These General Terms and Conditions of Business apply to all contracts concluded between Mbaas Development GmbH, Urbanstr. 101, 10967 Berlin (hereinafter referred to as "Mbaas") and its clients with regard to the "applanga" service.
Subject of the contract
Mbaas offers a platform for real-time analysis and optimisation of apps with its "applanga" service. In particular, the service enables clients to evaluate the use of apps statistically and to download parts of apps in a dynamic and personalised manner based on indicators defined by clients (A/B tests).
The Mbaas service consists of two elements. On the one hand Mbaas provides an online service, via which clients can make settings and view processed data. On the other hand, Mbaas grants clients a simple usage right for a Software Development Kit, which facilitates communication between the online service and the client's app.
"App" refers to software distributed by the client, particularly for mobile end devices.
"Content" refers to content which the client stores on the servers of Mbaas. This includes, in particular, all kinds of texts, images, graphics and videos.
"Platform" refers to a type of mobile operating system, e.g. iOS, Android or Windows Mobile.
"SDK" refers to a software library provided by Mbaas for using applanga, which enables the client to use the applanga services in his apps.
"App Store" refers to sales platforms via which the apps can be sold within the meaning of subsection 2.1, in particular, Apple AppStore, Google Play or Microsoft Store.
Formation of the contract
The contract for the use of applanga and the granting of rights of use for the SDK shall come about by completing the registration. In doing so, the client shall first give his email address. Then the client shall receive an email with a link, via which he can confirm his email address. Following confirmation the client can specify all other registration data, such as name, company and payment details, and select a payment model (hereinafter referred to as "Payment Tier"). Registration is complete when the client has successfully sent all the necessary registration data to Mbaas after confirming his email address.
Software Development Kit
Mbaas shall provide the client with an SDK, which will enable the client to integrate applanga functions in his apps. The precise scope of the functions can be viewed at http://www.applanga.com. Mbaas shall grant the client a simple, non-transferable right of use to duplicate the SDK within the scope of using applanga, integrate it in the client's apps and use it for the purposes specified in subsection 1 of these General Terms and Conditions of Business.
Mbaas shall provide documentation for the SDK. The type of provision is at the discretion of Mbass.
Mbaas reserves the right to extend the functionality of the SDK at any time. On the grounds of data security, for compelling technical reasons, for troubleshooting or due to a change in the legal situation as a result of legislation, court rulings or official guidelines the functionality can also be modified or restricted at any time or partially suspended. The client shall be informed of such changes to the SDK as soon as possible and in an appropriate manner.
Mbaas reserves the right to provide the SDK in different versions. The client shall be informed in good time about new versions of the SDK. The client is obliged to integrate changes to the SDK in his apps within a reasonable time period. Otherwise the access to and/or the scope of functions of applanga may be restricted. Mbaas may cease operating older versions of the SDK partially or in full if the client is provided with a newer version instead. The client shall be informed in good time about the discontinuation of older versions.
In addition, Mbaas shall provide an online service, via which the client can make various settings and access the data which it has made available to the platform about SDK in an aggregated form.
Mbaas shall provide the client with the data in a processed and aggregated form. The client has no right to gain access to the raw data.
Mbaas shall try to ensure 98.5% annual average availability of the online service. This does not include necessary planned maintenance work or malfunctions which are outside the control of Mbaas.
Subsections 4.3 and 4.4 shall appy accordingly to the online service.
To use the online service, the client shall pay Mbaas the fee agreed when concluding the contract by selecting the corresponding payment tier. The stated fees are net plus the respective statutory value added tax.
Unless otherwise specified, the fees only apply to the number of apps and/or platforms agreed on conclusion of the contract that are consistent with the selected payment tier as well as the corresponding scope of the data volume that has accumulated on the servers of Mbaas. Several apps are differentiated by the unique identifier for the app on the respective platform (e.g. "bundle ID" for iOS or "package ID" for Android).
Billing is carried out at the end of each contractual month. The invoiced fees are due for payment upon issuance of the invoice. Mbaas is entitled to suspend the client's access to the online service if the client is more than two weeks in arrears with payment. Mbaas shall give the partner informal notice of the imminent suspension prior to its implementation.
Further duties of the client
The client shall be obliged to hold the access data provided by Mbaas in safekeeping and not disclose them to third parties. The access data may especially not be stored in plain text in configuration files or transmitted via unencrypted public network connections.
The client is obliged to comply with the SDK security precautions. He shall, in particular, refrain from bypassing authentication mechanisms or using SDK methods for purposes other than those which are clearly intended.
The client shall be obliged to comply with all data protection regulations when collecting, processing and using data provided via the SDK. The client shall guarantee to ensure that he will not collect, process or use any data without the express permission of the user or a legal permit under German law.
The client shall grant Mbaas a simple right of use unrestricted in space and time to content which he transmits on Mbaas servers to use the content to the extent required to implement the contract with the client, in particular, to reproduce the content and to make it available to third parties according to the client's settings. Mbaas is entitled to issue sub-licences to its subcontractors insofar as is necessary in order to implement the contract. Otherwise the right of use is not transferable.
The client shall guarantee that he is entitled to grant the rights of use specified in subsection 7.4 and that the content does not breach any applicable law or the terms and conditions of the respective App Stores. The parties are agreed that Mbaas is not responsible for the content provided by the client. Mbaas is not obliged to check the content provided by the client and will not carry out such a check either.
Mbaas is entitled to suspend the client’s access to the SDK and the online service if the operator of an App Store objects to the client's content or the specific use of the SDK by the client and there is a risk that the App Store operator could impose sanctions on Mbaas or other clients. Whether a breach of subsection 7.3 or 7.5 has actually occurred is irrelevant in this case. The provisions in subsection 9 shall not be affected.
Compensation and liability
Mbaas is obliged to pay compensation only in the event of intent ("Vorsatz"), gross negligence ("grobe Fahrlässigkeit"), culpable injury to life, limb or health, simple negligent breach of an essential contractual obligation, the fulfilment of which makes the achievement of the contractual purpose at all possible and on the fulfilment of which the client may normally rely (“cardinal obligation”, "Kardinalpflicht"), in the event of the breach of a guarantee expressly referred to as such and in the event of a legally mandatory liability under the Product Liability Act ("Produkthaftungsgesetz"). Otherwise, any liability is excluded. In the event of a simple negligent breach of a cardinal obligation liability is restricted to the contractually typical damage that is foreseeable at the time the contract is concluded.
Subsection 8.1 applies analogously to breaches of obligations by subcontractors of Mbaas.
Term and termination
The contract shall be concluded for an indefinite period. The minimum contractual term is 12 months. However, the client is free to change to another payment tier during the minimum contractual period.
At the end of the minimum contractual period the contractual relationship may be terminated by giving four weeks' notice effective at the month-end.
The right to termination for good cause remains unaffected. Good cause is in particular use of the SDK by the client that is not in keeping with the terms of the contract (subsection 7.2), unlawful collection of data by the client (subsection 7.3) and the unlawful provision of content by the client (subsection 7.5).
Mbaas reserves the right to restrict or suspend the functionality of the SDK for reasons other than those specified in subsections 4.3 and 4.4. In this case the client has the right to terminate the contract for cause without giving notice on the date when the changes take effect. Subsection 10 applies analogously.
Changes to the General Terms and Conditions of Business
Mbaas may amend and adjust these General Terms and Conditions of Business with effect for the future if there is a plausible reason for the change and the changes are reasonable taking into account the interests of both contracting parties. A plausible reason especially exists if the changes
a. are necessary as a result of a significant disturbance in the quid pro quo of the contract that was not foreseeable for Mbaas when concluding the contract or
b. are necessary as a result of a significant disturbance in the quid pro quo of the contract that was not foreseeable for Mbaas when concluding the contract or
The amendment of the principal service obligation ("Hauptleistungspflicht") is excluded.
This contract is subject to the law of the Federal Republic of Germany.
The place of jurisdiction for all claims arising from this contract is Berlin.
Contract language is German, translations into other languages are not legally binding