Terms of Service
Content and conclusion of the contract
- The owner of this domain, Tom Nakat (hereinafter referred to as TOM NAKAT CREATIVE TOOLS "TNCT"), offers the services as Software as a Service (SaaS), i.e. the software and all associated data are located on the servers of pageplanr.com and are used there by the customers via the Internet.
- This contract governs the legal relationship between TNCT, Schneefernerstr. 5, 86163 Augsburg, Germany ("TNCT"), represented by Tom Nakat, and its customers ("Customer") with respect to the provision of pageplanr for use via the Internet (Software as a Service). TNCT does not provide the services to consumers, but exclusively for the purposes of the commercial or independent professional activity of the Customer.
- The validity of deviating provisions or provisions that go beyond these provisions is excluded. This applies in particular to the customer's general terms and conditions, even if TNCT accepts an order from the customer in which the customer refers to its general terms and conditions and/or to which the customer's general terms and conditions are attached and TNCT does not object to this.
- The contract is concluded when the customer creates an account on pageplanr.com with his e-mail address.
- § Section 312i (1) nos. 1, 2 and 3 of the German Civil Code (BGB) and Section 312i (1) sentence 2 of the German Civil Code (BGB), which provide for certain obligations of the entrepreneur in the case of contracts in electronic business transactions, are waived.
Services provided by TNCT
- TNCT shall provide the Service to the Customer with an availability of 99.0% on a calendar year average during the Operating Time ("Target Availability"). Operating time is on weekdays from 06:00 to 22:00 CET. The customer is responsible for the internet connection between the customer and the data centre and the hardware and software required for this (e.g. PC, network connection, browser). TNCT provides its service via a hoster at the connection point of the data centre used by the hoster to the internet. In the event of a shortfall in target availability, the customer shall be entitled to claim a credit (and, at the end of the contract, a refund) amounting to 5% of the annual usage fee for the calendar year in question for each percentage point by which the achieved availability falls short of the actual availability, up to a maximum of the annual usage fee. The customer must assert the claims within six weeks. Further claims for reductions or damages by the customer in the event that the availability falls short of the target availability are excluded. In determining the actual availability achieved, failures due to force majeure shall not be deemed to be a loss of availability.
- TNCT guarantees the continuous availability of the application, although TNCT cannot be held responsible for any interruption of the application due to maintenance, technical problems, Internet overload or failure of any other remote transmission system. TNCT does not guarantee the continuity and quality of communication links with the user. Thus, communication with TNCT staff may be interrupted without notice for a reasonable period of time, in particular for maintenance reasons or for any other reason not attributable to TNCT. TNCT cannot be held liable in the event of poor performance of the services caused by information that has been incorrectly entered or not updated by the user. TNCT cannot be held responsible for service interruptions or damages related to the fraudulent use or unauthorised intrusion of a third party into the system or the illegal extraction of data, insofar as state of the art security means have been used. In this sense, TNCT only has a duty of best effort (obligations de moyens) with regard to the use of currently known data security techniques. Should TNCT be held liable in general and in particular for a malfunction of the application, TNCT may, at its own discretion, defend against such a claim by correcting the malfunction or by updating the application.
- The customer shall set up the service for the first time (individual settings or input/import of data) himself/herself. A modification of the service, in particular a reprogramming according to the customer's wishes, is not owed.
- TNCT provides email support to customers of a paid package to assist them in using the service. The support does not include: general know-how transfer, training, configuration and implementation or customer-specific documentation or customisation of the software. Support services are provided by TNCT on weekdays Monday to Friday between the hours of 9.00 am - 4.00 pm (Berlin Time). This does not include national public holidays and the 24th and 31st December of each year. The time until the first response to e-mail enquiries is usually 48 hours. Requests received outside the support hours shall be deemed to have been received during the next working day.
- Unless otherwise agreed, TNCT shall only owe the provision of user documentation as online help. Further documentation, training or instruction services shall be agreed and remunerated separately.
- The customer knows that the software is a standard software that is provided as a Software as Service service and that a large number of customers access a central system. The economies of scale resulting from such a multi-tenancy model can only be exploited if it is a uniform software product that can also be further developed. The parties therefore agree: TNCT may change the service (including the system requirements) for good cause. Such a reason exists in particular if the change is necessary due to (i) a necessary adaptation to a new legal situation or jurisdiction, (ii) changed technical conditions (new browser versions or technical standards), or (iii) the protection of system security. In addition, TNCT may make reasonable changes to the service in the context of further development of the software (e.g. deactivation of old functions that have largely been replaced by new ones). TNCT shall notify the customer of any change that is not only insignificantly disadvantageous to the customer in good time, as a rule four weeks before it comes into force, by e-mail. The customer's consent to such a change shall be deemed to have been given if the customer does not object to the change in writing or by e-mail by the date of the change. When announcing the change, TNCT shall again separately point out this legal consequence. If the amendment would not only insignificantly disturb the contractual balance between the parties to the detriment of the customer, the amendment shall not be made.
- TNCT shall be entitled to engage subcontractors to provide the service, in particular data centres to host the software.
- In the event of maintenance measures, the operation of the Application may be suspended with seventy-two (72) hours' notice. In addition, any case of force majeure, as usually recognised by the courts, may entail suspension of the Application for maintenance operations without notice.
Remuneration and default in payment
- The customer owes TNCT an annual usage fee for the use of the service during the term of the contract, depending on the term of the contract.
- The usage fee is due at the start of the contract and then annually in advance. An increase in the booked usage units (or a change to a higher package) is possible at any time, a reduction (or a change to a lower package) is only possible with effect from the end of a contract term. In the event of an increase in the booked usage units within the term of the contract, the additional fees will be invoiced on a pro rata basis. For the additional usage units, the prices according to TNCT's price list valid at the time of ordering the additional usage units shall apply.
- TNCT shall invoice the fees at the beginning of the contract and then annually. The invoice shall be issued online by placing the invoice as a downloadable and printable PDF file in the customer menu or sending it by e-mail ("online invoice").
- Payment of invoice amounts shall be made by credit card. Credit cards will be charged on the due date.
- All prices are subject to the applicable statutory value added tax.
- If the customer is in arrears with the payment of the fee or a not insignificant part of the fee for two calendar months; or in a period extending over more than two months with the payment of the fee amounting to twice the monthly usage fee, TNCT shall be entitled to block access to the service or to terminate the contract extraordinarily after issuing a corresponding warning by e-mail or letter. In the event of blocking, the customer shall remain obliged to pay the usage fee. During the blocking, the customer has no access to the data stored in the Service. In the event of termination, clause 9.4 shall apply.
Duties and obligations of the client
- The customer shall only use the service within the framework of the contractual and legal provisions and shall not infringe any third-party rights in the use thereof. In particular, he/she shall observe the regulations on data protection, competition law and copyright law when using the Service and shall not import any harmful or illegal data or misuse the Service in any other way.
Customer data and data protection
- TNCT collects, processes and uses personal data of a user without further, necessary consent only insofar as they are required for the establishment and processing of the contract and for billing purposes. Further information can be found on the data protection page.
- The customer hereby grants TNCT the non-exclusive, worldwide right, limited to the term of this contract and free of charge, to use the customer data for the purpose of providing the service, in particular to store it on a data centre operated by a hoster commissioned by TNCT.
- TNCT shall also be entitled to use the customer data in a non-personal, aggregated or statistical form for error analysis and further development of the software's functions.
- NCT will provide the service free of material and legal defects and maintain the software in a condition suitable for contractual use during the term of the contract. The contractually agreed condition of the software is exclusively determined by the service description contained on the website pageplanr.com. The obligation to maintain the software does not include the adaptation of the software to changed conditions of use and technical and functional developments such as changes to the IT environment, in particular changes to hardware or operating systems, adaptation to the functional scope of competing products or the creation of compatibility with new data formats.
- The customer shall report any defects in the service to TNCT without delay and explain the circumstances in which they occurred. TNCT shall remedy the defect within a reasonable period of time, provided that the defect does not only insignificantly impair the use of the service. TNCT shall be entitled to show the customer temporary workaround options and to remedy the defect later by adapting the software, provided this is reasonable for the customer.
- Claims for defects shall become statute-barred within 12 months. This shall not apply in the case of defect claims for damages insofar as TNCT is compulsorily liable by law (cf. Section 8.1, Sentence 2).
- In all other respects the statutory rules on liability for defects shall apply.
- Insofar as TNCT provides services free of charge (e.g. during a test phase or as part of a free package), the provisions on lending shall apply with priority, i.e. in particular, our liability for defects shall be limited to fraudulent intent pursuant to Section 600 of the German Civil Code, liability pursuant to Section 599 of the German Civil Code shall be limited to intent and gross negligence and the shortened limitation period of six months pursuant to Section 606 of the German Civil Code shall apply.
- If third parties (including public bodies) assert claims or legal infringements against TNCT based on the allegation that the customer has breached its contractual obligations, in particular has imported illegal data into the service or has used the service in an anti-competitive or otherwise illegal manner, the following shall apply: The customer shall immediately indemnify TNCT against such claims, provide TNCT with reasonable support in its legal defence and indemnify TNCT against the costs of the legal defence.
- A prerequisite for the obligation to indemnify according to clause 7.1 is that TNCT immediately informs the customer in writing about asserted claims, does not make any acknowledgements or equivalent declarations and enables the customer to conduct all judicial and extrajudicial negotiations about the claims at the customer's expense - as far as possible.
Limitation of liability
- To the fullest extent permitted by law, in no event shall TNCT, its contractors, suppliers or distributors be liable for any indirect, special, incidental, punitive, exemplary, consequential or exemplary damages for loss of use, loss of data, loss of business or loss of profits, regardless of the legal theory or whether pageplanr has been advised of such damages, and even if the essential purpose of any remedy is defeated.
- TNCT shall be liable for damages to the extent that they are a) caused intentionally or by gross negligence on the part of TNCT, or b) caused by slight negligence on the part of TNCT and are attributable to material breaches of duty which jeopardise the achievement of the purpose of this contract, or to the breach of duties the fulfilment of which is a prerequisite for the proper performance of this contract and on the observance of which the customer may rely (e.g. customer data is completely lost and even old data cannot be reconstructed). In all other respects, TNCT's liability shall be excluded, irrespective of its legal basis, unless TNCT is compulsorily liable by operation of law, in particular for injury to life, limb or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by TNCT shall only be made in writing and, in case of doubt, shall only be construed as such if they are designated as a "guarantee".
- In the case of clause 8.1 sentence 1 letter b), TNCT's liability shall be limited to the damage typically foreseeable for a contract of this type.
- The parties shall assume for the cases of clause 8.1 sentence 1 letter b) that the "typically foreseeable damage" for all cases of damage occurring in a calendar year corresponds at most to three times an annual user fee.
- TNCT's liability is limited to intent and gross negligence for damage caused during a free trial period or as part of a free package.
- The limitations of liability in clauses 8.1 to 8.4 shall also apply to claims against employees and agents of TNCT.
Term and termination
- The contract is concluded for one month or one year, depending on the order placed by the customer, and is subsequently extended by a further month or a further year in each case if the customer or TNCT does not terminate the contract with effect from the end of the respective contractual month or year. No period of notice shall apply to the customer, and a period of notice of two weeks shall apply to TNCT. The right to terminate for good cause remains unaffected. Section 3.2 applies to the reduction of usage units or the change to a lower package.
- If the package booked by the customer provides for a free trial period, the following applies to the term of the contract: Upon conclusion of the contract, a 14-day test phase shall initially commence. No usage fees are charged for the test phase. Upon expiry of the test phase, the booked package is converted into a free package (if offered) if the customer does not book a paid package.
- The cancellation of a subscription must be made in the account administration at pageplanr.com in order to be effective. There the contract can be cancelled at any time at the next possible date. There are no refunds.
- At the end of the contract period, the customer can no longer access his customer data. It is the customer's responsibility to export the data before the end of the contract term using the export function of the service (see service description) and to save it for further use. TNCT shall not be obliged to surrender the customer data beyond this (e.g. provision as an SQL dump or in a specific format). At the end of the contract, TNCT shall delete the customer data unless TNCT itself is legally obliged to retain it. If deletion is only possible with disproportionate effort (e.g. in backups), TNCT shall be entitled to initially block the data and later to delete it permanently on a regular basis.
- If the customer's account is not converted into a paid subscription after the free trial period, all data of the trial account will be deleted from TNCT's servers after the expiry of the trial period. It will then no longer be possible to restore the data.
- TNCT reserves the right to terminate its services at its sole discretion, on a date of its choosing and without prior notice. For example, we will block or stop your use of the Services if you fail to comply with the terms of these TOS or use the Services in a way that creates a liability risk for us, interrupt the Services or interrupt the use of the Services by others.
- The customer may only offset claims other than his contractual counterclaims arising from the legal transaction concerned in each case or assert a right of retention if this claim is undisputed by TNCT or has been established by a court of law.
- Amendments to this contract must at least be made in text form (e-mail or letter). This also applies to the waiver of the text form requirement.
- This contract and all disputes arising in connection with it (both contractual and tortious) shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be that at TNCT. TNCT shall remain entitled to take legal action at the customer's place of business.
- Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, that provision shall apply which the parties would have agreed upon in good faith in accordance with the originally intended purpose from an economic point of view. The same shall apply in the event of a loophole in the contract.
- These GTC do not grant any rights in favour of third parties.
- Any failure by TNCT to enforce a term shall not mean that it shall not apply at a later date. If any term is found to be invalid, the validity of the remainder of the T&C shall not be affected and it shall be replaced by an enforceable term that is as close as possible to our intentions. The rights granted under these T&Cs are not transferable and any attempt to do so is void. TNCT may assign its rights or those of its contractors or affiliates to a successor in interest of any company related to our services.
- TNCT reserves the right to amend these TOS from time to time. The current version is available on pageplanr.com. If any change materially reduces your rights, we will notify you (for example, by email to the address associated with your account). By continuing to use the Services after the changes come into effect, you agree to be bound by the amended TOS.