1.1 These T&Cs govern the contractual relationship between Formcentric GmbH, Schaartor 1, 20459 Hamburg, Germany (‘Formcentric GmbH’) and the customer for the use of the ‘Formcentric’ forms manager provided by Formcentric GmbH via thehttps://formcentric.com website, together with the associated storage space provided to the customer by Formcentric GmbH (‘service’). Formcentric GmbH and the customer are referred to jointly as the ‘parties’.
1.2 No verbal side agreements have been made between the parties. These T&Cs apply exclusively and without exception. Customer terms of business that deviate from or run counter to these T&Cs are invalid and inapplicable; this also applies in cases where Formcentric GmbH does not explicitly reject the customer’s terms of business.
1.3 The service in question is a professional forms management system that offers a rapid and straightforward approach to representing and automating digital business processes. The service therefore allows the customer to utilise the forms on the ‘formcentric.com’ website or to embed these in the customer’s digital online presence and to manage the data entered into the forms by the users of the forms (‘users’). User data is stored on servers operated by Formcentric GmbH or its service providers in the European Union. The feature set provided by the service as well as the storage capacity made available to the customer are specified in the subscription as selected by the customer. The source code for the software used to provide or deploy the service does not form part of the contract.
1.4 By accepting these T&Cs, the customer also consents to be bound by these T&Cs when accessing and using the service.
1.5 The customer can also change their subscription during its contractual term. Changes to the selected subscription are effective immediately.
1.6. In addition, the DATA PROCESSING ARRANGEMENTS FOR THE FORMCENTRIC FORMS MANAGER shall apply.
2.1 Service
(a) Formcentric GmbH grants the customer usage rights to the most recent version of the service for the number of authorised users as specified in the subscription (‘form authors’). Login details for the service are sent to the customer electronically (via email) by Formcentric GmbH.
(b) The application documentation is provided in an electronic format on https://help.formcentric.com/de/.
(c) Formcentric GmbH is entitled to update or improve the service at any time and to modify the service, particularly in response to changes in legislation, technical developments or with the aim of improving IT security. In so doing, Formcentric GmbH will take steps to account for the customer’s legitimate interests.
2.2 Hosting
(a) Formcentric GmbH provides the customer with storage space, up to the amount specified in the subscription, for storing the data as submitted by the forms. The data stored on the servers can be accessed by the customer and exported during the contractual term of the subscription.
(b) The servers are connected to the internet. This allows the data transferred by the service to be stored on the servers and, following a query from external computers on the internet, allows the data stored on the servers to be forwarded to the querying computer using standard internet protocols. The service provided by Formcentric GmbH to transfer this data is limited to the data communication between the internet transfer point and the server that is being used to host the storage space. Influencing data traffic after this transfer point is beyond the scope of the Formcentric GmbH service. No liability can therefore be accepted for the successful transfer of data from or to the computer querying the content.
(c) The customer is not entitled to use the storage space beyond the scope of the usage permitted by the contract or to allow any use by third parties.
2.3 To protect user data, Formcentric GmbH will implement measures in accordance with the latest technical standards. Details are specified in the commissioned data processing contract supplementary to the subscription agreed between Formcentric GmbH and the customer.
2.4 Formcentric GmbH carries out a daily automated backup of the data stored on the servers as provided by Formcentric GmbH. Data backups are performed according to a schedule that permits the recovery of data to a version that is no more than 48 hours old. Formcentric GmbH is not required to retain data backups beyond this point in time. The customer is not entitled to demand the surrender of the backup medium itself but merely to request the transfer of the data back onto the server.
2.5 The customer retains ownership of the data stored on the Formcentric GmbH servers and can export this data at any time. As a point of clarification: the customer is not entitled to export the forms themselves.
3.1 The customer is not granted a licence to the physical service itself or to the software used to provide the service.
3.2The cus tomer is granted a non-exclusive, non-sublicensable and non-transferable right to use the latest version of the service with the specified number of form authors during the contractual term of the subscription. This usage right is conditional on accessing the service with a browser according to the selected subscription and while complying with these T&Cs.
Formcentric GmbH will set up a support service for questions of the customer regarding functions of the service. Questions can be submitted via the email address provided on the Formcentric website. The support hours are 09:00 - 17:00 CET. Formcentric GmbH will make every effort within its capabilities as a business to provide an initial response within two-hour to queries that are received during the hours of business for the support service. For support queries submitted outside business hours, this two-hour period commences at the start of the next working period for the support service.
5.1 Formcentric GmbH makes every effort to ensure the continued availability of the service without outages. Definitive proof of service availability is provided by instrumentation operated by Formcentric GmbH in its data centres or in the data centres of the Formcentric GmbH service providers.
5.2. ‘Availability’ means the customer’s ability to use all of the service’s primary functions and to provide these to the customer’s users.
5.3 The calculation of outages excludes the following periods of service unavailability:
- Unplanned downtime caused by internet faults or other circumstances beyond the control of Formcentric GmbH or for which Formcentric GmbH cannot be held culpable or liable (including but not limited to cases of vis major, outages at internet service providers, denial-of-service attacks, faults affecting customer systems, other technical failures beyond the control of Formcentric GmbH, etc.).
- Planned downtime for the purpose of conducting maintenance work on the service. Formcentric GmbH will notify the customer in text form well in advance of such work (at least 48 hours notice). Formcentric GmbH will also strive to keep planned downtime to a minimum.
5.4 The customer shall notify Formcentric Support about service faults by email. Formcentric GmbH will make every effort within its capabilities as a business to resolve reported faults as soon as possible.
6.1 The customer shall inform themselves of the key features offered by the service, and shall be responsible for ensuring that the service meets their needs and requirements.
6.2 The service must be used solely by the customer. Each form author shall have a valid and unique email address, and shall provide all other items of information required to complete registration and receive their login details. These login details must not be shared with other individuals or companies/organisations. As a point of clarification: this provision does not apply to the inputting of data by users.
6.3 The customer shall use state-of-the-art technical measures to store the login details provided and protect them from third-party access. The customer shall ensure that the login details are used only within the contractually agreed scope. Formcentric GmbH must be notified of any unauthorised access without delay.
6.4. The customer shall use the service only in accordance with applicable laws and regulations. The customer shall take steps to ensure that the service is not used in order to store content whose supply, publication or usage violates applicable laws, regulations, third-party rights or agreements concluded with third parties (‘unlawful content’). The latter includes in particular rules and regulations relating to intellectual property rights, copyright, data protection and privacy, the sending of spam or other unsolicited messages, the unauthorised collection or use of data, fraud, deception, defamation, causing offence, terrorism, discrimination, illegal games of chance, adult content and services, or similar. This same provision also applies to the customer’s own users. In the event of accounts being used to supply or store unlawful content contrary to the terms of section 6.4, Formcentric GmbH is entitled to lock such accounts without notice and for an indefinite period, or to delete such accounts, as necessary. Without prejudice to the foregoing, Formcentric GmbH is entitled to prevent the customer from accessing the storage space and/or server if there are reasonable grounds to suspect that unlawful content is being stored, because of a written warning from the alleged injured party, for example, or an investigation from a government agency.
6.5 Formcentric GmbH is also entitled to disconnect the storage space and/or server access provided to the customer from the internet if the storage space provided to the customer is found to contain viruses, trojans or other malware, and/or if the storage space provided to the customer is being adversely affected by an external incident, such as a DDoS attack, and is therefore adversely affecting the security, integrity or availability of Formcentric GmbH IT services or the IT services of third parties contracted by Formcentric GmbH to render performance in accordance with this contract.
6.6 Formcentric GmbH will notify the customer without delay concerning an imminent deletion of data, or a service interruption or account lock according to section 6.4 and 6.5, also stating the reasons for the same and requesting that the customer remove the alleged unlawful content or state why such content is lawful, providing evidence as required. The service/account will be restored once suspicions have been allayed or the reason for the interruption/lock is demonstrably no longer applicable. Any data deleted cannot be restored, however.
6.7 The customer may use the service for the contractually agreed purposes only if payment has been made as required. In the event of the customer defaulting on a payment, Formcentric GmbH is entitled to prevent the customer from accessing the storage space and/or the server. The foregoing does not affect any other claims that may be asserted by Formcentric GmbH, particularly regarding the customer’s duty to render payments as due.
7.1 The service is offered ‘as-is’. Formcentric GmbH does not offer any implicit assurances or guarantees for the service. The customer bears sole responsibility for the contractually compliant use of the service, particularly by their own users, who use the forms to store data on the storage space provided by Formcentric GmbH. Risks associated with the use of the service are also borne by the customer.
7.2 Warranties for the use of the service and the provisioning of storage space are governed by the provisions of German leasing law (section 535 ff. of the German Civil Code, BGB).
7.3 The customer shall notify Formcentric GmbH of any faults in the service without delay.
7.4. Formcentric GmbH will resolve technical service faults within an appropriate period of time. The responsibilities incumbent on Formcentric GmbH in this context extend only to the transfer point from systems operated by Formcentric GmbH to the internet but not to customer systems or to data transmission lines beyond the transfer point.
7.5 Formcentric GmbH accepts no liability for a merely inconsequential lessening of service performance. This also applies in the case of strict liability pursuant to BGB section 536a(1) for faults already present on contract conclusion or in the case of misuse of the service by the customer or users of the service, or in the case of the deployment of hardware, software or other types of equipment that are unsuitable for the use of the service, or if the customer fails to comply with section 7.3 and does not notify a fault in good time and Formcentric, as a result of this failure to notify faults promptly, was unable to provide a remedy.
7.6. Rights to claim for faults lapse after 12 months from the start of the legal limitation period.
8.1 Compensation may be claimed from Formcentric GmbH on the grounds of wilful intent and gross negligence. Compensation may also be claimed on the grounds of the negligent infringement of obligations whose fulfilment is essential for proper contractual performance, whose infringement threatens the achievement of the contractual purpose and whose observance may therefore be expected by the customer (primary obligations). In the last case, no liability is accepted for unforeseeable losses not typical for the contract concerned. No claims for compensation may be asserted against Formcentric GmbH on the grounds of the infringement of other obligations due to simple negligence. The foregoing limitations to liability do not apply in the event of injury to life, limb and health. Liability pursuant to the German Product Liability Act remains unaffected.
8.2 If a third party asserts claims against the customer on account of the service provided and the associated performance as rendered by Formcentric GmbH on the grounds of patent rights, copyright or other industrial property rights or other legal circumstances, then the customer shall notify Formcentric GmbH of this without delay. Formcentric GmbH will provide the customer with support in mounting a defence against such claims to the best of its ability, and will grant the customer the necessary rights – insofar as needed to fulfil the contract and as reasonable for Formcentric GmbH while accounting for the interests of both parties. Moreover, Formcentric GmbH is also entitled to provide an equivalent, alternative solution as it sees fit and at its own expense.
8.3. Section 8 also applies to the benefit of employees, representatives and organs of the parties.
Pursuant to section 6.4, the customer shall ensure that the content and data stored on the servers operated by Formcentric GmbH, including data supplied by form users, does not violate applicable laws, regulations, third-party rights or agreements concluded with third parties. On first demand, the customer shall indemnify Formcentric GmbH against all claims asserted by third parties that result from a violation of the terms of section 10. This indemnification covers all liability and costs incumbent on Formcentric GmbH resulting from claims, losses, damage, judgements, fines, court and other legal costs, pursuant to applicable law.
10.1 The fees charged for using the service are based on the subscription chosen by the customer. If the customer selects an upgrade to a more expensive subscription during the contractual term, the customer will be invoiced for the price difference for the remaining contractual term. The customer is entitled to upgrade or downgrade their subscription at any time. If the customer downgrades to a less expensive subscription, they will not be proportionally reimbursed or issued with a credit note for the price difference resulting from the downgrade for the remaining term of the affected subscription.
10.2 All prices are quoted exclusive of applicable statutory sales tax.
10.3 If the overall costs of providing the service – in particular, the costs of maintaining and improving the technical infrastructure or the costs of providing a customer service and completing general administrative activities – should rise by more than 5% after the purchase of the subscription by the customer, and also after accounting for any cost savings achievable by Formcentric GmbH, then, without prejudice to the foregoing sections 10.1 and 10.2, Formcentric GmbH is entitled to increase the service fee appropriately, following a notice period of six weeks before the entry into force of the new pricing. In this case, the customer has the right to terminate the contract by giving notice up to four weeks before the entry into force of the new fee pricing (‘special termination right’). Announcements about increases in fee pricing by Formcentric GmbH and notices of termination given by the customer when exercising their special termination right must be given in writing or in text form.
10.4 The service fee must be paid in advance for the initial contractual term of the selected subscription and for its subsequent renewal periods. Formcentric GmbH will send the invoices to the e-mail address provided by the customer.
10.5 Payments must be made to the accounts as specified on the customer invoice.
10.6 If the customer defaults on a payment, Formcentric GmbH is entitled to lock the customer’s account. The foregoing does not affect any other claims that may be asserted by Formcentric GmbH.
11.1 The term of the contract depends on the subscription as selected by the customer.
11.2 In the event of a subscription with an indefinite term (monthly sub), the contract is concluded for an indefinite period. In this case, either party can terminate the contract by giving notice two weeks before the end of the month.
11.3 In the case of a subscription with a fixed term (annual sub), either party can terminate the contract by giving notice four weeks before the end of the agreed fixed term. Otherwise, the subscription is extended automatically by the same period of time as agreed in the original subscription (one month or one year).
11.4 The right of either party to terminate this contract for good cause without notice remains unaffected.
11.5 All notices of termination must be given in writing or in text form.
12.1 Formcentric GmbH will provide the customer with an export of the data from the customer’s users as stored by the service on the servers operated by Formcentric GmbH up until the date of the termination of the subscription in a machine-readable format as defined by Formcentric GmbH. This data export will not include forms created by using the service or any personal data. After the expiry of a 30-day period, Formcentric GmbH will erase all customer data. This includes but is not limited to:
- personal data of the customer;
- customer forms; and
- user data and customer data stored on the servers operated by Formcentric GmbH.
12.2 Without prejudice to the foregoing section 12(1), the customer may export the data collected by the service at any time. This does not apply to the forms created by using the service or any personal data.
13.1 The parties must comply with all applicable data protection and privacy legislation.
13.2 In the course of rendering the service, Formcentric GmbH has access to personal data from the customer and those of their users who use the forms to store data on the storage space provided by Formcentric GmbH. This is governed by the commissioned data processing contract concluded by Formcentric GmbH and the customer. Formcentric GmbH will process this personal data solely in accordance with the provisions of this contract and as instructed by the customer. Further details are provided by the commissioned data processing contract.
13.3 Formcentric GmbH sends the customer information on offers for further developments and upgrades of the services to the e-mail address provided by the customer during registration or in the account. By accepting the terms of use, the customer gives his consent to this. This consent can be revoked at any time by sending an e-mail to support@formcentric.com. In addition, each e-mail contains a link to unsubscribe from further information.
14.1 Should individual provisions of these general T&Cs prove invalid or unenforceable, this does not affect the validity of the remaining provisions. The parties will replace such provisions by valid and enforceable provisions that most nearly approximate the purpose, business objective and intention of the parties when concluding the contract. The same applies to contractual loopholes.
14.2 No verbal or written side agreements to the subscription have been made. Changes to the subscription must be made in text form.
14.3 This contract is governed by German law with the exclusion of conflict-of-laws provisions and the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, dated 11 April 1980 (UN CISG).
14.4 Hamburg is the sole place of jurisdiction for all disputes arising from or in connection with this contract.
Version 1.1 from 10.10.2023
