General Terms and Conditions of Use

IMPORTANT NOTE: The German version of this document will govern our relationship - this translated version is provided for convenience only and will not be interpreted to modify the German version.

§ 1. Scope and Subject Matter of the Agreement

The following conditions (the "General Terms and Conditions") apply to the use and operational support of standard software programs (the "Software") developed by w63 GmbH, hereafter referred to as w63, and provided as a Software-as-a-Service (SaaS) service over the Internet. The subject of the contract includes:

the provision of software programs listed on simplymotion.io for use via the Internet, and
the storage of customer data on data center servers.

Individually developed software programs are not part of this contract.

§ 2. Type and Scope of Services

The type and scope of the mutual services are regulated by the contractual agreements. The scope of services defined in the contract is considered the agreed quality. The following are decisive:

the defined scope of services of the software listed in the contract, as set out in the respective
user documentation,
suitability for the use stipulated in the contract,
the conditions specified in the contract,
the following conditions,
commonly applied technical guidelines and standards, especially the international standards and proposals of the Internet Engineering Task Force (IETF), as documented in the Request-for-Comments (RFC)

and those of the W3C (World Wide Web Consortium).

In case of discrepancies, the contractual agreements shall prevail in the above order.

Further conditions, particularly general terms and conditions of the contractual partner, do not apply, even if w63 does not expressly object to them. Only the General Terms and Conditions of w63 GmbH apply.

§ 3. Terms of Use

3.1. Customer's Rights to the Software

w63 grants the customer a non-exclusive, non-transferable, and non-sublicensable right to use the software and associated user documentation specified in the contract for the duration of the agreement. The software is provided over the Internet. The point of delivery for SaaS services is the router exit of the data center used by w63 to the Internet. The customer agrees to use the software exclusively in accordance with the contract and not to pass it on to third parties or make it accessible to third parties in any way. The customer is not entitled to reverse engineer, decompile, disassemble, copy, or use any part of the software to create a separate application.

The customer acknowledges w63 as the sole licensor of the software and the associated copyrights. w63's rights as sole licensor also apply to enhancements of the software provided by w63 to the customer unless otherwise stipulated in writing.

The customer also acknowledges the trademarks, names, and patent rights of w63 regarding the software and associated documentation. The customer may not remove, alter, or otherwise modify copyright information or similar proprietary notices in the programs and associated documentation.

3.2. Customer's Rights to the Data

Data collected, processed, and generated by the software is stored on the data center's servers. The customer remains the sole owner of the data in all cases and can request the release of individual or all data from w63 at any time, especially after the termination of the contract, without w63 having any right of retention. The data will be released by electronic transmission over a data network or, by separate agreement, by delivering storage media. The customer is not entitled to receive the software necessary to use the data. The responsibility for the legality of the collection, processing, and use of the data, as well as for safeguarding the rights of the affected persons (information, use, correction, blocking, deletion), lies with the customer.

3.3. Violation of the Terms of Use

In case of violations of the above terms of use, w63 is entitled to terminate the contract in whole or in part without notice. In such a case, w63 reserves the right to claim damages resulting from the breach of contract by the customer.

3.4. Contract Duration and Termination

The minimum term for providing the SaaS service is 6, 12, or 24 months, depending on the pricing model. The contract term is automatically extended by another 6, 12, or 24 months depending on the pricing model unless terminated. The amounts will be charged to the last registered direct debit or credit card details.

w63 is entitled to terminate the contract for good cause, particularly in the case of failed direct debits or credit card payments.

§ 4. Maintenance Conditions and Service Level

4.1. Development/Performance Changes

w63 reserves the right to make further developments and performance changes (e.g., through the use of newer or other technologies, systems, procedures, or standards) after the conclusion of the contract, as part of technical progress and performance optimization. In the event of significant changes, w63 will notify the customer in good time. If these changes result in significant disadvantages for the customer, they have the right to terminate the contract extraordinarily on the date of the change. The customer must terminate the contract within two weeks of receiving the notification about the change.

When new versions of the software are provided, w63 grants the customer the rights listed in section 3 for the respective new version as well.

4.2. System Operation

w63 ensures that the software provided is operated in an environment suitable for the customer's requirements and on hardware appropriate for the customer's intended use. This includes the number and type of servers, regular backups, scalability, power supply, climate control, firewalls, virus checking, and broadband Internet connection.

w63 performs daily backups of data. Upon request, w63 can restore the customer’s data through a recovery procedure.

4.3. System Availability

The availability of the data center's network at the router exit to the Internet is 99% on an annual average. The customer's connection to the Internet is the customer's responsibility and is not part of the SaaS service. Downtime is measured in full minutes and is calculated from the total outage time per year. Excluded from this are maintenance windows announced by w63 to optimize and enhance performance, as well as any downtime caused by reasons beyond w63’s control, and outages due to force majeure.

4.4. System Availability Disruptions

Disruptions in system availability must be reported by the customer immediately upon discovery. Before reporting a disruption, the customer must check their own area of responsibility. For disruption reports received within support hours, troubleshooting begins within two hours. For reports received outside of support hours, troubleshooting begins on the next business day. Any delays in troubleshooting that are the responsibility of the customer (e.g., unavailability of a customer contact person) will not be counted towards the troubleshooting time.

§ 5. Warranty

It is not possible, according to the state of the art, to exclude errors in software under all conditions of use. However, w63 guarantees that the software named on www.simplymotion.de is generally usable. The limitation period is one year.

Errors in the software and associated documentation will be rectified free of charge by w63 within a reasonable period of time. The prerequisite for this warranty claim is that the error is reproducible. w63 may choose to either rectify the error or provide a replacement. In particular, w63 may provide the customer with a new version of the software to fulfill its warranty obligations. An error correction is equivalent to providing an alternative solution to the faulty function that allows the customer to use the software as agreed.

Warranty claims are excluded if the software is not used in accordance with the contract. Additionally, warranty claims are excluded if the customer makes changes or extensions to the software listed in the contract unless the customer can prove that the errors are not causally related to the changes or extensions.

If a significant program error is not rectified under the conditions mentioned, the customer can request a reduction of the monthly SaaS fee. w63 has the same right if error correction is not possible with reasonable effort. If, during error correction, it becomes clear that the issues were due to user errors or improper use by the customer, w63 can charge an appropriate fee for the effort involved.

w63 does not guarantee that the software specified in the contract will meet the customer's individual requirements. This applies especially to the failure to achieve the desired economic success. Warranty claims against w63 are limited to the direct customer and cannot be assigned.

§ 6. Limitation of Liability

In any case, w63's contractual and tortious liability, except in cases of intent and gross negligence, for personal injury is limited to the amount paid by the customer...