General Terms and Conditions (GTC)
§1 Scope of Application
(3) Customers in the sense of the present regulations are exclusively entrepreneurs.
§2 Subject matter of the contract, conclusion of the contract
(1) hmstr offers the Customer the provision of an online-based reporting and analysis system for the Customer’s social media marketing activities for a contractual term. The application enables the management, storage and analysis of social media data via a web interface. It further includes the features listed in the general program description and pricing model, which can be found on the website https://hmstr.de.
For the data and content entered by the customer in the software solution, hmstr also provides storage space, which, like the software application itself, is hosted on servers rented from the provider. These can be accessed by means of telecommunications. A transfer of the software is not part of the contract.
(2) hmstr assumes no liability for damages, non-performance or poor performance resulting from the analysis of the metrics presented.
(3) When registering via the Provider’s platform, the Customer shall initially have a trial period of 14 days during which it can check the Software for usability for its purposes. This represents the trial access version to the software with a limited period of use.
(4) The Provider offers the Customer the granting of a further right to use the Software for a fee for unlimited use in accordance with § 2. For this purpose, the Customer can select the further chargeable offer versions (packages) of the Provider after registering on the platform.
(5) The Customer may choose between different offer versions of hmstr, which contain different scopes of use and functions of the software solution.
(6) The offers presented on the platform of hmstr represent a non-binding offer in the legal sense. By placing an order via the platform, the customer bindingly declares its contractual offer. Input errors can be corrected during the ordering process before sending the order by means of the usual keyboard and mouse functions. Confirmation of receipt of the order shall be made immediately. The supplier can accept the offer by sending the customer
1. sending a written order confirmation or an order confirmation in text form (e-mail), whereby the receipt of the order confirmation by the customer is decisive in this respect,
2. providing the service,
3. requests payment after submission of the customer’s order.
A request for payment shall also be made when the bank details are communicated to the customer or the customer is forwarded to a payment service provider.
If several of the aforementioned alternatives exist, the contract shall be concluded at the point in time at which one of the aforementioned alternatives to acceptance occurs first.
(7) The text of the contract shall be stored by hmstr.
(8) A contract is concluded as follows via the order by e-mail, fax or telephone: With the order, the customer declares its interest in the contract without obligation or its offer of a contract without obligation.
(8.1) Contractual Interest | The customer’s order by the means specified in clause (7) shall constitute a non-binding offer by the customer to hmstr to conclude a contract for the service described in the order. Upon receipt of the order, hmstr shall send the customer, at its discretion, a message confirming receipt of the order and listing its details (order confirmation) and containing the GTC. This order confirmation shall constitute a binding offer to the customer. Acceptance shall either be expressly declared by the customer or shall take place at the latest upon payment of the service within 14 days of receipt of the offer. The offer submitted by hmstr shall be valid for a period of 14 days from receipt by the customer.
(8.2) Contractual Offer | The customer may also expressly declare its contractual offer in a binding manner in its order. hmstr shall send the customer a confirmation of receipt of its order at its discretion. Acceptance shall be expressly declared by hmstr either within two days or shall be effected with a request for payment or performance of the service.
(9) The customer must provide the contract data requested in the registration form for the customer login or by other means by hmstr completely and correctly, if and to the extent that this information is not marked as voluntary. The provision of stage names, pseudonyms or other fanciful names within the scope of the personal name query is not permitted. It is also forbidden to provide foreign or otherwise inaccurate information when placing an order. If the collected data changes after the order, the customer is obligated to update his profile immediately or to otherwise transmit the changed data to hmstr.
(10) The customer must keep its password for the customer login secret and carefully secure access to its customer account. The customer is obliged to inform hmstr immediately if there are indications that a customer account has been misused by third parties.
(11) The Provider is entitled to interrupt the permanent use due to maintenance work and for other important reasons, provided that it informs the Customer of this in advance in a reasonable time. In urgent cases, the advance notification is dispensable.
§3 Copyright and right of use
(1) The copyright and exclusive right of use for published objects created by hmstr (software incl. interfaces, Internet pages, scripts, programs, graphics) shall remain solely with hmstr.
(2) Upon registration and upon conclusion of the contract for the provision of the software, the customer shall receive a simple, spatially unlimited right to use the platform in accordance with the scope agreed in the contract for exclusively its own purposes for the duration of the contract. In the case of free trial access to the software, use is limited to 14 days from registration. The paid version depends on the further offer chosen by the customer. Further rights, in particular to duplication beyond the extent necessary for use in accordance with the contract, are not granted. Any rights arising from §§ 69 d para. 2 and 3, 69 e UrhG shall remain unaffected.
(3) Any duplication or use of elements of the platform in other electronic or printed publications, in particular on other websites, is not permitted without the express consent of hmstr. The comprehensive copyright with all powers according to §12 to §27 UrhG to all documents, information and contractual items created within the scope of the contract initiation and including warranty and maintenance shall exclusively belong to hmstr, unless otherwise agreed in writing.
§4 Performance of the service, responsibility
(1) hmstr offers the technical possibility for reporting and analysis of Social Media data with provision of interfaces with the online platform specified / integrated by hmstr.
(2) The Customer has the option of specifying or depositing its Social Media accounts via the specified interfaces.
(3) The Customer is responsible for ensuring that any content provided by it for the Software is completely free of third-party rights and is also suitable for these uses from a legal perspective and may be made available. The same shall apply to data and content that the Customer transmits via the interfaces on its own responsibility.
(4) The Customer shall indemnify hmstr against all claims, including claims for damages, asserted by third parties against hmstr due to an infringement of their rights by the contents used and transmitted by the Customer with the software solution of hmstr. The customer shall bear all reasonable costs incurred as a result of this infringement of third party rights, including the reasonable costs incurred for legal defense. All further rights as well as claims for damages on the part of hmstr shall remain unaffected.
(6) hmstr shall have the right to technically edit, prepare and adapt offers and functional contents of the software solution in such a way that they can also be displayed on mobile end devices or software applications of third parties. Likewise, functions can be removed at the discretion of hmstr if this only means a minor change in performance and no change in the agreed overall functionality. If justified interests of the customer can be adversely affected by a change in performance (e.g. in the case of a significant change in performance to the detriment of the customer), hmstr shall notify the customer of this change in performance in writing or by electronic means before it takes effect and shall point out to the customer in this notification its special right of termination regulated below and the consequences of not exercising the right of termination. In this case, the customer shall have the right to terminate the contract prematurely with a notice period of 14 days from the time the change takes effect (special right of termination).
(7) Insofar as legal declarations are made by the customer within the software solution, hmstr shall merely provide the technical representation or, as the case may be, transmission. The customer is responsible for the completeness, correctness and effectiveness of the content.
(8) The Customer affirms that it operates a commercial enterprise or acts as a merchant in legal transactions and/or is treated as such (e.g. freelancer).
(9) The customer shall inform hmstr without undue delay of any malfunctions of the platform and support hmstr to a reasonable extent in determining the malfunction and its causes as well as in remedying the same.
§5 Obligations of the customer from other contractual relationships
(1) The customer itself is responsible for archiving documents and information created and viewable with the software solution, which it requires for purposes of preserving evidence, accounting, etc., on a storage medium independent of the platform.
(2) The Customer is obligated to create its booked packages on its own responsibility and is liable for corresponding legal information and labeling obligations as well as any statements of its content presentation and it is incumbent on it to manage these properly in accordance with its own contractual relationships with its customers.
(3) The customer is responsible for a functioning internet connection. The transmission from the customer to the server is not subject of the service. The customer must ensure that his hardware and software are sufficient for the use of the service.
§6 Terms of payment
(1) The use of the software solution is subject to a fee after the test access and a remuneration is agreed depending on the choice of offer / package.
(2) Invoicing takes place in advance for the respective month. The prices are due upon receipt of the invoice. The invoice shall be deemed to have been received when it is available in the customer’s e-mail account. If the contract is concluded during the course of a month, the first month shall be invoiced on a pro rata basis, thereafter the services shall be invoiced on a monthly basis.
(3) The customer shall grant hmstr a direct debit authorization. hmstr shall collect the invoice amount from the customer’s account by direct debit upon receipt of the invoice. If a payment initiated by direct debit is not executed due to reasons for which the customer is responsible, such as incorrect information, revocation or non-existent cover on the original account, the customer shall be charged the costs incurred up to EUR 25. The customer undertakes to notify any change in his account details without delay.
(4) In the event of default in payment by the Customer, hmstr shall be entitled to block the Services provided at the Customer’s expense. In this case, the customer shall remain obligated to pay the remuneration.
(5) If, in the case of monthly billing, the customer is in default of payment
a) for two consecutive billing periods with the payment of the remuneration or a predominant part thereof or
b) in a period extending over several months with the payment of the remuneration in the amount of an amount which reaches the monthly remuneration amount for two months, hmstr shall be entitled to terminate the contractual relationship without observing a period of notice. hmstr reserves the right to assert further claims due to default in payment.
(6) In addition, in the case of contractual relationships in which the customer has undertaken to pay a monthly remuneration, hmstr shall be entitled, in the event of termination effected by it, to demand lump-sum damages from the customer in the amount of 50% of the monthly remuneration which would have been payable until the end of the minimum term of the contract. This shall not apply if the customer proves that no damage has been incurred or that the damage actually incurred is significantly less than the lump sum.
§7 Data protection
(1) hmstr undertakes to comply with the statutory provisions on data protection. The customer is responsible for the processing and storage of the personal data entered by him with the software solution and transmitted to third party providers within the scope of a data protection law responsible person. The software solution serves for technical support, an independent processing of these data without instructions by Hmstr does not occur.
(2) The Customer shall be responsible for the consents required under data protection law of the user accounts added by it if it processes personal data of these users beyond the purpose of the platform functionalities when using the software.
(1) Liability of hmstr vis-à-vis the customer shall be excluded for damage to legal assets other than life, limb or health, unless the damage is due to intentional or grossly negligent conduct on the part of hmstr, one of its legal representatives or one of its vicarious agents or the conduct is also not a breach of material contractual obligations. Material contractual obligations are those obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely.
The aforementioned exclusions and limitations of liability shall not apply in the event of the assumption of express guarantees by hmstr and in the event of claims due to the lack of warranted characteristics or insofar as claims under the Product Liability Act are concerned.
(2) For the recovery of data, hmstr shall only be liable to the extent that the customer has taken all necessary and reasonable data backup precautions and has ensured that the data can be reconstructed with reasonable effort from data material held in machine-readable form.
(3) hmstr shall provide the platform with the software to the customer with an availability of 97 %. The availability refers to the average availability during the operating time of each calendar month. hmstr reserves the right to interrupt the provision of services in order to perform scheduled maintenance work as well as unscheduled maintenance work in case of emergency (the maintenance windows). The times of the Maintenance Windows shall not be deemed to be operating times within the meaning of the above provisions. Scheduled Maintenance Windows shall be announced by hmstr to the Customer with a notice period of seven (7) days. Unscheduled maintenance windows shall be announced by hmstr to the customer in advance to the extent possible and reasonable. Other temporary interruptions of service due to disruptions of the Internet at third-party providers or third-party network operators as well as in the event of force majeure shall also not be taken into account.
(1) Unless otherwise agreed in individual cases, each customer contract shall have an indefinite contract term after selection of a chargeable package and may be terminated by either party with one month’s notice to the end of any calendar month. If no package is selected after the 14-day test phase, a contract is not automatically concluded.
(2) The right of the contracting parties to terminate the contract for good cause without notice shall remain unaffected.
(3) All notices of termination under this contract shall be given in electronic form (e-mail) or in text form. Insofar as hmstr provides an option for electronic termination, the customer shall have the right to also use this option for effective termination.
(1) „Confidential information“ means all information and documents, including contractual documents, which are either marked as confidential or whose confidentiality results from the circumstances or their nature.
(2) Information that was known to the receiving Party before it received it from the other Party under this Agreement or that the receiving Party developed independently without recourse to confidential information of the other Party or that the receiving Party obtained from a third party shall not be considered confidential information, who is not bound by any restrictions on the use and disclosure of such information, or is or becomes generally known through no fault or action of the receiving Party, or which a Party has exempted from confidentiality by written declaration to the receiving Party.
(3) The Contracting Parties shall treat as confidential all confidential information which one Contracting Party communicates to or receives from the other Contracting Party under this Agreement and shall use it exclusively for the purpose of providing the Services. The rights of use pursuant to § 3 shall remain unaffected.
§11 Final Clauses
(2) The Provider shall be entitled to adjust the respective price list a maximum of once per quarter to changing market conditions, in the event of significant changes in procurement costs, changes in value added tax or procurement prices. In the event of price increases that significantly exceed the regular increase in the cost of living, the customer shall have the right to terminate the contract. In such cases, he shall be notified of this by the supplier in text form.
(3) The relations between the contracting parties shall be governed by the law applicable in the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(4) The place of jurisdiction for this contractual relationship is the registered office of the Provider.
(5) The contractual language is German.
(6) Unless otherwise agreed in individual cases, additional services shall be remunerated on a time and material basis at an hourly rate of EUR 150. Invoicing shall take place at the end of each calendar month.