Terms and Conditions

flow office GmbH (hereinafter referred to as “flow office”), Beethovenstraße 8, 67098 Bad Dürkheim, provides its services to customers exclusively subject to the following terms and conditions.

Section 1 General – Scope of Application

1. These terms and conditions apply to all current and future business relationships.

2. For the purposes of these Terms and Conditions, consumers are natural persons with whom a business relationship is entered into and to whom no commercial or self-employed professional activity can be attributed. For the purposes of these Terms and Conditions, business customers are natural or legal persons, or partnerships with legal capacity, with whom a business relationship is entered into and who act in the course of their commercial or self-employed professional activity. For the purposes of these Terms and Conditions, customers are both consumers and business customers.

3. Any differing, conflicting or supplementary terms and conditions shall not form part of the contract, even if known, unless their application is expressly agreed to in writing.

§ 2 Formation of the Contract

4. Our offers are non-binding until the contract is concluded.

5. The conclusion of the contract is subject to the customer supplying the goods correctly and on time. If the customer fails to perform, flow office shall be granted a correspondingly longer period to process the order. If the contract is terminated early by the contractor, the contractor shall be entitled to claim the full remuneration as damages. The client shall be entitled to prove that the loss incurred is less than the total amount agreed under the contract.

6. Before commencing the development work, the Contractor is entitled to issue an interim invoice for 50% of the agreed quotation amount, payable by the Client. If the interim payment is not made by the due date, the Contractor is entitled to suspend the work. Work on the agreed rounds of revisions will only begin once the Client has made the interim payment.

7. The contract may be concluded either by means of a separately issued software development agreement or after the customer has placed an order. A software development agreement of this kind will only be entered into for a contract value of at least €20,000 (plus VAT). In all cases, the customer must accept the offer in writing.

§ 3 Acceptance/Completion

8. Entrepreneurs are required to inspect the software within one week of its completion. If a defect is found, it must be reported within one week. If no notice is given, the software shall be deemed to have been approved. The same applies if a defect becomes apparent after acceptance.

9. The software is generally handed over in electronic form. At the client's request, additional documentation may be produced in written form, provided this has been agreed in the contract.

10. The work shall be accepted either upon written approval of its acceptance or upon transfer to the Client’s system. Acceptance shall also be deemed to have occurred if the Client does not provide feedback on the work within 14 days of the last correspondence. In such a case, the work shall be deemed accepted, and the Contractor shall be entitled to invoice for the services provided.

11. Special requests made by the Client after development of the work has commenced, which go beyond the scope of services originally defined, may be billed additionally by the Contractor at up to 20% of the total order value.

§ 4 Scope of Services, Order Processing

12. The services to be provided are specified in the contract. The subject matter of the contract is the analysis/design, development, programming and implementation of software/an application, excluding data protection policies.

13. flow office is entitled to engage third-party service providers and agents to provide some or all of the services. flow office is entitled to change the internet infrastructure used and the service providers and agents engaged to provide the services at any time without separate notice, provided that this cannot result in any disadvantage to the customer. Otherwise, the customer will be informed of the change no later than two weeks before it takes effect and asked to communicate any concerns regarding the planned change.

14. The services shall be provided according to the schedule stages specified in the offer or agreed with the customer. If the customer does not provide the documents required to carry out the order in good time, flow office shall not be liable for any damage the customer may suffer as a result of the delay. The delay shall entitle flow office to postpone performance for the duration of the impediment plus a reasonable extension, or to withdraw from the contract, in whole or in part, in respect of the part not yet performed. flow office shall inform the customer without delay of any delays in the progress of the project and of any expected failure to meet a deadline. In the event of such delays, the customer shall grant flow office a reasonable extension. The customer shall reject any changes to the schedule stages proposed by flow office only for valid reasons.

15. Minutes of discussions between the contracting parties shall be made available by email. They shall be deemed approved unless an objection is raised within one week.

16. Unless otherwise agreed in the contract, the ownership rights to the concept, architecture and programming remain with flow office.

§ 5 Copyright, Authors’ Rights and Rights of Use

17. Copyright in software created by flow office belongs to flow office. Drafts in printed or electronic form may not be altered, published or passed on to third parties without the express consent of flow office.

18. Ownership rights and copyright in the software created by flow office shall remain with flow office. The customer shall be granted usage rights only. Copyright in the designs shall remain with flow office. flow office reserves the right to use them further. Suggestions made by the customer or any other assistance provided by them shall not give rise to any joint copyright.

19. Only rights of use are granted in respect of concepts and designs arising from the development services. No ownership rights are transferred.

20. Liability for any potential licence infringements rests solely with the customer. flow office is obliged to pass these licences on to the client upon handover.

21. flow office is entitled to cite all customer works and customer logos as references or to use them for its own advertising purposes. If the client does not wish this or prohibits it, this must be stated in writing. Otherwise, no additional consent from the client is required.

§ 6 Customer's obligations

The customer is solely responsible for the components supplied by the customer for the creation of the software/application. The customer warrants that these contain no content that is criminal in nature, harmful to minors or pornographic, and do not infringe any third-party copyright or trade mark rights. If flow office identifies any breach of the above requirements, it may ask the customer to provide lawful materials. If the customer fails to comply with this request within two weeks, flow office is entitled to withdraw from the contract. In this event, the customer must reimburse flow office for all costs incurred in creating the software/application and other components.

§ 7 Remuneration and Payment Terms

22. The fee payable is set out in the contract. If performance of the order is delayed for reasons attributable to the customer, flow office may claim the outstanding quoted amount. Fees are generally paid by bank transfer or direct debit.

<msg>23. flow office shall commence providing the services immediately after the first direct debit or other payment transaction has been credited. One-off charges, the setup charge, variable charges and purchase prices for other products shall be collected when the service is provided or immediately before delivery.</msg>

24. For use of the OMVIN software by subscription, the billing period selected when entering into the contract applies: the monthly plan has a term of one month, and the annual plan a term of twelve months. The subscription is renewed for the selected billing period each time unless it is cancelled before the end of the current period. It may be cancelled at any time via the account settings page or by notifying flow office, and the cancellation takes effect at the end of the current billing period. The subscription fee is charged in advance at the beginning of each billing period. For consumers, after the initial term the subscription is renewed for an indefinite period and may be cancelled with one month’s notice. Billing for subscriptions and in-app purchases of the OMVIN software is handled by Paddle.com Market Limited, London (Paddle), which acts as the Merchant of Record: Paddle is the customer’s contractual partner for the purchase transaction, collects payment and issues the invoice, including VAT; the Paddle Checkout Buyer Terms also apply. flow office remains the contractual partner for the scope, use and provision of the service. The software is not distributed through an app store.

24.1 Support agreements for individual development are concluded for the term specified in the contract. Unless either party terminates the contract before the end of that term, the contract term shall be extended by a further year. There is no limit on the number of further extensions. The monthly flat fee for software support shall be paid monthly in arrears.

25. In the case of service contracts and contracts for work that go beyond the normal scope, we are entitled to request reasonable interim payments. This does not affect partial services, which may also be paid for on a pro rata basis.

26. If payment deadlines are exceeded, we are entitled to bill interest on overdue payments at 5% above the base rate, even without issuing a reminder.

27. Our offers are subject to limitations on data transfer and storage space. If these limitations are exceeded, we are entitled to require a reasonable advance payment. Our prices do not include support services. If the customer uses technical support services, these will be billed in accordance with the applicable price list.

28. flow office bills telephone consultations for each quarter of an hour or part thereof, based on an hourly rate of €149.00 (plus VAT).

29. If the customer is in arrears with payments due, we are entitled to suspend access to the relevant offer until the outstanding amount has been received.

30. The customer may only set off claims against claims made by flow office if the counterclaims are undisputed or have been established by a final and binding court decision.

31. The services obtained from flow office may also be paid for in instalments. An instalment agreement may be made for a maximum of 12 monthly payments. Unless otherwise agreed, instalments must be paid within 5 working days of the payment due dates stated on the invoice.

32. Costs and advertising fees incurred as part of marketing activities for flow office are passed on to customers at a 20% mark-up on the gross price.

32.1 As part of the marketing packages, the customer may also book advertisements on Google, known as Google Ads, or with Meta Inc. (Facebook & Instagram), known as Social Ads (hereinafter referred to as Ads), as an additional service.

32.2 Ads are generally placed and paid for through the customers’ own accounts. If this cannot be ensured and the costs are borne by flow office, they will be recharged at the above-mentioned rates.

32.3 flow office may charge a percentage-based management fee on the Ads budget. The amount of the management fee will be disclosed to the customer in advance at the time of booking and shown transparently in each report.

§ 8 Termination, Expiry and Amendment of the Contract

33. flow office shall have an extraordinary right to withdraw from the contract if the material provided by the customer is unlawful, technically unusable, or implementation in accordance with the terms of the contract would be economically ruinous for flow office.

34. A termination is only effective if made in writing by letter or email.

35. Under the support agreement, flow office is entitled to make changes to its contractual services, provided that such changes do not adversely affect any of the customer’s rights. The customer will be informed of any such changes. flow office is also entitled to amend the agreement where this is necessary to maintain the service in response to changes in technical conditions, or as a result of changes in legal requirements, in particular those imposed by the courts or the Regulatory Authority for Telecommunications and Posts.

36. Amendments to the General Terms and Conditions will be notified to the customer at least 4 weeks before they come into effect, by email to their email address or by post. If no objection is made to such amendments within one month of delivery, they will be deemed to have been accepted. If the amendments are to the disadvantage of the customer, the customer may terminate the contractual relationship without notice within one month of receiving the notice of amendment.

37. Amendments to the contract, additions and collateral agreements must be made in writing to be effective, unless these Terms and Conditions provide otherwise. The written-form requirement also applies to any waiver of this requirement. flow office generally sends other notices to the customer, as well as notices required in the ordinary course of business, to the customer’s email address. Notices are deemed delivered when received and made available at that address, irrespective of when the customer actually retrieves them.

38. If, in the case of payment by instalments, the specified payment deadlines are not met or are missed by more than 7 working days, flow office reserves the right to terminate the instalment agreement and demand payment of the outstanding balance in full.

§ 9 Right to cancel a distance contract

39. Consumers are entitled to the following right of withdrawal. A consumer is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade or self-employed professional activity (Section 13 of the German Civil Code (BGB)).

Information on the right of withdrawal

Right of withdrawal

You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which the contract was concluded.

To exercise your right of withdrawal, you must inform us (flow office GmbH, Beethovenstraße 8, 67098 Bad Dürkheim, Germany, telephone: +49 6351 124506, email: info@omvin.ai) of your decision to withdraw from this contract by means of a clear statement (e.g. a letter sent by post or an email). You may use the attached model withdrawal form for this purpose, although this is not obligatory.

To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.

For purchases made through Paddle as Merchant of Record, you may also exercise your right of withdrawal by notifying Paddle (Paddle.com Market Limited, Judd House, 18–29 Mora Street, London EC1V 8BT, United Kingdom, https://paddle.net). In this case, Paddle will issue the refund to the payment method originally used.

Consequences of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the additional costs resulting from your choosing a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event no later than fourteen days from the day on which we are informed about your decision to withdraw from this contract. For this reimbursement, we will use the same means of payment as you used for the original transaction, unless expressly agreed otherwise with you; in any event, you will not incur any fees as a result of such reimbursement.

If you requested that the services should begin during the withdrawal period, you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the time when you notify us of your exercise of the right to withdraw from this contract, compared with the total scope of the services provided for in the contract.

40. The right of withdrawal expires early in the case of a contract for the provision of services if we have fully performed the service and began performing it only after the consumer gave their express consent and, at the same time, acknowledged that they would lose their right of withdrawal once we had fully performed the contract (section 356(4) of the German Civil Code (BGB)).

41. Under section 312g(2)(1) of the German Civil Code (BGB), the right of withdrawal does not apply to contracts for the supply of goods that are not prefabricated and whose manufacture is based on an individual selection or specification by the consumer, or that are clearly tailored to the consumer’s personal needs. This applies in particular to the creation of software or an application developed specifically for the consumer.

Model withdrawal form

(If you wish to withdraw from the contract, please complete this form and return it.)

To An flow office GmbH, Beethovenstraße 8, 67098 Bad Dürkheim, email: info@omvin.ai:
I/we (*) hereby give notice that I/we (*) wish to withdraw from 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 consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if this form is notified on paper)
Date
(*) Delete as appropriate.

§ 10 Warranty

42. flow office shall initially remedy defects at its discretion by repair or re-creation. Some customer-specific settings for flow office can be configured online. The transmission of such data via the internet is at the customer’s risk and without any warranty from flow office. The notifications shall take effect upon receipt and shall be used by flow office as binding instructions for the provision of services until new data is received via the internet. Any delays arising in this connection are due to technical factors and shall not constitute a defect. flow office warrants that the software created will function without errors on the defined servers, databases and operating systems specified in the contract. The customer is advised that third-party software is required for its operation and that differences in functionality may therefore arise.

43. If flow office seriously and definitively refuses to perform or to remedy the defect and provide subsequent performance on the grounds of disproportionate costs, if subsequent performance fails, or if it is unreasonable for the customer, the customer may, at their choice, demand only a reduction in the remuneration or rescission of the contract, and damages subject to the limitation of liability (see § 12), instead of performance. However, the customer shall have no right to rescind the contract in the event of a minor breach of contract, in particular where the defects are only minor.

44. The entrepreneur may claim a reduction in remuneration, rescission of the contract and damages subject to the limitations of liability, or, in lieu thereof, reimbursement of expenses instead of performance in respect of a defect, only after a reasonable period specified by him has expired without result, together with a statement that he will refuse to accept rectification of the defect after that period has expired, unless a deadline is not required under the statutory provisions.

45. Unless flow office is responsible for the breach of obligation constituted by a defect, the customer shall not be entitled to withdraw from the contract.

46. Any further claims shall remain unaffected in cases of fraudulent concealment of defects or where a guarantee has been given as to the quality of the goods.

47. The customer is not given any guarantees in the legal sense by flow office.

§ 11 Limitation period

48. The customer's rights in respect of defects are subject to a limitation period of one year from acceptance of the software. This shorter limitation period does not apply where flow office is responsible for gross negligence, or in the event of personal injury or damage to health attributable to flow office, or the death of the customer. flow office's liability under the Product Liability Act also remains unaffected.

49. Claims by flow office for remuneration are subject to a limitation period of five years.

§ 12 Limitation of Liability

50. flow office shall have complete technical and architectural freedom in developing the software/application, while taking the customer’s commercial interests into account. flow office shall develop the software/application, excluding any elements supplied by the customer.

51. flow office shall only be liable for damage caused intentionally or through gross negligence by flow office, its legal representatives or any of its vicarious agents. This shall not apply to data protection matters or to the Terms and Conditions incorporated into the website. The foregoing limitation of liability applies to both contractual and non-contractual claims.

52. If a culpable breach of a fundamental or material contractual obligation is not caused by gross negligence or wilful misconduct, liability shall be limited to the amount of such losses as are typical for the contract and were reasonably foreseeable at the time the contract was entered into. This also applies to breaches caused by slight negligence on the part of the Contractor’s legal representatives or agents.

53. In dealings with businesses, flow office shall not be liable for any breach of non-essential contractual obligations resulting from slight negligence.

54. flow office cannot be held liable for the loss of or damage to documents, data and information received from the customer and provided to flow office for the development of bespoke software/an application. If the materials provided by the customer make it impossible to develop the software, flow office shall not be liable for any resulting loss or damage.

55. The foregoing limitations of liability shall not affect the customer’s claims under product liability law. Nor shall they apply in the event of personal injury to the customer or in respect of warranted characteristics. To the extent that liability is validly excluded or limited, this shall also apply to the personal liability of employees, other staff, officers, representatives and persons engaged in performing obligations on their behalf.

§ 13 Data protection and handling of data

56. In accordance with Articles 13 and 14 of the GDPR, flow office hereby informs you that personal data are stored for the purpose of performing the contract and may, where necessary, be disclosed to flow office’s cooperation partners, agents and service providers to the extent required. Otherwise, personal data shall only be collected, processed or used with the customer’s consent or where permitted by law. The data will not be disclosed to third parties for advertising purposes.

57. Where data are transmitted to us, in any form, the customer shall make backup copies. Our servers are backed up regularly. In the event of data loss, the customer shall be obliged to transmit the relevant data to us again free of charge.

58. The customer is solely responsible for all content produced or published by flow office on their behalf, whether by the customer, using their access credentials, or by third parties. flow office does not generally monitor or review this content.

59. For further details, please refer to our Privacy Policy. Where flow office processes personal data on behalf of the customer as part of the service, the Data Processing Agreement (DPA) shall also form part of the contract.

§ 14 Virus Protection and Security

60. The customer is advised that they should take their own security measures to prevent damage caused by viruses or other unlawful or immoral data. Such measures, over and above the protective mechanisms put in place by flow office to protect its own sphere of risk against unauthorised access by third parties, do not form part of the contractual services.

61. The customer is obliged to refrain from any misuse of the email service, in particular not to offer or transmit computer viruses or other malicious software, or request that they be sent, and not to run any other applications that cause or may cause damage to the provider’s systems, its networks or other networks. The customer undertakes to scan data for viruses before uploading it to the network and to upload only files that have been scanned to the server.

62. The customer undertakes to use only software that does not compromise the security of the servers and data content.

63. flow office reserves the right to block content that could affect the server’s normal operation or security, or to prohibit its operation on a case-by-case basis. flow office reserves the right to suspend the customer’s offering without warning if the customer runs other programmes as part of its offering that affect the server’s normal operation or security.

64. The customer undertakes to keep the personal password for their access ID safe and protected from access by third parties, and to protect it against misuse and loss. The customer shall indemnify flow office against any costs and third-party claims arising from a breach of the above obligations.

Section 15 General Terms and Conditions for the Hosting Service

65. Scope

1.1 flow office GmbH, Beethovenstraße 8, 67098 Bad Dürkheim (hereinafter referred to as the “Provider”) provides all services for its brand OMVIN exclusively on the basis of these General Terms and Conditions. These shall also apply to future contracts between the parties, even if they are not expressly agreed again.

1.2 The Provider does not accept any differing terms and conditions of the customer unless the Provider has expressly agreed to them. The Provider’s General Terms and Conditions shall also apply if the Provider performs services without reservation while aware of any conflicting or differing terms and conditions of the customer.

66. Definition

2.1 “Contract” or “Account” means the contractual relationship between the customer and the Provider as a whole, maintained under a customer number.

2.2 Multiple “orders” can be managed within an account, each under a different order number.

67. Subject Matter of the Contract and Amendments to the Contract

3.1 The provider’s obligations to perform are set out in the service description for the relevant product. Any other commitments, promises regarding services or ancillary agreements shall be effective only if confirmed in writing by the provider. The customer shall have neither any proprietary rights in the server hardware nor any right of access to the premises in which the server hardware is located.

3.2 The Provider shall be entitled to expand its services, adapt them to technological advances and/or make improvements. This applies in particular where such adaptation appears necessary to prevent misuse, or where the Provider is required by law to adapt its services.

3.3 If the Provider makes additional services available without additional charge, the customer shall have no right to require those services to be provided. The Provider is entitled to discontinue, amend or offer only for a fee any services previously made available free of charge, subject to giving reasonable notice. In such cases, the Provider shall inform the customer in good time.

3.4 The Provider shall be entitled to engage third parties at any time and to any extent to provide the services.

3.5 Where fixed IP addresses are made available to the Customer, the Provider reserves the right to change the IP address(es) assigned to the Customer if this should become necessary for technical or legal reasons. Unless expressly guaranteed in writing, the Customer shall have no right to a specific server. The Customer acknowledges that it may be necessary to migrate them to another server without their consent. The Provider shall inform the Customer of changes in accordance with this clause 5.

68. Customer obligations, passwords, customer data, data backup

4.1 The customer is required to provide the provider with their full name, a postal address at which legal notices can be served (not a PO box or other anonymous address), email address and telephone number. The customer warrants that the information they provide is accurate and complete. The customer warrants that they are at least 18 years old and have full legal capacity under the applicable laws. They also undertake to notify the provider without delay of any changes to the contact details provided or any other information required for the performance of the contract. The customer must notify the provider without delay by post, fax, email or, in certain cases, by telephone of any information that they cannot change themselves in the customer menu. If the customer uses their own name servers or those of a third party, they must also provide the IP addresses of the primary and secondary name servers, including the names of those servers.

4.2 The customer shall create, or have created, up-to-date daily backup copies of all data transferred to the provider’s servers (e.g. using backup products). These copies must not be stored on the server itself, in order to ensure that the data can be restored quickly and cost-effectively in the event of a system failure. In the event of data loss, the customer shall upload the relevant data sets to the provider’s servers again, free of charge, and restore the configurations. In any event, backups must be made before any changes are made by the customer and before any maintenance work by the provider, provided that the provider has given timely notice of such work.

4.3 The customer must not use its software/application or any content incorporated therein in breach of any statutory prohibitions, accepted standards of morality or third-party rights (including copyright, trade mark, name and data protection rights). The customer must not register its software/application with search engines if and to the extent that, by using keywords or similar techniques when registering it, the customer breaches any statutory prohibitions, accepted standards of morality or third-party rights. If any of the foregoing obligations is breached, the provider is entitled to discontinue its services with immediate effect or block access to the customer’s information. This shall not affect the customer’s payment obligation.

4.4 The customer undertakes to change regularly and keep strictly confidential any passwords received from the provider for the purpose of accessing its services. The customer shall inform the provider without delay as soon as they become aware that unauthorised third parties know the password.

4.5 The customer undertakes to refrain, when developing their software/application, from using techniques that cause excessive use of the Provider’s facilities. The Provider may prevent third parties from accessing software/applications that use these techniques until the customer has removed/disabled the techniques (see Section 4.3). This does not apply to servers made available for the customer’s exclusive use (dedicated hardware).

4.6 The customer further undertakes not to use the resources provided by the provider for any activities that violate statutory prohibitions, public morals or the rights of third parties. These include, in particular, the following activities:

4.6.1 Phishing sites and/or an open mail relay (a mail server that accepts emails from any computer and forwards them to any third party), or a similar system through which spam emails can be distributed

4.6.2 unauthorised access to third-party computer systems (e.g. hacking)

4.6.3 Disruption of third-party computer systems by sending/forwarding data streams and/or emails (e.g. DoS/DDoS attacks, spam, email bombing)

4.6.4 Searching for open access points to computer systems (e.g. port scanning)

4.6.5 Sending emails to third parties for advertising purposes without the recipient’s express consent or another lawful basis

4.6.6 to provide content that is harmful to minors, pornographic or sexually explicit

4.6.7 spoofing IP addresses, email and news headers, and distributing malware

4.6.8 the operation of applications for mining, farming or plotting cryptocurrencies

4.6.9 the use of spoofed source IP addresses; for dedicated servers, manually changing the hardware address (MAC address) is also prohibited

4.6.10 operating a VPN, proxy or anonymisation service for third parties

4.6.11 automated bypassing or solving of CAPTCHAs

4.6.12 the provision of spyware, keyloggers or stalkerware, as well as unlocking other people's devices

4.6.13 the unauthorised downloading, recording or streaming of copyrighted content (e.g. IPTV, stream-rippers)

4.6.14 the operation of gambling, betting or lottery services

4.6.15 the operation of pyramid or Ponzi schemes or multi-level marketing, as well as the automated generation of reach on social networks (e.g. fake followers, bot interactions)

4.6.16 the production of examination or coursework submissions for the purpose of deception, and the issuing of unauthorised certificates

4.6.17 the provision of financial services requiring authorisation, payment services or the operation of a crypto exchange without the required authorisation

4.6.18 the creation, alteration or reproduction of the image, video or voice of a real person without their explicit, verifiable consent, particularly through face swaps, talking avatars, lip-syncing or voice cloning, and the creation of content capable of misleading people about a person’s identity or statements (deepfakes).

If the customer breaches one or more of the obligations set out above, the provider shall be entitled to suspend all services immediately. This shall not affect the customer’s payment obligations. The provider expressly reserves the right to claim damages.

4.7 The customer undertakes to refrain from “spamming”, whether using the provider’s systems or domains registered through the provider. “Spamming” occurs when emails are sent without the prior express and specific consent of the respective recipient, unless an exception under section 7(3) UWG applies. The customer bears the burden of proving that the respective recipient has given their consent or that the conditions set out in section 7(3) UWG are met. The customer is also prohibited from using spam to advertise, or arranging for the advertisement of, content that is accessible under a domain registered through the provider or via the provider’s systems.

4.8 For shared hosting products, the customer is prohibited from sending bulk emails via the server using scripts and/or sending so-called “spam emails”, “paid emails” or emails promoting a “referral system”.

4.9 As regards the provider, the customer alone is responsible for all content that the customer stores or makes available for retrieval. This also applies where the content is stored on a server other than the provider’s and can only be accessed via a domain or subdomain registered through the provider. As part of its obligation to comply with statutory and contractual requirements, the customer is also responsible for the conduct of third parties acting on its behalf, in particular persons engaged to perform its obligations. This also applies to other third parties whom the customer enables to infringe the law through its conduct. The provider does not review content for any possible breaches of law or contract.

4.10 If the customer has agreed to the transfer of a specified amount of data per billing period, the customer shall monitor this limit. If the volume of data transfer (traffic) attributable to the customer’s offering exceeds the maximum amount agreed with the customer for the relevant period, the provider shall bill the customer for the excess volume at the prices agreed for this purpose.

4.11 If the customer manages, sets up or distributes licences on the servers themselves, the customer alone is responsible for ensuring that the licences are correctly licensed.

4.12 Where the hosting or server resources are provided by an infrastructure or data centre provider, that provider’s system and abuse policies applicable to the relevant product shall also apply. For resources operated by Hetzner Online GmbH, these include in particular the General Terms and Conditions and product-specific system policies in force from time to time, available at https://www.hetzner.com/de/legal/system-policies/. The customer shall ensure that these policies are also observed by users authorised by the customer and by other third parties.

4.13 In the event of a breach or reasonable suspicion of a breach, the Provider is entitled to remove affected content and temporarily suspend access to individual resources or services, insofar as this is necessary to avert danger, comply with statutory obligations or prevent the infrastructure from being blocked by the infrastructure or data centre provider. In the event of serious or repeated breaches, the Provider is entitled to terminate the agreement with immediate effect. Where this would not jeopardise the purpose of the measure and no immediate response is required, the Customer will be informed in advance and given an opportunity to remedy the breach.

4.14 The Provider labels content generated using its AI features as artificially generated or manipulated in machine-readable form, in accordance with Article 50(2) of Regulation (EU) 2024/1689 (the “AI Act”), for example by means of provenance metadata in accordance with the C2PA standard. The Customer is responsible for disclosure to the public where required when disseminating such content. If the Customer publishes or disseminates image, audio or video content depicting persons, objects, places, facilities or events in a manner that appears authentic (deepfakes within the meaning of Article 3(60) of the AI Act), the Customer shall disclose, in accordance with Article 50(4) of the AI Act, that the content has been artificially generated or manipulated; where the content forms part of an evidently artistic, creative, satirical, fictional or similar work, disclosure in an appropriate manner that does not impair the presentation or enjoyment of the work shall suffice. The same applies to texts published to inform the public about matters of public interest, provided that they have not been subject to human review or editorial control. This also applies to content published by users authorised by the Customer or by other third parties on the Customer’s behalf. The Customer shall not remove, alter or obscure any watermarks, provenance metadata (e.g. in accordance with the C2PA standard) or other machine-readable labels applied to such content. The Customer shall indemnify the Provider against third-party claims and regulatory measures arising from a breach of these obligations.

4.15 Breaches of the obligations set out above may be reported by email to info@flow-office.eu.

69. Warranty

5.1 The provider shall only be responsible for disruptions in performance insofar as they affect the services to be provided by it.

5.2 The provider shall remedy any service disruptions to the extent technically possible (Service Level Agreement). If a disruption is not remedied within a reasonable period, the customer shall grant the provider a reasonable additional period to remedy it. If the disruption is not remedied within that additional period, the customer shall be entitled to exercise its statutory rights. Any claims for damages shall be subject to the limitations of liability set out in §12.

5.3 If a product’s functionality is impaired as a result of use beyond that envisaged by the contract, the customer shall bear the burden of proving that the malfunctions would also have occurred if the product had been used in accordance with the contract.

5.4 The customer shall notify the provider of any defects without undue delay (“fault report”) and assist the provider to the best of their ability in remedying them, in particular by taking all reasonable measures to ensure data security.

5.5 The Provider points out that, given the current state of technology, it is not possible to create hardware and software that operate without errors in all combinations of applications or can be protected against any manipulation by third parties. The Provider does not guarantee that hardware and software used or provided by the Provider will meet the Customer’s requirements, be suitable for specific applications, or be free from crashes, errors or malware. The Provider warrants to the Customer only that, at the time they are provided, hardware and software used or provided by the Provider will function substantially in accordance with the manufacturer’s specifications under normal operating conditions and with normal maintenance.

70. Liability

6.1 The Provider shall be liable, irrespective of the legal basis, only in accordance with the following provisions.

6.2 In cases of wilful intent and gross negligence, the Provider shall be liable in accordance with the statutory provisions.

6.3 In cases of slight negligence, the supplier shall be liable only for breach of a material contractual obligation, the performance of which is essential to the proper performance of the contract and on compliance with which the customer may generally rely (cardinal obligation). In such cases, the supplier’s liability shall be limited to foreseeable loss typical of the contract.

6.4 In cases of slight negligence, liability for all other losses, in particular consequential loss, indirect loss or loss of profit, is excluded.

6.5 The foregoing limitations shall not apply in the event of injury to life, limb or health, or to liability under the German Product Liability Act.

6.6 To the extent that the Provider’s liability is excluded or limited, the same shall apply to the personal liability of its employees, other staff, officers, representatives and vicarious agents.

6.7 In all cases, the liability provisions of section 44a of the Telecommunications Act (TKG) shall remain unaffected within the scope of application of the TKG.

6.8 In the event of data loss caused by the Provider, the Provider shall be liable only for the costs of restoring and recovering data that would have been lost even if the Customer had carried out proper data backups. Any further claims for liability must be made directly against the service provider responsible for providing the relevant services. Depending on the tariff selected, the systems are provided by various partner companies. These may be: (1) domainfactory GmbH, Oskar-Messter-Str. 33, 85737 Ismaning; or (2) RAIDBOXES GmbH, Hafenstr. 32, 48153 Münster.

§ 16 Final Provisions

71. In addition to these General Terms and Conditions, the General Terms and Conditions for Hosting Contracts in the version in force at the time the contract is concluded shall apply.

72. The law of the Federal Republic of Germany shall apply. The place of performance and exclusive place of jurisdiction shall be Leipzig, to the extent permitted by law.

73. If the customer is a merchant, a legal person under public law or a special fund under public law, Leipzig shall be the exclusive place of jurisdiction for all disputes arising from this contract. The same shall apply if the customer has no general place of jurisdiction in Germany or if their domicile or habitual residence is unknown at the time proceedings are instituted.

74. The sale of individual business units of flow office or a change of shareholder shall not give rise to any special right of termination.

75. If any provision of the contract with the customer, including these General Terms and Conditions, is or becomes wholly or partly invalid, this shall not affect the validity of the remaining provisions.