Terms of Service

GENERAL TERMS AND CONDITIONS (“GTC”)
By creating an account for Jomawo (registration) via the website of Alexander Funk & Daniel Amzovski GbR at jomawo.de (the Provider), you (the Customer) accept the following General Terms and Conditions (GTC).

1. INTRODUCTION

1.1 GENERAL

These GTC form the basis of all contracts for deliveries and services provided by the Provider. By registering, the Customer agrees to these GTC. We accept counter-confirmations from the Customer referring to their own terms and conditions only insofar as they do not conflict with our GTC. Supplementary or deviating agreements require the express written consent of the Provider. A Customer is any natural or legal person who has registered.

1.2 CHANGES

The Provider reserves the right to amend these GTC at any time and without stating reasons in a manner reasonable for the Customer. Changes will be communicated to the Customer by email no later than 2 months before the amended GTC take effect. If the Customer does not object to the amended GTC within two weeks of receiving the Provider's email regarding the change pursuant to sentence 2 of this section 1.2, the Customer's silence shall be deemed consent to the amended GTC, which shall thereafter form part of the contract in their amended form. If the Customer objects to the changes to the GTC and can demonstrate that the changes are unreasonable, the Customer shall have a special right of termination.

2. CONCLUSION OF CONTRACT

2.1 SUBJECT MATTER OF THE CONTRACT

The subject matter of the contract is the provision of the Provider's software under a Software-as-a-Service (SaaS) model for use over the internet and the storage and processing of the Customer's data (data hosting). In addition, the Customer may commission consulting, training and development services from the Provider's employees or third parties within the scope of the contract. The performance of consulting, training and development services shall be determined by individual agreement between the Customer and the Provider.

2.2 CONCLUSION OF CONTRACT

The contract between the Customer and the Provider is concluded through registration via the Provider's websites. Performance is subject to availability where this depends on third parties and they cause the unavailability. After a delay in performance of more than 4 weeks, the Customer has the right to set a deadline of at least 14 days for performance. After expiry of this deadline, the Customer may withdraw from the contract by written declaration, provided performance has not been rendered by then. Advance payments already made shall be refunded in this case, whereby the Customer must credit any services already received. Unless there is gross negligence or intent, claims for damages due to delayed performance are excluded.

2.3 REGISTRATION

After registration via the Provider's website, the Customer receives a personal account. These access credentials may not be passed on. The Customer is responsible for keeping them secure. Registration under a false name and with fictitious email accounts is not permitted. In the case of obviously fictitious information, the Provider reserves the right to delete the account. The Customer shall compensate the Provider for all damages attributable to the Customer due to a breach of this section 2.3.

2.4 CUSTOMER OBLIGATIONS

The Customer undertakes not to use the software improperly. Improper use exists in particular if the Customer (a) enters data into the system that contains a computer virus and (b) uses the software in a way that negatively affects the availability of the software for other users. The Customer undertakes to hold the Provider harmless from any damages, including third-party claims and consequential costs of any kind, if the Customer violates these GTC. The Customer undertakes to prevent unauthorized third-party access to the software through appropriate precautions. This includes, in particular, keeping the password confidential and not making it accessible to third parties. The Customer shall also inform their employees (hereinafter referred to as Users) of this. The Customer is responsible for entering and maintaining the data and information required to use the SaaS service.

2.5 PROVISION OF SOFTWARE

a) The Provider makes the software available to the Customer for the duration of the subscription in the respective current version for use over the internet. All usage rights not expressly granted remain with the Provider or, if different, with the respective author. For the purpose of operating the software, the Provider stores the software on a server accessible to the Customer over the internet. The Provider provides the Customer with free updates during the term of the contract. No additional costs apply for support and upgrades. The following services are not regular support services and are therefore subject to charges:

• Database changes
• Data recovery at the Customer's request
• Data imports that are not explicitly offered free of charge

The support channels offered depend on the plan booked.
b) The Provider continuously monitors the functionality of the software and remedies all software errors that restrict or prevent use of the software to the extent technically possible.
c) The Provider is entitled to add and remove new features from the software. If removing features disproportionately restricts use for the Customer, the Customer shall have an immediate special right of termination.

2.6 REMUNERATION

The remuneration for use of the software (subscription) is determined by the scope of the subject matter of the contract defined in section 2.1. If the Customer chooses a paid subscription, they undertake to pay the Provider the agreed monthly fee for the provision of software and data hosting plus the applicable value added tax. If the Customer is in default of payment for at least 30 days, the Provider is entitled to refuse performance until the outstanding fee is paid. This may be done, for example, by suspending access to the software. If the Customer is in default of payment for at least 60 days, the Provider is entitled to terminate the entire contractual relationship extraordinarily. For clarification, all claims for overdue payments by the Customer remain unaffected by such extraordinary termination. The Provider is entitled to increase fees appropriately and must notify the Customer of this by email no later than 2 months in advance of the end of the current billing cycle. Regardless of special agreements, the Customer has the right to terminate their contract at the end of the current billing cycle if the price increase exceeds 5%.

2.7 UP-/DOWNGRADING

Switching to a more expensive subscription (upgrade) or adding users is possible at any time without notice within the respective subscription. Switching to a cheaper subscription (downgrade) or removing users is possible at the end of the current billing period. Features linked to a specific subscription are enabled or disabled when the upgrade/downgrade takes effect.

2.8 TERMINATION

a) The contract is concluded for an indefinite period. Termination is possible at the end of the current billing period, or immediately in the case of a free subscription, without notice in the respective account. After termination, the Provider has the right to delete the account including all data once termination takes effect. At the Customer's request and where technically possible, the Provider shall make the Customer's data available in a machine-readable format after termination. Such data provision is not covered by the remuneration pursuant to section 2.7 of these GTC. The Provider and the Customer shall agree on remuneration based on effort for data provision.
b) Immediate dissolution of the contract for good cause remains available to the parties. Good cause exists for the Provider in particular if the Customer

• applies for the opening of insolvency proceedings over their assets or the opening of insolvency proceedings is rejected for lack of assets,
• is in default of payment obligations under this contractual relationship for 60 days and, after a reasonable grace period has been set and termination of the contract has been threatened, has been unsuccessfully reminded,
• culpably violates legal provisions when using the software or infringes copyrights, industrial property rights or name rights of third parties,
• uses the software to promote criminal, unlawful or ethically questionable activities.

c) The Provider has the right to terminate free accounts at any time with 30 days' notice.

3. DATA PROTECTION & DATA SECURITY

3.1 PERSONAL DATA OF USERS

Privacy is the Provider's highest priority. Personal data of the Customer and Users is treated with particular care. Users agree that their personal data will be stored and processed. Without notice and explicit consent from the User, their personal data will not be made accessible to third parties, except when disclosure is necessary for one of the following reasons:

• for the legal protection of Users
• to comply with judicial or official requirements
• to defend and protect the Provider's rights, or
• for the technical operation of the software

Users are informed about product news within the software and by email. The contracting parties undertake to comply with the provisions of the Federal Data Protection Act. For the conclusion of the contract, for handling the business relationship and within the scope of using the software, the Provider collects personal data from persons connected with the Customer. This data is used by the Provider exclusively within the scope permitted under the Federal Data Protection Act. It will under no circumstances be passed on to third parties for advertising purposes. The Provider is entitled to collect, process, use and store personal data required for handling the business relationship within the meaning of the Federal Data Protection Act and the Telemedia Act. Provided applicable data protection laws are not violated, the Provider is permitted to carry out aggregated analyses of the stored data and use this data to improve the product.

3.2 CONFIDENTIALITY

The Provider undertakes to maintain confidentiality regarding all trade or business secrets of the Customer that come to its knowledge in the course of preparing, performing and fulfilling the contract, and not to disclose them or otherwise exploit them. The Provider is entitled to name the Customer as a reference using the company name and logo and to use general information about the agreed contract in an appropriate manner for marketing and sales purposes – unless the Customer objects to this in writing.

3.3 DATA ENCRYPTION

To ensure the protection of Users, all communication with the Provider's software is encrypted via the HTTPS protocol.

3.4 DATA SECURITY AND DATA PROVISION

The Provider is obliged to take appropriate precautions against data loss and to prevent unauthorized third-party access to User data. To secure all data generated during use, the Provider creates a data backup at least twice a day. This backup is stored on other servers that are secured with multiple redundancy. The Customer has no right to restoration of their data if the Customer suffers data loss through their own fault. Individual reconstruction of data is possible on request and will be charged based on effort. The User remains the sole owner of the data in any case and may therefore demand release of individual or all data from the Provider at any time, in particular after termination of the contract, without the Provider having a right of retention. Data is released by transmission in digital form. Billing for this data provision and release is by agreement based on effort. The Customer has no claim to also receive the software suitable for using the data.

4. DEFECTS & WARRANTY

4.1 DEFECTS

The Provider renders performance substantially as stated on the Provider's website for normal use under normal circumstances. If services to be rendered by the Provider under this contract are defective, the Provider shall, within a reasonable period and after receipt of a notice of defect, remedy or re-perform the services at its choice. The Customer is obliged to report defects to the Provider without delay via the usual support channel. If the Customer has not booked support, defects may be sent to the contact address in the Provider's legal notice. If remedy or replacement by the Provider does not succeed within a reasonable period set by the Customer, the Customer is entitled, at their choice, to reduce the price of performance appropriately or to terminate the contract.

4.2 AVAILABILITY

If system availability of essential software functions falls below 99.5% within the last 30 days, the Customer may reduce their remuneration corresponding to the shortfall. This data is either made publicly available by the Provider or provided on request if the data is not publicly available.

4.3 WARRANTY

The Provider makes no assurance, guarantee or warranty that

a) use of the products meets the Customer's requirements or expectations
b) all defects or errors regarding the products or functionality of the software provided to the Customer as part of the product are remedied if they do not affect core functionality

Unless expressly agreed otherwise, advice or information received by the Customer from the Provider does not give rise to warranty claims against the Provider. The Provider does not warrant that the software is suitable or available for use at locations outside the contractual territory. The exclusions pursuant to section 4.3 of these GTC do not affect the Customer's statutory rights to which they are in any event entitled and which cannot be contractually waived.

5. LIABILITY

5.1 UNAUTHORIZED ACCESS

The Provider is not liable for (a) damages incurred by the Customer through use of the software and (b) damages due to unauthorized access to personal User data by third parties (e.g. through unauthorized access by hackers to the database). The Provider also cannot be held liable if information provided by Users themselves to third parties is misused by those third parties.

5.2 STORED CONTENT

The Customer bears sole responsibility for stored content and files that are subject to licensing (e.g. fonts and images).

5.3 THIRD-PARTY CLAIMS

The Customer undertakes to indemnify the Provider against all third-party claims based on data stored by the Customer and to reimburse the Provider for costs incurred due to possible legal violations.

5.4 SUSPICION OF UNLAWFULNESS

The Provider is entitled to immediately block the account if there is reasonable suspicion that stored data was obtained unlawfully and/or infringes third-party rights. Reasonable suspicion of unlawfulness and/or infringement exists in particular when courts, authorities and/or other third parties inform the Provider of this. The Provider shall notify the Customer of the blocking and the reason without delay. The blocking shall be lifted as soon as the suspicion is dispelled.

6. NOTICES

All notices shall be sent in writing to the addresses provided. Sending by email satisfies the written form requirement in each case. The contracting parties are obliged to notify the other contracting party of address changes without delay; otherwise, notices sent to the last address notified in writing shall be deemed legally received.

7. FINAL PROVISIONS

7.1 SET-OFF

The Customer may only set off or assert a right of retention with claims other than their contractual counterclaims from the respective legal transaction if such claim is undisputed by the Provider or has been finally established.

7.2 APPLICABLE LAW

The law of the Federal Republic of Germany applies exclusively. The contract language is German.

7.3 PLACE OF JURISDICTION

The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with the business relationship is the competent court in Biberach an der Riß, Germany.

7.4 SEVERABILITY CLAUSE

Should individual provisions or parts of the contract prove invalid, the validity of the overall agreement shall otherwise remain unaffected. In such a case, the contracting parties shall adapt the contract so that the purpose intended with the void or invalid part is achieved as far as possible.