General Terms and Conditions of memtime GmbH
1. Subject matter and scope of these general terms and conditions
1.1. These GTC regulate the rights and obligations in connection with the use of the services of the provider memtime GmbH, c/o Mindspace, Herzogspitalstr. 24, 80331 Munich (hereinafter: service provider) and the customer in connection with the use of the service made available at the Internet address memtime.com or other Internet addresses of the service provider on the Internet (hereinafter: Internet site of the service provider).
1.2. The GTC of the service provider shall apply exclusively. Any terms and conditions of the customer that conflict with or deviate from these GTC shall not be recognized by the service provider unless their validity has been expressly agreed in writing. These GTC shall also apply if the service provider provides its services to the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from these GTC.
2. Conclusion of contract
2.1. Unless otherwise expressly agreed individually, a contract shall only be concluded upon successful completion of the registration process by means of a confirmation from the service provider to the customer in text form (e-mail).
2.2. The customer has no right to conclude a contract. The service provider is free to reject any offer of a customer to conclude a contract without giving reasons.
2.3. The prerequisite for registration is that the customer is at least 18 years old and is an entrepreneur/freelancer as defined by § 14 BGB (German Civil Code). Minors are not permitted to register. In the case of a legal entity, the registration must be made by a natural person with unlimited legal capacity and the right to represent the entity.
2.4. The service provider may offer test versions in the form of test accesses. During the respective specified test period, use is free of charge. If the customer wishes to continue using the services after the end of the trial period, the conclusion of a contract subject to a charge is required.
3. Services of the service provider
3.1. The Service Provider provides customers with various services and services in the area of project time recording.
3.2. The content and scope of the services are determined in accordance with the respective contractual agreements, otherwise exclusively in accordance with the functionalities currently available on the website of the service provider.
3.3. Only the respective customer and the users designated by him shall be entitled to the service. A transfer of the customer account to third parties or the other granting of usage options by the customer to third parties is prohibited and also entitles the service provider to extraordinary termination.
4. Performance / Performance delay
4.1. Performance dates or deadlines may be agreed as binding or non-binding.
4.2. An agreement on performance times is only binding if the service provider expressly declares in writing that it intends to be liable for exceeding the agreed date/period.
4.3. The service provider shall not be responsible for delays in performance due to force majeure or due to events that make it significantly more difficult or impossible for the service provider to perform not only temporarily - this includes in particular strikes, lockouts and official orders, even if they occur at the service provider's suppliers or their subcontractors - even in the case of bindingly agreed deadlines and dates. They entitle the service provider to postpone performance for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Sentences 1 and 2 shall apply mutatis mutandis in the event of delays in performance due to documents and information not being made available to the service provider by the customer in good time prior to the provision of the service, which documents and information are necessary for the provision of the service in the view of the service provider.
4.4. If the delay in performance lasts longer than one month, the Customer shall be entitled, after setting a reasonable deadline to no avail, to withdraw from the part of the contract not yet fulfilled.
4.5. The service provider is entitled to provide partial services at any time, unless the partial service is of no interest to the customer. The service provider is entitled to transfer the rights and obligations arising from a contract, including the provision of the service, to a third party.
5. Obligations of the customer
5.1. The Customer is obliged to provide truthful information about himself or his company when using the Service.
5.2. The Customer is obliged to comply with the applicable laws when using the Service.
5.3. The Customer is obliged to treat e-mails and other electronic messages which he receives from the Service Provider in the context of the use of the Service as confidential and not to transmit them to third parties without the consent of the Service Provider.
6. Note on the right of withdrawal
6.1. The service provider offers its services exclusively to entrepreneurs within the meaning of § 14 BGB.
6.2. Pursuant to § 312b BGB, a right of withdrawal only exists vis-à-vis consumers. If the customer is not a consumer within the meaning of § 13 BGB and uses services of the service provider, there is no right of withdrawal.
7. Duration of the contract
7.1. The subscription begins with the conclusion of the contract and runs for an indefinite period.
8.1. The service provider grants the customer a time-limited, non-exclusive, non-transferable and non-sublicensable right to use the software specified in the contract within the scope of the contractually agreed scope for the duration of the contract concluded in each case. The software shall be provided via an Internet connection. The transfer point for the services is the router output of the data centre used by the service provider to the Internet. Unless and to the extent expressly permitted in these General Terms and Conditions, the Customer is not entitled to perform the following acts: (a) translate, edit, arrange or otherwise rework the Software and related Documentation, unless permitted by applicable law; (b) modify, decompile, imitate, reverse engineer or create a derivative version of the Software or any part thereof; (c) reproduce the Software and Documentation unless and to the extent expressly permitted by these Terms and Conditions. (d) removal or alteration of any trademark, copyright or other proprietary notices from the Software and Documentation. The customer is also not entitled to redistribute the software, in particular not to transfer or lease it to third parties, to grant sub-licences to third parties for it, to resell it to third parties or to pledge it.
The service provider shall make user documentation for the software available to the customer online. Copying or reproduction of provided user documentation, including provided user manuals and reference materials, by the customer is only permitted for the customer's own use.
9. Prices and terms of payment, blocking
9.1. The service provider offers its services in various fee-based variants. The agreed prices can be found in the currently valid price and payment information.
9.2. Payment is made by credit card per quarter, per year or for two years, depending on which contract period is offered and chosen by the Customer. The billing period runs from the date the customer signs up for the paid version, for one quarter, one year or two years in advance.
9.3. The claim for payment of the respective usage fees shall become due upon receipt of the invoice immediately after receipt of the invoice and shall be charged or collected from the credit card per quarter, per year or for 2 years until termination.
9.4. If the customer wishes to change to another product variant or term, this is possible at any time. Premiums already paid will be credited pro rata to the new subscription.
9.5. There will be no refund of premiums in the event of premature termination. If the contract is terminated by the customer, the product version can be used in full until the end of the contract period. Only then will the customer account be deleted. In the event of premature termination by the service provider due to non-contractual use of the services, the product version can no longer be used; residual amounts will not be refunded.
9.6. If the costs for the subscription cannot be debited from the credit card in time, e.g. due to insufficient funds in the account, the users' access to the software will be blocked after 5 days. After receipt of the payment, access to the system will be released again. The costs for this amount to 20.00 € per rejected debit and will be charged to the customer. The customer must then transfer the total amount to the service provider's bank account within 4 working days.
9.7. The Customer agrees that email (using an email address provided by the Customer) will be used as a means of sending invoices and payment reminders.
9.8. If the Service Provider initially demands only the principal amount originally owed in payment reminders, this does not mean that the Service Provider waives the right to claim default interest or default damages.
9.9. Section 21 of the GTC shall apply accordingly to changes to the price list.
10.1. The customer is not entitled to set off claims against the service provider unless they are legally established claims or claims recognised in writing by the service provider.
11. Maintenance conditions and service level
11.1. Maintenance services within the meaning of these maintenance conditions are: (i) Support as defined in Clause 12, and (ii) Maintenance as defined in Clause 13, but subject to the exceptions set out in Clause 14.
11.2. The right to use the Maintenance Services by the Customer exists only on Business Days, from Monday to Friday between 8:30 am and 5:00 pm CET.
12.1. Support is the provision of helpdesk assistance by telephone, in writing or electronically in the event of questions from the Customer regarding the use and function of the software and the provision of assistance by telephone, in writing or - by separate agreement - electronically (remote access) in the event of faults in the software. The customer is only entitled to the support service offered by the service provider in each case.
12.2. The service provider shall only be obliged to provide support if the customer notifies the service provider in advance of the user number stated in the contract.
12.3. If it subsequently transpires that the customer was not entitled to support, for example because the problem is not related to an error in the software, the service provider is entitled to charge the customer for the support provided at the service provider's consulting prices valid at that time.
12.4. If and to the extent that the Service Provider provides electronic support, the following provisions shall apply in addition:
(a) The Customer shall allow the Service Provider access to all its system components at any time for the purpose of support. The Service Provider shall provide the remote access connection and associated effort necessary for the performance of support work free of charge during the provision of the support. The customer may not claim any costs of its own from the service provider in connection with the remote access connection and the provision of the support, such as e.g. administrator costs, time spent etc.
(b) Any telephone costs incurred by the service provider in performing the support work shall be borne by the service provider.
13.1. Maintenance includes:
(a) The rectification by the Service Provider of all errors in the standard version of the Software to the best of its ability. The Customer shall immediately notify the Service Provider of any Error and all diagnostic, configuration and other relevant information relating to the Error so that the Service Provider can isolate and replicate the Error;
(b) The continuous adaptation and updating of the Software to the technically current state.
13.2. The Service Provider shall respond no later than three (3) Business Days after the Customer has described to the Service Provider the problem of an error reported by the Customer in sufficient detail to enable the Service Provider to replicate the problem. The service provider satisfies this obligation by providing a preliminary error analysis and/or pointing out solutions that are already known.
13.3. The Service Provider shall take all commercially reasonable steps to correct all Errors within ninety (90) Business Days after the Customer notifies the Service Provider thereof. The Service Provider reserves the right to prioritise the rectification of the Errors according to their severity and importance. The Service Provider is entitled to finally eliminate the error within the framework of the next update of the software;
13.4. If and to the extent that the Customer has reported an error to the Service Provider, the Customer shall, after prior request by the Service Provider, be obliged to discontinue the use of the software in question if and to the extent that this is necessary to eliminate the error in order to give the Service Provider the opportunity to analyse and eliminate the error. The customer is obliged to support the service provider in every way possible in the troubleshooting.
13.5. In all other respects, the provisions in item 14 shall apply accordingly.
Maintenance services do not include:
14.1. System configurations, hardware and networks;
14.2. structural work, such as defining overviews, setting up import definitions and adapting to third party software;
14.3. On-site support;
14.4. extending the functionality of the Software at the request of the Customer;
14.5. the conversion of files;
14.6. external databases of manufacturers other than the Service Provider;
14.7. Installation, configuration, training or other services not expressly described in these Maintenance Conditions;
14.8. Support for software from manufacturers other than the Service Provider.
15. Further developments / change in performance
15.1. The service provider reserves the right to further developments and changes in performance (e.g. through the use of newer or different technologies, systems, procedures or standards) in the course of technical progress and optimisation of performance after conclusion of the contract.
16. Liability for material defects and acceptance
16.1. The liability for material defects for services of the service provider shall be governed by the statutory provisions, unless otherwise agreed below.
16.2. The customer is aware that software is a very complex product, the functioning of which depends on a large number of factors, so that, taking into account the relevant technical experience and investigations, complete freedom from defects of the software can never be guaranteed. The service provider therefore only guarantees the technical usability of the software in accordance with the documentation provided to the customer. In particular, the service provider does not warrant that the software complies with the customer's operational specifics. The customer himself is responsible for convincing himself of the suitability of the ordered service for his application purposes.
16.3. The Service Provider undertakes to maintain the software provided for use for the duration of the subscription in a condition suitable for use in accordance with the contract and to carry out the necessary maintenance and repair work. This obligation only relates to the contractual condition of the software at the time of the determination of readiness for use.
16.4. In the event of only an insignificant reduction in the suitability for the contractual use, there shall be no claims due to defects in the software. Claims based on such defects are also excluded if the deviation from the contractual quality is due to improper use or the use of the software under non-agreed conditions of use or a non-agreed system environment. The same applies to such deviations that arise due to special external influences that are not contractually assumed.
16.5. The strict liability of the Service Provider pursuant to Section 536a (1) of the German Civil Code (BGB) due to defects that already existed at the time of the conclusion of the contract is excluded.
16.6. The Customer shall notify any defects in writing in a comprehensible and detailed form, stating the information required for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the mode of appearance and the effects of the defect shall be stated. In addition, the customer shall also support the service provider in the elimination of defects to the extent necessary.
16.7. Defects shall be remedied within the business hours of the service provider by rectifying or repairing the software free of charge. The service provider shall be granted a reasonable period of time for this purpose. With the consent of the customer, the service provider may replace the software or individual components of the software for the purpose of remedying defects. The customer shall not unreasonably refuse its consent to this.
16.8. Termination by the customer pursuant to section 543, subsection 2, sentence 1, no. 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) for failure to provide use in accordance with the contract is only permissible if the service provider has been given sufficient opportunity to remedy the defect and this has failed. The rectification of defects shall only be deemed to have failed if it is impossible, if it is definitively refused or unreasonably delayed by the service provider, if there are reasonable doubts as to the prospects of success or if it is unreasonable for the customer for other reasons.
16.9. The Customer's rights shall be excluded to the extent that the Customer makes changes to the software or has changes made to the software without the prior consent of the Service Provider, unless the Customer proves that the changes do not have any effects on the analysis and elimination of the defect that are unreasonable for the Service Provider. The Customer's rights due to defects shall remain unaffected, provided that the Customer is entitled to make changes, in particular within the scope of exercising the right of self-execution pursuant to Section 536a (2) of the German Civil Code (Bürgerliches Gesetzbuch - BGB), and that these changes were carried out professionally and documented in a comprehensible manner.
16.10. Unless otherwise provided by law, the Service Provider's liability for material defects shall be excluded in particular in the following cases:
(a) The Customer has had modifications made to the Service by a third party;
(b) The customer disregards certain instructions for use of the service provider associated with the service, in particular the enclosed or affixed installation and/or operating instructions, or uses accessories or spare parts in connection with services of the service provider that are not user-specific;
(c) The Customer does not use the Service for the contractually presumed use or for the usual use, does not install it properly or does not commission the Service properly in compliance with the respective current state of science and technology.
16.11. The limitation period for material defects is one year from the statutory commencement of the limitation period. The statutory periods shall remain unaffected in the event of an intentional or grossly negligent breach of duty by the service provider, in the event of fraudulent concealment of a defect, in cases of injury to life, limb or health and in the event of liability under the Product Liability Act.
16.12. For claims for damages and reimbursement of expenses, point 17 of these General Terms and Conditions shall apply in addition.
17. Amount of damages
17.1. Irrespective of the legal grounds, the service provider shall only be liable for damages that are attributable to a defect in the service itself or to an act or omission within the following limits:
(a) in the case of intent on the part of the service provider, legal representatives or other vicarious agents of the service provider without limitation;
(b) in the event of gross negligence on the part of the service provider, limited to the invoice value of the service;
(c) in the event of culpable breach of material contractual obligations (cardinal obligations) by the service provider, the legal representative or other vicarious agents without intent or gross negligence limited to the invoice value of the service.
17.2. The service provider shall only be liable for damage attributable to the conduct of an employee or vicarious agent if these persons have acted in the course of their duties. The service provider is also exempt from this liability insofar as the damage is due to circumstances which it could not avoid even with the greatest care and the consequences of which it was unable to avert (e.g. strike, force majeure).
17.3. Furthermore, liability on the part of the service provider is excluded, insofar as this does not conflict with mandatory legal provisions. In particular, the service provider shall not be liable for breaches of ancillary obligations, lack of economic success, loss of profit, indirect damage, consequential damage caused by a defect and damage arising from third-party claims against the customer.
17.4. The limitation of liability according to par. 17.1 to par. 17.3 does not apply to damages to body, life and health or to liability cases according to the Product Liability Act.
17.5. The Service Provider shall not be liable for disruptions on telecommunication connections, for disruptions on line paths within the Internet, in the event of force majeure, for the fault of third parties or of the Customer itself. The service provider also accepts no liability for damage caused if the customer passes on passwords or user IDs to unauthorised persons.
18. Termination of the contract
18.1. The service provider may offer test versions in the form of test accesses. During the respective specified test period, use is free of charge. If the User wishes to continue using the software after the end of the trial period, a contract with costs must be concluded.
18.2. The quarterly subscription can be terminated with a notice period of one month to the end of the respective billing quarter. The annual subscription and two-year subscription can be terminated with a notice period of three months to the end of the respective billing year. The cancellation can be made under "memtime.com > Customer portal > Manage account > Cancel subscription". If this is not possible or reasonable for the customer, the termination can alternatively be declared to the service provider in text form by e-mail.
18.3. The right of each party to extraordinary termination remains unaffected.
18.4. The Service Provider shall delete the Customer's data after termination of the contract. The Customer shall not be entitled to any further retention of its data.
19. Data protection
19.1. The service provider shall ensure that personal data of customers are only collected, stored and processed insofar as this is necessary for the contractual provision of services and is permitted by statutory provisions or ordered by the legislator. The Service Provider shall treat personal data confidentially and in accordance with the provisions of the applicable data protection law and shall not disclose it to third parties unless this is necessary for the performance of the contractual obligations and/or there is a legal obligation to disclose it to third parties.
19.2. In order to be able to guarantee audit-proof processing of the data, the creation, modification and deletion of data is logged with details of the customer name and the processing date.
19.3. In the event that declarations of consent under data protection law are obtained from the customer in the context of the use of the service of the service provider, it is pointed out that these may be revoked by the customer at any time with effect for the future.
20. Changes in benefits
20.1. The service provider is entitled at any time to change its services provided on the Internet, to make new services available free of charge or against payment and to discontinue the provision of free services. Furthermore, the service provider may add chargeable services to chargeable services. When changing chargeable services, the service provider shall pay particular attention to the justified interests of the customers and shall announce such changes in good time.
21. Changes to the terms and conditions
21.1. The service provider reserves the right to amend these GTC at any time with effect also within the existing contractual relationships. The service provider will notify registered customers of such changes at least 6 weeks before the planned entry into force of the changes. If the customer does not object within 6 weeks of receipt of the notification and continues to use the services even after expiry of the objection period, the changes shall be deemed to have been agreed with effect from the expiry of the period. In the notification of change, the service provider shall inform the customer of his right to object and of the consequences of an objection. In the event of an objection, the service provider shall be entitled to terminate the contractual relationship with the customer as of the planned entry into force of the changes.
22. Final provisions
22.1. The law of the Federal Republic of Germany shall apply, whereby the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
22.2. Without the prior written consent of the service provider, the customer may not transfer the rights and obligations arising from the contracts existing with the service provider to third parties.
22.3. The place of jurisdiction for all disputes arising from or in connection with the contracts and their performance shall be Munich.
22.4. Should any provision of these General Terms and Conditions be or become invalid, unenforceable or incomplete, this shall not affect the validity of the remaining provisions. In place of the invalid, impracticable or missing provision, that provision shall be deemed agreed which the parties would reasonably have agreed if they had been aware of the invalidity, impracticability or incompleteness.