Terms and Conditions of our Software
Circula GmbH General Terms and Conditions for the use of the software "Circula”
The use of the software "Circula" of Circula GmbH ("Circula") by individuals and companies, which are considered as companies in the sense of § 14 BGB (German Civil Code), ("client") is subject to the following general terms and conditions ("terms and conditions"):
Definitions and scope of application
(1) Clients are the customers of Circula (individuals or companies) who rent and pay for the software.
(2) Users are the persons authorized by the client for the use of the software, who are either in an employment relationship with the client, with a company affiliated with the client in accordance with §§ 15 ff. AktG, or who work exclusively on behalf of the client and require the software in order to perform their tasks. The users shall not become a party to this agreement.
(3) Software is the software provided by Circula, which consists of a mobile app, a web app and a backend operated by Circula.
§ 1 Subject matter of the contract
(1) Circula rents the software "Circula" (hereinafter referred to as "software") to the client. The client (and his users) are entitled to download and install the mobile app, access the web app and access the backend; a copy of the backend is not made available to the client. If agreed, Circula will implement the software for the client.
(2) The software is provided to the client for use in the variant chosen by him (Basic, Professional or Enterprise).
(3) The exact scope of delivery is defined in the client's order and the order confirmation from Circula.
§ 2 Compensation
(1) The compensation, as well as the agreement of monthly or annual advance payment, results from the order of the client and the order confirmation from Circula. The current price list can be seen under https://www.circula.com/de/pricing.
(2) The remuneration is due for the first time after the end of the free trial period of 14 days, unless the renter decides to terminate the contract at the end of the trial period and continues to use the software.
§ 3 Services of Circula
(1) Circula provides the following services during the contract period:
a) Operation of the software: Circula offers the client and the users the possibility to download the mobile app and install it on suitable smartphones as well as to access the web app via a standard browser and use it in connection with the backend. Furthermore, Circula operates the backend as an online product and ensures that the backend is accessible via the mobile app and the web app - assuming a functional data connection is provided by the client.
b) Further development: Circula shall further develop the software in terms of quality and modernity, adapt it to changed requirements, eliminate errors in order to maintain the accustomed quality and grant the client access to new versions of the software resulting from this. This also includes minor functional enhancements.
c) Troubleshooting: Circula supports the client with advice on software use, error prevention, error correction and error avoidance.
(2) Circula provides the services in accordance with acknowledged rules of technology and in such a way that they are oriented towards the interests of all Circula clients. The services are only provided in relation to the latest software version operated by Circula.
(3) Circula shall use reasonable technical and organisational measures to keep the software, especially the backend, available during normal working hours. Nevertheless, failures can occur, e.g. due to technical faults, errors, or planned or unplanned maintenance. In the event of a failure, Circula will attempt to restore availability within the scope of the error classes. Circula will inform the client in advance about planned maintenance.
(4) The object of Circula's service is not to advise the client in tax or legal matters. This is the sole responsibility of the client.
§ 4 Client's rights to the Software
(1) The client is only entitled to use the software to process his/her own data in his/her company for his/her purposes. Circula hereby grants the user the necessary authority for this purpose as a non-exclusive, simple right for the duration of the contract.
(2) The client is not entitled to pass on the software or parts of it to a third party or to allow a third party to use or take note of it or to utilize the software for a third party.
§ 5 Duration of contract
(1) The contract begins with the creation of a company profile by the client. An invoiceable account is created when the client - at the end of a free trial period - enters his credit card information in the company account and clicks on "order now".
(2) The contract is signed either with a term of one month or one year and is extended by the same term if it is not terminated before the end of the contract term.
(3) The contract can be terminated with a notice period of one month to the end of the agreed contract period. The right to extraordinary termination remains unaffected.
(4) The client can terminate the contract by sending an e-mail to firstname.lastname@example.org.
(5) At the end of the contract, the client shall return to Circula all objects provided or assure Circula in writing or in text form that they have been deleted. The client shall delete or destroy all copies of the software and shall assure Circula in writing or text form that this has been done.
§ 6 Error classes, response times, availability
(1) The parties agree on the following error classes and reaction times:
a) Error class 1: Operation-preventing errors: The error prevents business operations for the client. If there is no workaround solution Circula starts rectifying the error immediately, at the latest within four hours after the error message and shall continue to do so vigorously until the error has been rectified, even outside of normal working hours (weekdays 8 a. m. to 5 p. m.).
b) Error class 2: Operational-disruptive errors: The error significantly impedes business operations for the client, however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or complications. If the error was reported before 10.00 a. m., Circula begins with the error repair on the same day. If the error was reported later in the day, Circula will begin the repair process at the beginning of the next working day and continue to repair the error within the usual working hours.
c) Error class 3: Other errors: Circula will start to debug within one week or correct the error with the following program update if this is reasonable for the client.
(2) Within a period of three months, the total availability of the software may not be affected by a Class 1 error for more than 22 hours or by a Class 2 error for more than 44 hours. Otherwise, the remuneration per hour of the disturbed working time (weekdays 8 a. m. to 5 p. m.) is reduced by 2% of the monthly compensation for an error in Class 1, and by 1% of the monthly compensation for an error in Class 2.
§ 7 Legal Deficiencies
(1) Circula guarantees that no third-party rights conflict with the contractual use of the software by the client. In the event of legal defects, Circula warrants that it will provide the client with a legally sound opportunity to use the software, or do so with the help of an equivalent software.
(2) The client shall inform Circula immediately in writing if third parties claim property rights (e. g. copyrights or patent rights) to the software. Circula will assist the client in the defence against third party attacks by providing advice and information.
§ 8 Obligations of the client and the users
(1) The client is obliged to comply with the following conditions also with regard to his users, to instruct and oblige his users accordingly. The client is liable to Circula for the conduct of its users in accordance with § 278 BGB.
(2) In connection with the use of the software, the client must observe minimum technical requirements for its use. A modern browser (e.g. Chrome, Firefox or Safari) in the latest version is required for the use of the web app. The compatibility of the mobile app with mobile operating systems (Android or iOS) is specified in the respective store. Furthermore, the client must provide a functioning data connection between the end device and the servers of Circula via the internet.
(3) The client is responsible for compliance with the legal provisions and the following regulations when using the software. In particular, the client may not (i) offend common decency with his usage behaviour, (ii) violate industrial property rights and copyrights or other property rights of third parties, (iii) transmit content with viruses, so-called trojan horses or other programming that could damage the software (hereinafter "malware"), or (iv) distribute pornographic content, advertising, unsolicited emails (spam), inaccurate warnings of viruses, malfunctions and similar may not participate in lotteries, snowball systems and comparable activities. Furthermore, any actions must be omitted that are suitable for (i) causing an excessive load on the software or otherwise affecting or manipulating the functionality of the underlying technical infrastructure or (ii) endangering the integrity, stability or availability of the software.
(4) The client shall keep his account data secret and inaccessible to third parties.
(5) The client shall secure his data outside of Circula's software through regular backups.
§ 9 Liability
(1) Circula provides compensation for damages or reimbursement of futile expenses, irrespective of the legal reason (e. g. from contractual and quasi-contractual obligations, defects of quality and defects of title, breach of duty and tort), only to the following extent:
a) Liability in the case of intent or severe negligence, in the case of injury to life, body and health and for claims arising from the Product Liability Act as well as for the assumption of a guarantee is unlimited.
b) In the case of a simple negligent breach of a cardinal obligation (obligation whose fulfilment is essential for the proper execution of the contract, on whose compliance the contractual partner regularly relies and may rely and whose breach endangers the achievement of the purpose of the contract), Circula is liable to the amount of the typical damage foreseeable at the time of the conclusion of the contract.
c) The parties agree that the typically foreseeable damage does not exceed EUR 10,000 per case of damage and with a maximum of EUR 100,000 for all cases of damage from and in connection with the contract.
d) In all other respects Circula's liability is excluded.
(2) Circula reserves the right to object to contributory negligence. In particular, the client is responsible for protecting the data and preventing malware in accordance with the current state of technology.
(3) Circula is not liable for defects that already exist at the time of the conclusion of the contract, contrary to the regulation of § 536a BGB, regardless of fault, but only if and insofar as Circula is responsible for the existence of such a defect.
§ 10 Statute of limitations
(1) The statute of limitations shall be
a) in the case of material defects for claims for repayment of the purchase price resulting from withdrawal or reduction, one year from the time the software is made available, but for properly notified defects, not less than three months from the submission of the effective declaration of withdrawal or reduction;
b) one year for other claims arising from material defects;
c) two years for claims arising from legal defects;
d) two years in the case of claims for damages or compensation for futile expenditure not based on defects of quality or title; the period shall commence at the time when the Purchaser became aware of the circumstances giving rise to the claim or had to become aware of them without gross negligence.
(2) The statute of limitations shall commence at the latest upon expiry of the maximum periods specified in § 109 BGB. However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 8 para. 3, the statutory limitation rules shall always apply.
§ 11 Confidentiality and data privacy
(1) The parties agree to keep all items confidential, even beyond the end of the contract, unless they are publicly known without violation of the obligation to maintain secrecy. This includes items made available either before or during the contract execution by the respective other party (e. g. software, documents, information), items that are legally protected or contain business or trade secrets or are designated as confidential. The parties shall store and secure these items in such a way that access by third parties is impossible.
(2) The client shall only make the software available to employees and other third parties who require access to the performance of their work duties. The client shall inform such individuals about the confidentiality of the items.
(3) Circula processes the data required for the handling of the business transactions of the customer and his/her employees in compliance with data protection regulations. Circula may name the client as a reference customer after the successful completion of the services.
(4) The data protection notice made available at www.circula.com/privacy shall apply.
§12 Final provisions
(1) Changes and amendments to the contract must be made in writing to be legally binding. The written form requirement may only be waived in writing. A communication in text form, especially by fax or e-mail, is also sufficient to maintain the written form requirement.
(2) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods. Place of pertinent jurisdiction for contracts with merchants for all disputes arising from and in connection with this contract is Berlin.
(3) Should a provision of this contract be or become invalid, ineffective or unenforceable in whole or in part, this shall not affect the validity and enforceability of all remaining provisions. The parties agree to replace the invalid, ineffective or unenforceable provision with a valid and enforceable provision that comes closest to the economic purpose of the invalid, ineffective or unenforceable provision in terms of subject matter, measure, time, place or scope of application. The same shall apply mutatis mutandis to any irregular loopholes in this contract.
(4) For the conclusion of the contract the customer has at his disposal the languages in which these T&Cs are available on the website of Circula. For clients from the DACH region – Germany, Austria, Switzerland – the german language version of these T&Cs are binding.