GENERAL TERMS AND CONDITIONS OF BUSINESS
These General Terms and Conditions of Business regulate the legal relationship between Klug Home Solutions Tecnologia Ltda (hereinafter referred to as “Klug” or “Service Provider”) and their customers with regard to use of the online service “EnCaring”. With his electronic or written consent or by using the service offered, the customer accepts the Terms and Conditions of Use as an integral part of this license. Klug reserves the right to amend these Terms and Conditions of Use from time to time, and to inform the customers within good time about such amendments.
All services offered by Klug under these Terms and Conditions of Use are provided for consumers.
I. Service Categories:
The Licence Agreement regulates the following services provided by the Service Provider:
1. “Fee-based License EnCaring”:
The customer downloads a free licence for the APP EnCaring or a limited-time licence extension.
II. Agreement for All Service Categories
§1 Klug EnCaring
With “EnCaring”, the Klug offers an online service capable of running in a browser that allows the user to create and maintain web apps and websites independently in a content management system (CMS) in order to provide Internet contents in a form optimised for mobile terminals such as smartphones and tablets.
The users can access the service “EnCaring” in the form of a ten-day test version or with one or more purchased and registered licences for EnCaring . Once the Terms and Conditions of Use have been accepted by the user. Specific features when using this free test version are regulated in Article III Par. 2 of these Terms and Conditions of Use.
§ 2 Sole Responsibility of the Customer
The customer is solely responsible for the backup of his data. If data are saved on the Service Provider’s systems, the customer must run a data backup as necessary for his purposes on any other medium at his disposal, at his own responsibility and expense. Although the Service Provider shall perform data backups for his own purposes, this shall explicitly not release the customer from his responsibility as set out herein.
§ 3 Availability of Data Backup and Technical Adaptation of the Service Provider’s Systems
The Service Provider shall guarantee the agreed condition of the services ordered, and that these can be used in accordance with the licence without thereby infringing upon any third-party rights.
The Service Provider shall be entitled to adapt the hardware and the software used for provision of the services to the state of the art from time to time. If such adaptations result in additional requirements that the contents saved on the server by the customer must meet in order to guarantee provision of the Service Provider’s services, the Service Provider shall make such additional requirements known to the customer.
§ 4 Liability for Defects
Since data are transmitted to the Service Provider’s systems via the customer’s mobile telephone systems or WI-FI, inadequate or slow data transmission and the consequences thereof shall not justify any claims for defects by the customer.
§ 5 Liability of Klug
If the customer is an entrepreneur or a public legal entity, liability shall be limited to the sum total of the contractual fees paid to Klug by the customer within the scope of the concrete contractual relationship for the period of one year prior to occurrence of the damaging event, except in cases of wilful intent and gross negligence.
§ 6 Terms of Contract
In the provision of his services, the Service Provider makes use of the services of a data centre (usually Interxion).
Since he himself is bound by the general terms and conditions of business of the data centre provider with regard to the provision of his services, these terms and conditions are also an integral part of the contractual relationship between the Service Provider and customers.
If the customer objects to the validity of the new terms and conditions of business of the new data centre, the licence shall end with immediate effect, since the Service Provider will no longer be in a position to provide the service subject to the terms and conditions agreed hitherto. In this case, the licence shall be settled for the concrete resulting prorated term; the customer shall be obliged to pay the outstanding residual fee within one month of receipt of the settlement, prorated refunds for advance payments must be paid by the Service Provider within the same period.
§ 7 Data Protection and Data Transmission:
Klug shall use the customer’s data only within the scope of this contractual relationship, and shall in particular comply with the provisions of data privacy law. Klug shall oblige their employees to comply with the data privacy regulations.
Contract handling, in particular the transmission of contents, data processing and services, shall be possible electronically via the Internet without encryption.
Klug shall be entitled to forward personal data to appropriate service providers for the handling of payments and also in order to perform a credit check.
§ 8 Utilisation Right with Klug Software:
The customer has the right to use the APP EnCaring for the intended purpose during the term of validity of the licence.
III. Special Terms and Conditions
1. Term of Contract:
The term of this contract is limited to the term of the selected licence. The licence shall be extended automatically upon expiry, unless terminated in writing by mail one month in advance.
If the customer wishes to continue using the service offered, he is free to purchase a further annual licence at any time. If a further licence is purchased during the term of an already existing, valid licence, the term of the purchased licence shall be added to any residual term of the existing licence.
The customer shall be responsible for ensuring the timely backup of his data and files created within the EnCaring APP.
2. Payment, Due Date:
The remuneration for the fee-based services provided by the Service Provider shall be based on the prises published in the EnCaring shop or the respective shops of Google and Apple published at the time of conclusion of the contract.
All prices are quoted exclusive of the statutory VAT. Payment shall be due immediately upon purchase.
The Service Provider shall be entitled to amend the prices underlying his services at any time. The amended prices shall apply to all offers and services purchased after the amendment.
All costs of collection of debts not caused by Klug, in particular for direct debit cancellations due to lack of funds, incorrect credit card numbers, other incorrect details or failure to communicate the termination or change of credit card contracts shall be borne in full by the customer.
Klug shall only be obliged to provide the ordered service when Klug has the full right to dispose of the payment received.
3. Shipping and Delivery:
Since the EnCaring annual licence is a digital service, shipping costs will not be incurred.
The product is delivered (provision of the account login details) by e-mail or via APP.
IV Closing Provisions, Venue, Governing Law, Mediation Clause
1. Any amendments, supplements and terminations of contractual agreements must be made in writing, including cancellation of the requirement of written form, unless this contract provides for text form.
2. Should any provisions of the party agreements be or become wholly or partly invalid, the validity of the other provisions shall remain unprejudiced thereby. In this case the parties undertake to replace the invalid provision with an effective provision that covers the economic intention of the invalid provision as closely as possible. The same shall apply in the event of any omissions in the agreements.
3. All legal relationships shall be governed by the laws of the Republic of Austria.
4. The place of fulfilment and sole venue for any disputes arising from or in connection with this licence shall be at the registered seat of Klug.
5. The parties shall initially aim to resolve any disputes arising from or in connection with this licence within the scope of mediation by an extrajudicial mediator. The parties shall only be entitled to take recourse in court if mediation is not possible or ends without the dispute being fully resolved. The parties shall not be restrained from filing petitions for temporary legal relief or other summary proceedings. In all other cases, one party must offer the other party an opportunity for mediation before filing legal action.
In order to receive information about your Personal Data, the purposes and the parties the Data is shared with, contact the Owner.
Data Controller and Owner
Types of Data collected
The owner does not provide a list of Personal Data types collected.
The Personal Data may be freely provided by the User, or collected automatically when using this Application.
Failure to provide certain Personal Data may make it impossible for this Application to provide its services.
The User assumes responsibility for the Personal Data of third parties published or shared through this Application and declares to have the right to communicate or broadcast them, thus relieving the Data Controller of all responsibility.
Mode and place of processing the Data
Method of processing
The Data Controller processes the Data of Users in proper manner and shall take appropriate security measures to prevent unauthorized access, disclosure, modification or unauthorized destruction of the Data.
The Data processing is carried out using computers and/or IT enabled tools, following organizational procedures and modes strictly related to the purposes indicated. In addition to the Data Controller, in some cases, the Data may be accessible to certain types of persons in charge, involved with the operation of the site (administration, sales, marketing, legal, system administration) or external parties (such as third party technical service providers, mail carriers, hosting providers, IT companies, communications agencies) appointed, if necessary, as Data Processors by the Owner. The updated list of these parties may be requested from the Data Controller at any time.
The Data is processed at the Data Controller’s operating offices and in any other places where the parties involved with the processing are located. For further information, please contact the Data Controller.
The Data is kept for the time necessary to provide the service requested by the User, or stated by the purposes outlined in this document, and the User can always request the Data Controller for their suspension or removal.
Additional information about Data collection and processing
The User’s Personal Data may be used for legal purposes by the Data Controller, in Court or in the stages leading to possible legal action arising from improper use of this Application or the related services.
Additional Information about User’s Personal Data
System Logs and Maintenance
For operation and maintenance purposes, this Application and any third party services may collect files that record interaction with this Application (System Logs) or use for this purpose other Personal Data (such as IP Address).
Information not contained in this policy
More details concerning the collection or processing of Personal Data may be requested from the Data Controller at any time at its contact information.
The rights of Users
Users have the right, at any time, to know whether their Personal Data has been stored and can consult the Data Controller to learn about their contents and origin, to verify their accuracy or to ask for them to be supplemented, cancelled, updated or corrected, or for their transformation into anonymous format or to block any data held in violation of the law, as well as to oppose their treatment for any and all legitimate reasons. Requests should be sent to the Data Controller at the contact information set out above.
This Application does not support “do not track” requests.
To understand if any of the third party services it uses honor the “do not track” requests, please read their privacy policies.
Personal Data (or Data)
Any information regarding a natural person, a legal person, an institution or an association, which is, or can be, identified, even indirectly, by reference to any other information, including a personal identification number.
Information collected automatically from this Application (or third party services employed in this Application ), which can include: the IP addresses or domain names of the computers utilized by the Users who use this Application, the URI addresses (Uniform Resource Identifier), the time of the request, the method utilized to submit the request to the server, the size of the file received in response, the numerical code indicating the status of the server’s answer (successful outcome, error, etc.), the country of origin, the features of the browser and the operating system utilized by the User, the various time details per visit (e.g., the time spent on each page within the Application) and the details about the path followed within the Application with special reference to the sequence of pages visited, and other parameters about the device operating system and/or the User’s IT environment.
The individual using this Application, which must coincide with or be authorized by the Data Subject, to whom the Personal Data refer.
The legal or natural person to whom the Personal Data refers to.
Data Controller (or Application Owner, or Owner)
The natural person, legal person, public administration or any other body, association or organization with the right, also jointly with another Data Controller, to make decisions regarding the purposes, and the methods of processing of Personal Data and the means used, including the security measures concerning the operation and use of this Application. The Data Controller, unless otherwise specified, is the Owner of this Application.
The hardware or software tool by which the User Personal Data is collected.
Notice to European Users: this privacy statement has been prepared in fulfillment of the obligations under Art. 10 of EC Directive n. 95/46/EC, and under the provisions of Directive 2002/58/EC, as revised by Directive 2009/136/EC, on the subject of Cookies.
LICENSED APPLICATION END USER LICENSE AGREEMENT
Apps made available through the App Store are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of either this Licensed Application End User License Agreement (“Standard EULA”), or a custom end user license agreement between you and the Application Provider (“Custom EULA”), if one is provided. Your license to any Apple App under this Standard EULA or Custom EULA is granted by Apple, and your license to any Third Party App under this Standard EULA or Custom EULA is granted by the Application Provider of that Third Party App. Any App that is subject to this Standard EULA is referred to herein as the “Licensed Application.” The Application Provider or Apple as applicable (“Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Standard EULA.
a. Scope of License: Licensor grants to you a nontransferable license to use the Licensed Application on any Apple-branded products that you own or control and as permitted by the Usage Rules. The terms of this Standard EULA will govern any content, materials, or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace or supplement the original Licensed Application, unless such upgrade is accompanied by a Custom EULA. Except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the Licensed Application and, if you sell your Apple Device to a third party, you must remove the Licensed Application from the Apple Device before doing so. You may not copy (except as permitted by this license and the Usage Rules), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application).
b. Consent to Use of Data: You agree that Licensor may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
c. Termination. This Standard EULA is effective until terminated by you or Licensor. Your rights under this Standard EULA will terminate automatically if you fail to comply with any of its terms.
d. External Services. The Licensed Application may enable access to Licensor’s and/or third-party services and websites (collectively and individually, “External Services”). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Standard EULA or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
e. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
f. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
g. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
h. The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
i. Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and Apple shall be governed by the laws of the State of California, excluding its conflicts of law provisions. You and Apple agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:
If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.