The service (“service”) offered by the Open as App GmbH (“OaA”) is a cloud-based instant app creator which enables the user to create his own apps for end user devices on the basis of calculations, lists and formulas or specific other contents (“user contents”). The user can share these apps with third parties (e.g. within a team, with customers or partners) and use them during the term of this agreement. The service can be used via OaA's website www.openasapp.net as a web application or via desktop applications and corresponding mobile applications. All data is processed and saved in OaA's cloud, thus making it accessible for various end user devices. The functions of the service are described at https://info.openasapp.net/guide .
Non-commercial use of the service is free of charge. OaA has defined various use categories for commercial use of the service; these are described in greater detail in the price list at https://info.openasapp.net/pricing. Commercial use extending beyond the scope of specific basic functions is only possible for a fee. The user can choose between various use categories which are available for different fees. Depending on the use category selected, the user has the option to make the app created using the service available to a specific number of designated other users (e.g. employees or business partners) or to use additional functions.
Scope of application
The use of this service is permitted exclusively in accordance with these general terms and conditions of use (“agreement”). By beginning use of the service, the user accepts the validity of this agreement in its current version. The conditions of this agreement shall apply to all upgrades, updates, changes and amendments to the service (“updates”) and to all services and information available through use of the service, unless other separate agreements which then take priority are reached for these items. This agreement shall apply exclusively to the relationship between OaA and the user; contradictory conditions of the user or conditions which deviate from this agreement or the statutory provisions shall not apply, even if OaA does not explicitly reject them.
OaA may make changes to this agreement at any time. OaA shall communicate the amended agreement to the user with particular emphasis on the changes, allowing for a reasonable period for objections. If the user does not object to the changes within this period and continues to use the service after its expiration, this shall constitute acceptance of the amended agreement. OaA shall inform the user of this consequence when it provides notification of the amended agreement. In the event that a user submits an objection to the amended agreement within the period for objections, OaA can terminate the user's use of the service.
If the service is used by companies or other legal entities, the company or legal entity shall be represented by the user and assumes responsibility for the user's actions and knowledge.
This agreement between the user and OaA enters into force upon installation of a relevant app, first use of the service or, at the latest, conclusion of registration for the service.
No right to the conclusion of the agreement or use of the service shall exist. OaA can deny any registration request or usage attempt at any time without stating reasons. OaA's contractual duties to perform in the case of agreed, fee-based usage shall remain unaffected.
The use of the service is only possible following registration. The user must provide specific information (contact data, company name if applicable, etc.; “registration data”) and set a password. A user account will then be set up for the user.
The user shall provide correct, up-to-date and complete registration data and consistently keep his registration data current and complete.
The user shall keep his password secret at all times, store it safely and take all appropriate measures in his power to prevent unauthorized access to his account.
OaA considers instructions given in the context of use of the service under the user's registration data to be the user's instructions. The user is responsible for all activities performed using his registration data.
he user shall notify OaA without delay if he becomes aware of unauthorized use of his registration data or suspects such use.
Ordering fee-based services
The use of the service for non-commercial purposes is free of charge. Commercial use of the service extending beyond the scope of specific basic functions is fee-based. The free basic functions and the functions and rights included in each use category are described in the price list at https://info.openasapp.net/pricing. If a commercial user wishes to use functions of the service beyond the scope of its basic functions, the user must order the service in the appropriate use category from OaA. If OaA determines that commercial usage beyond the basic functions is occurring, OaA will inform the user of the need to place an order for fee-based services and terminate usage beyond the scope of the basic functions. In this case, an order must be placed with OaA according to the following procedure.
As a registered user, the user can order the desired service via the electronic order function provided by OaA. The order process is divided into three steps: In the first step, the user selects the desired use category and contract term (monthly or yearly). In the second step, the user's data is confirmed and completed as necessary, and the payment method is selected. In the third step, the user can review the order and sending a binding request to OaA by clicking on the order button. Having done so, the user has submitted a binding request. The user shall receive e-mail confirmation of the receipt and acceptance of the order. Upon receipt of this e-mail, the contract has been created.
Orders can also be placed outside of the electronic order function offered by OaA by submitting a written order with the necessary information and OaA sending a corresponding written order confirmation to the user.
OaA grants the user a simple, non-exclusive, non-transferable, free of charge right limited to the term of this agreement to use the service for the purposes for which OaA provides the service according to this agreement. The scope of use is limited to the scope described in OaA's price list.
The user may not use the service or the components used for its provision for purposes of, in particular, (i) making copies, except for archival purposes or where absolutely necessary for legitimate usage; (ii) changing or modifying it, or creating derivative work; (iii) publishing, disclosing, selling, renting, leasing, loaning, distributing, making it available online, sublicensing or making it accessible to a third party without prior written consent from OaA. The user may not remove or modify copyright notices or other references to intellectual property. Access to source codes is not included in the licence. The user may not decompile, disassemble or reverse engineer components of the service unless statutory provisions or this agreement should allow otherwise.
Individual parts of the service and/or the components used for the service may be based on open source licences which shall override the provisions of this Item 5. In these cases, OaA will make the object code or source code available to the user on request, provided that provision of the object code or source code is permitted in the terms and conditions of use of the respective open source licence. If it is required for lawful use of the service, the respective applicable open source licence conditions shall be listed here: www.openasapp.net/opensource. By using the service, the user accepts these open source licence conditions. In the case of contradictions, these shall take precedence over this agreement.
Non-commercial use of the service and commercial use of the service with the basic functions (use category “Business Free”) are free of charge.
The use of the service by commercial users in all other use categories requires a fee. The price list at https://info.openasapp.net/pricing offered by OaA at the time of confirmation of the order and the fee set for the relevant use category shall apply. The applicable VAT shall apply in addition to the fee.
OaA can change the fees for the service by means of a unilateral declaration with a notification period of at least one month and will in such an event inform the user in writing. If the user has ordered the service with the annual termination option, fee changes shall only be possible with a notification period of 3 months and in the event of a price increase, the user can terminate the agreement effective upon the increase in price. The user can only exercise his right to terminate in writing within one month of receipt of the notification of the price increase. If the user does not exercise his right to terminate, the price change shall automatically take effect at the stated date.
Invoices shall be issued in advance for the applicable agreed term (month/year). Invoices are due and payable immediately upon receipt and are to be paid within 14 days. After this payment period has passed, the user is automatically considered to be in default.
The user can use the service to transfer user contents into an app automatically created by the service and to then make this app including its user contents available to others. The user grants OaA an irrevocable, worldwide, free, transferable, unlimited and sublicensable right to use, modify, reproduce, disseminate, translate and publish these user contents exclusively for the purpose of providing the service.
If the user makes user contents available to OaA in the course of using the service (e.g. uploads content to storage provided by OaA), the user shall in particular guarantee that (i) the user holds the rights necessary for the provision of the service by OaA and, if necessary, has obtained all required approvals; (ii) the use of the user contents required for provision of the service by OaA does not infringe any copyrights, trademarks, patents, trade secrets or other third party rights (e.g. data protection rights or other personal rights); (iii) the transfer of the user contents and their contractual use by OaA for purposes of providing the service does not otherwise violate any laws or rights; and (iv) the user contents do not contain any viruses, trojans or other malware. In particular, the user contents shall not contain any contents which are pornographic, glorify violence or incite hatred against any groups. The user shall inform OaA without delay if any indications of an infringement of the previously described assurances should arise.
The user is responsible for user contents and other data processed using the service. OaA is not obligated to review user contents for legal violations. However, OaA is entitled to refuse to process user contents with the service or delete user contents if there is reason for OaA to believe that their use violates the terms of this agreement or constitutes violations of the law.
OaA may block access to the service for users at any time if a user violates his responsibilities from this agreement (in particular the assurances in Item 7.2).
Elements of the service or OaA website may contain hyperlinks to third party websites. OaA does not assume responsibility for the contents of these websites and OaA does not claim these websites and their contents as its own.
Liability for legal and material defects
OaA does not provide any warranty or guarantee that the service (i) is compatible with the user's hardware or software; (ii) will be completely available at all times or at any given time; (iii) the user's requirements or other special performance or functional requirements which are not agreed in this agreement will be fulfilled; (iv) will not cause any loss of data; (v) is free of viruses, malware, malfunctions or other components which pose a security risk.
For his own protection and for the protection of the service, the user shall use appropriate, current security measures (firewall, virus scanners, etc.).
If the user discovers a defect in the service, he shall inform OaA of the defect without delay and describe the defect and the circumstances surrounding its discovery in the greatest possible detail. OaA shall attempt to remedy the defect within an appropriate period of time. The responsibility to remedy defects is limited to the service and does not apply to the use of apps created with the service. If necessary, the user may have to recreate the desired app using the service after OaA remedies the defect in the service. The user (paid service) may only request an appropriate reduction of the fee for the appli-cable period or terminate the contract if continued use of the service is no longer reasonable only after two unsuccessful attempts at repairing the service. Any further user claims in the event of defects are excluded.
No provision in this agreement excludes OaA's liability to the user for personal injury, intent, fraudulent misrepresentation or other cases of mandatory liability which by law cannot be excluded.
In cases of slight negligence resulting in a breach of material contractual responsibilities, OaA shall only be liable for the amount of foreseeable damage typical for the contract. A material breach of contract shall exist when the responsibility violated is one on which the user relied and was justified in relying on.
OaA's liability to the user for negligent breaches of contract is limited to a total of €1,000 per calendar year. Item 9.4 remains unaffected.
Liability of OaA to the user in cases of free use of the service is completely excluded, except in the cases described in Item 9.4.
The user shall indemnify OaA, its managers, employees and subcontractors against all third party demands and claims as well as against all losses, damages, costs and expenses, including the costs of appropriate legal defence, which arise from (i) use of the service which does not comply with the terms of this agreement or (ii) violations of the law or third party rights which result from user contents, the user or persons whom the user permits to use the service, and for which the user is responsible.
Support and updates
OaA shall offer limited product support and updates on a voluntary basis according to its own judgement. The user is not entitled to more extensive support or updates from OaA. OaA's responsibility to remedy defects pursuant to Item 9 remains unaffected.
Term and termination
This agreement shall enter into force at the date specified in Item 2.4 and shall apply for the term ordered for fee-based usage. The agreement shall apply indefinitely for free usage.
For fee-based use of the service, termination is only possible at the conclusion of the term specified in the order. If the user does not terminate service, the term shall automatically extend for the originally ordered period of time (i.e. one or twelve months). For monthly contracts, 14 days' termination notice to the end of the month must be given; for yearly contracts, 30 days' notice to the end of the contract year shall apply. If the user uses the free service, the agreement may be terminated by both parties at any time, effective at the end of the ongoing month.
The right to terminate this agreement for good cause shall remain unaffected in any case.
After terminating this agreement, the user shall permanently delete all copies of components of the service which are still installed on devices under his control. Continued functioning of any apps created with the service after the conclusion of the agreement cannot be guaranteed.
OaA reserves the right to completely or partially modify, suspend or cease the service at any time, even without prior notice. In the event of permanent cessation or significant impairment of the service, users who use the fee-based service will be refunded the fee for the affected period (if applicable, on a prorated basis).
Confidentiality and data protection
The user shall keep confidential all information which he learns of in the context of this agreement and the services provided according to the agreement and which is designated confidential or is recognizable as confidential or as a trade or business secret due to other circumstances for an unlimited period of time and shall only use such information for the purposes of this agreement.
OaA stores and processes personal data transmitted by the user exclusively for purposes of providing the service and in accordance with the applicable data protection laws. The user shall ensure that any potential transmission of personal data to OaA (in particular as part of the user contents) occurs in accordance with the applicable data protection laws. OaA is principally prepared to conclude a commissioned data collection agreement with the user pursuant to Section 11 of the German Federal Data Protection Act as needed.
OaA explicitly notes that user contents which utilize cloud services provided by OaA's subcontractors will be saved. User contents are not stored at locations outside of the EU and the EEA.
If any provision of this agreement is found to be invalid or unenforceable, the validity and enforceability of the other provisions of this agreement shall not be affected. The invalid provision shall be replaced with the valid, enforceable provision which comes closest to the legal and commercial purpose intended by the parties and this provision shall apply retroactively.
Supplementary agreements shall be required to be in writing.
If statements related to this agreement are required to be in writing, written declarations shall suffice. This does not apply to terminations pursuant to Item 12; the statutory written form pursuant to Section 126 paragraph 1 of the German Civil Code shall apply for these.
The law of the Federal Republic of Germany will exclusively apply under express exclusion of conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods. If the user is a businessman as defined by the German Commercial Code, the legal venue is Munich.
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