§ 1. Scope and Subject Matter of the Contract
The following terms and conditions (the “General Terms of Contract”) apply to the use and operational support of standard software programs (the “Software”) produced by Qwyga - Wallner, Born und Bacher GbR, hereinafter referred to as “we” or “Qwyga”, and provided as mobile apps via the medium of the Internet.
The subject of the contract are:
- the provision of software programs listed at www.qwyga.com for use via mobile end devices and
- the storage of data of the customer on servers of the computer center.
Individually developed software programs are not the subject of this contract.
§ 2. Nature and Scope of Services
The nature and scope of the services provided by both parties shall be governed by the contractual agreements. The scope of services defined in the contract shall be deemed to be the agreed quality. Decisive for this are:
- the defined scope of performance of the software specified in the contract, which is set forth in the respective user documentation,
- the suitability for the use presupposed in the contract,
- the conditions specified in the contract,
- the following conditions,
- generally applied technical guidelines and professional standards, in particular also the international standards and proposals of the Internet Engineering Task Force (IETF) as documented in the Request-for-Comments (RFC) and the W3C (World Wide Web Consortium).
In case of discrepancies, the contractual agreements shall apply in the above order.
Further terms and conditions, in particular the general terms and conditions of the contractual partner, shall not apply, even if Qwyga does not expressly object to them. The general terms and conditions of Qwyga apply exclusively.
3.1. Rights of the customer to the software
Qwyga grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the software specified in the contract and the associated user documentation within the framework for the duration of the contract. The software shall be provided via the Internet. The transfer point for the app services is the router output of the data center used by Qwyga to the Internet as well as the data centers of the corresponding app stores used by Google or Apple for the purpose of app distribution. The customer undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. The customer is not entitled to “reverse engineer”, decompile, disassemble, duplicate or use any part of the software to create a separate application.
Customer hereby acknowledges Qwyga as the sole licensor of the Software and the copyrights associated therewith. Qwyga’s rights as sole licensor also extend to enhancements to the Software provided by Qwyga to Customer unless otherwise provided in writing.
Customer hereby acknowledges Qwyga’s trademark, name and patent rights with respect to the Software and related documentation. Customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Software and related documentation.
3.2. Customer’s rights to the data
The data collected, processed and generated by the software are stored on the servers of the data center. The customer remains the sole owner of the data in all cases and can therefore demand that Qwyga return individual or all data at any time, in particular after termination of the contract, without Qwyga having any right of retention. The surrender of the data is effected by electronic transmission via a data network or, after separate agreement, by handing over data carriers. The customer has no right to also receive the software suitable for using the data. The customer shall be responsible for the permissibility of the collection, processing and use of the data as well as for the protection of the rights of the persons concerned (information, use, correction, blocking, deletion).
3.4. Contract duration and termination
The minimum term for the provision of the app is 1 month, 3 months or 1 year, depending on the selected booking period (“subscription”). The contract period shall be automatically extended by another month, another three months or another year if no notice of termination is given. Excluded from the contract duration are the 7-day or 14-day trial periods, within which the contract can be terminated by the customer at any time without cause and without assertion of payment obligations.
A further exception is any pre-release versions (e.g. alpha versions) of the app that are made available for use free of charge.
§ 4. Maintenance Conditions and Service Level
4.1. Further developments/changes in performance
Qwyga reserves the right to make further developments and changes in performance (e.g., through the use of newer or different technologies, systems, procedures, or standards) in the course of technical progress and performance optimization after conclusion of the contract. In the event of significant changes in performance, Qwyga will notify the customer in a timely manner. If the customer suffers significant disadvantages as a result of the service changes, the customer has the right to extraordinary termination of the contract on the date of the change. The customer must give notice of termination within two weeks of receiving notification of the change in performance.
If new versions of the software are made available, Qwyga shall grant the customer the rights listed in Section 3 accordingly for the respective new version as well.
4.2. System operation
Qwyga shall ensure that the software provided is operated in an environment and configuration suitable for the customer’s requirements and on hardware suitable for the customer’s intended use. This includes the number and type of servers, regular backups, scalability, power supply, air conditioning, firewalling, virus checking, broadband Internet connection.
Qwyga performs daily backups of the databases which are saved for at least 14 days.
4.3. System availability
The availability of the data center network at the router output to the Internet is 99% on an annual average. The client-side connection to the Internet is the responsibility of the customer. This is not part of the app scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are those periods that Qwyga designates as so-called maintenance windows for optimization and performance enhancement, as well as time lost in troubleshooting for reasons for which Qwyga is not responsible and outages due to force majeure.
4.4. Disturbances of the system availability
Disruptions to system availability can be reported by the customer. Before reporting the fault, the customer must check his area of responsibility. In the case of fault reports received within support hours (weekdays 9 a.m. to 5 p.m. CET), fault clearance shall begin within two hours. In the case of fault reports received outside support hours (weekdays 9 a.m. to 5 p.m. CET), fault clearance shall commence on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side) shall not be counted towards the fault clearance time.
§ 5. Warranty
It is not possible according to the state of the art to exclude errors in software under all application conditions. However, Qwyga guarantees that the software mentioned at www.qwyga.com is basically usable. The period of limitation is one year.
Errors in the software and the associated documentation will be rectified by Qwyga free of charge within a reasonable period of time. A prerequisite for this claim to rectification of errors is that the error is reproducible. In order to fulfill the warranty obligation, Qwyga may, at its own discretion, either rectify the defect or supply a replacement. In particular, Qwyga can provide the customer with a new version of the software to fulfill the warranty obligation. It is equivalent to rectifying a fault if Qwyga supplies an alternative solution to the faulty function that allows the customer to use it in accordance with the contract.
Warranty claims are excluded if the software is not used in accordance with the contract. Furthermore, the warranty claims are excluded if the customer makes changes or extensions to the software specified in the contract, unless the customer proves that the errors are not causally related to the changes or extensions.
If a significant program error is not corrected by Qwyga in accordance with the aforementioned conditions, the customer may demand a reduction in the monthly app fee. Qwyga has the same right if the production of the error correction is not possible with reasonable effort. If in the course of error correction it turns out that the problems are due to operating errors or improper use by the customer, Qwyga may demand reasonable compensation for the effort incurred.
Qwyga does not guarantee the fulfillment of the customer’s individual requirements by the software specified in the contract. This applies in particular to the non-achievement of the intended economic success. Only the direct customer is entitled to warranty claims against Qwyga and these cannot be assigned.
§ 6. Limitation of Liability
Qwyga assumes no liability for disruptions on telecommunication connections, for disruptions on line paths within the Internet, in cases of force majeure, for the fault of third parties or the customer himself. Qwyga assumes no liability for damages that occur when the customer passes on passwords or user IDs to unauthorized persons.
§ 7. Remuneration
A monthly fee agreed upon in the contract will be charged for the app services. The fees incurred will be invoiced in advance over a period of time.
Excluded from this are pre-release versions (e.g. alpha versions) of the app that are expressly made available free of charge.
Likewise, no claims of any kind whatsoever shall arise for a customer against Qwyga at any time.
§ 8. Terms of Payment
Payments are made via Google Play Store or Apple App Store. If the payment deadline is exceeded, services may be limited in the event of default.
The customer is not entitled to offset claims against Qwyga unless they are legally established claims or claims recognized by Qwyga in writing.
§ 9. Confidentiality, Data Protection
The contracting parties undertake to keep secret the knowledge gained within the scope of the subject matter of the contract - in particular technical or economic data as well as other knowledge - and to use it exclusively for the purposes of the subject matter of the contract.
This shall not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission on the part of the contracting parties or must be made accessible due to a court order or a law. In the event of support assistance with Customer’s problems, it may become necessary to access Customer’s records. The access can be done via a web meeting with the customer or via database analysis. This access is limited to the period of the respective support measure.
If personal data must be processed within the scope of the subject of the contract, Qwyga and the customer will comply with the legal data protection regulations.
§ 10. Final Provisions
The place of performance is Heidelberg. The place of jurisdiction for both contracting parties is Heidelberg. The law of the Federal Republic of Germany shall apply exclusively. The contract, its supplements and amendments as well as changes in form must be in writing.
Should any provision of the contract be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intent. The same shall apply if a gap in the contract becomes apparent.
Status: valid from February 1st, 2023