These general terms and conditions of business for company accounts shall apply to use of the service offered by Basaas GmbH, Griebenowstr. 15, 10437 Berlin, Germany (hereinafter Basaas).
1.1. These terms and conditions of business shall apply not only to the contractual relationship in which they were included, but also to all future business relationships with the customer if Basaas does not refer to any other terms and conditions of business.
1.2. Divergent, contrary or supplementary terms and conditions of business of the customer, even if known to Basaas, shall not become part of the agreement unless their application is expressly approved by Basaas. This shall also apply if Basaas performs the service without reservations in knowledge of terms and conditions of business of the customer that are contrary, divergent or supplementary to these terms and conditions.
1.3. Basaas shall offer the conclusion of agreements only to companies in the meaning of § 14 German Civil Code (BGB), public law persons or public law special funds. No agreements shall be concluded with consumers.
2. Conclusion of an agreement
2.1. The offers of Basaas are subject to change. Upon order of the service or confirmation of another offer of Basaas referring to these terms and conditions, the customer shall make a binding declaration, expressing the wish to order the service stated. Basaas can accept the order either expressly or by beginning to process the order.
2.2. Truthful statements must be made in the course of registration. Should these later change, they must be adjusted immediately by the customer. For companies with a registered office outside of Germany, but within the EU, the VAT ID no. must be stated upon registration. Where this is not provided the customer bears the risk of any incorrect calculation of VAT.
3. Company and user accounts
3.1. A so-called company account shall be created upon registration for the first user of a company. This shall be allocated to the company stated at registration.
3.2. The first user of a company with whom an account is created shall automatically become the administrator of the company account. Other users (user accounts) can be invited to a company account pursuant to the functions offered on basaas.com.
3.3. Company and user accounts cannot be transferred to third parties and may not be transferred to third parties for use either.
3.4. The fee incurred if applicable for an additional user of a company account shall be charged every calendar month in advance (pro rata temporis if applicable).
4. Scope of the service of Basaas
4.1. The scope of the service due from Basaas shall emerge from the statements made by Basaas upon conclusion of the agreement and the respective offer ordered by the customer.
4.2. Basaas shall be entitled to adjustments of the scope of service reasonable for the customer at any time, especially if the scope of service is expanded or the adjustment is necessary to satisfy statutory requirements or guarantee the safety of operation.
5. Provision of the service
5.1. The service of Basaas shall be available to 99 % every calendar month at the transfer point (interface to the Internet in the computer centre in which Basaas provides its service). The parties understand availability of the service to be the possibility of use of the service due at the transfer point. The following times shall not be considered in determining whether the availability was granted:
a. disruptions or impairments of the technical infrastructure required for use of the offer or of the Internet unless Basaas or its agents are responsible for this;
b. planned unavailability of the service for maintenance work, primarily at low-use periods provided Basaas announced this with a period of notice of at least one week. To guarantee the security of the software systems and the data saved there in urgent cases (e.g. important security updates), maintenance windows can be announced and implemented in urgent cases with a lead time appropriate to the individual case.
6. Use of the service by the customer, obligations of the customer
6.1. The customer shall receive simple (not sub-licensable and non-transferable) rights to contractual use, restricted to the term of the agreement, of the service of Basaas.
6.2. The customer shall take customary appropriate technical and organisational measures in line with the state of the art to prevent use of the service of Basaas by unauthorised parties by means of its user names, passwords, etc. (“access data”). It shall inform Basaas immediately if it suspects that access data may have become known to unauthorised persons and – to the extent it can do so – change this access data immediately. In the event of abuse of the access data it uses, the customer shall bear the burden of proof that it was not responsible for this abuse. If the corresponding proof is available to Basaas, Basaas shall be obliged to inform the customer correspondingly.
6.3. The customer may not use the service of Basaas for unlawful purposes or breach third party rights in doing so. It shall in particular refrain from all use that could result in Basaas being accused of breaking the law or infringing third party rights. It shall in particular indemnify Basaas from all corresponding legitimate third party claims, including appropriate costs of legal examination and representation.
6.4. The customer shall be obliged to notify Basaas immediately of defects in the service of Basaas. If it fails to provide notification in good time for reasons for which it is responsible, the customer shall share responsibility for losses arising as a result. If Basaas is unable to provide a remedy as a result of the omission or delay of the notification, the customer shall not be entitled to reduce the remuneration agreed in full or in part, demand compensation of the loss that occurred due to the defect or cancel the agreement on account of the defect without observing the period of notice. The customer must demonstrate that it was not responsible for the omission to notify.
7. Use of the services of third parties
7.1. If the customer uses the service offered by Basaas in order to be able to make use the offers of a third party in order to access the functionalities of a third party offer and/or exchange data with the latter, Basaas shall only use the access data available to it to render the service due to the customer.
7.2. If Basaas processes personal data of the customer or the user of its company account, this shall occur according to the order processing agreement concluded separately with the customer. The personal data to be exchanged with the third party offer shall only be saved at Basaas if and for as long as this is necessary to provide the functions requested by the customer.
7.3. Basaas shall not be responsible for the processing of personal data by a third party service and the respective third party service shall not become a sub-processor of Basaas either.
8.1. If remuneration was agreed with the customer for the service of Basaas, this shall be due every calendar month (pro rata temporis if applicable).
8.2. Basaas can request upon creation of a company account or change in the scope of service ordered the filing of a means of payment in the name of the respective company (e.g. credit card) via which the fees for this agreement can be charged. The specified payment method must be maintained for the term of the contract or exchanged for a different payment method. The payment data shall be saved at a payment services provider.
8.3. In the event of default of payment by the customer, Basaas shall be entitled to charge a default flat rate per invoice according to § 288 (5) BGB. This shall not affect the option of asserting any additional default losses.
8.4. Basaas shall be entitled to send invoices to the customer in digital form.
9. Special rules for free accounts
9.1. Free company accounts are provided to the customer without charge and as a gift. Basaas provides its service “as is” under the free licence. Consequently, guarantee claims are ruled out. The liability of Basaas shall be limited to intent and gross negligence.
9.2. Free company accounts can be terminated by either party at any time with a period of notice of one week. Upon the termination taking effect, users’ possibility to use the company account shall also cease.
9.3. Basaas shall not owe any particular availability for free company accounts; the provision and scope of the service and support, etc. provided by it shall rather be at its sole discretion.
10. Term of the agreement
10.1. The agreement for a company account is concluded for an indefinite period. Free company accounts can be terminated at any time with a period of notice of one week. Company accounts subject to charge can be terminated with a period of notice of three days to the currently running calendar month. The above provisions shall apply correspondingly to other users who were additionally booked to a company account.
10.2. During the term, a company account or user account subject to charge can only be terminated for cause.
10.3. Termination of the last user account in a company account shall constitute termination of the company account.
10.4. Cause is established particularly if the following circumstances apply to the other party:
a. a breach of essential contractual obligations by the other party, provided the breach is not remedied despite warning and the setting of an adequate period of grace. The warning notice and setting of a period of grace are not required where it would be unreasonable to expect the injured party to provide the same;
b. a party files an application for the opening of insolvency proceedings, insolvency proceedings are commenced, or the application is rejected due to lack of assets;
10.5. terminations must occur in text form and can be issued for the customer in the “Administration” area on basaas.com.
11. Data protection
The parties shall then conclude in supplement an order processing agreement according to Art. 28 GDPR, which takes precedence over these terms and condition in the event of a contradiction.
12. Non-fulfilment of the main service obligations incumbent on Basaas
12.1. Should Basaas get into arrears with the initial provision of the service, the customer shall be entitled to rescind the agreement if an appropriate period of grace set expires fruitlessly, i.e. Basaas fails to provide the service due for the first time within this period of grace.
12.2. Should Basaas fail to meet the obligations incumbent on it in whole or in part after operational provision of the service and the availability due has been undershot for a calendar month, the agreed use flat rate shall be reduced pro rata temporis for the period in which the service was unavailable to the customer to the extent agreed.
12.3. Basaas must demonstrate that it was not responsible for the delayed provision or undershooting of the availability due. If the customer failed to notify Basaas of the inadequate availability of the service, it must prove on denial of knowledge by Basaas that Basaas had become aware of the inadequate availability in another manner.
13. Guarantee claims
13.1. The statutory provisions shall apply unless agreed otherwise below.
13.2. Basaas shall be entitled to choose the type of subsequent performance within the statutory bounds.
13.3. The period of limitations for guarantee claims shall be one year. This shall not apply to claims from intent, gross negligence, physical injury, health impairment or death in the event of assumption of a guarantee and to claims according to the Product Liability Act.
13.4. The no-fault liability of Basaas for damages pursuant to § 536a BGB for defects existing when the agreement was concluded shall be ruled out unless a guaranteed characteristic is involved.
14.1. Liability for intent and gross negligence shall be unlimited.
14.2. The amount of liability shall be restricted to foreseeable and typical losses in the event of breach of important contractual obligations due to simple negligence. Important contractual obligations are those whose performance is indispensable for the proper implementation of the agreement and whose observance the injured party may normally rely on. The period of limitations for claims under this paragraph shall be one year.
14.3. Paragraph 2 shall not apply to physical injury, impairment of health or death, fraud, assumption of a guarantee and to claims under Product Liability Act.
14.4. Otherwise, liability – on whatever legal grounds – shall be ruled out.
15.1. A party shall only be entitled to exercise a right of retention or offsetting if the underlying counterclaim has been determined with legal force or is undisputed.
15.2. The assignment of the rights and obligations from this agreement or of the agreement as a whole to a third party shall only be permissible with the prior consent of the other contractual party. The consent may not be unreasonably refused.
16. Miscellaneous provisions
16.1. Any divergent ancillary covenants and earlier arrangements regarding the object of the agreement shall hereby become invalid; this shall not apply to the order processing agreement.
16.2. Amendments and supplements of this agreement must be in text form unless a stricter form is prescribed by law. This shall also apply to any waiver of the form requirement.
16.3. Other general terms and conditions of business of the parties shall have no application to this agreement. This shall also apply if undisputed reference is made to their inclusion in later documents that arise in connection with this agreement (e.g. retrieval of services).
16.4. Should a provision of this agreement be or become void, invalid or unenforceable in whole or in part, or should a necessary provision not have been included, this shall not affect the effectiveness and enforceability of all other provisions of this agreement.
16.5. This agreement shall be subject solely to the laws of the Federal Republic of Germany. International private law shall have no application insofar as it can be contractually excluded.
16.6. The sole place of jurisdiction for all disputes arising in connection with this agreement shall be Berlin. Basaas shall also be entitled to have recourse against the customer at its statutory place of jurisdiction.