Terms of Service - Hosted Solr
§ 1 General
(1) These terms and conditions apply to all relationships of the corporation dkd Internet Service GmbH, Kaiserstr. 73, 60329 Frankfurt am Main, hereinafter: "Hosted Solr", with its customers in connection with the product "Hosted Solr". The terms and conditions apply only to customers who are commercial entities (§ 14 BGB), legal entities under public law or a public special fund.
(2) Different conditions on the part of the customer do not apply, unless they have been confirmed in writing by Hosted Solr. Individual agreements between Hosted Solr and the customer shall always prevail.
(3) Business relationships between Hosted Solr and customers are subject to German law. For consumers, this choice of law applies only insofar as the protection granted is not removed by mandatory provisions of the law of the country where the consumer has his normal place of residence. The UN Convention on the International Sale of Goods (CISG) does not apply.
(4) The customer may view, save, and print the order overview as well as these general terms and conditions of business. In addition, the contract text will not be stored by Hosted Solr following contract conclusion, and is therefore not accessible. The contract language is German. If there are versions in English and German of the contract and in any case of a varying interpretation of the German and English text, the German text shall prevail.
(5) Place of jurisdiction is Frankfurt am Main, as far as the customer is a commercial entity, legal entity under public law or a public special fund. The same applies if a customer has no general place of jurisdiction in Germany, or his address or normal place of residence is not known at the time of lodging a complaint.
§ 2 Subject of the service
(1) Hosted Solr offers customers, on the Website www.hosted-solr.com, the installation and setup, and the further use of the software "Hosted Solr" and the rapid availability of a Solr index on its server. "Solr" is an Open Source Search Infrastructure of the Apache Software Foundation. Indexes are created for this purpose for the documents of the particular website which shall be researched. The number of indexes and documents to be created depends on the scope of the customer’s website. Hosted Solr is available for various website systems, such as TYPO3, Joomla or Magento. A list of the supported systems is provided on the Web site of Hosted Solr. On request Hosted Solr may extend the service to other systems.
(2) The customer is entitled to make free use of the search-infrastructure within the scope of the purpose of the contract and this terms and conditions.
(3) Hosted Solr offers different rates for the use of its services. The details, in particular memory size, number of possible indexes and documents are shown on the Web site.
(4) As far as Hosted Solr provides any additional services outside of the contractual agreement free of charge, these may be discontinued at any time. There is neither any right for continuity of these services, nor any right for reduction of charges or compensation for damages.
§ 3 Services and obligations of Hosted Solr, availability of the service, maintenance work
(1) Hosted Solr provides the customer with memory space on any storage medium of Hosted Solr for use within the scope of this contractual provisions. The settings for the use of the research- infrastructure and the index data of the indexed contents are stored on the server of Hosted Solr. These settings are saved as a backup by Hosted Solr and can be restored. For troubleshooting and to help maintain smooth operation, Hosted Solr keeps records on the use of the system in logfiles. These data are always completely deleted 14 days after reporting. Hosted Solr is entitled to provide its physical server other customers as well.
(2) The customer obtains access to the services of Hosted Solr by registering on the Web site. There he creates an account, chooses a user name and password and provides the requested data.
(3) Hosted Solr is obliged to provide the connection and to make every effort to establish the connection to the Internet, so that the Hosted Solr service can be accessed for incoming inquiries, the data of the customer’s website can be called up, and as far as if the website provides this option these data can be saved. Hosted Solr points out that due to limited capacities and transmission speeds, trouble-free access to the Internet cannot be guaranteed at any time. Hosted Solr therefore assumes no obligation to ensure a permanent existence of a particular data transmission speed.
(4) Access impairments to the common extent do not constitute any infringement of the service obligation of Hosted Solr. Hosted Solr will promptly resolve any faults of its technical facilities within the scope of the existing technical and operational possibilities. Required interruptions in services for preventive or required maintenance work will be announced as soon as they are known, and as soon as possible.
§ 4 No data saving by Hosted Solr
(1) Hosted Solr points out expressly that the index data of the customer’s website to be researched are not saved. These data can however be restored at any time from the website of the customer. The time of restoration depends on the effort of the indexed data. The customer knows that the use of the research-infrastructure is not possible during such data restoration.
(2) Every customer is himself responsible for the saving and backup of his data on his website.
§ 5 Contract conclusion
(1) The contract is concluded by the acceptance of the order of the customer on the Web site by Hosted Solr. Hosted Solr is entitled to accept the offer made by means of the order within 2 days by sending an order confirmation. The receipt and the acceptance of the order will be confirmed to the customer by e-mail.
(2) Customers also have the option to enquire about particular services of Hosted Solr via telephone or via e-mail, fax or letter. Upon receiving of such an enquiry, Hosted Solr will provide the customer with an individual by e-mail, letter or fax. A contract is only then concluded when the customer accepts this offer.
§ 6 Prices, payment terms
(1) For the offered services of Hosted Solr apply the prices standing on the website unless there are no individual agreements. The current prices are standing within each current rate list. Unless expressly stated otherwise, all prices are net, plus VAT at the prevailing rate.
(2) The respective applicable charges are due right after the invoicing, without any deduction. Billing is monthly; starting date for monthly calculation is the date of the order.
(3) Line and communication costs (telephone charges) between customers and the connection point to Hosted Solr has to be paid by the customer.
(4) The payment of the monthly charge has to be made with credit card. Hosted Solr therefor uses the external service-providers Paymill and Acceptance. The customer agrees that his credit card may automatically be charged with the appropriate monthly amount after settlement. The customer must ensure that the monthly recurring charge of the credit card is successful. If there any changes on the credit card details, he must immediately inform Hosted Solr of such changes. Hosted Solr reserves the right to offer other payment methods in future.
(5) The external service-provider AirPlus Servicekarten GmbH ("Acceptance"), and the external technical service-provider Paymill GmbH are handling exclusivly the payments of Hosted Solr. Customers have to accept acceptance of the Terms and Conditions as well as the Data Protection Provisions of Acceptance and Paymill. Paymill is a technical service-provider in the area of the electronic handling of non-cash payments by credit card. Via Paymill, Hosted Solr can receive the credit card data of the customer and forward them to Acceptance. Acceptance then charges the agreed amount to the credit card specified by the customer. Hosted Solr assign its payment claim against the customer to Acceptance. The customer can only may only make payments to Acceptance with the effect of discharging the debt.
(6) In any case of a failed payment by the customer or in any case of a chargeback culpably causes by the customer, the customer is obliged to fully reimburse any bank and/or credit card charges incurred. Hosted Solr will forward these charges onto the customer. In any case of a faulty booking from the credit card, the customer will receive a reminder by email for first, without incurring any reminder costs. If the customer still fails to do the payment, he will receive a further reminder by post; the customer is obliged to reimburse Hosted Solr the costs incurred by this reminder up to an amount of € 5.00.
(7) If a charge to the credit card is not successful, or if a customer falls into arrears with his payment obligations, Hosted Solr is furthermore entitled to require default interest up to 5 percentage points above the prevailing legal annual base interest rate. Hosted Solr reserves the right to make further claims on the grounds of arrears. In particular, Hosted Solr is obliged to stop any further services, and may terminate the contractual agreement extraordinaryly, if the customer has been in arrears with an amount of at least one monthly payment for at least four weeks.
(8) Hosted Solr will always provide users with an invoice, which will be sent out in text format (by e-mail).
§ 7 Duration, termination of the contract
(1) The rate for the use of Hosted Solr can only be ordered on a monthly basis. Thus the minimum contract duration is 1 month. Every contract will extended automatically for a further month, unless the services of Hosted Solr are cancelled by the customer one month before the expiry of the agreed term.
(2) Hosted Solr offers new customers the one-off opportunity to test its services for 30 days free of charge (creation of 1 index and max. 1,000 documents). The free test version ends automatically after 30 days. If the customer would like to continue to use the services of Hosted Solr, he shall order the service separately via e-mail or on the website.
(3) After termination of the agreement, all data of the customer will be blocked, and completely deleted after 4 weeks.
(4) The right of extraordinary termination for cause remains unaffected.
(5) Terminations require the text format in order to be valid.
§ 8 Reconciliation/retention rights
(1) The customer is only entitled for netting if his counterclaims are accepted by Hosted Solr or legally recognized.
(2) The customer is only entitled to exercise a right of retention as far as his counterclaims are based on the same contractual agreement.
§ 9 Usage conditions, duties and obligations of the customer
(1) The customer grants Hosted Solr the copyright and reproduction rights to his data which are required for the performance of the contract.
(2) The customer is obliged to provide Hosted Solr with his complete and correct data requested during registration: requested data are e-mail address, selection of a password, form of address, first name, last name, name of the company if any, address, postcode, town and country. The customer assures that the given data are correct and complete. He is obliged to immediately apply any changes in the data to his account. The customer is further obliged to inform Hosted Solr of any changes to his data, and to furhter confirm current correctness within 5 days if requested by of Hosted Solr.
(3) The customer is obliged to properly and adequately use the services of Hosted Solr, he is particularly obliged,
a. not to misuse the access to the Hosted Solr services, and to refrain from any illegal actions. The customer is in particular prohibited from using the services of other subscribers of the Hosted Solr services without authorisation, he is further prohibited of using services unauthorizedly and not agreed in the contract, decrypting, reading or changing any passwords, e-mails, files etc. of other subscribers to the Hosted Solr services or the system operator, distributing unauthorized any applications of licensed application software via the Hosted Solr services, interrupting or blocking communications services, such as by overloads, as far as this is attributable to the customer’s fault, or distributing or making available illegal contents of any type via the services of Hosted Solr. This applies in particular to pornographic and violent contents, or content which is directed against the liberal-democratic constitution or the idea of international understanding, and to propaganda material and symbols of unconstitutional parties and associations or their surrogate organisations, or the provision of pornographic content on the sexual abuse of children to oneself or third parties;
b. to ensure compliance with legal regulations and official requirements, as far as these, currently or in the future, might be applicable to the use of the services of Hosted Solr;
c. to observe and comply with the applicable requirements of data protection and the acknowledged principles of data security. The customer is obliged to regularly check at appropriate intervals the legality of data uploaded from the Internet which are accessible by third parties. If the customer does not immediately delete or block such data, he is responsible for the content of these data in relation to Hosted Solr as if they were his own data;
d. to notify Hosted Solr immediately of identified defects or damage (fault reports), and take all measures necessary to facilitate the identification of the defects and damage and their causes, or facilitate and speed up the elimination of the fault;
e. after making a fault report, to reimburse Hosted Solr the costs incurred by the checking of its systems, if and as far as it turns out after checking the systems that the fault lay within the area of responsibility of the customer (i.e. outside the defined contractual and service scope of Hosted Solr).
(4) If the customer breaches the obligations specified under Para. 3 Lit. a) and b), Hosted Solr is entitled immediately, and in other cases after an unsuccessful warning, to terminate the contract without any period of notice.
(5) In cases of Para. 3 Lit. b), and in addition to the entitlement of termination without notice, Hosted Solr is authorised, if such a breach by the customer becomes known, to block access to the relevant service with immediate effect.
(6) The customer is responsible for making sufficient backup copies of his web sites and any other data. As far as the Web site records data of a user’s website to a customer, or the customer has access to this data by any other means, the customer is obliged to make regular backups of this data. Data saved or stored on the servers of Hosted Solr may not be saved on such backup copies. The customer must carry out a complete data backup in particular before every start of work by Hosted Solr and before the installation of any hardware or software supplied. Hosted Solr expressly points out that even minor changes to the software can affect the operability of the entire system.
(7) The customer is obliged to observe the common principles of data security, e.g. to keep passwords and access data secretly, to not disclose them to any third parties, to protect them against unauthorised access by any third parties and, if necessary, to ensure that they are changed, and to prevent the misuse of his systems by third parties. The customer is further obliged to protect his computer and his software with the aid of suitable and up-to-date anti-virus software. The customer will notify Hosted Solr immediately if he has any reason to suspect that the access data/passwords have become known to any unauthorised third party.
(8) The customer is obliged to observe the stipulations of the provider designation with subject to section 5 TMG (Telemediengesetz) and all other applicable stipulations in the relevant valid version.
§ 10 Blocking of access by Hosted Solr
(1) Hosted Solr is entitled to temporarily interrupt the connection of the server to the Internet (blocking of the Web site), if he becomes aware of the fact that contents placed on the site are illegal, or if a sufficient suspicion of illegality exists. A sufficient suspicion of illegality is deemed to exist in particular if Hosted Solr receives a warning from the alleged injured party or a claim of injunction is made on the grounds of the illegality of contents, and the warning and/or the injunction application are obviously not unfounded. As far as possible, the customer must be heard first, otherwise notified immediately. The blocking must be restricted to the potential illegal contents, as far as this is technically possible and reasonable.
§ 11 Liability and indemnification obligations of the customer
(1) As soon as the customer becomes aware of a legal infringement by third parties, or has reason to suspect such infringement, he is obliged to notify Hosted Solr immediately. The customer is obliged to indemnify Hosted Solr against all claims against Hosted Solr in connection with the use of the services of Hosted Solr by the customer, and particularly due to possible infringements of the rights of third parties or legal regulations. In addition, the customer is obliged to pay for any other damages and expenses incurred by Hosted Solr in connection with any non-contractual or illegal use of its services by the customer, and in particular through the assertion of claims due to possible infringements by third parties. The indemnity obligation includes in particular the obligation to indemnify Hosted Solr against necessary legal defence costs.
(2) The customer is liable for all consequences and disadvantages suffered by Hosted Solr or by third parties, resulting from the misuse or illegal use of the Hosted Solr services or from the failure of the customer to fulfil his other obligations.
§ 12 Liability for material and legal defects
(1) Hosted Solr guarantees the performance of the server within the mentioned scope of the agreement. As far as Hosted Solr provides the customer with memory space on his server systems, any liability regardless of culpability for initial defects is excluded. For the rest any warranty will be made by removal of defects.
(2) If a fault of the Hosted Solr services is substantial and lasts for longer than one week, and if the actual failure period causes by this fault lasts more than one working day, the customer is entitled to reduce the monthly fees and charges accordingly from the date of occurrence of the fault until its rectification. A substantial fault exists if
a. the customer, for reasons which are not his fault or that of third parties, can no longer access the Hosted Solr infrastructure, and therefore can no longer use the services specified within this contract, and
b. the use of these services is significantly more complicated, respectively the use of individual services specified in the contract becomes impossible, or similar impairments exist.
(3) In the event of loss of services due to fault outside the area of responsibility of Hosted Solr, the diminution of fees and charges is excluded. The same applies for the loss of services due to essential interruptions in operations (maintenance work) in accordance with No. 3 of these terms and conditions.
(4) Hosted Solr is not responsible for the data of the customer, or in particular the impeccable performance of the Web site within the server and system environment of Hosted Solr. As far as the Web site places requirements on the server or the pre-installed software above and beyond the contractually agreed server configurations, it is the responsibility of the customer to ensure that these requirements are met. Hosted Solr reserves the right to refuse the implementation of such requirements, or to condition such implementation on further technical changes, including those which incur costs for the customer.
(5) The customer is obliged to immediately report occurring faults whose causes may lie in the area of responsibility of Hosted Solr, and to assist Hosted Solr to a reasonable extent on the identification and rectification of the causes, and to take all reasonable measures for the prevention and decrease of damage.
§ 13 Liability restrictions
(1) As far as through this contract are provided any telecommunication services for the public (in line with section 3 No. 24 TKG) (German Telecommunications Act), the provider is parochially liable in line with section 44a TKG.
(2) Outside the scope of section 44a TKG, Hosted Solr is liable for material defects and defects of title subject to legal requirements.
(3) Apart from the liability referred to in Para. 1 and beyond the liability for material defects and defects of title, Hosted Solr is liable without restriction, if the cause of the damage is based on intent or gross negligence. Hosted Solr is also liable for the slightly negligent infringement of essential obligations (obligations whose infringement endangers the achievement of the purpose of the contract), and for the infringement of cardinal duties (obligations whose fulfilment is absolutely essential for the proper performance of the contract, and on whose observation the customer is consistently entitled to rely on). If Hosted Solr is liable on the aformentioned reasons the liability is always restricted to the foreseeable damages typical for the contract. Hosted Solr is not liable for the slightly negligent infringement of any other obligation.
(4) The limitation of liability of the aformentioned paragraph do not apply in the event of injury to life, limb or health, a defect following assumption of a guarantee for the quality of the product as well as fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.
(5) If the liability of Hosted Solr is excluded or restricted, this also applies for the personal liability of its employees, representatives and subcontractors.
§ 15 Salvatorius clause
As far as any of the provisions of this Agreement shall be invalid, this shall not affect the remaining provisions hereof. The invalid provision shall be replaced by a provision coming as close as possible to the intent and purpose of the invalid provision in a legally effective and economic manner. The same applies to any regulatory gap.