Terms and conditions
General Terms and Conditions for Software-as-a-Service Services of Kurabu
Edition 05.2020 (in the following: "GTC")
1. Scope of application
1.1 Kurabu is the developer and copyright owner of the association platform "Kurabu" and the app "Kurabu" (iOS & Android) (hereinafter referred to as "Software"). This is a completely software-based solution for associations and other organizations used over the internet. This software is provided by Kurabu via remote access over the internet ("Software as a Service", hereinafter "SaaS"). In the following, "buyer" means the association or other organization using the software, "members" or "users" the members, employees, or other natural persons who are also authorized to use the software.
1.2 The General Terms and Conditions (the "GTC") regulate the use of the "Kurabu" software as a SaaS solution by the purchaser.
1.3 Kurabu only permits the use of the software by these Terms and Conditions; accordingly, the purchaser or its members must agree to these Terms and Conditions before Kurabu grants access to the software.
1.4 The general contractual or commercial terms and conditions of the buyers, even if these are attached to requests for offers, orders, declarations of acceptance, etc., are not part of the contract, even if Kurabu has not contradicted these terms and conditions.
1.5 The conclusion of the contract will only become binding when Kurabu confirms it electronically. If the purchaser or members purchase the software in an App Store operated by a third party, the terms and conditions of the respective App Store shall apply to the conclusion of the contract.
2. The object of the services
2.1 Subject matter of the contract is the permission to use the software as a SaaS solution as well as the storage of data by the purchaser in computer centers which are operated on behalf of Kurabu ("hosting"), as well as the sending of e-mails or push messages by the purchaser via the SaaS solution. Customers pay the agreed fees for this; use is free of charge for members.
2.2 The acceptance of a guarantee for certain features (quality) requires that the written confirmation from Kurabu is effective.
2.3 Kurabu has the right to provide the services according to the privacy agreement in whole or in part from third parties (as a subcontractor). Such sub-contractors may be provided with documents, information, and customer and user data to enable Kurabu to perform the Service as required. Kurabu agrees to enter into an order processing contract with all sub-contractors.
3. System availability & force majeure
3.1 With Kurabu buyers and members can use the software 7 days a week / 24 hours a day. This does not include the time required for regular maintenance and technical care or improvement of hardware and software (planned "downtime") and cases according to § 13 below (Liability - Force Majeure and other) impediments to performance for which Kurabu is not responsible). Planned "downtime" is already taken into account when measuring compensation. A reduction of compensation due to planned "downtime" is not an option.
3.2 With a notice period of 4 days Kurabu may interrupt the provision of services for a predefined time to carry out maintenance work. Kurabu will endeavor to carry out maintenance work outside normal business hours (Central European Time / GMT). To ensure the functionality of the software, Kurabu may install the necessary "fixes" via email with prior notice and suspend the provision of services. Interruptions announced for maintenance purposes will not be taken into account when determining availability.
3.3. Data transmission deficiencies caused in the local IT system of the purchaser or by an error in the connection of the purchaser to the agreed transmission point (e.g. line errors or errors with other telecommunication providers or suppliers) They do not constitute an error in the above-mentioned sense.
3.4 Kurabu can block and delete accounts configured for testing purposes at any time without prior notice. Customers have the right to set up test accounts at agreed-upon times.
4. Provision of services
4.1 The use of the software functions by the customer requires authorization to access the software, which in turn affects the functional area available to the user.
4.2 A software condition outside of the offered functional scope is not due. Technical data, specifications, and performance data in public statements, especially in advertising material, are not guarantees or quality specifications.
4.3 Kurabu will continue to develop the software as an integral part of the SaaS offer. Within the scope of the later development of the software, the partial functions can be changed or eliminated, provided that this does not endanger the achievement of the contractual purpose for the purchaser.
4.4 Kurabu will inform the purchaser in due course of any significant changes in performance. If the purchaser suffers significant disadvantages due to changes in performance, the purchaser is entitled to extraordinary termination of this contract at the time of the change.
4.5 If Kurabu does not fully comply with its agreed obligations, the following provisions shall apply.
4.6 If Kurabu falls behind with the first operational availability of the software, liability is based on § 13.
4.7 If Kurabu does not fully or partially fulfill the obligations agreed upon after the operational availability of the software, the fees for special services will be reduced proportionally until the software and/or application data have not been made available to the purchaser to the extent agreed upon.
4.8 Kurabu must prove that it is not responsible for the reason for the late provision or loss of service. If the purchaser has not informed the supplier of the loss of service, the purchaser must prove in the event of a dispute that Kurabu has realized this.
5.1 Support requests can be made to firstname.lastname@example.org. Support requests are questions to the Kurabu staff about the software. Support includes the answering of questions regarding correct use and configuration, as well as assistance with technical problems with the software by a Kurabu employee.
5.2 Feedback reports can be sent to email@example.com. The response time for these pure feedback reports is not guaranteed. Reported and verified errors will be corrected as soon as possible in the context of a system update, regardless of the respective message.
6. Duties of the customer, cooperation
6.1 The customer shall fulfill all obligations necessary for the execution and execution of this agreement in a timely, complete, and professional manner.
6.2 It is the responsibility of the purchaser to check the services offered against his requirements and, if necessary, to seek expert advice; to ensure that the minimum requirements of Kurabu are met for the hardware and software used by the purchaser for the contractual use of Kurabu; to follow Kurabu's instructions to avoid errors, to protect your local computer systems from attack by viruses, Trojans or similar malware. Back up data and content transferred to Kurabu regularly and create your backups so that data can be restored if data and information are lost.
6.3 The purchaser or the members will neither use the contract software in any way nor will it be used by unauthorized third parties, in particular, they will not transfer any content with illegal content. This includes in particular obtaining consent or another legal basis if the buyer wishes to use the e-mail function of the SaaS solution for direct marketing purposes. Upon request, the purchaser will provide the proof he has received from Kurabu. The purchaser or members will also refrain from any attempt to access information or data or to interfere with programs operated by Kurabu without their permission or by unauthorized third parties.
6.4 The purchaser must immediately report defects in the contractual services to Kurabu in writing, stating how and under what circumstances the defect or fault occurs, and actively assist Kurabu in solving the problem. Failure to report shall not affect the user's warranty rights.
6.5 If a third party claims a violation of the law by the data or content provided by the purchaser or members, Kurabu has the right to block the content completely or temporarily, if there are doubts about the legality of the data and/or content justified by objective information. In this case, Kurabu will request the purchaser and/or the respective member to stop the violation or to prove the legality of the content within a reasonable period. If the purchaser or member does not comply with this request, Kurabu has the right to terminate the contract for good cause without prior notice, without prejudice to other rights and remedies. Kurabu may charge the purchaser for the costs incurred as a result of the above measures at the prices applicable in Kurabu. If the purchaser or member is responsible for the breach, the purchaser will indemnify Kurabu for any damage resulting from the breach and will compensate Kurabu for any claims by third parties if the purchaser is responsible for such damage. Other rights are reserved.
6.6 Furthermore, the purchaser is obliged to provide all relevant cooperation services immediately and free of charge, especially if Kurabu requests this and the necessary measures do not exceed the reasonable effort.
6.7 In the event of a serious or another breach of the obligations under this contract by the purchaser or member, or repeated violations, Kurabu has the right to temporarily or permanently suspend the use of the contractual services by the purchaser or the contractual relationship for an important and non-compliant reason for termination. Kurabu may charge the purchaser for any costs incurred as a result of the above actions at the prices applicable at Kurabu. If the Buyer is responsible for the violation of the law, the Buyer shall be obliged to compensate Kurabu for any resulting damage.
6.8 If the Buyer is not a consumer, the employee or organs of the Buyer entering into this agreement shall be available to Kurabu as direct contact. In particular, you will provide the information necessary for the execution of this contract and have the right to make legally binding decisions. Changes in the person of the contact person must be reported to Kurabu immediately. Kurabu states that electronic messages about the contract will be sent to the person named in the contracting portal.
6.9 The purchaser explicitly agrees to the transmission of relevant information to the e-mail provided by the purchaser or the members. This includes information on upcoming updates and corrections, general innovations, and usage information.
7. User identification
7.1 The customer's access to online products is password-protected via the Internet. The Purchaser and the Members shall keep secret the usage authorizations and access rights assigned to him or her or the users as well as other agreed identification and authentication measures, protect them from access by third parties, and not pass them on to unauthorized third parties. Such data must be protected by appropriate and customary measures. For security reasons, passwords should be changed not only before the first use of the software but also at regular intervals. The purchaser will inform Kurabu immediately if there is any suspicion that the access data and/or passwords were known to unauthorize third parties.
8.1 The amount of the remuneration due for contractual services are stated in the contract and the price lists as the final gross price with German VAT unless otherwise stated.
8.2 Kurabu has the right to adjust the prices for services already agreed upon with the current price list, provided that this is reasonable in consideration of the interests of the purchaser. Especially for application services where Kurabu uses other providers, Kurabu has the right to adjust the prices of the respective application services appropriately if the provider changes the prices. In the case of Kurabu, this includes higher tariffs for payment service providers, the provider of automated postal services, increased operating costs for hosting, development, and maintenance of the platform as well as an adjustment to an ever-increasing price level for SaaS.
8.3 However, such a price change is only twelve months after signing the contract. Kurabu will inform the purchaser in writing about the change at least six weeks before it takes effect. If the purchaser does not accept the price increase, Kurabu has the right to terminate the contract completely one month before the end of the calendar month. In the event of termination, no increased prices will apply until the termination takes effect.
8.4 In the event of late payment, Kurabu may temporarily suspend the provision of services until payment is received.
8.5 If the purchaser is more than two months late in paying the fee, Kurabu may terminate the contractual relationship without prior notice.
8.6 The purchaser can only replace legally justified or indisputable counterclaims. The purchaser can only exercise a right of retention based on counterclaims arising from this contractual relationship.
9. Copyrights of the provider, licenses
9.1 The software is protected by copyright. The copyrights, patent rights, trademark rights, and all other auxiliary rights to the software and other objects that Kurabu makes available to the purchasers within the scope of the commencement and execution of the contract are exclusively reserved by Kurabu. As far as the rights belong to third parties, Kurabu has the corresponding exploitation rights.
9.2 If Kurabu provides new versions, updates, or improvements of the contract software during the term of this contract, the following right of use applies to these in the same way. Kurabu shall not be obliged to provide new versions, updates, or upgrades unless it is necessary to remedy the defect specified in this contract or otherwise agreed upon.
9.3 Kurabu grants to the Purchasers and its members a non-exclusive, non-transferable and non-sublicensable right to use the Software and related user documentation under the Agreement for the duration of the Agreement. They are used by accessing the functions of the Software via the Internet. The transfer point for SaaS services is the output of the data center router used by Kurabu to the Internet. The buyer does not receive any rights.
9.4 The use of the software beyond the use permitted in this agreement is not permitted. Except for authorized members, the purchaser has no right that the software is used by third parties or is accessible to third parties. In particular, the customer is not permitted to reproduce or sell the software or parts thereof, unless this is technically necessary for the contractual use. The customer shall also pay the fees if a third party uses the software and the customer is responsible for the use. The buyer of the members is not entitled to decompile, reverse engineer, disassemble or use parts of the software to create a separate application or to carry out these actions by third parties unless the copyright is permitted.
9.5 If the purchaser is a test user, Kurabu grants a full license that cannot be transferred, assigned, or sublicensed. The purchaser can acquire a paid license for the software by not objecting to the continuation of the software after the trial period has expired.
9.6 When paying by SEPA direct debit, the purchaser must ensure that his account is adequately covered. The additional costs incurred by banks or service providers for chargebacks due to incorrect account data, overdraft facilities, objections to direct debits, etc. must be borne by the Customer.
9.7 Kurabu guarantees that the functionality of the software will essentially correspond to the respective documentation during the term. Kurabu does not guarantee that the software will meet your requirements or that your use of the software will not be interrupted. Kurabu assumes no responsibility for the technical details or the suitability of the software for any particular purpose unless otherwise stated in the relevant documentation. No express or implied warranty is made in the relevant documentation or other documentation.
9.9 If the services provided by Kurabu under this agreement are defective, Kurabu will, within a reasonable time and upon receipt of the defects, repair or provide the services at Kurabu's option.
9.10 Insignificant defects may be remedied in the normal course of business by providing updates or releases of a new version of the Software.
9.11 If defects persist after the appropriate repair period, the user is free to terminate the contractual relationship without prior notice or to reduce the fees for the use of the software.
9.12 This point regulates the overall responsibility of Kurabu and the sole claims of the purchaser about defects in the software. In case of damages to members due to software errors, liability is governed by § 13.
10. Test licenses
10.1 The software is provided in its current state. Kurabu does not guarantee that the software can be used without problems or errors. If Kurabu has fraudulently hidden defects in the software, Kurabu is obliged to compensate for the resulting damage. All additional Kurabu warranties for trial software are excluded.
11.1 Kurabu is responsible for ensuring that the software is suitable for the purposes that result from the description of the service, that it is free of defects, especially free of viruses and similar damages during the entire duration of the contract, making the suitability of the software for contractual use null and void.
11.2 Kurabu is responsible as follows, regardless of the legal reason:
11.3 Kurabu is fully responsible for personal injury for which Kurabu is liable. In the event of damage to property for which Kurabu is responsible, Kurabu will reimburse the cost of restoring or replacing items up to an annual usage fee. Maximum €25,000 per claim. In the event of damage to data media, the obligation to pay compensation does not include the cost of restoring lost data.
11.4 The limitation of liability does not apply to intent, gross negligence, or breach of essential contractual obligations. In case of slightly negligent violation of essential contractual obligations, the liability for damages is limited to the typical foreseeable contractual damage.
11.5 Claims other than those expressly mentioned in this contract are excluded regardless of the law unless there is additional liability under mandatory legal provisions. For members, in particular, this Section 11 does not restrict their rights as consumers under the applicable consumer protection provisions.
12. Data protection
12.1 Insofar as Kurabu can access personal data of members or third parties, it acts only as a data processor (Art. 28 DSGVO) and processes and uses this data only for the execution of the contract. Kurabu follows the instructions of the purchaser to handle these data. The purchaser has adverse consequences of such instructions for the execution of the contract. The parties agree in writing on the details for the handling of personal data.
12.2 It is agreed that the purchaser remains "master of data" both in the contractual relationship and in terms of data protection. The Customer is the only one who is entitled to dispose of all data used by the Customer (entered, processed, stored data, data output). Kurabu and all parties involved in the performance of the contract do not control the legal admissibility of the collection, processing, and use of the data stored for the purchaser. The purchaser is solely responsible for the collection, processing, and use of personal data. Kurabu only guarantees that the data protection regulations can be technically complied with.
12.3 The parties will comply with the applicable data protection regulations, especially those applicable in Germany, and their employees employed in connection with the contract and its implementation will comply with the data protection principles according to Art. 5ff DSGVO, if this is not already generally required.
12.4 If the purchaser collects, processes or uses personal data, he guarantees that he has the right to do so by the applicable regulations, especially the Data Protection Act, and will release Kurabu the data in case of violation, in case of claims by third parties. For such data, Kurabu will only work within the scope of order data processing.
12.5 Kurabu collects and uses customer-related data only to the extent necessary for the execution of this contract. In this respect, the purchaser accepts the collection and use of such data.
12.6 Kurabu may sub-contract but must impose on each sub-contractor its obligations under the contract and these Terms and Conditions.
12.7 Kurabu or third parties appointed by Kurabu shall take the necessary precautions and technical and organizational security measures to comply with the statutory data protection regulations.
12.8 The obligations according to paragraphs 1 to 8 are valid as long as the application data is within Kurabu's sphere of influence even after the end of the contract.
12.9 The entire data processing with software is carried out exclusively in the name of Art. 28 DSGVO. The contract for processing personal data can be found here.
13. Term of contract and termination
13.1 The contract comes into force as soon as it has been confirmed by Kurabu. The term is based on the respective agreement between Kurabu and the purchaser and begins on the day of operational availability. Unless otherwise agreed by the parties, the contract period is one year from operational availability and is automatically extended for another year, unless the contractual relationship is terminated by the above provisions. User agreements with members regarding the use of the software can be terminated by Kurabu and by members at any time without prior notice. Members may also terminate the agreement by closing their user account through the application.
13.2 The contractual relationship can be terminated by either party with the following terms and conditions: For contracts with an unlimited duration at the end of the calendar month, both parties can terminate the contract.
13.3 The right of cancellation for an important reason remains unaffected.
13.4 The customer is also entitled to terminate the agreement at any time before the end of the term. If the Customer duly terminates an Agreement before the end of the relevant term, the remaining fee will not be refunded pro-rata. The right to compensation for breach of duty in the event of extraordinary termination remains unaffected.
14.1 All notifications must be made in writing to the agreed e-mail addresses unless a stricter form is provided for in this contract or by law. The transmission via e-mail is sufficient. The contracting parties are obliged to notify the other contracting party of any changes of contact person or address without delay, otherwise, notifications sent to the last address notified in writing shall be deemed to have been received with legal effect.
15. Place of jurisdiction, applicable law, severability clause
15.1 The law of the Federal Republic of Germany shall apply exclusively, even if legal disputes arise between foreign companies of the contracting parties in connection with the framework agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
15.2 The place of jurisdiction is Berlin if the customer is a businessman and the contract is part of the business operation or if the customer has no general place of jurisdiction in Germany and there is no exclusive place of jurisdiction. However, Kurbau has the right to sue the purchaser at another place of jurisdiction. For non-traders, especially members, the legal jurisdictions apply.
15.3 If the customer is a trader and the contract is part of the exercise of his trade, the following applies: If any provision of this agreement becomes invalid or unenforceable, this shall not affect the validity of the remaining provisions. Rather, the parties will cooperate to replace the invalid or unenforceable provision with a legally permissible and valid or enforceable provision that is sufficient to achieve the intended result with the invalid or unenforceable provision. The same applies to the filling of contractual gaps.