Terms and Conditions
BrandCrock GmbH
Max-Planck-Straße 5
85716 Unterschleißheim
Register court: District Court of Munich
Trade registry ID: HRB 226 742
1. Material Scope and Subject Matter of the Contract
1.1 These terms and conditions apply to the use of the cloud service under the brand BrandNube, which is provided by BrandCrock GmbH (hereinafter referred to as the “Provider”) as Software-as-a-Service (“SaaS”) to the customer (hereinafter referred to as the “Customer”) via the Internet.
1.2 The Customer is enabled to use the software stored and running on the servers of the Provider or a service provider commissioned by the Provider via an Internet connection for their own purposes during the term of this contract, and to store and process their data with its assistance.
1.3 This product may exclusively be purchased and used by commercial customers. Upon conclusion of the contract, the Customer warrants that they are acting in their capacity as an entrepreneur.
1.4 General Terms and Conditions of the Customer shall only apply if this has been expressly agreed upon in writing.
2. Type and Scope of Services
2.1 The cloud service primarily comprises hosting, i.e., the internet-based provision of the open-source system Dolibarr ERP/CRM. It is expressly agreed that the Dolibarr ERP/CRM software is provided as it is published by the open-source project via the portal dolibarr.org or the repositories referenced therein.
2.2 The agreed upon quality is determined by:
- the scope of services listed in the product overview at the time of the order
- in conjunction with the respectively valid General Terms and Conditions for BrandNube Cloud Services
- and the Data Processing Agreement for BrandNube Cloud Services
- as well as any additionally concluded individual agreements.
2.3 For the duration of the contract, the Provider grants the Customer a non-exclusive, non-transferable, and non-sublicensable right to use the provided software and any associated user documentation.
2.4 The Provider reserves the right to implement further developments (e.g., by utilizing newer or different versions, technologies, systems, processes, or standards) as a result of technological progress and performance optimization after the conclusion of the contract.
2.5 The use of the software is made available to the Customer at the router output of the data center utilized by the Provider (“Point of Delivery”). The software remains on the Provider’s server at all times. The Provider is not responsible for establishing and maintaining the data connection between the Customer’s IT systems and the described Point of Delivery. It is the Customer’s responsibility to fulfill the technical prerequisites for receiving the service at the Point of Delivery and for its use.
2.6 In the event of an error that is not the responsibility of the Provider, the Provider offers paid support upon request for the implementation of workarounds, the forwarding of error reports to the open-source project, and the implementation of bug fixes. If such services are to be rendered by the Provider, this must be individually agreed upon.
3. Technical Requirements
3.1 The product is a cloud-based service. Its use requires a suitable end device with an Internet connection and an up-to-date web browser.
3.2 To send emails from the Dolibarr ERP/CRM system, the Customer requires access to an SMTP server. This is not part of the BrandNube Cloud Service. To use the server for sending emails, the configuration data must be entered into the system.
3.3 For the automated processing of incoming emails (e.g., via the email collector), the Customer requires access to an email inbox via an IMAP interface. The inbox is not part of the BrandNube Cloud Service. The configuration data for accessing the inbox must be entered into the system.
4. Customer's Duty to Cooperate
4.1 The Customer will support the Provider to a reasonable extent in the performance of the contractual services.
4.2 The Customer must always maintain a current company address and an email address, and regularly monitor the inbox of the latter.
4.3 The Customer must keep the provided access credentials confidential and ensure that any employees who are provided with access credentials do the same. The Provider’s services may not be made available to third parties unless this has been expressly agreed upon by the parties.
4.4 The Customer is independently responsible for the configuration (initial entry of master data, activation, and setup of the required modules), unless expressly agreed otherwise.
4.5 The Customer is responsible for executing proper and regular backups of their data. Dolibarr provides an easy-to-use function for this purpose, allowing a backup copy to be generated at the push of a button and subsequently downloaded locally.
5. Remuneration and Invoicing
5.1 The amount of remuneration is based on the details provided in the product overview. The remuneration for variable components (e.g., number of users, storage space) is calculated and invoiced based on actual usage at the time of booking/renewal of the subsequent term. Should more than the booked variable components be utilized during the term, the Provider is entitled to charge a prorated subsequent billing.
5.2 Stated prices are net amounts, to which the applicable statutory value-added tax (VAT) must be added. In the event of a change in the statutory VAT rate, the Provider is entitled to adjust the charges for services accordingly starting from the date the change takes effect.
5.3 Invoicing takes place at the beginning of each new term. There is no refund for paid but unused periods.
5.4 Invoices are due for payment no later than 14 calendar days after the invoice date without any deductions.
5.5 The Provider issues invoices digitally as PDF files using the data provided by the Customer (e.g., address). Invoices are sent via email to the email address specified by the Customer.
5.6 If a payment method is on file, payment is automatically processed by charging that payment method at the time of invoicing. The Provider reserves the right to offer additional payment methods or to remove existing ones.
5.7 If the Customer is in arrears with the payment of due remuneration, the Provider is entitled to block access to the software after issuing a prior warning with a deadline and following the expiration of that deadline. The warning can be sent via email to the address on file for the Customer. The Provider’s claim for remuneration remains unaffected by this suspension. Access to the software will be restored without delay once the arrears have been settled. The right to suspend access acts as a more lenient measure, even if the Provider holds the right to extraordinary termination under Section 6.6.
5.8 The remuneration for other services not included in the product overview is subject to the Provider’s respectively valid price list and any agreements made.
6. Conclusion of Contract, Contract Term, and Termination
6.1 A contract is only concluded upon full receipt of the remuneration payment by BrandCrock, or already with the Provider’s first act of performance, provided the Provider allows the use of the software prior to the receipt of payment. This does not apply if a Customer is positively aware that the Provider rejects a contractual relationship, or if the Provider declares such rejection within one week of receiving the order via email to the address provided by the Customer.
6.2 If the Provider offers a free trial period, it is subject to the same contractual terms as a paid usage period. However, the Provider may terminate this usage option without adhering to any notice period. The Customer is not entitled to any claims for fulfillment or damages arising from this.
6.3 The initial contract term is one month, unless otherwise agreed.
6.4 If the contract is not terminated, it automatically renews for a subsequent term. This term is one month, unless otherwise agreed. In the event of renewal, the prices and other contractual conditions valid at that time shall apply. The Customer will be informed of any changes to the conditions at least one month in advance.
6.5 The Customer may terminate the contract at any time with a notice period of one week leading up to the end of the current term. Notice of termination by the Customer can be submitted via the respective function in the online customer account. Any other notices of termination received by the Provider require written form to be legally effective.
6.6 The right to extraordinary termination for good cause remains reserved for both parties provided the statutory requirements are met. Good cause for the Provider exists, in particular, if the Customer, despite receiving a warning, is more than two months in arrears with the payment of due remuneration. If the Customer is responsible for the reason for termination, the Customer is obligated to pay the Provider the agreed remuneration minus any expenses saved by the Provider up to the date on which the contract would have ended at the earliest through ordinary termination.
6.7 It is at the Provider’s discretion to grant a grace period after the end of the paid contract term to enable continuous operation in the event of a delayed renewal. If the Provider grants a grace period, it is subject to the same contractual terms as regular usage. However, the Provider may terminate this usage option without adhering to any notice period. The Customer is not entitled to any claims for fulfillment or damages arising from this. In the event of an extension of the contract term, the duration of the grace period will be credited towards the new contract term.
6.8 Upon expiration of the contract term, the Provider is entitled, after a transition period of 14 days, to delete the Customer’s stored content from the systems used to provide the services.
7. Availability
7.1 A monthly availability of 99% is agreed upon. Announced maintenance windows are not factored into the calculation of availability.
7.2 The Provider informs the Customer that restrictions or impairments to the provided services may occur that fall outside the Provider’s scope of influence. This includes, in particular, actions by third parties not acting on behalf of the Provider, technical conditions of the Internet that the Provider cannot influence, and force majeure. The hardware, software, and technical infrastructure used by the Customer may also impact the Provider’s services. As far as such circumstances affect the availability or functionality of the service rendered by the Provider, this has no bearing on the contractual conformity of the services provided.
7.3 If the agreed availability is not met in a given month, the Customer may demand a corresponding percentage refund of the fee paid for that month in the form of a credit towards future services from the Provider. It is expressly agreed that the aforementioned credit for non-compliance with the respective service obligation by the Provider acts as liquidated damages for the total loss, and the Customer shall not assert any further claims against the Provider.
7.4 The Customer is obligated to notify the Provider of any functional failures, disruptions, or impairments of the agreed service immediately after becoming aware of them, detailing them as precisely as possible. Prior to reporting a disruption, the Customer must inspect their own area of responsibility.
8. Disruption Incident
8.1 A disruption incident occurs when the BrandNube Cloud Service fails to meet the contractual conditions, e.g., in the event of a server failure. Errors within the provided open-source software Dolibarr ERP/CRM do not qualify as disruption incidents within the meaning of this contract.
8.2 When reporting a disruption incident, the Customer must provide the most detailed description possible of the functional failure to enable efficient troubleshooting. If the Customer has access to an online customer account with the capability to create support tickets, this method must be prioritized.
9. Warranty
The statutory regulations concerning warranties generally apply. Sections 536b (Tenant’s knowledge of the defect upon conclusion of the contract or acceptance) and 536c (Defects occurring during the lease term; notice of defect by the tenant) of the German Civil Code (BGB) are applicable. However, the application of Section 536a paragraph 2 (Tenant’s right to remedy the defect themselves) is excluded. Furthermore, the application of Section 536a paragraph 1 BGB (Landlord’s obligation to pay damages) is excluded insofar as the statute stipulates strict liability (liability without fault).
10. Liability and Damages
10.1 The Provider is liable according to statutory provisions for damages incurred by the Customer that were caused intentionally or by gross negligence, that result from the absence of a guaranteed characteristic, that are based on a culpable breach of essential contractual obligations (so-called cardinal obligations), that are the result of culpable injury to health, body, or life, or for which liability is stipulated under the Product Liability Act. The Provider is liable to the same extent for the fault of vicarious agents and representatives.
10.2 Cardinal obligations are those contractual duties whose fulfillment is essential for the proper execution of the contract, on the compliance of which the contractual partner may regularly rely, and the breach of which jeopardizes the achievement of the contract’s purpose.
10.3 In the event of a breach of a cardinal obligation, liability is limited—provided the damage is solely based on slight negligence—to those damages that must typically be expected when utilizing the software provided under this contract.
10.4 In all other respects, liability—regardless of the legal grounds—is excluded.
10.5 Should the Customer suffer damages resulting from data loss, the Provider shall not be liable if the damages could have been avoided by regular and comprehensive backups of all relevant data by the Customer.
10.6 The Customer’s contractual claims for damages against the Provider expire twelve months after the claim arises.
11. Data Protection, Data Processing, and Data Backup
11.1 The Provider adheres to statutory data protection regulations.
11.2 Since the Customer processes or allows the processing of personal data on IT systems for which the Provider holds technical responsibility within the framework of this agreement, a supplementary Data Processing Agreement for BrandNube Cloud Services shall be concluded. The Provider acts exclusively as a data processor, and this data is processed and used solely for the execution of the contract. The Provider will adhere to the Customer’s instructions regarding the handling of this data. The Customer bears any adverse consequences that such instructions may have on the execution of the contract.
11.3 The Customer remains the data controller both generally within the processing relationship and within the meaning of data protection law. If the Customer processes (including collecting and using) personal data in connection with the contract, they guarantee that they are legally authorized to do so according to applicable regulations, particularly data protection laws, and will indemnify the Provider against third-party claims in the event of a violation.
11.4 Regarding the relationship between the Provider and the Customer, the following applies: Vis-à-vis a data subject, the responsibility for the processing (including collection and usage) of personal data lies with the Customer, except insofar as the Provider is responsible for claims by the data subject resulting from a breach of duty attributable to the Provider. The Customer will responsibly examine, process, and respond to any inquiries, requests, and claims made by the data subject. This also applies if the data subject asserts claims directly against the Provider. The Provider will assist the Customer within the scope of their duties.
11.5 For the purpose of executing the contract, the Customer grants the Provider the right to duplicate the data to be stored for the Customer, insofar as this is necessary to provide the services owed under this contract. The Provider is also entitled to retain the data in a failover system or a separate backup data center. To prevent and resolve disruptions, the Provider is further entitled to analyze respective data and make alterations to the data structure or format.
11.6 The Provider regularly backs up the Customer’s data stored on the Provider’s servers onto an external backup server. Insofar as technically feasible, the Customer may extract their data for backup purposes at any time and is obligated to do so at regular, customary intervals.
11.7 If the Customer utilizes functions of the AI module within the Dolibarr backend, BrandCrock processes the transmitted data exclusively to provide the function requested by the Customer. Processing takes place on infrastructure operated by BrandCrock within the European Union. If personal data is processed on behalf of the Customer during this operation, the specifics—particularly concerning utilized sub-processors, purpose limitation, and technical-organizational measures—are governed by the Data Processing Agreement (DPA) concluded between the parties; further details are outlined in the privacy policy.
12. Customer Data and Indemnification from Third-Party Claims
12.1 As a technical service provider, the Provider stores content and data for the Customer, which the Customer inputs, saves, and makes accessible for retrieval while utilizing the software. The Customer commits to the Provider not to upload any content or data that is punishable by law or otherwise unlawful in an absolute sense or in relation to individual third parties, and not to use any programs containing viruses or other malware in connection with the software. The Customer remains the responsible entity regarding personal data and must therefore consistently verify whether the processing of such data through the use of the software is covered by corresponding legal permissions.
12.2 The Customer bears sole responsibility for all content utilized and data processed by them, as well as for any legal rights required to do so. The Provider holds no obligation to monitor the Customer’s content or to examine the content utilized by the Customer within the software.
12.3 In this context, the Customer undertakes to indemnify the Provider against all liability and any costs, including potential and actual costs of legal proceedings, should the Provider be held liable by third parties, including the Customer’s employees personally, as a result of alleged actions or omissions by the Customer. The Provider will inform the Customer of such claims and, as far as legally permissible, offer them the opportunity to defend against the asserted claim. Simultaneously, the Customer will promptly and fully provide the Provider with all available information concerning the facts that form the basis of the claim.
12.4 Any further claims for damages by the Provider remain unaffected.
13. Confidentiality
13.1 The parties are obligated to maintain permanent secrecy regarding all information concerning the respective other party that becomes known or will become known to them in connection with this contract, provided such information is marked as confidential or is identifiable as business and trade secrets based on other circumstances (hereinafter “Confidential Information”). The parties shall not pass this information on to third parties, record it, or exploit it in any other way, unless the respective other party has expressly consented to the disclosure or use in writing, or the information must be disclosed by law, a court order, or an administrative decision.
13.2 Information does not qualify as Confidential Information within the meaning of this Section 13 if it:
- was already known to the other party beforehand without the information being subject to a confidentiality agreement,
- is generally known or becomes known without violating the assumed confidentiality obligations,
- is disclosed to the other party by a third party without violating a confidentiality obligation.
13.3 The obligations stipulated in this Section 13 shall survive the termination of this agreement.
14. Transfer of Rights and Obligations
The assignment of rights and obligations arising from this contract is only permissible with the Provider’s prior written consent. The Provider is entitled to commission third parties with fulfilling the obligations under this contract.
15. Final Provisions
15.1 The contract is subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction is the registered office of the Provider, provided the Customer is a merchant, a legal entity under public law, or a special fund under public law.
15.2 Amendments and additions to this agreement as well as all declarations, notification obligations, and documentation obligations relevant to the contract must be made in writing, unless another form is agreed upon or required by law.
15.3 The Customer is only entitled to offset claims or assert a right of retention with or concerning counterclaims that are undisputed or have been legally established.
15.4 The Customer shall independently comply with any import and export regulations applicable to the deliveries or services. The Customer will independently manage legal or official procedures related to cross-border deliveries or services, unless expressly agreed otherwise.
15.5 Should individual provisions of this agreement be invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties will collaborate to replace invalid clauses with provisions that approximate the invalid ones as closely as possible.