Terms of Service

Courtesy translation. These Terms apply exclusively to businesses (Unternehmer, sec. 14 German Civil Code). The German version is the legally binding one; this English translation is provided for convenience only.

Sec. 1 Scope

(1) These Terms of Service (“Terms”) govern all agreements concerning the use of the software-as-a-service application “HeinzelApps” (the “Service”) between wemogy GmbH, Graf-Bernadotte-Straße 23, 47906 Kempen, Germany (“Provider”) and its customers.

(2) The Service is offered exclusively to businesses within the meaning of sec. 14 German Civil Code (BGB), legal entities under public law and special funds under public law (“Customer”). Contracts with consumers are excluded.

(3) Deviating, conflicting or supplementary terms of the Customer only become part of the agreement if the Provider has expressly agreed to them in text form.

Sec. 2 Subject of the Agreement

(1) HeinzelApps is a multi-tenant application with which the Customer can describe, generate, publish and change applications of its own. The Provider operates the applications generated in this way and makes them available to the Customer and the users it authorises over the internet. The current scope of features follows from the service description on the Provider's website.

(2) The Provider makes the Service available for use over the internet at the handover point (the outbound interface of the data centre used by the Provider). The Customer's internet connectivity and the hardware and software required for it are not part of the agreement.

(3) Features labelled “Beta” or “Preview” are provided for evaluation, may be changed or discontinued at any time and do not create any entitlement to their continued availability. The liability provisions in Sec. 10 remain unaffected.

Sec. 3 Conclusion of the Agreement

(1) The agreement is concluded upon the Customer's registration and the activation of the Customer account by the Provider, at the latest upon first provision of the Service, or by both parties signing a separate order form.

(2) By registering, the Customer confirms that it is acting as a business within the meaning of sec. 14 BGB. The Provider may request suitable evidence.

Sec. 4 Availability; Maintenance; Support

(1) The Provider owes an availability of the Service of 98.5% on a monthly average at the handover point. Scheduled maintenance windows announced with reasonable notice — as a rule at least 48 hours — in text form or within the Service, and placed in low-usage periods where possible, are excluded from the calculation up to a maximum of five hours per calendar month. The same applies to downtime caused by circumstances outside the Provider's control (e.g. force majeure, failure of public networks).

(2) The Provider offers support for incident reports and usage questions by e-mail during business hours (Mon–Fri 9:00–17:00 CET/CEST, excluding public holidays in North Rhine-Westphalia). Response or recovery times are only owed where separately agreed.

Sec. 5 Rights of Use

(1) For the term of the agreement, the Customer receives the non-exclusive, non-transferable and non-sublicensable right to use the Service for its own business purposes within the agreed scope. This includes the right to grant the users it authorises — in particular its staff — access to the applications generated with the Service.

(2) The Customer is not entitled to make the Service available to third parties for independent use outside paragraph 1, whether for a fee or free of charge, to reverse engineer it (subject to secs. 69d, 69e German Copyright Act) or to remove proprietary notices.

(3) All rights in content stored in the Service by the Customer or its users (“Customer Data”) remain with the Customer. The Customer grants the Provider the non-exclusive rights of use required to perform the agreement (in particular storage, reproduction for backup purposes, display).

Sec. 6 Customer Obligations

(1) The Customer shall

• keep credentials confidential, protect them against unauthorised access and notify the Provider without undue delay if misuse is suspected;
• not misuse the Service, in particular not store unlawful content, not introduce malware and not take actions impairing the availability of the Service for other customers;
• ensure that the users it authorises comply with the Customer's own terms of use; vis-à-vis the Provider, the conduct of those users is attributed to the Customer;
• independently ensure the information duties and legal bases required vis-à-vis its users for operating the applications generated with the Service (in particular under the GDPR);
• regularly back up its Customer Data using the export functions provided.

(2) If the Customer culpably breaches material obligations under paragraph 1 and fails to remedy the breach despite a warning with a reasonable deadline, the Provider may temporarily suspend access to the extent necessary to avert specific risks to the Service, other customers or third parties. In case of serious risks, suspension may occur without prior warning; the Customer will be informed without undue delay. The suspension will be lifted as soon as its reason no longer exists.

(3) The Customer shall indemnify the Provider against third-party claims based on unlawful use of the Service by the Customer or its users, to the extent the Customer is responsible for such use. This includes the necessary costs of a reasonable legal defence. The Provider will inform the Customer without undue delay of any claims asserted and, where legally permissible, leave the defence to the Customer.

Sec. 7 Data Protection; Data Processing Agreement

(1) To the extent the Provider processes personal data on behalf of the Customer when providing the Service (in particular data of the Customer's users), the parties enter into the Provider's data processing agreement (“DPA”), which forms part of this agreement. In case of conflicts between these Terms and the DPA, the DPA prevails with respect to the processing of personal data.

(2) Information on the processing of personal data for which the Provider is itself the controller is provided in the Provider's privacy policy.

Sec. 8 Fees; Price Changes

(1) Fees follow from the Provider's price list valid at the time of contract conclusion or the agreed order form. Where the Provider offers the Service or individual plans free of charge, there is no entitlement to the continued existence of the free offering; Sec. 12 para. 2 (termination rights) and Sec. 9 (changes) remain unaffected.

(2) All prices are exclusive of applicable statutory VAT. Unless agreed otherwise, fees are due monthly in advance.

(3) The Provider may adjust prices with effect for the future to reflect changes in overall costs (in particular infrastructure, licence and personnel costs). Price adjustments will be announced to the Customer in text form at least six weeks before taking effect. In case of a price increase, the Customer may terminate the agreement extraordinarily with effect from the date the increase takes effect; the Provider will point this out in the announcement.

Sec. 9 Changes to the Service and these Terms

(1) The Provider may further develop and change the Service to the extent the change is reasonable for the Customer taking into account the interests of both parties, in particular where it is required for technical or legal reasons (e.g. security, changes in law) or does not materially reduce the scope of features.

(2) The Provider may amend these Terms with effect for the future where there is a valid reason (e.g. changes in legislation or case law, further development of the Service) and the amendment does not materially shift the contractual balance to the Customer's detriment. Amendments will be announced to the Customer in text form at least six weeks before taking effect, with the changes highlighted. If the Customer does not object in text form before the amendments take effect, they are deemed approved; the Provider will separately point out this consequence and the right to object in the announcement. If the Customer objects, the agreement continues under the previous terms; in that case, either party may terminate the agreement ordinarily pursuant to Sec. 12.

Sec. 10 Liability

(1) The Provider is liable without limitation for intent and gross negligence, for damage resulting from injury to life, body or health, under the German Product Liability Act, and within the scope of a guarantee assumed by the Provider or in case of fraudulently concealed defects.

(2) In case of slightly negligent breach of an obligation whose fulfilment is essential for the proper performance of the agreement and on whose observance the Customer may regularly rely (cardinal obligation), the Provider's liability is limited to the typical damage foreseeable at the time of contract conclusion. Otherwise, liability for slight negligence is excluded.

(3) The Provider's strict liability for defects already existing at the time of contract conclusion under sec. 536a para. 1 alt. 1 BGB is excluded. Liability under paragraphs 1 and 2 remains unaffected.

(4) In case of loss of data, the Provider is liable, subject to paragraphs 1 to 3, only for the effort that would have been required to restore the data if the Customer had performed proper and regular backups.

(5) The foregoing provisions also apply in favour of the Provider's legal representatives, employees and vicarious agents.

Sec. 11 Confidentiality

(1) Each party shall treat all information of the other party that is marked as confidential or is recognisably confidential as confidential, use it only for the performance of the agreement and make it accessible only to employees and contractors bound to a comparable level of confidentiality.

(2) This obligation does not apply to information that is or becomes publicly known without a breach of duty, was lawfully obtained from third parties, was demonstrably developed independently, or must be disclosed by law or official order; in the latter case, the other party will be informed in advance where legally permissible.

(3) The obligations under this Sec. 11 continue for three years after the end of the agreement.

Sec. 12 Term; Termination; Data Export

(1) The agreement is concluded for an indefinite period unless a fixed term is agreed in the order form. Either party may terminate it in text form with one month's notice to the end of a calendar month.

(2) The right of both parties to extraordinary termination for good cause remains unaffected. Good cause for the Provider exists in particular if the Customer, despite a reminder, is in default with a not insignificant part of the fees or persistently breaches Sec. 6.

(3) The Customer may retrieve its Customer Data in a common, machine-readable format via the provided export functions during the term and for 30 days after the end of the agreement. After this period, the Provider deletes the Customer Data unless statutory retention obligations require otherwise; details are set out in the DPA.

Sec. 13 Reference

The Provider may name the Customer, including its name and logo, as a reference customer on its website and in sales material if the Customer has consented. Consent may be revoked at any time with effect for the future.

Sec. 14 Final Provisions

(1) The laws of the Federal Republic of Germany apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) The exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement is the registered seat of the Provider, provided the Customer is a merchant, a legal entity under public law or a special fund under public law. The Provider is also entitled to bring proceedings at the Customer's seat.

(3) Unless provided otherwise, declarations under this agreement require text form (sec. 126b BGB). This also applies to any amendment of this text form requirement. Individually negotiated agreements (sec. 305b BGB) take precedence.

(4) Should individual provisions of this agreement be or become invalid, the validity of the remaining provisions remains unaffected.

(5) The contract language is German. In case of discrepancies between the German version and any translated version of these Terms, the German version prevails.

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