These terms and conditions apply to the following platforms:
"InPrivy" – inprivy.io
"eniston" – eniston.io
"FeatureShift" – featureshift.com
"Hyperlynk" – hyperlynk.io
"new/dev" – new.dev
"Ocular" – ocularapp.io
"Releases" – releasesapp.com
1.1. The following General Terms and Conditions (hereinafter referred to as "AGB") apply to all contracts between ivy.mayhem GmbH, represented by managing director Andreas Mühe, Westenberg 9, 27432 Bremervörde, Germany, Tel .: +49 (0) 40 - 57309561, E-mail: firstname.lastname@example.org, Internet: https://ivymayhem.io/, Registered Office: Elm (Bremervörde) (hereinafter referred to as "Provider") and customers (hereinafter referred to as "Customers", collectively referred to as "Parties") of the Provider.
1.2. If the customer uses conflicting or additional terms and conditions, their validity and inclusion are hereby rejected unless otherwise agreed between the parties. These terms and conditions also apply exclusively if the Provider executes the services for the customer without reservation despite being aware of conflicting or deviating conditions of the customer.
1.3. These terms and conditions apply to both consumers and entrepreneurs unless a differentiation is made in the respective clause. According to § 13 BGB, a consumer is any natural person who concludes a legal transaction for purposes that can predominantly neither be attributed to their commercial nor their self-employed professional activity. According to § 14 BGB, an entrepreneur is a natural or legal person or a legal partnership capable of acting in the course of its commercial or self-employed professional activity when concluding a legal transaction.
1.4. For customers who are entrepreneurs, the following applies additionally: Unless otherwise agreed between the parties, these terms and conditions apply to the customer as a framework agreement for similar future contracts valid at the time of the customer's order or at least in the version communicated to the customer in text form most recently, without the Provider having to refer to them again in each individual case. In individual cases, individually concluded framework agreements or other contracts with the customer (including ancillary agreements, additions, and amendments) take precedence in any case and are only supplemented by these terms and conditions.
2.1. The subject of the contract is the provision of the software "InPrivy", "eniston", "FeatureShift", "Hyperlynk", "new/dev", "Ocular" and "Releases" (hereinafter referred to as "Software") for a fee and for the duration of the contract within the customer's company via the Internet, as well as the provision of storage space on the provider's servers.
2.2. The provider also offers consulting, training, or other support services (installation, configuration, data migration, installation, customizing, etc., hereinafter referred to as "support services") for the software it offers. The content of the support services is separately agreed upon between the parties and is subject to separate remuneration. In all other respects, support services are not part of the contract.
2.3. The software may contain links to third-party web services or services provided by third-party providers. These terms and conditions do not apply to such services provided not by the provider but by a third-party provider on their websites, even if this is free of charge and/or registration with the provider is required to use them. For these services, only the general terms and conditions provided by the third-party provider before using the services or the statutory provisions apply to the relationship between the customer and the third-party provider. The provider merely provides technical access to these services.
2.4. The contract may also include the regular provision of the provider's software (hereinafter referred to as "subscription agreement"). In the case of a subscription agreement, the provider undertakes to provide the software contractually owed to the customer within the agreed contractual term at the agreed time intervals.
3.1. The provider grants the customer the use of the software in the current version via the Internet using a web browser.
3.2. The provider guarantees the functionality and availability of the software during the term of the contract and will keep it in a condition suitable for contractual use. The scope of functions of the software is determined by the current performance description of the provider on the website of the respective platforms mentioned above.
3.3. The provider will also provide the customer with user documentation after the conclusion of the contract. The user documentation will be provided to the customer via the help center for the respective software.
3.4. The provider may continuously develop the software, taking into account the customer's legitimate interests, and improve it through ongoing updates and upgrades, especially due to changes in legal requirements, technical standards, or to improve IT security. However, the provider is not obligated to adapt the software to the customer's individual needs or IT environment unless otherwise agreed between the parties. The provider will inform the customer in a timely manner about necessary updates or upgrades. If there is a significant impairment of the customer's legitimate interests, the customer has a special right of termination according to section 15.3 of these terms and conditions. Changes with only minor impact on the provider's services do not constitute changes to the services within the meaning of this clause. This particularly applies to purely graphical changes and mere changes in the arrangement of functions.
3.5. The provider will perform regular maintenance on the software and promptly rectify any software errors to the extent technically possible. A defect exists if the software does not fulfill the functions specified in the performance description, provides incorrect results, or does not function properly in some other way, making the use of the software impossible or restricted. Maintenance work is usually carried out outside the customer's normal business hours unless maintenance needs to be carried out at a different time due to compelling reasons.
3.6. For the software "InPrivy," the provider provides the customer with limited storage space on its servers up to a maximum of 30 GB. The provider ensures the accessibility of the data within the scope of using the software. The customer can expand the storage volume according to the conditions listed in the price list.
3.7. For the software "eniston", "FeatureShift", "Hyperlynk", "new/dev", "Ocular" and "Releases" the provider provides the customer with unlimited storage space on its servers and ensures the accessibility of the data.
3.8. The provider will take measures to protect the data and perform backups according to the state of the art. However, the provider has no obligation to store or safeguard the data. The customer is responsible for sufficient data backup.
3.9. The customer is the sole owner of the data stored on the provider's servers. The customer can request the data stored on the server at any time.
4.1. Before concluding a contract, an online registration process (hereinafter referred to as "registration") is required.
4.2. Registration and the creation of a profile require the creation of a customer account. The data required for the customer account (hereinafter referred to as "login data") are determined by the input mask used for registration.
5.1. The presentation and promotion of the software described in the Provider's online shop do not represent a binding offer by the Provider to conclude a contract but an invitation to the customer to place a binding order for the Provider's software.
5.2. The customer can submit the offer by filling out the online order form integrated into the Provider's online shop. The necessary data to be provided by the customer for the offer can be found in the input mask of the online order form. After entering the data in the online order form and clicking the button that concludes the ordering process, the customer submits a legally binding contract offer regarding the software contained in the virtual shopping cart. The customer can correct their entries at any time before submitting their binding order using the usual keyboard and mouse functions.
The provider can accept the offer by:
sending the customer a declaration of acceptance (e.g., an order confirmation) in written or text form (e.g., by letter or email), with the receipt of the declaration of acceptance by the customer being decisive, or
by providing the ordered software to the customer, or
by carrying out the payment transaction through the payment service provider selected by the customer in their order. The time of the conclusion of the contract depends on the selected payment method according to section 11.3.
If several of the aforementioned alternatives exist, the alternative that occurs first is decisive for the conclusion of the contract. If the provider does not accept the customer's offer within the aforementioned period, this is deemed to be a rejection of the offer, and the customer is no longer bound by their declaration of intent.
5.3. The provider saves the contract text including the terms and conditions when the contract is concluded and sends it to the customer in written or text form (by letter or email) after the customer has submitted their order. The provider does not provide any further accessibility of the contract text. The customer can view the contract text in their customer account on the provider's website if they have set up a customer account before submitting the order. The order data is stored in the provider's system and can be viewed and retrieved by the customer using their access data in the password-protected customer account.
5.4. For customers who are entrepreneurs, the following applies: The provider may also provide the contract text including the terms and conditions by reference to an online source (e.g., a link).
5.5. The contract is concluded in German and English.
5.6. The customer is responsible for ensuring that the email address provided by them for order processing is accurate so that they can receive the emails sent by the provider to this address. In particular, the customer must ensure that all emails sent by the provider or third parties commissioned by the provider for order processing can be delivered if they use spam filters.
5.7. For customers who are entrepreneurs, the following additional provision applies: If the parties agree on special conditions, these generally do not apply to concurrent and future contractual relationships with the customer.
As a consumer, the customer is entitled to a fourteen-day right of withdrawal in accordance with the statutory provisions. Further information on the right of withdrawal can be found in the withdrawal policy.
7.1. There is no physical transfer of the software to the customer.
7.2. The customer receives simple, non-licensable, non-transferable rights to use the latest version of the software for the contractually specified number of users, limited in time to the duration of the contract, by accessing it through a web browser in accordance with the following provisions.
7.3. If the customer is an entrepreneur, the following applies additionally: The customer may only use the software within the scope of their own business activities and by their own personnel. The customer is not permitted to use the software for any other purposes.
7.4. If the customer is a consumer, the following applies additionally: The customer may only use the software for private purposes.
7.5. The data stored by the customer on their designated storage space may be protected by copyright and data protection laws. The customer grants the provider the right to make the data stored on the server accessible to the customer when they request it through a browser and, in particular, to reproduce and transmit it for this purpose, as well as to make copies for data backup purposes.
8.1. The provider establishes support for customer inquiries regarding the functions of the software. Support inquiries can be made by email, depending on the product, to support@ or through a live chat function. The inquiries will be processed in the order of their receipt.
8.2. The customer must describe the problems as accurately as possible.
The provider offers the software subject to availability. 100% availability is technically not feasible and therefore cannot be guaranteed to the customer. The software is available to customers for an unlimited time, with a minimum availability of at least 99% per year. The provider endeavors to keep the software available as consistently as possible. However, maintenance, security or capacity-related issues, as well as events beyond the provider's control (such as disruptions in public communication networks, power outages, hosting failures, hacking attacks, failures of telecommunications lines from the transfer point to the internet, etc.), may result in disruptions or temporary suspension of the software and are not counted towards the minimum availability. Availability is calculated based on the time allocated to the respective calendar year during the contractual period, minus maintenance times. The provider will carry out maintenance work, to the extent possible, during periods of low usage.
10.1. The customer is obligated to create the necessary technical requirements for using the software.
10.2. The customer must protect and safeguard the access data provided to them against third-party access in accordance with the state of the art. The customer will ensure that usage is limited to the contractually agreed scope. Any unauthorized access must be promptly reported to the provider..
10.3. The customer is obligated not to store any data on the provided storage space that violates applicable law, regulatory requirements, rights of third parties, or agreements with third parties.
10.4. The customer is obligated to check their data and information for viruses or other harmful components prior to input and to use virus protection programs in accordance with the state of the art.
10.5. The customer is obligated to keep their data (especially billing data) up to date at all times and to update their data themselves or notify the provider of any changes.
10.6. Notwithstanding the provider's obligation to ensure data security, the customer is solely responsible for entering and maintaining the data and information necessary for using the software.
10.7. The customer is responsible for regularly taking appropriate data backups on their own responsibility.
10.8. The customer is prohibited from obtaining confidential information through reverse engineering. "Reverse engineering" includes all actions, including observation, testing, examination, and disassembly, with the aim of accessing confidential information. The permissions for reverse engineering according to Section 69d (3) and Section 69e of the Copyright Act remain unaffected by this.
10.9. The provider is entitled to issue a warning to the customer and/or temporarily or permanently block access to the software in the event of abusive use of the software and may initiate civil and criminal measures if necessary.
11.1. Unless otherwise stated in the provider's performance description, the specified compensation represents total prices. The customer undertakes to pay the agreed monthly fee to the provider for the provision of the software. Unless otherwise agreed between the parties, the compensation is based on the provider's valid price list at the time of contract conclusion, as available on the respective platform's online offering. The specified compensation is in Euro and is an all-inclusive price including the applicable legal value-added tax on the day of invoicing.
11.2. The provider reserves the right to adjust the compensation at its reasonable discretion to maintain the price-performance ratio in order to respond appropriately to future cost increases or decreases and changing cost situations that cannot be otherwise balanced. The cost elements or adjustment criteria to be taken into account for the adjustment may include modifying, expanding, and/or adapting the contractual possibilities of using the provider's SaaS services, administrative and general costs (rent, financing and transaction costs, personnel and service provider costs, energy and internet access costs, IT development costs, etc.), as well as state-imposed taxes, fees, contributions, and other charges. All adjustments to the compensation become effective one (1) month after notification.
11.3. The customer can pay the compensation of their choice using the following payment method(s):
If the customer selects a payment method offered through the payment service "Paddle," the payment processing is carried out by the payment service provider Paddle.com Market Limited, Judd House, 18-29 Mora Street, London, EC1V 8BT, United Kingdom (hereinafter referred to as "Paddle"). The specific payment methods offered through Paddle will be communicated to the customer on the provider's website. Paddle may use other payment services for payment processing, for which special payment terms may apply and will be separately notified to the customer. Further information about Paddle can be found on the internet at https://paddle.com/legal/.
11.4. For customers who are consumers, the statutory provisions regarding payment default apply. The provider reserves the right to claim additional damages for default in payment.
11.5. For customers who are entrepreneurs, the following applies: The customer is in default upon expiry of the aforementioned payment deadline. The outstanding compensation is subject to interest at the applicable statutory default interest rate during the default period. The provider reserves the right to assert further damages for default (e.g., reasonable costs of necessary legal defense, including all court and attorney fees, costs for dunning procedures or collection). The provider's claim for commercial default interest (§ 353 HGB) remains unaffected with respect to merchants. In the case of overdue claims, incoming payments from the customer will be credited with any costs and interest first, and then applied to the oldest claim.
11.6. If the customer is a business entity, the following applies additionally: Offsetting rights are only available to the customer if their counterclaims have been legally established or are undisputed or recognized by the provider in connection with the main claim.
11.7. If the customer is a business entity, the following additional provision applies: The customer's right of retention is excluded unless the counterclaim of the customer arises from the same contractual relationship and is undisputed or legally determined. To assert this right, written notice to the provider is required.
11.8. If the customer is a business entity, the following provision applies additionally: If it becomes apparent after the conclusion of the contract (e.g., by applying for the opening of insolvency proceedings) that the provider's claim to compensation is jeopardized due to the customer's lack of performance capability, the provider is entitled, in accordance with legal provisions, to refuse performance and, if necessary, to withdraw from the contract after setting a deadline (§ 321 of the German Civil Code).
12.1. For customers who are consumers: The statutory warranty provisions apply.
12.2. For customers who are entrepreneurs: The provisions of tenancy law (Sections 535 et seq. of the German Civil Code) apply regarding the granting of software usage and the provision of storage space.
12.3. For customers who are entrepreneurs: The customer must promptly notify the provider of any defects.
12.4. For customers who are entrepreneurs: Warranty claims for only minor impairments of the suitability of the service are excluded. The strict liability according to Section 536a (1) of the German Civil Code for defects that already existed at the time of contract conclusion is excluded.
13.1. The provider, its legal representatives, and agents shall be fully liable for damages arising from:
Intentional or grossly negligent acts
Intentional or negligent breach of life, body, or health
Warranty promises, if agreed upon between the parties
Liability under the Product Liability Act, if applicable
13.2. In the event of a breach of material contractual obligations, the provider's liability shall be limited to the foreseeable, typical damage, unless unlimited liability applies as stated in clause 13.1. Material contractual obligations are those obligations that the contract imposes on the provider according to its content in order to achieve the purpose of the contract, the fulfillment of which enables the proper execution of the contract and on which the customer regularly relies (so-called cardinal obligations).
13.3. The provider shall not be liable for data loss to the extent that the damage is due to the customer's failure to perform data backups and ensure that lost data can be recovered at reasonable effort.
13.4. In all other respects, the provider's liability is excluded.
14.1. The provider warrants that the software does not infringe any third-party rights. The provider shall indemnify the customer upon first demand from any claims made by third parties due to intellectual property infringements attributable to the provider in connection with the contractual use of the software and shall reimburse the costs of reasonable legal defense. The customer shall promptly inform the provider of any claims made by third parties against them based on the contractual use of the software and shall grant the provider all necessary powers of attorney and authorities to defend such claims.
14.2. The customer assures that the content and data stored on the provider's servers, as well as their use and provision by the provider, do not violate applicable laws, regulatory orders, rights of third parties, or agreements with third parties. The customer shall indemnify the provider upon first demand from any claims made by third parties arising from a breach of this clause and shall reimburse the costs of reasonable legal defense. The customer shall promptly inform the provider if any third parties assert claims falling under the aforementioned indemnification obligation against the provider. The customer is obligated to immediately provide the provider with all available information regarding the relevant matter in a complete, truthful, and prompt manner in written or electronic form (by letter or email). Any additional claims of the provider shall remain unaffected.
15.1. For the "InPrivy", "Ocular" and "Releases" software, the contract is entered into for an indefinite period and can be terminated at any time by the customer by deleting their customer account.
15.2. For the "eniston", "FeatureShift", "Hyperlynk", and "new/dev" software, the customer can choose between a minimum contract term of 1 month or 12 months.
15.3. For customers who are consumers and choose a minimum contract term of one month: The contract begins upon contract conclusion and is entered into for an indefinite period, but at least for a duration of 1 month (minimum term). During the minimum term, the contract can be terminated at any time, with the termination taking effect at the end of the minimum term. If the contract is not terminated in a timely manner, it will continue indefinitely and can then be terminated at any time at the end of the respective contract term.
For customers who choose a minimum contract term of 12 months: The contract begins upon contract conclusion and is entered into for an indefinite period, but at least for a duration of 12 months (minimum term). During the minimum term, the contract can be terminated with a notice period of one month, with the termination taking effect at the end of the minimum term. If the contract is not terminated in a timely manner, it will continue indefinitely and can then be terminated at any time with a notice period of one (1) month at the end of the respective contract term.
15.4. For customers who are entrepreneurs and choose a minimum contract term of one month: The contract begins upon contract conclusion and is entered into for an indefinite period, but at least for a duration of 1 month (minimum term). During the minimum term, the contract can be terminated at any time, with the termination taking effect at the end of the minimum term. If the contract is not terminated in a timely manner, it will automatically renew month by month and can then be terminated at any time at the end of the respective contract term.
For customers who choose a minimum contract term of 12 months: The contract begins upon contract conclusion and is entered into for an indefinite period, but at least for a duration of 12 months (minimum term). During the minimum term, the contract can be terminated with a notice period of 1 month at the end of the minimum term. If the contract is not terminated in a timely manner, it will automatically renew for additional 12-month periods and can then be terminated at any time with a notice period of 1 month at the end of the respective contract term.
15.5. The right of each party to terminate the contract without observing a notice period in the event of a material reason remains unaffected. A material reason exists when there are facts that, considering all circumstances of the individual case and weighing the interests of the contracting parties, make it unreasonable for the terminating party to continue the contract. If a material reason arises from a breach of a contractual obligation, termination is only permissible after an unsuccessful period for remedy or after a failed warning, unless setting a deadline is not necessary according to Section 314 in connection with Section 323 (2) of the German Civil Code. In the event of termination for material reasons, the provider is entitled to compensation for the services rendered until the termination becomes effective under the contract. However, compensation is not due for services for which the customer demonstrates no longer having an interest due to the termination.
15.6. The contract can be terminated in written form (e.g., by email), in the user account, or in electronic form through the termination button provided by the customer on their website.
15.7. Services rendered until the termination becomes effective must be remunerated. In the event of an extraordinary termination by the customer caused by the provider's fault, this applies only to the extent that the rendered services are usable for the customer.
15.8. The provider will permanently delete all data remaining on its servers belonging to the customer 30 days after the termination of the contractual relationship. The provider does not retain any right of retention or liens over the data.
16.1. The parties shall comply with the applicable data protection regulations that are applicable to them.
16.2. To the extent that the provider has access to personal data of the customer as part of the service provision, the parties shall conclude a data processing agreement upon entering into the main contract. In this case, the provider acts as a data processor within the meaning of Article 28(3) of the GDPR and will process the respective personal data solely in accordance with these provisions and the instructions of the customer. In addition to these terms and conditions, specific provisions of the data processing agreement apply, which can be viewed and accessed through this link.
17.1. The following provisions apply to customers who are consumers. The European Commission provides an online dispute resolution platform at the following link: ec.europa.eu/consumers/odr. This platform serves as a point of entry for out-of-court resolution of disputes arising from online purchase or service contracts involving a consumer.
17.2. The provider is neither obligated nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
18.1. The following provisions apply to customers who are entrepreneurs. The provider reserves the right to amend these terms and conditions at any time without stating reasons, unless such amendment is unreasonable for the customer. The provider will notify the customer of any changes to the terms and conditions in written form in a timely manner. If the customer does not object to the applicability of the new terms and conditions within a period of four (4) weeks after the notification, the amended terms and conditions will be deemed accepted by the customer. The provider will inform the customer in the notification about their right to object and the significance of the objection period. If the customer objects to the changes within the aforementioned period, the contractual relationship will continue based on the original terms and conditions.
18.2. Furthermore, the provider reserves the right to amend these terms and conditions:
to the extent that the provider is obligated to do so as a result of a change in legal requirements,
to comply with a court ruling or governmental decision against the provider,
to introduce additional, completely new services or service elements that require a description of services in the terms and conditions, unless such amendment adversely affects the existing contractual relationship,
if the amendment is solely advantageous for the customer, or
if the amendment is purely technical or procedural in nature, unless it has significant effects on the customer.
18.3. The customer's right of termination pursuant to clause 15 is unaffected by this.
19.1. These terms and conditions and the contractual relationship between the parties are governed by the laws of the Federal Republic of Germany. For consumers, this choice of law applies only to the extent that it does not deprive the consumer of the protection granted by mandatory provisions of the law of the country in which the consumer has their habitual residence.
19.2. For customers who are entrepreneurs, the following additional provision applies: The assignment of claims arising from the contract concluded between the parties by the customer, in particular the assignment of any claims for defects by the customer, is excluded.
19.3. If the customer is a merchant within the meaning of the German Commercial Code (HGB), a business entity under Section 14 of the German Civil Code (BGB), a legal entity under public law, or a special fund under public law, the exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the parties is the registered office of the provider. The provider is also entitled, in all cases, to file a lawsuit at the place of performance of the contractual obligations according to these terms and conditions or a prior individual agreement or at the general place of jurisdiction of the customer. Mandatory statutory provisions, particularly regarding exclusive jurisdictions, remain unaffected.
Effective as of: June 19, 2023