A. General Regulations
1. Scope, Amendment Of The Terms of Service
These terms of service apply to all services provided by ReTest GmbH, Haid-und-Neu-Straße 7, 76131 Karlsruhe (hereinafter referred to as retest). Where reference is made to the “customer/customers” below, this also refers to consumers within the meaning of Sec. 13 BGB (Bundesgesetzbuch/German Civil Code) and entrepreneurs within the meaning of Sec. 14 BGB.
retest provides all services solely on the basis of these terms, even if no explicit reference to such is made. This applies in particular even if the customer uses their own general terms and conditions and these contain conditions which contradict or deviate from the terms set out here. The terms issued by retest apply exclusively even if retest unconditionally fulfills an order in the knowledge that the customer’s conditions contradict or deviate from those set out here.
In addition to retest’ Terms of Services, additional special conditions also apply to individual products. These conditions can be viewed here. These additional conditions apply even if the relevant product forms only part of the package booked by the customer, which also includes other services.
retest reserves the right to change these terms at any time, subject to a reasonable notice period. If the customer does not object to the change within the set period as defined by retest, the change shall be deemed accepted. In the notification announcing the change, retest will inform the customer that the change will become effective if he/she does not object within the set period. If a valid objection is made within the set period, the earlier terms shall continue to apply to the relationship between the parties; in this case, both the customer and retest are entitled to assert their special right of termination in order to initiate an extraordinary termination of the contract within two weeks of the notification being issued.
2. Subject Of The Contract, Gratuitous Services, Amendments To The Contract
retest provides Software as a Service (SaaS) services in order to make content available via the Internet. To this end, system resources will be made available to the customer on a server. The customer can store content on this server up to a defined limit. On the server, the content will be made accessible via the Internet. The exact limit is determined according to the description of services for the tariffs offered by retest.
The specific subject of the contract is a “retest account” (hereinafter used to refer to both the customer menu and the contract as a whole), in which the customer can create and manage test reports.
Test reports are system resources that are made available to the customer, allowing him/her to up- and download them in a quick and user-friendly way. The maximum possible number of reports per contract is determined according to the description of services for the tariffs offered by retest. In accordance with the relevant description of services, the customer will be provided with storage space, computing power (in the form of a CPU and RAM) and the type of server, in addition to other offer-specific settings options for the system resources provided by retest. Offer-specific settings options are functions that retest makes available at the server level.
retest is entitled to commission subcontractors in the course of providing storage space and server resources. The use of subcontractors does not release retest from its sole obligation towards the customer to ensure complete fulfillment of the contract.
The contents of the storage space allocated to the customer will be regularly protected by retest (backups). The details regarding the frequency with which these backups are made and the process that is used can be found in the description of services. The customer is not entitled to demand that any of the backup media be surrendered. He/she is only entitled to request that the backed-up content is re-transferred on the server.
retest reserves the right to expand services and carry out improvements where such serve to ensure technological progress, appear necessary in order to prevent misuse or must be carried out by the provider due to legal requirements. retest can make other changes to the contents of the contract, including these conditions, with the customer’s approval, provided that the change is reasonable for the customer, taking into consideration the interests of retest. In particular, any change to the contract that will result in a reduction of the principal contractual services provided by retest is regarded as unreasonable.
Approval of the change to the contract shall be deemed granted if the customer does not object to the change within one month of having received notification of such. retest promises to notify the customer of the consequences of failing to raise an objection in the notification announcing the change.
Voluntary, gratuitous services provided by retest, which are explicitly designated as such and do not form part of the description of services, can be discontinued by retest at any time. retest will take the legitimate interests of the customer into account in the course of making changes and terminating free services.
3. Conclusion Of Contract
The services described on the retest website do not represent any binding offer on the part of the provider but merely serve as a basis for the submission of a binding offer by the customer.
The customer can submit the offer using the online order form provided on the retest website. The customer must already be registered in order to submit an offer. In order to register, the customer will be asked to provide his/her name and e-mail address or authenticate using 3rd party authentication. The retest account created in the course of this process is free for the customer.
After completing the order process, the customer can submit a binding offer within the meaning of Section 145 f. BGB by clicking on the “confirm purchase” button (= a declaration of intent by the customer to enter into the contract).
retest can accept this offer within a period of 5 days by converting the account or by sending written confirmation of the order via e-mail.
One or more of the aforementioned alternative conditions have been fulfilled, the contract takes effect when one of the aforementioned alternatives first occurs. If retest does not accept the customer’s offer within the aforementioned period, this is regarded as a rejection of the offer, as the result of which the customer is no longer bound by their declaration of intent.
The period for accepting the offer begins on the day following the submission of the offer by the customer and finishes at the end of the third day following the submission of the offer.
When an offer is submitted via the retest online order form, the contractual text will be stored by retest and sent to the customer in text form via e-mail after his/her order has been dispatched. The contractual text can be retrieved by the customer after his/her order has been dispatched, but no longer via the retest website.
Before confirming the order via the retest online order form, the customer can correct his/her entries at any point during the process. In addition, all entries are displayed once again in a confirmation window before final confirmation of the order is given, and can also be corrected at this stage.
The process for concluding the contract can be carried out in German or English.
Order processing is generally carried out and contact generally made through the use of e-mail and automated order processing. The customer must ensure that the e-mail address which he/she provides for the purpose of order processing is correct so that the e-mails sent by retest can be received at this address. If using spam filters, the customer must, in particular, ensure that all e-mails sent by retest or third parties commissioned by retest to process the order are able to be delivered.
4. Trial Phase
Before concluding a contract, the customer has the option to create and use a free account for a trial period, the duration of which is determined by the selected tariff. This trial phase begins when the first login occurs in the retest account. During the trial phase, the customer has the option to convert the account which he/she has created into a paid account.
The customer must ensure that the data for the joint contract is correct. In order to convert the free account into a paid account or to create an additional paid account, the customer must make a corresponding declaration of such in the dashboard and provide the details required in order to execute the contract (name, a fixed postal address (not a PO box or other anonymous address), e-mail address, telephone number and banking details where applicable).
The customer shall ensure that all information transmitted to retest is correct and complete. If any of these details change, the customer must immediately update them via the dashboard or by notifying retest via post, chat or e-mail. The free account will be deleted after the end of the trial phase if the customer has not converted it into a paid account before the deletion. If the customer has still not converted the free account into a paid account within 6 months following the end of the trial phase, the account will be automatically and permanently deleted by retest.
If the customer has neither converted the trail account into a paid account nor created an additional paid account, then the contract will automatically terminate, without any need for termination by the customer or retest, 6 months after the end of the trial phase. The customer will be notified that the account is due to be automatically deleted prior to the end of the trial phase. Even after the trial phase has ended, the customer will receive, within one week, two communications to this effect, which are sent at appropriate intervals to the email address which he/she has provided.
5. Scope Of Services/Availability
retest provides the customer with a free retest account in the respective current version for the duration of the contract. The respective current range of features and scope of services of the retest account is determined according to the current description of services on the retest website.
The retest online service will be offered subject to availability. 100% availability is not technically feasible and therefore cannot be guaranteed by retest.
Due to the decentralized structure of the Internet, retest is only responsible for availability insofar as unavailability can be attributed to the part of the network operated by retest, the web server itself or one of retest’ vicarious agents. The servers which are used for the provision of our services are operated by Digital Ocean LLC. Digital Ocean guarantees an annual mean availability of 99.99% availability (https://www.digitalocean.com/docs/platform/droplet-policies/#droplet-service-level-agreement-sla). retest goes to great lengths to ensure that this target is met.
Unless otherwise agreed, retest guarantees a minimum annual mean availability of 99% for the services it offers via the Internet. Availability is deemed to exist where the system resources and services are for the most part operational. Availability is calculated on the basis of the time allocated to the respective calendar month in the contractual period, minus the maintenance periods defined below. retest will carry out maintenance work during periods of low use, insofar as such is possible.
retest shall immediately remedy any software errors wherever technically possible. An error is deemed to exist if the retest account fails to fulfill the functions specified in the description of services, delivers incorrect results or fails to function properly in some other way, thereby preventing or restricting the use of the retest account.
In order to provide its services, retest is dependent on infrastructures that are operated by third parties (Digital Ocean LLC.) and over which it has no influence.
Disruptions or restrictions may occur due to causes which fall outside of retest’ sphere of influence, in particular, internet malfunctions or instances of force majeure. The following circumstances are not regarded as disruptions to operation:
- interruptions to availability due to malfunctions in areas for which a third party is responsible and over which retest has no influence
- interruptions due to force majeure
- short interruptions in operation which are necessary in order to guard against and prevent (e.g. through updates) specific threats posed by potential misuse by third parties (so-called exploits)
In order to maintain the functional capability of the technology used, retest regularly carries out maintenance and servicing work. If this work is associated with interruptions to services, retest will ensure that it is carried out at times when demand is typically lower wherever possible. In order to maintain a high level of security, software updates are regularly installed. This can have an effect on the scope and configuration of the services provided by retest.
It cannot be ruled out that changes to content stored by the customer or applications installed by the customer may also become necessary. retest will provide the customer with prior notification of such wherever possible. If such a system update requires changes that are unreasonable for the customer, he/she can initiate extraordinary termination of the contract.
The customer is free to change to another tariff offering more services (upgrade) or fewer services (downgrade) at any time during the contract term. retest should be contacted for information regarding any fees which may apply in connection with the change. Once the change has been initiated, a new contract shall begin on the basis of the applicable description of services and terms at the time of the change, with a new minimum term where applicable. In the case of a change to a higher tariff, any unused payments made by the customer for the old tariff shall be refunded.
6. Disruptions To Services
retest must rectify faults, subject to technical and operational feasibility. The customer is obligated to immediately notify retest of any faults that he/she is able to identify. If the fault is not rectified within a reasonable period of time, the customer is to grant retest a reasonable grace period (generally one week). This grace period must be granted in writing. If the fault is not rectified within this grace period, the customer may claim for the damages suffered as a result. This right to claim for damages does not apply to the beta features, voluntary gratuitous services and trial accounts offered by retest.
If the functionality of the account is restricted due to content that is in breach of contract or due to use beyond that provided for by the contract, the customer cannot assert any rights in regard to faults which occur as a result of this. retest is released from its obligation to perform in instances of force majeure.
In the event that retest fails to fulfill its obligations to perform, the customer is only entitled to withdraw from the contract if retest fails to comply with a reasonable grace period set by the customer.
This grace period must be granted in writing. The written form can be replaced by an electronic form if the customer adds his/her own name to the declaration and the electronic document features a qualified electronic signature in accordance with the Digital Signature Act (Signaturgesetz). The grace period must be at least two weeks in length.
7. Changes To Services
retest reserves the right to make changes to the services offered or to offer different services unless such is unreasonable for the customer.
retest also reserves the right to make changes to the services offered or to offer different services,
- if obligated to do so due to a change in legislation;
- if such is required in order to ensure compliance with a court ruling or administrative decision;
- if the change in question is necessary in order to close any security loopholes;
- if the change only brings benefits to the customer; or
- if the change is of a purely technical or procedural nature and will not affect the customer in any significant way.
Changes that have no significant impact on the provider’s services are not regarded as changes to services within the meaning of this section. This applies in particular to changes of a purely graphical nature and simple changes in the layout of the functions.
8. Cancellation Policy
Where the customer is considered to be a consumer within the meaning of Section 13 BGB, the concluded contract can be canceled within fourteen days (withdrawal period) without any need for the customer to provide reasons for doing so. According to 13 BGB, a consumer is “any natural person who enters into a legal transaction for purposes that lie predominantly outside his/her trade, business or profession.” It is at the discretion of retest whether or not a party is to be regarded as a consumer.
In order to assert his/her right of cancellation, the consumer must notify retest of his/her decision to cancel the contract by means of a clear declaration to this effect (e.g. a letter sent by post or an e-mail). The attached sample cancellation form may be used for this purpose, however, this is not mandatory. In order to comply with the deadline for cancellation, the notification concerning the customer’s wish to exercise his/her right of cancellation must be sent before the withdrawal period expires.
Consequences of cancellation
Following successful cancellation, any payments already made shall be immediately returned, at latest within fourteen days from the day upon which the notification concerning your cancellation of the contract is received by retest. retest will return any payments using the same method of payment which was used for the original transaction unless otherwise explicitly agreed; in no instance will any fees be charged for this repayment.
Sample cancellation form: (Delete as applicable.)
I/we (*) hereby cancel the contract concluded by myself/ourselves (*) for the purchase of the following goods (*)/the provision of the following services (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only if a paper copy shall be submitted)
9. Contract Term, Termination
The contract term is determined according to the payment interval selected by the customer. When the contract term expires, it will be automatically extended by the same length of time as the previously selected payment interval.
The contract can be terminated at any time without observation of a notice period on expiry of the contract.
The contract can only be terminated in writing by means of a letter or via the secure online administrative area (retest dashboard). Notice of termination may be sent by e-mail if the e-mail address used by the sender is the address registered for the customer’s account. The notice of termination must include the essential contractual components (surname, name, customer number, contract number).
If no specific date is given for the termination of the contract, this shall take place on the date that the contract expires.
The right of both parties to terminate the contractual relationship for good cause remains unaffected. The following cases, in particular, are considered good cause for retest to terminate the contractual relationship:
The customer fails to pay the agreed remuneration for two consecutive dates or fails to pay a significant portion of the remuneration, or the customer fails to pay an amount of remuneration equal to that due for two months, within a period extending over more than two due dates.
The customer is unable to pay, or insolvency proceedings have been initiated against his/her assets, or an application for the initiation of insolvency proceedings has been rejected due to lack of assets.
The customer is in breach of essential contractual obligations and fails to immediately rectify this despite warning or notification from retest regarding the blocking of the content.
10. Terms Of Payment
The fees which are to be paid to retest by the customer and the relevant billing period are determined according to the description of services for the tariff chosen by the customer. As a general rule, billing is carried out online by means of an invoice that is generated in the dashboard and made available as a file which can be downloaded and printed.
The online invoice is deemed received by the customer when it can be retrieved by him/her in the dashboard and is therefore accessible to him/her. This applies even if retest also sends the invoice to the customer via e-mail in the form of a PDF document.
retest allows customers to pay the due amounts by credit card. The resulting billing period corresponds to the contract term. The payments are always payable in advance. For this purpose, the customer must save his/her credit card details on the dashboard.
If the customer defaults on payment, retest is entitled to withhold services after issuing a warning. This generally involves the account being blocked. The customer’s obligation to pay is not affected as a result of this. retest’ right to extraordinary termination without observing a notice period remains unaffected.
If the customer fails to pay a significant portion of the remuneration owed for two consecutive months or fails to pay an amount of remuneration equal to that due for one month within a period of over two months, retest can terminate the contractual relationship with a good cause without observing a notice period.
As with any services provided over an extended period of time, the costs of the services provided by retest can also change as a result of legal and economic changes (e.g. due to an increase in energy and telecommunications costs). retest reserves the right to change the prices at the beginning of a new billing period with a notice period of six weeks. The customer is entitled to extraordinary termination at the time the price change becomes effective. If the customer does not exercise this right within four weeks of having received notification to this effect, the change shall be deemed accepted; retest will explicitly point this out to the customer.
retest is entitled to make reasonable increases to fees. In any event, an annual increase of 10% is considered reasonable. The increase to the fees requires the customer’s approval. Approval shall be deemed granted if the customer does not object to the increase within one month of having received notification of the change. retest is obligated to notify the customer of the consequences of failing to raise an objection in the notification announcing the change.
11. Duties And Responsibilities Of The Customer
The customer has the option to manually safeguard all files and software settings through the use of the backup function. Appropriate security options are available on the dashboard.
Responsibility for the content lies with the customer. The customer alone is responsible for all content which is stored in the account or kept in a retrieval-ready state. As part of his/her obligation to comply with legal and contractual provisions, the customer is also responsible for the conduct of third parties working on his/her behalf, particularly that of vicarious agents or assistants.
This also applies to other third parties to whom the customer has knowingly provided login details. retest is not able to check the contents of customers’ pages for any potential violations. Furthermore, the customer shall ensure that any programs, scripts etc. which he/she installs will not pose a risk to the operation of retest’ server or communications network or to the security and integrity of other data stored on retest’ servers.
The contents stored by the customer using the storage space allocated to him/her can be protected under copyright and data protection law.
The customer grants retest the right to allow the content that he/she stores on the server to be made accessible via the Internet upon request, and in particular, to be copied and transmitted as well as copied for the purposes of data protection. The customer is responsible for ensuring that his/her use of personal data is in compliance with data protection requirements. Responsibility for ensuring that passwords are handled securely lies with the customer.
retest explicitly points out that online, as well as in other places, there are constant attempts made to guess access passwords through the use of automated processes. The customer is obligated to protect his/her account from such attacks and to select passwords that will not be at risk from these scan attempts.
It is the responsibility of the customer to change his/her passwords at regular intervals. Only passwords rated as very strong when checked should be chosen.
The customer is obligated to treat the passwords received from retest for access purposes as strictly confidential and to immediately inform retest as soon as he/she becomes aware of any authorized third parties having knowledge of the password. Likewise, retest will immediately inform the customer as soon as it has reason to suspect that a third party is using its server without authorization.
The customer is obligated to ensure that the personal data which he/she provides during the registration process is correct and complete and to immediately notify retest of any changes to this data.
The customer indemnifies retest against any claims asserted against retest by third parties due to violations of their rights caused by content stored on the server by the customer. The customer hereby assumes responsibility for the costs of any necessary legal defense including all court fees and lawyer’s fees, up to a reasonable sum. This does not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obligated to immediately, truthfully and completely place at retest’ disposal all information that is required in order to verify and defend against the claim.
In the event of an imminent or occurred breach of the aforementioned obligations, as well as claims that are asserted against retest by third parties on the basis of the content stored on the server and are not manifestly unfounded, retest is entitled, taking into account the legitimate interests of the customer, to temporarily prevent this content from being accessed online, either in part or in full, with immediate effect. retest will immediately inform the customer if this measure is to be taken.
If programs, scripts etc. that have been installed by the customer pose a risk to the operation of retest’ server or communications network or to the security and integrity of other data stored on retest’ servers, retest can deactivate or uninstall these programs, scripts etc. If required in order to remove the risk or remedy the negative impact, retest is also entitled to interrupt the connection between the content stored on the server and the Internet. retest will immediately inform the customer if this measure is to be taken.
The customer must avoid overloading the retest server system. In particular, overloading can result from scripts which are not included in the retest program library. Where the customer’s content affects or seriously jeopardizes the functionality, security or availability of the server system, retest is entitled to delete the customer’s account.
12. Legal Compliance And Prohibited Use
The customer may grant partial or full use of a retest account to his/her employees/assistants.
The customer is obligated to comply with all statutory provisions. In particular, retrievable content and stored data must not violate the law or infringe third-party rights (especially data protection rights). The following are regarded as serious violations.
Violations of child protection laws:
Significant copyright violations arising from the storage and/or retrieval-ready holding of any content.
Illegal espionage or manipulation of data belonging to retest and/or the data of other retest customers.
Under the terms of the contract, the operation of download portals or a comparable use of storage space for the mass distribution of files as downloads is not permitted, nor is the installation of software or the excessive playing of video material for which the data transfer (traffic) is not measured in a standard manner (www traffic, mail traffic, and FTP traffic is measured in a standard manner). In the event of a violation, retest shall be entitled to delete the customer’s account.
If the customer is not acting as a consumer, in the event of breaches of obligations under these terms for which the customer is responsible, retest can demand payment of a contractual penalty of up to EUR 5,000.00, an amount which shall be determined by retest in each specific case and which the customer may present to the court system for review. Each singular act will be deemed an individual violation; at the very least each and every month shall be considered as an independent violation in cases of ongoing violation.
The assertion of further damages shall remain unaffected by the contractual penalty. If the customer is at fault for damages that affect retest due to a violation of statutory provisions or third-party rights, the customer releases retest from liability. If indemnification is not possible, the customer shall be liable to pay compensation for the damages. The compensation shall also cover reasonable costs incurred by retest for any necessary legal defense. retest shall inform the customer immediately if claims are made by third parties and the customer shall be given an opportunity to comment.
13. Liability Of retest
retest is fully liable, on any legal basis.
- in cases of intent or gross negligence,
- in cases of willful or grossly negligent injury to life, limb or health, owing to a warranty, unless otherwise agreed,
- owing to compulsory liability such as that according to the German Product Liability Act (Produkthaftungsgesetz).
retest is also liable for any negligent breach of obligations, the fulfillment of which is absolutely necessary for the orderly execution of the contract and compliance with which the customer may regularly rely upon (cardinal obligations).
If a loss of data occurs for which retest is responsible, retest is liable within the scope of the following limitations of liability only with respect to the costs of restoring and recovering data which would have been lost even with a standard backup of the data by the customer. The limitation of liability under Sections 9.1 through 9.4 also applies to the personal liability of retest’ employees, representatives, and organizational units.
retest is not subject to any further liability, regardless of the legal basis.
14. Restrictions On Use
retest has the right to block accounts without prior notice in the event that objective facts justify a suspicion that an account has been improperly used by a third party to a considerable extent (e.g. a hacker attack). retest is likewise entitled to block access without prior notice in the event that any other substantial and obvious (evident) violation of the law or the rights of third parties has originated from an account.
retest shall inform the customer immediately in regard to any instance of blocking. By sending the notice by e-mail to the e-mail address given by the customer, retest has fulfilled its obligation to notify.
If the blocking is due to a legal and/or contractual infringement, retest can make the unblocking conditional upon the customer correcting the illegal condition, and in order to exclude the risk of repeated occurrence, making a penalty-enforced declaration of discontinuance to retest and providing an adequate security deposit.
The amount of the penalty associated with this declaration of discontinuance as well as the security deposit shall be based on the severity of the violation. In order for a violation to be corrected, it may be necessary for retest to suspend the block temporarily. Usually, retest will handle this in the following manner: The customer must first issue a written declaration stating that he/she intends to correct the violation. Following this, retest will temporarily suspend the block for the purposes of correcting the violation and will inform the customer of this.
retest is also entitled to block accounts if the customer is in default of payment. The block on the customer’s account will be lifted as soon as he/she makes the overdue payments.
New accounts can also be blocked for validation purposes. The account will be unblocked after the new customer has confirmed his/her identity.
15. Data Protection
retest explicitly points out to the customer that with the current state of the art it is not possible to guarantee the comprehensive protection of data transmitted over open networks such as the internet.
The customer understands that retest is technically capable of viewing the test reports stored on the web server, and potentially other data that belongs to the customer and is also stored there, at any time. Other Internet users may also be technically capable of interfering with the security of the network without authorization and controlling communications traffic. The customer bears full responsibility for the security and protection of the data that he/she transmits online and stores on web servers.
16. Place Of Jurisdiction, Applicable Law
The place of jurisdiction for all claims pertaining to conflicts arising from the contractual relationships between the parties, in particular regarding the coming into existence, handling, or cancellation of the contract, insofar as the customer is a proper merchant, legal entity under public law or special fund under public law, in Karlsruhe, Germany.
retest may also take legal action against the customer at his/her general place of jurisdiction.
For the contracts concluded by retest on the basis of these conditions and for claims of any nature arising from such, the law of the Federal Republic of Germany applies exclusively, under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
17. Other Provisions
The customer shall only be entitled to offset with claims of retest where such are undisputed or legally established. The customer is only entitled to assert his/her right of retention on the basis of counterclaims resulting from the contractual relationship with the provider.
Should individual provisions of these terms and conditions prove to be invalid, this does not affect the validity of the contract as a whole.
B. Special Conditions
1. Special Conditions for Backups
We offer automatic backups to our customers as part of our offer. These are created automatically at 3 a.m. MEST and can take several hours to create depending on the size of the backup. Our backups are stored in the data centers of Amazon Web Services, Inc., 410 Terry Avenue North, Seattle WA 98109, United States, or AWS for short.
We have chosen Frankfurt as the location for our servers. If a backup is made, it will reflect the account in the actual version found on the server at 3 a.m. We do not carry out checks with regard to content and function in the course of this process.
Each automatically generated backup is stored for 30 days. The relevant backup will be permanently deleted after 30 days.
2. Special Conditions For Free Accounts
The special conditions described here supplement and put into more concrete terms the provisions set out in Part A Section 4.
Not all of the services listed in Part A Section 5 apply to free accounts during the trial phase.
Erasure Of Data
If the customer has not converted the free account into a paid one, nor created an additional paid account, then the contract ends automatically following the end of the trial phase, with no need for either the customer or retest to request its termination. The free retest account will continue to exist.
Updated in February 2019