Terms of Use

03. 01. 2023

§ 1

Applicability

  1. These Terms and Conditions constitute an integral part of all websites, content, and products offered on Emsig.app (hereinafter collectively referred to as "Software") and are exclusively valid. The Software is owned and operated by Hans Goedecke (sole proprietorship under German law), hereinafter referred to as "Emsig," "we," or "us". Terms and conditions which conflict with or deviate from those of Emsig are not recognised by us unless we have explicitly agreed to their applicability.
  2. These Terms and Conditions only apply to business customers within the meaning of § 14 BGB.
  3. By registering for the software, the Terms and Conditions are brought to the user's attention and the user shall confirm the applicability of the Terms and Conditions. Thus, they apply comprehensively to the use of the contractual standard software.
  4. The use of the software is subject to the user's acceptance without modification of all the terms and conditions contained herein, as well as all other operational rules, policies (including, but not limited to, the privacy policy), and procedures that may be published from time to time on this website by Emsig (hereinafter collectively referred to as the contract).

§ 2

Subject of the Contract

  1. These terms of contract govern the user's temporary use of the contractual standard software in the version which is current at the time of the conclusion of the contract.
  2. The software is provided by us as SaaS or as a cloud solution. For the duration of the contract, the user may use the software, which is stored on our servers or a third party authorised by us and which can be executed if there is an internet connection.
  3. The license for the software may only be acquired by business customers within the meaning of § 14 BGB.

§ 3

Conclusion of the Contract, Term

  1. The contract is formed through the user's registration, which is done with us via email. The user receives an offer, equipped with clearly visible links to our Terms of Use (AGB) and Privacy Policy. Upon confirming this offer, the user is registered with the software and may subsequently receive the acceptance of their contract offer from us via email, with the Terms of Use attached in written form.
  2. As part of the contract, the user will also enter into a data-processing contract with us.
  3. The contract is initially concluded for a specific period (one month or one year), as indicated in the offer accepted by the user. After this period, the contract will be automatically renewed on an indefinite basis at the end of each term unless terminated by either party prior to renewal.
  4. The user is not entitled to adequate, effective and accessible technological means to correct entry errors in the order, the granting of the statutory information for electronic business transactions within the meaning of § 312i para. 1 no. 2 BGB, nor an immediate confirmation of the receipt of the order. If such means or information are/is provided, this happens ex gratia.

§ 4

Payment

  1. The compensation is outlined in the offer accepted by the user and depends on the respective subscription plan, contract duration, and the storage usage calculated by us. It is due at the time of contract initiation and always before each automatic renewal of the contract at the end of the term. The fee consists of the base amount of the subscription plan and a usage-dependent fee for data storage.
  2. These and all of our other prices are indicated in Euro and are net prices, to which VAT will be added, if applicable.
  3. Payment of the recurring fees is made by the agreed payment method.
  4. As soon as the user is in default with the payment, the user has to pay default interest in accordance with § 288 BGB as well as the general compensation governed therein.
  5. If the user is in default with the payment, we may refuse the services by temporarily blocking the user's access to the software. In that case, the user still has to pay the agreed fees despite access being blocked. If the statutory requirements of § 543 BGB are met, we may also immediately terminate the contract for default of payment.
  6. We may refuse services for any claims from the business relationship with the user.

§ 5

Availability of the Software, Force Majeure

  1. We have to permanently provide the software to the user at the router exit of the data centre, where the server with the software is located (“transfer point“), for the user to use. Our services include the software in its current version, the computing capacity required for its use and the necessary storage capacity on a server accessible through the internet plus dial-up logistics for the user. We do not owe the data link between the user's IT systems and the transfer point as defined above.
  2. We may temporarily limit or block altogether the use of the page, in particular for maintenance and improvement as well as for other reasons required by our or the software's operation. If possible, we will consider the reasonable interests of the user (for example in determining maintenance times). In the case of immediate malfunctions, we may also address malfunctions during regular business hours.
  3. The user shall report lack of functionability or malfunctions to us as soon and as detailed as possible.
  4. If we are unable to provide the services due to force majeure, our obligation to provide the services will rest for as long as the impediment to the performance lasts.
  5. If the impediment to the performance lasts for more than one week, the user may terminate the contract immediately if the performance of the contract won't be of further interest to the user due to the hindrance.

§ 6

Provision of Services, Support

  1. The user can receive assistance with the operation of the software from us (support). This is provided in writing via email. However, we are not obligated to respond if, for any reason, it is not possible for us to do so at that moment.
  2. The user is only entitled to support services currently offered by us.
  3. We may make the provision of support dependant on the customer's authentication.
  4. If we offer electronic support, the user grants us access to all the user's system components for support purposes at all times. If a remote access connection will be required, we will provide this and the associated efforts free of charge. The user has no right to claim own expenses connected with the remote access connection and the provision of support, like connection charges, costs for administrators, compensation for working hours or similar, from us.

§ 7

Updates

  1. We will keep developing the software and its services further. Improvements and updates of the standard software in line with the current features and in compliance with changed legal and technological requirements will be provided to the user automatically and voluntarily as part of the contract.
  2. The user is not entitled to certain improvements (unless the software is or becomes defective) or a certain timeline of measures.
  3. In particular, the user is not entitled to further development of additional features; we may make their use dependant on amending the contract, in particular amending the agreed fees.

§ 8

Illegal Use

  1. The user may not use the cloud software excessively or in a spamming manner. The user must take all precautions to rule out illegal, spamming or otherwise excessive use.
  2. The user is not allowed to use or infect the software or the server, on which the software is run, with malware (viruses, worms or Trojan horses etc.) or to permit such type of use negligently.
  3. Unless explicitly agreed, the user is not allowed to pass on, sublease, sublicense or otherwise resell the software.

§ 9

User's Obligations, Cooperation

  1. The user has to provide full and true information that is required for the contract. The obligation to provide true information relates in particular to the company name, first and last name, full address as well as contact and bank or payment details. If the user provides false information, we may immediately terminate the contract for cause.
  2. The user must keep the information up to date and inform us of any changes without delay.
  3. The user will receive the access data to the software from us. The access data serves the purpose of ruling out that unauthorised people use the hosted software. The access data are to be protected against unauthorised access by third parties and have to be changed from time to time for security purposes. The user may only digitally store the user ID and the passwords in encrypted form.
  4. If the access data are entered incorrectly repeatedly, access may be blocked for the protection of the user. If the blocking is the user's fault, the user is liable for the expenses incurred by granting renewed access and for our expenses, based on the contractually agreed or locally typical and reasonable fees.
  5. The user has to inform us without delay as soon as the user gains knowledge of third parties having access to the user's access data or if they have otherwise gained access to the user profile. If the user fails to notify us without delay, the user must compensate us for resulting losses.
  6. We secure the user's data on the server for which we are responsible and also regularly on an external back-up server.
  7. The user may extract these data for back-up purposes at any time, if technologically feasible, and has to do so at the end of each working day.

§ 10

Warranty

  1. We extend a warranty for the software based on the applicable statutory provisions, unless stated otherwise herein. We only extend a warranty within the framework of the characteristics of the software offered and described by us. We do not extend any warranty for the software complying with the user's interests or operational peculiarities, unless we are at fault for a wrong consultation or otherwise.
  2. Our potential strict liability pursuant to § 536a BGB is waived. We are only liable for initial defects if we knew or should have known of the defect and failed to inform the user accordingly.
  3. The user has no claims for defects if the software is not working properly because the user is not using it under the agreed conditions of use or within a system that has not been agreed upon or otherwise in violation of § 8 of this contract or if the user has negatively altered the software himself or through third parties.
  4. The user has to report potential defects in detail and in a comprehensible way. The user must in particular detail the steps that led to the defect, the way the defect materialises as well as the defect's effects.
  5. If the user reports a defect despite being responsible for the malfunction, we may charge the fees for the support provided based on our consultation fees at the time to the user, in the absence of such set fees they will be based on the typical and reasonable fees for such support services.
  6. The remedy will be carried out during our business hours by improving the software free of charge. We may do this within a reasonable timeframe.
  7. The user has to support us in the course of the remedy, insofar as reasonable.

§ 11

Liability

  1. We are liable without limitation for premeditated or grossly negligent acts as well as culpable injury to life, limb or health or violations of the Product Liability Act or in the case of a promised feature, whatever the legal basis.
  2. We are not liable for slightly negligent breaches of non-essential contractual obligations. In the case of a breach of non-essential contractual obligations, our liability is limited to the typical losses foreseeable at the time of the conclusion of the contract. Essential contractual obligations are such obligations that protect legal positions of the user which are essential to the contract, which the contract has to guarantee to the user according to the content and purpose of the contract, as well as obligations, the performance of which is necessary for the proper performance of the contract to be possible and of which the user could usually rely on them being fulfilled.
  3. Any further liability of us, whatever the legal basis, is excluded. This limitation of liability also extends to our employees as well as to its vicarious agents and subcontractors. These rules do not lead to a reversal of the burden of proof.
  4. User content published on our website is not checked us for being legal, correct and complete, nor does it represent the our opinion. We are not responsible for offers, content, and especially their usage rights.

§ 12

Our Copyright, Licenses

  1. For the term of the contract, we grant the user the non-exclusive, non-transferable and non-sublicensable right to use the contractual software.
  2. Unless permitted by law, the user is not allowed to
    • translate, amend, mix or otherwise change the software; this extends to the documentation, too,
    • to decompile, imitate or reverse engineer the software,
    • to copy the software or the documentation, unless it is necessary for the contractual lease use,
    • to remove to change or to render illegible our trademark, copyright or other intellectual property right signs affixed to the software
  3. The user's data collected, processed and generated by the software will be stored on our servers. The user remains the sole owner of the data. Insofar, we are only a processor of personal data.

§ 13

Data Protection

  1. For the contract, contractual data are collected in accordance with Art. 6 para. 1 (b) GDPR (for example name, address and e-mail address, possibly also services used and all other electronically or for the purpose of storage transmitted data, which are required for the performance of the contract), insofar as they are required for the conclusion, negotiation or amendment of this contract.
  2. The contractual data will only be passed on to third parties insofar as it is necessary to perform the contract (in accordance with Art. 6 para. 1 (b) GDPR), for the overwhelming interest in an effective performance (in accordance with Art. 6 para. 1 (f) GDPR) or if consent has been given (in accordance with Art. 6 para. 1 (a) GDPR) or if there is another statutory permission. The data will not be passed on to a country outside of the EU, unless the EU Commission has determined a similar level of data protection as in the EU, consent has been provided or standard contractual provisions have been agreed with the third-party provider.
  3. Concerned individuals may at any time and free of charge request information about the personal data stored about them. They may at any time request that incorrect data be corrected (also by way of adding information) as well as the limitation of the processing of their data, or even the deletion of their data. This applies in particular if the reason for the data processing no longer exists, if a required consent has been withdrawn and there is no other legal basis, or if the data processing is illegal. The personal data will then be corrected, blocked or deleted without delay and according to statutory requirements. It is always possible to withdraw the consent for the processing of personal data which had been given previously. This may be done without any formal requirements, for example by e-mail. The withdrawal has no effect on the legality of the data processing carried out up to that point. There is a right to request the transfer of the contractual data in machine-readable form. In the case of a suspected violation of rights by the data processing, a complaint may be filed with the competent supervisory authority.
  4. The data will generally only remain stored as long as the purpose of the respective data processing calls for it. Storage beyond that time is possible if it is necessary to pursue legal claims or for legitimate interests or in cases of a statutory obligation to store the data for longer (for example tax-law requirements to maintain records, statute of limitations).
  5. The user allows us to copy the data provided by the user if this is necessary to provide the services under this contract. We may also store the data on a back-up system or in a separate back-up data centre. To deal with malfunctions, we may also change the structure of the data or the data format.

§ 14

Mediation

  1. In the case of disputes arising out of the business relation between us and the user, the parties have to strive for an amicable solution. If no agreement can be reached, they vow to attempt to reconcile their differences in a mediation proceeding before addressing a court of law. This does not exclude the possibility to file for a temporary injunction.
  2. If a party requests mediation from the other party, both parties have to agree on a mediator within eight days. If such an agreement is not reached within due time, upon the request of one of the parties, an attorney – preferably one who offers online mediation - has to be appointed as mediator with binding effect for the parties by the chairperson of the Bar Association of our jurisdiction or one of his/her deputies. This jurisdiction is also the place for the mediation, unless the board of the association will propose an online mediation. The language of the mediation is German, unless all participants agree on a different language.
  3. Addressing a court (or an alternative arbitration procedure, if agreed) is only permitted once the mediation has failed because (a) the parties have unanimously declared the mediation to be over, (b) one party refuses further negotiations after the first mediation session, (c) the mediator has declared the mediation to have failed or (d) no agreement has been reached within 3 months after the beginning of the first mediation session, unless the parties extend this deadline unanimously.
  4. The costs of an unsuccessful mediation are borne by both parties at equal parts in relation to the mediator. Notwithstanding this rule in relation to the mediator, the parties are free to demand reimbursement of these costs and lawyer's fees, if applicable, in a subsequent proceeding; this will be governed by the relevant decision. If the parties reach an agreement, they may also come to an agreement on costs.

§ 15

Jurisdiction, Applicable Law, Severability

  1. The place of performance is at the registered office of Emsig in the district of Limburg-Weilburg (Hesse).
  2. For all current and future claims from the business relationship with a user, who is a business person within the meaning of § 14 BGB, the courts at our registered business address have sole jurisdiction. The same jurisdiction applies if the user has no domestic place of general jurisdiction, if the user moves or changes the business registration out of the country after the conclusion of the contract or if the user's residence or habitual residence is unknown at the time of filing a lawsuit. But we may also sue the user at the user's place of business or at any other competent jurisdiction at any time.
  3. All contractual relations between the parties are governed by German law exclusively.