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General Terms and Conditions for the Use of Software Services

1.

General

The software services (“Software Services”) offered by Open as App GmbH (“OaA”) as standard software by way of subscription include a cloud-based instant app creator enabling the Customer to create its own apps from calculations, lists and forms or certain other Customer content (“Customer Content”). The Customer can share these apps with third parties (e.g. in a team, with its own customers or partners) and use them during the term of the subscription. The Software Services can be used via the OaA website www.openasapp.com as a web application and corresponding mobile applications. All data is processed and stored by OAA on a Microsoft cloud infrastructure exclusively in Europe. The functionalities of the Software Services are described in the product description available under Help Center.

2.

Scope

The use of the Software Services is permitted exclusively in accordance with these General Terms and Conditions for the Use of Software Services (“Agreement”). By commencing use of the Software Service, the Customer accepts the validity of this Agreement in its latest version. The terms of this Agreement shall apply to all upgrades, updates, changes and updates of the Software Services (“Releases”) as well as to all services and information available through the use of the Software Services, unless separate provisions are made for these, which shall then take precedence. The relationship between OaA and the Customer shall be governed exclusively by this Agreement; any terms and conditions of the Customer that conflict with or deviate from this Agreement or from statutory provisions shall not apply, even if OaA has not separately objected to them.

OaA may amend this Agreement from time to time. OaA shall notify the Customer of the amended Agreement, highlighting the changes and setting a reasonable deadline for objection. If the Customer does not object to the changes within this period and continues to use the Software Service after this time, this shall be deemed as acceptance of the amended Agreement. OaA shall draw the Customer’s attention to this consequence together with the notification of the amended Agreement. In the event of a timely objection by the Customer to the amended Agreement, OaA may terminate the Customer’s right to use the Software Service.

3.

Provision of Software Services; Support

This Agreement comes into effect upon the installation of a corresponding app, the first use of the Software Services or upon completion of registration for the Software Services, whichever occurs first.

OaA shall provide the Customer with the latest software version (“Release”) of the Software Services operated by OaA on the infrastructure of a cloud service provider.

During the term, OaA shall ensure the maintenance and security of the Software Services, develop them further at its own discretion and provide the Customer with corresponding new versions of the Software Services.

Depending on the purchased license model, OaA provides different kinds of support for the Software Services. Details can be found in the feature overview of the selected license model.

4.

Registration, Password

Use of the Software Services is only permitted after prior registration. The Customer must provide certain information (contact details, company name if applicable, etc.) (“Registration Data”) and set a password. This creates an account for the Customer.

There is no claim of the Customer to conclude an Agreement in order to use the Software Services. OaA may reject any registration request or any attempt at use at any time without giving reasons. OaA’s contractual performance obligations in the case of agreed fee-based use remain unaffected.

If the Software Services are used by companies or other legal entities, the respective company or legal entity is represented by the acting person at the Customer’s premises and must accept responsibility for its actions and knowledge.

The Customer is obliged to provide correct, current, and complete Registration Data and to always keep the Registration Data current and complete.

The Customer is obliged to always keep its password secret and safe and to take all other reasonable measures within his area of responsibility to prevent unauthorized access to his user account.

Instructions issued using the Customer’s Registration Data in the context of the use of the Software Services are deemed as instructions of the Customer. The Customer is responsible for all activities conducted by using his Registration Data.

The Customer must notify OaA immediately if it becomes aware of any unauthorized use of its Registration Data or if it suspects such use.

5.

Order Process

After registering, the Customer can order the respective Software Services using the electronic ordering function provided by OaA. The order process follows three steps: In the first step, the Customer selects the respective license model and the contract term (monthly or annual). In the second step, the Customer’s data is confirmed, amended if necessary and the payment method selected. In the third step, the Customer can carry out a final check of the order and send it to OaA with binding effect by clicking the order button. This constitutes a binding offer. The Customer then receives an e-mail confirmation of receipt and acceptance of the order. The Agreement is concluded upon receipt of this e-mail.

An order can also be placed outside the electronic ordering function offered by OaA by submitting the necessary details in a written form order followed by a written order confirmation from OaA to the Customer.

6.

License Models

6.1.

Test License

For internal test purposes, the Customer may use the full scope of features of the Software Services for a test period of 30 calendar days after registration free of charge. The same applies if the Customer exceeds the features of the ordered license model.

For the duration of the test period, OaA shall grant the Customer rights of use in accordance with Section 7. OaA is not responsible for defects during the test period. Liability for damages is excluded.

At the end of the test period, the test license ceases automatically without the need for termination. The same applies to the right to use the apps created with the Software Services. If the Customer decides to purchase a subsequent license, the scope of features is subject to the selected license model. After 6 months following the end of the test period, the Customer’s Registration Data and the data of the created apps will be permanently deleted. Until the deletion or the purchase of a subsequent license, the Customer can continue to create apps as drafts. Such draft apps can neither be published nor used.

6.2.

Non-profit License

Upon request, a non-profit license can be granted to non-profit organizations or educational institutions. The non-profit license entitles to use the Software Services at reduced conditions. The functional scope of the non-profit license is based on the feature overview (Annex 1).

A non-profit license can only be granted after registration and submission of the necessary and suitable evidence. The granting of non-profit licenses is subject to the approval of OaA. The granting of approval is at the sole discretion of OaA.

Non-profit licenses may not be transferred, leased, or resold to other organizations or individuals, even if they would also be entitled to a non-profit license.

6.3.

Commercial Licenses

OaA has defined various plans for the commercial use of the Software Services, which are described in more detail in the pricing model https://www.openasapp.com/pricing . The functional scope of the plans can be found in the feature overview (Annex 1). The plans differ in their features, the number of users and/or devices accessing Public Apps and Private Apps included in the plan as well as in the license fee. Depending on the selected plan and acquired additional user licenses (if any), the Customer may grant access to the apps created with the Software Services to its users (e.g. employees or business partners). Additional users shall exclusively comprise natural persons who have registered on the OaA website, stating their first name, surname and e-mail address.

6.3.1.

Public Apps

The number of possible users and/or devices on Public Apps depends on the ordered plan. Public Apps may be freely distributed via a link or integrated into a website. Users do not need to register for the use of Public Apps. Public Apps may not exclude users from accessing the app and the associated data, e.g. through upstream authorization, in-app login, or authorizations on the underlying data sources.

6.3.2.

Private Apps

The number of users to Private Apps depends on the ordered plan and acquired additional user licenses (if any). Private apps are only available by invitation. Customer may restrict access. Invited users must therefore register or log in to OaA.

7.

Rights of Use

7.1.

Scope

Against payment of the respective license fee, OaA shall grant the Customer a simple, non-exclusive, non-transferable right, limited to the term of this Agreement, to use the Software Services for the purposes for which they are made available by OaA in accordance with this Agreement. The scope of use is limited to the functional scope of the respective license model.

7.2.

Restrictions of Use

In particular, the Customer may not (i) copy the Software Services and the components used for their provision, except for archiving purposes or if this is absolutely necessary for authorized use; (ii) modify, adapt or create derivative works thereof; (iii) publish, disclose, sell, rent, lease, lend, distribute, make available online, sublicense or make available to a third party without the prior written consent of OaA. Customer may not remove or alter copyright notices or other references to intellectual property. Access to source codes is not included in the license. Customer may not decompile, disassemble or reverse engineer components of the Software Services, unless otherwise stipulated by mandatory law or this Agreement.

7.3.

Open Source Licenses

Parts of the Software Services or the components used for them may be subject to open source licenses, which then take precedence over the above provisions of sections 7.1 and 7.2 . In such cases, OaA shall make the object code or the source code available to the Customer, insofar as the provision of the object code or the source code is stipulated in the terms of use of the relevant open source license. Insofar as this is necessary for the lawful use of the Software Services, the applicable open source license conditions are listed in the portal for registered Customers. By using the Software Services, the Customer accepts these open source license conditions. In the event of contradictions, they shall take precedence over this Agreement.

8.

License Audit and Overuse

OaA is entitled to audit the contractually agreed use of the Software Services at any time by means of suitable measures. If OaA discovers use that exceeds the acquired features, the Customer must refund the determined license fee from the beginning of the overuse. The plan must be adjusted accordingly for future use if the corresponding feature is further to be used.

9.

Remuneration

The applicable remuneration for the respective license model at the time of the order confirmation https://www.openasapp.com/pricing shall apply. The remuneration is subject to the applicable statutory value added tax.

OaA may alter the license fees for the Software Services by unilateral declaration with a notice period of at least one month and shall inform the Customer in writing. If the Customer has ordered the Software Services with an annual termination option, an alteration to the license fee is only possible with a notice period of 3 months and, in the event of a price increase, the Customer may terminate the Agreement with effect from the date on which the price increase comes into effect. The Customer shall exercise the right of termination in writing within one month after receiving the notification of the price increase. If the Customer does not exercise his right of termination, the price alteration shall automatically take effect on the announced date.

Invoices are issued in advance for the agreed term (month/year). Invoices are immediately due upon receipt and shall be subject to payment within 14 days. After expiration of the payment period, the user is automatically in default.

10.

Obligations of the Customer

10.1.

Customer Content

The Customer may convert Customer Content into an app created with the Software Services and may make this app, including the Customer Content, available to third parties. The Customer shall be deemes as service provider of the apps created with the Software Services. The Customer shall ensure compliance with any and all statutory provisions applicable to service providers.

10.2.

Warranties

Insofar as the Customer provides OaA with Customer Content when using the Software Services (e.g. uploads it to a data storage provided by OaA), the Customer shall ensure in particular that (i) the Customer has the rights required for OaA to provide the Software Services and has obtained all necessary consents; (ii) the use of the Customer Content required for OaA to provide the Software Services does not violate any copyrights, trademark rights, patent rights, trade secrets or other rights of third parties (e.g. data protection law or other personal rights); (iii) the transmission of the Customer Content and its contractual use by OaA to provide the Software Services does not violate any other laws or rights (e.g. data protection law or other personal rights); and (iv) the transmission of the Customer Content and its contractual use by OaA to provide the Software Services does not violate any other laws or rights (v) the transmission of the Customer Content and its contractual use by OaA for the provision of the Software Services does not violate any laws or rights, and the Customer Content does not contain any viruses, Trojans or other malware. In particular, the Customer Content shall not contain any pornographic, violence-glorifying or inciting content. The Customer shall inform OaA immediately as soon as there are any indications of a breach of the warranties described above.

10.3.

Responsibility of the Customer

The Customer shall use appropriate and up-to-date security devices (firewall, virus scanner, etc.) for its own protection and to protect the Software Services.

The Customer is responsible for the Customer content and other data processed with the Software Services. OaA is not obliged to check Customer Content for legal violations. However, OaA is entitled to refuse to process the Customer Content through the Software Services or to delete transmitted Customer Content if, at OaA’s sole discretion, there are indications that its use violates this Agreement or could lead to legal violations.

10.4.

Non-compliance with Obligations

OaA may block the Customer’s access to the Software Services at any time if the Customer breaches its obligations under this Agreement (in particular but not limited to the warranties in Section10.2 ). For indemnification see section 13

11.

Material defects

11.1.

Responsibility of OaA

OaA makes no representations or warranties that the Software Service (i) will be compatible with User’s hardware or software; (ii) will be available at all times or at specific times without limitation; (iii) will meet User’s requirements or any other specific performance or functional requirements not agreed to in this Agreement; (iv) will not cause loss of data; (v) will be free of viruses, malware, interference or other components that may compromise security.

11.2.

Subsequent performance

If the Customer discovers a defect in the Software Service, he shall inform OaA immediately and describe the defect and the circumstances surrounding its occurrence in as much detail as possible. OaA shall endeavor to remedy the defect within a reasonable period of time. The obligation to remedy defects is limited to the Software Service and does not cover the apps created using the Software Service. If necessary, the Customer must recreate the desired app with the Software Service after OaA has rectified the defect.

11.3.

Rights of the Customer

Only after two failed attempts at rectification can the Customer (in the case of paid use) demand an appropriate reduction in the remuneration for the respective calculation period or terminate the contract for good cause if it is no longer reasonable to expect it to continue. The limitations in Section12.2 shall apply to the Customer’s claims for damages.

12.

Liability

12.1.

Principle

OaA shall be liable to the Customer without limitation for personal injury, intent, gross negligence or fraudulent misrepresentation as well as other cases of mandatory liability that cannot be excluded by statutory law.

12.2.

Limitation of Liability

In the event of a slightly negligent breach of material contractual obligations, OaA shall only be liable up to the amount of the foreseeable damage typical of the contract. A material breach of contract exists if the breach of duty relates to a duty on the fulfillment of which the Customer has relied on and was entitled to rely on.

13.

Exemption

The Customer shall indemnify OaA, its officers, employees and subcontractors against all claims and demands of third parties and against all losses, damages, costs and expenses, including reasonable legal defense costs, resulting from (i) any use of the Software Service not in accordance with this Agreement or (ii) any violation of laws or rights of third parties by Customer Content, the Customer or any person whom the Customer permits to use the Software Service and for which the Customer is responsible.

14.

Term and termination

This Agreement shall enter into force at the time set forth in section 3 and shall apply for the respective term.

Termination is only possible at the end of the respective term. If no notice of termination is given, the term is automatically renewed by the originally ordered period (i.e. one or twelve months). For monthly terms, the notice period is 14 days to the end of the month; for annual terms, the notice period is 30 days to the end of the contractual year.

The right to terminate this Agreement for cause remains unaffected in all cases. A cause for such a termination is in particular given if

  • the Customer repeatedly breaches material provisions of this Agreement and does not remedy such a breach within a reasonable period of time.
  • the Customer is more than two (2) months in default with payments. The same shall apply if the amount in default corresponds to the amount that would be due for payment within two (2) months.

After termination of this Agreement, the Customer must permanently delete all copies of components of the Software Services that are still stored on devices controlled by the Customer. It cannot be guaranteed that apps created with the Software Services will continue to function after the end of the Agreement.

OaA reserves the right to modify, suspend or discontinue the Software Services in whole or in part at any time without notice. In the event of a permanent discontinuation or significant restriction of the Software Services, any remuneration paid in advance for the relevant period of use will be refunded (pro rata if applicable).

15.

Confidentiality and Data Protection

The Customer undertakes to keep confidential for an unlimited period of time all information that becomes known to him in connection with this Agreement and the services provided under it, which is designated as confidential or is recognizable as confidential or as business or trade secrets due to other circumstances, and to use it only for the purposes of this Agreement.

OaA shall store and process personal data transmitted by the Customer exclusively for the provision of the Software Services and in compliance with the applicable data protection laws. The Customer must ensure that any transfer of personal data to OaA (in particular as part of the Customer Content) is conducted in accordance with the applicable data protection laws. If necessary, OaA is prepared to conclude a data processing Agreement with the Customer in accordance with Art. 28 GDPR.

OaA expressly points out that Customer content is stored using cloud services provided by subcontractors of OaA. Customer content is not stored at locations outside the EU and the EEA.

Insofar as OaA collects and processes personal data in the context of the Customer’s use of the Software Services, this is conducted in accordance with the privacy policy, which is available at https://openasapp.com/data-protection-statement/ .

16.

Miscellaneous

Should any provision of this Agreement prove to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected. In place of the invalid provision, the valid and enforceable provision that comes closest to the legal and economic intentions of the parties shall be deemed to have been agreed with retroactive effect.

Additional agreements must be made in writing.

Insofar as the written form is required for declarations in this Agreement, a declaration in text form is sufficient. This does not apply to notices of termination pursuant to section11 , for which the statutory written form pursuant to Section 126 (1) of the German Civil Act applies.

German law shall apply to the exclusion of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods. If the user is a merchant within the meaning of the German Commercial Code, the place of jurisdiction shall be the registered office of OaA.