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Terms of Use

weclapp SE

Cloud Software

Version: 1.8 -DE, Last edited: August 06, 2019

 

 

1. Scope

1.1 The company weclapp SE (“weclapp”) provides its services relating to software use for the end customer (“Customer”) over the internet based on

– the current definitive description of products and services that can be accessed on the website www.weclapp.com and

– the following Terms of Use.

1.2 In case of contradictions between the German language version and other versions of these Terms, only the German version is authoritative.

1.3 Deviating Terms and Conditions of the customer shall not apply even if weclapp does not expressly object to them.

1.4 THE SOFTWARE IS INTENDED FOR ENTREPRENEURS AND MAY ONLY BE USED BY SUCH ENTITIES. IT IS NOT INTENDED FOR CONSUMER USE.

 

2. Establishing a contract and ordering services

2.1 The customer registers on the weclapp website with its data and submits an order to establish a contract by sending this data to weclapp. weclapp promptly confirms the receipt of this offer by email.

2.2 weclapp accepts the customer’s offer by activating the customer account. The contract between weclapp and the customer is established by this declaration of acceptance.

2.3 After activation, the customer can order services (e.g. licenses) for a fee using the customer account. Alternatively, the customer can also order the services by email. For orders that are placed, the customer will receive an order confirmation.

 

3. Object of the Contract

3.1 weclapp offers the use of software over the internet for the duration of the contract. The range of functions for the software is derived from the current valid product description. weclapp provides additional services according to arranged service packages.

3.2 The user documentation is provided in German and/or English. weclapp is entitled to provide user documentation to the customer in electronic form. If this is the case, then provision of the user documentation in paper form is not required.

3.3 weclapp does not owe the service of personalized software adjustment and consulting services unless otherwise agreed.

3.4 In particular, the scope of services provided by weclapp does not include the provision and maintenance of a network connection or the hardware and software required on the customer side. These prerequisites must be secured by the customer at its own cost and risk.

 

4. Rights of use

4.1 The copyrights and all other neighboring rights to the software remain the exclusive property of weclapp or the respective rights holder. If third parties are entitled to the rights, weclapp has corresponding rights of use.

4.2 For the duration of the contract, weclapp grants the customer and users established by the customer a non-exclusive right to access the software over the internet and to use the software in this way. The above right of use also applies for all upgrades and updates.

4.3 The customer is not permitted to transfer its conferred rights to third parties or to allow third parties to use the software in other ways.

4.4 The customer is obliged exclusively to use the software for internal purposes and only to make the software accessible to the established users. Use for the purposes of affiliated companies within the meaning of Section 15 et seq. AktG (German Stock Corporation Law) requires the prior consent of weclapp.

 

5. Performance of services

5.1 The technical implementation of the services is left up to weclapp as long as implementation occurs in line with the stipulations of these conditions.

5.2 weclapp is entitled to make changes to the agreed services if this becomes absolutely necessary due to the statutory and/or regulatory framework conditions. weclapp will inform the client of such changes within an appropriate period of time.

5.3 Otherwise, weclapp may only make changes to the agreed services as long as such changes do not negatively impact the value of the services for the customer and no additional costs are incurred for the customer as a result.

5.4 weclapp is entitled to update and further develop the software. However, the customer has no entitlement to do the same.

5.5 weclapp can engage agents for the performance of services.

 

6. Availability, restrictions of service, security, force majeure

6.1 weclapp will enable the customer to use the software 24 hours a day, 7 days a week. In this regard, weclapp guarantees a minimum availability of 99.5% on average throughout the year.

6.2 Availability is owed up to the point of transfer. The point of transfer is the router output of the data center.

6.3 Delays, faults and/or interruptions of access to the software may result due to unforeseeable and uncontrollable simultaneous access to the server by the customer and other contractual partners of weclapp or other circumstances for which weclapp is not responsible.

6.4 Disruptions may also occur due to technical modifications to weclapp facilities, maintenance work, updates or upgrades that are required for proper operation or improved operation.

6.5 Downtimes that can be attributed to the above cases in Clause 6.3 and 6.4 are excluded from the guaranteed minimum availability.

6.6 The same applies for downtimes that can be attributed to

– cases of force majeure,

– Fault of the customer, its employees or agents,

– Unavoidable impairments to the service due to modifications in the service that were requested by the customer or absolutely necessary due to legal or regulatory requirements.

6.7 weclapp is entitled to carry out regular maintenance work between 1 a.m. and 5 a.m. (Central European Time). This work will not be announced to the customer. weclapp will announce other maintenance work to the customer with appropriate advance notice. During the maintenance work, the software will be unavailable or only available with restrictions.

6.8 The customer is hereby informed that weclapp has no influence over

– the fact that data transmitted over the internet may be intercepted by third parties,

– what transmission speeds are available over the internet,

– which specific cable lines are used for data transmitted by weclapp and whether cable lines, servers and routers operated by other providers are ready for operation at all times.

6.9 weclapp makes use of the options it considers technically and commercially beneficial in order to provide the software as securely as possible. In particular, this includes protection against third-party access through encrypted transmission of submitted data as well as observing recognized safety standards. Nevertheless, the customer acknowledges that full protection against harmful data is not possible.

6.10 weclapp is entitled to modify services that are offered free of charge at any time, and particularly to stop providing such services. No claims are established for the customer as a result.

6.11 In cases of force majeure, weclapp is released from the obligation to provide services for the duration of the effects. Force majeure means any event outside the control of the respective contracting party and any unforeseeable event that fully or partly prevents the respective contracting party from providing services.

6.12 Cases of force majeure particularly include official measures and breakdowns for which weclapp is not responsible.

 

7. Duties of the customer

7.1 The customer will provide weclapp with all information necessary for contract fulfillment.

7.2 When registering, the customer is obliged to enter its data and the data concerning its users properly and in full. In case of changes, the data must be updated without undue delay.

7.3 The customer must also secure the technical prerequisites to allow weclapp to perform its services as ordered.

7.4 The customer is obliged

a.) to follow relevant instructions, in particular to protect password against third-party access,

b.) to use regularly updated anti-virus programs and review data before transmission using state of the art anti-virus software,

c.) to inform weclapp promptly of identifiable breakdowns and support weclapp with fault analysis and elimination of defects by precisely describing the problems that occur, informing weclapp thoroughly, providing necessary data and allowing weclapp sufficient data for elimination of defects,

d.) to use the software according to its intended purpose.

7.5 The customer is also obliged to refrain from

a.) allowing third parties to use the customer’s access without the prior written consent of weclapp, except the customer’s employees insofar as use is required for the customer’s purposes,

b.) disrupting and/or suspending the functional operation and/or integrity of software, technical equipment, programs and/or data belonging to third parties and/or weclapp against their will or negatively impacting security.

7.6 If the customer processes data while using the software and it is necessary to obtain consent from data subjects for processing or if the customer is subject to professional secrecy, the customer is obliged to obtain consent from data subjects to the extent required by law or under contract.

7.7 If the customer fails to comply with the above obligations, the costs and/or expenses incurred as a result may be billed to the customer if the customer has acted culpably.

 

8. Duration of contract and termination

8.1 The contract starts on the date of activation. After activation, the customer has the option of testing the selected software for 30 days free of charge. By clicking on the button “Order Now”, the customer can continue to use the software for a fee. In particular, the customer can order licenses with a minimum term.

8.2 The customer may terminate the contract or licenses with a notice period of 30 days, however no earlier than the expiration of the minimum license term. weclapp is entitled to terminate the contract or licenses with a notice period of 3 months, however no earlier than the expiration of the minimum license term. Unless otherwise agreed, the above notice periods also apply for partial terminations.

8.3 If ordered licenses have a minimum term of 12 or 24 months and they are not terminated in accordance with the above notice periods, such licenses are renewed for another period of 12 months in either case.

8.4 The customer can order licenses or terminate existing licenses at any time. A new minimum term is initiated for new licenses. If licenses are terminated, they end after the expiration of the relevant minimum term.

8.5 The customer can upgrade the software package at any time. An upgrade takes effect immediately, starting a new term for the licenses. Downgrades, on the other hand, cannot be carried out.

8.6 The right to termination for good cause remains unaffected. Good cause is particularly considered present where the other contracting party has grossly infringed its contractual obligations despite a written reminder and/or grace period. Good cause is particularly involved if the customer enters into default with the payment of fees or significant portions of fees and fails to pay the fee within a suitable deadline even after being issued a reminder, or an application is filed to initiate insolvency proceedings concerning the customer’s assets and/or such insolvency proceedings are initiated.

8.7 If weclapp terminates the contractual relationship without notice due to a culpable breach of duty on the part of the customer, the customer is obliged to pay compensation to weclapp for the damages resulting from the termination without notice.

8.8 Termination must be made in writing.

8.9 If the contract is terminated, all licenses end with effect from the expiration of the agreed minimum term. When the licenses expire, the contract ends. If only the licenses are terminated, the contract ends upon expiration of the licenses.

8.10 Access to the customer account is blocked after the end of the contract. Unless otherwise agreed, all customer data will be erased 14 days after the end of the contract, in particular all data concerning users and data submitted by the users. The customer is responsible for storing its own customer data on its local system in good time.

8.11 The customer bears sole responsibility for compliance with statutory retention obligations (e.g. due to regulations of tax law) concerning its own customer data.

 

9. Fee

9.1 The customer will pay the agreed fee in euros for the services provided by weclapp. Fees must be paid in advance. The fee is stated before legal VAT if this is owed.

9.2 Unless otherwise agreed, invoices become due for payment 14 days after the invoice date. For orders by direct debit, the payment amount becomes immediately due for payment by withdrawal. In the event of a returned debit (e.g. due to insufficient account coverage), the customer is obliged to pay the costs incurred for the returned debit.

9.3 The customer agrees that invoices will be sent in electronic form (e.g. as PDF document via email). Invoices are also provided to the customer electronically in the customer account. If the customer requests that invoices be sent by mail, weclapp may charge a fee for this service.

9.4 Fee statements issued by weclapp will be considered as approved by the customer if they are not contested within 60 days after the invoice date indicating the reasons. Objection must be made in writing. To observe the deadline, it is sufficient to send the objection within the deadline. weclapp will inform the customer of these consequences in the invoice.

9.5 Charges and other costs that are incurred when paying the fee must be borne by the customer.

 

10. Guarantee

10.1 weclapp guarantees that the software meets the accepted technical rules and that it does not possess any flaws which destroy or reduce the value or usability for typical use or intended contractual use. An insignificant reduction of the options for use is not relevant.

10.2 The guarantee is excluded for functional impairments in the software that can be attributed to incorrect operation by the customer or improper environmental conditions on the customer side.

10.3 In case of legal defects, the customer will promptly inform weclapp in writing concerning third-party claims and grant weclapp exclusive control over defense against such claims and associated actions, to the extent that this is reasonable for the customer. The customer will grant weclapp the necessary support, information and authorization to carry out the outlined actions.

10.4 The customer agrees not to acknowledge any claims with regard to legal defects without the prior written consent of weclapp.

10.5 Rights based on mandatory statutory provisions remain unaffected by the regulations of this agreement.

 

11. Liability

11.1 weclapp has unlimited liability for all damages caused by weclapp or its agents as a result of willful intent or gross negligence.

11.2 Insofar as weclapp provides telecommunications services for the public, the following regulation applies for financial losses:

For financial losses suffered by the customer which are caused by weclapp or its agents as a result of negligence, weclapp is liable up to an amount of 12,500 euros per claim. weclapp’s liability vis-à-vis all aggrieved parties collectively is limited to 10 million euros for each event that causes damages. If the compensations owed to multiple parties due to the same event exceed the maximum limit, the compensation for damages will be reduced proportionally by the ratio of the total of all damage claims to the maximum limit.

11.3 If damages are merely caused by slight negligence, weclapp is only liable for the breach of significant contractual obligations (cardinal duties), whereby liability is limited to foreseeable damages that are typical for this type of contract. Significant contractual duties are obligations for which the contract was actually established and for which each contracting party is entitled to rely on compliance.

11.4 If data backup is not part of the contractual scope of services offered by weclapp, the customer is responsible for regularly backing up its data. In the event of data loss for which weclapp is responsible, weclapp is exclusively liable for the costs of duplicating the data from the backup copies which the customer must create and for restoring the data that would have been lost even if the data had been properly backed up.

11.5 weclapp has no strict liability to pay compensation for damages pursuant to Section 536 (a) of the German Civil Code (BGB) for defects that exist when the contract is established. Clauses 11.1 to 11.4 remain unaffected.

11.6 Otherwise, weclapp accepts no liability, regardless of the legal reasons.

11.7 Liability under product liability law and based on other mandatory statutory provisions remains unaffected by the regulations of this agreement.

 

12. Compliance with statutory regulations, industrial property rights of third parties, release, blocking

12.1 The customer is obliged to comply with statutory and official requirements for the entry and access of data and information, in particular data protection law, criminal law, copyright law and/or other regulations of industrial property law, and to refrain from violating third-party rights.

12.2 The customer will release weclapp from any liability due to a breach of duty committed by the customer and will support weclapp during the legal defense against claims to the best of its ability.

12.3 This obligation also applies if the breach of duty is committed by a user under the customer’s sphere of responsibility.

12.4 If the legal infringement for which a claim is asserted against weclapp has occurred because data and or other information made accessible online by the customer, or by weclapp on the customer’s behalf, infringes the copyrights, trademark rights and/or other industrial property rights of third parties, then weclapp may demand that the customer pay any damage compensation owed along with the costs for appropriate legal defense unless weclapp is determined to be partly liable.

12.5 The above obligations do not apply if the customer is not responsible for the corresponding breach of duty.

12.6 If there are reasonable grounds to suspect that a cardinal contractual duty has been infringed (e.g. a breach of Clause 7.4, 7.5, 8.6 and/or Clause 12.1) or if such a breach has already been identified, weclapp is entitled to block the customer’s access to the software without notice, in part or in full, until the legality of use has been demonstrated.

12.7 The entitlement to block access also exists if this is necessary for security reasons.

12.8 weclapp is also entitled to block access if the customer enters into default of payment for a significant amount; in this context, default of payment for a net amount of at least 125 euros is considered significant. Access will be blocked 24 hours after the customer has been informed of the block. The block will be lifted after all outstanding claims have been paid.

12.9 weclapp is entitled to block customer accounts containing harmful content. Where possible, the customer will be informed of these circumstances in advance.

12.10 In case access is blocked, the customer remains obliged to continue paying the agreed fee. This does not apply if the block is owing to the fault of weclapp.

 

13. Backup of customer data

13.1 The customer is obliged to back up its data before entering it into the software and to review the proper creation of backups.

13.2 At regular intervals, weclapp creates a backup of customer data that has been entered. This backup stores the current version of the data, making it possible to recover data in the event of a loss according to the last saved version.

 

14. Confidentiality

14.1 weclapp and the customer along with their employees and other agents commit to treating as confidential all information obtained previously or in the future during the contractual relationship that is designated as confidential or that must be considered confidential due to the circumstances. The fact that a business relationship exists between the contractual parties is not confidential information.

14.2 This obligation continues to apply after the termination of the contract.

14.3 The confidentiality obligation does not apply for information

– that was demonstrably known or made available to the recipient by the other contracting party before disclosure;

– that was demonstrably disclosed to the recipient by third parties in a legal manner after disclosure by the other contracting party;

– that was common knowledge among professionals as a result of publications or for another reason, or that became common knowledge after disclosure.

14.4 Notwithstanding the above provisions, each contracting party is entitled to fulfill its statutory obligations to furnish information, including with regard to the information disclosed under this contract.

 

15. Data protection

15.1 weclapp and the customer commit to observing the relevant valid data protection regulations and to maintain telecommunications secrecy.

15.2 The customer is responsible for obtaining the necessary declarations of consent from its own contracting parties. If the customer collects, processes or uses data independently or with the help of weclapp, the customer commits to observing the provisions of data protection law and agrees to release weclapp from all third-party claims in the event of infringement.

 

16. Support services

16.1 weclapp provides the customer with free support (standard) by email during the customer’s regular business hours. Queries are generally answered within two working days.

16.2 The customer can book additional support services.

 

17. Export control

17.1 If import or export regulations apply for the customer’s software use (e.g. US export controls), the customer is obliged to comply with such regulations and to obtain any required authorizations or licenses on its own responsibility.

17.2 The customer will release weclapp from any liability due to a breach of import or export regulations committed by the customer and will support weclapp during the legal defense against claims to the best of its ability.

 

18. Applicable law, place of fulfillment, place of jurisdiction, contract languages

18.1 For all legal relationships between the contracting parties, the laws of the Federal Republic of Germany apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

18.2 The place of fulfillment is Marburg (Germany).

18.3 The place of jurisdiction for all disputes and proceedings resulting from or associated with this contract, including disputes concerning its validity, is Marburg (Germany). Any exclusive place of jurisdiction remains unaffected by this.

18.4 The contract languages are German and English.

 

19. Reference customer

For the duration of the contract, weclapp is entitled to name the customer to third parties as a “reference customer” and to include the customer’s name and logo on its website for the purpose of presenting this reference.

 

20. Final provisions

20.1 Verbal ancillary agreements have not been made.

20.2 If individual provisions should be invalid, the validity of the other provisions will remain unaffected.

20.3 Modifications and/or additions to this contract must be made in text form. This also applies for any changes to the written form requirement.

20.4 Notwithstanding the regulation in Clause 5.5, the contracting parties may only transfer rights and obligations to a third party with the prior written consent of the other contracting party. Consent may not be refused unreasonably.

20.5 Working days are considered all days from Monday to Friday except for public holidays.

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