2 scope and definition
4 registration and responsibility for the account
4.1 The use of the platform requires a registration with the creation of an account. Only natural persons, partnerships and legal entities with unlimited legal capacity can set up an account. There is no claim to acceptance of the application.
4.2 You may use the online platform personally, through its organs or employees. Use by “bots”, programs or in any other automated form is not permitted.
4.3 To use the Reseller Platform you need a paid account. A free use is not possible.
4.4 When registering, you must provide your full, correct name or registered company and a valid email address. You must be authorized to use this email. You must ensure that you are available via this email.
4.5 AppYourself is entitled to delete accounts completely without prior notice if the user has not entered his e-mail address correctly and verification by double opt-in is not possible.
4.6 You are obliged to keep your data (especially the contact data) always up to date and to inform AppYourself immediately about changes.
4.7 You are responsible for ensuring that the Account is not made accessible to any third party and that the user name and password are protected from access by third parties.
4.8 You are responsible for all actions taken using your user name and password as if you were acting for yourself. This does not apply if you are not responsible for the misuse, in particular if you have protected your user name and password from access by third parties.
4.9 You are obliged to inform AppYourself immediately if an improper use of a password or account has occurred or you know or fear that third parties have gained knowledge of a password or account.
4.10 AppYourself is entitled to remove unused accounts (account in test mode), which do not contain paid services, after notification. AppYourself is also entitled to remove apps and websites that have been in test mode for more than 30 days after notification.
5 responsibility for content and prohibition of illegal use
5.1 Each user is responsible for not interfering with the rights of third parties of any kind, in particular but not exclusively name, work title or trademark rights or other industrial property rights by designating the account, the websites, the apps etc..
5.2 The respective user is solely responsible for the contents of the apps. Resellers are liable for the content of their customers, if necessary.
5.3 Any use of the online platform for illegal purposes is prohibited. The applicable laws, in particular copyright law, competition law, data protection law, criminal law, etc. must be observed for every use. Any violation may result in termination. It is not permitted to post or use content that is obscene, offensive, defamatory, violent, glorifies violence, racist, xenophobic, pornographic or clearly sexual or can be understood as such.
5.4 You may not post any content that is not obviously required or intended for the creation of the Apps or use of any other service offered.
5.5 It is expressly forbidden to upload viruses, worms or other harmful code to the platform or to send them by e-mail.
6 indemnification from claims of third parties
6.1 You are obliged to indemnify AppYourself upon first request from all claims asserted by third parties due to your use of the platform, its services, in particular in connection with Apps due to infringement of copyrights, trademark rights, other industrial property rights or other rights.
6.2 AppYourself will inform you immediately if such claims are asserted and provide you with all necessary information.
6.3 If third parties assert claims against AppYourself due to alleged infringements, AppYourself is entitled to delete the corresponding contents until the final clarification of the asserted claims, in particular to prevent their accessibility on the Internet.
6.4 The obligations described in 6.1, 6.2 and 6.3 shall only exist if you immediately inform AppYourself of any infringement of property rights you have asserted, assist AppYourself adequately in the defense of the asserted claims, and, if necessary, allow AppYourself to modify or replace the software accordingly, all defensive measures, including out-of-court agreements and acknowledgments, shall be reserved exclusively for AppYourself or exercised in consultation with AppYourself and in the event that the infringement of property rights is not based on an instruction from you or on unjustified content provided by you.
7 Subject of the contract, services of AppYoursel
7.1 By setting up an account you acquire the right to use the free offers (essentially using the configurator) of AppYourself.
7.2 The creation of apps with AppYourself is, unless otherwise stated, free in trial mode.
7.3 AppYourself may delete apps in trial mode after 30 days.
7.4 Apps are operated on the server infrastructure of AppYourself and third parties.
7.5 Apps can be published in the form of a so-called native app in popular app stores (for example, Apple App Store, Google Play). The user is responsible for the publication. AppYourself is entitled to offer a paid service for publishing the native app, which users can optionally book. The costs incurred in setting the apps in the app stores are borne solely by the user. The decision to include the native app in the respective App Store is made by the operator of the App Store on his own responsibility. AppYourself has no influence on this decision. AppYourself does not guarantee the successful submission to the app stores. Submitting to the respective App Store, the native app is subject to the terms and conditions applicable to that App Store. These can be viewed at the respective App Store.
7.6 Apps and all other services are only delivered in executable code and without documentation. You are not entitled to source, design or other information.
7.7 The exact scope of the individual offers is described in detail on the platform. AppYourself can extend or restrict the offers on the platform at any time. You have no claim that certain offers will continue to be available on the online platform in the future. Ordered offers are available during the contract period. AppYourself is, however, entitled to terminate individual services under consideration of the notice periods regulated in § 9.
7.8 AppYourself guarantees availability of 99.5% of the time per month of all components.
8 Rights of use and publication of apps
8.1 With the creation of the Apps or the use of the other services, you acquire the right to use these services during the term of the contract. Upon termination of the contract, the rights of use granted to you under this contract shall end.
8.2 The rights to use the content you have posted remain with you. AppYourself is entitled to publish apps and other content under the terms of the contract on its own website and also on third-party platforms, but not exclusively in the app stores and similar, directory-like platforms. In addition, AppYourself receives non-exclusive, transferable, spatially unlimited rights to use the content for the duration of the contract.
8.3 AppYourself is also entitled to transfer for the users the rights of use to be transferred according to the conditions of the respective App Store and to accept the conditions of the respective App Store. The deletion of native apps depends on the conditions of the respective app store. At the end of the contract, apps and all content will be deleted.
8.4 Even after removing content from the Account and the App Stores, copies of it may be outside the control of AppYourself.
9 Fair Use Policy
9.1 The use of the Platform and the Apps is generally subject to a Fair Use Policy. The following upper limits apply per project:
5,000 traffic per day on all components of the apps
50,000 users (active or inactive) per project
9.2. The upper limits defined in 9.1 can be adapted for individual projects by paying add-ons.
9.3. If the upper limits defined in 9.1 are exceeded, AppYourself will endeavor to find an amicable agreement with the user about the continuation of the contract. The agreement to be accepted by AppYourself, is the additional booking of an add-on equal to the existing fees of the project (doubling of fees). If no agreement is reached, AppYourself is entitled to extraordinary termination under 10.4.
10 Conclusion of contract, duration of contract, termination
10.1 With the establishment of the account comes a contract for the use of the free offers. This contract may be terminated at any time by both parties without notice.
10.2 With the order of a fee-based offer (“package”) comes a contract for the use of paid services by confirmation in the shopping cart (online check-out process). The contract period is based on the ordered package and is 1, 3, 12 or 24 months. Termination is possible at any time at the end of the term. There is no notice period.
10.3 If the contract is not terminated in time according to 10.2, it will automatically be extended by the same duration as before.
10.4 Both contracting parties may terminate the contract at any time for good cause without observing a notice period. An important reason exists if, in consideration of all circumstances of the individual case and weighing the interests of both parties, the terminating part can not reasonably be expected to continue the contract until the end of the period of notice. § 314 BGB applies accordingly.
10.5 A cancellation is considered valid, if the notice of the possibility for this on the platform takes place, the cancellation is sent by post to the in the imprint deposited postal address of the AppYourself GmbH, or by mail to email@example.com. Cancellations made by telephone or by sending to another (email) address are not valid.
10.6 At the end of the contract, regardless of the reason, the account will be disabled and disable all apps and other components. This also includes the deactivation of apps that have been mandated by resellers when the reseller account is disabled. AppYourself will irretrievably delete all apps and content of a terminated account at regular intervals.
10.7 Upon termination of a contract with Reseller, regardless of the reason, AppYourself can mutually agree with the Reseller to take over the customers of Reseller and its apps and to continue the customer relationship directly.
11 Remuneration, due date, return debit note and termination
11.1 For the use of paid services, the fees listed in the price list on the website must be paid. All prices are quoted net prices and are exclusive of VAT at the time of the due date in the country of the ordering user. The fee will be payable on order for the entire term.
11.2 The fee is due immediately on order and on automatic renewal. All costs of collection not caused by AppYourself, in particular for return debit due to lack of cover, incorrect specification of the credit card number, other incorrect information or failure to notify about termination or change of credit card contracts are to be borne in full by the user.
11.3 AppYourself is only obliged to provide the ordered service if AppYourself can fully dispose of the received payment.
11.4 If you are more than ten days in arrears with due payments despite a reminder, AppYourself is entitled to extraordinary termination of the contract according to 10.4.
11.5 Paid fees can not be refunded. This also applies if third parties prevent the unrestricted operation of the apps, e.g. through the assertion of claims or if the operators of the App Stores refuse to publish the App in the App Store. In the case of a rejection or a subsequent deletion of apps from one or more App Stores, the obligation to fulfill this part of the contract by AppYourself is void. The contract remains otherwise unaffected.
11.6 AppYourself may change prices for all offers and services at any time. The changed prices apply in each case to all offers and services ordered after the change. For the previously ordered offers and services, unless otherwise agreed between the parties, the prices valid at the time of the order apply.
12.1 The platform, the user interface as well as the components of the apps and other services and offers are protected by copyright. The copyright includes the program code, the documentation, the appearance, the structure and organization of the program, all program names and all logos.
12.2 All rights to the software and the associated documentation, in particular the exercise of all property rights, are the exclusive property of AppYourself. You will only receive the rights of use governed by this Agreement.
13 Warranty for property and legal defects
13.1 AppYourself warrants the agreed quality of the ordered offers and services as well as the fact that you can use them according to the contract without breaching the rights of third parties.
13.2 If there is a material defect at the time of the transfer of risk, AppYourself shall be entitled to remedy the defect at its discretion either by delivery of a new flawless release status (new delivery) or by rectification (rework).
13.3 If AppYourself can not remedy a defect within a reasonable period of time or if the repair or replacement is deemed to have failed due to other reasons, AppYourself may, at its option, withdraw from the contract or reduce the remuneration. The rework or subsequent delivery does not already with the second attempt as finally failed. Rather, AppYourself is free during the deadlines for repair or subsequent delivery the number of attempts at subsequent performance. A failure of the repair or the redelivery can only be accepted if AppYourself seriously and finally denies these actions, unreasonably delayed or if there are other special circumstances that make further waiting unreasonable for you.
13.4 Insofar as the contractual use of the apps or other services supplied by AppYourself leads to the infringement of copyright or other intellectual property rights of third parties, AppYourself will, at its own expense and choice, either procure the right to further contractual use or the apps or other services in a for You reasonably change or replace such that there is no longer a violation of third-party rights. If this is not possible on economically reasonable terms or in a reasonable time, both you and AppYourself are entitled to withdraw from the contract. AppYourself will exempt you from undisputed or legally binding claims of the property rights holder.
14 Liability and force majeure
14.1 Irrespective of the legal grounds, AppYourself shall be fully liable for damages resulting from injury to life, limb or health caused by intentional or negligent breach of duty by Licensor or intentional or negligent infringement by a legal representative or a vicarious agent of AppYourself, in the absence of a guaranteed condition in the sense of § 443 BGB and for damages caused by AppYourself or a vicarious agent or legal representative of AppYourself intentionally or through gross negligence.
14.2 In the event of a breach of a material contractual obligation that was decisive for the conclusion of the contract, AppYourself shall only be liable for the contractually typical damage reasonably foreseeable at the time the contract was concluded.
14.3 Any further liability of AppYourself for damages or reimbursement of futile expenses is excluded. Liability under the Product Liability Act remains unaffected.
14.4 AppYourself assumes at the conclusion of the contract that € 100,000 per case of damage, but a total of € 200,000 are sufficient to cover the contractually typical damages to be compensated for, which can reasonably be foreseen at the time of conclusion of the contract. If you believe that the damage you incur is not covered by the above amounts, you will notify AppYourself of this fact before concluding the contract so that the parties can agree to adequately hedge this additional risk.
14.5 The user himself is responsible for the regular backup of his data. Any liability for the loss of data is therefore limited to the recovery effort that would have occurred if the data had been backed up regularly and in accordance with the current technical standard.
14.6. Events of force majeure, which make it difficult or impossible for AppYourself to provide a service or obligation, entitle AppYourself to postpone the fulfillment of this obligation or obligation by the duration of the disability and a reasonable start-up time. “Force Majeure” includes in particular strikes and lockouts, civil wars, hacker attacks, machinery or power failure, disruption of telecommunications channels and the occurrence of such events by subcontractors.
15 Privacy, data transfer
15.1 AppYourself will use your data only within the scope of this contractual relationship and in particular observe the data protection regulations. AppYourself will oblige its employees and subcontractors to comply with data protection.
15.2 The execution of the contract, in particular the transmission of contents, data processing and service, can be carried out unencrypted over Internet.
15.3 AppYourself is entitled to engage subcontractors for the execution of the contract and to transfer the contents you have posted and all personal data collected under this contract to these subcontractors or to make them accessible to them.
15.4. AppYourself is in particular entitled to pass on the personal data for payment processing and also already for a credit check to the corresponding service providers.
16 Applicable law, place of jurisdiction, mediation clause, other
16.1 For all legal relationships of the contracting parties, the law of the Federal Republic of Germany shall apply exclusively, excluding the UN Sales Convention and the conflicts of law rules of international private law.
16.2 Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract is the headquarters of AppYourself.
16.3 All disputes with the exception of the collection of claims from the paid use of the online platform pursuant to para. 1, the parties try first in the context of a mediation by an out-of-court mediator to clean up. Only if the mediation does not come to an end or ends without the dispute being fully settled does the parties have access to the courts. The parties are not prevented from filing applications in interim relief proceedings or other urgent proceedings. In all other cases, one party must allow the other party to mediate before initiating a legal dispute. If the parties can not agree on a mediator, this will be determined at the request of a party by EUCON, European Institute for Conflict Management eV, Schackstraße 1, 80539 Munich, Tel. + 49/089/57 95 18 34, Fax +49 / 089 / 57 86 95 38, firstname.lastname@example.org, www.euconinstitut.de
16.4 Should one or more of the provisions of these Terms and Conditions be or become invalid, the validity of the remaining provisions remains unaffected. The ineffective provision shall be replaced by the statutory provisions, unless the parties reach an agreement that achieves the purpose intended by the ineffective provision.
As of: June 2018