Scope of Application and General Provisions
- For the avoidance of doubt: The Customer is a consumer (Verbraucher) insofar as the purpose of the subscribed services is predominantly outside his trade, business or profession. On the other hand, an entrepreneur (Unternehmer) is any natural or legal person or partnership with legal personality who or which, when concluding the Contract, acts in the exercise of his or its trade, business or profession.
- Deviations from these ToU shall only be considered agreed if they have expressly been confirmed in writing by Acapela. In particular, the mere omission of an objection by Acapela against any general terms and conditions of the Customer shall not cause such terms and conditions to be considered agreed. This shall also apply if Acapela performs Services unconditionally upon knowledge of opposing terms and conditions of the Customer or terms and conditions diverging from these ToU.
- For important reasons, in particular in the event of changes to statutory provisions, judicial precedences, the Software or market conditions, Acapela may notify the Customer of amendments to these ToU. The amended ToU shall be deemed to have been agreed if the Customer has not objected to the amendment within one month upon receipt of the notification and Acapela has explicitly notified the Customer of this consequence. Regardless of the foregoing, changes to the scope of the Contractual Service (Umfang der geschuldeten Leistungen) require the express consent of the Customer.
Conclusion of Contract
- In subscribing to a Paid Plan, the Customer guarantees that the Customer acts in the capacity as entrepreneur (Unternehmer) pursuant to Section 14 German Civil Code (Bürgerliches Gesetzbuch, BGB).
Scope of Services
- The Software is a cross-platform SaaS application for collaboratively communicating and managing projects within teams (the “Contract Purpose”). The provision of the Software – in the case of agreed Individual Services pursuant to Section 5 in the adapted version – shall hereinafter be referred to as the “Service”.
- Acapela may offer free plans (each a “Free Plan”) and paid plans (each a “Paid Plan”) for the subscription to the Service. The individually agreed scope of Service of the Contract between the Customer and Acapela shall be based on the respective Free Plan or Paid Plan as described on the Pricing Page and selected by the Customer (such selected plan the "Plan"). The Service owed by Acapela according to the contractually agreed scope of Service shall hereinafter be referred to as "Contractual Services"; the term "Software" shall only include those parts of the Software which are covered by the contractually agreed scope of services.
- Acapela reserves the right to remove certain features from the Free Plans at its own discretion.
- Upon completion of the signup process, the Customer may add and remove other users to the workspace. On a Free Plan, adding additional users is free of charge. On a Paid Plan, adding additional users incurs cost as per the Pricing Page.
- The Customer may upgrade from a Free Plan to a Paid Plan, or switch to a more comprehensive Paid Plan at any time; in this case, from the time of the switch the details concerning the scope of services, remuneration, etc. of the new Plan stated on the Pricing Page shall apply. A switch to a cheaper Plan is only permissible with the consent of Acapela or if the notice period specified in these ToU or on the Pricing Page is observed.
- The Customer may at any time decrease or increase the number of paid collaborators. Decreasing or increasing the number of Paid Seats does not affect the term or terminability of the Customer’s Plan. In case of increase, the cost for each increase is subject to the provisions of the applicable Pricing Page and is calculated on a pro-rated basis under consideration of the billing period of the Customer’s Plan. In case of decrease, the compensation owed by the Customer under his Plan proportionately decreases with effect as of the next billing period of his Plan.
Use of the Software by the Customer
- The Software is used by means of telecommunications via the browser or a stand-alone application.
- The Customer may only use the access to the Software itself and for the contractually agreed purpose.
- The Customer undertakes to take appropriate security precautions to ensure that access to the Software is not used by unauthorised persons. Such security precautions include in particular the use of a secure password.
- The Customer may only enter data, texts, pictures and other content (including custom fonts) into the Software
- that comply with applicable law;
- that do not infringe third party rights; and
- to the entering of which the Customer is legally entitled without any restrictions.
- The Customer agrees that Acapela may process the content uploaded by the Customer for the purposes of this Contract, in particular store such content and make it available for retrieval. Acapela is entitled to delete content uploaded by the Customer if reasonable grounds exist for Acapela to assume that the content was not entered into the Software in compliance with the provisions of these ToU.
- Content included in the Software, in particular pictures, graphics and/or fonts, may only be used for the purposes of this Contract.
- The Customer agrees not to upload, transmit, support, incite, promote or otherwise make available any content that is or could reasonably be viewed as unlawful, racist, hostile, violent, discriminatory (including relating to race, religion, sex, sexual orientation, age, disability, ancestry or national origin), harmful, harassing, defamatory, vulgar, obscene or otherwise objectionable or which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
- The Customer indemnifies and holds Acapela harmless from all claims by third parties (in particular from claims arising out of breach of copyright, competition, trademark or data protection law) that are asserted against Acapela in connection with the Customer’s use of the Software insofar as such claims do not result from wilful or grossly negligent behaviour of Acapela or its legal representatives or agents (gesetzliche Vertreter oder Erfüllungsgehilfen). This indemnification obligation comprises the reimbursement for appropriate costs that Acapela incurred in the course of asserting or defending its legal rights in this context.
- If agreed between the Parties, Acapela shall, in addition to providing the Service, provide services to adapt the Software to the individual needs and wishes of the Customer ("Individual Services"). An agreement on this shall be reached by separate service agreement between the Parties (the “Individual Service Agreement”).
- Acapela shall provide the Individual Services in accordance with the provisions of the Individual Service Agreement and shall receive the remuneration provided therein in return. The Customer is obliged to provide all cooperation required for the performance of the Individual Services.
- Acapela shall not be responsible for establishing and maintaining the data link between the Customer's IT systems and the Transfer Point. "Transfer Point" shall mean the router exit of the Acapela data centre or its subcontractor's data centre through whose server the Software is operated. Acapela is not responsible for malfunctions beyond the Transfer Point. The Customer is responsible for the procurement and maintenance of the necessary hardware and connections to public telecommunications networks. The costs of setting up the online connection and maintaining it on the Customer's side shall be borne by the Customer. Acapela is not liable for the security, confidentiality or integrity of the data communication, which is conducted via third party communication networks. Acapela is also not liable for malfunctions in data transmission caused by technical errors or configuration problems on the part of the Customer.
- The Software availability owed by Acapela depends on the Plan chosen by the Customer and is specified on the Pricing Page. If the Pricing Page does not contain any regulations, the following applies: If the Customer has chosen a Free Plan, Acapela does not owe any availability. If the Customer has chosen a Paid Plan, Acapela shall owe an Availability of at least 99% in the Contract's yearly average.
- Acapela strives to provide the Customer with the best possible customer experience. However, contractually, Acapela does not owe the comprehensive error-free operation and usability of the Software. Acapela only owes that the Customer can use the Software for the Contract Purpose at the level of Availability as set out in Section 6.2. “Availability” means that the Customer can access and use the main features of the Software. Times during which the Software is not available due to an error or other reasons are considered “Downtime”.
- For determining the Availability, such Downtime is not taken into account
in which the Software cannot be reached due to technical or other problems for which Acapela is not responsible (force majeure, third-party fault, errors in the IT systems of the Customer or the third party service providers acting on his behalf, etc.);
which is due to a breach of the Customer's obligation to cooperate, in particular to a delayed or incomplete transmission of an error message; or
which is used for normal maintenance work of up to five hours a month.
Software Operation and Changes
- Acapela intends to use state-of-the-art technology and shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the Software (hereinafter referred to uniformly as “Updates”) in order to adapt the Software to new technical or commercial requirements, to implement new features, or to make changes to existing features in order to improve the Software.
- If and insofar as the suitability of the Software for the Contract Purpose is materially impaired by an Update (such an Update a “Material Change”), Acapela shall inform the Customer in text form of the introduction of the Material Change at least four weeks prior to it becoming effective (a “Change Notice”). If the Customer does not object to the Material Change within two weeks after receipt of the Change Notice in text form (the “Objection Notice”), the Material Change shall become an integral component of the Contract. With each Change Notice, Acapela shall inform the Customer of the Customer’s rights pursuant to this Section 7.2, in particular: (i) the objection right, (ii) the period foreseen for objection and (iii) the legal consequences of not declaring an objection to the Material Change in time.
- If the Customer objects to the Material Change, Acapela shall further provide the Software for use to the Customer without the Material Change unless this is impossible for technical or organizational reasons or Acapela cannot reasonably be expected to do so. In the latter case, the Customer is entitled to terminate the Contract extraordinarily for good cause within four weeks (the “Exercise Period”). If the Customer does not make use of its termination right, the Material Change shall become an integral component of the Contract. The Exercise Period shall commence as soon as Acapela has informed the Customer in text form of (i) the non-continuability of the Contract without the Material Change, (ii) the Customer’s extraordinary termination right and (iii) the legal consequences of the expiry of the Exercise Period.
Warranty for Material and Legal Defects
- Acapela warrants that the Software corresponds to the agreed scope of Service when used in accordance with the Contract and that it is not encumbered with material or legal defects (“Defects”) which more than insignificantly impair the suitability of the Software for the Contract Purpose. Immaterial deviations shall not be considered as Defects.
- The Customer shall be obliged to communicate any Defect to Acapela immediately upon appearance. Acapela shall remedy any duly notified Defects appearing in the Software within a reasonable period of time.
- The no-fault based liability pursuant to Section 536a(1) German Civil Code for Defects in the Software existing at the time of contracting shall be excluded, unless the Defect relates to a feature of the Software essential for the Contract Purpose
- Acapela is liable for damages if arising from (i) willful misconduct or gross negligence of Acapela or its legal representatives or agents (gesetzliche Vertreter oder Erfüllungsgehilfen), (ii) negligent violation of a material contractual duty (Kardinalpflichten) by Acapela or its legal representatives or agents, however, limited to typical damages which are foreseeable at the time of the conclusion of the Contract or (iii) negligence of Acapela or its legal representatives or agents in a way causing injury to life, body or health, or (iv) any compulsory statutory liability of Acapela or its legal representatives or agents. Material contractual duties (Kardinalspflichten) are duties the fulfilment of which is a prerequisite for proper execution of the Contract or the breach of which endangers attainment of the Contract Purpose and the observance of which the Customer must regularly rely on.
- Any contributory negligence on the part of the Customer shall be taken into account. In particular, Acapela shall only be liable for the recovery of data if the Customer has taken all necessary and reasonable data backup precautions and ensured that the data can be recovered at reasonable cost from data material kept in machine-readable form.
- This liability arrangement is conclusive. It shall apply with respect to all damage compensation claims, irrespective of their legal ground, particularly also with respect to pre-contractual claims or collateral contractual claims. This liability arrangement shall also apply in favor of legal representatives and agents of Acapela if claims are asserted directly against them.
- The Customer is obliged to immediately notify any damage pursuant to the above liability provisions to Acapela in text form or to have such damage documented by Acapela, so that Acapela is informed as early as possible and can possibly still mitigate the damage together with the Customer.
Non-contractual Use, Damages
- For each case in which a Contractual Service is used unauthorisedly under the responsibility of the Customer, the Customer shall pay damages in the amount of the compensation that would have been due for the contractual use under the minimum contract period applicable to this Service. The Customer reserves the right to prove that the Customer is not responsible for the unauthorised use or that there is no damage or considerably less damage.
- Acapela remains entitled to claim further damages.
Limitation of Claims
- Claims of the Customer based on the breach of any duty not consisting of a Defect become time-barred, except in the event of intention or gross negligence, within one year from beginning of the limitation period. This shall not apply if the damage in question incurred by the Customer consists in personal injury. Claims for personal injury become statute-barred within the statutory limitation period.
- Any rescission of contract or reduction of payments shall be invalid if the claim to performance or subsequent performance of the Customer has become time-barred.
Copyright and License
- The Software is protected by copyright. Acapela represents that the general operation of the Software is permitted by law, does not violate any statutes, regulations or directives and, in particular, does not infringe on any third party rights. Acapela undertakes to indemnify the Customer against legitimate third party claims due to the operation of the Software and to compensate the Customer for any damage incurred in this context (including reasonable costs of legal defense) in accordance with Section 11.
- The Customer shall have the non-transferrable, non-exclusive right, temporally restricted to the term of the Contract, to use the Service (if applicable, including a Software adaptation carried out in accordance with Section 5) via the Internet for the contractual purpose agreed under the Contract. The Customer shall not obtain any rights beyond this. In particular, the Customer is not entitled to make the Software accessible to third Parties or to use them in any other way outside the purpose of the Contract. In particular, the Customer has to refrain from copying, decompiling, reverse engineering or editing the Service beyond the Contract Purpose.
The Customer agrees that Acapela may freely use, exploit and further develop any feedback provided by the Customer.
Purchase of Rights to Third Party Content
- The Service may include the possibility of the Customer to acquire the right to use, reproduce, copy or disseminate content (e.g. pictures or videos) owned or licensed by third parties (“Third Party Content”). In this case, Acapela acts as reseller of the entity or person owning or licensing the Third Party Content.
- The compensation, payment conditions and other provisions regarding the purchase of Third Party Content by the Customer via the Software as well as the scope of the rights of use shall be governed by the provisions contained on the Pricing Page applicable at the time of the respective purchase. If the Pricing Page contains no provisions, the Parties will conclude a separate agreement thereon.
Set-off, Reduction, Retention
- The Customer shall only have a right of set-off, reduction and/or retention against Acapela if its counterclaim has been legally established, undisputed or acknowledged by Acapela.
- Furthermore, the Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.
- The Customer's right to reclaim remuneration not actually owed shall remain unaffected by the limitation of Section 17.1.
Term and Termination
- The term of the Contract and terminability shall be governed by the provisions of the Pricing Page on the Plan chosen by the Customer. If the Pricing Page does not contain any information on the term or terminability of a Free Plan, such Plan shall run for an indefinite period and may be terminated by either party with immediate effect.
- If the Pricing Page does not contain any information on the term or terminability of a Paid Plan, such Plan shall run for one month and may be terminated by either party with effect as of the end of the month. If the Paid Plan is not terminated, it is automatically renewed for one further month; for such renewed period, the provisions of the Pricing Page applicable to the Customer before renewal continue to apply.
- The Parties’ statutory right to extraordinary termination remains unaffected. An important reason is present for the other contracting party in particular if:
- one of the Parties seriously breaches its obligations under the Contract and the other Party can no longer reasonably be expected to abide by the Contract;
- the Customer is more than two (2) months in arrears with the payment of due fees or other remuneration, even after the expiry of a reasonable period set by Acapela to remedy the situation;
- insolvency proceedings are applied for, instituted or dismissed in respect of all or part of the assets of a Party;
- one of the Parties has a reason for insolvency within the meaning of Sections 17-19 Insolvency Statute (Insolvenzordnung, “InsO”); or
- the financial circumstances of a Party deteriorate to such an extent that proper performance of the Contract can no longer be expected, even if there is no reason for insolvency within the meaning of Sections 17-19 InsO.
- Each termination must be made by declaration in text form.
- The Parties undertake to maintain temporally unlimited secrecy regarding all confidential information which they will obtain or have already obtained in the context of the contractual relation and not to disclose or otherwise use such information, unless necessary to perform the Contract. Confidential information are all information and documents of the Parties labeled as confidential or to be considered confidential based on the circumstances, particularly information concerning operating routines, business relations, further business or trade secrets, know-how, all work results as well as the business model of Acapela.
- Exempt from this obligation shall be confidential information:
- that can be demonstrated to have already been known to the other Party upon initiation of the Contract or become known thereafter through third Parties without any breach of a confidentiality agreement, of statutory provisions, or of administrative orders;
- that was known to the general public, unless this was due to a breach of this Contract;
- that had to be disclosed based on statutory obligations on the order of a court or authority. As permissible and feasible, the Party obliged to disclosure shall inform the other Party in such event in advance, providing it with the opportunity to take action against the disclosure.
- Any disclosure of confidential information to third Parties shall require the express written approval of the other Party, unless otherwise expressly agreed.
- The Parties shall ensure through suitable contractual arrangements that the employees and contractors working for them shall also, without temporal restriction, refrain from individual use or disclosure of confidential information. The Parties shall only disclose to employees or contractors confidential information to the extent such employees or contractors need to know the information for the fulfilment of the Contract.
- The Customer consents for Acapela to disclose the collaboration between Acapela and the Customer for marketing purposes and in this connection also use the company logo of the Customer. The Customer may revoke this consent pursuant to this Section 17.5 at any time by declaration in text form (e.g. via e-mail to firstname.lastname@example.org).
- Acapela treats the Customer's personal data in accordance with data protection standards and specifications.
- Acapela acts as a data processor within the meaning of Art. 28 GDPR vis-à-vis such customers that feed personal data (personenbezogene Daten) of their customers into the Software. As part of the online registration process, the Parties conclude a data processing agreement pursuant to Art. 28 GDPR. A completion of the online registration process is not possible without the conclusion of the data processing agreement.
- The following only applies to customers which legally qualify as businesses (Unternehmer) pursuant to Section 14 German Civil Code: Should individual provisions of the Contract of use or other contractual documents be or become invalid or unenforceable in whole or in part or should they not contain a necessary provision, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or to fill the loophole, the legally admissible provision shall be deemed to have been agreed retroactively which corresponds as closely as possible to what the Parties would have wished or would have been agreed in spirit and purpose by the Parties if they had considered the invalidity or unenforceability of the provision in question or the loophole.
- If these ToU refer to a written form or notification, the sending of an e-mail shall also suffice respectively.
- The Contract and the other contract documents are subject to the law of the Federal Republic of Germany to the exclusion of the German conflict of laws principles and the UN Convention on Contracts for the International Sale of Goods. Statutory provisions on the restriction of choice of law and the applicability of mandatory law in particular of the place where a customer which legally qualifies as consumer (Verbraucher) pursuant to Section 13 German Civil Code has its habitual residence (gewöhnlicher Aufenthalt) remain unaffected.
- Vis-à-vis customers that qualify as merchant (Kaufmann), legal entity under public law (juristische Person des öffentlichen Rechts) or separate fund under public law (öffentlich-rechtliches Sondervermögen), for all disputes arising from or in connection with the Contract or the ToU, including their validity, the District Court of Berlin (Landgericht Berlin) shall have exclusive jurisdiction to the extent permitted by law.
- The European Commission provides a platform for an online settlement of disputes which can be accessed under https://ec.europa.eu/consumers/odr/. Acapela is neither obliged to take part in alternative dispute resolutions before a consumer dispute settlement commission nor will it do so voluntarily.
Last Updated: 07/05/2021 (Version 1.0)