General Terms and Conditions of luckycloud

Preamble

The following General Terms and Conditions of Business (GTC) of luckycloud GmbH, Solmsstraße 26, 10961 Berlin (hereinafter referred to as luckycloud or We) govern the business relationship between luckycloud and its customers. Our offer is aimed at both entrepreneurs and consumers. At www.luckycloud.de luckycloud offers its customers the services offered under 4. and would like to use these GTC to ensure smooth service provision and achieve a high level of customer satisfaction. If you have any questions in connection with these GTC, please do not hesitate to contact us at support@luckycloud.de.

 1 General Provisions - Terms

a. "Consumers" - are (according to § 13 BGB) natural persons who use the Service neither for commercial nor for independent professional activities. They are entitled to the consumer right of withdrawal described under 6.

b. "Entrepreneur" - Our service is also aimed at entrepreneurs (i.e. business customers) within the meaning of § 14 BGB. This has the consequence that the customer is not entitled to a consumer right of withdrawal. A voluntary right of withdrawal is not granted to business customers.

c. "Customers" - are all persons who have registered with luckycloud.de.

d. "User/ Visitor" - means that one looks at the luckycloud websites or uses services without registration. The term "User" means both a visitor and a customer.

 2 Scope of application

These GTCs apply between us and our customers and regulate the business relationship independently of the customer's general terms and conditions, which are not applicable in this respect. In particular, the GTCs regulate the rights and obligations associated with the Services and necessary rights and obligations and, if applicable, further obligations of the customer to cooperate. By using the luckycloud services, you agree to this agreement, whether privately or commercially motivated. You are only entitled to use the luckycloud services if you comply with all applicable laws and agree to this Agreement.

 3 Conclusion of the Agreement

a. The contract between luckycloud and you shall come into effect upon acceptance by luckycloud by means of order confirmation, but at the latest when services are made available by luckycloud or when using services of luckycloud which do not require prior registration.

b. We may refuse to conclude the contract or withdraw from concluded contracts if there is good cause, e.g. if there is reasonable suspicion that you intend to misuse the services.

 4 Subject of the contract

a. The subject matter of the contract between the parties is the provisions set out in the respective service descriptions and price lists or special agreements and the services of luckycloud listed therein. Depending on the account, different amounts of data may be stored in encrypted form on a server in a storage space protected from external access.

b. luckycloud only offers chargeable accounts with the option of booking additional chargeable upgrades. The performance period depends on the service selected and begins with the 14-day trial period or upon payment by the customer or provision of the services.

c. For the use of the individual, chargeable services, the prices listed in the respective valid price lists apply.

d. The contract shall commence after successful registration, creation of an account with luckycloud.de or provision of a server and acceptance of the GTC.

 5 Free trial access and demo account

a. A free trial access is available for the following luckycloud products:
- luckycloud Home
- luckycloud team
- luckycloud per business
- luckycloud mail/office

b. luckycloud pro Enterprise or luckycloud pro Enterprise Plus you do not have a free trial period as this is a dedicated hosting service. Users can test the basic functions free of charge in a luckycloud team or luckycloud pro Business Account.

c. In order to give all users of luckycloud, including legal entities or entrepreneurs, a free trial period, we are making our paid services available to you for 14 days free of charge for testing purposes. After these 14 days you are free to use the service for a fee or to discontinue the service for non-payment. The unpaid account will be completely deleted after 14 days.

d. If services from the test version become the basis for payment, this test period is considered the free trial period. The day of receipt of payment after the advertised free trial period is then considered the renewal date for the contract. If no payment is received during the 14-day trial period, the data already uploaded to the account will be completely deleted after 14 days. Restoring this data is then no longer possible. There will be no separate notice of termination. To stop the luckycloud service during the free trial period, you do not need to do anything else. However, if you decide to use the luckycloud services after the free trial period, you will pay the corresponding amount for the selected term by entering your login e-mail address with the payment method set in your account for the selected term.

e. A demo account is a public trial account. The following data may not be uploaded here:
- personal data,
- content which is extremist in nature or which incites crime
- pornographic, violent, violence glorifying, racist, discriminating or inciting contents

 6 Contract period and termination

For dedicated servers, such as luckycloud pro Enterprise and luckycloud pro Enterprise Plus, the contract periods and periods of notice set out in point 6.2 apply. For all other luckycloud services the following regulations apply:

 6.1 luckycloud Standard Services

a. The customer can choose between the following contract periods for luckycloud Home and Team, luckycloud pro Business, luckycloud Mail and Groupware: 1 month, 3 months, 6 months, 12 months or 24 months.

b. If Customer has set up a recurring payment, the account will always be automatically renewed for the term selected by Customer, unless Customer deletes his luckycloud account or deactivates his payment before the end of the contract term.

c. Customer may change the contract term prior to the expiry date of its term periods.

d. The expiration date can be found by Customer in his personal dashboard under "Remaining Term".

e. This Agreement is in full force and effect while You are using the luckycloud Services or Customer is in use. The Agreement shall remain in force for 2 years after termination or revocation. You may terminate your luckycloud Account for any reason by either

- in the case of a one-off payment method, not make a new payment for a new term of a luckycloud service, or

- in case of a recurring payment method, delete your user account before the expiration date of the term period or deactivate your payment.

f. The right to terminate for good cause remains unaffected.

d. An automatic contract extension after the expiration of the paid term does not occur for all user accounts paid online. Only in the case of recurring payments or payment on account will the contract be extended by the contract period defined by you, if the account has not been deleted by you or the payment has been deactivated by the key date. The cloud service for the account can only be continued with the payment of the new contract period by entering your login e-mail address.

 6.2 luckycloud services with dedicated hosting

a. With dedicated hosting, the customer is provided with one or more independent or dedicated servers. This is the case with luckycloud pro Enterprise, Enterprise Plus and web hosting.

b. Unless otherwise agreed, the initial contract term is 12 months.

c. The contract is automatically extended for a further 12 months.

d. The contract can be terminated 3 months before the end of the contract in writing by e-mail (support@luckycloud.de) by a contact person authorized to issue instructions, who was previously specified in the main contract.

The right to terminate the contract for good cause remains unaffected.

e. Further services and service levels can be found in the main contract.

 7 Terms of payment

a.All payments are due prior to the provision of these luckycloud services and are payable in advance.

b. Customer may choose between monthly, quarterly, semi-annual, annual or biennial billing intervals.

c. Customer may choose from the following payment methods:

- on account
- Paypal
- Instant bank transfer
- VISA/Mastercard
- SEPA direct debit (after the first successful payment with another payment method)

d. In the event of default of payment, the statutory provisions including interest shall apply. We expressly reserve the right to assert further damage caused by default.

Irrespective of the originally agreed terms of payment, luckycloud is entitled to demand security for the payment amount still to be made by the customer for the remaining term of these licence terms.

e. The customer shall (additionally) bear any transfer fees or charges that may be incurred

 8 Adapt tariff

a.The customer can change his tariff before the expiry date of the term period.

b.If customers book an upgrade or downgrade before the expiration date of their already paid term, the equivalent of the remaining amount will be credited or charged in days of the term of the new contract if the customer selects "Adjust" and there is enough remaining term.

 9 Deactivation of the account

b. We may suspend the provision of the luckycloud Service to you or terminate your membership without notice to you,
- if the payment deadline is not met,
- if the user uses the luckycloud systems in deviation from the normal operating behaviour and thereby impairs the security, confidentiality, availability, integrity and resilience of the systems, networks, programs, applications, scripts, apps, files and data from luckycloud, other luckycloud customers are affected,
- violate any of the terms of this agreement.

 10 RIGHT OF REVOCATION

Cancellation policy for digital contents, created according to EGBGB Annex 1 to Art. 246a § 1 para. 2 sentence 2. reference: BGBl. I 2013, 3642 - 3670

REVOCATION INSTRUCTION

You have the right to revoke this contract within fourteen days without giving reasons.
The withdrawal period is fourteen days from the day on which you or a third party designated by you, other than the carrier, took possession of the goods.
To exercise your right of revocation, you must notify us, luckycloud GmbH, Solmsstraße 26, 10961 Berlin, +49(0)30 814 570 920
inform us by means of a clear statement (e.g. a letter, fax or e-mail sent by post) of your decision to withdraw from this contract. You may use the attached model revocation form, but this is not mandatory.
In order to comply with the revocation period, it is sufficient to send the notification of the exercise of the right of revocation before the end of the revocation period.

Consequences of revocation
If you revoke this Agreement, we shall reimburse you for all payments we have received from you, including delivery charges (other than any additional charges arising from your choosing a different method of delivery from the cheapest standard delivery offered by us), immediately and no later than fourteen days from the date on which we receive notice of your revocation of this Agreement. For this refund, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged for this refund. We may refuse to make any refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
You must return or hand over the goods to us immediately and in any event no later than fourteen days from the date on which you notify us of the cancellation of this agreement. This period shall be deemed to have been observed if you dispatch the goods before the expiry of the fourteen-day period. You shall bear the direct costs of returning the goods. You will only be liable for any loss of value of the goods if such loss of value is due to handling of the goods which is not necessary for testing their condition, properties and functioning.
Sample cancellation form

(If you want to cancel the contract, please fill out this form and send it back).
luckycloud GmbH, Solmsstraße 26, 10961 Berlin, +49(0)30 814 570 920
- I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
- Ordered on (*)/received on (*)
- Name of the consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only in case of communication on paper)
- Date
(*) Delete as applicable.

 11 Content provided

a. luckycloud does not claim ownership of any text, files, images, photos, videos, sounds, musical works, copyrighted works or other materials you upload to luckycloud. You represent and warrant that the content you upload does not violate applicable German and European law, intellectual property rights (including copyrights), contractual rights or other rights of third parties and does not contain any content that glorifies violence, right-wing or left-wing radicals and/or pornographic content.

b. You undertake to accept responsibility for any criminal and civil prosecution resulting therefrom and to indemnify luckycloud against all claims.

c. We may suspend or remove from luckycloud any user account that violates applicable laws and/or this Agreement. You are solely responsible for the content you upload to luckycloud. luckycloud has no influence on the content.

d. The Content is not reviewed by us and does not reflect the opinions and policies of luckycloud. luckycloud makes no warranty, express or implied, as to the conduct of users, the Content or the accuracy or reliability of any content, material or information you upload.

 12 Services and Service Levels

a. The scope of services of the individual luckycloud services is set out in the current description of the services on the website or in the service descriptions supplied with the services.

b. The availability of the luckycloud servers and the data paths to the transfer point to the internet is at least 99% on annual average. This does not include periods in which the relevant servers cannot be reached due to technical or other problems beyond the control of luckycloud (force majeure, fault of third parties, etc.).

c. luckycloud regularly carries out maintenance work on its systems for the security of network operation, maintenance of network integrity, interoperability of services and data protection. For this purpose, luckycloud may temporarily suspend or restrict services, taking into account the interests of the customer, if important reasons justify this. As far as possible, maintenance work will be carried out during periods of low usage. In the case of planned maintenance work which may entail longer temporary suspensions or restrictions of services, luckycloud shall inform the customer in advance of the nature, extent and duration of the impairment.

d. It is the customer's responsibility to create the necessary conditions for the proper receipt of the services, in particular to provide the appropriate receiving, playback and connection facilities and to connect them in accordance with the operating instructions and recommendations.

e. Each new luckycloud account is entitled to 15 minutes of support and advice free of charge depending on the size of the account.

Additional charges may apply retrospectively for additional, individual support services depending on the account and request. In this case the customer books a support ticket in advance and makes an appointment at support@luckycloud.de. A support ticket á 15 minutes costs 22,50 Euro.

Business customers can additionally arrange individual support contracts (e.g. 24/7 support).

f. luckycloud may change services insofar as this is reasonable for the customer taking into account the interests of the customer and of luckycloud.

g. Additional costs may be incurred for some additional services which are not included in the scope of services. These are services such as remote support, individual configuration or development work.

h. The Customer may enter into agreements with luckycloud in SLAs or in the luckycloud pro Enterprise main contract regarding availability, scope of support, support times, response times and other services.

 13 Rights of use

a. Use of the luckycloud services and membership of luckycloud are void where prohibited by law.

b. By using the luckycloud Services you represent and warrant that:

Your personal use of the luckycloud services does not violate any applicable laws or regulations.

c. You will not use the luckycloud services
- by any automated use of the system;
- to disrupt, interrupt or create an unreasonable load on the luckycloud services or the connected networks or services;
- to impersonate another customer or person;
- to gain access to another customer's account, username or password at any time;
- sell or otherwise transfer your account;
- to harass, abuse or harm another person

 14 Costs and price changes

a. The prices according to luckycloud's current price list in euros at the time of account creation shall apply.

The net prices of luckycloud services are published on our website or agreed in the personal offer or price sheet, subject to errors and mistakes.

b. All prices for individuals and students, unless otherwise stated, are inclusive of VAT.

c. We reserve the right to change prices and services of the luckycloud services. In the event of renewed payment or changes to the contract, the currently valid prices will be applied. You are then free to decide whether you wish to continue using these services. Your continued use of the service after the fee has changed will be deemed to be acceptance of the proposed fee modification.

We will announce price changes on the website or by e-mail in sufficient time for you to be able to properly terminate the usage relationship in compliance with the contractually agreed notice period before the new prices come into effect. If you do not terminate after notification of the new prices and continue to use chargeable services after the new prices come into force, the price change will become binding for the contractual parties.

d. We generally do not restrict or limit the traffic on your account. However, we reserve the right to block accounts or suspend the associated contracts if the amount of data loaded indicates that the account is being used for file sharing or similar purposes. All users are entitled to 120% of the booked storage space of network traffic per month inclusive. Should the network traffic be used excessively, we reserve the right to charge 0,0396€ per GB for the additional traffic. If the traffic fees are not paid within the agreed payment period, we reserve the right to block the account until payment is received.

 15 Rights of third parties and obligations of customers

a. If the customer/user violates the aforementioned obligations, in particular legal prohibitions or morality, he shall be liable to us for compensation of all direct and indirect damages, including financial losses, arising from this.

b.Furthermore, the customer/user undertakes to indemnify us against claims of third parties - of whatever kind - which result from the illegality of the content uploaded or placed on luckycloud and/or which arise from the personal use of the services provided by luckycloud. The obligation to indemnify also includes the obligation to fully indemnify us against legal defence costs (e.g. court and lawyer's fees).

c.The customer is obliged to take appropriate measures to avert and reduce damage. This includes, among other things, that the customer must make regular back-up copies of data stocks and carry out security checks (in particular to defend against viruses, malware or other malicious software in the IT systems of the end customer).

d. luckycloud and the customer agree to maintain secrecy about confidential information. This obligation shall continue for a period of two years after termination of the Agreement for any reason whatsoever. luckycloud and the user are prohibited from publishing or passing on to third parties any content, transcripts or internal conversations received in the course of a luckycloud service.

 16 Warranty and liability

a. luckycloud shall only be liable for damage in the event of intent and gross negligence. If luckycloud breaches an essential contractual obligation (cardinal obligation) in a way that endangers the purpose of the contract, liability is limited to the typical damage that luckycloud could reasonably foresee at the time of conclusion of the contract, unless the breach of obligation is caused intentionally or by gross negligence. This limitation shall not apply in the event of injury to life, body and/or health and in the event of liability under the Product Liability Act.

b. If the Customer is an entrepreneur, a legal entity under public law or a special fund under public law, liability shall be limited to the contractual fees paid by the Customer in relation to the Services, except in cases of intent and gross negligence. The customer has forfeited his claim if he has not notified us of the claim within one month of its accrual.

c. We are not responsible for technical problems and malfunctions within the Internet which are beyond our control, nor for errors, omissions, interruptions, loss, deletion, defect, theft, destruction, unauthorised access or changes to content uploaded to the luckycloud by the customer.

d. luckycloud shall not be liable for loss of business, contract, profits, consequential or economic loss. Nor shall luckycloud accept any liability for damage caused by incorrect or incorrectly uploaded content, whether caused by the websites of luckycloud or in connection with the luckycloud services or by users /registered users of the luckycloud service or any of the devices or programs used in connection with luckycloud.

 17 Data protection

a. Our highest goal is data protection and data security! Therefore, we always try to handle your personal data in a responsible manner. Your personal data provided for use and registration will therefore only be collected, stored and processed by us to the extent necessary for the contractual provision of services and permitted by law. We will process personal data confidentially and in accordance with the provisions of the EU Data Protection Basic Regulation, the Federal Data Protection Act (new) and will not pass them on to third parties.

b. Beyond this, your personal data will only be used if you have expressly consented to this. You can revoke your consent at any time.

c. As part of the basic data protection regulation, the customer must conclude an agreement with luckycloud for order processing in accordance with Art. 28 DSGVO. For this purpose luckycloud provides a contract for downloading in the personal customer dashboard under "Download Manager", which the customer can upload after signing at the relevant place in the Download Manager.

d. Further detailed information can be found in our privacy policy.

 18 Amendment of the AGB

luckycloud reserves the right to amend these GTC at any time, insofar as this is necessary for good reasons, in particular due to a change in the legal situation, technical changes or further developments, regulatory gaps in the GTC, changes in the market situation or other comparable reasons and does not unreasonably disadvantage the customer. The customer will be notified of changes to the GTC in writing or by e-mail at least four weeks before they take effect. The amendments shall become effective if the customer does not object in writing or by e-mail within this period of four weeks and luckycloud has informed the customer of this legal consequence in the notification of amendment. In the event of an objection we reserve the right to terminate the user relationship. In each notification of change you will be informed separately of the consequences of the change and your right of objection and/or termination.

 19 Final provisions

a. All changes, amendments and cancellations of contractual agreements must be made in writing, as must the cancellation of the written form requirement, unless these terms and conditions of business provide for the text form.

b. Offsetting or a right of retention may only be declared against claims of luckycloud with undisputed or legally established counterclaims.

c. German law applies to disputes arising from these terms and conditions. The exclusive place of jurisdiction for all disputes arising out of or in connection with these terms and conditions is Berlin.

d. Should individual provisions of these terms and conditions be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. In this case, the contractual partners undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.

e. The law of the Federal Republic of Germany shall apply. The application of the UN Sales Convention is excluded.

Status of the AGB - August 2020