General Terms and Conditions
General terms and conditions of NemoContra GmbH for the provision of the “NemoVote” Software
1.1 The provider of the online live voting software "NemoVote" (hereinafter the "Software") is NemoContra GmbH, Mörikestr. 25, 71083 Herrenberg (hereinafter "NemoContra" or "we").
1.2 These General Terms and Conditions (hereinafter "GTC") apply to all contracts for the provision of the Software that we conclude with you as a customer (hereinafter "you" or "User").
1.3 These GTC do not apply if you are a consumer (§ 13 of the German Civil Code). A consumer is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his or her commercial nor to his or her independent professional activity.
1.4 These GTC contain the exclusive terms and conditions for the use of the Software by you. We do not recognise any terms and conditions of the User that conflict with or deviate from our GTC unless we have expressly agreed to their validity.
2. Proof of entrepreneurial status
We do not offer our Software to consumers (§ 13 of the German Civil Code). We may therefore require you to provide sufficient proof of your entrepreneurial status or your status as a legal entity before concluding the contract, e.g. by providing your VAT registration number or other suitable proof. The data required for the proof must be provided by you completely and truthfully.
3. Our services; conclusion of contract
3.1. With the Software, we provide an online platform for access via a telecommunications connection as Software as a Service, via which users can hold both live and non-live votes (hereinafter collectively referred to as "votes"). Information on the scope of functions of the software and the conditions of use are described in the respective service packages available here (hereinafter the "Service Packages").
3.2. Depending on which Service Package the User selects, the User has the option of booking individual events with a limited range of functions or sign up for a subscription. In the case of individual events, access to the Software is limited in time. In the case of a subscription, a continuing obligation is established with the User. If the User wishes to enter into a subscription agreement, he must create a customer account for this purpose.
3.3. The presentation of our services on our websites https://nemovote.com and https://book.nemovote.com does not constitute a binding offer on our part. Please refer to our customer information for details of how a contract is concluded with us in the event of an electronic business transaction.
4. Provision of the Software
4.1. Subject to clause 4.3 and clause 4.4 below, we shall make our Software available for use by the agreed number of authorised users in accordance with the provisions of these GTC on a central data processing system or several data processing systems (hereinafter also referred to as "Server" in plural) from the contractually agreed point in time and for the contractually agreed duration. In addition, subject to the following clause 7 (Data Retention) below, we shall also provide the User with sufficient storage space for his data generated by using the Software and/or the data required for using the Software (hereinafter referred to as the "Event Data") from the contractually agreed point in time and for the contractually agreed duration.
4.2. Subject to the following clause 6 (Preparation of Votes), the commissioning and setup of the Software (e.g. individual settings or data import) shall be carried out independently by the User.
4.3. In the case of an individual event, the User shall receive access to the software three days before the voting takes place. Access to the Software is limited in time and is available to the User until three days after the expiry of the booked voting period. After expiry of this period, access will be automatically blocked unless the User has booked an optional chargeable package for an extended access. In this case, the User's access rights to the Software and (if he/she activates the package for the period after the voting has taken place) the Event Data shall be extended by the period specified in the package. Clause 4.4 shall remain unaffected.
4.4. We shall provide the User with the access link and the access data to the Software by e-mail after receipt of payment. Usernames and passwords must be protected by the User against unauthorised access by third parties.
4.5. We are entitled but not obliged to continuously develop the Software. The further development of the Software can lead to an extension and/or modification of the Software with the consequence that new functionalities are available, existing functionalities are optimised in the process and/or the user guidance or the data management is adapted to the state of the art. An obligation to modify, adapt or further develop the Software only exists if such modification, adaptation or further development is necessary for the maintenance of the Software according to the state of the art.
4.6. The Software and the Event Data shall be backed up, subject to the following clause 7 (Data retention), on our Server on a regular basis, at least every calendar day.
4.7. The transfer point for the Software and the Event Data is the router exit of our data centre.
4.8. We are not responsible for the quality of the required hardware and software on the part of the User or for the telecommunication connection between the User and us up to the transfer point.
5.Technical availability of the Software
5.1. We owe the following agreed availability of the Software and the Event Data at the transfer point. The parties understand availability to mean the technical usability of the Software and the Event Data at the transfer point for use by the User.
5.2. The availability of the Software is 98.5% on an annual average. The available use (availability given) also includes the periods during
5.2.1 malfunctions in or due to the condition of parts of the technical infrastructure required for the execution of the Software which are not to be provided by us or our vicarious agents;
5.2.2 an only insignificant reduction in the suitability for the contractual use;
5.2.3 Maintenance work according to clause 5.3.
5.3. Maintenance work can take place on working days as well as on Sundays and public holidays in the time window from 0 to 24 hours.
6. Preparation of Votes
6.1. The commissioning and setup of the Software (e.g. individual settings or data import) is generally carried out independently by the User. If the User has booked an optional chargeable vote preparation package, we will set up the Software for the User and, if agreed with the User, enter any voter information into the Software for the User and create ballots and/or monitor the delivery of the election notification emails to the voters for the User.
6.2. The vote preparation package is only valid for a specific individual event or a specific subscription. If the User books another individual event, he/she must book the corresponding election preparation package again if he/she wishes to commission us with vote preparation.
7. Data retention
7.1. In the case of individual events, the service package does not include storage of the Event Data beyond the end of the event. In this case, the Event Data will be irrevocably deleted immediately after the voting has taken place, unless the User has purchased an optional chargeable package for an extended access in accordance with clause 4.3. The User has the option to export the voting results before his/her access to the Software is blocked.
7.2. If, in the case of an individual event, the User has booked an optional chargeable data reuse package, we will store the Event Data for the period specified in the data reuse package.
7.3. If you have concluded a subscription agreement with us, we store the Event Data for the contractually agreed duration.
8. White Label
8.1. If you have concluded a subscription agreement with us, you can use our Software as a so-called white label solution and replace our NemoVote logo with your own logo (e.g. the logo of your association) and your own colours.
8.2. In the case of individual events, the white-label function is not included in the service package unless the User has booked an optional chargeable white-label package. The white-label package is only valid for the respective booked individual event. If the User books a new individual event, he/she must book another white label package if he/she wishes to have this option.
8.3. If, in connection with an individual event, in addition to the white label package (clause 8.2), you have also purchased a data reuse package in accordance with clause 7.2, the white label functions shall be retained for the duration of the data reuse package, including for future individual events, at no additional cost.
9.1. We shall set up a support service for general enquiries by the User about functions of the Software. Enquiries can be submitted by e-mail and on our website https://nemovote.com using the form for individual enquiries provided there. The enquiries will be processed in the chronological order in which they are received. Processing on public holidays in Baden-Württemberg, Germany, as well as on 24.12. and 31.12. of each year is excluded. Additional support services (e.g. support via voice or video call) must be agreed separately and explicitly.
9.2. Training, general know-how transfer, configuration and implementation as well as customer-specific documentation or adaptation of the Software are not the subject of our support services and must be agreed separately and expressly.
9.3. If agreed with the User in individual cases, we will support the User in conducting votes (for example, in opening and closing ballots). The content and scope of the support services must be separately and expressly agreed.
10. Right of use
10.1. We grant the User a simple, non-transferable and non-sublicensable right to use the software for the contractually agreed number of users, limited in time to the agreed term of the contract, in accordance with the provisions of this clause 10.
10.2. The User is not entitled to provide the software to third parties. In particular, he/she is not permitted to sell, give away, lend, rent or otherwise sublicense the Software or to publicly reproduce or make the Software accessible.
10.3. If the User violates any of the provisions in this clause 10 for reasons for which he/she is responsible, we may, after prior notification of the User, block the User's access to the Software or the Event Data if the violation can be demonstrably remedied thereby.
11. Contract period in case of a subscription agreement
11.1. In the case of a subscription agreement, the contract is concluded for a period of 12 months (hereinafter the "Minimum Term"). After expiry of the Minimum Term, the contract shall be renewed for an indefinite period unless it is terminated by either party with one month's notice before expiry of the Minimum Term. The extended contract may be terminated at any time with one month's notice. The right to extraordinary termination remains unaffected.
11.2. Any termination must be in text form.
12. Terms of payment
12.1. Payment of the fee in the event of conclusion of a subscription agreement shall be made monthly or annually in advance, depending on the billing period selected by the User at the time of conclusion of the contract. The fee is due immediately upon ordering and will be debited from the payment method specified by the User.
12.2. If the contract is terminated in accordance with clause 11.1 before the end of the agreed billing period, we will immediately refund the fee already paid to the User on a pro rata basis after termination of the contract.
12.3. The price in the case of booking individual events is due immediately upon ordering and will be debited from the payment method specified by the User.
13. Obligations of the User
13.1. The User shall take all necessary precautions to prevent access to his user account by third parties. Should a third party gain unlawful access to the Software or should the User have reasonable suspicion that a third party has gained unlawful access to the Software, the User must inform us immediately.
13.2. The User shall ensure that the rights of third parties are observed when using the Software, in particular copyright, trademark law and the personal rights of third parties.
13.3. In the event of a breach of these GTC for reasons for which the User is responsible, we may, after prior notification of the User, block the User's access to the Software or the Event Data if the breach can be demonstrably remedied.
14. Defects in quality and title of the Software
14.1. The User shall notify us immediately of any defects in the Software.
14.2. The parties shall notify each other in writing without delay if claims are asserted against them which are related to the Software.
14.3. We shall only be liable for defects in the Software that were already present at the time of conclusion of the contract if we are responsible for these defects.
14.4. Termination of the contract pursuant to § 543 (2) No. 1 of the German Civil Code due to failure to provide use in accordance with the contract shall only be permissible if we have been given sufficient time to remedy the defect and such remedy has failed. The rectification of defects shall only be deemed to have failed if it is impossible, if we seriously and finally refuse to rectify the defect or if it is unreasonably delayed or if it is unreasonable for the User for other reasons.
14.5. A termination due to an only insignificant hindrance of the contractual use is excluded.
14.6. We shall not be liable for any infringement of third party rights by the User if and to the extent that such infringement results from the User exceeding the rights of use granted under the agreement. In this case, the User shall indemnify us upon first request against all claims of third parties. In the cases of sentence 2, the User shall also reimburse us for the costs of reasonable legal action.
14.7. Otherwise, the User may only claim damages in accordance with clause 15.
15. General liability
15.1. The statutory rights of liability for defects shall apply to our services, unless otherwise agreed in these GTC.
15.2. We shall be liable - irrespective of the legal grounds - for compensation for damages or reimbursement of futile expenses in accordance with the following provisions under items 15.2.1 and 15.2.2:
15.2.1 In the event of intent or gross negligence, we shall be liable without limitation. In the event of simple negligence, we shall only be liable for damages arising from the breach of a material contractual obligation (obligation whose fulfilment is a prerequisite for the proper performance of the contract and on whose compliance you may regularly rely and trust); in this case, however, our liability shall be limited to compensation for the foreseeable damage typical for the contract.
15.2.2 The obligations arising from para. 15.2.1 shall not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the item, for damage resulting from injury to life, limb or health, or in the event of liability under the Product Liability Act.
15.3. Insofar as liability towards us is excluded or limited, this shall also apply to the personal liability of our legal representatives and vicarious agents.
16. Data protection
16.1. The parties shall comply with the applicable data protection provisions applicable to them in each case.
16.2. The parties agree that in the course of the provision of services by us, access to personal data of the User may take place and that the subject and duration of the processing, the type and purpose of the processing, the type of personal data and the categories of data subjects shall be specified in a separate Data Processing Agreement.
17. Final provisions
17.1. We are entitled to use third parties as subcontractors in the performance of our services.
17.2. If the User is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for any disputes arising from the business relationship between us and the User shall be our registered office in Herrenberg. We shall also be entitled to bring an action at the registered office of the User as well as at any other permissible place of jurisdiction.
17.3. The relations between us and the user shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.