Terms and Conditions of our Software
Circula GmbH General Terms and Conditions for the use of the software "Circula”
- Circula GmbH, with its registered office at Schönhauser Allee 148, 10435 Berlin (hereinafter: "Circula"), operates an intelligent software platform for the administration of employee expenses, travel costs and benefits under the domain www.circula.com (hereinafter: "Circula Portal"). Within the scope of the Circula Portal, Circula offers various Software Products for the use of web app-based and mobile app-based software, which is used to manage employee expenses, travel costs and employee benefits.
Transact Payments Malta Limited is duly authorised and regulated by the Malta Financial Services Authority as a Financial Institution under the Financial Institution Act 1994. Registration number C 91879.
- The use of the Circula Portal and Circula's Software Products by entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), by legal entities under public law or by special funds under public law (hereinafter: "Tenant") is based on the following General Terms and Conditions (hereinafter: "GTC"):
- Tenants are Circula's customers (entrepreneurs) who rent the Software Products and pay for the use of the software.
- Users are the natural persons authorised by the Tenant to use the Software Products.
- Software Products are the software applications configured and provided by Circula for the relevant Users, which are provided to the User by way of a mobile app version and a web app version and also include a back-end service operated by Circula.
§3 Scope of application
- The GTC only apply if the Tenant is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- These GTC and the prices agreed with the Tenants apply exclusively to the use of the Software Products. Deviating general terms and conditions of the customer only become part of the contract if Circula has expressly agreed to their validity in writing or text form (e.g. letter or e-mail). These GTC and the agreed prices also apply if Circula provides its services without reservation in the knowledge of deviating general terms and conditions of the Tenant.
- These GTC only regulate the service relationship between Circula and the Tenants. The respective users of the Software Products do not become party to the contractual relationship with Circula.
- Individual agreements made with the Tenant in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a contract or our confirmation in writing or text form (e.g. letter or e-mail) shall be decisive for the content of such agreements.
- Legally relevant declarations and notifications by the Tenant in relation to the contractual relationship between Circula and the Tenant (e.g. setting of deadlines, notification of defects, termination) must be made in writing or text form (e.g. letter or e-mail). Legal formal requirements and further proofs, in particular in case of doubts about the legitimacy of the declarant, remain unaffected.
- References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§4 Subject matter of the contract
- Circula rents to the Tenant the Software Products listed in the order confirmation issued by Circula (hereinafter: "Order Confirmation") or, if an Order Confirmation is not sent, the Software Products listed in the offer prepared by Circula and electronically signed or signed by the Customer (hereinafter: "Signed Offer"). The Tenant and the Users are entitled to download and install the Mobile App and to access the Web App and to access the Backend via the Mobile App or Web App; a copy of the Backend will not be provided to the Tenant. If agreed, Circula will also implement the Software Products at the Tenant's premise.
- Circula offers the following Software Products to its Tenants:
- Circula Expense,
- Circula Lunch,
- Circula Mobility,
- Circula Internet,
- Circula Relax,
- Circula Sachbezug.
- The Software Products are made available to the Tenant for use in the variant selected by the Tenant (Silver, Gold or Platinum). Circula will provide the Tenant with a detailed description of the individual Software Products together with Tenant’s order.
- The exact scope of delivery results from the Tenant’s order and Circula’s order confirmation or the signed offer.
§5 Services of Circula within the scope of credit card administration
- Customers who wish to use the Circula Pliant credit card shall conclude a separate agreement for credit card use with Circula and a separate agreement for credit card use with Pliant. Subject to a positive outcome of the application review, customers conclude a separate and direct license agreement with Pliant for the use of the Pliant platform, incorporating the Pliant platform General Terms and Conditions for Partner Integrations.
- Customers using the Circula Pliant credit card can use certain credit card administration functions by means of the Software Product Circula Expense. The exact functions of credit card administration are contained in the service description of the Circula Expense software product according to § 4(3) sentence 2. Circula does not provide any other services to the customer in connection with the Circula Pliant credit card than those listed in the service description.
- As long as the customer has not concluded an effective contract with Pliant in the sense of § 5(1) sentence 2, Circula can refuse the service to the customer and set the customer an appropriate deadline, within which the customer has to prove a conclusion of a contract with Pliant. If the customer does not prove a conclusion of contract to Circula within the set period, Circula can terminate the contract with the customer without notice.
- The remuneration as well as the agreement of monthly or annual advance payment results from the Tenant’s order and Circula’s order confirmation or the signed offer. The current price list can be viewed at https://www.circula.com/en/pricing.
- If Circula has agreed a free trial period with the Tenant, the remuneration is due for the first time after the expiry of this agreed free trial period, unless the Tenant decides at the end of the trial period to terminate the contract in accordance with § 9(4). In all other events, the remuneration shall be due for the first time when the period agreed with the customer for the implementation of the software at the customer's premises (e.g. 0/30/90 days) has expired, irrespective of whether the implementation has been completed within the agreed period; if the implementation has already been completed before the agreed implementation period, the remuneration shall be due for the first time already at the time of the actual completion of the implementation of the software.
- The payment method of the Tenant is determined with Tenant’s order. Subsequent changes to the payment method are possible by agreement between Circula and the Tenant.
- If the payment method provided by the Tenant does not work or the Tenant fails to update his/her payment information in a timely manner, Circula is entitled to suspend its contractual performance until the payment method works or the payment information is updated.
§7 Circula services
- Circula shall provide the following services during the contract period:
- Operation of the Software Products: Circula offers the Tenant and the Users the possibility to download the Mobile App and to install it on suitable smartphones as well as to access the Web App via a common browser and to use it in connection with the Backend. Circula also operates the Backend as an online product and ensures that the Backend is accessible via the Mobile App and the Web App, subject to a working data connection to be provided by the Tenant.
- Further development: Circula continues to develop the Software Products in terms of quality and modernity, adapts them to changed requirements, eliminates errors in order to maintain the usual quality and grants the Tenant access to the resulting new versions of the Software Products. This also includes minor functional enhancements.
- Service in the event of defaults: Circula supports the Tenant, to the extent necessary for the Tenant and reasonable for Circula, by providing advice on software use, error avoidance and error correction.
- Circula provides the services in accordance with the recognised rules of technology. The Services will only be provided in relation to the last software version operated by Circula.
- Circula endeavours to keep the Software Products, in particular the backend, available during normal working hours by taking appropriate technical and organisational measures. Nevertheless, failures may occur, e.g. due to technical malfunctions, errors, planned or unplanned maintenance. In the event of an outage, Circula will attempt to restore availability within the limits of the failure classes as per § 11 to restore availability. Circula will inform the Tenant in good time in advance about planned maintenance windows.
- Circula's service does not include advising the Tenant on tax or legal matters. This is the sole responsibility of the Tenant.
§8 Granting of rights
- The Software Products and all of their component parts (such as trademarks, logos, computer programs, graphics, images, text) are the exclusive property of Circula or have been assigned to Circula for its exclusive use. This contract does not include any assignment of intellectual property rights of any kind in any Software Products owned by or assigned to Circula for its exclusive use.
- In return for payment of the remuneration in accordance with § 6 of this contract the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of this contract, to use the Software Products to the extent specified in this contract. The contractual use includes in particular the installation as well as the loading, displaying and running of the installed software. The Tenant uses the Software Products and allows the Users to access the Software Products in accordance with the information that the Tenant can obtain from Circula’s order confirmation or the signed offer, as well as the GTC herein.
- Insofar as this is necessary for use in accordance with this contract, the Tenant is entitled to reproduce the Software Products supplied. In particular, the loading of the software into the working memory shall be regarded as duplication required for use in accordance with the contract. Otherwise, the Tenant shall not be entitled to duplicate, unless otherwise provided by law.
- The Tenant is not entitled to sell the Software Products including the documentation and the order confirmation or the signed offer as well as other accompanying materials supplied to third parties or to make them available to third parties in any other way (in particular by renting or lending).
- The Tenant is not entitled to edit, decompile, correct, adapt, modify, translate or generally change the Software, unless the change or editing is a remedy of a defect necessary for the contractual use of the Software, with which Circula is in default.
- If the Tenant violates any of the above provisions, all rights of use granted under this contract shall immediately become invalid and automatically revert to Circula. In this case, the Tenant must immediately and completely stop using the Software and delete all copies of the Software installed on its systems.
§9 Duration of contract
- The tenancy begins with regard to the Software Product "Circula Expense" at the point in time defined as the start of use in the signed offer. With regard to the other Software Products ("Circula Lunch", "Circula Mobility", "Circula Internet"), the tenancy begins as of electronic signing of Circula’s order confirmation by the Tenant.
- The contract is concluded for a term of one year and is extended by the same term in each case if it is not terminated before the end of the contract term. The specific contract term results from Circula’s order confirmation or the signed offer.
- The contract may be terminated with one month's notice to the end of the agreed contract period.
- If the Tenant has been granted a free trial period upon conclusion of the contract, the tenant has the right to terminate the contract with immediate effect and without stating reasons until the expiry of the trial period which is free of charge for him.
- The right to extraordinary termination for good cause shall remain unaffected by the above ordinary termination rights. An important reason exists in particular if (i) the Tenant violates the provisions of § 8 of these GTC and does not stop his act of infringement within a reasonable period of time, if Circula has previously warned the Tenant to cease this act of infringement or (ii) the Tenant is in arrears with at least an amount equal to two instalments of the remuneration or (iii) the Tenant is obviously insolvent.
- The tenant can give notice by e-mail to firstname.lastname@example.org.
- If the tenant uses a Circula Pliant credit card, the contractual relationship between the customer and Circula is not affected by the termination of the contract between the customer and Pliant. Termination of the contract with Circula requires termination vis-à-vis Circula. Conversely, termination of the Agreement with Circula does not terminate the customer's agreement with Pliant; the Customer must terminate the agreement with Pliant separately.
§10 Return and cancellation
- After termination of the contract, the Tenant is obliged to cease using the Software Products and to return the software and all programme copies as well as all documentation, materials and other documents to Circula. The return takes place at the Tenant's own expense.
- Circula is at liberty to waive the return in accordance with para. 1 and instead to demand from the Tenant the deletion of the Software and other programme copies and the destruction of the documentation, materials and other documents provided. The Tenant shall assure in writing or in text form within one week after termination of the contract that a corresponding deletion and destruction has taken place.
- Furthermore, the Tenant is obliged to completely and permanently delete all installed programme copies and any stored documentation from all its servers.
- Any use of the software after termination of the tenancy is not permitted.
§11 Error classes, response times, availability
- The Parties agree on the following error classes and response times:
- Error class 1 - Errors preventing operation: The error prevents business operations at the Tenant; an alternative solution (i.e. alternative software in addition to the Circula Software Product with the same functions as the contractually agreed Software Product) is not available: Circula shall immediately, at the latest within four hours after the error message, begin with the elimination of the error and shall continue it with vigour until the error has been eliminated, as far as reasonable also outside the usual working hours (weekdays 8.00 a.m. to 5.00 p.m.).
- Error class 2 - Operationally obstructive errors: The error significantly obstructs business operations at the Tenant; however, the use of the software is possible with alternative solutions or with temporarily acceptable restrictions or difficulties: Circula begins with the error removal on the same day in the case of an error message before 10.00 a.m., in the case of a later error message at the beginning of the next working day and continues until the error is removed within the usual working hours.
- Error class 3 - Other errors: Circula will begin to rectify the error within one week or will only rectify the error with the next update for the Software Product if this is reasonable for the Tenant.
- In no period of three months may the availability of the software be impaired for a total of more than 22 hours by a class 1 error or for a total of more than 44 hours by a class 2 error. Otherwise, the remuneration shall be reduced by 2 % of the monthly remuneration per hour of the disrupted working time (weekdays 8.00 a.m. to 5.00 p.m.) in the case of a class 1 error, and by 1 % of the monthly remuneration in the case of a class 2 error.
§12 Legal defects
- Circula warrants that the contractual use of the Software Products by the Tenant does not conflict with the rights of third parties. In the case of defects of title, Circula warrants that it will, at its discretion, provide the Tenant with a legally unobjectionable possibility of using the Software Products or equivalent software.
- The Tenant informs Circula immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the Software Products. Circula supports the Tenant to a reasonable extent in his defence against the attacks of the third party by advice and information. This support presupposes that the Tenant has informed Circula immediately and coordinates the defence closely with Circula. At Circula's request, the Tenant will leave the legal defence against the third party's claim to Circula.
- Should the Tenant discover defects in the Software Products or in the documentation, the Tenant must notify Circula of these in writing without delay.
- Circula is obliged to remedy these defects in accordance with troubleshooting processes specified in § 11.
- The Tenant must allow Circula the access to the Software Products and to the documentation required for the purpose of rectifying the defect.
- The Tenant is not entitled to claim a rent reduction by deducting the amount of the reduction from the current rent on his own. The Tenant's claim under the law of enrichment to reclaim the part of the rent paid in excess due to a justified reduction remains unaffected by this.
§14 Obligations of the Tenant and the users
- The Tenant undertakes to comply with the following conditions, also with regard to his users, and to instruct and oblige his users accordingly. The Tenant is liable to Circula for the conduct of its users in accordance with § 278 BGB.
- The Tenant shall observe the minimum technical requirements necessary in connection with the use of the Software Products. A modern browser (e.g. Chrome, Firefox or Safari) in the respective current version is required to use the web app. The compatibility of the mobile app with mobile operating systems (Android or iOS) is specified in the respective store. Furthermore, the Tenant must have a functioning data connection between the end device and Circula's servers via the internet.
- The Tenant is responsible for compliance with the statutory provisions and the following regulations when using the Software Products. In particular, the Tenant may not:
- violate morality with his or her usage behaviour,
- violate industrial property rights and copyrights or other property rights of third parties,
- transmit content containing viruses, so-called Trojan horses or other programming that may damage the software (hereinafter referred to as "malware"), or
- distribute pornographic content, advertising, unsolicited e-mails (spam) or inaccurate warnings of viruses, malfunctions and the like, or solicit participation in lotteries, snowball systems and comparable actions.
- Furthermore, all actions are to be refrained from that are likely to:
- cause an excessive load on the software or otherwise impair or manipulate the functionality of the underlying technical infrastructure; or
- jeopardise the integrity, stability or availability of the software.
- The Tenant is obliged to notify Circula of any functional failures, malfunctions or impairments of the Software Products immediately and as precisely as possible.
- Furthermore, the Tenant is obliged to cooperate, insofar as this is necessary for the proper performance of the services by Circula. In particular, the Tenant has to provide Circula, without being asked, with all documents necessary for the performance of the services completely and in such a timely manner that they can be processed within a reasonable time. The same applies to the information about all processes and circumstances which can be of importance for the performance of the services of Circula.
- The Tenant is obliged to ensure that unauthorised third parties do not gain access to the Tenant's user account.
- The Tenant secures its data outside Circula's software by regular backups.
- Circula will only pay compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material and legal defects, breach of duty and unlawful acts), to the following extent:
- Liability in the event of intent or gross negligence, injury to life, body and health and in the event of claims under the Product Liability Act and the assumption of a guarantee is unlimited.
- In the event of a simple negligent breach of a cardinal obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place, the observance of which the contractual partner regularly relies on and may rely on and the breach of which jeopardises the achievement of the purpose of the contract), Circula is liable to the amount of the typical damage foreseeable at the time the contract was concluded.
- The parties agree that the typically foreseeable damage shall not exceed EUR 10,000 per claim and a maximum of EUR 100,000 for all claims arising from and in connection with the contract.
- In all other respects, any liability on the part of Circula is excluded.
- Circula retains the right to object to contributory negligence. In particular, the Tenant has the obligation to back up data and to defend against malware in each case in accordance with the current state of the art.
- Contrary to the provision of § 536a BGB (German Civil Code), Circula is not liable regardless of fault for defects, which are already present at the time of conclusion of the contract, but only if and insofar as Circula is responsible for the existence of such a defect.
- The above limitation of liability also applies to the personal liability of Circula's employees, representatives and bodies.
- The limitation period is
- in the case of material defects, for claims for repayment of the remuneration from termination or reduction one year from the Tenant's knowledge of the respective material defect, but for duly notified defects not less than three months from the submission of the effective termination or reduction declaration;
- in the case of other claims arising from material defects, one year from the date on which the Tenant obtained knowledge of the respective material defect;
- in the case of claims arising from defects of title, two years from the date on which the Tenant obtained knowledge of the respective defect of title;
- in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, two years; the period shall commence at the time at which the Tenant obtained knowledge of the circumstances giving rise to the claim or should have become aware without gross negligence.
- The limitation period shall commence at the latest upon expiry of the maximum periods regulated in § 199 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 § 14(3), the statutory limitation rules shall always apply.
§17 Secrecy and data protection
- The parties undertake to treat as confidential all items (e.g. software, documents, information) which they receive or become aware of from the other party before or during the performance of the contract and which are protected by law or contain business or trade secrets or are designated as confidential, also beyond the end of the contract, unless they are publicly known without any breach of the duty of confidentiality. The parties shall store and secure these items in such a way that access by third parties is excluded.
- The Tenant shall make the software accessible only to the users. He shall instruct these persons about the need to keep the items secret.
- Circula processes the data of the Tenant and the users required for the business transaction in compliance with the data protection regulations. Circula may name the Tenant as a reference customer after successful completion of the services.
- The data protection information available at https://www.circula.com/en/privacy applies. The Tenant will inform its users about the data processing by Circula.
§18 Final provisions
- Amendments and supplements to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, shall also be sufficient to comply with the written form requirement. Written form within the meaning of this contract can also be complied with by sending a physically or digitally signed document as a PDF (by e-mail or post) or by using digital signature software (e.g. HelloSign), in addition to compliance with written form within the meaning of Section 126 of the German Civil Code (BGB).
- The law of the Federal Republic of Germany shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract is Berlin for contracts with merchants.
- If any provision of this contract is or becomes void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected thereby. The parties shall replace the void, invalid or unenforceable provision with the valid and enforceable provision that comes closest to the economic purpose of the void, invalid or unenforceable provision in terms of subject matter, extent, time, place or scope. The same shall apply to any unplanned regulatory gaps in this contract.
- The Tenant is not entitled to transfer and/or assign rights and obligations from the contractual relationships binding the parties to third parties without the prior written consent of Circula. This prohibition of assignment does not apply to monetary claims.