General Terms and Conditions (GTC) for ownCloud Online
These GTC are valid for all transactions and services offered and promoted by ownCloud GmbH as ownCloud Online. Hereafter also called service.
This service is only available for businesses and organisations, not for consumers. Such business or organisation agreed to these general terms and conditions and is thereafter called client or contracting party.
ownCloud GmbH allows the client and its designated users to use ownCloud Online.
The client is free to use up to the number of ordered users and can generate those through the administrator account. The administrator account counts as one user. The client can additionally generate as many guest users as ordered users.
For every 5 ordered users 1 TB of storage is provided.
ownCloud enables usage through web browser (supportet versions see system requirements) and through clients for desktop, iOS and Android provided by ownCloud. ownCloud is not responsible for the usage of clients from any other vendor.
The medium availability of the service is more than 99%. The availability is reached when the service was available at least 99% of the time in a given month. Excempt are any times in which the service was not available due to technical or other problems which are not the responsibility of ownCloud or its subcontractors, including any acts of god.
ownCloud preserves the right to limit bandwith or transfer volume for uploads and downloads. A fair use behaviour by the client and any users is assumed and expected.
Duties of ownCloud
ownCloud must provide the contracted service continously (as per 2.5 above). ownCloud assures connectivity and ability to transfer data into the internet (sending) and to the user (receiver). OwnCloud is not responsible for the connectivity to specific networks, sub-networks or sites.
ownCloud is not responsible for the functionality of any user side client or connectivity, or for any communication or connectivity system provided by any third party. Such systems can‘t be influenced by ownCloud.
Duties of client and its users
In order to prevent misuse of the system by anybody, the client and its users are required to keep the provided access data secret and store it securely to prevent usage by any third party.
The client and its users must not use the serivce for any criminal or otherwise illegal activities.
When a third party makes a claim or demand against the client and/or ownCloud regarding infringment, especially any criminal activies or intellectual property rights, as part of the usage of the service ownCloud has the right to immediately suspend the service, or any parts of the service, for the client and/or its users. This right ends when a court has established the legality in a final ruling or when such third party has irrevocably forfeit such claim.
In the case of a suspension as per 4.3 above ownCloud has the right to immediately terminate this contract. Alreay paid fees will not be returned.
The Client agrees that ownCloud, as far as possible by law, captures, collects and uses personal identifyable data which is needed to provide the service.
Initial fees specified in the order are due upon receipt of ownCloud‘s invoice. ownCloud will invoice Client for renewal fees shortly before the end of the initial and any renewal terms. Fees are stated in Euro (EUR). All fees are exclusive of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest. Those will be charged in addition based on applicable law.
Changes to Fees. ownCloud reserves the right to change Fees applicable to this Order Form as of the commencement of a Renewal Term. ownCloud will provide notice to client 90 days prior to the renewal term.
Reporting. Client will notify ownCloud promptly if the actual number of users of the Software in use by Client exceeds the number for which Client has paid applicable fees. In its notice, Client will specify the number of excess users, as well as the date(s) on which such numbers first occurred. ownCloud will invoice Client for the applicable Software for such excess users as specified and in accordance with the order, any agreement with ownCloud or these general terms and conditions.
Inspection. During the term of this Order Form and for one (1) year thereafter, ownCloud or its designated agent may inspect Client‘s facilities and records to verify Client‘s compliance with this agreement. Any such inspection will take place only during Client‘s normal business hours and upon no less than ten (10) days prior written notice from ownCloud. ownCloud will give Client written notice of any noncompliance, including the number of underreported users, and Client will have fifteen (15) days from the date of this notice to make payment to Partner for the underreported users. If Client underreports the number of users by more than five percent (5%) of the number for which Client paid, Client will also pay ownCloud for the cost of such inspection no later than thirty (30) days from the date of the ownCloud invoice for such inspection.
Mobile applications. It’s up to the client to assure agreement by the users to the end user license agreement of such applications.
Term and Termination
Term and Renewal. The term for provision of software and services under this Order Form begins on the Effective Date and continues for the term stated in this Order Form. Thereafter, the term will automatically renew for successive periods of twelve (12) months each, unless the customer gives written notice to ownCloud of its intention not to renew at least thirty (30) days before the commencement of the next renewal term.
Termination for Cause. Either party may terminate this Order Form for cause: (i) upon 30 days prior written notice to the other party for a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Effect of Termination or Expiration; Survival. If Client terminates thie contract for cause, ownCloud shall promptly refund any fees that Client has previously paid to receive the Services for the period after the effective date of such termination. Other than as provided herein, fees are non-refundable. Any provisions that are intended to survive termination or expiration of this agreement in order to achieve the fundamental purposes of this agreement shall survive.
Assignment. Neither party will assign or transfer this Order Form without the other party‘s prior written consent, except that either party may assign this Order Form upon notice and without the other parties consent to its affiliate or any successor by reason of merger, reorganization, sale of all or substantially all of its assets or stock, change of control or operation of law.
Entire Agreement; Amendment; Counterparts and Facsimile and Electronic Signature. This Order Form constitutes the exclusive terms and conditions with respect to the subject matter of this Order Form, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Client to place orders or otherwise effect transactions under this Order Form. This Order Form may not be amended or modified except in a writing signed by the parties, which writing makes specific reference to this Order Form. This Order Form may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by facsimile or electronically.
Publicity. Client hereby grants ownCloud a non-exclusive license solely during the term of this Order Form to list Client’s name and display Client’s logo in the client section of ownCloud’s website and to use Client’s name and logo in ownCloud’s client lists but only to the extent that other clients of ownCloud are also named on such list. Any other use by ownCloud of Client’s name, logo or trademark shall require Client’s prior written consent.
Governing Law. This Order Form will be interpreted and construed in accordance with the laws of Germany without regard to conflict of laws principles. The United Nations Convention on the Sale of Goods will not be applicable to this Order Form or any of the transactions contemplated by the Order From.
Independent Contractors; Third Party Beneficiaries. The relationship of the parties under this Order Form is that of independent contractors. Neither party will be deemed to be an employee, agent, partner, franchisor, franchisee nor legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. The parties hereto expressly agree that there are no third party beneficiaries of this Order Form
Notices. Any notice, other than a Change Order, required or permitted under the terms of this Order Form or required by law must be in writing and must be delivered (a) in person, (b) by nationally recognized overnight carrier (c) by first class registered mail, posted and fully prepaid to the appropriate address set forth in the preamble to this Order Form, or (d) via facsimile.
Severability; Waiver. If any provision of this Order Form is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Order Form. The delay or failure of either party to exercise any rights under this Order Form will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
Disclaimer of Damages. EXCEPT FOR A BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Limitation of Liability. EXCEPT FOR A BREACH OF CONFIDENTIALITY, FOR ALL EVENTS AND CIRCUMSTANCES, EACH PARTY’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS ORDER FORM, INCLUDING, WITHOUT LIMITATION, ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY OWNCLOUD FROM CLIENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SOFTWARE, SERVICES OR OTHERWISE) GIVING RISE TO LIABILITY.
Data loss: Under no circumstances will ownCloud be liable for any loss of data by the client or its users. Data backup is in the full responsibility of the client.
Changes: ownCloud can change these general terms and conditions by announcing any changes 30 days prior to the client. If the client does not accept such changes, the latest accepted version so such GTC continue to be valid. With such non-acceptance the agreement between the parties concerning the service are automatically terminated for the next possible period.