Terms of use

 

Conditions of Use

weclapp GmbH

Version: 1.6-EN, as at 15-01-2018

 

1. Scope of validity

1.1 Weclapp GmbH (‘weclapp’) offers its services for the end Customer (‘Customer’) to use software via internet on the basis of

– The respective product description which can be viewed on www.weclapp.com and

– The following conditions of use.

1.2 In case of contradictions between the German language version and other versions of these conditions, only the German version applies.

1.3 Any deviations of the Customer’s general terms and conditions do not apply, even if weclapp has not objected to them explicitly.

1.4 THE SOFTWARE IS FOR ENTREPRENEURS AND MAY ONLY BE USED BY THEM. IT IS NOT INTENDED FOR USE BY INDIVIDUAL CONSUMERS.

 

2. Conclusion of contract and order of services

2.1 The Customer registers on the weclapp website with his particulars and by sending these particulars to weclapp, offers to conclude a contract. weclapp immediately confirms receipt of the offer by email.

2.2 weclapp accepts the Customer’s offer by activating the Customer account. With this declaration of acceptance, the contract between the Customer and weclapp comes into being.

2.3 The Customer can order services (e.g. licences) with costs via his Customer account after the Activation. Alternatively, the Customer can order the services by e-mail. In case of an order, the Customer receives an order confirmation.

 

3. Object of contract

3.1 weclapp offers the use of software via the internet for the duration of the contract. The respective product description shows the functional range of the software in particular.

3.2 The user documentation will be made available to the Customer in German and/or English. weclapp has the right to provide the user documentation in an electronic format. In that case weclapp is under no obligation to provide the user documentation on paper.

3.3 weclapp is not obliged to assist with individual adaptations of the software or to provide consulting services, unless otherwise agreed.

3.4 Especially the provision and maintenance of network connections and the hardware and software needed by the Customer are not included in the services provided by weclapp. The Customer has to procure these prerequisites at his own cost and at his own risk.

 

4. User rights

4.1 weclapp or the respective author is the sole owner of intellectual property rights and any ancillary rights to the software. Where third parties are entitled to such rights, weclapp holds corresponding exploitation rights.

4.2 For the duration of the contract weclapp grants the Customer a non-exclusive licence which allows him and the user registered by him to access the software via internet and thus use it. This user right also applies to all upgrades and updates.

4.3 The Customer may not transfer his user right to third parties or enable third parties in any other way to use the software.

4.4 The Customer undertakes to use the software exclusively for his own purposes and to allow access only to those who he has registered as users of his account. If the software is to be used for purposes of Affiliate Companies in terms of article 15 of the German Company Law (AktG) the prior consent of weclapp is required.

 

5. Service delivery

5.1 Technical implementation of the service is at weclapp‘s sole discretion, provided that implementation is in accordance with the stipulations contained herein.

5.2 weclapp is entitled to make changes to the agreed services if these should become compulsory on account of legal and/or regulatory framework conditions. weclapp undertakes to notify the Customer of such changes within a reasonable period of time.

5.3 Otherwise weclapp may affect changes to the agreed services only if the value of the services does not decrease for the Customer and if they do not cause additional costs for the Customer.

5.4 weclapp has the right to update the software and continue to develop it. However, the Customer has no claim to this.

5.5 weclapp may assign vicarious agents to provide the services.

 

6. Availability, limitations of service, safety, force majeure

6.1 weclapp makes the software available 24/7 (all day, every day). Minimum average annual availability is 99.5%.

6.2 Availability is due at the point of delivery, the router output at data centre.

6.3 Temporary delays, glitches and/or disruptions may at times be experienced due to unforeseeable and uncontrollable simultaneous pressures on the server exerted by the Customer and other weclapp partners, as well as other circumstances for which weclapp cannot be held responsible.

6.4 Glitches may also be experienced due to technical changes to weclapp’s systems, maintenance work, updates or upgrades which are necessary for proper or improved operations.

6.5 Downtimes as a result of the aforementioned cases in 6.3 and 6.4 are excluded from minimum availability.

6.6 The same applies to downtimes resulting from

– Force majeure

– Actions by the Customer, his employees or vicarious agents

– inevitable limitations of service due to changes which have been requested by the Customer or which have become mandatory as a result of legal or regulatory stipulations.

6.7 weclapp is entitled to carry out regular maintenance work between 01h00 and 05h00 (CET). The Customer is not notified of such work. Other maintenance work is announced by weclapp within a reasonable period of time. The software is unavailable during maintenance or only available within limits.

6.8 The Customer is advised that weclapp has no influence whatsoever regarding the following:

– That data transferred through the internet may be observed by third parties

– Which transfer speeds are possible on the internet

– On which routes data travels from weclapp and whether solutions, servers and routers, operated by other providers, are ready for use at all times.

6.9 In order to make the software available as securely as possible weclapp uses the means which in its own view make technical and economic sense. This particularly includes protection against third-party access through encrypted transfer of data entered as well as maintaining recognised security standards. Nevertheless, the Customer acknowledges that total protection from harmful data is not possible.

6.10 weclapp has the right to change services, which are rendered free of charge, at any time and in particular discontinue such services. No claims accrue to the Customer because of such changes.

6.11 In cases of force majeure weclapp is exempt from its duty to render its services until such force majeure ceases. Force majeure is any occurrence beyond the control of the respective party to the contract and any unforeseen occurrence which partly or completely prevents the respective party from rendering its services.

6.12 Cases of force majeure are, in particular, steps taken by authorities and disruptions of operations not caused by weclapp.

 

7. The Customer’s obligations

7.1 The Customer provides weclapp with any information needed in order to render the services.

7.2 He undertakes to enter all his data and those of his users truly and correctly upon registration. In case of changes the data has to be updated without delay.

7.3 The Customer creates the technical conditions which weclapp requires to deliver the requested services.

7.4 The Customer undertakes

a.) to adhere to relevant instructions, in particular to prevent third parties from obtaining passwords

b.) to run updated anti-virus programmes at regular intervals and to check his data with the latest anti-virus software before transmitting them

c.) to immediately notify weclapp of any disturbances and to assist weclapp with the error analysis and elimination of defects by giving an accurate description of the problems that occur, by informing weclapp comprehensively and by making any necessary data available, as well as allowing reasonable time for remedial action

d.) to use the software solely for the purposes for which it is intended.

7.5 The Customer further undertakes to refrain from

a.) allowing third parties access to the software without weclapp’s prior written consent, excluding the Customer’s employees when access is necessary for his purposes

b.) misusing his access to disrupt and/or cancel out the function and/or integrity of the software, technical systems, programmes and/or data of third parties and/or weclapp against their will, or to compromise the system’s security.

7.6 If the customer processes data and the processing require the consent of persons affected or if the Customer is a subject of professional confidentiality, he is obligated to obtain the consent of persons affected, where it is required by law or by contract.

7.7 If the Customer does not comply with his aforementioned duties, the resulting costs and/or expenses may be charged to the Customer if he is at fault.

 

8. Duration of contract and Termination

8.1 The contract begins at the date of activation. When the customer account has been activated the Customer may test the software chosen free of charge for 30 days. By clicking the button ‘order with costs’ he will be able to continue using the applications with costs. He can in particular order licences with a minimum term.

8.2 The Customer may terminate the contract or the licences with 30 days’ notice to take effect at the end of the minimum duration at the earliest of the licences. weclapp is entitled to terminate the contract or the licences with 3 months’ notice, earliest at the end of the minimum duration of the licences. Unless otherwise agreed, the aforementioned periods also apply to partial terminations.

8.3 If the minimum duration of ordered licences are 12 or 24 months and the licences are not terminated in accordance with the aforementioned deadlines, the licences will automatically be extended respectively by another 12 months.

8.4 The Customer can at any time order new licences or “terminate” licenses. A new minimum period begins for new licences. In case of a termination, the licences end after the minimum contract duration.

8.5 The Customer may upgrade the software packages at any time. Upgrades have immediate effect while a new contract period begins for the licences. Downgrades are not possible.

8.6 Termination for important reasons remains unaffected. An important reason exists in particular when the other party to the contract violates his contractual obligations in a grossly negligent way and despite a written warning and/or deadline for remedy. An important reason also exists in particular when the Customer is in arrears with the payment of fees, or significant parts thereof, and fails to pay within a reasonable period of time after a reminder has been issued, or if an application for insolvency procedures against the Customer has been filed and/or instituted.

8.7 In the event of an extraordinary termination of the contract by weclapp, due to the Customer’s culpable violation of obligations, the Customer undertakes to compensate weclapp for any damage resulting from the extraordinary termination.

8.8 Notice of termination has to be given in writing (e-mail is not enough for the written form).

8.9 If the contract is terminated, the licences and all other services end with effect from agreed expiration of the minimum term. Upon ending of the licences, the contract ends. If only the licenses are terminated, the contract ends with the ending of the licenses.

8.10 The access to the software will be blocked after the termination of the contract. weclapp deletes all the Customer’s data 14 days after the end of contract, especially also those of the users and the data entered by them. It is up to the Customer to save the Customer data on his local system in time.

8.11 The Customer is solely responsible for the observance of statutory storage duties (for example because of tax regulations) regarding his Customer data.

 

9. Fees

9.1 For weclapp’s services the Customer pays the agreed fee in Euro. The fee is payable in advance. Statutory value-added tax shall be added where applicable.

9.2 Unless otherwise agreed, invoices are payable within 14 days after the invoice date. When ordered by debit the payment amount has to be paid immediately by direct debit. In case of a return debit note (for example, due to an insufficient account balance), the customer is obligated to pay the costs incurred by the return debit.

9.3 The Customer agrees to the transmission of invoices in electronic form (e.g. as a PDF document by e-mail). The invoices are also provided electronically to the customer in his customer account. If the customer requires the invoices to be sent by post, weclapp may demand a fee for this.

9.4 weclapp’s invoicing is seen as having been approved by the Customer if no objection is lodged with reasons within 60 days of the billing date. Objection has to be lodged in writing. The time limit is complied with if the objection is dispatched in time. In the invoice weclapp will notify the Customer of these consequences.

9.5 Charges and other costs incurred through the payment of fees shall be borne by the Customer unless weclapp is to blame for their accrual.

 

10. Warranty

10.1 weclapp warrants that the software complies with accepted rules of technology and has no defects which cancel or diminish the value or efficiency of utilisation which is considered normal or expected on the basis of this contract. A negligible decline of usability will not be taken into account.

10.2 The warranty does not cover any impairment of the software’s functionality resulting from misuse by the Customer or unsuitable ambient conditions provided by the Customer.

10.3 In case of title defects the Customer shall notify weclapp in writing without undue delay of any claims of third parties and shall leave control of the defence and related actions exclusively to weclapp, provided this would not be unreasonable for the Customer. The Customer gives weclapp the required support, information and authority for conducting the above-mentioned actions.

10.4 The Customer undertakes not to admit any claims relating to title defects without obtaining prior written consent from weclapp.

10.5 Rights in accordance with mandatory legal provisions are not affected by the aforesaid stipulations.

 

11. Liability

11.1 weclapp is liable for any damages intentionally or grossly negligently caused by weclapp or its vicarious agents.

11.2 As far as weclapp offers telecommunications services for the public the following applies to financial loss:

If the Customer suffers financial loss due to negligence on the part of weclapp or its agents, weclapp is liable for an amount of up to EUR 12,500.00 per claim. With respect to collectively aggrieved parties weclapp’s liability is limited to EUR 10 million per incident causing such damages. If compensations which are due to several parties as the result of one incident exceed the upper limit, compensation payments will be reduced by the proportion between the sum of all claims and maximum liability.

11.3 If damages are caused by only slight negligence on the part of weclapp, weclapp is liable only for the violation of essential contractual obligations (cardinal obligations), and its liability is limited to foreseeable damage seen as typical for this type of contract. Essential contractual obligations are those obligations which are the very reason why the contract was concluded and which the other party to the contract had reason to trust that it would be adhered to.

11.4 Unless data backups have been stipulated as a service to be rendered by weclapp, the Customer is responsible for backing up his data on a regular basis. Therefore, in the event that weclapp causes the loss of data, weclapp is only liable for the costs of reproducing the data from the Customer’s backup copies and for restoring such data which would also have been lost if proper backups had been done.

11.5 weclapp’s liability, regardless of culpability, to compensate in accordance with article 536 a BGB (German Civil Code) for defects which exist on conclusion of the contract is excluded. The provisions under 11.1 to 11.4 remain unaffected.

11.6 Otherwise no liability exists on the part of weclapp – irrespective of legal basis.

11.7 Liability in accordance with the law on product liability and any other mandatory legal stipulations remains unaffected by the aforementioned provisions.

 

12. Adherence to statutory provisions, third party property rights, indemnity, blocking

12.1 When entering or accessing data and information the Customer undertakes to adhere to legal and regulatory provisions, especially those pertaining to data protection, criminal law, copyright or other provisions on intellectual property rights. The Customer further undertakes to refrain from violating third party rights.

12.2 Within the framework of legal admissibility weclapp will immediately notify the Customer of any claims by third parties or authorities – or if there are any relevant indications – that the Customer is violating legal and/or regulatory provisions or third party rights.

12.3 The Customer will exempt weclapp from any liability based on his own violation of an obligation and he will support weclapp’s legal defence as best he can.

12.4 This provision also applies in cases where an obligation has been violated by one of the users for whom the Customer is responsible.

12.5 If the breach that weclapp is charged with is based on the violation of third party copyright, trademark rights and/or other intellectual property rights as a result of data or other information which has been made available online by the Customer or through weclapp at the Customer‘s instance, weclapp is entitled to demand that the Customer covers possible compensation payments as well as the costs of adequate legal defence, provided that weclapp is not to blame for contributory negligence.

12.6 The aforementioned obligations do not exist if the Customer is not responsible for the breach in question.

12.7 If there is reasonable suspicion that the Customer is in breach of an essential contractual obligation (e.g. in breach of paragraph 7.4, 7.5, 8.7 and/or paragraph 12.1) or if such breach already exists, weclapp has the right to block utilisation of the software immediately, in part or entirely, without prior notice until the Customer submits proof that he uses the software lawfully.

12.8 The right to refuse access also exists if blocking becomes necessary for reasons of security.

12.9 weclapp is furthermore entitled to block the account if the Customer is in arrears with more than a small amount. A net amount of at least EUR 125 is seen as ‘more than a small amount’. The account is blocked 24 hours after the Customer has been notified of the impending denial of access. Access is restored as soon as all outstanding payments are received.

12.10 weclapp has the right to close Customer accounts with harmful content. The Customer is notified in advance if possible.

12.11 If an account is blocked the Customer is nevertheless obliged to continue paying his fees as agreed, unless blocking was the result of a fault on weclapp part.

 

13. Securing of  Customer data

13.1 The Customer undertakes to back up his data before entering them into the software and to check that the data is properly secured.

13.2 Data entered by customers is secured by weclapp at regular intervals. Backups save the prevailing data volume. In the event of data loss, the data saved in the most recent backup can be restored.

 

14. Confidentiality

14.1 weclapp and the Customer as well as their employees and other vicarious agents undertake to treat as confidential any information gained as a result of the contractual relationship, or information still to be gained, which is labelled as confidential or has to be regarded as confidential under the circumstances. The fact that a business relationship exists between the parties to the contract is not confidential information.

14.2 After expiry of the contract the obligation to maintain confidentiality remains.

14.3 The obligation to maintain confidentiality does not apply to such information which

– The recipient verifiably knew already or had access to before notification by the other party

– The recipient, after notification by the other party, verifiably receives in a rightful manner from third parties who are under no obligation to maintain confidentiality

– As a result of publication or other reasons were public property of the professional world or became public property after being made known to the recipient.

14.4 Without prejudice to the aforementioned provisions each party to the contract is entitled to comply with legal obligations to give information also with respect to information obtained as a result of this contract.

 

15. Data protection and telecommunications secrecy

15.1 weclapp and the Customer undertake to adhere to respective data privacy provisions and to maintain telecommunications secrecy.

15.2 The Customer is solely responsible for the obtaining of any required approval declarations of his contract partners. If the Customer captures personal data, processes or uses them, either on his own or through weclapp, he undertakes to adhere to data privacy regulations and in the event of a violation exempts weclapp from all claims by third parties.

 

16. Support services

16.1 weclapp provides customer support (standard) by email during regular work days and office hours free of charge. Questions are answered usually within two working days.

16.2 The Customer may order further support services.

 

17. Export controls

17.1 If import or export regulations (e.g. US export controls) apply to the use of the software by the Customer, the Customer is obligated to observe them and to obtain all necessary permits or licenses on his own responsibility.

17.2 The Customer will exempt weclapp from any liability based on his own violation of import or export regulations and he will support weclapp’s legal defence as best he can.

 

18. Applicable law, place of performance, legal venue, contract languages

18.1 All legal relationships between the parties to the contract are subject to the laws of the Federal Republic of Germany. Provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.

18.2 The place of performance is the domicile of weclapp.

18.3 The legal venue for all disputes and possible action as a result of or in connection with this contract, including its validity, is Marburg (Germany), even if the Customer does not have a permanent address in the Federal Republic of Germany. A possible exclusive legal venue remains unaffected.

18.4 The contract languages are German and English.

 

19. Reference

weclapp may name the Customer as a ‘reference Customer’ to third parties. weclapp is entitled to use the Customer’s name and logo on its own internet pages for reference purposes. The Customer has the right to revoke his consent at any time.

 

20. Final provisions

20.1 Supplementary oral agreements do not exist.

20.2 Should individual provisions be invalid or void, the validity of the remaining provisions shall not be affected.

20.3 Changes and/or additions to the contract have to be made in text form. This also applies if the text form requirement is to be changed.

20.4 Subject to paragraph 5.5 the parties to the contract may transfer rights and obligations to a third party only after written consent has been obtained from the other party. Such consent shall not be refused unreasonably.

20.5 Working days are Monday to Friday, except public holidays.

 

weclapp GmbH

35039 Marburg, Germany

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