§ 1 General
a) Scope of application
These General Terms and Conditions shall apply to all business and legal relations between HumHub GmbH & Co. KG, Marienstrasse 17, 80331 Munich (hereinafter referred to as: HumHub) and its users in force at the time the contract is concluded. Deviating regulations of the users shall not apply, unless this has been expressly confirmed in writing by HumHub. Individual agreements have priority at all times.
b) Contract agreement
c) Components of the contract
HumHub is provider of the open source solution under the name HumHub (hereinafter referred to as: Software), a customisable social network software for communication, collaboration and cooperation.
In addition to the open source services, HumHub offers the following services which are subject to remuneration: hosting, customisation and acquisition of a commercial license around the open source project. All these services form part of this contract.
§ 2 Provision of services: hosting
HumHub provides the users with the opportunity to use the software free of charge on the servers provided by HumHub. However, this service may be limited in time and scope.
Each user has the option to upgrade its instance free of charge to a package that is subject to payment.
b) Registration / conclusion of the contract
The users declare their binding acceptance of the offer in accordance with these GTC upon creation of an instance that is free of charge. (This occurs already when a subdomain is indicated and acceptance is subsequently confirmed by clicking the "Create" button).
A right to claim that a license agreement be concluded does not exist. HumHub shall be entitled to reject the contract offer expressed by the user at any time without giving a reason. In this case, any information and data provided by the user shall of course be deleted.
c) Responsibility of the user
The user shall be exclusively responsible for the content and accuracy of the information provided to HumHub.
Furthermore, the user may not store or share data or make them available otherwise to users or third parties on any services made available by HumHub, if the contents of these violate the rights of third parties or existing laws.
The users are responsible themselves for ensuring that their password remains confidential. This means that they must keep their password secret, may not to pass it on to others, may not allow or enable it to be passed on and must implement all necessary measures to ensure confidentiality. In the event of an abuse or loss of this information or of a corresponding suspicion thereof, the user shall be required to communicate this to HumHub immediately by email at email@example.com.
d) Data access
Our data protection agreement shall apply. HumHub collects, stores and processes data to the extent necessary for the rendering of the agreed services. Data are stored in Germany. The user acknowledges and agrees that the personal data necessary for the settlement of the contractual relationship be stored on data carriers.
The user expressly agrees to the collection, processing and use of personal data for the purposes of carrying out the contract of use. This includes all the information required for the proper settling of the contract concluded between HumHub and the user, i.e. in particular name, address, contact information (telephone number, fax number, e-mail address) and payment information; furthermore, this also includes the anonymous evaluation of any requested files, as well as the name of the file, the date and time of the request, the amount of data transferred, the access status (file transferred, file not found, etc.) and a description of the type of web browser used.
HumHub shall only be authorised to collect the personal data for advertising purposes and to store, modify or use them with the separate explicit consent of the user. HumHub is in no way entitled to submit these data in the form of a list or in another aggregated form to third parties for advertising purposes.
HumHub shall treat all personal information confidentially. The collection, processing and use of personal data shall be subject to compliance with the Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG). The users shall have the right to revoke their consent at any time with effect for the future. HumHub shall be required in this case to delete the personal data of the user. In the event of ongoing contractual relationships with a user, the deletion shall take place after termination of said contract.
e) Technical requirements
The use of HumHub requires specific compatible devices and software as well as an adequate Internet access.
HumHub does not guarantee the permanent availability of the services offered. Furthermore, HumHub does not ensure that the services offered or any part thereof can be made available and used from any place.
g) Performance delays
The free hosting is provided to the customers immediately after creation of an instance; the payable services are provided after entering the respective payment information and realisation of the payment.
HumHub shall not be responsible for performance delays due to Force Majeure or exceptional and unforeseeable events which cannot be prevented even by utmost diligence on the part of HumHub (these include, in particular, strikes, government or judicial orders and cases of incorrect or improper delivery on the part of our suppliers despite a respective hedging transaction). Such events authorise HumHub to postpone the provision of services for the duration of the impeding event.
In the case of a non-availability for the aforementioned reasons, HumHub may withdraw from the contract. HumHub undertakes to inform the user immediately about the unavailability and to reimburse amounts already received, if any.
The services may be terminated monthly without further notice, no minimum terms are established.
j) Duty to secure data
HumHub shall secure the data effectively as part of its service delivery, does, however, not assume any general backup guarantees for the data fed into the system by the user. The users are also solely responsible for periodically creating adequate backups of their data, thus preventing data loss. HumHub shall exercise reasonable care when rendering the agreed services and shall carry out the data backup with the necessary expertise. However HumHub does not ensure that the stored content or data accessed by the user cannot be accidentally damaged or corrupted, lost or partially removed.
k) Payment conditions
- Unless otherwise contractually agreed, the prices indicated on the website for the hosting services provided by HumHub are valid. The respective usage fees shall be due and payable upon issue of the invoice for immediate payment without any deduction. Unless otherwise agreed, invoicing shall be carried out monthly, starting on the order date. The usage fees shall be payable in advance.
- Costs of connections and telecommunication (telephone fees) between the customer and the connection point to HumHub shall be borne by the customer.
- HumHub only accepts payment by credit card.
- HumHub also reserves the right to carry out the measures referred to in § 4 b), and to deactivate the instance in question in the event of a payment default. The instance with all its data will be made available again following the receipt of the outstanding payment(s).
- HumHub shall issue invoices to the users, which will be sent to them in PDF form (by e- mail).
§ 3 Provision of services - customization
The service offered by HumHub is the individualisation of the software according to customer requirements. This includes designing, planning and developing themes, modules and core extensions.
HumHub provides these services, either directly or in cooperation with partners.
b) Conclusion of the contract
The users declare their binding acceptance of the contract offer according to these Terms and Conditions by confirming an order quotation issued by HumHub by e-mail.
c) Confidentiality obligation
HumHub undertakes to treat all written, oral and directly or indirectly provided information or any other information about the project that has become known otherwise, in particular technical or professional information, that is marked as confidential or subject to confidentiality obligations for appropriate reasons,
- as confidential
- to use said information only for the purpose of project implementation, and in particular to refrain from publishing or applying for trademark rights or using said information itself
- to refrain from passing on said information to third parties or from making it accessible in any other form
- to protect said information by all necessary precautions so that third party access is avoided
- to make said information available exclusively to the employees involved in the project, and to ensure that these employees also fulfil the abovementioned confidentiality obligations. This shall also apply if an employee leaves employment during the term and continued validity of this contract.
d) Obligations of the customer
The customer must make sure before using this service, that the software is suitable for his purposes. This includes the existence of the required IT infrastructure and compatible end devices. Complaints asserted at a later date in this regard will not be accepted.
e) Special features of core adjustments
HumHub shall be entitled to integrate changes to the core software that were paid by the customer, into the main project and to make them available to third parties, regardless of the license used. This does not apply to modules and themes individually developed for and commissioned by the customer on the basis of the Commercial License.
f) Payment conditions
- The prices indicated in the offer and confirmed by the Customer via e-mail shall be valid.
- The payment deadline shall be 14 days after the invoice date, unless otherwise agreed.
- In addition to the measures referred to in § 4 b), all developed modules, themes and core adjustments shall remain the property of HumHub until the complete fulfilment of all liabilities under the contract.
g) Liability / warranty
- Both parties understand and agree that, according to the current level of technology, it is not possible to exclude errors in the software under all application conditions.
- HumHub shall not be liable for damages resulting from the use of this software or the inability to use this software (including - without limitation - damages for loss of profits, business interruptions, loss of business information or data or any other financial loss) even if HumHub has been informed of the possibility of such damages. This shall not apply if the liability is mandatory due to intent or gross negligence.
- HumHub shall not assume any warranty for software which has been modified by the customer at a later date, unless the customer proves that the change has not led to the reported defect.
- HumHub shall render a warranty for defects of quality by subsequent performance. Subsequent performance may take place, in particular, by releasing a new program version or if HumHub provides information about how to avoid the effects of the defect. The customer shall be obliged to accept a new program version even it this requires necessary, but tolerable, adjustment efforts.
§ 4 Provision of services - Commercial License
In addition to the AGPL license, a Commercial License can also be purchased for the software offered by HumHub.
The corresponding contractual provisions are freely accessible at HumHub Commercial License .
a) Conclusion of the contract
The contract is deemed to have been concluded upon acceptance by HumHub of the customer’s order placed on the website.
Before ordering, the customers must specify whether they are consumers or contractors. The customers shall be entitled to correct all entries at any time using the usual keyboard and mouse functions before submitting a binding order. HumHub shall be entitled to accept the order placed on the basis of the offer within 2 days by sending a corresponding order confirmation. The receipt and acceptance of the order shall be confirmed to the customer by e-mail.
Together with this confirmation HumHub sends the customer an invoice including (depending on the order) the license keys purchased.
c) Payment conditions
- The price specified by HumHub on the website shall be valid, unless otherwise contractually agreed. Payment shall be due for immediate payment upon issue of the invoice.
- HumHub only accepts credit cards for the payment of the Commercial License.
- In the event of a default in payment the Commercial License loses its validity, in addition to the measures referred to in § 4 b). In this case the installation in question is to be made unusable immediately, or to publish its source code under the terms of the AGPL.
- HumHub shall issue invoices to the users, which will be sent to them in PDF form (by e- mail).
§ 5 Instructions concerning the rights of withdrawal for consumers in distance contracts (services)
a) Right of withdrawal
You have the right to withdraw from the contract within fourteen days without indicating a reason. The period for the withdrawal is fourteen days from the date of the conclusion of contract. To exercise your right of withdrawal, you must send us (HumHub GmbH & Co. KG, Marienstrasse 17, 80331 Munich, E-mail: firstname.lastname@example.org) a clear statement (e.g. a letter sent by post or e-mail) about your decision to withdraw from the contract. To meet the withdrawal deadline it is sufficient that you send your notification concerning the exercise of the right of withdrawal prior to the expiry of the withdrawal deadline.
b) Consequences of a withdrawal
If you withdraw from the contract, we will reimburse to you all payments we have received from you, including delivery costs (with the exception of additional costs arising from the fact that you chose a different method of delivery than the cheapest standard delivery offered by us), immediately, however at the latest within fourteen days from the date on which we received the notification about your withdrawal from the contract. We will use the same method of payment for the reimbursement that you used in the original transaction, unless expressly agreed with you otherwise; however you will not be charged any fees for such reimbursement. If you have requested that we begin with the rendering of the services already during the withdrawal period, you must pay us a reasonable amount in the proportion of the services already provided by us up to the time that you notified us that you intend to exercise your right to withdraw from the contract, measured against the overall scope of the services to be provided under the contract.
- END OF WITHDRAWAL INSTRUCTIONS -
§ 6 Use
The user agrees to use the services offered by HumHub only to the extent permissible by law and in accordance with these Terms and Conditions. Abusive use will lead to an exclusion from exercising the usage rights granted.
Any fees already paid will not be refunded in this case.
b) Abusive use
Abusive use exists in particular in the case of copyright infringements. In addition, abusive use is given if illegally obtained data are provided, disseminated or otherwise made available for use or if data are disseminated or provided for illegal purposes. Abusive use of the HumHub services is given in particular in the case of
- sending spam,
- sending and storing obscene, infringing, threatening, insulting or other contents that violate the rights of third parties,
- sending and storing viruses, worms, Trojans and harmful computer codes, files, scripts, agents or programs,
- uploading programs which are capable of interfering with, impairing or preventing the operation of HumHub's services,
- an attempt to obtain or grant to third parties unauthorised access to the service provided by HumHub or to individual modules, systems or applications.
c) Exemption from liability
The user undertakes to exempt HumHub from all third party claims, including reasonable and legally established costs for legal prosecution, which result from a non-contractual or abusive or illegal use of the website services and their contents by the user. The user shall support HumHub in the defence of these claims, in particular by making available all information necessary for the defence. The user shall be obliged to pay compensation for damages suffered by HumHub due to the successful enforcement of such claims by third parties.
§ 7 Liability
a) Exclusion of liability
HumHub and its legal representatives and agents shall be liable only for intent or gross negligence under the following reservation. In case of slight negligence, liability only applies to the breach of material contract obligations, i.e. obligations, the fulfilment of which are of particular importance to reaching the purpose of the contract. The liability shall be limited to the foreseeable, typical, direct average damage. HumHub shall be liable vis-à-vis users that are not consumers in the event of a grossly negligent breach of non-essential contractual obligations only to the amount of foreseeable, typical, direct average damage.
§ 8 Payment
All prices include the respectively valid value added tax. The fees and charges for services provided by HumHub arise from the contractual agreement and depend on the selected services and their extent.
b) Default in payment
The user shall be in default, if the payment is not received by HumHub within two weeks after receipt of the invoice.
In the event of a default in payment, interest can be charged to the amount of 5 percentage points over and above the base interest rate of the European Central Bank, and of 8 percentage points over and above the base interest rate of the European Central Bank for legal transactions in which no consumer is involved. If the user is in default of payment, HumHub reserves the right to charge reminder fees to the amount of 2.50 Euros. The assertion of any further damages shall remain unaffected. The user has the option of proving that HumHub has suffered no loss or less loss.
c) Reservation of liability
The abovementioned exclusion of liability shall not apply to liability for damages resulting from injury to life, body or health. The provisions of the Product Liability Act remain unaffected from the exclusion of liability.
§ 9 Final provisions
a) Place of jurisdiction
Place of jurisdiction for all disputes arising from this contract shall be the registered office of HumHub in Munich, insofar as the user is a businessman, a legal entity under public law or a special fund under public law. The same applies if a user has no general jurisdiction in the Federal Republic of Germany or if the domicile or usual residence at the time the action is brought is unknown.
b) Choice of law
The relationships between HumHub and the user shall be subject to the laws of the Federal Republic of Germany. For consumers, this choice of law is only applicable, insofar as the protection provided is not revoked by mandatory provisions of the law of the State in which the consumer has his usual residence. Application of the UN convention on the international sale of goods shall be excluded.
c) Severability clause
If any provision of this Agreement is invalid, the remaining provisions shall remain unaffected thereby. The invalid provision shall be replaced by a provision which comes as close as possible to the spirit and purpose of the ineffective provision in a legally effective manner. The same shall apply to any gaps.
d) Changes to this terms
HumHub reserves the right to change these GTC at any time without giving reasons. The revised terms will be sent to users per e-mail no later than two weeks before they enter into force. If a user does not contradict the validity of the new GTC within six weeks of receipt of said e-mail, the revised GTC shall be deemed to have been accepted. HumHub will inform the user in the e-mail containing the amended terms of the importance of this period.
Revision date: 19 January 2015