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"):
§ 1 Subject matter of the Contract
(1) Circula rents the "Circula" software (hereinafter referred to as "Software") to the client. If so agreed, Circula shall also implement the software on behalf of the client.
(2) The software shall be made available to the client in the version selected by him/her (standard or enterprise).
(3) The software will be delivered to the client as follows: program and online manual.
§ 2 Compensation
(1) The payment for the use of the software is EUR 5.00 net per user per month (gross: EUR 5.95) with a yearly prepayment and EUR 7.00 net (gross: EUR 8.33) with a monthly payment.
(2) The compensation will be due for payment after the expiration of the free 14-day trial period, provided that the client still uses the software.
§ 3 Software maintenance
(1) Circula shall provide the following services during the duration of the contract:
a) Further development: Circula will continue to develop the software in terms of quality and up-to-date technology, adapt it to changing requirements, correct errors in order to maintain the quality of the software, and provide the customer with new versions of the software resulting therefrom. Smaller functional enhancements are also included.
b) Troubleshooting: Circula supports the customer by providing guidance on software use and error prevention, troubleshooting and error avoidance.
(2) Circula renders the services according to the current state of technology and in such a way that is orientated towards the interests of all software users. The services are rendered only in relation to the latest software version provided by Circula.
§ 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 own company for his/her own 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 drawing up of a company profile by the client and after expiry of the free trial period.
(2) The contract may be terminated by either party in the case of a monthly payment scheme with one month's notice unless otherwise specified. In the case of an annual prepayment plan, the client must give notice of termination no later than one month before the end of the 12-month contract. The right to extraordinary termination remains unaffected by this.
(3) In order to be valid, any termination requires an e-mail to be sent to email@example.com.
(4) At the end of the contract, the client must return all items handed over by Circula or assure Circula in writing that they have been deleted. The client must delete or destroy all copies of the software and declare in writing 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 customer. 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 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) The liability in case of intent and under warranty is unlimited.
b) In the event of gross negligence, Circula shall be liable for the typical and foreseeable damage at the time of the conclusion of the contract.
c) In the case of simple negligent breach of a major obligation (an obligation, of which the fulfilment is necessary for a proper execution of the contract, and on the fulfilment of which the contractual partner regularly relies and is entitled to rely and whose breach jeopardizes the achievement of the purpose of the contract), Circula shall be liable in the amount of the typical and foreseeable damage at the time of conclusion of the contract, but not more than EUR 10,000.00 per claim and EUR 100,000.00 for all claims arising from and in connection with the contract.
(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 the technology.
(3) In the event of injury to life, body and health and in the event of claims arising from the Product Liability Act, the statutory provisions shall apply without restriction.
§ 9 Statute of limitations
(1) The statute of limitations is as follows:
a) in the case of material defects for claims of reimbursement of the purchase price due to withdrawal or reduction, the period is one year from the date of making the software available, but for properly notified defects not less than three months from the date on which the valid declaration of withdrawal or decrease in payment is submitted;
b) one year in the case of other claims arising from material defects;
c) two years in the case of claims arising from defects of title;
d) two years in the case of claims for damages or reimbursement of futile expenses that are not based on material or legal defects. The period begins with the time in which the customer becomes aware of the circumstances giving rise to the claim or acquired knowledge of them without gross negligence.
(2) The statute of limitations expires at the latest at the end of the maximum periods stipulated in § 109 BGB. In the case of damages and compensation claims arising from wilful acts, gross negligence, warranty, malice and in the cases mentioned in § 8 Paragraph 3, the legal statute of limitations shall always apply.
§ 10 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 which 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 for 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 successful completion of the services.
(4) The data protection notice made available at www.circula.com/privacy shall apply.
§11 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.