General terms and conditions

General terms and conditions (for consumers)

 

Contractual conditions within the framework of service contracts concluded via the platform NemoVote,

between NemoContra GmbH, managing director authorized to represent Jannis Beger (née Papazoglou), Mörikestr. 25, 71083 Herrenberg, info@nemovote.com

– hereinafter referred to as the “Provider” –

and

the customer designated in § 2 of the contract – hereinafter referred to as the “Customer” –

be closed.

 

1. scope of application, definitions

(1) For the business relationship between the service provider (hereinafter “Provider”) and the customer (hereinafter “Customer”), the following General Terms and Conditions shall apply exclusively in the version valid at the time of the order. Deviating general terms and conditions of the Customer shall not be recognized unless the Provider expressly agrees to their validity in writing.

(2) The customer is a consumer insofar as the purpose of the ordered services cannot be attributed predominantly to his commercial or self-employed professional activity. On the other hand, an entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of his commercial or self-employed professional activity.

The customer can select products from the provider’s range, especially digital voting and election instruments, and order them. By clicking the “Book now” button, the customer submits a binding request to book the service.

(3) The Customer commissions the Provider with the service of providing access to its software in the browser against payment. The download of apps or programs is not included. The Customer commissions the Provider with the receipt and processing of the correspondence necessary for the execution of the dialing processes and the necessary correspondence, insofar as these are processed by e-mail.

(4) With the commissioning, the Customer grants the Provider a power of attorney authorizing the Provider to conduct elections and votes on the Customer’s behalf.

(5) The contract offers include both one-time purchases and subscription models. Our offers can be found here.

 

2. conclusion of contract

(1) All offers are offered via a registration form. Before submitting the order, the customer can change and view the data at any time. However, the application can only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking on the button “Accept GTC” and thereby included them in his application.

(2) The Provider shall then send the Customer a confirmation of receipt by e-mail 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 merely documents that the customer’s order has been received by the provider and does not constitute acceptance of the application. The contract is only concluded by the submission of the declaration of acceptance by the provider, which is sent with a separate e-mail (order confirmation).

(3) The contract shall be concluded in German.

 

3. availability

(1) Performance times stated by the supplier are calculated from the time of our order confirmation.

(2) If the service is not possible at the time of the Customer’s order, the Provider shall inform the Customer of this immediately in the order confirmation. If the service is permanently not possible, the provider refrains from a declaration of acceptance. A contract is not concluded in this case.

(3) If the service designated by the Customer in the order is only temporarily unavailable, the Provider shall also inform the Customer of this immediately in the order confirmation.

 

4. warranty for defects

The supplier shall be liable for defects in work in accordance with the statutory provisions applicable to this.

5. liability

(1) Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfillment is necessary to achieve the goal of the contract.

(2) In the event of a breach of material contractual obligations, the Provider shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the Customer’s claims for damages are based on injury to life, body or health.

(3) The restrictions of paragraphs 1 and 2 shall also apply in favor of the legal representatives and vicarious agents of the Provider if claims are asserted directly against them.

(4) The limitations of liability resulting from paragraphs 1 and 2 do not apply if the provider has fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The same applies if the provider and the customer have reached an agreement on the quality of the item. The provisions of the Product Liability Act remain unaffected.

 

6. cancellation policy

(1) When concluding a distance selling transaction, consumers generally have a statutory right of withdrawal, which the Provider shall inform them of below in accordance with the statutory model. The exceptions to the right of withdrawal are regulated in paragraph (2). Paragraph (3) contains a sample withdrawal form.

 

Cancellation policy

Right of withdrawal

You have the right to cancel this contract within fourteen days without giving any reason.

The withdrawal period is fourteen days.

To exercise your right of withdrawal, you must inform us (click here to enter text) by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) of your decision to withdraw from this contract. You can use the attached sample withdrawal form for this purpose, which is, however, not mandatory.

In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

However, the right of cancellation shall expire under the conditions of Section 356 (5) of the German Civil Code (BGB) if we have commenced performance of the contract after you have expressly consented to our commencing performance of the contract prior to the expiry of the cancellation period and you have confirmed your knowledge that you lose your right of cancellation upon commencement of performance of the contract as a result of your consent.

Consequences of the revocation

The right of withdrawal does not apply to contracts for the delivery of audio or video recordings or computer software in a sealed package if the seal has been removed after delivery.

The provider informs about the model withdrawal form according to the legal regulation as follows:

 

Sample cancellation form

(If you want to cancel the contract, please fill out and return this form).

NemoContra GmbH, Jannis Beger (née Papazoglou), Mörikestr. 25, 71083 Herrenberg, info@nemovote.com

– I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/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 in case of notification on paper)

____________________________

Date ________________________

(*) Delete as applicable.

7. final provisions, termination

(1) Contracts between the Provider and the Customers shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions on the restriction of the choice of law and on the applicability of mandatory provisions, in particular of the state in which the customer has his habitual residence as a consumer, shall remain unaffected.

(2) If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the Customer and the Provider shall be the Provider’s registered office.

(3) The contract shall remain binding in its remaining parts even if individual points are legally invalid. The invalid points shall be replaced by the statutory provisions, if any. Insofar as this would represent an unreasonable hardship for one of the contracting parties, however, the contract as a whole shall become invalid.

(4) The Customer may terminate the Agreement by sending the Provider a written notice of termination by e-mail or by mail. He is not bound to any deadline.

 

General Terms and Conditions of NemoContra GmbH for the use of the voting software “NemoVote” for non-consumers

§1. Parties, scope, object
1. NemoContra GmbH, Mörikestraße 25, 71083 Herrenberg, Germany, (“NemoContra”) offers the voting and election software “NemoVote”, which is used for conducting online elections and online votes (“Voting Software”)
2. These General Terms and Conditions (hereinafter referred to as “GTC”) apply to the provision of the voting software by NemoContra to its customers (“Customer”). The subject matter of the contract is the provision of the voting software, as well as the provision of storage space for the storage of data (generated by the customer or by the voting software), which is necessary for the use of the voting software and the casting of votes. Finally, the customer releases the use of the voting software to users designated by him (administrators, voters) for the execution of their election/voting.
3. These GTCs apply exclusively to the use of the voting software by users who are entrepreneurs within the meaning of § 14 BGB (German Civil Code) or associations, but not to consumers. A consumer in the sense of § 13 BGB is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity.
4. The contractual relationship is governed exclusively by NemoContra’s general terms and conditions. The validity of provisions that deviate from or go beyond these regulations is excluded. This shall be particularly applicable to the customer’s general terms and conditions, even if NemoContra accepts an order from the customer in which the customer refers to their general terms and conditions and/or the customer’s general terms and conditions are attached and NemoContra does not object to them.
5. The language of the contract is English.
6. Obligations in electronic business transactions: § 312g (1) Nos. 1, 2, and 3 and § 312g (1) sentence 2 of the
German Civil Code (BGB), which provide for certain obligations of the entrepreneur in contracts in electronic business transactions, are excluded.
§2 Conclusion of contract
1. The presentation of the voting software on the websites operated by NemoContra and other online offers does not constitute a binding offer for the conclusion of a contract for the use of the voting software. Rather, it is a non-binding invitation for the (potential) customer to instruct NemoContra to conduct an online vote/voting.
2. A contract for the use of the voting software is not concluded until NemoContra expressly declares the acceptance of the order, or sends the customer an offer which the customer accepts.

§3 Services of NemoContra and provision of the voting software

  1. The scope of services and any applicable fees are based on the service descriptions applicable at the time the order is placed. In case the customer receives an individual offer and/or a description of services from NemoContra, they become part of the contract.
  2. NemoContra shall keep an instance of the voting software available on a server for use by the customer from the time agreed in the order. In order to use it, the customer will receive a link (“URL”) from NemoContra for access to his instance.
  3. NemoContra will set up an administrator account for the customer, through which the customer can configure his instance of the voting software according to the scope of the contract. Access to the administrator account is obtained by entering a username and password, which will be communicated to the customer by NemoContra by e-mail or in another agreed manner, after the conclusion of the contract. All usernames and passwords are to be changed by the customer immediately into names and passwords known only to them. The customer can create further administrator accounts within the voting software using his administrator account for individual use.
  4. Unless otherwise agreed, the customer will receive access to their URL and their administrator account, 5 working days before the beginning of the booked election/voting days.
  5. The customer carries out the initial setup of NemoVote (individual settings or import of data) personally. A modification of NemoVote, in particular, a reprogramming according to the wishes of the customer, is not obligated. Corresponding services are to be specially agreed upon and paid for.
  6. NemoContra is entitled to modify NemoVote, including technical developments, in order to improve the security or stability of the voting software. NemoContra may modify the voting software (including its system requirements) to adapt it to technical or economic market changes and for important reasons. Such a reason is deemed to be, if the change is necessary for ( i ) a necessary adaptation to a new legal situation or jurisdiction, (ii) a change in the technical framework (new browser versions or technical standards), (iii) the protection of system security, or (iv) the further development of the service (deactivation of old functions that have been largely replaced by new ones). NemoContra will give the customer at least two weeks’ notice of any impending substantial changes. The Customer’s consent to such a change will be considered granted if the Customer does not object to the change in writing or by e-mail before the change date. If such change would significantly disturb the contractual balance between the parties to the detriment of the Customer, the change will not be made.
  7. NemoContra guarantees that the voting software is suitable for the purposes pursued by the customer during the term of the contract and that it is free of defects, especially malicious software.

    § 4 Obligations and duties of the customer

    1. The customer shall provide NemoContra with all information necessary for the performance of the services under §3 and for the performance of further agreements between the parties.
    2. The customer shall create the technical, legal, and organizational conditions for its users to be able to use NemoVote. Particularly, the customer shall be responsible for ensuring that:
      1. All users of the software have access to suitable hardware and suitable Internet connection as well as the possibility of calling up the “https protocol”.
      2. The legal prerequisites for the implementation of electronic voting and the use of NemoVote are present and are observed.
    3. The customer shall fulfill all further duties and obligations necessary for the execution of the contract.
    4. He shall keep his access data/authorization secret and protect it from access by unauthorized third parties. These data and accesses are to be protected by suitable measures customary in the market.
    5. The customer shall immediately inform NemoContra if there is any suspicion that any unauthorized persons may have gained access to their data.
    6. The customer will comply with the restrictions and obligations with regard to the rights of use under §5.
    7. The customer will indemnify NemoContra against claims of third parties arising from any illegal use of the voting software, data protection, copyright, or other legal disputes arising from the use of the voting software by the customer (or a third person attributable to the customer, e.g. a user).
    8. The customer will not misuse the possible exchange of messages (email, pop-up, broadcast, chat) arising within the scope of the agreement and the use of the voting software for the unsolicited sending of information to third parties for advertising purposes or purposes that violate the terms of use, legal provisions or the purpose of this agreement.
    9. The customer shall oblige the authorized users of the voting software to comply with the applicable provisions of this agreement and to monitor this – as far as reasonable -.
    10. The customer shall check all data transmitted to NemoContra under this contract for malicious software according to current standards.
    11. The customer shall immediately notify NemoContra of any defects in the performance of the contract. If the customer delays the timely notification for reasons for which they are responsible, this shall be considered as a contributory cause or contributory negligence. If NemoContra is unable to remedy the situation, the customer is not entitled to reduce the agreed remuneration, to claim damages, or to terminate the contract without notice on account of the defect. The Customer must demonstrate that they are not responsible for the failure to notify NemoContra promptly.
    12. The customer shall pay the remuneration agreed in accordance with §7 when it becomes due.
    13. The customer shall be responsible for regularly making copies of the data entered by them and of those which are necessary for the use of the voting software (e.g. directories, tables, contact data), for exporting data (insofar as technically possible in NemoVote) and for making back-up copies or for printing and storing the corresponding

      §5 Rights of use of the voting software NemoVote

      1. NemoContra grants the customer simple, non-transferable limited rights of use of the voting software NemoVote, which are limited to those specified in the order, insofar as these rights are necessary for use in accordance with the contract. If new versions of the voting software are made available during the term of the contract, the rights of use shall also apply to these. The customer is not granted any additional rights of use in NemoVote.
      2. During the voting period, the customer is entitled to grant its users (administrators, voters) rights of use in accordance with §1 2. and §§3-4, insofar as this is necessary for the execution of the vote/election created and maintained by the customer.
      3. The right of use is limited to the number of units of use booked by the customer (e.g. number of users/voters) and is agreed on in the offer and/or the order.
      4. Any transfer of use or provision of the Service to third parties (except as provided for in these GTC) is prohibited. Transfer of use – whether for a fee or free of charge – is only permitted with the express written consent of NemoContra.

      §6 Technical requirements, transfer point, availability

      1. The technical prerequisite for the use of NemoVote is a standard and up-to-date Internet browser. The customer is responsible for the Internet connection between the customer and the computer center, and for the hardware and software required for this (e.g. PC, network connection, browser).
      2. The transfer point for the voting software is the respective uplink of the computer centers used by NemoContra.
      3. A certain availability of the voting software and server environment is only guaranteed to the extent that this is stipulated in the scope of services required under §4 or in separate written agreements between the parties (e.g. Service Level Agreement). The parties understand availability as the technical usability of the voting software at the data transfer points.
      4. NemoContra provides free online support to assist in the use of the voting software. The support does not include: general transfer of know-how, training, configuration, and implementation or customer-specific documentation or adaptation of the software. The support is provided exclusively by e-mail. Exceptions are public holidays in Baden-Württemberg, Germany and the 24th and 31.12. of each year.

    §7 Payment
    1. Fees for the provision of NemoVote or for additional services (e.g. extended service, additional development of product functionalities) are due in advance, unless the parties agree otherwise.
    2. The customer shall bear any costs that may arise as a result of a reversal of a payment transaction for lack of funds or due to incorrectly transmitted payment data.

    3. The scope of the payment is set out in a written offer from NemoVote or in an order agreed between the parties. The customer will settle the invoice by one of the payment methods offered by NemoVote. These are currently: invoice (bank transfer), credit card, PayPal. NemoContra reserves the right not to offer certain payment methods and to refer to other payment methods.
    4. All invoices from NemoContra are payable within 10 days of receipt of the invoice without any deductions, unless otherwise agreed.
    5. All prices are quoted as net prices (unless otherwise declared) and are subject to the applicable value-added tax.
    6. The customer may only set-off or exercise a right of retention against claims other than its contractual counterclaims arising from the legal transaction concerned, if this claim is undisputed by NemoContra or has
    been finally and conclusively determined by a court of law.
    7. If the customer is in default of payment, NemoContra may, after giving written notice, withdraw the rights of
    access and shut down the customer’s instance and delete the customer’s data after 30 days.

    §8 Liability
    1. The parties shall be liable to each other for damages insofar as these
    a. were caused intentionally or by gross negligence on the part of the party, or
    b. are caused by NemoContra’s slight negligence and are attributable to material breaches of duty which
    jeopardize the achievement of the purpose of this contract, or to breaches of duty which are essential for the proper performance of this contract and which the other party may rely on to be fulfilled. In this case, the parties’ liability shall be limited to the damage typically foreseeable for a contract of this type.
    2. Apart from this, NemoContra’s liability is excluded, irrespective of its legal basis, unless NemoContra is liable under mandatory law, particularly for injury to life, limb, or the health of a person, the assumption of an express guarantee or under the Product Liability Act. Any guarantee given by NemoContra must be in writing and must be designated as such.
    3. The above limitations of liability also apply to claims against employees, partners, and agents of NemoContra.
    4. A party is only obliged to pay a contractual penalty if the contract expressly stipulates this.

    §9 Contract period and termination
    1. The term is based on what was agreed upon in the order. In the case of one-off bookings, the contract ends at the end of the next working day after the end of the contract period booked by the customer. Otherwise, a contract period of indefinite duration shall apply.
    2. In the event of termination, NemoContra has the right to demand a flat-rate fee from the customer. The lump- sum remuneration amounts to
    a. In the event of termination prior to the provision of online access for the customer, 30% of the agreed total remuneration.
    b. In the event of termination after the provision of the online access but before the period booked for the elections/voting, 50% of the agreed total remuneration for the customer.
    c. In the event of termination after the start of the period booked for the election/voting, 100% of the agreed total remuneration.
    3. If the customer makes choices on the provided URL, 100% of the agreed total remuneration will be charged regardless of the time of cancellation. This does not apply to the execution of test votes agreed in writing with NemoContra.
    4. Termination for a good cause is open to both parties. Such a good cause may be valid for NemoContra if, among other things, the customer is a person attributable to the subscriber (e.g. user)
    a. violates legal regulations or its contractual obligations (including the obligations listed in these GTC)
    b. is associated with or advocates associations or groups observed by youth protection or security
    authorities
    c. have misrepresented their identity or the purpose of their use of NemoVote
    d. or if there is the possibility of significant damage to NemoContra’s reputation through further
    cooperation with the customer.
    5. These terms and conditions and the NemoContra privacy policy apply to free test phases.
    6. The cancellation must be made in writing.
    7. Data at the end of the contract: The customer can export the customer data using the export functions of the
    voting software during the contract period. After the end of the contract period, the customer has no access to customer data. At the end of one month after the end of the contract – or before, upon the customer’s request – NemoContra will permanently and completely delete the customer data, unless NemoContra has a legal obligation to retain the data and unless otherwise agreed in the order or in the agreement on data processing. NemoContra is only obliged to provide customer data (e.g. concerning time, format, or migration) if this is agreed and remunerated separately.

    § 10 Data security and privacy
    1. Customer data: The data entered by the customer in the context of the use of voting software and the data generated in the process and attributable to the customer (“customer data”) are exclusively entitled to the customer. NemoContra will treat customer data confidentially.
    2. Order Data Processing: Insofar as the customer data is personal data, the following applies: NemoContra processes the customer data as a processor in the sense of Article 28 DSGVO (Datenschutzgrundverordnung, German implementation of the EU-GDPR) exclusively on behalf of and according to the instructions of the customer, and solely for the purpose of providing the voting software. The instructions must be given in writing and in due time.
    3. NemoContra shall take appropriate technical and organizational measures to protect the customer data. In the event that personal data is processed by NemoContra on behalf of the customer, the parties shall regulate the processing of the order in a separate order processing agreement to be concluded in accordance with Art. 28 DSGVO.
    4. In the case that the customer himself collects personal data, he remains responsible for the lawfulness of the collection, processing, and use of the customer data in accordance with the legal provisions, particularly the BDSG and the DSGVO, and, in the case of a violation, indemnifies NemoContra against claims by third parties.
    5. NemoContra is entitled to use a host/service provider located in the European Union or the European Economic Area as its data processing center. The parties will regulate the details in a separate contract for commissioned data processing.

    § 11 Confidentiality

    1. The parties shall maintain strict confidentiality about all information to be treated as confidential which they have come to know in the course of the contractual relationship, or shall only use such information with the prior written agreement of the other party vis-à-vis third parties – irrespective of the purpose.
    2. The aforementioned obligations shall not apply to such information or any part thereof, if the receiving party proves that
    a. they were known or generally available to them before the date of receipt;
    b. they were known to the public or were generally accessible to the public before the date of receipt;
    c. became known or generally accessible to the public after the date of receipt, without the party
    responsible for receiving the information.
    §12 Final provisions and severability clause
    1. Changes and amendments to this contract must be made in writing. This also applies to the change of the requirement of the written form.
    2. The law of the Federal Republic of Germany shall apply to this contract to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Stuttgart is the exclusive place of jurisdiction for all claims arising from and based on these General Terms and Conditions.
    3. Should one of the provisions of this contract be invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that fulfills the original purpose as far as possible. The same shall apply in the event that a provision should be unenforceable or unclear. In this case, instead of the impracticable or unclear provision, a provision shall be deemed agreed upon which is practicable and clear and which comes as close as possible to the originally intended purpose.

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