract at the time of conclusion of the contract.
  3. This limitation of liability also applies in favour of the vicarious agents of anynines.
  4. anynines is not liable for the loss of data insofar as the damage is based on the fact that the Customer failed to carry out adequate data backups in order to ensure that data that has been lost can be restored with a reasonable amount of effort. Insofar as the Customer is responsible for any loss of data, anynines is only liable for the costs of duplicating the data of the backups to be created by the Customer and for the restoration of the data that would have been lost even if the data had been saved properly.

18. Indemnification

  1. The Customer shall indemnify anynines and its employees or agents in the event of any claims on account of purported or actual infringements of law and/or of the use of the rights of any third party due to actions carried out by the Customer in connection with use of the Platform from any and all claims of third parties that arise.
  2. Apart from this, the Customer undertakes to reimburse all the costs that anynines incurs through the claim by a third party. Reimbursable costs in particular include the costs of adequate legal defence that anynines incurs in defending the claims of third parties.

19. Marketing using the name of the Customer

anynines has the right to advertise the fact that the Customer uses the Platform and takes advantage of the services of anynines in an appropriate manner and for this purpose also after the contract has ended to use the name of the business and any logo of the Customer on paas.anynines.com website and other anynines websites.

20. Data privacy

  1. Use of the Platform makes capturing, processing and using personal data by anynines indispensable. anynines will treat all stored data with care and only process and use them on the basis of any necessary consent by the Customer under data privacy regulations. Further-reaching processing and using personal data shall only be carried out by anynines insofar as this is legally admissible.
  2. anynines will inform the Customer of the details of type and extent of use of data in a data privacy declaration, which can be viewed on the internet at paas.anynines.com/privacy at any time.
  3. Use of the Platform can make it necessary for anynines to process personal data on behalf of the Customer. This requires conclusion of a separate data processing contract. Should conclusion of such a contract be necessary, the Customer shall use the specimen contract in order to conclude a data processing contract with anynines. In this case use of the Platform is only permitted after conclusion of an effective data processing contract.

21. Amendment of the terms and conditions of use

  1. anynines has the right to amend or to supplement provisions of these terms and conditions of use with effect for the future at any time insofar as this is necessary due to adaptations to the Platform for legal or functional reasons, e.g. in the case of technical changes or adjustments in the purchase process.
  2. The Customer will be notified by e-mail of any amendment or supplement at the latest six weeks before they take effect without it being necessary to send the amended or supplemented terms and conditions individually or the new version of the terms and conditions as a whole; announcement of the amendments of supplements in question shall suffice. In the announcement anynines will provide a link at which the new version of the terms and conditions as a whole can be viewed.
  3. Insofar as the Customer does not oppose the amendment or supplement within 30 days of announcement of the amendment or supplement, this is to be understood as agreement with the amendment or supplement; particular reference to this will be made by anynines in the announcement.

22. Take-over of the contract

  1. The Customer does not have the right to transfer the rights and duties arising from these terms and conditions of use to a third party in full or in part.
  2. anynines has the right to transfer this contract on the use of the Platform with all rights and duties to a company of its choice. In the case of transfer of this contract to another company the Customer shall have special right of termination, which must be exercised within 14 days of notification thereof.

23. Formal requirements and language

  1. Insofar as the written form (Section 126 Bürgerliches Gesetzbuch) has been agreed for all or individual aspects of the contractual relationship between anynines and the Customer, in cases of doubt transmission by telecommunications of the document signed by hand, for example by e-mail or PDF document of by telefax suffices. However the recipient party is entitled to be provided with the original of the document.
  2. Insofar as the text form (Section 126 Bürgerliches Gesetzbuch) has been agreed for all or individual aspects of the contractual relationship between the parties, sending the declaration by e-mail or telefax suffices and it is sufficient for the person making the declaration to be named.
  3. Unless otherwise agreed, contractual notifications and declarations must be in the text form as a minimum requirement.
  4. The authoritative text of these terms and conditions of use is the German version. The language of the contract is German.

24. Final provisions

  1. Should any provisions of these terms and conditions be fully or partly ineffective at any time, this shall not affect the validity of the other terms and conditions.
  2. Ousting the UN Convention on Contracts for the International Sale of Goods, German law only applies to these terms and conditions of use.
  3. In the event that the Customer is a merchant within the meaning of the Handelsgesetzbuch [German Commercial Code], a legal entity under public law or a specialised entity, the place of jurisdiction for any and all disputes arising from or in connection with these terms and conditions of use is Saarbrücken.

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