These terms of use for the smapOne platform ("Terms of Use") govern the legal relationship between smapOne AG ("smapOne") and business customers within the meaning of §14 BGB (German Civil Code) (hereinafter referred to as "Customers").

§ 1 User Account

(1) In order to use the platform, a user account must be created. By creating a user account, a contract for the use of the platform according to these terms of use is concluded between smapOne and the customer for whom the user account is created ("contractual partner").

(2) The user account must be assigned to a person who must be employed as an employee of the contractual partner ("Account Owner") during the creation process. A separate user account is required for each Account Owner who creates apps on the smapOne platform.

(3) In vacation periods and during absence due to illness, the use of this user account by a representative designated by the Contractual Partner is permitted. Should an Account Owner permanently terminate his activity for the Contractual Partner or change to another workplace of the Contractual Partner, which is in the way of the further activity as Account Owner, the Contractual Partner may transfer the account to a new Account Owner. The new Account Owner shall be obliged to update the personal data in the Account accordingly.

(4) Registration is only permitted by or on behalf of entrepreneurs within the meaning of § 14 BGB (German Civil Code).

§ 2 Functionalities of the Platform; Responsibility of the Contractual Partner for Users

(1) The platform makes it possible to create individual smapOne apps from prefabricated components. smapOne expressly reserves the right to decide at its own discretion on the offer of individual functionalities of the platform, unless these have been expressly named as a feature of the platform on the Internet site www.smapOne.com. The user is responsible for the functionality of the platform.

(2) The smapOne apps can be made available to an end user ("User") for use on a mobile device ("Deployment").In addition to the smapOne app, a standard software from smapOne, the so-called "smapOne base app", is necessary for the operation of the smapOne apps, which can be downloaded at any time free of charge from the app store of the respective mobile device.

(3) The contract partner is responsible for the use of the smapOne apps. In particular, the contract partner must independently check whether it is operating a telemedium within the meaning of the Telemedia Act ("TMG") by making the smapOne app available. It is the responsibility of the contract partner to provide his own imprint according to §§ 5 and 6 TMG.

(4) In addition to the smapOne base app, each smapOne app includes a part of the software that runs on a server ("backend"). For the operation of the backend, smapOne provides certain server capacities depending on the tariff (See § 8). The backend of a smapOne app can only be operated on smapOne servers. Only the account owner has access to the backend.

§ 3 Responsibility regarding personal data

(1) smapOne only collects the data that is absolutely necessary for the operation of the platform. Further information on this can be found in the data protection information at https://www.smapone.com/datenschutzhinweise/.

(2) Within the scope of free use according to § 7, the contract partner is prohibited from collecting, processing and storing personal data with the smapOne platform.

(3) Insofar as the contractual partner sets up its smapOne app within the scope of paid use pursuant to § 8 in such a way that personal data is collected and stored in the backend, the contractual partner is the responsible party within the meaning of Art. 4 No. 7 DSGVO with regard to the collection, processing and use of this data. It is the responsibility of the contract partner to obtain any necessary declarations of consent from the users and to conclude an order processing contract with smapOne.

§ 4 Minimum requirements for mobile devices

(1) Since the minimum requirements for the smapOne apps can vary greatly depending on the complexity of the apps and the volume of data to be transferred, smapOne does not guarantee any specific response times or similar performance indicators. Against this background, it is the responsibility of the contract partner to check within the framework of the free test access whether the smapOne apps created by him are suitable for the intended purpose on the mobile end devices to be used.

(2) For the operation of the smapOne apps on end devices, these end devices must at least temporarily have a connection to the Internet that enables a download and upload of data. If the Contractual Partner designs a smapOne app to be data-intensive, an Internet connection with high data throughput may be required for the smooth operation of the smapOne app. Also against this background, it is the responsibility of the contract partner to check within the framework of the free test access whether the smapOne apps created by him can be operated for the intended purpose with the existing Internet accesses of the mobile devices.

§ 5 Obligations of the contract partner when creating and operating a smapOne app

(1) The contract partner must comply with the law when creating and operating smapOne apps. In particular, it is prohibited to carry out anti-competitive business practices through the smapOne apps or to commit criminal offenses or misdemeanors through the smapOne apps or to abet their commission.

(2) If the contracting party integrates its own graphics, videos, own content or other protected material into a smapOne app, it must have the necessary copyrights, trademark and design protection rights or the sufficient license rights.

(3) The contracting partner is prohibited from modifying the software of smapOne, unless this is done via the corresponding functionalities of the platform.

(4) The contracting party is prohibited from decompiling the software of smapOne, unless this is legally permitted within the framework of § 69e UrhG.

(5) If smapOne becomes aware of illegal content of a smapOne app, smapOne will immediately block this app and the corresponding user account of the account owner.

(6) In the event that a third party asserts a legal violation against smapOne, which is based on an at least slightly negligent behavior of the contracting party, the contracting party shall indemnify smapOne from all costs arising from this, in particular claims for damages, costs of proceedings and the costs of an appropriate defense by attorneys.

(7) The contract partner is obligated to report defects in the software to smapOne immediately. The contract partner will take into account smapOne's instructions for problem analysis within the scope of what is reasonable for the contract partner and will forward to smapOne all information available to the contract partner that is necessary for the elimination of the defect.

§ 6 Rights of Use; Prohibition of Disclosure

(1) smapOne grants the contract partner the simple, non-transferable right to use the contractual services for its own business purposes in the contract partner's company in accordance with these terms of use, limited to the duration of the contract.

(2) The smapOne apps as well as Creator accesses (Child Subscriptions) may not be resold, sublicensed, rented or passed on to a third party free of charge. A third party in this sense is any person who does not work directly for the contractual partner. The sale, rental or other transfer of the user account free of charge or in return for payment is also prohibited. The free transfer of smapOne apps to third parties is only permitted in cases where the use by third parties directly serves the contract partner's own business purposes (e.g. customer satisfaction surveys or similar).

(3) If the contract partner violates § 6 clause (2), smapOne can immediately terminate the contract without notice.

§ 7 Free use of the platform

(1) The creation of a smapOne app and its testing are possible free of charge for a limited number of installations within the framework of the test phase offered in the platform and limited in time.

(2) Within the scope of free use, the smapOne app may not be used productively in a company. smapOne has the right to terminate the contract without notice if a smapOne app is used productively within the scope of the free test phase. A smapOne app is used for test purposes if the smapOne app is used to test and evaluate the app for its usability for a specific purpose or to present the functionality of the smapOne app in a company for a limited period of time. A productive use of the smapOne app exists if the purpose of the use is mainly to generate added value for the contractual partner.

(3) Insofar as the platform is used free of charge, smapOne is not obligated to maintain the platform and the servers on which the respective backend is operated with a certain availability.

(4) A limited data volume per month is available to the contract partner for the free test. Data volume here means the volume of data sent between smapOne base app and backend. Once the volume is reached, access to the backend can be restricted at the sole discretion of smapOne.

(5) For the free trial, a limited amount of storage space on a server for the backend is available to the contract partner.

(6) After expiration of the free trial period, the platform will be blocked for further use. By upgrading to a paid version, which is possible at any time, the block can be lifted without loss of data and the account can be released again.

(7) Free user accounts that are not used for a period of three months can be deleted by smapOne. The smapOne apps created in a user account and the data created through the use of smapOne apps will be permanently lost.

§ 8 Chargeable use; tariffs; contract term

(1) To change to a fee-based contract, the contract partner contacts beratung@smapone.com or 0511 874 26 847.

(2) The booking of a tariff is initially for a minimum contract period.

(3) The costs for a tariff are to be paid for one year in advance.

(4) Offsetting against smapOne's payment claims is only possible with undisputed or legally established counterclaims.

(5) If the contract partner is in arrears with payments owed under this contract, smapOne is entitled to charge interest on arrears at a rate of 9 percentage points p.a. above the respective base interest rate.

(6) In the event of default of payment by the contract partner, smapOne is entitled to immediately block the use of the smapOne app and the respective account of the account owner.

§ 9 Rights of the contracting partner in case of defects

(1) Within the scope of a free use of the platform smapOne is not obligated to remedy defects.

(2) smapOne is obligated to remedy defects in the software provided within the scope of a tariff pursuant to § 8. In the context of § 10, software means the backend of a smapOne app, the smapOne base app and the platform.

(3) Defects in the software are only given if essential functionalities are not available as warranted. smapOne does not warrant the specific suitability for use of an individually created smapOne app for a specific purpose. The customer is responsible for the usability of the smapOne apps created by him and has to make sure of it before productive use. The possible unsuitability of a smapOne app for a specific purpose does not constitute a defect.

(5) Termination by the contractual partner in accordance with § 543 Paragraph 2 Sentence 1 No. 1 BGB (German Civil Code) due to non-provision of contractual use is only permissible if smapOne has been given sufficient opportunity to remedy the defect and this has failed. The elimination of defects can only be assumed to have failed if it is impossible, if smapOne refuses or unreasonably delays the elimination of defects, if there are reasonable doubts regarding the chances of success or if the contract partner cannot reasonably be expected to accept the elimination of defects for other reasons.

(6) The rights of the contracting partner due to defects are excluded if the contracting partner makes changes to the software (outside of the provided change options on the platform) or has such changes made without the consent of smapOne, unless the contracting partner proves that the changes do not have an unreasonable effect on the analysis and elimination of the defects for smapOne. The rights of the contractual partner due to defects shall remain unaffected, provided that the contractual partner is entitled to make changes, in particular within the scope of exercising the right of self-remedy according to § 536 a para. 2 BGB (German Civil Code), and that these changes have been carried out professionally and documented in a comprehensible manner.

§ 10 Limitations of liability

(1) It is the responsibility of the contractual partner to check during the test phase of the self-developed smapOne app whether the use of the smapOne app could result in risks to their own legal interests and the legal interests of third parties. smapOne is responsible for making the platform available and may be liable according to the following conditions if the platform, the smapOne base app or the backend is not available and damage results. The contract partner is responsible for all damages that occur within the scope of the use of the smapOne app itself and may also be liable to third parties. This applies in particular to loss of earnings.

(2) Furthermore, it is the responsibility of the contracting partner to check whether the app created by him is applicable for the desired purposes. smapOne is not obligated to pay damages against this background, if the damage consists of development costs for an app that is used instead of the smapOne app created by the contracting partner.

(3) smapOne is liable within the scope of the statutory provisions for damages

(a) from injury to life, limb or health resulting from intentional or negligent breach of duty or otherwise from intentional or negligent conduct by smapOne or its legal representatives or vicarious agents;

(b) due to the absence or omission of an essential warranted characteristic or in case of non-compliance with a warranty;

(c) due to intentional or grossly negligent breach of duty or otherwise due to intentional or grossly negligent conduct by smapOne or its legal representatives or agents.

(4) smapOne is liable, limited to compensation for foreseeable damages typical for this type of contract, for such damages that are based on a slightly negligent breach of essential obligations by smapOne or by one of its legal representatives or vicarious agents. Essential obligations are obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may rely. The liability is limited to six times the monthly license fees per case of damage.

(5) The strict liability of smapOne according to § 536 a Para. 1, 1st alternative BGB (German Civil Code) due to defects that already exist at the time of contract conclusion is excluded.

(6) In the event of loss of data caused by simple negligence, smapOne is liable only for the damage that would have been incurred even if the customer had properly and regularly backed up the data in a manner commensurate with the importance of the data; this limitation does not apply if the data backup was impeded or impossible for reasons for which smapOne is responsible.

(7) The foregoing provisions shall apply mutatis mutandis to smapOne's liability with respect to the reimbursement of futile expenses.

(8) To the extent legally permissible, smapOne assumes no liability for damages and loss of data for free test accounts.

§ 11 Term of Contract, Termination of the Contractual Relationship

(1) The contractual relationship begins with the creation of a user account and has a term of one year for the paid versions unless otherwise agreed. It shall be automatically extended by a further 12 months unless terminated by one of the parties at the end of the respective term with one month's notice.

(2) The right of each party to extraordinary termination for good cause shall remain unaffected.

(3) Termination must be in writing to be effective.

(4) Upon termination of the contractual relationship, the smapOne apps and the data on the backend will be irretrievably deleted. It is the responsibility of each contract partner to make regular data backups.

§ 12 Severability clause

(1) Should any provision of these Terms of Use be or become invalid, the validity of the remaining provisions of the Terms of Use shall not be affected. In place of the invalid provision, a provision shall be deemed to have been agreed which comes as close as possible to the economic purpose of the invalid provision. The validity of contracts related to these Terms of Use shall remain unaffected.

§ 13 Other agreements

(1) These Terms of Use are subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction is Hanover.