Published on 1st November 2021; Valid from 1st November 2021.
General Contract Terms and Conditions for Ordering and Using the ‚Almefy‘ Software Solution
entered into by and between
Feringastrasse 6, D-85774 Munich, Germany,
registered in the commercial register of the
Local Court of Munich
under the registration number HRB 265369, with the VAT identification number:
DE 345025504 (‚InstaSolutions‚);
the customers stated in clause 2.2 of the
Scope and general information
- The Customer may only transfer the rights and obligations from this contract to a third party with the prior written consent of InstaSolutions.
- Any deviating general terms and conditions and/or other deviating regulations of the Customer are not recognised unless InstaSolutions expressly agrees to their validity in writing. This includes ancillary agreements or changes to the contract, which also require the written consent of InstaSolutions to be effective.
Contract offer and subject matter
- The range of services offered by InstaSolutions is aimed at (i) natural or legal persons or partnerships with legal capacity which, in accordance with Section 14 BGB, act in the exercise of their commercial or independent professional activity (‚Entrepreneurs‘), as well as, (ii) as far as the Software is offered for use for private purposes, natural persons, if and to the extent that the purpose of the ordered deliveries and services can not be predominantly attributed to their commercial or independent professional activity (‚Consumers‘, Entrepreneurs and Consumers together referred to as ‚Customers‘).
- Unless otherwise expressly agreed in writing, InstaSolutions may use the services of suitable third parties to fulfil its contractual obligations (‚Vicarious Agents‘). In this case, the statutory liability regulations applicable to Vicarious Agents apply.
Conclusion of the contract
- A contract for the use of Almefy can either arise online by completing the order process (cf. § 8) or on the basis of an individual written offer.
- In the case of a written offer from InstaSolutions to the Customer, this is deemed to have been accepted if the Customer countersigns this offer by hand without making any changes (possibly through an authorised representative). To maintain the required written form, reference is made to clause 1.4. Unless otherwise stated, the respective offer is only valid for two calendar weeks after receipt of the offer. Alternatively, the contract is concluded if the Customer does not object in writing to an order confirmation from InstaSolutions within two calendar weeks. InstaSolutions will expressly point out the significance of a lack of objection in the order confirmation.
- In the case of conclusion of a contract, InstaSolutions will provide the Customer with the Software without undue delay for download.
- The Customer can access installation and usage instructions at any time via https://almefy.me/de/produkte/.
Description of services, availability and technical requirements
- InstaSolutions grants the Customer the use of almefy in the current version (cf. § 5) and in the range of functions relevant for the selected license model. Unless otherwise expressly stated in the offer, InstaSolutions does not owe any success beyond the possibility of use.
- InstaSolutions is only responsible for the availability of the Software insofar as any inaccessibility is due to the infrastructure operated by it or on its behalf, such as web or communication servers.
- Trouble-free use of the Software depends on the hardware and software that the Customer uses on mobile end devices, routers, data communication media, etc., complying with the minimum technical requirements for use of the Software version currently on offer. The Customer can find these minimum requirements in the current descriptions of the system requirements https://almefy.me/de/download/.
Rights of use and Software integration
- The Software made available to the Customer for contractual use is subject to legal – in particular copyright – protection. InstaSolutions is exclusively entitled to distribute this Software.
- With the conclusion of the contract and subject to the payment of the agreed usage fees (§ 11), InstaSolutions grants the Customer a non-exclusive, non-transferable, non-sublicensable right of use which is limited to the respective contractual term that is the subject of the offer, to run or install Software with the individually agreed number of end user accounts and admin accounts as well as on a contractually specified number of devices in order to use the Software functionalities to the extent covered by the license model.
- The Customer is prohibited from using the Software in any form beyond what is permitted under this contract, from having it used by third parties or from making it accessible to third parties. In particular, the Customer is not permitted to reproduce, edit, make publicly available or sell the Software or parts thereof.
- The Customer is prohibited from changing, adapting, decompiling, decoding, reverse engineering or attempting to reconstruct or determine the source code or underlying ideas, algorithms, file formats and programming, or otherwise restore the Software to a human-readable form. Any rights of the Customer under Section 69d(2) and (3) and Section 69e German Law on Copyright and Related Rights [Gesetz über Urheberrecht und verwandte Schutzrechte, UrhG] remain unaffected.
- The Customer may not circumvent technical measures to protect the Software or allow or make available a procedure to be used to circumvent such.
- Should a free license model be used, the Customer is responsible for keeping their User Account active. This means that they must log in regularly to avoid interruptions or loss of the ability to use the Software and the termination of their User Account Should the Customer fail to log into their User Account regularly, InstaSolutions reserves the right to close the User Account after contacting the Customer in advance. InstaSolutions will try to inform the Customer before the User Account is closed due to inactivity. Should InstaSolutions not receive a response within four weeks or if the User Account concerned is not accessed within this period, the User Account may be closed. This clause 5.6 (inactivity of the User Account ) does not apply to User Accounts that are used on the basis of a paid license model.
- The Customer can expand the functionality and scope of use made available to them within the scope of their selected license model with individual Additional Packages. The selection of Additional Packages is optional. There is no obligation to purchase Additional Packages.
- The term of the Additional Packages is always linked to the term of the Software. Termination conditions apply accordingly.
This § 7 applies exclusively to Entrepreneurs
- InstaSolutions reserves the right — in accordance with data protection regulations — to analyse user behaviour of companies to improve product safety and performance, for advertising purposes and for license checks.
- Upon InstaSolutions‘ request, the Entrepreneur undertakes to allow the examination of whether the use of the services by the Entrepreneur is in accordance with the rights granted to them under § 5, provided that InstaSolutions has a legitimate interest. Such a legitimate interest exists if there is reasonable suspicion that the Entrepreneur has exceeded the contractually granted right of use. InstaSolutions must notify the Entrepreneur in writing prior to the inspection. The date of the inspection and the type of implementation must also be agreed between the parties in advance. The Entrepreneur undertakes to support InstaSolutions during the inspection to a reasonable extent, and to grant sufficient access to information relevant to the inspection.
- The Entrepreneur agrees that InstaSolutions is not responsible for any costs incurred by the Entrepreneur as a result of their assistance during the inspection. InstaSolutions assures Entrepreneurs that they will keep confidential information obtained as part of the license check as well as the Entrepreneur’s company and business secrets and that it will comply with the applicable data protection rules.
- The Entrepreneur undertakes to pay any usage fees not paid in due time within 30 days of receipt of a written request. Should payment not be made within this period for subsequent payment, InstaSolutions is entitled to extraordinary termination of the contractual relationship.]
Conclusion of a contract in the webshop
- Customers can place orders in the webshop with or without registration. Further information is available in the webshop or from Customer Service. When placing an order in the webshop, the Customer must ensure that the data they have provided is correct. If the Customer has a User Account , they must ensure that the access data is only used by persons who are authorised to place binding orders for the Customer.
- The Customer can choose available Software products according to a license model and Additional Packages and use the ‚Subscribe‘ button to place them in or remove them from a virtual shopping basket. The Customer only makes a binding offer to purchase the Software products and Additional Packages in the shopping basket when the order is sent using the ‚zahlungspflichtig bestellen‘ button. Before submitting the order, the Customer will ensure that their order is correct. They can view and change the data before submitting the order and, if necessary, cancel the order.
- When an order is placed by the Customer, InstaSolutions sends the Customer an automatic confirmation of receipt by email, in which the Customer’s order is listed again and which the Customer can print out using the ‚Print‘ function. The automatic confirmation of receipt simply documents that the Customer’s order has been received by InstaSolutions and does not constitute a conclusion of a contract. The contract is only concluded when InstaSolutions submits a declaration of acceptance, which is sent in a separate email (order confirmation). In this email or in a separate email, but upon delivery of the goods at the latest, the contract text (consisting of order, terms and conditions and order confirmation) will be sent to the Customer by InstaSolutions via a permanent data carrier (email or paper printout) (contract confirmation).
- The conclusion of the contract takes place in English.
Intellectual property, trademarks, and advertising
- The use of the brands ‚Almefy‘ and ‚InstaSolutions‘ by the Customer can only be permitted with the prior written consent of InstaSolutions.
- If the Customer is an Entrepreneur, InstaSolutions is entitled to use the name and logo of the Entrepreneur in its advertising materials and on its website as a reference should the Entrepreneur give its consent. The Entrepreneur can revoke such consent at any time (e.g. by email).
- InstaSolutions processes the Customer’s personal data pursuant to Regulation (EU) 2016/679 (General Data Protection Regulation, ‚GDPR‘) as well as pursuant to the German Federal Data Protection Act (Bundesdatenschutzgesetz, ‚BDSG‘).
- Information and instructions regarding the processing of personal data by InstaSolutions can be found in the InstaSolutions data protection declaration at https://almefy.me/de/datenschutz/.
Usage fees and payments
- Unless otherwise agreed, the usage fees incurred by the Customer are based on InstaSolutions‘ Price List valid at the time the contract is concluded, which can be viewed and accessed at https://almefy.me/de/produkte-preisliste/. The exact amount of the usage fees to be paid depends on the Software product and license model selected, plus the usage fees for the optionally selectable Additional Packages.
- Unless otherwise stipulated by law, the invoices are made available to the Customer exclusively in digital form (e.g. as PDF files by email to the invoice email address provided by the Customer or to be accessed by the Customer via their User Account).
- Objections to the invoicing of the services provided by InstaSolutions must be raised by the Customer in writing within a period of four weeks of receipt of the invoice at the address specified on the invoice. After the aforementioned period has expired, the invoice is deemed to have been approved by the Customer. When forwarding the invoice, InstaSolutions will specifically point out the importance of the Customer’s behaviour. It is the Customer’s responsibility to provide InstaSolutions with complete and correct invoicing and contact information and to notify InstaSolutions of any changes to that information.
- The Customer shall bear the costs, in accordance with the list prices, incurred by the users set up by it and thus authorised. The same applies in the event of unauthorised use by other third parties if and to the extent that the Customer is responsible for such use.
- Depending on the selected license model, the fee is due either annually or monthly. The payment must be made by the due date using the means of payment offered by InstaSolutions.
- Invoicing of the user fees to be paid for the use of InstaSolutions‘ services takes place in each case according to the payment method stated in the order. Unless otherwise stated, invoices are due within ten days without deduction.
- All prices stated on the InstaSolutions website include the applicable statutory sales tax.
- Should a payment date not have been agreed, the occurrence of the default shall be governed by the statutory provisions.
- The payment obligation is based on the selected Software products, license models and Additional Packages and is independent of the actual use of such.
- In the event of default in payment of at least two consecutive invoices, InstaSolutions is entitled to put the services out of operation at the expense of the Customer.
- Should the Customer be in default of payment for a period exceeding two months in an amount equal to the monthly basic price for two months, InstaSolutions may terminate the contractual relationship without notice and without cause. In the case of Entrepreneurs, this applies subject to the provision in Section 7.4.
- InstaSolutions reserves the right to assert further claims due to default in payment.
Right of rescission
This § 13 applies exclusively to Consumers
If the Customer is a Consumer within the meaning of Section 13 BGB, the following right of withdrawal applies to chargeable services (also available at https://almefy.me):
Right of rescission
You have the right to rescind this contract within fourteen days without giving any reason.
The rescission period is fourteen days from the day the contract is concluded.
In order to exercise your right of rescission, you must send a clear declaration (e.g. a letter sent by post, fax (+49 89 200021529) or email (email@example.com)) to us (InstaSolutions GmbH, Feringastrasse 6, 85774 Munich, Germany, firstname.lastname@example.org) stating your decision to rescind from this contract. You can use the attached Sample Rescission Form for this purpose, but this is not mandatory.
In order to meet the rescission deadline, it is sufficient for you to send your notification of exercising your right of rescission before the rescission period has expired.
Consequences of rescission
- If you rescind from this contract, we shall repay all payments that we have received from you, including delivery costs (with the exception of the additional costs that result from you choosing a different type of delivery than the cheapest standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received notification of your rescission of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless something else has been expressly agreed with you. In no case will you be charged any fees for this repayment.
- If you have requested that the services should begin during the rescission period, you have to pay us a reasonable amount, which corresponds to the portion of the services already provided up to the point in time at which you informed us of the exercise of the right of rescission with regard to this contract, compared to the total scope of the services provided in the contract.
Sample Rescission Form
To InstaSolutions GmbH, Feringastrasse 6, 85774 Munich, Germany, email@example.com:
I/we (*) hereby rescind the contract concluded by me/us (*) for the purchase of the following goods (*) / the provision of the following service (*):
– ordered on (*) / received on (*);
– name of the Consumer(s);
– address of the Consumer(s);
– signature of the Consumer(s) (only if this is communicated on paper);
- If the Customer is a Consumer, the statutory warranty rules apply without restriction. For Consumer contracts which are concluded after 31 December 2021, the provisions of the ‚German Act to Implement the Directive on Certain Contractual Aspects of the Provision of Digital Content and Digital Services‘ (Gesetz zur Umsetzung der Richtlinie über bestimmte vertragsrechtliche Aspekte der Bereitstellung digitaler Inhalte und digitaler Dienstleistungen, ‚Digital Content Act‘) apply. For Consumer contracts that are concluded on or before 31 December 2021 and provide for the service obligations of InstaSolutions from 1 January 2022, the provisions of the Digital Content Act apply from 1 January 2022 with the exception of Section 327r BGB.
- InstaSolutions warrants that the Software is free from material and legal defects. The warranty for material defects does not apply to defects that are based on the fact that the Software is used in a hardware and software environment that does not meet the requirements specified in clause 4.3 or for changes and modifications which the Customer has carried out on the Software without being entitled to do so by virtue of the law, this contract or on the basis of the prior written consent of InstaSolutions.
- Entrepreneurs must check the Software for obvious defects without undue delay upon receipt and, if any are found, notify InstaSolutions immediately. If this is not carried out, a warranty for such defects is excluded. The same applies if such a defect appears later. Section 377 German Commercial Code (Handelsgesetzbuch, HGB) applies.
- In the case of Entrepreneurs, InstaSolutions is initially entitled to supplementary performance in the event of a material defect, i.e. to remedy the defect (‚rework‘) or to deliver a replacement at its own discretion. As part of the replacement delivery, the Entrepreneur will, if necessary, download a new version of the Software, unless this leads to unreasonable impairments. In the event of legal defects, InstaSolutions will, at its own discretion, provide the Entrepreneur with a legally flawless option to use the Software or modify it in such a way that no third party rights are violated.
- InstaSolutions also fulfils its obligation to make improvements by providing an update and/or offering the Entrepreneur support according to § 18 (e.g. to solve installation problems).
- The right of the Entrepreneur to reduce the purchase price or to withdraw from the contract in the event that the repair or replacement delivery fails twice, remains unaffected. A right of rescission does not exist in the case of insignificant defects.
- The provisions of the Digital Content Act apply to contracts with Entrepreneurs concluded after 31 December 2021. In particular, Section 327u BGB is applicable to such contracts with regard to any recourse claims of the Entrepreneur against InstaSolutions as a ’sales partner‘ within the meaning of Section 327u (1) sentence 1 BGB.
- With the exception of claims for damages, warranty claims due to material defects become statute-barred in two years or in one year should a Consumer not be involved in the transaction. In the case of sales by means of downloads from the Internet, the statute of limitations begins after notification and activation of the access data for the download area. § 15 applies to claims for damages and claims for reimbursement of futile expenditure.
InstaSolutions has unlimited liability:
- in the event of intent or gross negligence;
- for injury to life, limb or health; as well as
- according to the provisions of the German Product Liability Act [Produkthaftungsgesetz].
- In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), InstaSolutions‘ liability is limited to the amount of damage that is foreseeable and typical for the type of business in question.
- InstaSolutions has no further liability.
- In the case of contracts with Consumers that (i) are concluded after 31 December 2021 or (ii) are concluded before 31 December 2021 and provide for service obligations by InstaSolutions from 1 January 2022 onwards, InstaSolutions is liable for damage pursuant to Section 327m BGB.
Changes to the Software
- Changes to the Software that are necessary to maintain its conformity with the contract are permitted at any time.
- InstaSolutions is expressly entitled to make changes to the Software providing the following conditions are met:
- a valid technical and/or economic reason (e.g. to increase technically necessary protective measures) exists;
- no additional costs are to be borne by the Consumer; and
- the Consumer is informed of the change in a clear and understandable way.
- If the change affects the ability to access the Software or the usability of the Software, InstaSolutions shall inform the Customer of such in writing within a reasonable period of time. In this case, the Customer has the right to terminate the contract with a notice period of 30 days. This special right of termination is excluded if it is possible to continue to use or access the unchanged Software.
Changes to terms and conditions, service descriptions and prices
- The same applies in the event that security-related changes to the services or mandatory statutory provisions prevent the contractual relationship from being continued under the previous conditions. Any advance payments will be reimbursed proportionally. If the Customer does not give written notice of termination within four weeks of receipt of such notification of change, the changes shall become part of the contract upon coming into effect. InstaSolutions shall expressly inform the Customer of this consequence in the change notification.
Updates, support, and maintenance
InstaSolutions offers the Customer support and maintenance.
The Customer has the option Monday to Friday to contact a service desk available from 9:00 a.m. to 7:00 p.m. InstaSolutions will make every effort to provide feedback within two business days.
The expansion of the scope of functionality through updates may be reserved for certain license models (offer variants).
The Customer undertakes to always have a supported version of the Software in use and to plan updates and upgrades accordingly. InstaSolutions reserves the right to deactivate Software versions that are no longer current after an update at any time and to discontinue their support. The deactivation is to be communicated at least four weeks in advance.
To ensure the availability of all services provided, regular maintenance work, function-preserving updates and security updates are necessary. InstaSolutions can interrupt the provision of services for a defined period in order to carry out maintenance work. InstaSolutions shall announce the maintenance work to the Customer on https://almefy.me. To the extent possible, InstaSolutions shall take into account the interests of the Customer when scheduling maintenance times. These regular maintenance times do not count as impairment of availability in the aforementioned sense.
Contract term and termination
Unless otherwise expressly agreed, the following provisions apply with regard to contract periods and notice periods.
The notice period is based on the contract period, whereby the Customer can choose between two variants of the contract period during the ordering process:
- Monthly termination: The agreement is concluded for an indefinite period. Either party can terminate the agreement at any time with effect from the end of the month of the current invoice period.
- Annual subscription (Consumer): The agreement is concluded for one year and is automatically extended for an indefinite period after this period, unless InstaSolutions and the Consumer expressly agree to an extension for a further year. The Consumer can cancel their annual subscription up to one month before the end of the term. If the annual subscription is extended indefinitely, 19.2.1 applies.
- Annual subscription (Entrepreneur): The agreement is concluded for one year and is automatically extended by the length of the initial term, unless the subscription is cancelled by the Entrepreneur pursuant to this clause 19.4. The Customer can cancel their subscription at any time before the subscription period expires.
In the event of termination, Customers can continue to use the Software for the remainder of the month or subscription period. In the event of termination, the Customer is not entitled to reimbursement of usage fees already paid for the remaining term of the subscription.
The right to terminate for good cause shall remain unaffected. Termination can be made in writing or via the User Account.
Place of jurisdiction, applicable law
- The entire business relationship between InstaSolutions and the Customer is exclusively subject to the law of the Federal Republic of Germany. The applicability of the UN sales law is expressly excluded.
- The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is the registered office of InstaSolutions in Munich, provided that the Customer is an Entrepreneur or legal entity under public law or does not have a general place of jurisdiction in the territory of the Federal Republic of Germany. InstaSolutions reserves the right to take legal action against the Entrepreneur at any other legally stipulated place of jurisdiction.
- The statutory provisions restricting the choice of law and the applicability of mandatory provisions – in particular regarding the state in which the Customer as a Consumer has their habitual residence – remain unaffected.
Consumer dispute resolution
The European Online Dispute Resolution Platform can be found here: https://ec.europa.eu/consumers/odr.
We are not willing and obliged to participate in dispute resolution proceedings before a consumer arbitration board.