Terms of service (TOS)

Preamble

The rescaled GmbH (Rüsselsheimer Str. 22, 60326 Frankfurt am Main, Germany, represented by its managing directors Tobias Hannaske and Adam Lakota, registered in the commercial register of district court of Frankfurt am Main under the number HRB 122506) – hereafter also referred to as "rescaled" or "the provider" – provides Software-as-a-Service (SaaS) services under the label "statuspad".

In the following, the generic masculine is used for reasons of readability, simplification and to reduce the amount of text. This is not intended to be discriminatory in any way.

Specifically, with statuspad, the provider offers its customers the possibility of operating so-called "hosted status pages". These are internet pages on which customers can inform their customers or the public centrally about maintenance work, outages and current problems with their systems or services. Visitors of the status page can be informed about relevant events via notifications.

§ 1 Definitions of terms

A user is a natural person (either a consumer or entrepreneur according to section 14 of the German Civil Code) who created a free user account on statuspad.

A customer (or team) is a legal or natural person (in this case exclusively an entrepreneur according to section 14 of the German Civil Code), for whom a user has created a customer account. The user who created the customer account for the customer is automatically also the administrator (team owner) of said account. Each customer has exactly one administrator.

A user can be administrator (or team owner) of no, one or more customer accounts.

A user can be a member (or team member) of no, one or more customer accounts.

As far as the administrator of a customer concludes a paid subscription in the client's name, the client (entrepreneur according to section 14 German Civil Code) is the contractual partner and invoice recipient. A customer designates a user who can manage all user accounts that are authorized to access the customer’s service subscription as well as manage the subscription itself by utilizing the team management functionality.

§ 2 Validity of the contractual conditions

We provide our services exclusively on the basis of the following regulations. Other regulations shall only apply if we have explicitly agreed to them in writing. To that extent the tacit inclusion of other general terms and conditions or contractual terms is objected to.

We provide our services exclusively to entrepreneurs within the meaning of section 14 of the German Civil Code. With the registration of a customer account (creation of a team), the customer confirms to be an entrepreneur in the sense of section 14 of the German Civil Code and to accept our services in this function. If they lose this capacity as an entrepreneur during the term of contract, they are obligated to inform the provider immediately.

§ 3 Conclusion of contract

The contract is concluded by registering a customer account (creating a team) in the statuspad web application.

A customer may operate more than one customer account. For example, if the client appears under different labels and wants to operate a separate status page for each label or wants to use differently priced services for these.

If the provider offers a free version of a customer account, it has the right to limit the maximum number of these free customer accounts per natural or legal person at its own judgement.

By concluding the contract, the user who opened the account for the customer, becomes the administrator. The administrator can name additional users who may use the functions provided for the customer. The administrator can access the customer account by logging in with his personal user account and selecting and activating the respective team.

Each user is responsible for keeping their login data private or changing it if necessary.

§ 4 Contractual object

The respective contractual object results from the service description of the concluded subscription. The customer is notified of the exact extent of the subscription before the contract is concluded.

Additional services and/or requirements shall only become part of the contract if the contracting parties agree on this in writing or the provider has confirmed it in writing. Subsequent changes or extensions to the extent of functions and services shall require agreement in text form or written confirmation by the provider, unless they can be booked independently by the customer via the customer portal.

The customer has no claim whatsoever to the provision of a source programme or source code. The customer may request application support solely by the provider support within the scope of the provider commitments, unless otherwise agreed.

§ 5 Rights of the customer to the software, rights and obligations of the customer

The software used by the provider to provide said services is either legally protected or an open-source product. The copyright, patent rights, trademark rights and all other ancillary copyrights in the software and other objects provided for or made accessible to the customer in the course of initiating and executing the contract are exclusively rights of the provider. Insofar as third parties are entitled to the rights, the provider has the corresponding rights of use, exploitation and distribution.

The list of used software products as well as the respective license terms can be viewed by the customer after logging into their user account.

The subletting (reselling) and all other acts of exploitation of the services used shall only be permitted with the prior written consent of the provider.

Contractual items, documents (in particular the documentation), proposals, test software, etc. of the provider which are made accessible to the customer before or after the conclusion of the contract shall be deemed to be intellectual property and a business and trade secret of the provider. They may not be used in any way without written permission and must be kept secret.

The customer assures that they will use the services of the provider only in accordance with legal regulations. In particular, they do not violate legal prohibitions or infringe the rights of third parties (trademark rights, rights to a name, copyrights and data protection rights). If the customer uses a logo or trademarked word or picture within the design of their status page, they explicitly assure that they have the necessary rights of use.

The customer shall not use the services of the provider to send, store or publish data which, due to their type or nature (e.g. viruses or data recognised as viruses), size or duplication (e.g. by spamming), could endanger the existence or operation of the provider or a third party.

Insofar as the customer manually adds third parties to the list of persons to be notified on his status page (those customers receive, automated electronic notifications, e.g. by e-mail, when maintenance work or outages are announced), they assure that the explicit consent of the data subject has been obtained in advance. If the data subject is a natural person, the provider shall act for the customer as a commissioned data processor pursuant to the EU General Data Protection Regulation (GDPR). The customer is therefore required to conclude a contract on commissioned data processing with the provider in advance.

In the event of a reversal of a payment made for which the customer is responsible (e.g. chargeback or return debit note), the customer undertakes to pay a lump sum of € 15.00 per case to compensate the provider for the costs and expenses incurred. Alternatively, the provider may demand compensation in the amount of the loss actually incurred by it (e.g. in the case of return debit note fees that are dependent on the means of payment and exceed the lump sum).

§ 6 Availability of service

The provider guarantees an availability of the contractual status page of 99% on an annual average. Excluded from this is the inaccessibility of the customer's status page due to maintenance work announced in advance, due to force majeure and due to circumstances for which the provider is not responsible. The status page is considered to be available if it can be called up from at least two network independent clients.

A case of force majeure exists if it is not possible or reasonable for the provider to provide the contractual service. The case of force majeure shall be any event for which neither of the contracting parties is responsible and which cannot be averted even by exercising the utmost reasonable care, that prevents the contractual partner from providing the contractual service in whole or in part. These include in particular war, strikes, power and line failures, lawful lockouts, arson, vandalism, burglary, sabotage, natural events and similar circumstances that directly or indirectly affect the provider, insofar as the provider is not responsible for them.

If the provider provides services free of charge, it is be entitled to discontinue them or make them chargeable with six weeks' notice. After the end of the period, the service shall generally be deemed to have been terminated. There is no automatic conversion to a paid contract.

§ 7 Contract term

The duration of the contract results from the service purchased or commissioned by the customer in each case. If no agreement has been reached, a minimum contract period of one month shall apply for each service purchased.

The contractual relationship on which this service is based shall be extended by a further month if it is not terminated 7 days before the expiry of the contract. The termination can be conducted either via the customer portal, in text form or verbally.

The right to extraordinary termination for good cause remains in force.

Should the customer use the provider's services contrary to the provisions described in § 5, the Provider shall be entitled to remove the illegal information, texts or images and/or to block the customer's access to this service, without the customer being entitled to any claims for compensation.

§ 8 Defects and software errors (bugs)

The contracting parties agree that it is not possible to develop applications in such a way that they are free of errors for all application conditions. Insofar as an error leads to an impairment of the service, the provider shall be entitled - insofar as not otherwise agreed in individual cases - to provide the customer with a so-called workaround, insofar as this does not lead to unreasonable additional effort on the part of the customer.

A functional impairment of the application resulting from environmental conditions, incorrect operation or incompatibilities on the part of the customer is not a defect.

An insignificant reduction in quality and performance is not taken into account.

The customer shall support the provider in analysing faults and rectifying defects, in particular by specifically describing any problems that arise; additionally, informing the provider comprehensively and granting the time and opportunity required to rectify the defect. Insofar as the customer violates his obligations to cooperate in this regard by not fulfilling them, by fulfilling them late or inadequately, the provider shall be released from providing the service affected by this in accordance with the contract.

If the provider finally refuses to remedy the defect or if the remedy fails or is unreasonable for the customer, the customer may terminate the contract or reduce the remuneration appropriately.

§ 9 Liability

The customer shall be liable to the provider for damages if the customer's use violates the prohibitions set out in clause 5 or infringes the rights of third parties and a claim is made against the Provider by third parties or the authorities. This also applies to the violation of data protection rules and the resulting fines. The customer shall also indemnify the provider in relation to any claims of third parties resulting from these violations. The supplier shall be entitled to demand a reasonable advance on costs or a guarantee.

The provider shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages that are based on intent or gross negligence, including intent or gross negligence on the part of its representatives or vicarious agents. Insofar as the provider cannot be proven to have intentionally breached the contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

The provider shall be liable in accordance with the statutory provisions insofar as it culpably breaches a material contractual obligation. A material contractual obligation exists if the breach of obligation relates to an obligation on the fulfilment of which the customer was entitled to rely or the fulfilment of which makes the proper performance of the respective contract possible in the first place. These are therefore obligations, whose breach would jeopardise the achievement of the purpose of the contract. In this case too, however, the liability for damages is limited to the foreseeable, typically occurring damage. The amount of the claim for damages per case of damage is - unless the parties have not agreed otherwise in writing - is limited in total to the annual net order value of the respective service.

Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the German Product Liability Act.

Any further liability for damages other than those contained in the above provisions is excluded, regardless of the legal nature of the claim asserted. Insofar as the liability for damages against it is excluded or limited, this also applies with regard to the personal liability for damages of the provider's employees, representatives and vicarious agents.

In the event of force majeure, the customer shall have no claims for damages or other rights against the provider.

§ 10 Limitation period

The limitation period for all claims arising from contractual performance and from legal defects and defects of quality is twelve months.

§ 11 Advertisements

The provider may name the customer as a reference customer during the term of the contract and beyond.

The provider may thus use the costumers' logo. The customer grants the necessary right of use for this. The customer has the right to object to the use of his logo at any time. The objection must be in text form and is preferably to be sent by e-mail to the provider.

§ 12 Written form and place of jurisdiction

Amendments and supplements to the contract must be in text form to be effective. This requirement can only be waived in writing.

The law of the federal republic of Germany applies.

The exclusive place of jurisdiction for all disputes arising from the contract shall be the registered office of the Provider under company law. Notwithstanding sentence 1, the provider may also sue the customer at the customer's registered office. The place of performance for the mutual contractual services is agreed to be the registered office of the provider.

§ 13 Salvatory clause

If any provision of this agreement is or becomes void, invalid or unenforceable in whole or in part, or if any provision that is necessary in itself is not included, the necessary provision, the validity and enforceability of all other provisions of this agreement shall not be affected. The affected provision shall be replaced by a legally permissible one which corresponds as far as possible to what the parties intended or would have agreed according to the sense and purpose of this contract had they recognized the invalidity or the loophole.

It is the explicit intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that section 139 of the German Civil Code is waived in its entirety.

Frankfurt am Main - December 1, 2022
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