§ 1 User Account
(2) The user account must be assigned to a person who must be employed as an employee of the contractual partner ("Account Owner") within the scope of the creation. A separate user account is required for each account owner who creates smapOne apps on the platform.
(3) In holiday periods and during absence due to illness, this user account may be used by a representative appointed by the contractual partner. Should an Account Owner permanently terminate his activity for the Contractual Partner or switch to another workstation of the Contractual Partner which stands in the way of the further activity as Account Owner, the Contractual Partner may transfer the Account to a new Account Owner. The new Account Owner is obliged to update the personal details in the Account accordingly
(4) Registration is only permitted by or on behalf of entrepreneurs within the meaning of § 14 BGB (German Civil Code).
§ 2 Functionalities of the Platform; Responsibility of the Contractual Partner for Users
(1) The platform makes it possible to create individual smapOne apps from prefabricated components. smapOne expressly reserves the right to decide at its own discretion whether to offer individual functionalities of the platform, unless these have been expressly designated as features of the platform on the www.smapOne.com website.
(2) The smapOne apps can be made available to an end user ("user") for use on a mobile device ("deployment"). smapOne's standard software, the so-called "smapOne basic app", is required in addition to the smapOne app to operate the smapOne apps. smapOne apps can be downloaded free of charge at any time from the app store of the respective mobile device.
(3) The contracting party is responsible for the use of the smapOne apps. In particular, the contracting party must independently check whether it operates a tele medium in the sense of the Telemedia Act ("TMG") by making the smapOne app available. It is the contractual partner's responsibility to provide his own imprint according to §§ 5 and 6 TMG.
(4) In addition to the smapOne basic app, every smapOne app includes a part of the software that runs on a server ("backend"). For the operation of the backend, smapOne provides certain server capacities depending on the tariff (see § 8). The backend of a smapOne app can only be operated on smapOne servers. Only the account owner has access to the backend.
§ 3 Responsibility for Personal Data
(1) smapOne only collects data that is absolutely necessary for the operation of the platform. Further information on this can be found in the data protection declaration at www.smapone.com/privacy/
(2) Within the scope of the free use according to § 7, the contracting party is prohibited from collecting, processing and storing personal data with the smapOne platform.
(3) If the contracting party sets up its smapOne app in such a way that personal data is collected and stored in the backend within the scope of chargeable use pursuant to § 8, the contracting party is the person responsible within the meaning of Art. 4 No. 7 GDPR with regard to the collection, processing and use of this data. It is the contractual partner's responsibility to obtain any necessary declarations of consent from users and to conclude a data processing agreement with smapOne.
§ 4 Minimum Requirements for Mobile Devices
(1) Since the minimum requirements for smapOne apps can vary greatly depending on the complexity of the apps and the amount of data to be transferred, smapOne does not guarantee specific response times or similar performance indicators. Against this background, it is the contractual partner's responsibility to check within the framework of the free test access whether the smapOne apps created by him are suitable for the intended purpose on the mobile devices to be used.
(2) In order to run the smapOne apps on end devices, these end devices must at least temporarily have an Internet connection that allows data to be downloaded and uploaded. If the contractual partner designs a smapOne app to be data-intensive, an Internet connection with a high data throughput may be necessary for the smooth operation of the smapOne app. Against this background it is also the responsibility of the contractual partner to check within the framework of the free test access whether the smapOne apps created by him can be operated with the existing Internet access of the mobile devices for the intended purpose.
§ 5 Obligations of the Contractual Partner when Creating and Operating a smapOne App
(1) The contracting party must comply with all laws and regulations when creating and operating smapOne apps. In particular, it is forbidden to carry out anti-competitive business practices through the smapOne apps or to commit crimes or administrative offences through the smapOne apps or to encourage their commission.
(2) If the contracting party integrates its own graphics, videos, content or other protected material into a smapOne app, it must have the necessary copyright, trademark and design protection rights or sufficient licensing rights.
(3) The contracting party is forbidden to change the software of smapOne, unless this is done via the corresponding functionalities of the platform.
(4) The contracting party is forbidden to decompile the software of smapOne, unless this is legally permitted within the scope of § 69e UrhG (German Copyright Act).
(5) If smapOne becomes aware of an illegal content of a smapOne app, smapOne will immediately block it and the corresponding user account of the account owner.
(6) Should a third party assert an infringement of rights against smapOne, which is based on at least slightly negligent behaviour of the contracting party, the contracting party shall indemnify smapOne against all costs arising therefrom, in particular claims for damages, procedural costs and the costs of a reasonable defence by lawyers.
(7) The contracting party is obliged to notify smapOne immediately of any defects in the software. In doing so, the contracting party shall take into account the information provided by smapOne regarding the problem analysis within the scope of what is reasonable and shall forward to smapOne all information available to him that is necessary for the elimination of the defect.
§ 6 Rights of Use; Prohibition of Disclosure
(2) The smapOne apps as well as creator accounts (child subscriptions) may not be resold, sublicensed, rented or passed on to a third party free of charge. A third party in this sense is any person who does not work directly for the contracting party. It is also forbidden to sell, rent or otherwise pass on the user account free of charge or against payment. The free transfer of smapOne apps to third parties is only permitted in cases where the use by third parties directly serves the business purposes of the contracting party's own company (e.g. customer satisfaction surveys, etc.).
(3) If the contracting party violates § 6 number (2), smapOne may terminate the contract immediately without notice.
§ 7 Free Use of the Platform
(1) The creation of a smapOne app and its test are possible for a limited number of installations free of charge within the framework of the test phase offered in the platform and limited in time.
(2) The smapOne-App may not be used productively in a company within the scope of the free use. smapOne is entitled to terminate the contract without notice if a smapOne-App is used productively within the scope of the free test phase. A smapOne app can be used for test purposes if the smapOne app is used to test and evaluate the usability of the app for a specific purpose or to present the functionality of the smapOne app in a company for a limited period of time. Productive use of the smapOne app occurs when the main purpose of use is to generate added value for the contractual partner.
(3) As far as the platform is used free of charge, smapOne is not obliged to provide the platform and the servers on which the respective backend is operated with a certain availability.
(4) A limited volume of data per month is available to the contractual partner for the free test. Data volume means the volume of data sent between smapOne-Basis-App and backend. As soon as the volume is reached, access to the backend can be restricted at the sole discretion of smapOne.
(5) For the free test, a limited storage space on a server for the backend is available to the contractual partner.
(6) After the end of the free test phase, the platform will be blocked for further use. By upgrading to a paid version, which is possible at any time, the lock can be lifted without data loss and the account can be released again.
(7) Free user accounts that are not used for a period of three months can be deleted by smapOne. The smapOne apps created in a user account and the data created by using the smapOne apps will be permanently lost.
§ 8 Paid Usage; Tariffs; Contract Duration
(1) In order to change into a liable to pay the costs contract, the contracting partner contacts email@example.com or +49 511 36734000.
(2) The booking of a rate is initially for a minimum contract period.
(3) The cost of a tariff must be paid yearly in advance.
(4) The set-off against the payment claims of smapOne is only possible with undisputed or legally established counterclaims.
(5) If the contracting party is in default with the payments owed according to this contract, smapOne is entitled to claim default interest in the amount of 9 percentage points p.a. above the respective base interest rate.
(6) In case of default of payment by the contracting party, smapOne is entitled to immediately block the use of the smapOne app and the respective account of the account owner.
§ 9 Rights of the Contractual Partner in Case of Defects
(1) Within the framework of a free use of the platform, smapOne is not obliged to remedy defects.
(2) smapOne is obliged to remedy defects in the software provided within the scope of a tariff according to § 8. Software within the meaning of § 10 means the backend of a smapOne app, the smapOne basic app and the platform.
(3) Defects of the software are only given if essential functionalities are not available as assured. smapOne does not guarantee the specific usability of an individually created smapOne app for a specific purpose. The customer himself is responsible for the usability of the smapOne apps created by him and has to make sure of it before using them productively. The possible unsuitability of a smapOne-App for a certain purpose does not constitute a defect.
(5) Termination by the contracting party in accordance with § 543 para. 2 sentence 1 no. 1 BGB due to non-granting of the contractual use is only permissible if smapOne has been given sufficient opportunity to remedy the defect and this has failed. A failure of the remedy of defects is only to be assumed if it is impossible, if it is refused by smapOne or delayed in an unreasonable manner, if there are reasonable doubts about the prospects of success or if for other reasons an unreasonableness for the contracting party is given.
(6) The rights of the contracting party due to defects are excluded insofar as the contracting party makes or has made changes to the software (outside the provided modification possibilities on the platform) without smapOne's consent, unless the contracting party proves that the changes have no unreasonable effects on the analysis and elimination of the defects for smapOne. The rights of the contracting party due to defects remain unaffected if the contracting party is entitled to make changes, in particular within the scope of exercising the right of self-clearing according to § 536 a para. 2 BGB (German Civil Code), and if these changes have been carried out professionally and documented in a comprehensible manner.
§ 10 Limitations of Liability
(1) It is the contractual partner's responsibility during the test phase of the self-developed smapOne app to check whether the use of the smapOne app may result in risks for his own legal interests and those of third parties. smapOne is responsible for the provision of the platform and may be liable under the following conditions if the platform, the smapOne basic app or the backend is not available and this results in damage. The contracting party itself is responsible for all damages incurred within the scope of using the smapOne app and may also be liable to third parties. This also applies in particular to loss of earnings.
(2) Furthermore, it is the responsibility of the contracting parties to check whether the app created by them can be used for the desired purposes. Against this background, smapOne is not obliged to pay damages if the damage consists of development costs for an app that is used instead of the smapOne app created by the contracting party.
(3) smapOne is liable for damages within the scope of the statutory provisions
(a) injury to life, limb or health resulting from an intentional or negligent breach of duty or other intentional or negligent behaviour of smapOne or its legal representatives or vicarious agents;
(b) due to the absence or omission of a materially warranted characteristic or non-compliance with a guarantee;
(c) which are based on an intentional or grossly negligent breach of duty or otherwise on intentional or grossly negligent conduct by smapOne or its legal representatives or vicarious agents.
(4) smapOne is liable for damages caused by a slightly negligent violation of essential obligations by smapOne or one of its legal representatives or vicarious agents, limited to compensation for the foreseeable damage typical for this type of contract. Essential obligations are obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may rely. Liability is limited to six times the monthly license fees per case of damage.
(5) The strict liability of smapOne according to § 536 a Abs. 1, 1. Alternative BGB (German Civil Code) for defects which already exist at the time of the conclusion of the contract is excluded.
(6) smapOne shall only be liable in the event of data loss caused by simple negligence for the damage that would have been incurred even if the customer had properly and regularly backed up the data in a manner appropriate to the importance of the data; this limitation shall not apply if the data backup was hindered or impossible for reasons for which smapOne is responsible.
(7) The above provisions shall also apply mutatis mutandis to smapOne's liability with regard to the reimbursement of futile expenses.
(8) As far as legally permissible, smapOne does not assume any liability for damages and data loss of free test accounts.
§ 11 Term of Contract, Termination of Contractual Relationship
(1) The contractual relationship begins with the creation of a user account and has a term of one year for the paid versions unless otherwise agreed. It will be automatically extended for a further 12 months unless terminated by either party at the end of the term by giving one month's notice.
(2) The right of each party to extraordinary termination for good cause remains unaffected.
(3) Notice of termination must be given in writing in order to be effective.
(4) Upon termination of the contractual relationship, the smapOne apps and the data on the backend will be irretrievably deleted. It is the responsibility of each contractual partner to make regular backups.
§ 12 Severability Clause
§ 13 Other agreements