Terms and conditions

§ 1
Scope of application

(1) These General Terms and Conditions (GTC) are part of the contract and apply exclusively. The Provider does not recognize any terms and conditions of the User that conflict with or deviate from the Provider’s GTC, unless the Provider has expressly agreed to their validity.
(2) These GTC apply only to companies according to § 14 BGB.
(3) By registering with the Provider, the User will be made aware of the GTC and the User will confirm the validity of the GTC. They thus apply comprehensively to the use of the standard software that is the subject of the contract.

§ 2
Subject matter of the contract

(1) These contractual terms and conditions govern the temporary use by the User of the standard software that is the subject of the contract in its current version at the time of conclusion of the contract.
(2) The software is provided by the Provider as a SaaS or cloud solution. The User may use the software stored and executable on the servers of the Provider or a third party commissioned by the Provider via an Internet connection for the duration of the contract.
(3) The license to the software can only be acquired by entrepreneurs within the meaning of § 14 BGB.

§ 3
Conclusion of contract, duration of contract

(1) The contract is concluded by the user’s registration by pressing the “register for a fee” or similarly marked button after filling out the corresponding booking form. In doing so, the user can, in each case by means of clearly visible links

  • these terms and conditions
  • the privacy policy

and may subsequently receive the acceptance of his thus made contract offer by the
contract offer by the provider by e-mail, whereby the GTC are attached in text form.
(2) As part of the conclusion of the contract, the User will also conclude an order processing contract with the Provider online.
(3) The contract shall run for an indefinite period and may be terminated by either party with 14 days’ notice to the end of the month.
(4) The User is not entitled to reasonable, effective and accessible technical means to correct input errors in the order, the provision of statutory information in electronic commerce pursuant to § 312 i para. 1 No. 2 BGB and immediate confirmation of receipt of his order. Insofar as such means or information are provided, this is done without recognition of any legal obligation.

§ 4

(1) The monthly payment is Euro depending on the chosen tariff 79,00 €(“Starter”), 129,00 €(“Pro”) or 279,00 €(“Rocket”), plus any additional bookable components:

  • Each additional admin: 15 € / month
  • Each additional cashier user: 15 € / month
  • Each additional branch: 49 € / month
  • Each additional cashier: 25 € / month

(2) This and all other prices of the Provider are in Euro and are net plus VAT, if applicable.
(3) The payment of the current remunerations takes place on the agreed upon payment way.
(4) If the User is in arrears with payment, he shall be obligated to pay interest on arrears and the lump-sum damages regulated therein in accordance with § 288 of the German Civil Code (BGB).
(5) If the User is in default of payment, the Provider may assert a right to refuse performance by temporarily blocking the User’s access to the Software. In this case, the User shall continue to be obligated to pay the fee despite the blocked access. The Provider may also terminate the contract without notice due to the default of payment if the legal requirements according to § 543 BGB (German Civil Code) are met.
(6) The Provider is authorized to exercise a right of retention for all claims arising from the business relationship with the User.

§ 5
Availability of the Software, Force Majeure

(1) The Provider is obligated to make the Software permanently available to the User for use at the router exit of the data center in which the server with the Software is located (“Delivery Point”). The Provider’s performance includes the Software in its current version, the computing power required for its use and the required storage space on a server that can be accessed via the Internet, as well as dial-in logistics for the User. The Provider does not owe the data connection between the User’s IT systems up to the transfer point just defined.
(2) The Provider is entitled to temporarily restrict or completely block the use of the Site, in particular for maintenance, servicing and improvement as well as for other reasons necessary for the Provider’s operations or the software. In doing so, the provider will take into account the average interests of the users as far as possible (e.g. when determining maintenance times). In the event of urgent disruptions, the Provider shall also be entitled to eliminate errors during normal business hours.
(3) The User shall notify the Provider of functional failures or malfunctions of the Software as quickly and precisely as possible.
(4) If the Provider is unable to provide the service due to force majeure, the Provider’s obligation to provide the service shall be suspended for as long as the impediment to performance persists.
(5) If the impediment to performance lasts for more than one week, the User shall have the right to terminate the contract without notice if the performance of the contract is no longer of interest to the User as a result of the impediment.

§ 6
Service provision, support

(1) The User may obtain help from the Provider on the operation of the Software (support). This shall initially be provided by the FAQ, printed at https://swtpos.freshdesk.com/ and the help function at https://swtpos.freshdesk.com/ . Furthermore, the User may contact the Provider in writing or otherwise electronically if the User has questions regarding the use and function of the Software that go beyond the FAQ and the help function.
(2) The User is only entitled to the support services actually currently offered by the Provider.
(3) The Provider may make the support service dependent on sufficient authentication of the Customer.
(4) Insofar as the Provider provides electronic support, the User shall allow the Provider access to all of its system components at any time for the purpose of support. The Provider shall provide a possibly required remote access connection and the associated effort free of charge. The User shall not be entitled to claim from the Provider any costs of its own in connection with the remote access connection and the provision of the support, such as connection or administrator costs, time spent, etc. The User shall not be entitled to claim from the Provider any costs of its own in connection with the remote access connection and the provision of the support.

§ 7

(1) The Provider is constantly developing the software and its services. Improvements and updates of the standard software within the scope of the previous functionalities and in adaptation to changed legal and technical framework conditions shall be made available to the User automatically on a voluntary basis within the scope of the transfer.
(2) The user has no claim to certain improvements (as far as the software is or becomes not defective) or a certain time sequence of measures.
(3) In particular, the User has no claim to further developments with additional functions, the use of which may be made dependent by the Provider on an amendment to the contract, in particular an adjustment of the remuneration.

§ 8
Prohibited Uses

(1) The user is prohibited from using the cloud software excessively and in a spamming manner. He shall take all precautions to exclude unlawful, spamming or otherwise excessive use.
(2) The User is prohibited from infecting or contaminating the Software or the servers on which it runs with harmful code (computer viruses, worms or Trojans, etc.) or to
contaminate or negligently enable such use.
(3) The transfer, subletting, sublicensing or other resale of the Software by the User is not permitted unless expressly agreed.

§ 9
Duties of the user, cooperation

(1) The user is obliged to provide the data required for the contract completely and truthfully. The obligation to provide truthful information concerns in particular the company, the first name and surname, the complete address as well as the contact details and the bank details. If the User provides untrue information, the Provider may terminate the contract without notice for good cause.
(2) The User is obligated to keep his data up to date and to notify the Provider immediately of any changes.
(3) The User shall receive access data to the software from the Provider. The purpose of the access data is to exclude the use of the hosted software by unauthorized persons. These access data are to be protected by the user against unauthorized access by third parties and to be changed at regular intervals for security reasons. Digitally, the user may only store user names and passwords in securely encrypted form.
(4) In the event of repeated incorrect entry of access data, access may be blocked in order to protect the user. If the user is responsible for this blocking, he is liable for the costs and expenses of the provider arising from the activation within the scope of the contractually agreed or local and reasonable costs.
(5) The User is obligated to notify the Provider immediately if the User becomes aware that third parties have access to his access data or have otherwise gained access to his user profile. If the User does not notify the Provider immediately, the User is obligated to compensate the Provider for any resulting damage.
(6) The Provider backs up the User’s data on the server for which the Provider is responsible and regularly on an external backup server.
(7) The User may, as far as technically possible, excerpt this data at any time for backup purposes and is obliged to do so at the end of each working day. If this is not possible, the Provider shall make the data available to the Customer as a backup on a weekly basis.

§ 10

(1) The Provider shall provide a warranty for the Software in accordance with the applicable statutory provisions, unless otherwise stipulated below. The Provider provides the warranty only within the scope of the properties of the software offered and described by it. The Provider does not warrant that the Software corresponds to the interests or operational characteristics of the User, unless there is a corresponding consulting or other fault on the part of the Provider.
(2) Excluded is any strict liability according to § 536a BGB of the Provider for initial defects. For initial defects, the provider is only liable if he knew or should have known of this defect and did not inform the user accordingly.
(3) The User shall have no claim for defects if the Software does not function properly because the User uses it under conditions of use that have not been agreed upon or in a system environment that has not been agreed upon or otherwise in violation of § 8 of this Agreement or has adversely modified it himself or through third parties and this is responsible for the defect.
(4) The User shall be obliged to report any defects in a comprehensible and detailed manner. In doing so, the User shall in particular state the work steps that led to the occurrence of the defect, the mode of appearance and the effects of the defect.
(5) If the User reports a defect although he is responsible for the malfunction, the Provider shall be entitled to charge the User the costs for the support provided at the Provider’s consulting prices valid at that time (to be found at https://swtpos.de/pages/preise ), alternatively on the basis of the usual and reasonable costs for such support service.
(6) Defects shall be remedied within the Provider’s business hours by rectifying the Software free of charge. The Provider shall be entitled to a reasonable period of time for this purpose.
(7) The User is obligated to support the Provider to a reasonable extent in the elimination of defects.
(8) Claims of the User due to material defects and/or defects of title shall become statute-barred one year after
delivery of the software. This shall not apply if the Provider has acted with intent or gross negligence or if the defect has caused injury to the User’s life, body, freedom or health.

§ 11

(1) The Provider shall be liable, irrespective of the legal grounds, for intentional or grossly negligent conduct as well as for culpable injury to life, limb and health or in the event of a violation of the Product Liability Act or in the event of a warranted characteristic, without limitation as to the amount.
(2) The Provider shall not be liable in the event of a slightly negligent breach of non-substantial contractual obligations. In the event of a breach of non-essential contractual obligations, the liability of the Provider shall be limited to compensation for the typical damage foreseeable at the time of conclusion of the contract. Material contractual obligations are obligations that protect the legal positions of the User that are material to the contract, i.e. obligations that the contract must grant the User according to its content and purpose, as well as obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the User may regularly rely.
(3) In all other respects, the liability of the Provider, regardless of the legal grounds, is excluded. This limitation of liability shall also apply to the benefit of the Provider’s employees and staff as well as its vicarious agents and subcontractors. A reversal of the burden of proof is not associated with the above provisions.
(4) The contents of users published on the website of the provider are not checked by the provider for their legality, correctness and completeness and also do not represent the opinion of the provider. The provider is not responsible for third-party offers and content.

§ 12
Copyrights of the Provider, Licenses
(1) The Provider grants the User the non-exclusive, non-transferable and non-sublicensable right to use the contractual software for the duration of the contract.
software that is the subject of the contract.
(2) Unless permitted by law, the User is in particular prohibited from

  • translate, edit, mix or otherwise modify the software; this shall also apply to the associated documentation
  • to decompile, imitate or reverse engineer the software,
  • to reproduce the software or the documentation, unless this is necessary for the contractual rental use,
  • remove, change or make unrecognizable any trademarks, copyrights or other property right notices of the Provider on the Software.

(3) The data of the User collected, processed and generated by the Software shall be stored on the servers of the Provider. The user remains the sole owner of the data. In this respect, the Provider is only an order processor.

§ 13
Data protection

(1) Contract data (e.g. name, address and e-mail address, services used, if applicable, and all other data transmitted electronically or transmitted for storage that are required for the performance of the contract) shall be collected for the contract in accordance with Art. 6 Para. 1 lit. b DSGVO, insofar as they are required for the establishment, content or amendment of this contract.
(2) The contract data will only be passed on to third parties if it is necessary (according to Art. 6 para. 1 lit. b DSGVO) for the fulfillment of the contract, if this corresponds to the overriding interest in effective performance (according to Art. 6 para. 1 lit. f DSGVO) or if there is consent of the person concerned (according to Art. 6 para. 1 lit. a DSGVO) or other legal permission. The data will not be transferred to a country outside the EU unless the EU Commission has determined that data protection is comparable to that in the EU, consent has been given for this or the standard contractual clauses have been agreed with the third party provider.
(3) Data subjects may request information about the stored personal data free of charge at any time. You may at any time request correction of incorrect data (also by way of supplement) as well as restriction of their processing or also deletion of your data. This applies in particular if the purpose of processing has expired, a required
consent has been revoked and no other legal basis exists or the data processing is unlawful. The personal data will then be corrected, blocked or deleted without delay within the legal framework. There is always the right to revoke a given consent to the processing of personal data. This can be done by an informal communication, e.g. by mail. The revocation does not affect the lawfulness of the data processing carried out until then. Transfer of the contractual data in machine-readable form may be requested. If a violation of the law is feared as a result of the data processing, a complaint can be filed with the responsible supervisory authority.
(4) As a matter of principle, data shall be stored only as long as required by the purpose of the respective data processing. Further storage is primarily considered if this is still necessary for legal prosecution or for legitimate interests or if there is a legal obligation to retain the data (e.g. tax retention periods, statute of limitations).
(5) The User allows the Provider to duplicate the data fed in by the User, insofar as this is necessary for the provision of the services owed under this contract. The Provider shall also be entitled to store the data on a failover system or separate failover computer center. In order to eliminate malfunctions, the Provider is further entitled to make changes to the structure of the data or the data format.

§ 14

(1) In the event of disputes arising from the business relationship between the Provider and the User, the parties are obliged to strive for an amicable solution. If an agreement cannot be reached, they undertake to settle their differences in mediation before resorting to legal action. The possibility of summary proceedings by way of interim relief shall remain unaffected.
(2) If one party requests mediation from the other party, both parties shall be obliged to agree on a mediator within eight days. If such agreement is not reached within the time limit, a lawyer mediator – primarily those mediators who offer online mediation shall be chosen – shall be binding on the parties upon request of one of the
parties by the President of the Bar Association or one of his representatives at the registered office of the provider. This shall also be the place of mediation, unless the Presidium of the Bar proposes online mediation. The language of mediation shall be German, unless all parties agree on another language.
(3) Legal recourse (or alternatively agreed arbitration, if applicable) shall only be admissible if the mediation has failed because (a) the parties mutually declare the mediation to be terminated, (b) after the first mediation session further negotiations are refused by one party, (c) the mediator declares the mediation to have failed, or (d) an agreement is not reached within 3 months after the beginning of the first mediation session, unless the parties mutually extend the deadline.
(4) The costs of an unsuccessful mediation shall be borne internally in equal parts by the parties vis-à-vis the mediator. Notwithstanding this provision in relation to the mediator, the parties shall be at liberty to demand reimbursement of these costs and those of any accompanying legal advice as legal costs in any subsequent proceedings; the respective dispute resolution shall then apply. If an agreement is reached, the agreed cost regulation shall apply.

§ 15
Place of jurisdiction, applicable law

(1) Place of performance is the registered office of the Provider.
(2) For all current and future claims arising from the business relationship with a user who is an entrepreneur within the meaning of § 14 BGB, the exclusive place of jurisdiction is the registered office of the provider. The same place of jurisdiction shall apply if the user does not have a general place of jurisdiction in Germany, relocates his place of residence or habitual abode outside Germany after conclusion of the contract or his place of residence or habitual abode is unknown at the time the action is brought. However, the Provider is entitled at any time to sue the User at his place of business or any other permissible place of jurisdiction.
(3) German law shall apply exclusively to all legal relationships between the parties.

Status as of 01.03.2021