General Terms of Use
for the fenzta HOME App
status: 15.08.2022
Preamble
fenzta COM GmbH, Erkrather Str. 401, 40231 Düsseldorf ("fenzta COM") provides an app (called "fenzta HOME") as a smart composer for windows that can be experienced, which is adapted to the technical features of Android and iOS but is otherwise identical, via the Google and Apple app stores and a web app. With the provision of fenzta HOME, fenzta COM aims to promote the sale of windows by bringing together buyers and sellers and mediating contracts. The main function of the app is the virtual representation of windows on the display of a smartphone using the camera image (augmented reality).
The time of free use, immediately after the installation of fenzta HOME on a smartphone, is available to everyone and can thus be used in particular by building owners as enquirers ("end customers") to support the planning of windows. With fenzta HOME, end customers have a tool at their disposal that is intended to make it easier to develop desired ideas and express them to suppliers.
The offer of the paid use of fenzta HOME following the free use period is exclusively addressed to legal entities, trading companies and entrepreneurially active persons ("users"). These are typically active as suppliers in the context of window construction or accompany this market as advisors to their customers.
fenzta COM provides intermediary services between end customers and users, through the functionalities provided in fenzta HOME and the further operation of fenzta COM. In doing so, fenzta COM shall act on behalf of the users against payment, with the reservation that it shall be free to decide at any time on the specific manner of the intermediary services, in particular the design of fenzta HOME. Neither end customers nor users have a claim to a specific design or a specific range of functions of fenzta HOME.
The services offered by fenzta HOME are made available to end customers and users for their own use. Any other use, in particular acting on behalf of third parties and any form of enabling indirect use of fenzta HOME by third parties, is prohibited for end customers and users.
1.1 These General Terms and Conditions of Use ("Terms and Conditions") shall apply to all content and services offered by fenzta COM in connection with and through fenzta HOME and shall govern the contractual relationship between fenzta COM and the End User or fenzta COM and the User.
1.2 The current version of the General Terms and Conditions of Business is available for download from fenzta HOME. By registering, the User accepts the GTC in force at that time. For this purpose the user clicks on a button before completing the registration. By clicking on this button, the user confirms that he/she has taken note of the General Terms and Conditions of Business provided to him/her via a link and that he/she agrees to their validity.
1.3 All provisions governing the use of the services and content offered by fenzta COM are set forth in these GTC and in the description of services. These GTC and the description of services shall not be stored separately by fenzta COM.
1.4 The contractual language shall be German. Only the German version of these GTC shall be binding vis-à-vis all users. If a translation of these GTC is made into another language (read-only version), such translation shall be for the sole purpose of informing the Users.
1.5. fenzta COM expressly reserves the right to make changes to these GTC and the description of services. Any changes shall take effect unless the User objects thereto within one month after receipt of the notice of change and fenzta COM has notified the User in the notice of change of its right to object and of the applicable time limit. The User will be notified of any such change either via its personal communication area within the fenzta HOME or by e-mail. If the User objects to the modification, the earlier provisions shall continue to apply. However, fenzta COM shall then be entitled to terminate the participation in accordance with Clause 9.4 within two weeks of receipt of the objection. This reservation of right to make changes shall not apply to changes which relate to an obligation of a party the fulfilment of which is a prerequisite for the proper performance of the participation and on the fulfilment of which the other party regularly relies or may rely ("essential contractual obligation").
1.6 fenzta COM may transfer the rights and obligations under the contract governed by these GTC to one or more third parties ("Transfer of Contract"). If fenzta COM makes use of this option, the end customer or user shall be notified thereof at least one month before fenzta COM intends to take over the contract. In this case, the end customer or user shall be entitled to terminate the contract as of the date of the transfer of the contract without notice in accordance with Clause 9.
1.7. fenzta COM shall be entitled to offer fenzta HOME and the contents and services connected with fenzta HOME itself or through third parties ("Subcontractors"). fenzta COM shall only engage subcontractors domiciled in the EU/EEA. Translated with www.DeepL.com/Translator (free version)
2.1 In principle, fenzta COM shall provide the fenzta HOME with the services and contents offered therein in the same way as the platform was available when the respective user registered in accordance with Clause 3. No user shall have any claim to any particular configuration or features of the fenzta HOME; in particular, the users acknowledge that the fenzta HOME is not a service to be provided individually to each user, but is offered only uniformly and once to all users. fenzta COM reserves the right to modify or temporarily suspend the fenzta HOME in whole or in part at its reasonable discretion (§ 315 German Civil Code), taking into account the interests of the User, provided that this does not adversely affect fenzta COM's material contractual obligations and the User can be reasonably expected to accept such modification or suspension; para. 1.5 shall apply mutatis mutandis.
2.2 The functionality of fenzta HOME is based on a client-server architecture, so that the full use of all functions of fenzta HOME on the smartphone requires Internet access. fenzta HOME may be used on a limited basis, purely locally on the smartphone, during a period without Internet access. Any costs of Internet communication shall be borne by the end customer or user.
2.3 The availability of the server component corresponding to fenzta HOME may be limited temporarily, in particular due to technical faults for which fenzta COM is not responsible, as well as for reasons of force majeure (failure of the power supply and/or the Internet connection, fire, explosion, earthquake, storms, floods), in whole or in part, as well as at any time for relatively negligible periods calculated as an annual average due to the performance of maintenance work which serves to maintain or improve the operability or change the functionalities of fenzta HOME.
2.4 With fenzta HOME, fenzta COM merely provides a technical platform for the contracts that may be concluded between end customers and users. fenzta COM shall not be involved in any contracts concluded between end customers and users, neither as a contracting party nor as a representative or vicarious agent of a contracting party or in any other way, nor shall it make any recommendations or give any advice. End customers and users are required to carry out their own measurement. Neither End Users nor Users may rely on any bills of materials or representations generated by fenzta HOME with respect to the transactions they seek to enter into.
2.5 Any content posted by users on fenzta HOME shall be deemed to be third party content for fenzta COM (Clause 5.1).
2.6 Messages of any kind whatsoever which may be sent via fenzta HOME, which may contain legally significant content, shall only be effective for and against the person who is or was involved in the individual communication process as the selected sender or recipient.
2.7. fenzta COM shall not be obliged to accept or process complaints, to mediate or arbitrate between users and end-users or (unless otherwise decided by a court or administrative authority) to provide information about end-users or users.
2.8 Links within fenzta HOME may lead users to external websites, in particular to websites which are not operated by fenzta COM. fenzta COM shall not be responsible for the content of such external websites; this shall not affect Clause 8.
2.9 fenzta COM shall not be obliged to check the creditworthiness of any end customer or the competence, capability or reliability of any user.
3.1. fenzta HOME can be downloaded free of charge from the Google and Apple app stores. The first period of use, immediately after initial installation on the smartphone, is free of charge. 3.2.
3.2 At the end of the period of free use, further use of fenzta HOME will be technically prevented until the user has completed his registration. By completing the registration process in full, i.e. in particular by clicking on the confirmation link (see Section 3.4), the contract shall come into existence, which shall be governed by the General Terms and Conditions.
3.3 Only legal entities, trading companies and entrepreneurially active natural persons of unlimited legal capacity may become users of fenzta HOME. There shall be no entitlement to registration as a user in fenzta HOME. fenzta COM reserves the right to refuse registration as a user in individual cases without giving reasons. Subject to paragraph 8, no claims for damages may be brought against fenzta COM for such refusal.
3.4 User registration shall be effected by means of an electronic registration form in fenzta HOME, using a user name and password chosen by the User. The data entered in this form may be corrected by overwriting or the registration process may be cancelled at any time up to the point of submission. In order to avoid abusive registrations, after the form has been submitted to fenzta COM, confirmation of the registration will be sent immediately by e-mail to the e-mail address indicated in the form. This is fenzta COM's application for the conclusion of the user contract. The user accepts the contract and completes the registration process by clicking on the activation link contained therein. The User may at any time add additional information to its user profile and modify or delete any information already entered.
3.5 The data provided by the user in fenzta HOME, in particular the data requested during the registration process and when creating a user profile, must be provided in full and truthfully; this also applies to any data provided by the user voluntarily, rather than compulsorily, to supplement its user profile. If the user's data changes, the user is obliged to update the information in his user profile without delay. The user name chosen by the user shall not infringe any third party rights, in particular any rights in names or trademarks.
3.6. fenzta COM shall not be liable for the accuracy or completeness of any information given in a user profile or in any other context; this shall be without prejudice to paragraph 8. If and to the extent such information is relevant to a user's purposes, the user itself shall be obliged to verify the information provided by end users or other users. This applies in particular prior to the conclusion of a contract with an end customer or other user.
3.7 The user is obliged to keep his password secret. The access data to the user profile must be protected against unauthorised use by third parties. The user is obliged to change the password at regular intervals. The user is liable for any misuse of the user profile. This does not apply if the user is not responsible for the misuse.
4.1 The use of fenzta HOME shall be subject to a charge for each User in such a way that, in the event of the conclusion of a contract between the User and an end customer or other Users and in the event that an intermediary activity of fenzta COM or the range of services offered by fenzta HOME was at least partly responsible for the conclusion of the contract, the User shall pay fees to fenzta COM in accordance with the price list. The user shall be obliged to notify fenzta COM without undue delay of the conclusion of the contract and shall, upon request by fenzta COM, provide fenzta COM with comprehensive information on its business activities which are connected with the use of fenzta HOME. 4.2.
4.2 Upon conclusion of the contract between the user and an end customer or other user, fenzta COM shall be entitled to claim the fees. If such a contract is concluded subject to a condition precedent, fenzta COM may, notwithstanding the foregoing, demand payment of the fees only after the condition has been fulfilled. The User shall notify fenzta COM without undue delay of any agreed condition precedent.
4.3 The amount of the fees and the prices for any other services and content in fenzta HOME which are subject to a charge shall be set out in the price list of fenzta COM, the current version of which is available in fenzta HOME.
4.4 fenzta COM may, at its own reasonable discretion (§ 315 of the German Civil Code (BGB)), determine binding terms and conditions of payment for the User. Such stipulations shall be contained in the price list of fenzta COM and shall be accepted by the User with effect for the future even in the event of changes in accordance with this scale.
4.5 Invoices issued by fenzta COM in text form (§ 126b BGB) shall be due immediately and payable without deduction. There shall be no entitlement to the sending of a paper invoice. Payment shall not be deemed to have been made until fenzta COM can dispose of the payment amount. The User shall be in default if it has not made payment within twenty days of the due date and receipt of an invoice or comparable payment schedule.
4.6 In the event of default, fenzta COM shall be entitled to charge default interest at the statutory rate. fenzta COM shall be entitled to charge administrative expenses of EUR 5.00 for the first payment reminder, irrespective of whether default has already occurred or not. This shall not affect the right of fenzta COM to assert claims based on default, nor shall it affect the right of fenzta COM to charge commercial interest on arrears vis-à-vis merchants.
4.7 The User shall only be entitled to set off counterclaims if such counterclaims have been finally adjudicated, have been acknowledged by fenzta COM or are undisputed. This shall not apply if the User's claims for defects against fenzta COM arise from the same contract. The user shall only be entitled to exercise a right of retention if its counterclaim is based on the same contract.
5.1. fenzta COM is a technical service provider (see Clause 2.4). The Content posted in fenzta HOME by an End Customer or User shall be stored by fenzta COM and thus made available to End Customers and other Users in this context. fenzta COM does not select or decide on the design of the content provided by the end customers or users or otherwise control such content immediately before it is made available in fenzta HOME. Nor shall fenzta COM supervise the end customers or users or issue instructions to them.
5.2 The end customer or user shall be responsible for compliance with the law in respect of the content posted by it. If an end customer or user becomes aware that content posted by another end customer or user obviously infringes its rights or the rights of third parties (in particular rights of personality, rights to a name, trademark rights, copyrights), fenzta COM shall, upon being notified accordingly, investigate the allegation and, if legally required, block access to such content or delete such content. A corresponding contact form is available in fenzta HOME.
5.3 Each end customer and user shall comply with applicable law and respect the rights of third parties.
5.4 End customers and users are in particular prohibited from
5.5 If the end customer or user uses image, graphic, audio or video files in the fenzta HOME, he shall ensure that he is entitled to the necessary rights of use to such content. If image, graphic, audio or video files are to be used which depict or otherwise contain persons other than the user himself/herself, they may only be used with the express consent of all other persons depicted or otherwise contained.
By posting Content in the User Profile and in fenzta HOME, fenzta COM is granted only and solely such rights of use and exploitation in the Content as are necessary for fenzta COM to make the Content available to other end users and Users in accordance with the purpose of fenzta HOME and to provide the services offered in fenzta HOME.
fenzta COM may, at its reasonable discretion (Section 315 of the German Civil Code) and having regard to the interests of the end customer or user, impose one or more sanctions on the end customer or user if the end customer or user has breached these GTC or if there is good cause as defined in Section 9.4 of these GTC. The severity of the sanctions shall be based on the severity of the infringement by the end customer or user. This measure shall remain in force until the sanctioned act has been stopped by the end customer or user and any risk of repetition has been eliminated. The following sanctions may be considered: (i) the deletion of the content posted by the end customer or user in the fenzta HOME, (ii) the deactivation or blocking of individual services or content for the end customer or user concerned, and (iii) the complete blocking of access to the fenzta HOME including the user profile. This shall not affect fenzta COM's right to terminate the contract for cause under Clause 9.4 or to assert any other or further claims.
8.1 Unless otherwise provided in these GTC, fenzta COM shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions. This shall apply mutatis mutandis to legal representatives and vicarious agents of which fenzta COM avails itself vis-à-vis the User.
8.2 fenzta COM shall be liable for damages, irrespective of the legal basis, in the event of intent or gross negligence. In the event of ordinary negligence, fenzta COM shall only be liable a) for damage resulting from injury to life, body or health, and b) for damage resulting from a breach of a fundamental contractual obligation. In the event of a breach of a material contractual obligation, liability shall be limited to compensation for the foreseeable, typically occurring damage and liability for indirect damage, in particular loss of profit, shall be excluded. This shall not apply if fenzta COM has fraudulently concealed a defect or has exceptionally assumed a guarantee for the quality of a service, or in the case of claims by the User under the German Product Liability Act.
8.3 fenzta COM shall only be liable for the consequences of the non-availability of the fictionalities of fenzta HOME at a time when fenzta COM was obliged to make them available in accordance with Clauses 8.1 and 8.2.
8.4 The end customer or user shall be solely liable for any breach of duty by the end customer or user. The End Customer or User shall indemnify and hold fenzta COM harmless from and against any and all claims of other end customers or other users and third parties which may be asserted against fenzta COM due to an infringement of rights by the content posted on a user account or otherwise on fenzta HOME or due to the use of the Offers by the End Customer or User. The end customer or user shall, upon first demand, bear all costs incurred by fenzta COM as a result of any such infringement. This shall include in particular the necessary costs of legal defence. This shall not apply if the end customer or user is not responsible for the infringement. Other claims of fenzta COM against the end customer or user shall remain unaffected.
9 Cancellation and termination of participation.
9.1 The contract between the end customer or user and fenzta COM is concluded for an indefinite period of time.
9.2 The End Customer or User may terminate the Contract at any time with immediate effect without giving any reason.
9.3. fenzta COM may terminate the contract at any time without giving reasons by giving two weeks' notice to the end of a month. If the User has made use of paid content or services, fenzta COM may terminate the contract only upon expiry of any agreed minimum term of the contract.
9.4 The right to terminate the contract for good cause shall remain unaffected. Good cause for fenzta COM shall be deemed to exist in particular if
9.5 Termination must be in text form (§ 126b BGB).
10 Closing Provisions
10.1 If the end customer or user is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of fenzta COM. The same shall apply if the end customer or user does not have a general place of jurisdiction in Germany, has moved its place of residence or habitual abode out of Germany after conclusion of the contract or the place of residence or habitual abode of the end customer or user is not known at the time the action is brought.
10.2 The law of the Federal Republic of Germany shall apply. fenzta COM GmbH is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.
10.3 Should individual provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the statutory provisions shall apply. This shall apply accordingly in the event of a gap in these GTC.
10.4 The application of the obligations in electronic legal transactions according to § 312i paragraph 1 sentence 1 number 1 to 3 and sentence 2 BGB is contractually excluded, if the end customer or user is not a consumer in the sense of § 13 BGB.