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General terms and conditions of desk.ly GmbH for the use of desk.ly software (valid for registrations from 1st August 2022)

If the translation is unclear or contains errors, the German original always applies.

  1. Validity of these General Terms and Conditions 
    1. These General Terms and Conditions apply to all current and future transactions between desk.ly GmbH (hereinafter: "we" or "us") and its customers (hereinafter: "customer"). This shall also apply if we do not refer the Customer to the General Terms and Conditions again in subsequent transactions. These General Terms and Conditions shall not apply if the Customer is a consumer within the meaning of § 13 BGB.
    2. These General Terms and Conditions apply exclusively. General terms and conditions of the customer shall in no case become part of the contract. This shall apply even if we are aware of them or if we do not expressly object to their application again, unless their application is expressly agreed to in writing. These General Terms and Conditions shall apply in place of any general terms and conditions of the customer (e.g. terms and conditions of purchase) even if, according to these, acceptance of the order is intended as unconditional acceptance of the customer's general terms and conditions.
  2. Services and scope of services 
    1. The object of our services vis-à-vis the customer is the provision of the standard software desk.ly for a limited period of time against payment for the use of its functionalities, the granting of rights of use to desk.ly as well as, if agreed, the provision of storage space in the contractually agreed size for the data generated by the customer through the use of desk.ly and/or the data required for the use of desk.ly to the agreed extent against payment of the agreed fee. No programme documentation or operating manual is owed. We may, without being obliged to do so, provide online help for the operation of desk.ly. We may discontinue services provided by us free of charge at any time, unless this is unreasonable for the customer. 
    2. From the agreed point in time and for the duration of the contract, we shall make desk.ly available to the customer on a server via the Internet in the respective current version for a limited full stop of time against payment. The server is accessible to the customer via the Internet using the Internet browsers Microsoft Edge, Google Chrome and Mozilla Firefox in the respective current version. We can, without being obliged to do so, extend the possibilities to reach desk.ly. We may, but are not obliged to, operate the server ourselves. The transfer point for desk.ly and the data is the router exit of the computer centre where the server is located. The production and maintenance of the telecommunication network, the telecommunication system as well as the procurement and provision of the necessary hardware and software is not subject matter of the contract. Unless otherwise agreed, the customer is responsible for the technical and organisational requirements for the use of desk.ly. A physical transfer of desk.ly to the customer does not take place. In principle, we are not obliged to advise or train the customer. 
    3. desk.ly may contain a programme lock which can only be deactivated by certain measures, e.g. by entering a code word or an activation by us - also regularly recurring. Without these measures, there is no possibility of using desk.ly as well as accessing the storage space. desk.ly may also contain functions via which we can determine the extent of the use of desk.ly, in particular the number and names of the users, at any time. 
    4. We shall not be subject to any custody or safekeeping obligations with regard to the data transmitted and processed by the customer. The customer shall be responsible for compliance with the retention obligations under commercial and tax law.
    5. We guarantee 100% availability. A shortfall of a maximum of 1% on an annual average is permissible insofar as we are not guilty of gross negligence or intent or essential contractual obligations are breached as a result. Interruptions agreed with the customer or caused by the customer shall not be charged to the availability. Also excluded from the calculation of availability are times during which availability cannot be guaranteed for reasons of force majeure, the restoration of data or due to unforeseeable technically necessary maintenance. Also excluded from the calculation of availability are the times for extraordinary software maintenance, servicing and the performance of other work daily from 00:00 hrs to 8:59 hrs, 12:00 hrs to 12:59 hrs and 17:01 hrs to 23:59 hrs.
    6. As far as reasonable for the customer, we are also entitled to carry out software maintenance, servicing and other work outside the times specified in the above paragraph. These may lead to a temporary impairment and also interruption in the accessibility of desk.ly. We will announce these to the customer 24 hours in advance. These times are also excluded from the calculation of availability.
    7. If and insofar as the provision of a new version or a change is accompanied by a change in functionalities at desk.ly, by the customer's work processes supported by desk.ly and/or restrictions in the usability of previously generated data, we shall notify the customer of this in writing at least four weeks before such a change takes effect. If the customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. We will draw the customer's attention to the aforementioned deadline and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.

  3. Provision of storage space
    1. Insofar as agreed, we shall provide the customer with storage space on a server for the agreed period of time and to the agreed extent for the storage of the customer's data required for the use of desk.ly. Storage space is also made available to other customers on the server.
    2. We ensure that the stored data can be accessed via the internet in accordance with these conditions. 
    3. The customer shall not be entitled to transfer the storage space to a third party for use, in part or in full, against payment or free of charge, unless the third party is a company affiliated with the customer pursuant to §§ 15 ff of the German Stock Corporation Act (AktG).
    4. The customer shall in any case remain the sole owner of the data and may therefore demand the surrender of individual or all data at any time, in particular after termination of the contract. The surrender of the data shall be effected at our discretion either by handing over data carriers or by transmission via a data network. The customer shall not be entitled to also receive software suitable for the use of the data.
    5. Insofar as a data backup or a backup is contractually agreed, we owe an automatic backup of the data on the storage space provided by us at the contractually agreed intervals. We are not obliged to retain the data backups beyond the contractually agreed scope. The customer has no claim to the surrender of a backup medium, but only to the retransfer of the backed-up data to the storage space. 
  4. Obligations of the customer
    1. The customer undertakes not to store any illegal content on the storage space provided that violates the law, official requirements or the rights of third parties.
    2. The customer is obliged to prevent unauthorised access to desk.ly by third parties by taking appropriate precautions. For this purpose, the customer shall, if necessary, instruct his employees to comply with copyright law. In particular, the customer shall request his employees not to make any unauthorised copies of desk.ly. 
    3. Without prejudice to our obligation, if any, to back up data, the customer himself is responsible for entering, maintaining and backing up his data and information required to use desk.ly.
    4. The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
    5. The customer receives access data from us for access to desk.ly, which may consist of a user name and password, for example, and which are required for the use of desk.ly. The customer is obliged to keep access data secret and not to make it accessible to third parties. 
    6. The contents stored by the customer on the storage space intended for him may be protected by copyright and data protection law. The customer hereby grants us the right to make the contents stored on the server accessible via the Internet in the event of queries and, in particular, to reproduce and transmit them for this purpose and to be able to reproduce them for the purpose of data backup.
    7. The customer is obliged to indemnify us against all claims of third parties based on the illegal data stored by him and to reimburse us for the costs we incur due to possible infringements.
    8. We are entitled to immediately block the storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform us thereof. We shall notify the customer of the block and the reason for it without delay. The block shall be lifted as soon as the suspicion is invalidated.
  5. Remuneration
    1. The customer shall pay in advance for the provision of desk.ly a remuneration in the contractually agreed amount for each commenced contractual month. The obligation to pay the remuneration begins with the start of the contract.
    2. The use of desk.ly is free of charge for all users whose companies have registered by 31.07.2022 and who have made at least one booking, for the period until 31.12.2022. Afterwards, these companies will receive a reduced price of 0.20€ per user per month. Each additional user registered after 31.07.2022 will fall under the pricing model according to 5 (iii . 
    3. Companies that register after 31.07.2022 can use desk.ly free of charge for 3 months. After that, the price for the corporate version is 1.50€ / user / month with annual payment. The enterprise version is priced at 2.00€ / user / month.
    4. Services performed by us are subject to payment. Our prices are net prices excluding value added tax. Unless otherwise stated, the prices are in euros. In the absence of other written agreements, all fees are based on our currently valid price-conditions lists or our company fee rates plus the currently valid statutory value-added tax.
    5. We reserve the right to block the customer's access to desk.ly and/or the storage space if payments due under this contract have not been made, although we have reminded the customer twice and at least 30 days have elapsed since the first reminder was sent. Such blocking does not release the customer from his payment obligations.
    6. If the customer
      - for two consecutive months with the payment of the fees or a not insignificant part of the fees, or
      - in a period extending over more than two months, with the payment of the charge amounting to the charge for two months,
      in default, we shall be entitled to terminate the contract without notice and to claim liquidated damages due immediately in one sum amounting to half of the monthly fees remaining until the expiry of the regular contract term. We reserve the right to assert further claims due to default of payment.
  1. Granting of rights
    1. We grant the customer the simple right to use desk.ly for the term of the contract under the contractually agreed restrictions for the users named to us.
  2. Liability for material defects and defects of title
    1. Technical data, specifications and performance information in public statements, in particular in advertising material, are not quality information. The functionality of desk.ly depends on the description in the contract. In addition, desk.ly must be suitable for the use presupposed under this contract and otherwise have a quality that is usual for software of the same type. 
    2. We will maintain desk.ly in a condition suitable for use in accordance with the contract. The obligation to maintain does not include the adaptation of desk.ly to changed conditions of use and technical and functional developments, such as changes to the IT environment, in particular changes to the hardware or the operating system, adaptation to the functional scope of competing products or establishing compatibility with new data formats.
    3. Liability for damages regardless of fault for defects that were already present at the time of conclusion of the contract is excluded.
  3. Liability
    1. The parties shall be liable without limitation in the event of intent, gross negligence and culpable injury to life, limb or health. 
    2. Notwithstanding the cases of unlimited liability according to the preceding paragraph, the parties shall only be liable to each other in the event of a slightly negligent breach of duty in the event of a breach of essential contractual obligations, i.e. obligations the fulfilment of which makes the proper performance of the contract possible in the first place, or the breach of which jeopardises the achievement of the purpose of the contract and compliance with which the other party may regularly rely on, but limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
    3. The above limitations of liability do not apply to liability under the Product Liability Act or within the scope of guarantees assumed in writing by a party.
    4. The limitations of liability shall also apply in favour of employees, representatives and organs of the parties.
  4. Start of contract, contract term, termination and termination of a contract
    1. Unless otherwise agreed, the contract shall commence upon signature and shall be concluded for an indefinite period. Unless otherwise agreed, the contract shall have a minimum term of 12 months and shall be extended by a further 12 months in each case if it is not terminated three months before the respective end of the contract.
    2. The right to extraordinary termination for good cause remains unaffected.
    3. Extraordinary termination due to non-granting of contractual use is only possible if we have been given sufficient opportunity to remedy the defect and this has failed. 
    4. Notice of termination must be given in writing to be effective.
  5. Changes to these General Terms and Conditions
    1. Unless otherwise specifically regulated in the contract, we are entitled to amend and supplement the General Terms and Conditions as follows: We will announce the changes and amendments to the customer in text or written form at least six weeks before they take effect. If the customer does not agree with the changes and additions to the terms and conditions, he may object to them with a notice period of one week from the date on which the changes and additions are intended to take effect. The objection must be made in text or written form. If the customer does not object, the changes and additions to the terms and conditions shall be deemed to have been approved by him. We will inform the customer of the significance of the one-week period in the notification of the amendments and additions to the terms and conditions. 
  6. References
    1. We are entitled to name the customer as a reference customer in an environment related to the contractual services, in particular on our website, in social media offers, at trade fairs, in advertisements of trade magazines, press releases, lectures and job advertisements, to use its logo as well as its brand and in this context to publicly name, show, reproduce and refer to the contractual services, including images thereof. Mention in any other environment shall be made by arrangement. 
  7. Confidentiality
    1. "Confidential Information" means all information and documents from us and from the Client which are marked as confidential or are to be regarded as confidential from the circumstances, in particular information about operational processes, business relationships and know-how.
    2. We and the client will maintain confidentiality about confidential information.
    3. Such confidential information shall be exempt from the obligation of non-disclosure,
      1. which were demonstrably already known to the recipient of the confidential information at the time of the conclusion of the contract or become known thereafter from a third party, without thereby violating a confidentiality agreement, statutory provisions or official orders;
      2. which are public knowledge at the time of the conclusion of the contract or are made public thereafter, insofar as this is not due to a breach of the contract;
      3. which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obliged to disclose shall inform the other party in advance and give it the opportunity to oppose the disclosure.
    4. We and the Client shall only grant access to Confidential Information to consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to the confidentiality obligations of these General Terms and Conditions. Furthermore, we and the Client shall only disclose the Confidential Information to those employees who need to know it for the performance of the contract and shall also oblige these employees to maintain confidentiality to the extent permitted by labour law for the time after their departure.
  1. General provisions
    1. We are entitled to provide our services through subcontractors.
    2. The customer shall only have a right of set-off if his counterclaims have been legally established or are ready for a decision, otherwise also if the counterclaims have not been disputed or acknowledged by us. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
    3. The law of the Federal Republic of Germany shall apply exclusively. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded, even in the event that application is provided for in the customer's terms and conditions. Any translation of these General Terms and Conditions, e.g. an English version of the General Terms and Conditions, is for information purposes only and does not form part of the contract. In the event of any discrepancies between the German version and a translated version, only the German version shall apply.
    4. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Osnabrück. The same applies if the customer does not have a general place of jurisdiction in Germany or if the customer's place of residence or habitual abode is unknown at the time the action is brought. However, we are entitled to sue the customer at the place of his place of business, residence or commercial establishment.
    5. The place of performance, payment and fulfilment for all obligations arising from the business relationship is the registered office of our company.
    6. Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.

desk.ly GmbH
Stand 08/2022

If the translation is unclear or contains errors, the German original always applies.


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