General Terms and Conditions for Zimory Public Cloud
1. General
Zimory GmbH („Zimory“) has developed a technology for the online-usage of server capacity („Resources“). Part of this technology is an online portal („Zimory Marketplace“), that enables registered users (each, a „User“) to identify and use available Resources of a registered provider („Provider“) (Provider and User together: „Members“).
2. Scope
These General Terms and Conditions („GTC“) apply to the usage of Zimory Marketplace as User and/or Provider. These GTC do confer any claims or establish any legal obligations between Members in terms of a contract for the benefit of a third party or a contract with protective effect towards a third party. This also applies to provisions within the GTC that are relevant to the relationship of the Members among each other directly or indirectly.
3. Object and extent of usage
Zimory provides to its Members the Zimory Marketplace with the features set forth in the GTC as well as the current technical specification. The right to use the Zimory Marketplace is limited to the technology currently available. Zimory will reduce its performance temporarily if necessary, e.g. in a situation of capacity limitations, reasons relating to the security or integrity of the servers, or to carry out necessary technical measures or to ensure or improve the performance (e.g. maintenance).
4. Registration and Member Account
4.1 Registration
To use Zimory Marketplace each User or Provider must first register as a Member by setting up a Member account. The Member account is not transferable. There is no entitlement to become a Member of the Zimory Marketplace.
4.2 Details
During the setup of a Member account each Member is required to enter certain information that is marked as required information. If the Member intends to offer Resources, it has to fill out a questionnaire regarding the specifications of its Resource-offer. A Member may at any time after registration decide to also offer Resources by submitting the relevant information.
4.3 Accuracy of disclosed information
The information disclosed at setup of a Member account must be complete and accurate. Each Members is obliged to kept the information current during the term of the membership
4.4 Consequences of registration
A contract regarding the use of Zimory Marketplace that is subject to the GTC is concluded between Zimory and each individual Member after Zimory confirms the registration on its website (www.zimory.com) („User Contract“).
4.5 Right of revocation
In case the Member is a consumer in terms of section 13 of the German Civil Code, the Member can revoke its declaration of intent (Willenserklärung) within a period of two weeks according to sections 312d and 355 of the German Civil Code, without giving reasons, in text form (e.g. letter, e-mail). The two weeks period does not commence before receipt of this legal instruction. To stay within the two weeks period, the timely posting of the withdrawal is sufficient. The withdrawal can be send via e-mail to info@zimory.com or as a letter to Zimory GmbH, Stralauer Platz 34, 10243 Berlin. The right of withdrawal terminates when a Member initiates execution of services by Zimory (using Zimory Marketplace) within the two weeks period.
4.6 Password protection
The Members must keep login information to their Member account confidential. In particular, username and password must to be retained in a manner that prevents others from obtaining this data in order to avoid abuse of the Member account by a third party. In case a Member becomes aware of any abuse of access data, it must inform Zimory in writing of such incidence immediately. Zimory is entitled to block access to an account in this situation. In the event of such an abuse, it will be assumed that the Member is liable for such abuse.
4.7 Software
If the Member chooses to offer Resources or to offer and use Resources, Zimory will provide the Member with a software, that enables the identification of available Resources and automatically display them as such on the Zimory Marketplace („Zimory-Software“). Different terms of license apply to the Zimory-Software.
5. Contractual relationships
The details of the use of Resources are subject to a separate contract to be entered into by the User and the Provider in each case („Supply Contract“). Zimory is not a party of the Supply Contract. Zimory only operates the technical platform for the display of Resources by the Provider and their use by the User.
6. Member Obligations, indemnity
6.1 Obligations
The User is obliged to only use the specified Resources of the Provider in a manner and to the extent agreed upon in the Supply Contract. The providing Member will take measures to ensure that the User can only use allocated Resources. The Provider will furthermore arrange for adequate measures to comply with requirements of data protection, IT-security and other legal requirements. The Provider shall not access the information transmitted in course of the Resource usage by the User. The Member must not use any software that (i) contains malware (particularly computer viruses) or (ii) contains spying routines (“Trojans”, “sniffers” etc.) or (iii) is capable of running illegal servers such as spam-servers or (iv) contains malicious or modified software components in the area of virtualized software or (v) can be employed otherwise to use the Resources in a manner different to what has been agreed on in the Supply Contract or to harm other Members or Zimory. Furthermore the User are not allowed to install hard- or software components, that would serve the purpose to analyze network traffic. Any use of Resources on Zimory Marketplace for the purpose of sending e-mails without any legal justification (“spam”) is strictly forbidden. Also, it is prohibited to use Resources on Zimory Marketplace for any unlawful or illegal purposes, especially criminal actions, administrative offenses and of the German the German Unfair Trade Practices Act (UWG).
6.2 Intellectual Property
Each Member will ensure that it has sufficient copyright and other rights of any intellectual property regarding Resources that are offered or used by that individual Member on Zimory Marketplace.
6.3 Data protection
During the term of the membership, each Member will comply with applicable data protection laws. If personal data is transferred to Zimory or to a third party, each Member will ensure that the data transfer is made on a sufficient legal basis. Zimory will process personal data of a Member for purposes of its contract with the Member and the administration of services among the Members.
6.4 Indemnity
Each Member indemnifies Zimory from any claims that other Members or any third party may raise against Zimory due to an infringement of rights in connection with offerings and contents or any other use of the Zimory Marketplace and the Resources (including ratings of Members). The particular Member shall bear the necessary costs of legal defense including court and lawyer’s fees. This obligation does not apply if the infringement is not the individual Member’s fault (kein Vertretenmüssen).
7. Costs
The registration on Zimory Marketplace is free of charge.
7.1 For the Provider
Offering Resources on Zimory Marketplace is free of charge.
7.2 For the User
Each User is obliged to pay the fee set forth in the Zimory fee schedule upon use of Resources. Fees are due for payment immediately and can be paid using the payment methods offered by Zimory. Zimory will send invoices to the indicated billing address. The invoiced amount will also be visible in the User account. Users will be in default with payment without further notice 30 days after receipt of an invoice.
7.3 Handling
By order of the involved Members, Zimory will determine the accrued amounts and carry out the administration/handling of payments.
8. Rating System
Members can rate each other on the Zimory Marketplace. Nonetheless each Member is obliged to only make truthful statements and comply with legal requirements. Members’ ratings have to be objective and must not be abusive.
9. Liability
Claims for damages against Zimory (or any person Zimory uses to perform its obligations) ,irrespective of its legal basis, that are based on slight negligence, only exist to the extent that a major contractual obligation has been breached in a matter that jeopardizes the purpose of the contract. In this case, claims for damages are limited to the amount reasonably predictable. This limitation does not apply if damages are covered by Zimory’s public liability insurance and the insurer actually pays out the amount. Claims regarding damage caused to a person’s health or body as well as claims related to the Product Liability Act remain unaffected.
10. Account Blocking
Zimory reserves the right to block a Member account in case the Member is in breach of the GTC or fails to settle payments.
11. Termination
The User Contract has a term of twelve (12) months. Unless terminated within a period of three months in advance, it will be renewed and continue for one (1) more year automatically.
12. Data Protection
Zimory will process personal data in accordance with Zimory’s data protection policy.
13. Final Provisions
13.1 Governing Law, Jurisdiction
The GTC are governed by the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. In case the Member is a merchant according to the German Commercial Code, a legal entity or public law separate assets (Öffentlich rechtliches Sondervermögen) the courts of Berlin shall have exclusive jurisdiction for any disputes arising out or in connection to the GTC. The same applies if the Member does not have a general jurisdiction (allgemeiner Gerichtsstand) in Germany or the domicile or habitual residence are not known at the time of commencement of proceedings. Zimory may also bring actions in the court competent for the Member based on such Member’s domicile (allgemeiner Gerichtsstand).
13.2 Changes of the GTC
Zimory reserves the right to change the GTC at any time without stating any reason, unless such change is unreasonable for the Member. Zimory will inform the Member about any changes in good time. Unless the Member conveys an objection within a period of two (2) weeks, the new GTC will be deemed accepted by the Member. Zimory will point out in the notification the right of the Member to object and the period of time for this.
13.3 Severability Clause
If any provision of the GTC is held to be invalid (partially or in total) or unenforceable, all other provisions of the GTC shall remain in full force and effect. The invalid or unenforceable provision shall be deemed replaced by a provision that suits the Members’ invalid or unenforceable provision the most particularly its economical purpose at the time of conclusion of the contract. The same applies in regards to an unintended gap within the contract.
13.4 Language
The original version of the GTC is issued in German language. This version is only provided for convenience matters. In case of inconsistencies the German version shall be definite.
