1.1. These General Terms and Conditions of Business (hereinafter “T&C”) shall be applicable for all contracts concluded between apiOmat, Apinauten GmbH, Hainstraße 4, 04109 Leipzig (hereinafter “ApG”) and the client (hereinafter “Client”)
1.2. “Consumer” as used these terms and conditions of business shall be understood as a natural person who engages in the legal transaction for a purpose that is outside his trade, business or profession (§ 13 BGB [Civil Code]).
1.3. “Entrepreneur” as used in these terms and conditions of business shall be understood as a natural or legal person or a partnership with legal personality who or which, when entering a legal transaction, acts in exercise of his or its trade, business or profession (§ 14 BGB).
1.4. “Client” as used in these terms and conditions of business shall be understood to mean either consumer and entrepreneur.
1.5. Any terms and conditions issued by the Client which deviate from or contradict wholly or in part these T&C shall not be part of the contract unless explicitly consented to in text form by ApG.
1.6. The language of the contract shall be English.
2.1. The creation of or request for a client account does not constitute a contract between ApG and the Client. By completing the registration form (“signup”) with username, email address and a password, the user consents to ApG sending him a proposal for the use of the apiOmat platform by telephone and/or email. The services presented on the apiOmat website shall not be understood as a proposal but as a non-binding invitation to the Client to submit a proposal for his part.
2.2. When commissioning services provided by ApG by means of the online Client Account on the apiOmat website, the Client submits his offer to enter into a contract by clicking the “buy” button in the last commissioning step.
2.3. The confirmation of receipt of commission sent to the Client immediately after he has commissioned ApG does not constitute an acceptance of the commission. ApG accepts the commission from the Client when a confirmation of commissioning is sent by email to the Client within two working days of the commissioning.
2.4. The Client may correct or erase his input by means of standard keyboard and mouse navigation at any time during the commissioning process.
2.5. The text of the contract will be stored by ApG for a limited period of time and for security reasons will not be accessible online after the commissioning. Legal provisions pertaining to tax and commercial law are not affected.
In the event that the Client is a consumer in the terms of § 13 BGB, he shall have a right of revocation in accordance with the following:
Right of revocation
You may revoke your contractual declarations within 14 days without stating the reason(s). The revocation must be in text form (e.g. letter, email). The period commences with the receipt of this information in text form but not before the conclusion of the contract and not before we fulfil our duty to inform pursuant to Art. 246 § 2 in conjunction with § 1 (1) and (2) EGBGB [Introductory Act to the Civil Code] or our duties pursuant to the first sentence of § 312g (1) in conjunction with Art. 246 § 3 EGBGB. The 14-day period is deemed to have been observed if the revocation is despatched within that period. The revocation is to be addressed to:
E-Mail: support [at] apiomat.com
In the event of a valid revocation, the services received by either party are to be returned and benefit drawn from them (e.g. interest) is to be released where applicable. In the event that you cannot or cannot fully return to us the services received or benefits drawn (e.g. use) or can return them to us only in poorer condition, you will be liable to provide compensation. This may result in an obligation to make contractual payments during the period until the revocation. Obligations to refund payments must be fulfilled within a period of 30 days. The period commences for you with the despatch of the revocation and for us with its receipt.
Your right of revocation expires prematurely in the event that the contract is wholly performed at your express wish before you have exercised your right of revocation.
4.1. ApG provides the Client with a platform called apiOmat on which he can create, configure, upload, deploy and market his own software (hereinafter “backend”).
4.2. Depending on the tariff chosen, the platform offers the Client access to fundamental services (hereinafter “Services”) for this purpose and can offer access to modules which may be provided by ApG itself, by third parties or by ApG in conjunction with third parties.
4.3. ApG will provide individual descriptions of the Services according to type and scope on the website or, in the case of commissioning by email or telephone, will provide the Client with the descriptions in text form. The description of the Services at the time of commissioning by the Client will be definitive. In the event of conflict with the following contractual contents, the description of the Services will prevail.
4.4. Service and support is included in the tariffs. The type and scope of the service and support provided is to be found in the descriptions of Service in each tariff.
Services are fundamental functions and tools on the apiOmat platform. They comprise data editors, class editors, run-time systems and the API of apiOmat. ApG may add further services to the platform in future.
ApG will make available on the apiOmat platform modules which either expand the scope of function of the platform itself (e.g. code injection, export data, restore data) or of the backend (e.g. Facebook module, Twitter module, push notification module).
4.6.1. The platform modules will be provided for the platform by apiOmat itself. Separate charges may be incurred for the use of these modules. The Client will be notified of the charges for the module on the ApG website prior to commencing its use.
4.6.2. Backend modules use external APIs, data and services provided by third parties over which ApG has no control. ApG provides only the link to the third party. The general terms and conditions and data protection provisions of the third party apply for the use of backend modules. Clients will be notified of changes in external APIs and services which affect the modules via email or Twitter as soon as possible.
4.6.3. Third-party modules are modules made available on the apiOmat platform by third parties. The general terms and conditions and data protection provisions of the third party apply for the use of third-party modules. ApG provides only the platform for the third-party modules on the apiOmat platform. ApG is an intermediary only; any contract pertaining to the use of third-party modules is between the Client and the third party only. Separate charges may be levied for the use of these modules. The Client will be notified of the charges for the module on the ApG website prior to commencing its use.
5.1. The Client undertakes to use the apiOmat platform in a conscientious manner and to a degree commensurate with the tariff chosen.
5.2. The Client warrants that all data submitted, either obligatorily or voluntarily, as part of the registration procedure is accurate and complete. The Client undertakes not to submit data of third parties. In the event that the information referred to in the first sentence above changes, the Client undertakes to inform ApG of such changes promptly or, if possible, to modify the information in his Client Account accordingly.
5.3. The apiOmat platform shall not be used for the following purposes:
5.4. The Client undertakes to use modules or other services and data provided by a third party or to use modules in conjunction with services and data provided by a third party only with the consent of the third party.
5.5. The Client shall be liable for ensuring that all statutory requirements, in particular those pertaining to trademark licences or copyrights, are observed when the apiOmat platform is used as intended.
5.6. In the event of fault messages, unexpected behaviour or other problems, the Client undertakes to inform ApG via the ApG Ticketsystem immediately where possible and no later than 2 working days after the occurrence.
6.1. ApG offers its Clients the choice of the following tariffs: Medium, Professional and Enterprise.
6.3. The Medium tariff provides a mean level service availability from server to transfer point into the Internet (backbone) of 98.0 percent over the year. This does not include periods in which the servers are not accessible for technical reasons or for other reasons that are beyond the control of ApG. The Client in the Medium tariff has 1.5 gigabyte (GB) of storage space available.
6.4. The Professional tariff provides a mean service level availability from server to transfer point into the Internet (backbone) of 99.0 percent over the year. This does not include periods in which the servers are not accessible for technical reasons or for other reasons that are beyond the control of ApG. The Client in the Professional tariff has 25 gigabyte (GB) of storage space available.
6.5. The Enterprise tariff comes with individual service level agreements that need to be agreed upon in writing. The enterprise demo environment is provided “as is”. ApG has the right to delete, remove, reset at any time and without prior notice user accounts, applications and data in the demo environment.
6.6. In the event that storage space available in the tariff used by the Client is exhausted, ApG will propose a solution (e.g. tariff upgrade) to the Client.
7.1. ApG bills based on usage. Usage is calculated according to the numbers of active users per month within the tariff chosen. An active user is understood as a registered user who has used a Client’s app linked to an apiOmat backend at least once in the billing period, or who has received a push notification or similar from an apiOmat backend.
7.2. The billing period in all tariffs is 1 month. The first billing period commences with the conclusion of the contract. The number of billing periods is defined by the term of the contract. The basis is the time zone in which the Federal Republic of Germany is located (CET or CEST).
7.3. Tariff upgrade
7.3.1. An upgrade to the next higher tariff takes place or is offered in the event that the threshold of active users permitted per month in each billing period in the current tariff is exceed by at least one user. The upgrade is automatic if the Client gave his consent when buying the tariff. If the Client did not give his consent, he will be informed when the number of active users has reached 70% of the threshold for his tariff and he will be asked to upgrade to a more suitable tariff. If consent is not received within 2 working days, ApG reserves the right to deny extra active users access to or registration for the Client’s backend.
7.3.2. In the event that the upgrade took place during a billing period, the exact number of days used in each tariff will billed. In the case of an upgrade, the use of the higher tariff will include a requirement to pay the difference between the originally booked tariff and the higher tariff. The day of the upgrade becomes the date of billing for the higher tariff.
7.4. Tariff downsize
7.4.1. Moving to a lower tariff may result in a reduction of functions on the apiOmat platform. For this reason, ApG will inform the Client of the possibility to move via email. Insofar as the Client does not explicitly consent to the move to a lower tariff in writing (email suffices), no adjustment will be made.
7.4.2. In the event that the downsize took place during a billing period, the exact number of days used in each tariff will billed. In the case of a move to a lower tariff, the Client will receive a credit note for the difference in fees paid between the booked and the lower tariff. The day of the move will be the date of billing for the original, higher tariff.
7.5. Unless otherwise agreed, payment is due on the first day of the billing period.
7.6. The Client may select one the following methods of payment: credit card.
7.7. In the event that the Client defaults on payment, ApG reserves the right to block his use of the apiOmat platform.
7.8. In the event that the Client falls into arrears on a not insignificant part of the payment for two consecutive months or falls into arrears amounting to one monthly fee for a period of longer than two months, ApG shall be entitled to terminate the contract for good cause without notice. Grounds for termination without notice by ApG are in particular the opening of insolvency proceedings against the assets of the client or in the event that the opening of such proceedings has been denied due to a lack of assets.
8.1. Rights of use for apiOmat software
ApG grants the Client a simple, territorially and temporally unrestricted, non-transferrable right of use for the apiOmat platform for the duration of the contract. The right of use includes the use of the apiOmat services and platform modules.
8.2. Right of use for the apiOmat trademark
ApG grants the Client a simple, territorially and temporally unrestricted, non-transferrable right of use for the trademarked word “apiOmat” for the duration of the contract solely for the purposes of notification and publicity pertaining to the fact that the Client makes use of the ApG service.
9.1. Unless otherwise agreed, the contract shall be concluded for an indefinite time.
9.2. A contract for the Basis tariff may be terminated in writing (email suffices) by either party with 15 days’ notice to the end of the calendar month.
9.3. A contract for the Medium, Professional or Enterprise tariff may be terminated in writing (email suffices) by either party with 30 days notice to the end of a billing period.
9.4. The right of either party to terminate the contact for cause remains unaffected.
10.1. The warranty complies with statutory regulations.
10.2. ApG cannot guarantee the fault-free technical functionality of software in third-party modules. Sole liability for faults in third-party modules shall be borne by the third party.
ApG’s liability complies with statutory regulations. However, ApG and its vicarious agents shall be liable for damages to property or assets caused by negligence only if in violation of a substantive contractual obligation. The liability shall be limited to damages foreseeable at the time the contract was concluded and typical of the contract type.
The Client shall indemnify ApG for all damages arising from breach of this contact for which the Client is liable. The indemnification shall include reasonable legal costs. ApG shall inform the Client without delay in the event that third parties assert claims and shall give the Client the opportunity to respond.
13.1. Data processing is undertaken in accordance with the provisions of the Bundesdatenschutzgesetz (BDSG, Federal Data Protection Act) and the Telemediengesetzes (TMG, Telemedia Act). Attention is also drawn to our information on data protection.
13.2. If the Client collects data from third parties through his backends or deployments, the Client is liable for the observance of data protection regulations. The Client may conclude a separate contract in this context with ApG pursuant to § 11 BDSG.
14.1. Insofar as the Client is a merchant, a legal entity under public law or a special entity under public law, sole venue for all disputes arising from or in connection with this contract shall be Leipzig.
14.2. Applicable law for this contract, its grounds and all claims arising from it shall be the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Leipzig, 02 December 2015