These «General Terms and Conditions» (hereinafter referred as: GTC) govern the terms and conditions associated with the
use of the software offered via the website https://atomic-kitchen.com related rights and obligations and the contractual relationship between "AtomicKitchen, Thomas Sokolowski" (hereinafter referred as: ATOMIC KITCHEN) and a contractual partner of ATOMIC KITCHEN (hereinafter referred as: CUSTOMER).
The CUSTOMER accepts the GTC of ATOMIC KITCHEN in their valid version as an integral part of all existing and/or future contractual relationships between the CUSTOMER and ATOMIC KITCHEN in connection with the provision of SOFTWARE for use via the internet. These shall apply even if they are not expressly referred to or referenced. A detailed description of the Services to be provided by ATOMIC KITCHEN arises from the respective «Service Levels» (hereinafter referred as: SERVICE LEVEL).
Deviations and/or additions to these GTC require the express written consent of ATOMIC KITCHEN to be valid. Such deviating agreements shall only apply to the contract containing the deviating agreement and shall have no effect on other contracts between the contracting parties.
Any general terms and conditions of the CUSTOMER are hereby expressly rejected. Their application to the contractual relationship between ATOMIC KITCHEN and the CUSTOMER is therefore excluded.
2. Services of ATOMIC KITCHEN
2.1 Right of Use
ATOMIC KITCHEN provides the CUSTOMER with the SOFTWARE product designated and described in the SERVICE LEVEL (hereinafter referred as: SOFTWARE) for use over the internet (hereinafter referred as: SERVICE). The CUSTOMER is not entitled to any other rights associated with the SOFTWARE, such as property rights, copyrights, patent rights, trademark rights.
The SOFTWARE is operated on a computer (hereinafter referred as: SERVER) of a data center used by ATOMIC KITCHEN. The CUSTOMER receives for the term of this contract the non-exclusive and non-transferable right of use to access the SOFTWARE by means of a browser and an internet connection and to use it for his own business purposes exclusively in the exercise of his commercial or independent professional activity. The CUSTOMER is responsible for the internet connection between the CUSTOMER and the SERVER and the hardware and software required for this (e.g. PC, network connection, browser).
The use of SOFTWARE requires a registration, in which specific access data are collected from the CUSTOMER. With these, the CUSTOMER can login for the use of the SOFTWARE. In the registration process, the CUSTOMER must select a SERVICE LEVEL, which specifies the conditions of the associated SERVICE. There are a number of «paid SERVICE LEVELs »as well as a «free SERVICE LEVEL», which is used to explore and try out the SOFTWARE for a short period of time.
The SERVICE description of the free SERVICE LEVEL is NOT a commitment of the described features, but only shows the current state of possibilities that a user may have in this SERVICE LEVEL. The functionality of the «free SERVICE LEVEL» may be changed by ATOMIC KITCHEN at any time without prior notice or the SERVICE itself may be discontinued completely. Therefore, the CUSTOMER is not entitled to the fulfillment of any services by ATOMIC KITCHEN in this SERVICE LEVEL.
When booking a «paid SERVICE LEVEL», the use of the SOFTWARE is limited to the functional scope and the memory space of the selected SERVICE LEVEL, which can be found in the service description valid at the time of booking. Any other use of the software other than that explicitly granted is prohibited.
ATOMIC KITCHEN may adjust or change the SERVICE LEVELs and/or SOFTWARE provided at any time with or without notice for cause. In particular, such changes will be made if they are necessary for the following important reasons:
- a necessary adjustment to a new legal situation or jurisdiction;
- to ensure uninterrupted use of the SERVICE on the part of the CUSTOMER (for example, in the case of new browser versions or the introduction of new technical standards);
- to protect system security (e.g., to protect against hacker attacks) or;
- to improve the SERVICE functionally (optimization or expansion of the scope of functions).
These SOFTWARE adjustments change nothing in the basic functionality of the SOFTWARE and have no influence on the agreed contract period or on the rights and obligations of both parties listed in these provisions.
In the event of a significant reduction of the functional scope of a «paid SERVICE LEVEL» booked by a CUSTOMER, ATOMIC KITCHEN undertakes to inform the affected CUSTOMER at least 14 days in advance via the email address provided in the registration process. In this case, the CUSTOMER is entitled to terminate his contract extraordinarily within 14 days after notification by ATOMIC KITCHEN. The provisions from 10.2 apply here.
Sublicensing or further licensing of the SOFTWARE is prohibited. The CUSTOMER has no right to a work copy and thus no right to a backup copy of the SOFTWARE.
CUSTOMER will not directly or indirectly attempt to determine the source code, object code or underlying structure, ideas, know-how or algorithms of the SOFTWARE that are relevant to the SERVICE. CUSTOMER will not attempt to modify the foregoing information about the SOFTWARE, create derivative works, or remove proprietary notices and labels.
All other uses of the SOFTWARE, except for the explicitly granted permitted use, constitute unauthorized use of the SOFTWARE and entitle ATOMIC KITCHEN to terminate the Agreement without notice and to claim damages.
The use of files and SOFTWARE made available for download by ATOMIC KITCHEN is equally subject to the provisions of these terms and conditions. All rights to the SOFTWARE or the SERVICE beyond the right of use defined in accordance with these GTC remain fully with ATOMIC KITCHEN.
ATOMIC KITCHEN shall take appropriate measures to enable CUSTOMER to use the SERVICE as uninterrupted as possible. ATOMIC KITCHEN does not guarantee that the SERVICE will be available at all times or that there will be no other malfunctions or interruptions.
CUSTOMER shall promptly notify ATOMIC KITCHEN of any failure of the SERVICE and explain the circumstances under which the failure occurred. ATOMIC KITCHEN shall remedy the SERVICE disruption within a reasonable period of time. ATOMIC KITCHEN is entitled to circumvent the performance disruption by means of a workaround solution if the cause of the disruption itself can only be eliminated with disproportionate effort and the use of the SERVICE does not suffer significantly.
To assist you in using the SOFTWARE, ATOMIC KITCHEN provides online support. Support does not include: know-how transfer, training, configuration, implementation, documentation or customization of the SOFTWARE. Support requests should be made via email to firstname.lastname@example.org.
3. Purchase of third party services
ATOMIC KITCHEN is entitled to involve third parties for the purpose of fulfilling its contractual obligations. This applies in particular to hosting services. To the extent permitted by law, ATOMIC KITCHEN assumes no liability for the services of third parties.
4. Remuneration and terms of payment
4.1 Licence fees
For the use of the SOFTWARE during the contractual term, the CUSTOMER shall owe ATOMIC KITCHEN the license fees according to the respective SERVICE LEVEL.
4.2 Trial License, Up- and Downgrades
With a trial license (SERVICE LEVEL: «Free») ATOMIC KITCHEN grants you free of charge a simple license for trial use of the SOFTWARE with limited functionality. If you like the SOFTWARE, you can remove the limitations of the trial version by upgrading to a full version for a fee.
A CUSTOMER can upgrade or downgrade their SERVICE LEVEL at any time. The resulting new license fees are effective immediately. SERVICEs already paid for or unused months from the previous SERVICE LEVEL will not be refunded or credited, but will expire. A CUSTOMER-initiated downgrade of an SERVICE LEVEL may result in the loss of content, functionality or capacity. ATOMIC KITCHEN shall not be liable for such loss.
4.3. Prices and payments
The license fees for the chargeable versions are generally due immediately and will be invoiced in advance for the billing period listed in the SERVICE LEVEL. If the CUSTOMER terminates the contractual relationship "properly" in accordance with section 10.2, the use of the SERVICE is possible until the end of the billing period on the part of the CUSTOMER. A refund or credit for unused months in the event of non-use of the SERVICE, for whatever reason, is generally not possible.
If the CUSTOMER does not terminate the contract, the CUSTOMER will be charged the license fee agreed in the SERVICE LEVEL at the end of the completed billing period for the next billing period in advance. For this purpose, the CUSTOMER receives an invoice, which is due at the beginning of the new billing period.
If ATOMIC KITCHEN changes the license fees for an SERVICE LEVEL booked by CUSTOMER, the new fees will only apply from the new billing period. ATOMIC KITCHEN agrees to notify its CUSTOMERs at least three months in advance of any increase in license fees. If ATOMIC KITCHEN falls short of this deadline, the new license fees will only apply to the following billing cycle.
All prices are subject to the applicable statutory sales tax. CUSTOMER is responsible for any applicable sales taxes.
All prices are subject to the applicable statutory sales tax. The CUSTOMER is responsible for the applicable sales taxes themselves.
4.4 Measures in case of late payment
If the CUSTOMER is in default of payment of fees, ATOMIC KITCHEN is entitled to block access to the SERVICE and/or to terminate the contractual relationship extraordinarily after an appropriate reminder by e-mail or by letter. During the blocking, the CUSTOMER has no access to the data stored in the SERVICE. In the event of termination, clause 10.2 shall apply.
4.5 Measures in case of exceeding the allocated storage space
For the data collected, created and generated by the CUSTOMER in the context of the use of the SOFTWARE (hereinafter referred as: CUSTOMER DATA), a fixed allocated storage capacity is available for the CUSTOMER on the data carrier of the SERVER operated by ATOMIC KITCHEN. If CUSTOMER exceeds this storage capacity, ATOMIC KITCHEN will notify the CUSTOMER of such excess. In this case, the CUSTOMER has two options within a grace period of 14 days: (a) to book a higher SERVICE LEVEL, which includes a storage capacity that meets his stored data volume or (b) to reduce the data volume by deleting data. If neither of the aforementioned options occurs, ATOMIC KITCHEN is entitled to block the SERVICE and/or to terminate the contractual relationship extraordinarily without further notice. During the suspension, the CUSTOMER will not have access to the data stored in the SERVICE. In the event of termination, clause 10.2 shall apply.
5. Property rights, privacy and referencing
5.1 Customer data (intellectual property rights)
CUSTOMER owns all right, title and interest in and to the CUSTOMER DATA and all data based on or derived from the CUSTOMER DATA provided to CUSTOMER as part of the SERVICE.
ATOMIC KITCHEN owns and retains all right, title and interest in and to (a) the SERVICE and SOFTWARE, and any enhancements, extensions or modifications thereto, (b) any SOFTWARE, and applications, inventions or other technologies developed in connection with the Implementation SERVICEs or Support, and (c) all intellectual property rights related to the foregoing. The provisions of this section shall survive termination of this agreement.
CUSTOMER is aware that the use and processing of personal data as defined by applicable domestic and/or foreign data protection legislation, in particular and to the extent applicable the EU General Data Protection Regulation (hereinafter referred as: EU GDPR) and the Swiss Data Protection Act (hereinafter referred as: DPA), may require the prior consent of the data subjects and/or the registration of the relevant database with a domestic and/or foreign authority. ATOMIC KITCHEN fully complies with the provisions of the EU GDPR and the DPA, as applicable.
. The CUSTOMER remains responsible for the lawfulness of the collection, processing and use of the CUSTOMER DATA in accordance with the applicable legal provisions, in particular in accordance with the EU-DSGVO and DSG. Therefore, ATOMIC KITCHEN offers CUSTOMER the option to sign a Data Processing Agreement, which then becomes an integral part of the contractual relationship between ATOMIC KITCHEN and CUSTOMER.
ATOMIC KITCHEN is entitled to refer to the projects realized by ATOMIC KITCHEN for CUSTOMER in the context of its own marketing activities as well as in the preparation of offers for projects of other CUSTOMERs. In particular, ATOMIC KITCHEN is entitled, with the CUSTOMER's consent, to publish the orders placed as part of marketing activities and to mention the business relationship by name and by placing the CUSTOMER's company logo on ATOMIC KITCHEN's website.
6. Area of responsibility, blocking for copyright infringement
ATOMIC KITCHEN is generally not obligated to review, and assumes no responsibility or liability for, any information posted by its CUSTOMERs in the course of using the SOFTWARE, whether on ATOMIC KITCHEN's website or elsewhere.
CUSTOMERs agree to maintain the confidentiality of their password(s). If you suspect any unauthorized use of your password or any other breach of security relating to the via SOFTWARE, you are required to notify ATOMIC KITCHEN immediately.
CUSTOMERs are solely responsible for the security of information they create or store within the SOFTWARE provided by ATOMIC KITCHEN. ATOMIC KITCHEN assumes no liability for any loss of data - including, but not limited to, those resulting from improper use of the provided SOFTWARE, loss of password, or third party intervention. Please make your own backup copies of your entered and created data.
ATOMIC KITCHEN respects the intellectual property of others and asks its CUSTOMERs to behave the same way. If a CUSTOMER violates the copyright and/or trademark rights of others in the context of the contractual provision of SOFTWARE by ATOMIC KITCHEN, ATOMIC KITCHEN is entitled to take measures to prevent such violations, in which case it may be necessary on the part of ATOMIC KITCHEN to deny the CUSTOMER access to the contractually guaranteed SOFTWARE and to terminate the contractual relationship extraordinarily. During this blocking the CUSTOMER has no access to the CUSTOMER DATA. In the event of termination, Clauses 10.2 and 10.3 shall apply. A claim for compensation by the CUSTOMER due to the blocking of the SERVICE is excluded. A refund or credit for any services already paid for, unused SERVICE LEVELs or billing periods paid for in advance and not used is excluded.
CUSTOMER shall indemnify ATOMIC KITCHEN and any third parties engaged by ATOMIC KITCHEN against any and all third party claims arising out of (a) CUSTOMER's unlawful use of the SOFTWARE and/or with CUSTOMER's approval by third parties, (b) data privacy, copyright or other legal disputes related to CUSTOMER's use of the SOFTWARE.
CUSTOMER hereby agrees to indemnify and hold ATOMIC KITCHEN harmless from and against any and all damages, losses, liabilities, settlements and expenses (including attorneys' fees) related to any claim or action arising out of any alleged violation of the foregoing or otherwise arising out of CUSTOMER's use of the SERVICE.
Upon assertion of any such claim, CUSTOMER shall promptly notify ATOMIC KITCHEN in writing. In this case, ATOMIC KITCHEN is entitled to block the SERVICE for the CUSTOMER immediately and without setting a deadline. Any claim for compensation by the CUSTOMER due to the blocking of the SERVICE is excluded.
The liability of ATOMIC KITCHEN is fully excluded to the extent permitted by law, in particular for damages
- from the breach of contractual obligations by the CUSTOMER;
- which was caused by consulted third parties or auxiliary persons of ATOMIC KITCHEN;
- by virus attack;
- as a result of a malicious code;
- as a result of a hacker attack;
- in consequence of a SOFTWARE error;
- as a result of an operating system error, interruptions in operation as a result of troubleshooting, maintenance, infrastructure adjustments, introduction of new technologies;
- indirect or consequential damages such as lost profits, unrealized savings or third party claims
9. No warranty
Except as otherwise provided in this Agreement, the SOFTWARE and SERVICE are provided by ATOMIC KITCHEN on an "as is" basis. Except for the representations in this Agreement, ATOMIC KITCHEN makes no other warranties, express or implied, and hereby disclaims all implied warranties, including warranties of merchantability and fitness for a particular purpose.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. In such cases, the above exclusions and limitations may not apply. To the extent that any exclusion or limitation of liability is not permitted under applicable law, the scope and duration of such statutory warranties shall be limited to the minimum permitted under applicable law.
10. Term and termination
Depending on the CUSTOMER's order, the SERVICE LEVEL is concluded annually for a certain term (basic term) and is then automatically renewed for the same period (renewal term), unless the contract is terminated by one of the contracting parties in an ordinary or extraordinary manner in accordance with Section 10.2 below.
The provisions of Clause 10.2 shall apply mutatis mutandis to any reduction in the number of units of use during the term.
- Ordinary Termination: The contract may be terminated by either contracting party with 4 weeks' notice to the end of any billing period.
- Extraordinary Termination: ATOMIC KITCHEN may terminate the License Agreement (e.g. booked SERVICE LEVELs) extraordinarily for cause at any time and with immediate effect.
Important reasons, which entitle ATOMIC KITCHEN to extraordinary termination, are in particular:
- if the CUSTOMER violates its contractual obligations, provided that this defect is not remedied or cannot be remedied within 14 days by the CUSTOMER despite prior written warning by ATOMIC KITCHEN;
- if the CUSTOMER is in default of payment of fees; or
- if insolvency proceedings are or have been commenced against the CUSTOMER.
Important reasons, which entitle the CUSTOMER to extraordinary termination, are in particular:
- in the event of a complete service breakdown of more than 7 days
- in the event of a significant reduction of the scope of the booked SERVICE LEVEL by ATOMIC KITCHEN within 14 days after notification and/or entry of the SERVICE reduction. The SERVICE reduction is only significant and entitles to termination only if it represents a significant impairment on the use of the booked SERVICE. This impairment must be substantiated by the CUSTOMER. It is not sufficient the blanket assumption of a potential impairment on the use of the booked SERVICE.
10.3 CUSTOMER DATA at the end of the contract
Upon termination of the Contract and upon written request of the CUSTOMER, ATOMIC KITCHEN shall provide the CUSTOMER with a copy of the CUSTOMER DATA stored on its servers as of the date of termination of the Contract on a customary data carrier or by electronic transmission and in a customary format.
Upon the expiration of 60 days from the end of the contract or, at the request of the CUSTOMER, before the expiration of this period, ATOMIC KITCHEN shall permanently and completely delete the CUSTOMER DATA stored on its servers. This is subject to mandatory statutory retention obligations.
ATOMIC KITCHEN is not obligated to guarantee the CUSTOMER a deviating release (in particular regarding time, format or migration) of his data. A deviating surrender of data of the CUSTOMER requires the prior written consent of ATOMIC KITCHEN as well as the separate remuneration by the CUSTOMER.
The contracting parties mutually undertake themselves as well as their employees and auxiliary persons called in to maintain the confidentiality of all documents and information which are not generally known and which relate to the business sphere of the other contracting party and become accessible to them during the preparation and implementation of this contractual relationship.
The confidentiality obligation shall remain in force even after termination of the contractual relationship, as long as there is a justified interest in this.
12. Final provisions
12.1 Amendment of these GTC
ATOMIC KITCHEN shall notify the CUSTOMER of any changes to these GTC. Amended GTCs shall become effective for the contractual relationship between ATOMIC KITCHEN and the CUSTOMER, unless the CUSTOMER objects to the amended GTCs in writing within a period of 14 days.
12.2 Offsetting and assignment of claims
The set-off of mutual claims requires the prior written consent of ATOMIC KITCHEN. The CUSTOMER is not entitled to assign claims arising from the contractual relationship with ATOMIC KITCHEN in whole or in part to third parties, including any group or subsidiary companies.
12.3 Severability clause and place of performance
Should individual provisions of these GTC be invalid or incomplete or should performance become impossible, this shall not affect the validity of the remaining provisions of these GTC. Ineffective provisions shall be deemed to be replaced by a permissible effective provision which, according to its content, comes closest to the original intention. Place of performance is the registered office of ATOMIC KITCHEN, Zurich - Switzerland.
12.4 Date of conclusion of the contract
The contract is concluded by the receipt of a confirmation email after the booking of an SERVICE LEVEL of the CUSTOMER.
13. Applicable law and jurisdiction
The contractual relationship between ATOMIC KITCHEN and the CUSTOMER is governed by Swiss law, to the exclusion of any national or international treaties or conventions in force at the time of entry into force or any dispute.
The contracting parties undertake to strive in good faith for an amicable settlement in the event of any disagreement in connection with the contractual relationship or its annexes. If, despite the efforts of the Parties, an amicable settlement cannot be reached, the place of jurisdiction for any dispute, controversy or claim arising out of or in connection with the contractual relationship between ATOMIC KITCHEN and CUSTOMER, including the SERVICE LEVEL and its Annexes, including their validity, invalidity, breach or termination, shall be Zurich, Switzerland. Notwithstanding the foregoing, ATOMIC KITCHEN shall be entitled to bring an action against CUSTOMER in its general jurisdiction.