2 Scope and definition
4 Registration and responsibility for the account
4.1 The use of the platform requires registration with the creation of an account. Only natural persons, partnerships and legal entities with unlimited legal capacity may set up an account. There is no entitlement to acceptance of the registration.
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 You need a paid account to use the Reseller Platform. Free use is not possible.
4.4 When registering, you must provide your full, correct name or registered company and a valid e-mail address. You must be authorised to use this email. You must ensure that you can be reached via this email.
4.5 AppYourself is entitled to delete accounts completely, even without prior notice, if the user has not provided his e-mail address properly and verification by double opt-in is not possible.
4.6 You are obliged to keep your data (especially contact details) up to date at all times and to inform AppYourself immediately of any changes.
4.7 You are responsible for ensuring that the account is not made accessible to third parties and that the user name and password are protected from access by third parties.
4.8 You are responsible for all actions taken using the username and password as if they were your own. This does not apply if you are not responsible for the misuse, in particular if you have protected the user name and password from access by third parties.
4.9 You are obliged to inform AppYourself immediately if a password or account has been misused or if 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 any chargeable services after notification. AppYourself is furthermore entitled to remove created apps and websites that are in test mode for longer than 30 days after notification.
5 Responsibility for contents 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, through the designation of the account, the websites, the apps etc.
5.2 The respective user is exclusively responsible for the content of the apps. Resellers shall be liable, if necessary, for the content of their customers.
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 any use. Any violation may entitle the user to termination. It is not permitted to post or use content that is obscene, insulting, 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 necessary 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 third party claims
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 on the basis of alleged infringements of rights, AppYourself is entitled to delete the corresponding content until final clarification of the asserted claims, in particular to prevent its accessibility on the Internet.
6.4 The obligations described in 6.1, 6.2 and 6. 3 shall only exist if you inform AppYourself immediately of the infringements of property rights asserted against you, support AppYourself to a reasonable extent in the defence against the asserted claims, if necessary enable AppYourself to modify or replace the software accordingly, all defence measures, including out-of-court agreements and acknowledgements remain exclusively reserved for AppYourself or are exercised in consultation with AppYourself and in the event that the infringements of property rights are neither based on an instruction from you nor on unauthorised content posted by you.
7 Subject matter of the contract, services of AppYourself
7.1 By setting up an account you acquire the right to use the free services (essentially use of the configurator) of AppYourself.
7.2 The creation of apps with AppYourself is free of charge in test mode, unless otherwise described.
7.3 AppYourself is entitled to delete apps that are in test mode after 30 days.
7.4 Apps are operated on the server infrastructure of AppYourself and with third parties.
7.5 Apps can be published in the form of a so-called native app in the known app stores (e.g. Apple App Store, Google Play). The user is responsible for the publication. AppYourself is entitled to offer a paid service for the publication of the native app, which users can optionally add. The costs arising from the placement of the apps in the app stores shall be borne exclusively by the user. The decision on the inclusion of the native app in the respective app store is made by the operator of the app store on its own responsibility. AppYourself has no influence on this decision. AppYourself does not guarantee the successful submission to the App Stores. Upon submission to the respective App Store, the native App is subject to the terms and conditions applicable to this App Store. These can be viewed at the respective App Store.
7.6 Apps and all other services are only handed over in executable code and without documentation. You have no claim to the surrender of source code, design material or other information.
7.7 The exact scope of the individual offers is described in detail on the platform. AppYourself may expand or restrict the offers on the platform at any time. You have no claim that certain offers will also be available on the online platform in the future. Ordered offers are available to you for the duration of the contract. AppYourself is, however, entitled to terminate individual services taking into account the notice periods regulated in § 9.
7.8 AppYourself guarantees an availability of 99.5% of the time per month of all components.
8 Rights of use and publication of apps
8.1 By creating the apps or using the other services, you acquire the right to use these services for the duration of the contract. At the end of the contract, the rights of use granted to you under this contract shall end.
8.2 The rights of use to the content posted by you remain with you. AppYourself is entitled to publish apps and other content within the scope of the contract on its own website and also on third-party platforms, essentially but not exclusively in the app stores and similar directory-like platforms. For this purpose AppYourself receives non-exclusive, transferable, spatially unrestricted rights to use the content for the duration of the contract.
8.3 AppYourself is also entitled to transfer the rights of use to be transferred for the users according to the terms and conditions of the respective app store and to accept the terms and conditions of the respective app store. The deletion of native apps is governed by the terms and conditions of the respective app store. Apps and all content will be deleted at the end of the contract.
8.4 Even after removal of the content from the account and the App Stores, copies of it may still exist outside the sphere of influence of AppYourself.
9 Rules for fair use (Fair Use Policy)
9.1 The use of the Platform and the Apps are generally subject to a Fair Use Policy. The following upper limits per project apply:
5,000 visitors (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 adjusted for individual projects by means of chargeable add-ons.
9.3 In case of exceeding the upper limits defined in 9.1 AppYourself will try to find an amicable agreement with users about the continuation of the contract. The agreement to be accepted by AppYourself is the additional booking of an add-on in the same amount as the existing fees of the project (doubling of fees). If no agreement is reached, AppYourself is entitled to extraordinary termination according to 10.4.
10 Conclusion of contract, duration of contract, termination
10.1 With the setting up of the account a contract on the use of the free offers is concluded. This contract can be terminated at any time by either party without notice.
10.2 When a chargeable offer (“package”) is ordered, a contract for the use of chargeable services is concluded by confirmation in the shopping basket (online check-out process). The contract term depends on the ordered Package and is 1, 3, 12 or 24 months. Cancellation is possible at any time at the end of the term. There is no period of notice.
10.3 If the contract is not terminated in good time in accordance with 10.2, it shall be automatically extended by the same term as before.
10.4 Both contracting parties may terminate the contract at any time for good cause without observing a notice period. Good cause shall be deemed to exist if the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the expiry of the notice period. § Section 314 BGB shall apply accordingly.
10.5 A termination shall be deemed valid if the termination is made via the option provided for this purpose on the platform, if the termination is sent by post to the postal address of AppYourself GmbH provided in the imprint or by email to email@example.com. Cancellations made by telephone or by sending to another (e-mail) address are not valid.
10.6 Upon termination of the contract, regardless of the reason, the account and all apps and other components will be deactivated. This also includes the deactivation of Apps commissioned by Resellers if the Reseller Account has been deactivated. AppYourself will irretrievably delete all Apps and content of a terminated Account at regular intervals.
10.7 In the event of termination of a contract with Reseller, irrespective of the reason, AppYourself may mutually agree with Reseller to take over the customers from Reseller and its Apps and to continue the customer relationship directly.
11 Remuneration, due date, return debit note and termination
11.1 The fees specified in the price list on the Website shall be payable for the use of chargeable services. All prices are always stated as net prices and are subject to the value added tax applicable in the country of the ordering user at the time of the due date. The remuneration shall be due for the entire term when the order is placed.
11.2 The remuneration is due immediately upon ordering as well as upon automatic renewal. All costs of debt collection not caused by AppYourself, in particular for return debit notes due to lack of funds, incorrect indication of the credit card number, other incorrect information or omitted notification of termination or change of credit card agreements, shall be borne in full by the user.
11.3 AppYourself is only obliged to provide the ordered service if AppYourself can dispose of the received payment without restrictions.
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 in accordance with 10.4.
11.5 Paid fees cannot be refunded. This also applies if third parties prevent the unrestricted operation of the apps, e.g. by asserting claims or if the operators of the app stores refuse to publish the app in the app store. In the event of a refusal or a subsequent deletion of apps from one or more app stores, the obligation to fulfil this part of the contract by AppYourself shall lapse. The rest of the contract remains unaffected.
11.6 AppYourself can change the prices for all offers and services at any time. The changed prices apply to all offers and services ordered after the change. Unless otherwise agreed between the parties, the prices valid and announced at the time of the order shall apply to the offers and services ordered beforehand.
12.1 The platform, the user interface and the components of the apps and other services and offers are protected by copyright. The copyright includes the programme code, the documentation, the appearance, structure and organisation of the programme, all programme names and all logos.
12.2 All rights to the software and the associated documentation, in particular the exercise of all proprietary rights, are exclusively vested in AppYourself. You will only receive the rights of use regulated in this agreement.
13 Warranty for material defects and defects of title
13.1 AppYourself guarantees the agreed quality of the ordered offers and services as well as that you can use them in accordance with the contract without infringing the rights of third parties.
13.2 If there is a material defect at the time of the passing of risk, AppYourself shall be entitled to remedy the material defect at its discretion either by delivering a new release free of defects (new delivery) or by remedying the defect (rectification).
13.3 If AppYourself cannot remedy a material defect within a reasonable period of time or if the rectification or new delivery is deemed to have failed for other reasons, AppYourself may, at its discretion, withdraw from the contract or reduce the remuneration. The rectification or new delivery shall not be deemed to have definitively failed after the second attempt. Rather, AppYourself shall be free to choose the number of attempts at subsequent performance during the periods for subsequent improvement or subsequent delivery. A failure of the rectification or the new delivery can only be assumed if AppYourself seriously and finally refuses these actions, unreasonably delays them or if there are other special circumstances which 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 copyrights or other industrial property rights of third parties, AppYourself shall, at its own expense and at its own choice, either procure the right to further contractual use or modify or replace the Apps or other services in a manner that is reasonable for you in such a way that there is no longer any infringement of third party rights. If this is not possible on economically reasonable terms or within a reasonable period of time, both you and AppYourself are entitled to withdraw from the contract. AppYourself will indemnify you from undisputed or legally established claims of the owners of property rights.
14 Liability and force majeure
14.1 Irrespective of the legal grounds, AppYourself shall be liable in full for damages resulting from injury to life, body or health which are based on an intentional or negligent breach of duty by the licensor or an intentional or negligent breach of duty by a legal representative or a vicarious agent of AppYourself, in the absence of a guaranteed quality within the meaning of § 443 BGB and for damages which AppYourself or a vicarious agent or legal representative of AppYourself has caused intentionally or by gross negligence.
14.2 In the event of a breach of an essential contractual obligation which was decisive for you to conclude the contract, AppYourself shall only be liable for the damage typical for the contract and reasonably foreseeable at the time of conclusion of the contract, unless a case mentioned in 13.1 applies.
14.3 Any further liability of AppYourself for damages or compensation for futile expenses is excluded. Liability under the Product Liability Act remains unaffected.
14.4 When concluding the contract AppYourself assumes that 100,000 € per case of damage, however a total of 200,000 € at the most, are sufficient to cover the damage typical for the contract and reasonably foreseeable at the time of the conclusion of the contract which is to be compensated as mentioned in 13.2. If you are of the opinion that the risk of damage existing with you is not covered by the aforementioned amounts, you will inform AppYourself of this circumstance before conclusion of the contract so that the parties can agree on an appropriate coverage of this additional risk.
14.5 The user himself is responsible for regularly backing up his data. Any liability for the loss of data is therefore limited to the recovery effort which 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 the performance of a service or obligation substantially more difficult or impossible for AppYourself shall entitle AppYourself to postpone the performance of this obligation or obligation for the duration of the hindrance and a reasonable start-up time. “Force majeure” also includes, in particular, strikes and lockouts, civil wars, hacker attacks, machinery or power failure, disruption of telecommunication routes as well as the occurrence of such events at subcontractors.
15 Data protection, data transmission
15.1 AppYourself will only use your data within the framework of this contractual relationship and will 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 via the internet.
15.3 AppYourself is entitled to engage subcontractors for the execution of the contract and to transfer the contents posted by you and all personal data collected within the scope of this contract to these subcontractors or to make them accessible.
15.4 AppYourself is in particular entitled to pass on the personal data to the corresponding service providers for the purpose of payment processing and also already for a credit assessment.
16 Applicable Law, Place of Jurisdiction, Mediation Clause, Miscellaneous
16.1 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the contracting parties, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict-of-law rules of private international law.
16.2 The place of performance and exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is the registered office of AppYourself.
16.3 The parties shall initially attempt to settle all disputes with the exception of the collection of claims from the chargeable use of the online platform pursuant to Clause 1 within the framework of mediation by an out-of-court mediator. Only if the mediation does not come about or ends without the dispute being settled in full shall the parties have recourse 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 grant the other party the possibility of mediation before initiating litigation. If the Parties cannot agree on a mediator, such mediator shall be appointed at the request of a Party by EUCON, European Institute for Conflict Management e.V., 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 made in these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by the statutory provisions, unless the parties reach an agreement that achieves the purpose intended by the invalid provision.
Status: June 2018