TERMS OF USE
ON AIR Software GmbH, Rödingsmarkt 9, 20459 Hamburg, Germany
(1) DEFINITIONS
1.1 Provider
These terms and conditions of use (the “Terms of Use”) apply to all services provided by ON AIR Software GmbH, Rödingsmarkt 9, 20459 Hamburg, Germany, hereinafter referred to as the “provider”.
1.2 Users
You, as the contracting party, are referred to as the “user”.
1.3 ON AIR Appbuilder
ON AIR Appbuilder is a service of the provider.With the ON AIR Appbuilder the user is able to create mobile applications (“apps”) as well as websites which are optimized for use with mobile devices (“web apps”).
1.4 Websites of ON AIR Appbuilder
The website http://www.onair-appbuilder.com as well as other sub-domains belonging to this domain, in particular also the administration portal for the creation of apps (https://designer.onair-appbuilder.com) and the domains under where the web apps of the user are being hosted are referred to as “ON AIR Appbuilder websites”.
1.5 User account
The use of ON AIR Appbuilder requires compulsory registration – hereinafter referred to as “user account”. The registration of a legal entity may only be carried out by a natural person who is authorized to represent and who must be named. We may refuse to accept registrations if there is a factual reason, e.g. incorrect information or fears that payment obligations are unlikely to be met.
1.6 Services
The Provider offers all of the services of ON AIR Appbuilder in packages with different extents. The available packages as well as their exact extent are available on the websites of ON AIR Appbuilder.
(2) SCOPE
2.1
Based on these terms and conditions the provider offers its users free and paid SaaS products and other services. These terms and conditions apply exclusively; conflicting or deviating terms and conditions of the contracting party do not apply. Further, those will not be valid even if the provider does not explicitly object.
2.2
By activating the option “I agree with the general terms and conditions “during the online ordering process or by signing a user agreement between the user and the provider, a contract is concluded for the use of ON AIR Appbuilder and other services offered by the provider.
2.3
The provider will constantly expand the range of additional services and modules and adapt them to current developments. The provider reserves the right to update these terms from time to time. The provider will inform the users about the changes and make the modified GTC availble for download. The use of ON AIR Appbuilder then depends on the changed terms and conditions. Apps that were previously created with ON AIR Appbuilder can continue to be used at the terms and conditions of their creation until the provider and the user agree to change the terms and conditions for these apps.
2.4
The Provider is entitled to have parts of its services provided by third parties. As far as the provider uses services offered by third parties, do not become a contracting party of the user.
2.5
These terms and conditions and all offers of the provider are aimed both at entrepreneurs in the sense of §14 BGB (German Civil Code) as well as at private persons. The provider reserves the right to delete entries and related user accounts that have been created by the use of e-mail addresses that are supposed to conceal or disguise the true identity such as “disposable e-mail addresses”, “trashmail”, “fake e-mail addresses”), without further notice.
(3) PRODUCT AND CHARACTERISTICS
3.1
The provider offers under the name ON AIR Appbuilder a service that can be used to create mobile web pages (“web apps”) as well as native apps for smartphones and tablets. Further details of the services and functions are described on the websites of ON AIR Appbuilder. The Provider is entitled to independently carry out updates and enhancements to ON AIR Appbuilders at any time if this is reasonable for the user.
3.2
By entering into a contract, the user acquires the right to use the the services of the provider as to the extent as chosen by the user during the contract period. At the end of the contract, those contractually granted rights end. The right of use does not include viewing source codes or other design materials about the apps created by the user or other services. The provisions of paragraph 3.6 apply.
3.3
The provider also offers free services. These free services are a voluntary service of the provider. Users have no claims to its provision and the fullfilment of certain requirements, in particular not to its availability. The Provider may suspend these free services at any time without justification or terminate the availability. Free services may include the display of own and third-party advertising within the mobile application as well as in thumbnails of the app. The user agrees to the above.
3.4
The provider owes no particular success for the apps created with ON AIR Appbuilder. In particular, the provider can not guarantee that apps created with ON AIR Appbuilder pass the assessment by the operators of the respective app stores. The provider has no influence on this decision. After submitting to the respective app store, the native app is subject to the terms and conditions applicable to that app store. These can be viewed at the respective App Store. The provider will take the necessary actions to ensure the functionality of the apps within the scope of the availability governed in paragraph 3.7.
3.5
The provider uses data centers in various countries in Europe, America, Asia and Australia to operate its worldwide services. The app’s back-end services (as distinct from the front-end in the app stores) remain on our or our rented servers.
3.6
Apps and other services are only handed out in executable code and without documentation. The user is not entitled to source, design or other information.
3.7
The Provider supplies the features of ON AIR Appbuilder with an availability of 95% in the calendar month. This does not include such periods during which the use is interrupted or impaired for compelling technical reasons or due to required maintenance work, without the provider being responsible for them.
(4) COPYRIGHT
4.1
The websites of ON AIR Appbuilder as well as all other services offered by the provider are protected by copyright. All rights reserved. Unauthorized copying, reuse or alteration of the design and content of the website is prohibited.
4.2
The provider gives no guarantee or accepts liability for the accessibility or its quality and the manner of presentation.
4.3
Texts, parts of texts, graphics, tables or images provided on the websites of ON AIR Appbuilder may not be duplicated, distributed or exhibited without the prior consent of the provider.
4.4
The ON AIR Appbuilder website contains data and information of all kinds, which are protected by trademark and / or copyright in favor of the provider or, in individual cases, in favor of third parties. It is therefore not permitted to download, reproduce and distribute ON AIR Appbuildert’s website as a whole or parts of it. Above all, the technical duplication for the purpose of browsing is allowed, as far as this action is not used for economic purposes, as well as the permanent duplication for their own use.
4.5
It is permitted to put a link on the web pages of ON AIR Appbuilder, as long as it serves the cross reference alone. The framing of the web pages of ON AIR Appbuilder and in particular the web apps created by the user is not permitted.
4.6
The laws, ordinances, official decrees and notices reproduced on the web pages are not protected by copyright, as are decisions and official guidelines on decisions
(5) PAYMENT TERMS
5.1
The current price list applies. The user is informed of the costs incurred before booking a paid service or product.
5.2
The invoices will be sent by e-mail. In the case of a delivery request by letter, we are entitled to charge a reasonable processing fee.
5.3
The payment is always in advance. Visa / Visa Electron, Mastercard, JCB and Diners Club International / Discover, Paypal as well as direct debit via SEPA are available for payment. When ordering a paid service or product, the customer will authorize the provider to collect payments that are due on the respective valid account.
5.4
A payment is only made if the the amount is at the providers disposal.
5.5
In case of late payment, the provider is entitled to block the user’s account for the duration of the delay. Further claims and rights remain unaffected. The costs incurred by the provider for the delay in payment must be fully reimbursed by the user.
(6) OBLIGATIONS OF THE USER
All users of ON AIR Appbuilder, for the purpose of ensuring a proper course of action, are liable for conduct obligations, the nonobservance may lead to disadvantages, in particular to termination and claims for damages. These conduct obligations are listed below.
6.1
The user must provide complete and true information on required registrations and other queries required to achieve the purpose of the contract, in the event of a subsequent change of the requested data, correct them immediately in the designated administrative function and ensure that the user name and password are not accessible to third parties. Any use of the services of the provider under their own user account by third parties must be prevented.
6.2
The user must inform the provider immediately if there is an improper use of the password or the user account or if there are indications of imminent misuse.
6.3
In particular, the user is obligated not to use the services of the provider in an improper manner or in an immoral manner and to respect the laws and the rights of third parties. This includes the following obligations:
6.3.1
The user shall ensure that contents stored by him under his account or distributed from his account do not violate the statutory provisions on the protection of minors, the general right of privacy, as well as other property rights, in particular trademarks, rights of companies and copyrights of third parties.
6.3.2
The User will verify, prior to each storage and publication of any app, that he or she has the necessary rights to the content (e.g., text, photography, image, graphics, video, music, sample). In the case of photographs and videos, the further examination is required as to whether the persons shown have the required consent; without this consent, storage or distribution may not take place.
6.3.3
The user refrains from storing and disseminating data that violates pornographic, immoral, discriminatory, racist, right-wing or religious feelings.
6.4
In the event of a breach of duty (pursuant to paragraph 6.1, 6.2 and / or 6.3), the provider shall be entitled to temporarily block and / or delete any potentially affected content with immediate effect and / or temporarily or permanently exclude the user from the offer and / or terminate without notice. The same applies if the provider is informed by third parties that, in violation of the obligations contained in paragraph 6.3, the user provides or distributes content, unless the allegation of an infringement is manifestly inaccurate. Even without a breach of duty, the provider is entitled to block the account, as long as there are indications of an existing or imminent misuse of the account by third parties.
6.5
The user has to compensate the provider for the damage resulting from a breach of duty, unless he is not responsible for this.
6.6
Provider reserves the right to review the apps and content of apps. Subject to a specific occasion, this review will only be on a random basis. There is no obligation to review an app.
6.7
It is recommended that the user always generates up-to-date backup copies of his app content for the data stored in his user account as this is not a part of the services offered by the provider. These backup copies must not be stored within the services offered by the provider.
6.8
The user will not display his app in an external website by inclusion via frame or iframe. Exempted are preview images of the respective app.
6.9
The user must comply to the requirements of a mandatory imprint obligation (or the legal obligation in his or her country).
(7) PROTECTION RIGHTS & REFERENCES
7.1
In the event that the user holds or distributes content while using the services of the provider (to whom he is entitled to copyrights or other rights), the provider is entitled for the duration of the service provision to those exploitation acts himself, which correspond with the purpose of the individual services of ON AIR Appbuilders.
7.2
The provider is entitled to list the company and logo of the customer in reference lists and to publish these on the web or in print media for factual information. Furthermore, the user grants the provider the right to display used app names and icons in references and overview lists. Any further use is not permitted. The provider and the user also have the right to publish press releases with a brief description of the collaboration or individual projects.
7.3
The content provided on the websites of ON AIR Appbuilder is protected by copyright. The user is therefore not permitted to copy, edit and / or distribute this content beyond the use granted by the right holder in individual cases.
(8) WARRANTY FOR DEFECTS OF QUALITY OR TITLE
8.1
The provider warrants the agreed quality of the services ordered as well as the fact that the user can use them without violation of the rights of third parties according to the contract.
8.2
If there is a material defect at the time of the transfer of risk, the provider is entitled to remedy the defect either by providing a new, flawless software release (new delivery) or by rectification (subsequent improvement).
8.3
If the provider can not remedy a defect within a reasonable period of time or if the repair or new delivery is to be regarded as failed for other reasons, the provider may optionally withdraw from the contract or reduce the remuneration. The rework or subsequent delivery is not already failed with the second attempt. Rather, the provider is free to decide the number of attempts at subsequent performance during the deadline. A failure of the rework or the new delivery can be accepted only if the provider seriously and finally refuses these actions, unreasonably delayed or if there are other special circumstances, by which further waiting for the user is unreasonable.
8.4
Insofar as the contractual use of the services by the provider leads to infringement of copyrights or other industrial property rights of third parties, the provider will, at its own expense and choice, either procure the right to further contractual use or modify or rather replace the apps or other services in a way that is reasonable for the user so that there is no longer a violation of third-party rights. If this is not possible on economically reasonable terms or in a reasonable time, both the user and the provider are entitled to withdraw from the contract. The provider will indemnify the user for undisputed or legally established claims of the IPR owners.
(9) LIABILITY
9.1
The Provider shall indemnify or reimburse useless expenditures, for whatever legal reason (eg from legal transactions and similar transactions, breach of duty and tort) only to the following extent:
9.1.1
Liability for intent, gross negligence and guarantee is unlimited.
9.1.2
Liability for ordinary negligence is excluded. In the event of negligent breach of an essential contractual obligation, the fulfillment of which enables the contractual purpose to be performed properly and on which the contractual partner regularly relies (cardinal obligation), the provider is only liable for the damage typically foreseeable at the time the contract was concluded.
9.1.3
If the provider is in arrears with the service, the provider shall be liable for this service also for chance without limitation, unless the damage would have occurred even with timely performance. Moreover, the liability for simple negligence is excluded.
9.2
The objection of contributory negligence remains open to the provider. In particular, the user has the obligation to backup data according to the current state of the art.
9.3
As far as the liability of the provider is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents of the provider.
9.4
The limitations mentioned here do not apply to the liability of the provider for damages resulting from injury to life, limb or health and claims under the Product Liability Act.
(10) DATA PROTECTION & DATA TRANSMISSION
10.1
The provider will use the data of the users only in the context of this contractual relationship and in particular observe the data protection regulations. The provider will oblige its employees and subcontractors to comply with data protection. The contract processing, in particular the transmission of contents, data processing and service can take place unencrypted over Internet.
10.2
Regarding data retention, the provisions of paragraph 3.5 apply.
10.3
The provider is entitled to engage subcontractors for the execution of the contract and to transfer the content set by the user and all personal data collected within the scope of this contract to these subcontractors or to make it accessible to them.
10.4
The provider is, in particular, entitled to pass on the personal data for payment processing and also this already for a credit check to the corresponding service provider.
(11) CONTRACT DURATION & TERMINATION
11.1
The contract is closed indefinitely.
11.2
The right to terminate for good cause remains unaffected.
11.3
The contract may be terminated by both parties with a notice period of 30 days to the end of the month without giving reasons. Terminations must be made in writing by letter, e-mail, fax or, as far as this option is available, via the user’s account.
11.4
When the termination becomes effective, the user’s account will be blocked and any stored content will be deleted. The customer is therefore required to make and maintain copies of all data stored by him on ON AIR Appbuilder.
(12) REVOCATION
12.1
Right of withdrawal
The user can withdraw his contract within two weeks without giving any reason in writing (for example by letter, fax, e-mail). The period begins after receipt of this instruction in writing, but not before conclusion of the contract and also not before fulfillment of our information obligations pursuant to § 312 c Abs. 2 BGB in connection with § 1 paragraph 1.2 and 4 BGB-InfoV, and our obligations under § 312 para. 1 sentence 1 BGB in conjunction with § 3 BGB-InfoV (German Civil Code).
To maintain the cancellation period, the timely dispatch of the revocation is sufficient. The revocation must be addressed to:
ON AIR Software GmbH
c / o Mindspace Hamburg
Rödingsmarkt 9
20459 Hamburg
Germany
12.2
Revocation consequences
In the case of an effective cancellation, the mutually received benefits are to be returned.
The right of revocation expires prematurely if the contract is completely fulfilled by both parties at the express request of the user before the user has exercised his right of revocation.
Obligations to reimburse payments must be fulfilled within 30 days. The period begins for the user with the sending of his revocation, for the provider with their receipt.
(13) FINAL PROVISIONS
13.1
The assignment of rights and claims under the contract, unless expressly permitted, is only permitted with the prior written consent of the provider. However, the provider is entitled to transfer the contract as a whole to affiliated companies.
13.2
The terms of the agreement constitute the entire agreement between the user and the provider and govern the use of the products. However, this does not apply to services of the provider to the user under a separate written agreement. The terms of the contract fully replace all previous agreements.
13.3
Failure to exercise or enforce any right or remedy granted under the terms of the agreement or to which the provider is entitled under the applicable law shall not be construed as a formal waiver of the provider’s rights; in fact the rights remain.
13.4
Should individual provisions be or become wholly or partly invalid, this does not affect the validity of the remaining clauses. The contracting parties are bound, within reasonable limits and in good faith, to replace the ineffective clause by a permissible provision which is equivalent in economic success, provided that no material change of the contractual content is brought about. The same applies to any contractual gaps.
13.5
The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is Hamburg (Germany), provided the user is a merchant or equivalent. The provider is also entitled to bring the action before the court of the users domicile that is responsible for his or her general jurisdiction.
13.6
Only the law of the Federal Republic of Germany applies. Nevertheless, the user agrees that the provider is entitled to assert injunctive relief or elimination claims by way of interim relief in other legal systems as well.
Last Revised: August 01, 2016
