for the wesmartify App and Cloud Services
1 Subject of the Contract and Conclusion of the Contract / Obligation to perform
1.1 The subject of the User agreement is the free use of the wesmartify App (hereinafter “App”) and the use of the Cloud Services in the version and scope provided. The App and Cloud Services are provided by wesmartify GmbH, TecCenter 1, 31162 Bad Salzdetfurth, (hereinafter “wesmartify”).
1.4 wesmartify do not assume a guarantee in the legal sense or a procurement risk pursuant to § 276 BGB under this contract.
2 Rights of Use, Technical Requirements
2.2 The User receives the right to duplicate the provided App if the respective duplication is necessary for the use of the App (e. g. downloading, installing the App on the end device, loading the App). The User is not entitled and must refrain from re-engineering the software or from using the App or Cloud Service for any purpose not covered by the contract, in particular from downloading the wesmartify software representing the App function and/or the cloud service.
2.3 All rights to the App and the Cloud Services belong exclusively to wesmartify. The App and the Cloud Services and the rights to it are protected by copyright and international treaties for the protection of intellectual property.
2.4 The User may make a copy of the App for backup purposes, provided that the terminal on which the backup copy is stored is owned by the User or is under the exclusive possession competence of the User. The User is obliged to take appropriate precautions to prevent unauthorized access to the backup copy and the App by third parties.
2.5 The User may only edit the App, in particular make changes and additions, if this is expressly permitted by mandatory laws or is contractually agreed with wesmartify. wesmartify points out that even minor changes can lead to considerable, unforeseeable disruptions to the App. Copyright notices, serial numbers, version numbers, trademarks or other identification features of the App may under no circumstances be changed or removed by the User. The same applies to the suppression of the screen display of corresponding characteristics.
2.6 The App and the Cloud Services may only be used by the User and only for the agreed purposes. The App and the Cloud Services have not been developed and are not suitable for applications in the areas of security, direct personal security and medicine and may therefore not be used in these areas.
2.7 The App requires an Android operating system version 4.1 or higher for Android devices and an iOS operating system version of 9.3 or higher for Apple devices. Although wesmartify strives, without legal obligation, to adapt the App to changed operating system versions and new mobile device variants and to make the App and the Cloud Services available on these devices, the User has no claim to such an update. The User is responsible for checking and ensuring the suitability of the terminal device he or she intends to install the App on with regard to the aforementioned technical requirements. For this, the operation of the App requires that the end device must be able to connect to the App and the Cloud Service itself – even if the operating system version is adhered to.
3 Scope of the App and Cloud Services
3.2 The Cloud Services are provided on a server for use and retrieval by the User. The decisive service delivery point for the Cloud Services is the network access of the data center of the cloud operator for the contractual service. wesmartify is not responsible for failures or non-availability of hardware and software components, of the Internet or other networks downstream this service transfer point. The connection of the User to the Internet, the maintenance of the network connection and the procurement and provision of the hardware and software required by the User is the sole responsibility of the User.
3.3 The functional scope of the App and the Cloud Services, the technical usage requirements and further details on the use of the App and the Cloud Services are described in the Alpha IP Planning Manual (hereinafter referred to as the “Planning Manual”). However, the information in the Planning Manual is not to be understood as property information for the App and the Cloud Services, unless these are expressly described as such in the Planning Manual.
3.4 wesmartify is entitled to adapt the App and the Cloud Services to current technical developments, in particular with regard to new functions and in order to close security gaps, due to changes in legislation, changes in jurisdiction or changes in economic conditions and to change the technical features and functionalities of the App and the Cloud Services in this context. If such an adjustment could impair the legitimate interests of the User, the adjustment will be announced to the Users in text form by sending a push message or by displaying it in the App at least one month prior to its implementation. The procedure laid down in Section 8.2 shall apply mutatis mutandis to the contractual inclusion or refusal of the adjustments.
4.1 wesmartify guarantees the usability of the App and the Cloud Service and their features with regard to the free service exclusively within the version and the scope provided by wesmartify GmbH.
4.2 Warranty and liability for material defects shall be excluded if the User does not observe the given technical regulations or instructions for use for the App and/or the Cloud Service specified by wesmartify in accordance with the contract concluded, in particular those in the planning manual, and if the defect or damage to the customer is based on this.
5.1 Subject to the following exceptions, wesmartify is not liable, in particular not for claims of the User for damages or reimbursement of expenses – on whatever legal grounds – in the event of breach of duties arising from the contractual obligation.
5.2 The above exclusion of liability pursuant to Section 5.1 shall not apply,
- for own intentional or grossly negligent breach of duty
and intentional or grossly negligent breach of duty by
legal representatives or vicarious agents;
for the violation of essential contractual obligations; “essential contractual obligations” are those whose fulfilment characterizes the contract and on which the User may rely;
in the event of injury to body, life and health also by legal representatives or vicarious agents;
in the event of default, insofar as a fixed delivery and/or fixed performance date had been agreed;
as far as wesmartify has assumed the guarantee for the quality of a product or the existence of a performance success, or a procurement risk within the meaning of § 276 BGB;
in the case of liability in accordance with the Product Liability Act or other legally binding liability circumstances.
5.3 In the event that wesmartify or its vicarious agents are only guilty of slight negligence and there is no case of the above paragraph 5.2, there indents 3, 5 and 6, wesmartify shall only be liable for contract-typical and foreseeable damage, even in the event of a breach of essential contractual obligations.
5.4 wesmartify's liability is limited to a maximum liability amount of EUR 10,000.00 for each individual case of damage. This does not apply if wesmartify is guilty of malice, intent or gross negligence, for claims due to injury to life, limb or health, or in the case of a claim based on an act of tort or an explicit guarantee assumed or the assumption of a procurement risk in accordance with § 276 BGB or in cases of legally mandatory higher amounts of liability. Any further liability is excluded.
5.5 The exclusions and limitations of liability pursuant to Sections 5.1 to 5.4 above shall apply to the same extent in favour of wesmartify's executive bodies, executive and non-executive employees and other vicarious agents and subcontractors.
5.6 The above provisions do not imply a reversal of the burden of proof.
6 Special regulations in relation to Google, Inc. (“Google”) and Apple, Inc. (“Apple”)
6.3 If the User is resident or located in a country that is subject to a U.S. government embargo or that is classified by the U.S. government as a "terrorism-supporting" country or that is included in a U.S. government list of export bans or restrictions, the User may not use the App and the Cloud Service or transfer the software associated with the App and/or the Cloud Service to such a country. The same applies to any export restrictions of the Federal Republic of Germany and the EU.
7 Term of Contract and Termination of Cloud Services / User's Duty to Inform
7.1 The contract for the provision of the Cloud Services begins with the initial commissioning and configuration of wesmartify devices with the App and the associated use of the Cloud Services by the User. The contract has a term of 12 months. It ends after 12 months without notice.
7.2 The contract for the provision of Cloud Services may be terminated by the User at any time. Users can cancel by deactivating or deleting the App from their mobile device.
7.3 wesmartify will delete the configuration and usage data as well as all other data of the User immediately after termination of the contract for the provision of the Cloud Services.
7.4 The right to terminate the contract for the provision of Cloud Services at any time in accordance with § 314 BGB for good cause remains unaffected for wesmartify and the user. An important reason for terminating the contract for the provision of the Cloud Services is especially given if the continuation of the Cloud Services becomes economically unreasonable for wesmartify due to a small number of Users and/or wesmartify devices used by the Users.
8 Notifications and Changes
8.1 In order for the User to receive push messages or other displays in the App, the following requirements must be met: When installing the App, a setting must be made to allow the App to send messages to the User. Furthermore, the User must be logged on to the App with his terminal device and have an adequate Internet connection. The User has the duty to register/log in to the App at least once a month and to check whether any messages have been published in the App.
wesmartify will announce the changes to the Users in time, i. e. at least two months before they take effect, in text form by sending a push message or by displaying them in the App and informing them about the content of the changes. The notified changes take effect two months after they are announced in the App. wesmartify will expressly draw the user's attention to this consequence when notifying the changes.
8.3 The User is responsible for ensuring that no unauthorized user has access to the App.
9 Amendments and additions / Applicable law / Jurisdiction
9.1 Amendments and supplements to these conditions require text form. 305b BGB (legal preference of individual agreements) remains unaffected for individual agreements in any form.
9.2 This contract shall be governed exclusively by German law to the exclusion of the UN Sales Law (CSIG). If the User is a merchant within the meaning of the German Commercial Code or a legal entity under public law or a special fund under public law or if the User has no general place of jurisdiction in the Federal Republic of Germany, the registered office of wesmartify shall be agreed as the exclusive place of jurisdiction.