1. Your Agreement with SunnyBox
1.1 Your use of the SunnyBox service is governed by this agreement (the “Terms”). “SunnyBox” means Screen Island GmbH and its subsidiaries or affiliates involved in providing the SunnyBox Service. The “SunnyBox Services” means the services SunnyBox makes available through this website, including this website, the SunnyBox cloud computing platform, the SunnyBox API, the SunnyBox Add-ons, and any other software or services offered by SunnyBox in connection to any of those.
1.2 In order to use the SunnyBox Services, you must first agree to the Terms. You can agree to the Terms by actually using the SunnyBox Services. You understand and agree that SunnyBox will treat your use of the SunnyBox Services as acceptance of the Terms from that point onwards.
1.3 You may not use the SunnyBox Services if you are a person barred from receiving the SunnyBox Services under the German laws or other countries, including the country in which you are resident or from which you use the SunnyBox Services. You affirm that you are over the age of 18, as the SunnyBox Services may not be used by children under 18.
1.4 You agree your purchases of SunnyBox Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by SunnyBox or any of its affiliates regarding future functionality or features.
1.5 The SunnyBox service offerings are directed only to business customers. Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
2. Your Account and Use of the SunnyBox Services
2.1 You must provide accurate and complete registration information any time you register to use the SunnyBox Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify SunnyBox immediately.
2.2 Your use of the SunnyBox Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the SunnyBox Services by any means other than through the interface that is provided by SunnyBox in connection with the SunnyBox Services, unless you have been specifically allowed to do so in a separate agreement with SunnyBox, or (b) engage in any activity that interferes with or disrupts the SunnyBox Services (or the servers and networks which are connected to the Service).
2.4 You may use the SunnyBox Services only to develop and run applications on the SunnyBox infrastructure. You may not access the SunnyBox Services for the purpose of bringing an intellectual property infringement claim against SunnyBox or for the purpose of creating a product or service competitive with the SunnyBox Services.
3. Service Policies and Privacy
3.1 You agree to comply with the SunnyBox Acceptable Use Policy available at acceptable use policy (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.
3.3 You agree that you will protect the privacy and legal rights of the End Users of your application. You must obtain any consents required by applicable data protection laws and provide legally adequate privacy notice, access, and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the End Users aware that the information will be available to your application and to SunnyBox.
4. Fees for Use of the SunnyBox Services
4.1 Subject to the Terms, the SunnyBox Services are provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found at https://SunnyBox.com/pricing (or such URL as SunnyBox may provide).
4.2 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in SunnyBox fees and payment policies, if different. Late payments may bear interest at the rate of annually 9 % above base interest rate (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees SunnyBox incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 30 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on SunnyBox’s measurements of your use of the SunnyBox Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of SunnyBox and only in the form of credit for the SunnyBox Services. Nothing in these Terms obligates SunnyBox to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to SunnyBox may be shared by SunnyBox with companies who work on SunnyBox’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to SunnyBox and servicing your account. SunnyBox may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. SunnyBox shall not be liable for any use or disclosure of such information by such third parties. SunnyBox reserves the right to discontinue the provision of the SunnyBox Services to you for any late payments.
4.3 SunnyBox may change its fees and payment policies for the SunnyBox Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL SunnyBox may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
5. Content on the SunnyBox Services and Take Down Obligations
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the SunnyBox Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the web application that you create using the SunnyBox Services and any source code written by you to be used with the SunnyBox Services (collectively, “Applications”).
5.2 SunnyBox reserves the right (but shall have no obligation) to remove any or all Content from the SunnyBox Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from SunnyBox. In the event that you elect not to comply with a request from SunnyBox to take down certain Content, SunnyBox reserves the right to directly take down such Content or to disable Applications.
5.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user’s account on your Application. SunnyBox reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
5.4 You agree that you are solely responsible for (and that SunnyBox has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the SunnyBox Services and for the consequences of your actions (including any loss or damage which SunnyBox may suffer) by doing so.
5.5 You agree that SunnyBox has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6. Proprietary Rights
6.1 You acknowledge and agree that SunnyBox (or SunnyBox’s licensors) own all legal right, title and interest in and to the SunnyBox Services, including any intellectual property rights which subsist in the SunnyBox Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2 Except as provided in Section 8, SunnyBox acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the SunnyBox Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with SunnyBox, you agree that you are responsible for protecting and enforcing those rights and that SunnyBox has no obligation to do so on your behalf.
7. License from SunnyBox and Restrictions
7.1 SunnyBox grants you a revocable, personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by SunnyBox as part of the SunnyBox Services as provided to you by SunnyBox. This license is for the sole purpose of enabling you to use and enjoy the benefit of the SunnyBox Services as provided by SunnyBox, in the manner permitted by the Terms.
7.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the SunnyBox Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by SunnyBox, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the SunnyBox Services or any applications running on the SunnyBox Services; or (c) use the SunnyBox Services in any way that may subject the SunnyBox Services to any obligations under any open source software license, including, without limitation any license which imposes any obligation or restriction with respect to SunnyBox’s patent or other intellectual property rights in the SunnyBox Services.
7.3 Open source software licenses for components of the SunnyBox Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with SunnyBox for the use of the components of the SunnyBox Services released under an open source license.
8. License from You
8.1 SunnyBox claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the SunnyBox Services you give SunnyBox a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling SunnyBox to provide you with the SunnyBox Services. Furthermore, by creating an Application through use of the SunnyBox Services, you give SunnyBox a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling SunnyBox to provide you with the SunnyBox Services.
8.2 By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant SunnyBox Services functionality or features for the sole purpose of collaborating on development of the Application(s).
8.3 You may choose to or we may invite you to submit comments or ideas about the SunnyBox Services, including without limitation about how to improve the SunnyBox Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place SunnyBox under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
8.4 You agree that SunnyBox, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the SunnyBox Services.
9. Modification and Termination of the SunnyBox Services
9.1 SunnyBox is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the SunnyBox Services which SunnyBox provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the SunnyBox Services will be effective with respect to all versions of the SunnyBox Services; examples of changes to the form and nature of the SunnyBox Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
9.2 You may terminate these Terms at any time by canceling your account on the SunnyBox Services. You will not receive any refunds if you cancel your account.
9.3 You agree that SunnyBox, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the SunnyBox Services may be without prior notice, and you agree that SunnyBox will not be liable to you or any third party for such termination.
9.4 You are solely responsible for exporting your Content and Application(s) from the SunnyBox Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
9.5 Upon any termination of the SunnyBox Services or your account these Terms will also terminate, but Sections 6.1, 9, 10, 11, 12, and 16 shall continue to be effective after these Terms are terminated.
10. EXCLUSION OF WARRANTIES
10.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 10 AND 13, SHALL EXCLUDE OR LIMIT SunnyBox’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
10.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SunnyBox SERVICE IS AT YOUR SOLE RISK AND THAT THE SunnyBox’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
10.3 SunnyBox, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SunnyBox’S SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SunnyBox’S, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SunnyBox’S SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SunnyBox’S SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SunnyBox’S SERVICES WILL BE ACCURATE.
11. LIMITATION OF LIABILITY
11.1 SunnyBox SHALL BE LIABLE UNDER THE TERMS OF THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS SET OUT UNDER (A) TO (E):
(A) SunnyBox SHALL BE UNRESTRICTED LIABLE FOR LOSSES CAUSED INTENTIONALLY OR WITH GROSS NEGLIGENCE BY SunnyBox, ITS LEGAL REPRESENTATIVES OR SENIOR EXECUTIVES AND FOR LOSSES CAUSED INTENTIONALLY BY OTHER ASSISTANTS IN PERFORMANCE; IN RESPECT OF GROSS NEGLIGENCE OF OTHER ASSISTANTS IN PERFORMANCE SunnyBox’S LIABILITY SHALL BE AS SET FORTH IN THE PROVISIONS FOR SIMPLE NEGLIGENCE IN (E) BELOW.
(B) SunnyBox SHALL BE UNRESTRICTED LIABLE FOR DEATH, PERSONAL INJURY OR DAMAGE TO HEALTH CAUSED BY THE INTENT OR NEGLIGENCE OF SunnyBox, ITS LEGAL REPRESENTATIVES OR ASSISTANTS IN PERFORMANCE.
(C) SunnyBox SHALL BE LIABLE FOR LOSSES ARISING FROM THE LACK OF ANY WARRANTED CHARACTERISTICS UP TO THE AMOUNT WHICH IS COVERED BY THE PURPOSE OF THE WARRANTY AND WHICH WAS FORESEEABLE BY SunnyBox AT THE TIME THE WARRANTY WAS GIVEN.
(D) SunnyBox SHALL BE LIABLE IN ACCORDANCE WITH THE GERMAN PRODUCT LIABILITY ACT IN THE EVENT OF PRODUCT LIABILITY.
(E) SunnyBox SHALL BE LIABLE FOR LOSSES CAUSED BY THE BREACH OF ITS PRIMARY OBLIGATIONS BY SunnyBox ITS LEGAL REPRESENTATIVES OR ASSISTANTS IN PERFORMANCE. PRIMARY OBLIGATIONS ARE SUCH BASIC DUTIES WHICH FORM THE ESSENCE OF THE AGREEMENT, WHICH WERE DECISIVE FOR THE CONCLUSION OF THE AGREEMENT AND ON THE PERFORMANCE OF WHICH LICENSEE MAY RELY. IF GRPAHCMS BREACHES ITS PRIMARY OBLIGATIONS THROUGH SIMPLE NEGLIGENCE, THEN ITS ENSUING LIABILITY SHALL BE LIMITED TO THE AMOUNT WHICH WAS FORESEEABLE BY SunnyBox AT THE TIME THE RESPECTIVE SERVICE WAS PERFORMED.
11.2 SunnyBox SHALL BE LIABLE FOR LOSS OF DATA ONLY UP TO THE AMOUNT OF TYPICAL RECOVERY COSTS WHICH WOULD HAVE ARISEN HAD PROPER AND REGULAR DATA BACKUP MEASURES BEEN TAKEN.
11.3 ANY MORE EXTENSIVE LIABILITY OF SunnyBox IS EXCLUDED ON THE MERITS.
12.1 You agree to hold harmless, defend and indemnify SunnyBox, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “SunnyBox and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the SunnyBox Services, (c) your violation of applicable laws, rules or regulations in connection with the SunnyBox Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, SunnyBox will provide you with written notice of such claim, suit or action.
13. Copyright Policy
13.1 You agree to set up a process to respond to notices of alleged infringement that comply with german applicable intellectual property laws and the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is SunnyBox’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.
14. Other Content
14.1 The SunnyBox Services may include hyperlinks to other web sites or content or resources or email content. SunnyBox may have no control over any web sites or resources which are provided by companies or persons other than SunnyBox.
14.2 You acknowledge and agree that SunnyBox is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
14.3 You acknowledge and agree that SunnyBox is not liable for any loss or damage which may be incurred by you or your End Users as a result of the content or availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15. Changes to the Terms
15.1 SunnyBox may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
15.2 You understand and agree that if you use the SunnyBox Services after the date on which the Terms have changed, SunnyBox will treat your use as acceptance of the updated Terms.
16. General Legal Terms
16.1 Except to the extent you and SunnyBox have entered into a separate written agreement that is expressly intended to supersede these Terms either in whole or in part, the Terms constitute the whole legal agreement between you and SunnyBox and govern your use of the SunnyBox Services (but excluding any services which SunnyBox may provide to you under a separate written agreement), and completely replace any prior agreements between you and SunnyBox in relation to the SunnyBox Services.
16.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
16.3 If SunnyBox provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
16.4 You agree that SunnyBox may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the SunnyBox Services. By providing SunnyBox your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
16.6 SunnyBox shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, nuclear missiles, chemical or biological weapons, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
16.7 The Terms, and your relationship with SunnyBox under the Terms, shall be governed by the laws of the Federal Republic of Germany except for the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980).
16.8 The courts for SunnyBox’s registered office shall have exclusive jurisdiction over all disputes under and in connection with this Agreement, provided that you are a merchant within the meaning of the German Commercial Code or if upon the commencement of legal proceedings, you has no place of business or ordinary residence in the Federal Republic of Germany.
16.9 You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of SunnyBox (not to be unreasonably withheld).
16.10 Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining terms. The parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Agreement.
Acceptable Use Policy
Your use of the Service is subject to this Acceptable Use Policy. SunnyBox reserves the right to terminate your account and cease all service if you are found to be in violation of this policy. We may change these policies at any time. It is your responsibility to keep up-to-date with and adhere to them. All capitalized terms used herein have the meanings stated in the Terms, unless stated otherwise.
The Content displayed and/or processed through your Application or other web site utilizing the Service shall not contain any of the following types of content:
- Content that infringes a third party’s rights (e.g., copyright) according to applicable law;
- Excessively profane content;
- Hate-related or violent content;
- Content advocating racial or ethnic intolerance;
- Content intended to advocate or advance computer hacking or cracking;
- Other illegal activity, including without limitation illegal export of controlled substances or illegal software;
- Drug paraphernalia;
- Malicious content;
- Other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights.
Customer agrees not to, and not to allow third parties (including End Users) to use the Service:
- to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
- to engage in, promote or encourage illegal activity
- for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use of the Services, or the equipment used to provide the Service, by customers, authorized resellers, or other authorized users;
- to disable, interfere with or circumvent any aspect of the Service;
- to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”)