1. Scope of Services
1.1
DB provides DAISHOSync, a service that allows the customer to synchronize the customer’s data with mobile devices via a shared synchronization server over the internet. The synchronization server acts as an interface for the customer's data. All synchronizations occur between the server and the customer’s devices and applications. A detailed description of the service is available at www.daishosync.com.
1.2
A list of devices and applications that are supported by DAISHOSync is available at www.daishoysnc.com. DB does not warrant and is not liable for any operation in connection with unsupported devices.
2. Scope and execution of work
2.1
DB will provide the service remotely via public networks; to this end, the custmer is responsible to connect his devices to the infrastructure for the provision of services. The customer is responsible to provide internet connectivity for the mobile device.
2.2
Access to the services is protected by login details. Access the service is only possible for registered users. All login details must be kept confidential.
2.3
The customer shall ensure that the login details do not become accessible to third parties and shall be liable for all acts and activities undertaken using the login details. If the customer becomes aware of any misuse of the login details, he must immediately notify DB in writing (e.g. by postal letter or email).
2.4
The customer shall not provide DB with false data and shall keep all information up to date and accurate.
2.5
If the customer does register more than one user, the customer shall be responsible for all registered users and oblige the registered users to the same extent with respect to confidentiality regarding login details as per above.
2.6
The customer undertakes not to misuse the services provided, and to ensure that none of any registered users do misuse it.
3. Service Availability, Malperformance
3.1
An unrestricted availability of the service cannot be warranted as the services provided require access to telecommunication networks and connections over which DB has no influence.
3.2
DB reserves the right to shut down the service for maintenance and servicing on Saturdays between 8pm and 12pm.
3.3
DB furthermore reserves the right for additional shut-downs in case of necessary maintenance and servicing. DB will try to minimise all operational interruptions of service (e.g. because of maintenance or service activities on hardware or software) to the best of its ability.
3.4
If DB is responsible for any malperformance or nonperformance and the customer demonstrably suffered a loss there from, the customer may claim compensation as liquidated damages of 25 % of the monthly service fee for every affected week of such malperformance or nonperformance.
3.5
If malperformance or nonperformance according to Clause 3.4 lasts for more than one month, the customer may terminate the respective agreement.
3.6
The remedies in this Section 3 are the customer’s sole and only remedies in case of malperformance and nonperformance. Any further claims, e.g. for damages and compensation due to malperformance or nonperformance are excluded.
4. Liability
4.1
DB shall be fully liable for intent and gross negligence as well as for damages caused by injury to life, body or health.
4.2
In an event of slight negligence, DB shall be liable only for breaches of a material contractual obligation (“cardinal duty”). A cardinal duty in the meaning of this provision is an obligation whose fulfilment makes the performance of this contract possible in the first place and on the fulfilment of which the contractual partner may therefore generally rely.
4.3
In a case according to Clause 4.2, DB shall not be liable for any lack of commercial success, lost profits and indirect damages.
4.4
Liability in accordance with the above Clauses 4.2 and 4.3 shall be limited to the typical, foreseeable damages. Typical, foreseeable damages are limited to a maximum amount equalling the annual service fee paid for the provision of the services.
4.5
The limitation of liability shall apply mutatis mutandis to the benefit of the employees, agents, subcontractors and vicarious agents of DAISHO.
4.6
Any potential liability of DB for any warranties and for claims based on the German Product Liability Act shall not be affected.
4.7
The customer is responsible to perform all necessary backups of the data on the mobile device and on Daisho. DB does not create backups of any data transferred to its servers or the servers of subcontractors. DB shall thus not be liable in the event of any loss of data incurred through DAISHO’s fault for the recovery costs for data that has been lost due to noncompliance with customer’s backup obligation.
5. Term and Termination
5.1
The agreement for the provision of DAISHOSync services to the customer shall have an initial term of one year after conclusion of the agreement. Thereafter it shall extend automatically for further periods of one year in each case if not terminated with a notice period of 1 months.
5.2
Either party may terminate the agreement for the provision of DAISHOSync services without notice in writing (e.g. by postal letter or email),
- if the other party is unable to pay, or
- if insolvency proceedings have been commenced or applied for.
6. Payment terms
6.1
All fees and amounts are exclusive VAT, if applicable, and are payable for each contractual term in advance.
6.2
The customer shall pay all fees and other amounts due to DB hereunder within fourteen days after reception of DB’s invoice. Access to the service will be provided after receipt of the payment.
7. Required information according to German distance sales and e-commerce provisions
7.1
The language available for the conclusion of the agreement is English.
7.2
The wording of an agreement concluded with the customer will not be archived by DB.
8. Final provisions
8.1
DB shall be entitled to amend or add to these General Terms and Conditions as part of the agreement for the provision of DAISHOSync services with the customer. Such additions or alterations shall become effective only after DB has communicated the new version of the General Terms and Conditions to the customer and the customer has not objected within six weeks following receipt. The customer will be explicitly advised of his or her silence’s relevance when the amended General Terms and Conditions are transmitted. The amended General Terms and Conditions and the advice on the relevance of failure to object are usually communicated by email. Therefore, the customer must ensure to be available under the email address provided to DB
8.2
In the event that any provision in the agreement for the provision of DAISHOSync services is subject to an interpretation under which it would be void or unenforceable, such provisions shall be construed so as to constitute it a valid and enforceable provision to the fullest extent possible, and in the event that it cannot be so construed, it shall, to that extent, be deemed deleted and separable from the other provisions of this agreement, which shall remain in full force and effect and shall be construed to effectuate its purposes to the maximum legal extent.
8.3
The agreement for the provision of DAISHOSync services with the customer as well as these General Terms and Conditions shall be governed and construed in accordance with the laws of the Federal Republic of Germany excluding its conflict of law provisions.
8.4
As far as the customer is a merchant according to the German Commercial Code, a corporate body under public law, or special asset under public law, München, Germany shall be the exclusive place of jurisdiction for any disputes arising directly or indirectly from this contractual relationship.
8.5
DB provides the DAISHOSync services by subcontracting Simchronise Limited of Charter House, 5 Pembroke Row, Dublin 2, Ireland. The subcontractor operates and processes the data on its servers hosted at its premises.
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