Terms and conditions

1. Scope, conclusion of contract

1.1. Passioncode GmbH provides its customers with “software as a service” – “SaaS services” – via the medium of the internet.

1.2. The subject matter of the contract for makecvforfree.com software follows from these terms and conditions and from the provisions set out in the price lists.

1.3. Other contractual terms do not become part of the contract, even if Passioncode GmbH does not expressly object to them. Even if this is not pointed out again when contracts are concluded, only the general terms and conditions of Passioncode GmbH apply.

2. Conditions, default

2.1. All prices published orally and/or in writing are non-binding. Errors and short-term price changes are reserved. All prices include statutory VAT.

2.2. The customer may only offset claims that have been legally established or are undisputed. The customer is only entitled to rights of retention on account of counterclaims from the respective legal relationship that have been legally established or are undisputed.

2.3. If Passioncode GmbH intends to make other changes to the terms and conditions, the service descriptions or the prices, the changes will be communicated to the customer in writing at least six weeks before they take effect. In the event of changes to the terms and conditions, to the service description, or of price increases, the customer has a special right of termination effective at the time the changes take effect. If the customer does not give written notice of termination within six weeks of receipt of the notification of change, the changes become part of the contract at the time they take effect. Passioncode GmbH will expressly point out this consequence to the customer in the notification of change.

3. Standard services

3.1. For the duration of this contract, Passioncode GmbH provides the customer with access to the “SaaS service” via the medium of the internet for use against payment. For this purpose, Passioncode GmbH stores the software on a server that is accessible to the customer via the internet. All that is required for use is an internet-capable computer and an internet connection to an external IT service provider.

3.2. Software upgrades are installed automatically by Passioncode GmbH. Passioncode GmbH decides, without consulting the customer, when and how often these updates are carried out. Software upgrades are new versions of software which, alongside the correction of errors, essentially contain new functions or markedly extend the range of application, the flexibility or the productivity, and to which the customer's warranty claims do not relate. Software upgrades are carried out as a matter of principle by means of data transmission. The right of use granted with the software originally acquired remains valid.

3.3. Special programs, program modifications or interfaces that the customer has created specifically for the requirements of their display system, or has had created by third parties, cannot be the subject of this agreement. There is no entitlement to the development of special programs or to the modification of standard software to adapt it to the particular requirements of the customer's operations.

4. Availability

4.1. Passioncode GmbH is not liable for temporary server outages, data loss (unless otherwise agreed), the correct functioning of individual programs, or transmission faults from the server to the customer. Passioncode GmbH cannot be held responsible for the interception of the data stream between the customer and the server by third parties, even if the customer uses supposedly secure encryption mechanisms. Attempted intrusions by third parties will be disclosed by Passioncode GmbH immediately, as far as they can be detected.

4.2. Passioncode GmbH guarantees an availability of its servers of 98% on an annual average. Excluded from this are periods in which the server cannot be reached due to technical or other problems outside the sphere of influence of Passioncode GmbH (force majeure, fault of third parties, etc.).

4.3. Passioncode GmbH undertakes to take all technical precautions necessary to ensure a level of availability as follows.

4.4. The “SaaS service” is in principle available to the customer seven days a week, around the clock.

4.5. Passioncode GmbH is entitled to interrupt the availability of the software for maintenance purposes or as a result of other technical requirements.

4.6. Passioncode GmbH continuously monitors the functioning of the data network connection between the customer and the server on which the software forming the subject of the contract is stored, taking into account the availability level agreed under 2.1, and notifies the customer of any malfunctions without delay. Insofar as malfunctions are due to faults within the sphere of Passioncode GmbH, Passioncode GmbH undertakes to remedy them immediately.

5. Response times in the event of faults

5.1. At the basic level, Passioncode GmbH guarantees a response time of 4 hours for total software outages during normal business hours on working days (Monday to Friday between 8:30 and 17:00). For minor errors that do not lead to a total software outage and that occur during ongoing routine operation, Passioncode GmbH responds as quickly as possible, but no later than one working day after receipt of the fault report. Further levels of response times and other services are to be agreed in separate contracts.

5.2. If a fault is reported outside business hours, the response time begins at the start of business hours on the next working day. If it is reported within business hours, the remaining time not yet used within business hours continues to run from the start of business hours on the next working day.

6. Rights of use

6.1. Passioncode GmbH grants the customer the non-exclusive and transferable right to use the “SaaS service” specified in this contract by means of a web browser, together with the associated functionality.

6.2. The customer is not entitled to make the “SaaS service” available to third parties for use. Subletting of the software is expressly not permitted to the customer.

7. Liability

7.1. In the case of intent or gross negligence, and in the case of defects in a guaranteed characteristic, Passioncode GmbH is liable without limitation for all resulting damage.

7.2. Liability for further damage is excluded, in particular for data loss or hardware faults caused by the incompatibility of components present on the customer's PC system with the new or modified hardware or software, and for system faults that may arise from existing misconfiguration or from older, disruptive drivers that have not been completely removed.

7.3. Claims by the customer for damages are excluded. Excepted from this are claims for damages by the customer arising from injury to life, body or health, or from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damage based on an intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.

7.4. In the event of a breach of essential contractual obligations, the provider is only liable for the typical, foreseeable damage where this was caused by simple negligence, unless the claims concern damages arising from injury to life, body or health.

7.5. Liability for lost profit is excluded towards businesses, subject to paragraph 1.

7.6. The provider points out that the customer is themselves responsible for compliance with data protection regulations, in particular under the BDSG (German Federal Data Protection Act) and the GDPR, and must instruct participants accordingly.

7.7. The provider points out that, according to the current state of the art, it is not possible to create hardware and software in such a way that it works without error in all combinations of applications, or that it can be protected against manipulation by third parties. The provider does not guarantee that the hardware and software used or provided meets the customer's requirements, is suitable for particular applications, or that it is free of crashes, errors and viruses. The provider only warrants to the customer that the hardware and software used or provided functions substantially in accordance with the service description at the time it is provided, under normal operating conditions and with normal maintenance.

7.8. The limitations of liability also apply for the benefit of the legal representatives and vicarious agents of the provider where claims are asserted directly against them.

8. Force majeure

8.1. Passioncode GmbH is released from the obligation to perform under this contract if and to the extent that the non-performance of services is attributable to circumstances of force majeure occurring after conclusion of the contract.

8.2. Circumstances of force majeure include, for example, war, strikes, civil unrest, radical changes in the law, storms, floods and other natural disasters, as well as other circumstances for which Passioncode GmbH is not responsible, such as in particular water ingress, power failures and interruptions to or destruction of data-carrying lines.

8.3. Each contracting party must inform the other contracting party of the occurrence of a case of force majeure without delay by email, fax or letter.

9. Data protection, data security and confidentiality

9.1. Both parties will observe the applicable data protection provisions, in particular those in force in the Federal Republic of Germany, and will oblige their employees engaged in connection with the contract to maintain data secrecy pursuant to § 5 BDSG, unless they are already generally under such an obligation.

9.2. If the customer collects, processes or uses personal data, they warrant that they are entitled to do so under the applicable provisions, in particular those of data protection law, and, in the event of an infringement, indemnify Passioncode GmbH against claims by third parties.

9.3. The customer remains the “owner of the data” in both the contractual and the data protection sense, and is solely entitled with regard to the power of disposal over, and ownership of, all customer-specific data.

Passioncode GmbH carries out no checks whatsoever on the data and content stored for the customer with regard to the legal permissibility of its collection, processing and use. Responsibility for this lies exclusively with the customer. This also applies if and to the extent that customer-specific data is changed or supplemented.

9.4. The software application, servers and operating software as well as other system components of Passioncode GmbH are operated in a data centre. Passioncode GmbH is entitled to award subcontracts. In this case, Passioncode GmbH will impose the corresponding obligations on the subcontractor.

9.5. The customer agrees to the storage of personal data within the framework of the business relationship with the provider, in compliance with data protection laws, in particular the BDSG and the GDPR. Data is not passed on to third parties unless this is necessary for the performance of the contract.

9.6. The customer's rights arise in detail in particular from the following provisions of the GDPR:

• Article 7(3) – right to withdraw consent under data protection law
• Article 15 – right of access by the data subject, right to confirmation and to be provided with a copy of the personal data
• Article 16 – right to rectification
• Article 17 – right to erasure (“right to be forgotten”)
• Article 18 – right to restriction of processing
• Article 20 – right to data portability
• Article 21 – right to object
• Article 22 – right not to be subject to a decision based solely on automated processing, including profiling
• Article 77 – right to lodge a complaint with a supervisory authority

9.7. To exercise these rights, the customer is asked to contact [email protected] by email, or, in the case of a complaint, the competent supervisory authority.

10. Third-party rights

10.1. The customer can upload their own logos on the website and publish content in a chat. The customer hereby confirms to the provider that they are the rights holder of the uploaded materials and do not infringe the rights of third parties. In particular, it is pointed out that the use of logos of companies, associations, etc. may constitute a trade mark infringement if the respective rights holder does not agree to their use.

10.2. The customer is responsible for the content of the materials they make available. The provider does not adopt them as its own and is also not obliged to check them for lawfulness.

10.3. In particular, the customer undertakes not to make available to the provider any content that is pornographic, right-wing or left-wing extremist, racist, discriminatory, harmful to minors, glorifying violence, or in breach of the constitution of the Federal Republic of Germany.

10.4. If the provider is nevertheless held liable by third parties or state institutions for the infringement of their rights through the use of the materials made available by the customer, the customer undertakes to indemnify the provider against all claims and to bear all costs incurred by the provider as a result of the claim or of remedying an unlawful situation.

10.5. The indemnification by the customer against claims made against the provider applies here in particular to the infringement of copyright, trade mark and competition rights or other protective rights of third parties, and includes in particular the provider's legal defence costs. All further rights and claims for damages of the provider remain unaffected.

11. Contract term and termination

11.1. Depending on the licence, the contractual relationship can be terminated by either contracting party at the end of each month or year. Notice of termination must reach Passioncode GmbH in writing at least ten working days before the day on which it is to take effect, or 3 months in the case of annual payment. Saturday does not count as a working day. If the customer terminates the contractual relationship before one month has elapsed after the service has been made operationally available, they must pay one monthly price.

11.2. The right to terminate for good cause remains unaffected. Good cause exists for Passioncode GmbH in particular in cases where the customer substantially breaches the obligations incumbent upon them.

11.3. Upon termination of the respective contract, the connection to the “SaaS service” is blocked. Passioncode GmbH will delete the data and access credentials.

12. Right of withdrawal and withdrawal instructions

Consumers concluding a distance contract generally have a statutory right of withdrawal, about which the provider informs below in accordance with the statutory model.

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 of your decision to withdraw from this contract by means of an unambiguous statement (e.g. a letter sent by post, fax, telephone call or email). You may use the attached model withdrawal form for this, although this is not mandatory.

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

Consequences of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and no later than fourteen days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

Expiry of the right of withdrawal

In the case of a contract for the supply of digital content not supplied on a tangible medium, the right of withdrawal also expires where the trader has begun performance of the contract after the consumer has expressly consented to the trader beginning performance of the contract before the end of the withdrawal period, and has acknowledged that by giving consent they lose their right of withdrawal once performance of the contract begins.

Model withdrawal form

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

To:
Passioncode GmbH
Hopfenstr. 15
85368 Moosburg, Germany
or by email: [email protected]

• I/We (*) hereby withdraw from the contract concluded by me/us (*) for the provision of the following services (*)
• 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.

Withdrawal may also be declared by telephone: +49 8761 74099 30.

13. Dispute resolution

13.1. The EU platform for out-of-court online dispute resolution can be reached at the following internet address: https://ec.europa.eu/consumers/odr/

13.2. The provider is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.

14. Place of jurisdiction and applicable law

14.1. The business relationship between the provider and the customer is governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

14.2. The place of jurisdiction and place of performance is the registered office of the provider in Moosburg, insofar as the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal person under public law, or a special fund under public law. The same applies if the customer has no general place of jurisdiction in Germany, or if their domicile or habitual residence is unknown at the time the action is brought.

15. Scope of these terms and changes

15.1. By placing an order, the customer agrees to the applicable terms and conditions. Deviating terms and conditions of the customer are not accepted unless otherwise agreed. Any such agreement requires written form to be effective.

15.2. The terms and conditions may be amended by the provider with due regard for the interests of the customer.

16. Severability clause

Should any provision of these terms and conditions be or become invalid, the validity of the remaining terms and conditions shall not be affected. The invalid provision shall be replaced by a provision that comes closest to the intention of the parties within the scope of what is legally possible. The same applies in the event of a gap in the provisions.

Version: March 2021