GTC
These General Terms and Conditions ("GTC") apply to the services provided by rapidmail bdm-thomasmueller, Gartenstrasse 15, CH-8302 Kloten (also referred to as "we" or "rapidmail") to customers (hereinafter "customer" or "you"). The customer's general terms and conditions do not apply unless we expressly agree to their validity. Our services and our GTC are directed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), as well as legal entities under public law and special funds under public law, but not at consumers (Section 13 of the BGB).
Preamble.
If you have concluded a license agreement with us for the provision of services or have placed your order via our ordering process including the subsequent order confirmation (collectively referred to hereinafter as "contract" or "license agreement"), you acquire the following services and rights, subject to special agreements in the license agreement, your order, or the order/order confirmation.
§ 1 Subject Matter
of the Contractrapidmail offers software for successful newsletter marketing, including modern templates, simple design, management, and analysis of individual newsletter campaigns, the sending of transactional emails, and the provision of related services (hereinafter collectively referred to as "Services"). The services under this contract may include the components listed below. An overview of our services can be found in the service description, which is available in its current version on our website https://www.rapidmail.de/newsletter-funktionen or can be found in the contract. The specific service components that we provide in the contractual relationship with you are set out in the license agreement, your order, or the order/order confirmation.
If we process personal data on your behalf within the scope of the contractual relationship with you, this processing is carried out on the basis of the order processing agreement pursuant to Art. 28 GDPR ("DPA"), which takes effect immediately upon the contract becoming effective. The applicable DPA is available on our website at https://www.rapidmail.de/hilfe/datenschutzvertrag-nach-eu-dsgvo-abschliessen.
Software / SaaS Services
Our software is a SaaS (Software as a Service) solution (hereinafter also referred to as "software," "software services," or "SaaS services").
An overview of our entire service portfolio can be found in the service description, which is available in its current version on our website https://www.rapidmail.de/newsletter-funktionen.
We generally provide our software services to you as part of a "subscription model," which, in legal terms, is a rental agreement for the duration of our contractual relationship. Should we provide our services on a "pay-as-you-go" basis, i.e., charge your fees based on the time and effort involved and thus within the framework of a service contract, the provisions of these General Terms and Conditions apply accordingly. However, provisions that generally apply to rental agreements such as the subscription model, such as our warranty obligation or our maintenance obligation, do not apply to the "pay as you go" model.
The specific service components that we provide to you in the contractual relationship arise from the license agreement, your order, or the order/order confirmation.
Services
In addition to SaaS services, we offer optional services (including project services), such as consulting services related to the use of our software. If, for example, you would like personalized support when using our software, this is possible through an individual agreement regarding the service content and remuneration. When providing services, our expenses are billed based on the person-days incurred or by the hour.
Web & Server Hosting
In relation to our SaaS services, we also provide web & server hosting services. Our web & server hosting services include, in particular, the provision of an IT environment for our software. The IT environment is created within one or more servers. These servers are located locally at our premises or in rented data centers. They can also consist of virtual private servers or be rented from professional hosting providers.
As part of our web and server hosting services, we provide you with storage space on our server in the amount you have booked for storing your data.
We also ensure that your stored data is accessible via the Internet. You remain the sole owner of the data and can request its release at any time. You are not entitled to make your storage space available to a third party.
Use.
Support Services
We also offer additional support services for our SaaS services.
You can reach us as follows:
Telephone support Monday to Friday from 2:00 p.m. to 5:00 p.m. at +66 94 785 14 98
Email & ticket system support around the clock with a response Monday to Friday from 2:00 p.m. to 9:00 p.m. at ptw@gmail.com
§ 2 Remuneration for Our Services
You generally purchase our services under the terms of the selected pricing model or the terms of the individually tailored offer.
We generally bill our services based on the time and effort involved.
All remuneration is exclusive of VAT at the statutory rate applicable at the time and place of service provision.
Unless otherwise agreed, you must generally pay the fee for the services we provide in advance for the corresponding contract month. We are also entitled to invoice you for up to 12 months in advance.
Unless otherwise agreed, our invoices are due upon receipt by you and must be paid without deductions within fourteen calendar days to the account specified in the invoice.
We reserve the right to increase our prices if the prices of our service providers increase, if this is necessary to offset inflationary price changes, if the consumer price index increases accordingly, or if we wish to price our business model differently. Price increases will, of course, be communicated to you in advance in a timely manner so that you can accept or reject them. If you do not agree to a price increase, we will try to find a solution through mutual consultation. If no solution can be found, either party has the right to terminate this contract with one month's notice from the failure of negotiations.
§ 3 Term of the Contract
The contract for the software is concluded for the term selected in the offer, the contract, or the ordering process; otherwise, and in the absence of specific information, for the standard term of one month from the conclusion of the contract ("Basic Term"). Termination is possible at any time. The terms and conditions for termination are set out in the offer, the contract, or the ordering process. Furthermore, i.e., in the absence of any provisions in the aforementioned documents and processes, the following applies: The notice period for both parties is one month to the end of the term. Termination can be made in text form or by correspondingly terminating the use of our services in your customer area. If no notice of termination is given, the contract will be extended by the duration of the basic term.
An upgrade of the selected pricing model or an extension of the booked services is possible at any time with immediate effect. Reducing the number of users or downgrading a pricing model is possible at any time with immediate effect. No refund of the fees paid for the current billing period will be made.
Upon termination becoming effective, access to our services will be blocked for you and your users. You can export the content processed with our services until the termination takes effect. After this time, we will completely delete your access. Support services in connection with the termination can be provided by us upon request and, if necessary, for a separate fee.
The right to extraordinary termination of this contract for good cause remains unaffected.
§ 4 Online Booking
If you book your access to our software and other services via our online ordering process, the following provisions apply in addition to the other contractual terms and conditions.
The license agreement for the use of our services is concluded through the following steps:
On our website, you will find information about the content and costs of the paid services we offer. This information does not constitute an offer to conclude a contract for the use of our services.
Only by submitting the corresponding booking form do you make a binding offer to us to conclude a contract for the corresponding services.
Before submitting the booking form, we will inform you that the booking is subject to a fee and give you the opportunity to read these General Terms and Conditions and other contractual terms and conditions. You can also download and save these.
Furthermore, we give you the opportunity to review your entries and correct them if necessary before submitting the booking form.
After submitting the booking form, you will receive a confirmation of receipt of your booking from us to the email address you provided. This confirmation of receipt generally also constitutes acceptance of your offer to book the service. IIn this email or in a separate email, we will send you the contract text (consisting of the order, General Terms and Conditions, order confirmation, and invoice), possibly as a link (contract confirmation). You can download and save this link. Upon full payment of the purchased services, you will receive immediate access to the services.
§ 5 Integrated Services
To provide our services, we sometimes rely on the services of other providers who work with artificial intelligence (hereinafter also "Integrated Services"). You can always find up-to-date information about the service components this applies to, which Integrated Services these are, and which provider provides them in our Integrated Services appendix to these General Terms and Conditions. You are solely responsible for informing yourself about any newly added Integrated Services.
When using services that rely on Integrated Services, the following applies:
We provide no guarantee or warranty for the accuracy and usability of the answers and results provided by the Integrated Services. These results may therefore be incorrect. Therefore, you should not base your actions derived from the answers and results on their content without checking them, but rather critically examine them if they seem odd to you.
We neither guarantee nor warrant the permanent availability of the Integrated Services. Since these are provided by other organizations, we have no influence on their technical availability.
We neither guarantee nor warrant that the answers and results are freely available to you. We clearly point out that all answers and results may be protected by copyright. Such protection generally prohibits, in particular, any further distribution of the answers and results by you.
You decide for yourself and are therefore responsible for which information and data you share with our services that use Integrated Services. We do review the Integrated Services to ensure they comply with applicable laws and our guidelines. However, you should not share any information or data that is subject to data protection or confidentiality protection, or that contains particularly sensitive information about you, your employees, customers, third parties, etc.
We assume no responsibility for the answers and results, or for your actions or omissions, resulting from the use of services that rely on Integrated Services. This means that we are not liable for the accuracy of the answers and results of the Integrated Services or for the actions and omissions that result for you. Otherwise, we are liable in accordance with the liability provisions communicated below.
For the use of individual Integrated Services, the providers of these services may establish requirements and rules that go beyond the License Agreement and these Terms and Conditions. These requirements can be found, in particular, in our Integrated Services Appendix to these Terms and Conditions. This appendix contains the privacy policy and the terms and conditions applicable to the use of the Integrated Services. You are solely responsible for complying with these requirements and rules of the Integrated Services that go beyond the License Agreement and these Terms and Conditions. Should you violate these requirements, the legal consequences set out in Section 6 (11) and Section 3 (5) of these Terms and Conditions apply.
Integrated Services Appendix
Name of the provider: OpenAI Ireland Ltd.
Subject of the service: Generation of subject line suggestions based on the text entered and the company website stored in the account.
Privacy Policy: https://tm-thomasmueller/privacy-policy/
§ 6 Principles for the Provision of Our Services
With our software and its functions, we merely provide you with a technical basis for the purposes you hereby fulfill within the limits of the services purchased (see in particular the service description at https://www.rapidmail.de/newsletter-funktionen). We assume no responsibility for the actions performed with our software or for the content processed with our software. All actions performed and content processed by you with our software are exclusively subject to the statutory regulations, agreements, and contracts that you conclude with your customers, partners, employees, etc. with whom you use our software or for whom you use it.
The provisions of tenancy law apply to the use of our software. Maintenance measures such as updates, patches, and hotfixes are part of our service. A further Further support is offered upon agreement. In addition to maintenance measures, the statutory warranty for rental defects applies.
Adjustments, modifications, and additions to the software, as well as measures intended to identify and correct malfunctions, will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
You may not transfer our services to third parties for commercial use.
We are entitled to have our services provided by third parties and subcontractors.
We reserve the right to change and adapt our services, as well as the related documents and attachments, taking your interests into account, provided that we do not violate our contractually assumed primary obligations to you. We will only make modifications and adjustments that materially and negatively impact the contractual relationship with you with your consent. If this is not achieved and we must make the corresponding modification or adjustment because we are changing our business model or this is necessary for technical reasons, both parties have the right to terminate this contract with immediate effect.
In the event of force majeure, we are released from our obligation to provide the services for the corresponding period, provided that we are actually unable to provide the services. Force majeure includes fire, explosion, flood, war, blockade, embargo, pandemic, and industrial action for which we or a subcontractor are not responsible.
You are responsible for the actions of your users and are liable for them as for your own actions.
Links or functionalities in our software may take you to third-party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly marked or recognizable by a change in the browser's address bar or a change in the user interface.
§ 7 General Liability
Subject to separate provisions in the contract or in these General Terms and Conditions, in particular in §§ 7 and 8, we are liable for direct property damage and financial losses caused by us, our legal representatives, vicarious agents, and the subcontractors engaged by us up to a maximum of EUR 100,000 per damaging event, and up to a maximum of EUR 200,000 per year of the contract term, regardless of the number of damaging events.
In the case of simple negligence, our liability is limited to the damage typical for the contract and foreseeable. Except in the case of breach of essential contractual obligations, our liability for compensation for indirect property damage and financial losses, in particular lost profits, is completely excluded in the case of simple negligence. In the case of force majeure and the free use of our services
Our liability for simple negligence is completely excluded. Essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and whose fulfillment can be relied upon.
We are liable without limitation for injury to life, limb, or health, as well as for intentional or fraudulent acts. The same applies to the written assumption of a guarantee for the quality or durability of a service to be provided by us.
Our liability under the Product Liability Act remains unaffected.
You are responsible for the actions of your employees, legal representatives, vicarious agents, and any other users of our services as for your own actions. Furthermore, within the scope of your responsibility (see in particular Section 6 (1) of these General Terms and Conditions), you must indemnify us upon first request against liability claims from third parties due to damages caused to third parties and other affected parties by your use of our services.
Section 8 Warranty for Our Services
In the event of material defects and defects of title, the statutory provisions apply, subject to the provisions of this section. Section 377 of the German Commercial Code (HGB) applies. All claims for defects are subject to your immediate notification of defects in accordance with Section 377 (1) and (3) of the German Commercial Code (HGB). Your notification of defects must be made in writing (excluding electronic form).
Material Defects
In the event of material defects, you are initially entitled, at our discretion, to free repair or replacement (hereinafter "subsequent performance"). If the defect cannot be remedied after two attempts at subsequent performance, it must be examined before any termination or withdrawal whether your interests can be met by an alternative solution.
In the case of rental, strict liability for damages for defects existing at the time of transfer is excluded under Section 536a (1) of the German Civil Code (BGB).
Defects of Title
Our services are provided to you free of any third-party rights. Please notify us immediately in writing if you become aware of any third-party rights to our services.
At our request, you must allow us to defend ourselves against claims asserted by third parties, provide us with all necessary information, provide us with declarations, and grant us authority. In return, we will indemnify you against any payment and damage claims arising from third-party rights.
If our services are actually encumbered with third-party rights, we are entitled, at our discretion, to:
eliminate the third-party rights or their assertion (e.g., by paying license fees), or
modify our services in such a way that third-party rights are no longer violated.
General Claims for defects are void if you have made changes to the services without our prior consent, or if you use the services for a purpose not covered by this contract and this action is solely responsible for the occurrence of the defect. All claims for defects expire after 12 months, unless they are already limited or excluded under the aforementioned provisions.
§ 9 Your Right to Use Our Services
Software Use & General
You are granted a simple, non-exclusive right to use our services, limited in time to the term of the contract and geographically unlimited.
Your group companies in which you majority-own are equally entitled to use the software. This does not entitle you to sublicense or otherwise transfer your rights of use. This right of use ends when the group company no longer meets the requirements of an affiliated company (e.g., within the meaning of Sections 15 et seq. of the German Stock Corporation Act).
You are not entitled to exhibit, publicly reproduce, in particular to make publicly available, edit, modify, translate, decompile, or otherwise modify the software. Your rights under Sections 69d (3) and 69e of the German Copyright Act remain unaffected.
We are entitled to use our services, including new releases, as well as any general know-how, experience, methods, and procedures developed in connection with the contract for other purposes (making them available to third parties, as open source software, etc.).
Test and demo licenses are limited to a term of up to 30 days, unless otherwise agreed.
Open Source Software
We grant you rights to the open source software included in our services, which rights can be transferred to you in accordance with the license terms applicable to us. You are permitted to use our services exclusively within the scope of these license terms. We assume no liability or warranty for any use beyond these terms.
Liability.
§ 10 Transfer to Third Parties
We are entitled to transfer the contract to a legal successor or an affiliated group company. We will notify you of this in writing at least two months before the planned transfer.
A transfer of the contract to a third party requires your prior consent. In the event of your objection, the contract will continue unchanged. This objection shall be deemed good cause for our extraordinary termination of the contract.
§ 11 Confidentiality
In the course of our cooperation, both parties gain knowledge of the trade secrets of the other party or third parties. A trade secret is information that is neither generally known nor readily accessible to persons who normally handle this type of information, is therefore of economic value, and is therefore subject to appropriate confidentiality measures (see § 2 of the Trade Secrets Act). A trade secret is also information that is designated as a trade secret, is protected by industrial property rights or copyright, is subject to banking secrecy or data protection, and for which there is a legitimate interest in maintaining confidentiality. Information known to the other party prior to disclosure, information that became public knowledge after disclosure without the cooperation of the disclosed party, information that the disclosed party learned from an authorized third party, and information that the disclosed party developed itself are not considered trade secrets.
The receiving party, as well as all those who come into contact with trade secrets as intended, are obligated to treat the trade secrets as strictly confidential and to use them or disclose them to third parties and employees only if this is necessary in connection with the business purpose. Furthermore, the receiving party will protect the trade secrets from third-party knowledge.
Objects, files, or other intangible objects containing trade secrets must be deleted immediately upon request of the disclosing party or at the latest upon termination of the contractual relationship or returned to the disclosing party.
§ 12 Final Provisions
The assignment of individual claims arising from this agreement requires the prior written consent of the other party. The assignment of monetary claims is excluded from this.
The entire contractual relationship between the parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
The place of jurisdiction for all disputes arising from the contractual relationship shall be the competent court at our registered office.
You are solely responsible for compliance with export control law and all import and export regulations with regard to our services.
Amendments and additions to the General Terms and Conditions and to the entire contract between us must be made in writing to be effective. Amendments and additions to the contract that we (must) make due to changed legal or technical requirements regarding our service provision and that do not have a negative impact on the services to which you are entitled will become effective if you do not object to a change in writing within one month of receiving notification of the change and we have informed you in advance of your right of objection. If you object to the change, the contract will continue to apply unchanged, and we are entitled to terminate the contract with immediate effect with one month's notice, effective at the end of the next calendar month. Changes and additions to the contract that we wish to make due to changes in services, remuneration, or other commercial or operational requirements will only become effective if you expressly consent to them. This consent can be given by clicking a consent button in the change notification (email or pop-up when using our services) or by another simple and transparent method provided by us. The text form requirement also applies to changes to this form clause. The priority of individual ancillary agreements remains unaffected. The aforementioned deadlines do not apply, and there is only a right to information about changes to the contract if the changes are necessary to avert an unforeseen and imminent danger, to protect you from fraud, malware, spam, data protection violations, or other cybersecurity risks.
Should one of the provisions of the contract be invalid or the contract contain a gap that requires regulation, this shall not affect the validity of the remaining or incomplete provisions. In this case, the parties undertake to replace the ineffective or incomplete provisions to replace or complete the invalid or incomplete provisions with provisions that most closely approximate the economic purpose of the invalid or incomplete provisions.
Status: January 2025