Terms and Conditions of Tutao GmbH
As of July 14, 2015
The previous version of these Terms and Conditions is outdated not valid anymore
These General Terms and Conditions are provided in English for your convenience. Please note that in case of a dispute or discrepancy between the German Terms and Conditions and the English translation, the German version shall prevail.
1. General, scope
1.1 The Tutao GmbH Address: Hanomaghof 2, 30449 Hanover, e-mail: firstname.lastname@example.org, phone: +49 511 202801-0 (hereafter Tutao) provides all deliveries and services solely on the basis of these Terms and Conditions.
1.2 These Terms and Conditions apply to entrepreneurs according to § 14 BGB (German Civil Code) (hereafter business customers) as wells as to consumers according to § 13 BGB (German Civil Code) (hereafter private customers). A consumer is any natural person entering into a legal transaction for a purpose that cannot be attributed to their commercial or to their independent vocational activity.
1.3 For business users these Terms and Conditions are valid for all future business with Tutao.
1.4 Terms and Conditions of the business user that differ from Tutao's Terms and Conditions completely or in parts are not recognized, unless Tutao accepts them with a written statement. The Terms and Conditions of Tutao also apply exclusively if Tutao unconditionally renders a service in the knowledge of conflicting Terms and Conditions of the customer.
2. Conclusion of contract
2.1 The customer sends the request on completion of the proposed contract either by dispatching an electronic statement or by transmitting the order form in writing to Tutao if this is offered. The contract is concluded with the allocation of an account by Tutao.
3. Notice of cancellation
3.1 If the customer is a private customer and the contract was concluded exclusively by means of distance communication (distance selling contract), the private customer has the statutory right of withdrawal described below:
Notice of cancellation
Right of withdrawal
You have the right to cancel this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the date of contract. To exercise your right of cancellation, you must notify us
Phone: +49 511 202801-0
Fax: +49 511 202801-19 or
with a clear statement (eg a letter sent via post, a fax or an email) of your decision to withdraw from this contract. You can use the attached model withdrawal form. However this is not mandatory.
In order to observe the withdrawal period it is sufficient to send the notice claiming the right of withdrawal within the withdrawal period.
Results of Withdrawal
If you withdraw from this contract, we have to return all payments that we have received from you including delivery costs (with the exception of the additional costs arising from the fact that you have chosen a more expensive type of delivery other than the standard delivery offered by us) which must be repaid immediately at the latest within fourteen days from the date on which we have received your notice of cancellation of this contract. For this repayment we use the same method of payment that you have used for the initial transaction, unless you explicitly agreed otherwise; in any case you will not be charged fees for this repayment.
In case that you have required the services to start during the withdrawal period, you have to pay us a reasonable amount compared to the full extent of the service covered in this contract for the service already provided to you up to the date on which you notify us of the right of withdrawal of this contract.
End of Notice of cancellation
Model form for withdrawal
(If you want to withdraw from the contract, you can fill in this form and send it back to us.)
Fax: +49 511 202801-19 or
Hereby I/we* give notice that I/we* withdraw from my/our* agreement of sale of the following goods*/provision of the following service*:
Ordered on*/received on*: __________________________________________________
Name of customer(s): __________________________________________________
Address of customer(s): __________________________________________________
Tutanota e-mail address of the customer(s): __________________________________________________
Signature of customer(s) (only if sent on paper): __________________________________________________
*) Delete as applicable.
4. Subject of the contract and alteration of the contract
4.1 Tutao provides the customer with the system Tutanota in accordance to the respective service descriptions of the selected tariff. The availability is 99 % annual average, in regards to 24 hours per day, seven days per week. Exempt from this availability are time periods, during which Tutanota is not available due to technical or other issues that do not lie in the sphere of influence of Tutao (force majeure, fault of third parties, etc.). Tutao conducts a regular maintenance of the software and the system. For this purpose Tutao can adjust or limit services temporarily while taking into account the interests of the customer as long as objective reasons justify it. If possible this work will be conducted during non-peak hours, particularly Fridays to Sundays, between 10:00 pm and 06:00 am (CET). If Tutao estimates that the time for maintenance and software updates will lead to a downtime of more than three hours, Tutao will inform all paying customers three days in advance. Tutao is only responsible for the availability if it is effected by the part of the system operated by Tutao.
4.2 If in the respective service description of the selected tariff a certain amount of storage space is defined, this applies to the entire available storage space according to the service description and is used, among other things, for the storage of meta-data (file history, etc.).
4.3 Tutao retains the right to extend services and make improvements if these are pertinent to the technical progress, if these seem to be necessary to prevent abuse, or if Tutao is required to do so by law. With the consent of the customer Tutao can conduct other changes in the content of the contract, including these Terms and Conditions, if the change is reasonable to the customer taking into account the interests of Tutao. Particularly unacceptable is any contract change that results in a reduction of a principal contractual service offered by Tutao. If the alteration of the contract results in increased fees payable by the customer, the admissibility of this is regulated under Clause 8.5 of these Terms and Conditions. The approval of the alteration of the contract is deemed as granted if the customer does not object to the alteration within one month after receiving the notification of the alteration. Tutao agrees to notify the customer in the course of the alteration notification of the consequences of non-objection.
4.4 Voluntary and unpaid services and benefits of Tutao which explicitly are described as such and are not part of the service description can be cancelled by Tutao at any time. Upon alterations and cancellation of free services Tutao will take into account the legitimate interests of the customers.
4.5 Tutao has the right to use services of third parties for the service provision at any time and in any amount.
5. Term of contract, contract renewal and contract termination, termination of services
5.1 Unless stated otherwise in the respective service description, the contract is effective for an indefinite time. The agreement may be terminated by either party with a notice period of one month to the end of each billing cycle. If the contract is not terminated, the contract is automatically renewed with the same billing cycle.
5.2 This does not affect the right of either party to terminate the contract without previous notice of a cause. A cause for Tutao is particularly given if at least one of the following situations occur: despite warning the customer culpably violates a contractual obligation (for example against 8.4 of these Terms and Conditions), despite warning the customer does not eliminate a violation of contract or of law within a reasonable period of time. A warning is not necessary if there is a violation that makes a continuation of the contract for Tutao unreasonable.
5.3 The termination of additional options, particularly additional accounts or storage space, of the respective tariff leaves the general contract unaffected.
5.4 The extraordinary termination shall be effective only in writing. The ordinary termination by the customer is carried out with the deletion of the last administrative account in the Settings of the application.
5.5 After termination of the contract Tutao is no longer obligated to provide the contractual services. The timely storage and backup of the data, is the customer's responsibility.
6. General obligations of the customer
6.1 Business customers are obliged to state their full name and a complete address required for a summons (not a post box or another anonymous address). The customer assures that all data communicated to Tutao are correct and complete.
6.2 Upon booking a paid version of Tutanota, private customers are obliged to state the country of their current domicile.
6.3 The customer is obliged to update this information in the application as soon as it changes.
7. Email receiving and sending, ban on spam emails
7.1 Tutao has the right to limit the maximum size of emails to be sent to an appropriate size. If in the respective service description it is not stated otherwise, the max. email size is 20 MB.
7.2 The sending of emails is inadmissible if it is a mass-mailing to recipients without their consent and/or if it is a promotional email and consent of the recipient is not given even though this is required (hereafter referred to as spam). Proof of consent (see § 7 paragraph 2 UWG (Act Against Unfair Competition)) of each recipient rests with the customer.
7.3 The customer is prohibited to send more than 100 emails per hour per account or to send so-called paid emails or emails that advertise a referral system.
8. Payment and invoicing, payment increase, delay of payment, payment refund
8.1 The amounts to be paid by the customer to Tutao and the respective billing period result from the service description of the selected tariff by the customer. Usage-independent fees are payable in advance of the chosen billing period, usage-dependent fees are charged with an invoice.
8.2 Invoices are issued online through the electronic delivery of the invoice. The invoice shall be deemed as delivered to the customer as soon as it is available electronically and hence reachable for him. Tutao retains the right to send the invoice via post. However a requirement of the customer for receiving an invoice through the post does not exist.
8.3 The customer authorizes Tutao to collect the charges to be paid by the customer from an account (i.e. banking account, credit card, PayPal) specified by the customer. The customer has to take care of sufficient funding in the account. If there is a chargeback caused by the customer, the customer is obligated to reimburse Tutao the occurring banking fees. Business customers may choose to pay on invoice.
8.4 If the customer falls behind payment for two consecutive months, Tutao is entitled to terminate the contract without notice. The same applies if the customer falls behind payment of an amount that reaches the basic fee for two months over a period of more than two months.
8.5 Tutao is entitled to increase the fees reasonably. Considered as reasonable is an annual increase to the extent of 5% at most. The fee increase will be subject to the approval of the customer. The consent shall be deemed as granted if the customer does not object to the increase within one month of notification. Tutao is obliged to inform the customer with the notification of change of the consequences of non-objection. If the customer contradicts the price increase, Tutao has a special right of termination.
8.6 Prepaid fees are refunded to the customer if Tutao ends the contract prior to the end of the billing period. In case of an effective extraordinary termination (Clause 5.2) by Tutao, Tutao is entitled to receive the payment of the fee until the next possible ordinary termination date.
9. Disturbances of service
9.1 Tutao is only responsible for disturbances of services if these apply to services to be performed by Tutao referred to under Clause 4.1.
9.2 Tutao will eliminate disturbances according to technical and operational capabilities. The customer is obliged to notify Tutao of disturbances observable by him immediately (malfunction information). If the disturbance is not eliminated within a reasonable amount of time, the customer shall set a reasonable additional respite. If the disturbance is not corrected within this respite, the customer retains the right to terminate the contract or to demand a reduction of the monthly fee. If the disturbance only results in a deviation of the service and does not limit its functionality, the customer can only demand a reduction of the fee. Any claims made under Clause 10 shall remain unaffected.
9.3 In the event of force majeure Tutao is exempt from liability. These include in particular lawful industrial action, also in third party companies as well as regulatory measures, if not caused by Tutao.
10. Liability of Tutao
10.1 The liability of Tutao exists solely in the context of Clauses 10.2 to 10.8. The following liability provisions apply to claims resulting from any legal reason.
10.2 Tutao is liable to the customer for damages without limit caused intentionally or by gross negligence by him or by one of its assistants or legal representatives. In case of damages arising from injury to life, body or health, liability is unlimited even when caused by a simple breach of duty by Tutao or one of its legal representatives or assistants. Similarly, the liability is unlimited for damages that are due to serious organizational faults of Tutao, and for damages caused by the lack of a guaranteed quality.
10.3 Unless covered by Clause 10.2, Tutao is liable for the violation of essential contractual obligations; the amount of liability is limited to the typically foreseeable damage. Essential contractual obligations are obligations imposed on Tutao by the content of the contract for achieving the purpose of the contract and the fulfillment of which enable the proper execution of the contract in the first place and on whose regular compliance the customer can rely on.
10.4 For data loss caused by Tutao, Tutao is only liable for the costs that result from recovering of the data that would have also been lost despite performing appropriate data backup measurements. A liability is limited to the liability regulations of these Terms and Conditions.
10.5. The liability for any lost profit is excluded.
10.6 The liability under the Produkthaftungsgesetz (Product Liability Act) shall remain unaffected by the preceding liability provisions.
10.7 In the event that the system was provided as a free version (ie free of charge), Tutao accepts liability in accordance with the above provisions only for willful and malicious acts.
10.8 Tutao is not liable for the content or the activities of its users.
11. Blocking, requirements of unblocking, reimbursement
11.1 If there is a culpable conduct of the customer or of a third party attributable to this customer which is violating any German law, in particular provisions of the Criminal Code or for the protection of the youth, or these Terms and Conditions, Tutao can block the complete service or parts of it. The right to terminate the contract without notice in accordance to Clause 5.2 of these Terms and Conditions remains unaffected.
11.2 The customer is not released from his obligation to pay the agreed fees by a blockage. If there is a disclosure required of Tutao, it is sufficient for Tutao to send the respective releases via email to the email address of the customer. For the blocking and the unblocking Tutao can in each case impose the agreed fee (currently 50,00 EUR incl. purchase tax).
11.3 Insofar as Tutao is engaged by third parties or government agencies because of a culpable conduct of the customer or of a third party attributable to this customer that authorizes Tutao for blocking, the customer discharges Tutao from all claims and is obliged to carry the costs that occurred due to the unlawful situation.
12.1 Tutao grants the customer for the duration of the contract, a simple, non-transferable, non-sublicensable right to use the required software to perform the services of Tutao and their extensions for its own internal use. The software is protected by copyright. Unless explicitly permitted by the Copyright Act or by contract, the customer may not reverse engineer, decompile or disassemble the software himself or have that done by a third party.
13.1 If provided by the customer, Tutao collects, processes and uses personal data of the customer. For more information on data processing and data protection see the Data Privacy Statement of Tutao.
14. Jurisdiction, law applicaple
14.1 The laws of the Federal Republic of Germany shall apply. This does not affect mandatory provisions of the country in which private customers who are consumers have their main residence. In all communications with consumers within the European Union the law of the domicile country of the consumer may also be used, provided that mandatory consumer laws are applicable.
14.2 The place of jurisdiction for demands resulting from differences between the parties to a contract, in particular about the conclusion of a contract, its execution or its termination - insofar as the customer is a general merchant, a corporate body under public law, or a separate estate under public law - is Hanover, Germany. Tutao can also choose to sue the customer at his place of general jurisdiction.
14.3. The validity of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded, even in cross-border deliveries.
15. Charging, withholding, severability clause
15.1 The customer can only charge up against outstanding debits of Tutao if these are not objected to or legally established. The customer is only entitled to the enforcement of a right of retention for counterclaims that result from the contractual relationship with Tutao.
15.2 In case that Clauses of these Terms and Conditions and/or the contract is invalid, this does not affect the validity of the remaining Clauses. The parties to a contract oblige to agree on a valid Clause - that in its commercial success matches the invalid one as closely as possible - to replace the invalid one.