Terms

1. General

1.1. appy.berlin GmbH & Co. KG (“appy.berlin”) offers cloud and location based content management services as well as mobile applications and related services as further specified on simplem.app (both the “Website”) and individually offered by appy.berlin (jointly the “Services”, “Service”). The Service allows the Users to create and manage location based content such as (Content, Tags and Media such as Pictures: “Content”), to serve it to web and and view, search, filter and edit it via the SimpleM.app and derived mobile apps. 1.2. All contractual relationships between appy.berlin and any user using the Services offered by appy.berlin (a “User”, “Users”) shall be governed by these Terms of Service (the “Terms of Service”). By registering with appy.berlin’ Website or using the Services, the User agrees to be bound by these Terms of Service. 1.3. The Service offerings of appy.berlin are available to both Consumers and Business Clients (as defined below). For the purpose of these Terms of Service, (i) a “Consumer” is any individual entering into the contract for a purpose not related to his or her business, trade or self-employed professional activity (Sec. 13 of the German Civil Code), and (ii) a “Business Client” is a User (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or its self-employed professional activity (Sec. 14 (1) of the German Civil Code). 1.4. Standard business conditions and/or general terms and conditions of the User do not apply, regardless of whether or not appy.berlin has expressly objected to them in a particular case.

2. Registration

2.1. The use of the Services may require prior registration on the Website by creating a appy.berlin account and the acceptance of these Terms of Service. By clicking the box “I agree to these Terms of Service” or by registering on the Website after appy.berlin has provided a link with these Terms of Services stating that they will be included, a User agrees he has read, understood, and accepted the Terms of Service. 2.2. appy.berlin offers its Services which require prior registration to persons over 18 years of age. 2.3. The User is responsible for the accuracy of the information necessary for registration as a User. He is obligated to keep credentials secret and protect them against unauthorised use by third parties. In case of misuse or loss of the credentials or in case of an appropriate suspicion, he must report the same to appy.berlin to simplemapp+terms@appy.berlin. 2.4. Any User will be offered to invite other Users, inside as well as outside of his own organization.

3. Use of Services

3.1. Offers published by appy.berlin on the Website are non-binding. 3.2. The User may use the Services to a certain limit for free, or for a trial run, after registering. The User may only register for a free plan once. If a User registers for more than one free plan, then appy.berlin will have the right to delete these additional accounts. 3.3. By registering on the Website according to Section 2 hereof and subscribing to a subscription plan, the User makes a binding offer to use the respective Services. The offer shall be deemed to be accepted by appy.berlin by making available the respective Service. Upon the acceptance of a subscription a contract between the User and appy.berlin is concluded (the “Contract”). 3.4. The User can subscribe to the Services on a monthly or annual basis. 4. Technical Requirements 4.1. In order to use any of the Services please check all technical details and conditions on our Website. appy.berlin will update all information about its platform/Website frequently (“Technical Requirements”). 4.2. The User is solely responsible for the fulfilment of the Technical Requirements; appy.berlin does not owe and/or provide any consultancy services in connection therewith if not otherwise agreed with appy.berlin. appy.berlin provides support for Users using a paid subscription plan. 4.3. The use of Services may differ depending on the hardware and/or software used by the User.

5. Prices and Payment

5.1. The User, when using a paid subscription plan, will be required to provide appy.berlin with billing and account information for credit card, debit or other payment systems, such as PayPal, (each a “Payment Source”) for which the User is authorized to approve charges to allow appy.berlin to collect payment from the Users for their purchases. The Users authorize appy.berlin to automatically and immediately bill the Payment Source when payments for subscription plans are due. The User shall only be allowed to raise an objection to a bill/deduction within eighty days starting from the day the deduction was made. If the objection was not raised, the deduction is deemed accepted by the User. 5.2. The billing of a subscription plan is made on a pre-paid basis. The payment source will be billed within five bank working days of the beginning of the chosen subscription period and at every renewed period of subscription respectively according to the current price list. 5.3. appy.berlin may amend the price list of Services at any time upon observance of statutory regulations and notifying the Users about the amendment. 5.4. The stated prices are net prices excluding VAT. All other charges in connection with the use of the Services shall be borne by the User.

6. Contract Period, Termination of Contract, Cancellation of Account

6.1. The term of use depends on the subscription period chosen by a User when ordering appy.berlin’ Services and shall be renewed for that same period (i.e. another month) each time the User does not terminate the Contract according to Section 6.2 below. 6.2. The User may terminate a Contract before the end of the ordered subscription period or to the end of the respective renewed period. The ordinary termination of a Contract before expiry of the respective subscription period is hereby excluded. 6.3. A User may also switch to a cheaper plan within the ordered subscription period. Payments already made for the ordered plan will not be refunded. 6.4. The right of termination for cause and without notice remains unaffected for both parties. A good cause for termination shall include, but shall not be limited to, any of the following events: 6.4.1. the User fails to comply with any applicable legal provisions; 6.4.2. the User fails to comply with any terms of these Terms of Service; 6.4.3. the User fails to pay the fees for the ordered Services. 6.5. Any termination declaration must be at least in text form according to section 126b BGB (e.g. by letter, email) to appy.berlin GmbH & Co. KG, Pettenkoferstr. 18, 10247 Berlin, Germany or to simplemapp+terms@appy.berlin. 6.6. After a User has terminated the Contract, appy.berlin will not provide any stored data in the account nor will his app be available to users. appy.berlin will delete any data of that User after he has cancelled his registration.

7. Prohibited use

7.1. The Users shall act according to the destined functions of the Website and Services. Any inappropriate or illegal use, manipulation, or change of the Website and Services is prohibited. It is particularly forbidden to use the Website and/or Services to distribute illegal Content and/or Content that infringes third parties rights, in particular but not limited to 7.1.1. pornographic, insulting, offensive, racist, threatening, youth protection law infringing, or other illegal or immoral Contents or to advertise, offer, or sell such products; 7.1.2. malware; 7.1.3. threats to other Users; 7.1.4. Content that affects or infringes the rights of third parties or that is covered by copyrights, unless the User owns the respective copyright or has the permission of the copyright owner; 7.2. Furthermore it is forbidden 7.2.1. to use temporary e-mail addresses; 7.2.2. to create multiple accounts for disruptive or abusive purposes; 7.3. appy.berlin reserves the right to delete any infringing Content according to this Section 7, terminate the Services and/or suspend accounts of Users that are violating any of these Terms of Service, in particular this Section 7.

8. User’s Warranty, Responsibility

8.1. The User is solely responsible for its Content and for payments of all fees and licences related hereto, such as royalty payments to any collection societies. In particular the User represents and warrants that any material, data, images, photos, videos, music and other Content submitted or otherwise transferred or published via appy.berlin’ Website or the use of the Services does not infringe third party rights or any applicable law and does not consist of or include Content according to Section 8 hereof. 8.2. appy.berlin has no ability to and does not control or monitor any of the Content. appy.berlin is not responsible or liable for the availability, accuracy, completeness, freshness and legality of the Content.

9. Revocation

Any User who is a Consumer according to the definition in Section 1.4 hereof is entitled to revoke his order as follows:

Right of revocation
Any User who is a Consumer may revoke his offer to use the services within a period of 14 days without having to state his reason. The revocation has to be done in text form (e.g. letter, e-mail, fax). The period starts with the receipt of this notification in text form, but not prior the conclusion of the contract, not prior appy.berlin has fulfilled its obligation to inform according to Article 246 § 2 in conjunction with § 1 para. 1 and 2 EGBGB, and not before appy.berlin has fulfilled its obligation to inform according to § 312g para. 1 sentence 1 BGB in conjunction with Article 246 § 3 EGBGB.

Dispatching the revocation or the product on time is sufficient to comply with the revocation period. The revocation is to be directed to:

appy.berlin GmbH & Co. KG
Pettenkoferstr. 18
10247 Berlin
Germany
E-Mail: simplemapp+terms@appy.berlin

Consequences of revocation
If the user revokes his offer effectively, both parties must mutually return the received contractual services including derived benefits (e.g. interest). If the user cannot completely return the received contractual services or emoluments (e.g. advantages of using) or if you can only return them in declined condition, the user has to compensate the lost value. This may result in the User obligation to fulfill his contractual obligation of payment for the term until the right of revocation was exercised.

Special note
The right of revocation expires prematurely, if the contract, at Users express request, has been executed in full by both parties prior to User exercising his right of revocation.

10. Liability of appy.berlin

10.1. appy.berlin is unrestrictedly liable for damages that have been caused by deliberate intention or by gross negligence by appy.berlin, its legal representatives or senior executives and for damages that have been caused by deliberate intention by other assistance in performance; in respect of gross negligence of other assistants in performance appy.berlin’ liability shall be as set forth in the provisions for slight negligence. 10.2. In cases of slight negligence, appy.berlin is only liable if it, its legal representatives or assistants in performance has infringed a fundamental duty and if the purpose of the Contract is threatened thereby or if it its legal representatives or assistants in performance have infringed duties that have to be fulfilled for the duly contract implementation and if the User generally relies on the fulfilment of these duties. In the aforementioned cases, appy.berlin is only liable for foreseeable damages by a User at the time the respective Service was performed. Liability of appy.berlin for consequential damage and lost profit is excluded. 10.3. appy.berlin is only liable to Business Clients according to the definition of Section 1.3 hereof in the event of gross negligence for predictable damages up to the amount of the respective price of Service. 10.4. appy.berlin will not be liable hereunder by reason of any failure to timely perform its Services due to an event beyond its reasonable control, including acts of God; acts of terrorism; civil unrest; war; fires; power cuts; epidemics. 10.5. appy.berlin will make every effort to provide a stable and powerful Service in cooperation with service partners and data processing centres. However, potential service failures due to malfunctions or maintenance works are to be expected and do not constitute a defect of Service. No guarantee of appy.berlin shall be given for the absence of viruses or any other harmful components of the Website or appy.berlin’ software. 10.6. If the liability of appy.berlin is excluded or restricted, this also applies to the personal liability of its employees, representatives, and agents. 10.7. The aforementioned restrictions of liability do not apply to cases of damages to life, body, or health, to cases of warranting for the condition of a product, and to cases of fraudulent concealment of defects of appy.berlin, its legal representatives or assistants in performance.

11. Indemnification

11.1. A User will indemnify, defend, and hold harmless appy.berlin and its officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the Users use of the Website and/or Services; (ii) any breach by a User of any warranty defined in Section 9; (iii) any claim that the User’s Content caused damage to a third party. 11.2. In cases of an aforementioned enforcement of claims by third parties, the User will provide appy.berlin with all his information that is needed for the examination of the claim and for the defence against it. The User provides the information immediately, truthfully, and completely. 11.3. The regulation of liability of a User or his obligation of indemnification shall apply to the same extent in the event of an act of his sub-account user.

12. Intellectual Property Rights

12.1. appy.berlin License

Subject to the Users compliance with the terms and conditions of these Terms of Service, appy.berlin grants its Users a limited non-exclusive, non-transferable license to access and make personal use of the Website and the Services including certain software and not to download or modify it, as part or as a whole (the “appy.berlin License”). The appy.berlin License does not include the right of any resale or other use outside the offered Services. Any commercial use of the Website and/or Services requires appy.berlin’ prior written approval. The appy.berlin License granted to a User will automatically terminate without notice from appy.berlin if the respective User breaches any terms of these Terms of Service.

12.2. User Content

appy.berlin does not claim any ownership rights in User Content. However by uploading, streaming, emailing or otherwise transmitting any Content to appy.berlin, the User hereby grants appy.berlin the non-exclusive, worldwide, royalty-free, sub-licensable right to use, in particular to copy, modify, transmit, store, archive, display and publish the Content for the purpose of using it in own products and providing the Services.

13. Use for reference

The User agrees that appy.berlin may use information of the User provided by him (i.e. the name/trademark) for marketing purposes as reference on their website. The User may withdraw such consent by writing an email to appy.berlin to simplemapp+terms@appy.berlin

14. Data Protection

Please find our Privacy Policy on our Website: Privacy Policy

15. Miscellaneous

15.1. Any contracts entered into between appy.berlin and a User shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions. 15.2. If the User is a Business Client or if the User is a legal entity or a foreign special fund organized under public law, the courts in Berlin, Germany, shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract. 15.3. Should any provision of this Terms of Service be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by such valid, effective and enforceable provision as come closest to the economic intent and purpose as of such invalid, ineffective or unenforceable provisions as regard subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in these Terms of Service if any court has confirmed such proceeding.