General Terms and Conditions of 3Q GmbH
for the use of 3Q SDN and for supplementary services
1. subject matter, scope and structure
1.1 These General Terms and Conditions (the "3Q GTC") shall apply to all contracts between 3Q GmbH Belfortstr. 5, 81667 Munich, Germany ("3Q") and the contractual partner (the "Customer") for the provision of the 3Q SDN platform as SaaS (the "Service") against payment and for supplementary services to support the Customer in the use of the Service ("Supplementary Services"). 3Q and Customer are each also referred to hereinafter individually as a "Party" and collectively as the "Parties".
1.2 Details of the functions of the Service, the additional services ordered 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 incorporates these 3Q GTC.
1.3 The Order Form, these 3Q GTC, the Agreement on Commissioned Processing (cf. Section 16.1) as well as any included Annexes are hereinafter collectively referred to as the "User Agreement". The following order of precedence shall apply in descending order (1) the order form, (2) these 3Q GTC, (3) the related annexes; the agreement on commissioned processing shall always have priority in its scope of application.
1.4 The contract of use shall be concluded upon confirmation of the Customer's order by 3Q, to which 3Q is not obligated. 3Q offers the Service and corresponding additional services only to entrepreneurs within the meaning of § 14 BGB (German Civil Code) and reserves the right to request proof of the Customer's entrepreneurial status.
1.5 The provisions of the User Agreement shall also apply to changes to the Service made by 3Q during the term of the Agreement, such as patches, updates, upgrades or other changes to the Service (collectively "Updates").
1.6 The Customer's general terms and conditions shall not apply unless 3Q expressly agrees to their application at least in text form.
2. general regulations for the provision of services
2.1 3Q shall provide the contractual services in the agreed quality and with the 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) for the performance of services. 3Q shall be liable for vicarious agents as for its own actions (cf. Section 13).
3. operation and provision of the service
3.1 3Q shall make the functions of the Service available to the Customer for access and use via the Internet during the term of the contract within the scope of the promised availability (cf. Section 5). In principle, the functions of the Service can be accessed worldwide via the Internet. The Customer shall also receive access to the current version of the electronic user manual for the Service.
3.2 3Q grants Customer the opportunity to use the Service by creating an account for Customer and either providing Customer with a user name and password (collectively "Access Data") or allowing Customer to create Access Data itself. The Customer shall set up Access Data exclusively for persons authorized to use the Service by the Customer ("Authorized Users"). The Customer shall ensure that only Authorized Users receive access data and access to the Service. The Customer shall obligate each Authorized User in advance to treat the Access Data confidentially and to comply with the usage authorizations and restrictions pursuant to Section 6.
3.3 Any use of the Access Data and the Service, including use in breach of contract and otherwise unauthorized use, shall be deemed use on behalf of the Customer in relation to 3Q, unless the Customer is not responsible for the unauthorized use. If Customer becomes aware of any unauthorized access to Access Data or the Service, Customer shall immediately notify 3Q at least in
inform them in text form and change the access data or have them changed.
4. nature of the service
4.1 The Service includes functions for providing and playing video content (VoD) and for live streaming. Details result from the service description in the order form.
4.2 The Customer is aware and agrees that the contractual use of the Service requires compliance with the current minimum technical requirements communicated by 3Q and a sufficiently dimensioned Internet connection. The respective current minimum technical requirements are described in the user manual.
4.3 3Q may also update the Service at any time without the Customer's separate consent and otherwise make reasonable changes, in particular to adapt it to a changed legal situation, technical developments or to improve IT security. Justified interests of the Customer shall be taken into account by 3Q in an appropriate manner. To the extent necessary and reasonable, the Customer shall cooperate in a change, for example by re-entering access data or simple
Conversions of its systems.
5. availability of the service
5.1 Unless otherwise agreed in the order form, 3Q warrants a minimum availability of the service of 99.9% as a contract year average.
5.2 The service shall be deemed unavailable if essential functions of the service or the service as a whole cannot be accessed. The Internet node of the data center from which the service is provided shall be decisive.
5.3 Excluded from the promise of minimum availability pursuant to Section 5.1 are (i) downtimes of the Service as a result of maintenance or care of the hardware or software used for the provision of the Service, including the installation of updates, (ii) disruptions of the availability due to causes beyond the direct control of 3Q, such as force majeure or attacks by third parties on the infrastructure used for the provision of the Service, as well as (iii) periods for which 3Q blocks or restricts the Customer's access to the Service in accordance with Section 9.
5.4 If required, maintenance and care can also be carried out by 3Q on working days. 3Q will endeavor to minimize downtime of the Service as a result of maintenance and servicing.
6. rights of use and restrictions on use
6.1 3Q permits the Customer to access the Service via the Internet by Authorized Users during the term of the Agreement and to use the functions of the Service as intended. This includes the Customer's authorization to use the Service to make Customer Content (cf. Section 8.1) publicly and non-publicly available to third parties, for example as VoD or live stream.
6.2 The Customer is not permitted by 3Q to use the Service beyond the scope of Section 6.1. In particular, the Customer is not authorized,
a) to rent out the service itself in whole or in part without the separate consent of 3Q (under) or otherwise make it available to third parties against payment;
b) to undertake, promote or tolerate actions that disrupt or damage the Service or temporarily or permanently impair or prevent its use by other Customers;
c) to enter, upload or otherwise store Customer Content in the Service contrary to Section 8.3 or to stream or otherwise process Customer Content with the Service contrary to Section 8.3.
The customer's mandatory statutory rights shall remain unaffected.
6.3 Customer shall inform 3Q without undue delay, at least in text form, if it becomes aware of a breach of this Clause 6.
7. cooperation and responsibilities of the customer
7.1 The Customer shall nominate a competent contact person together with a deputy for the execution of the User Agreement. The contact data can be stored and changed in the administration interface of the account.
7.2 Information from the sphere of the Customer reasonably requested by 3Q for the performance of the User Agreement shall be provided by the Customer in full and within a reasonable period of time. The Customer is obligated to provide necessary data completely and correctly and to notify any changes without delay. This applies in particular to address data, bank details, telephone numbers and e-mail address.
7.3 3Q may send information and declarations concerning the contractual relationship to the Customer's specified e-mail address. The Customer will regularly check the e-mail address that serves as the contact address for 3Q.
7.4 The Customer shall be solely responsible for meeting the minimum technical requirements communicated by 3Q as well as for the functionality and sufficient dimensioning of the Internet connection to access the Service.
7.5 The Customer is obligated to set up its systems and programs in such a way that neither security nor the integrity or the systems used to operate the Service by or on behalf of 3Q are impaired. He is solely responsible for the security of his own systems and their protection against malware and attacks. It shall take reasonable and appropriate precautions on an ongoing basis to prevent and reduce the potential impact of any disruption or defect in the Service, including making regular backups of Customer Content.
7.6 The Customer shall use the Service only within the contractually permissible scope and comply with all legal and regulatory requirements applicable to it.
7.7 The Contractual Partner shall make its systems available within the scope of its availability, insofar as this is necessary for the provision of services and cannot be provided by the use of work equipment, materials and systems of 3Q. It shall further ensure that corresponding premises of 3Q can be entered during normal working hours.
7.8 The Customer shall perform all cooperation services at its own expense, in a timely, complete and professionally proper manner.
8. customer content
8.1 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 Customer or on Customer's behalf when using the Service. Upon Customer's request, 3Q may modify Customer Content on Customer's behalf, but shall not be obligated to make any modifications on Customer's behalf. Customer is aware and agrees that 3Q does not review Customer Content for content or legality.
8.2 By entering, uploading, storing or otherwise providing Customer Content, Customer grants 3Q a non-exclusive, irrevocable, worldwide right to use, in particular to reproduce, process and display, the Customer Content for the purpose of fulfilling and processing the User Agreement until the User Agreement has been fully processed. 3Q may have this right exercised by third parties on its behalf, for example by employed vicarious agents (e.g. hosting service providers). Insofar as the Customer cannot grant this right to Customer Content itself, it shall procure this right for 3Q.
The Customer warrants that it holds all the necessary rights to the Customer Content, in particular the necessary image, trademark and copyright rights, and that it has effectively obtained all the necessary consents and approvals, in particular for the processing of personal data.
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 violate third party rights (including copyrights, personal rights and industrial property rights) or infringe applicable law;
b) Customer Content is neither in whole nor in part glorifying violence, shocking, discriminatory, inciting hatred, racist, extremist, sexist or otherwise immoral, punishable, abusive, threatening, defamatory or insulting or calling for punishable, immoral or endangering acts;
c) the Customer has effectively obtained and maintains all consents and consents of third parties required for the input, storage and processing of the Customer Content, including consents required under data protection law; and
d) Customer Content does not contain or spread viruses or other malware.
8.4 The Customer shall not enter, upload, otherwise store, stream or otherwise process Customer Content by means of or in connection with the Service or tolerate any of the aforementioned actions contrary to Section 8.3. If Customer discovers that Customer Content is stored in the Service or otherwise processed by means of or in connection with the Service contrary to Section 8.3, Customer shall inform 3Q thereof without undue delay and coordinate the joint course of action. Any claims and rights of 3Q shall remain unaffected by this Clause 8.4.
8.5 The Customer shall assume sole and unlimited liability against those who assert a violation of rights in connection with Customer Content against 3Q or any vicarious agents used. Upon 3Q's request, Customer shall assume the extrajudicial and judicial defense against third party claims asserted against 3Q in connection with Customer Content. The right of 3Q to (also) defend itself remains unaffected. The Customer may only conduct negotiations, a settlement of a dispute and legal actions with effect for 3Q with the prior consent of 3Q. Customer shall bear the costs of defending against any claims asserted in connection with Customer Content, including reasonable legal defense costs. All other rights and claims of 3Q shall remain unaffected.
9. restriction, blocking and deletion
9.1 If 3Q suspects on the basis of factual indications that the Customer's access data is being misused or used in breach of the contract, 3Q may block and replace such access data.
9.2 3Q may temporarily block the Customer's access to the Service (i) as long as the Customer is in default with a not only insignificant portion of agreed payments or (ii) if the Customer's systems act or react in a manner deviating from the normal operating behavior and the security, integrity or availability of the Service is thereby impaired. In addition, 3Q may block Customer's access to the Service if the collection of due fees from the account specified by Customer (cf. Section 12.5) has been unsuccessful three times, i.e. the fees have not been permanently credited to 3Q; the block may be maintained until the outstanding amounts have been paid in full.
9.3 If 3Q has reason to believe on the basis of factual indications that Customer has entered or processed Customer Content in breach of the Agreement, in particular in breach of Section 8.4, 3Q may inform Customer thereof and give Customer the opportunity to either (i) remove the relevant Customer Content or (ii) prove that the entry and processing is in accordance with the Agreement. If Customer fails to comply with either of these options within a reasonable period of time, 3Q may remove or block the Customer Content.
9.4 3Q shall give due consideration to the Customer's legitimate interests when deciding on and implementing the aforementioned measures.
9.5 All other claims and rights of 3Q, in particular rights of retention and termination, shall remain unaffected by this Clause 9.
10. material defects and defects of title
10.1 3Q warrants the contractual provision of the Service within the scope of the agreed availability. 3Q shall remedy any defects of the Service within a reasonable period of time after proper notification of the defect by the Customer. The defect may also be remedied by means of an update.
10.2 Insofar as the Customer is wholly or partially deprived of the contractual use of the Service due to a defect of title, 3Q may also, at its own discretion, remedy the defect by
a) provides the customer with the necessary rights to use the service in accordance with the contract or
b) modifies the service in such a way that the right of the third party no longer prevents the customer from using the service in accordance with the contract.
3Q will give due consideration to the legitimate interests of the customer.
10.3 Otherwise, in the event of defects in the service, §§ 535 ff. BGB (German Civil Code) shall apply in the event of defects in the service, with the proviso that strict liability for defects existing at the time of conclusion of the contract pursuant to § 536a para. 1, 1st Alt. BGB is excluded. Section 5 applies to the availability of the service.
10.4 If a third party asserts an infringement of rights against the Customer through the Service, the Customer shall notify 3Q thereof without undue delay in text or written form. 3Q shall provide the Customer with appropriate support in its defense and - to the extent permitted by law, in particular by data protection law - provide relevant information. 3Q's obligation to remedy defects in accordance with Clause 10 shall remain unaffected.
11. additional services
11.1 The provisions of this Section 11 shall apply to agreed additional services. Additional services may in particular be services for the instruction and training of Authorized Users, application support by e-mail or other communication channels set up for this purpose, as well as other consulting services by 3Q to support the Customer in setting up or using the Service.
11.2 If the Parties have agreed on support for the use of the Service as an additional service, Customer may contact 3Q with questions regarding the use of the Service to a reasonable extent via the communication channels provided by 3Q for this purpose. 3Q shall ensure that the support request is dealt with during 3Q's business hours and shall respond to the support request within a reasonable period of time.
11.3 If training by 3Q in connection with the Service is agreed as an additional service, Customer shall be solely responsible for ensuring that the participants attend the respective training on the day agreed for this purpose at the agreed time. 3Q is not obligated to offer further training dates if participants do not attend a training.
11.4 To the extent that intellectual property rights arise during the performance of Additional Services, 3Q grants Customer a non-exclusive, non-transferable and non-sublicensable right to use the Work Product in connection with the functions of the Service during the term of the Agreement.
11.5 3Q shall provide Additional Services with the diligence of a prudent businessman. In doing so, 3Q shall not be obligated to achieve or provide certain results or a certain success.
12. remuneration, invoicing and terms of payment
12.1 The Customer shall be obligated to pay the (i) one-time charges, the (ii) ongoing, usage-independent charges and (iii) the usage-dependent charges.
12.2 The price list of 3Q valid at the time of the conclusion of the contract shall apply, unless deviating prices have been agreed between the parties in text or written form. All fees are subject to the statutory value added tax at the applicable rate.
12.3 One-time fees, e.g., for setup support, shall be paid by the Customer together with the first usage-independent fee for the Service. Ongoing usage-independent charges shall be paid monthly in advance by the Customer, unless a different billing period has been agreed. Usage-dependent charges shall be paid by the customer after the end of the month to which the usage-dependent charge relates.
12.4 The Customer agrees that 3Q will send invoices as PDF by e-mail to the e-mail address stored by the Customer in the Account; there will be no additional postal transmission.
12.5 Invoice amounts shall become 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 shall be collected by 3Q at the earliest when the due date occurs. The customer is obligated to ensure that there are sufficient funds in the specified account. Fees and processing costs arising from the chargeback of fees due shall be borne by the customer in the amount of at least 20 euros, provided that the chargeback is due to causes within the customer's area of responsibility. 3Q shall be entitled to prove higher, and the customer shall be entitled to prove lower, costs of the chargeback. In the event of revocation of the Customer's consent to the direct debit procedure, 3Q shall charge an appropriate processing fee for the administrative handling.
12.6 3Q may reasonably adjust the usage-dependent and usage-independent fees to be paid by the Customer during the term of the Agreement even without the Customer's separate consent. Reasons for an adjustment may be, in particular, changes in energy costs, personnel costs, license costs for software or third-party services used or changes in other infrastructure costs in connection with the further development, provision and/or maintenance of the Service or hardware or software used for this purpose. 3Q will notify Customer of any intended fee adjustment and the effective date thereof at least sixty (60) days prior to its effective date. In the event of an announced increase in the fee, the Customer may terminate the User Agreement with thirty (30) days' notice to the effective date of the change; Section 14 shall remain unaffected.
13. limitation of liability
13.1 3Q shall be liable without limitation in case of intent, gross negligence and culpable injury to life, body or health.
13.2 In the event of slight negligence, 3Q shall only be liable in the event of a breach of material contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer may regularly rely. In these cases, 3Q's liability is limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. The unlimited liability according to clause 13.1 remains unaffected.
13.3 In addition to Clause 13.1 and Clause 13.2, 3Q shall not be liable for slight negligence.
13.4 The above limitations of liability shall not apply to liability under the Product Liability Act and within the scope of warranties assumed in writing.
13.5 Clause 13 shall also apply in favor of the employees, representatives, bodies and vicarious agents of 3Q.
13.6 The parties shall be obliged to maintain a public liability insurance covering personal injury, property damage and financial loss. Should any changes occur during the term of this Agreement in connection with the business liability insurance, the Parties shall be obliged to inform the other Party thereof without undue delay, at least in text form.
14. contract term and termination
14.1 The User Agreement shall enter into force on the date specified in the Order Form and shall end in accordance with the following provisions (the "Contract Term").
14.2 The User Agreement is concluded for an indefinite period of time and may be terminated by either party with one (1) month's notice after a minimum term of three (3) months. During the minimum term, ordinary termination shall be excluded. Agreements of the parties in the order form that deviate from this shall take precedence.
14.3 The right to extraordinary termination for good cause shall remain unaffected. For 3Q, good cause shall be deemed to exist in particular if
a) the customer is in default of payment of the remuneration owed for two consecutive months or of a not insignificant part of this remuneration or, in a period extending over more than two months, of a remuneration corresponding in amount to two monthly basic remunerations and the outstanding amount is at least 50 euros;
b) the Customer repeatedly uses the Service in excess of the usage authorization or violates agreed usage restrictions pursuant to Section 6;
c) the customer has initiated proceedings for its dissolution, liquidation or winding up; the customer has ceased its business activities or is insolvent.
14.4 To be effective, notices of termination must at least be in text form.
15.1 "Confidential Information" of a Party shall be information on competitively relevant know-how, information marked as confidential or otherwise recognizable as confidential on the basis of an objective recipient horizon as well as business secrets. Confidential Information shall also include the commercial terms and conditions of the User Agreement.
15.2 The parties shall not disclose any Confidential Information of the other party that comes to their knowledge in the course of initiating or implementing the contract.
a) treat it confidentially and use it exclusively for the execution of the contract;
b) not disclose or make available to employees and third parties, except to the extent that this is absolutely necessary for the performance of the contract (need-to-know) and only if these employees or third parties have been obligated to maintain confidentiality;
c) protect against access by unauthorized persons through appropriate and suitable measures (e.g. access control, encryption).
15.3 Clause 15.2 shall not apply to Confidential Information that is
a) a party has lawfully received or receives from a third party, in particular without breaching a confidentiality obligation;
b) were already generally known at the time of the conclusion of the contract or subsequently become generally known without any breach of the obligations contained in this contract;
c) were already present at a party before the business relationship was established and are not subject to a confidentiality obligation; or
(d) be independently developed by a party.
Furthermore, the parties shall be entitled to use and disclose Confidential Information to the extent that they are required to do so by law or by public authorities. In such a case, the party concerned shall immediately inform the other party in writing of the scope and basis of the use or disclosure.
15.4 This confidentiality obligation shall continue to apply for a further three (3) years beyond the contractual term of the User Agreement.
16. data protection
16.1 To the extent that 3Q processes personal data on behalf of Customer in the context of the provision of services, this shall be done in accordance with the Agreement on Commissioned Processing ("GPC") between the Parties. The GCU shall always have priority in its scope of application.
16.2 The Customer shall bear the sole responsibility for the permissibility of the processing of personal data and the compliance with the requirements of the applicable data protection law, in particular the proper information of data subjects (Art. 12 et seq. GDPR).
16.3 The Customer shall fully indemnify 3Q against all claims as well as judicial and official measures and sanctions in connection with the processing of personal data, except to the extent that 3Q is solely responsible for the unlawful processing and has carried out such processing contrary to the Customer's instructions. Customer's liability shall include reimbursement of reasonable legal defense costs. All further claims and rights of 3Q shall remain unaffected.
17. free trial period
17.1 During the agreed test phase ("Test Phase"), the provisions of this Section 17 shall take precedence over the other provisions of the User Agreement. During the test phase, the Customer shall not be obligated to pay any usage fees.
17.2 During the test phase, in deviation from Clause 6.1, the Customer shall only be permitted 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 the Service for any other purpose. In particular, the Customer is not permitted during the test phase 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 Customer is aware and agrees that the Service may not be available, may be available on a limited basis, may be available with significant interruptions and/or may be defective during the Trial Period. 3Q does not promise availability of the Service during the Test Period. Clause 5 shall not apply.
17.4 During the test phase, 3Q shall be liable in accordance with the provisions of the law on loan contracts (§§ 598 et seq. BGB). Clauses 10 and 13 shall not apply beyond this.
17.5 The test phase ends automatically upon expiration of the agreed duration of the test phase of seven (7) days. The Customer may terminate the test phase prematurely at any time using the process provided for this purpose in the Service. If the test phase ends without the Customer terminating the usage agreement during the test phase (see Section 17.7), the usage agreement shall be continued against payment. This Section 17 shall 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 contract of use and all claims and rights arising therefrom or otherwise in connection therewith shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The exclusive place of jurisdiction for all disputes between the Parties arising from or in connection with the User Agreement shall be Berlin.
18.2 The license agreement contains the final regulation of all rights and obligations of the parties with regard to the subject matter of the agreement. There are no ancillary agreements at the time of conclusion of the contract.
18.3 Unless otherwise agreed, amendments and additions to the license agreement must be made at least in text form. This shall also apply to any waiver of this formal requirement. Section 4.3 shall remain unaffected.
18.4 The Customer may only set off claims against 3Q arising from this License Agreement that are undisputed, legally established or ready for decision and may only exercise a right of retention 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, Feb. 16, 2022