General Terms and Conditions of OMQ

Subject and Scope

The subject of these General Terms and Conditions (GTC) are services provided by OMQ GmbH (limited liability), Stefan-Heym-Platz 1, 10367 Berlin (provider) within the scope of the “OMQ” application (all modules) to customers who are not consumers within the meaning of Section 13 of the German Civil Code.

These General Terms and Conditions and any regulations laid down in an individual contract with the customer shall apply exclusively. Conflicting or deviating conditions of the customer do not apply, not even if the provider carries out the service in the knowledge of conflicting or deviating conditions of the customer without contradicting the conditions of the customer.

The provider is entitled to change these terms and conditions with a reasonable notice period. Changes only become effective if the customer does not object to the change within one month of receipt of a written change notification and the provider has informed the customer of the right to object and the deadline in the change notification. Excluded from this right to make changes are changes that relate to an obligation on the part of the provider or the customer, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the other party regularly relies or may rely (“essential contractual obligation”).

Conclusion of Contract and Offers

The web form filled out by the customer or an inquiry made by the customer in any other way represents a binding application by the customer to conclude a contract for the services of the provider listed therein. The contract comes into effect when the provider accepts the offer, at the latest when the performance by the provider.

All offers by the provider are non-binding unless they have been designated as binding or confirmed in writing by the provider. The performance dates specified in the order are only binding if they have been designated as binding or confirmed in writing by the provider.

Services

The details of the service object (contractual services) of the respective contract result from the product order pages of the provider that are current at the time the contract is concluded.

The provider is entitled to change or discontinue free services (test phases), even in parts, at any time. The provider will take into account the legitimate interests of the customer and inform the customer - as far as technically possible and reasonable - with a reasonable period of time in advance. The provider makes the contractual services available to the customer for use 24 hours a day and 365 days a year (“system runtime”). The provider guarantees an availability of the contractual services of 99% on an annual average (hereinafter “SLA”).

The provider will inform the customer in good time as far as possible about necessary maintenance work and the resulting failures of the contractual services. Failures of the contractual services due to maintenance work are not counted towards the SLAs. For internet or network-related downtimes and in particular for downtimes in which the contractual services cannot be reached via the internet due to technical or other problems that are not within the sphere of influence of the provider, such as force majeure, fault of third parties, etc., the provider is not responsible.

Customer Obligations

Should there be disruptions in the use of services, the customer will inform the provider immediately.

The customer is obliged to keep any access data (user name, password) secret from unauthorized third parties. Customers are obliged to change passwords immediately and to inform the provider immediately as soon as he becomes aware that unauthorized third parties know the password.

The customer is obliged to design and use the contractual services in accordance with the relevant legal requirements in the area of intended distribution. In particular, he must observe the relevant copyrights, trademarks, patent rights and other industrial property rights and personal rights of third parties and may not use and/or make publicly accessible any files or information with illegal content or representations.

The customer is prohibited from using the services of the provider to carry out attacks on third parties or the provider, such as the mass sending of electronic messages (“spam”), hacking attempts, brute force attacks, the use or sending of Spy software, viruses and worms.

The provider is entitled to delete unlawful content at any time without prior notice or - if necessary - to block the customer’s access to the affected content or contractual services in the event of a violation of the provisions in Section 4 Paragraphs 2 to 4 of these GTC until they are removed to block the violation. In the event of a serious breach by the customer of his obligations under Section 4, Paragraphs 2 to 4 of these General Terms and Conditions, the Provider is entitled to terminate the contractual relationship for good cause and without notice (Section 10, Paragraph 2). If the customer is responsible for the violation, he is obliged to compensate the provider for the resulting damage.

Use Rights and Release

For the term of the contract, the provider grants the customer the non-exclusive (simple), non-transferable, non -sublicensable , spatially unrestricted right to use the contractual services within the scope of the respective contractual purpose. This also applies to new versions, updates or upgrades of the services during the contract period. However, the provider is not obliged to provide new versions, upgrades or updates unless this is absolutely necessary to remedy the defect. Beyond the purposes of the contract, the customer is not entitled to use, reproduce or download the contractual services of the provider or to make them accessible to third parties.

The customer is obliged to indemnify the provider and his vicarious agents from all third-party claims that are based on the customer’s illegal use of the provider’s services or that occur with his approval or that arise in particular from data protection, copyright or other legal disputes that arise with associated with the use of the services. If the customer recognizes or has to recognize that such a violation is imminent, there is an obligation to inform the provider immediately.

Privacy

The provider collects, processes and uses personal data exclusively in accordance with the provisions of German data protection law. The current version of the data protection declaration can be found in the provider’s contracts.

Responsibility towards third parties for compliance with the respective data protection regulations when using the services lies with the customer. If the customer collects, processes or uses personal data as part of the use of the services and no legal permission intervenes, the customer must obtain the necessary consent of the person concerned.

Warranty

In the case of free service provision (test phase), the provider is not obliged to remedy the defect.

Insofar as the customer can assert claims for defects against the provider within the framework of a paid service provision, the remedy of defects in the application is carried out at the provider’s discretion by providing a change status of the application (e.g. in the form of an update or upgrade) or by circumventing the error.

Liability for defects is excluded if the customer or another third party changes the service inadmissibly, intervenes in it in any other way or if the customer or the third party has used the service in a manner that deviates from the contractual provisions and any documentation and this is the cause of the lack is. Liability

Free Services (Test Phase)

If the services are used free of charge, the liability of the provider is limited to intent, fraudulent intent and gross negligence or the lack of a guaranteed property. Any further liability is excluded. Liability for culpable injury to life, limb or health remains unaffected by this, as does liability under the Product Liability Act.

Paid Services

Insofar as the provider provides the customer with paid services, the provider is liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence or the lack of a guaranteed property, including intent or gross negligence on the part of the provider’s representatives or vicarious agents based.

In the case of a slightly negligent breach of a main contractual obligation, the fulfillment of which is essential for the proper execution of the contract, the breach of which jeopardizes the achievement of the purpose of the contract and the observance of which the customer can regularly rely on, the liability for damages of the provider is limited to the replacement of the foreseeable, typically occurring damage limited.

Any further liability is excluded. Liability for culpable injury to life, limb or health remains unaffected by this, as does liability under the Product Liability Act.

Liability for Data Loss

In the event of slight negligence, the provider is only liable for the loss of data under the conditions and to the extent of the above paragraphs and to the extent that the damage can also be caused by proper, regular data backup that is appropriate to the importance of the data and is to be carried out at least daily by the customer (on his local systems). would have arisen.

Terms of Payment and Due Dates

Unless otherwise contractually agreed, the details of the regulations for remuneration result from the product order page that is current at the time the contract is concluded. Prices (including ancillary costs) are always net prices. The provider is entitled to electronic invoicing. The billing of the prices to be paid for the use of the services takes place by bank transfer after invoicing.

Invoices issued by the provider are due immediately and payable without deduction. The payment is only deemed to have been made when the provider can dispose of the payment amount. The customer is in default if he has not paid within fourteen days after the due date and receipt of an invoice or comparable statement of payment. In the event of default, the provider is entitled to charge default interest at the statutory rate (§ 288 Para. 2 BGB). The assertion of further claims remains unaffected.

In the event that the customer (a) is in arrears with its payment or a not inconsiderable part of its payment for two consecutive months or (b) in a period that extends over more than two months, with the payment of the agreed If the payment is in arrears by an amount that corresponds to the payment for two months, the provider is entitled to block access to the agreed services. The right of the provider in this case to terminate the contractual relationship for good cause and without notice remains unaffected.

The customer is only entitled to offset if the counterclaims have been legally established, recognized by the provider or are undisputed. The customer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

Contract Term

Unless otherwise agreed between the parties, the contract for a booked package - depending on the product selected - has a minimum contract term of one, three, six twelve or twenty-four months and can be terminated by either party subject to the respective notice period of one month at the end of the contract will. For customers with a term longer than twelve months, a notice period of three months to the end of the contract applies. If no notice of termination is given before the end of the respective contract period, the contract will be extended by the agreed minimum contract period.

The termination can be made either by the means of communication offered by the provider on the website or by text form (e-mail).

The right to extraordinary termination without notice for good cause remains unaffected. An important reason exists if there are facts on the basis of which the terminating party can no longer be expected to continue the contract, taking into account all the circumstances of the individual case and weighing the interests of the contracting parties.

If the customer makes use of his option to completely delete his account, the customer data belonging to the respective account will be automatically deleted. The customer is therefore responsible for saving his customer data on his local system in good time before deleting his account with OMQ.

Miscellaneous

The provider is entitled to provide the services through third parties as subcontractors. The provider is liable for the provision of services by subcontractors as for his own actions.

Information on the product order page, in brochures and other documents is only for description and does not constitute a guarantee, in particular no guarantee of quality. Guarantees require express and written confirmation from the provider. German law applies to the contractual relationship between the provider and the customer, excluding the UN Sales Convention.

If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive, also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Berlin.

The same applies if the customer does not have a general place of jurisdiction in Germany or if his domicile or habitual abode is not known at the time the action is filed. Notwithstanding this, the provider is entitled to take legal action against the customer at his general place of jurisdiction.

Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the statutory provisions apply.

OMQ is entitled to use the customer’s company name and logo for PR and marketing purposes. The customer can object to this use at any time.

Status: 10/26/2022

Link to data protection: https://omq.ai/company/data-security/