Geek Techware UG (haftungsbeschränkt), named ‘Geek Techware’ in this Agreement, owns and hosts a software management system for dive centers and dive resorts, Geek Divers, available at www.geekdivers.com, after user authentication. Geek Techware wants to make Geek Divers available to the owners and managers of dive centers around the world (‘Customer’) on a Software-as-a-Service-basis (SaaS). The Customer wants to use Geek Divers and agrees to the Terms and Conditions described herein.
Therefore, the Parties agree as follows (the ‘Agreement’):
Purpose and Scope, Granting of rights
Geek Techware agrees to provide Geek Divers as Software as a Service (SaaS) to the Customer.
Geek Techware grants to Customer the non-exclusive, non-transferable, worldwide right to access and use the Geek Divers for their own business for the duration of this Agreement, which is hosted by Geek Techware, as online service for the Customer’s internal business purposes and subject to the terms and conditions of this Agreement. A perpetual license to use the Software is explicitly not granted.
Geek Techware does not offer its services to consumers within the meaning of section 13 of the German Civil Code.
Access to Geek Divers
Subject to this Agreement, Geek Techware will make Geek Divers (in its latest version) available to the Customer during the term of this Agreement through the internet, a Google Chrome browser and a user interface that can be personalized to a certain extent by the Customer. Geek Techware will provide the Customer an account to access the latest version of Geek Divers.
Geek Techware may change, suspend or discontinue the access to Geek Divers at any time, including the availability of Geek Divers or any feature or content thereof, without notice or liability. Geek Techware reserves the right, at its sole discretion, to refuse to allow the Customer to access Geek Divers at any time.
Geek Divers is hosted on third party-servers in Europe: two synchronised servers and one server containing daily backups. Geek Techware will take measures to ensure a high availability of its servers. Geek Techware will not be liable for any damages resulting from server downtime which is necessary to maintain the functionality of Geek Divers or to deploy a release or for any downtime caused by the server operator. In such cases, Geek Techware will inform the Customer as early as possible of any possible inconveniences.
Restrictions or impairments to the access to Geek Divers may result from circumstances not under the control of Geek Techware. This may include actions of third parties not acting on behalf of Geek Techware, technical conditions of the internet not controlled by Geek Techware and force majeure. Also, the hard- and software used by Customer may influence the performance of Geek Divers. Insofar as such circumstances may influence the availability and functionality of Geek Divers, Geek Techware’s performance is considered as compliant with this Agreement nevertheless.
The Customer shall notify Geek Techware immediately of any malfunction or other impairments of the functionality of Geek Divers as precisely as possible. Otherwise, section 536c of the German Civil Code shall apply.
Upon request from the Customer, Geek Techware creates a user account (either for demo purposes or an official account) with a username and temporary password for the Customer. The password must be amended by the Customer during the first login and kept confidential. The Customer will inform Geek Techware immediately, should they become aware of any potential misuse of their username and/or password.
Content, Data Backups
The Customer hereby grants to Geek Techware the right to use all content and data provided by the Customer in connection with the use of Geek Divers as necessary solely for the purpose of providing the services as described in this Agreement. The Customer assures that they are entitled to do so. Geek Techware may access the Customer’s account and therefore view their data for support and maintenance reasons whether explicitly requested by the Customer or not. However Geek Techware will not disclose any information pertaining the Customer’s data, unless formally requested by the authorities.
Fees and Payment
The use of Geek Divers is free for the demo account and for a trial period for the official account, as agreed in writing with the Customer. After the trial period, the Customer must pay a monthly subscription fee in advance, equal to the price agreed between Geek Techware and the Customer in writing. The Customer will receive monthly invoices over the respective amounts. The invoices will clearly state the due date. Geek Techware does not request the payment of a licence or force the Customer to pay for a long-term contract. However the Customer may request to pay for Geek Divers monthly fee in advance for a period of 3 or 6 months, in which case Geek Techware may agree on a discounted price.
Geek Techware may temporarily suspend the Customer’s access to Geek Divers if payments are not received until midnight GMT of the last day of the month. Geek Techware’s payment claim shall remain unaffected by such suspension. The access will be activated again upon payment of the arrears and late payment fee.
Geek Techware applies an extra fee for every dive center (‘location’) added to the Customer’s account in Geek Divers. The extra fee will be agreed with the Customer via email. Geek Techware reserves the right to adapt the pricing model to market developments or in case of added product features to be used by the Customer at any time. The Customer will be informed about such adaptation via email. The Customer may terminate the Agreement at any time, if they do not agree with the new pricing model.
Statutory law shall apply with regard to warranty. Sections 536b, 536c of the German Civil Code shall apply. The application of section 536a (2) of the German Civil Code is excluded, as well as the application of section 536a (1), as far as this provision provides for strict liability.
Geek Techware shall be liable according to applicable statutory provisions for damages (i) that result from a breach of its contractual obligations by Geek Techware, its legal representatives, or its agents with gross negligence or malicious intent, (ii) that occur as a result of the lack of a warranted quality, (iii) that are a result of a culpable injury to life, limb or health, and/or (iv) that are subject to product liability under the German Product Liability Act.
In cases of ordinary or minor negligence, Geek Techware shall only be liable for damages that result from a breach of essential contractual obligations. Such limitation of liability shall not apply where the damages result from culpable injuries to life, limb or health or as a result of a lack of a warranted quality. Essential contractual obligations shall be such obligations which make the execution of the contract possible and where a contractual party can trust in compliance with such obligations by the other party and that, if breached, endanger the fulfilment of the aim and purpose of the contract.
Geek Techware’s liability shall furthermore be limited to damages that are typically foreseeable in the context of an agreement such this Agreement. This limitation does also apply in case of a breach of an essential contractual obligation.
Geek Techware shall not be liable for indirect, consequential or special damages.
Further, in case of a breach of an essential contractual obligation, Geek Techware’s liability shall be limited to maximum amounts of EUR 10.000 per case, and EUR 15.000 overall.
Any liability other or beyond the liability provided for in this section shall be excluded.
Geek Techware provides Customer’s data backups every 24 hours. If the Customer suffers damages that result from the loss of data after the most recent backup, Geek Techware shall not be liable for such damages, even if a harmful event has occurred.
Geek Techware does not assume any liability with regards to the calculation of prices, fees and remunerations, even if Geek Techware offers support with regard to the set-up of the relevant functionalities in Geek Divers. The Customer agrees that they will control and check any and all invoices, payslips and payments.
The Customer is responsible for their customers and staff members’ data collection. Geek Techware provides GDPR-compliant data collection features within Geek Divers. Geek Techware does not assume any liability with regards to the Customer’s customers and staff members’ unlawful data collection and processing of information. Geek Techware only provides secure storage and organised accessibility to the Customer’s data.
All contractual and other claims against Geek Techware for damages or wasted anticipatory expenditure shall be subject to a limitation period of one year. This does not apply to claims resulting from Geek Techware’s liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. Section 199 (1) of the German Civil Code shall apply. Notwithstanding the foregoing provisions in this section, the time bar comes into effect not later than five years after the claim arises.
Data Uploading, Indemnification
Any content and data uploaded or otherwise used by the Customer is under the sole responsibility of Customer and anyone acting on Customer’s behalf (e.g. users created by the Customer). Geek Techware will not assume any responsibility and/or liability with respect to such content and data, including any obscene, threatening, defamatory, fraudulent, infringing, harassing or otherwise offensive material or content included in such content and data. The Customer undertakes to not upload or let third parties upload such data. Geek Techware reserves the right to ban the Customer from using Geek Divers and to lock the Customer’s account if this section 8.1 is violated.
The Customer shall indemnify, defend and hold harmless Geek Techware against any claims including costs and reasonable attorney’s fees, that (i) were submitted by any third party, where Geek Techware is mentioned as a result of the negligent or intentional acts or failure to act by the Customer, its employees or agents, while performing its obligations under this Agreement, (ii) are based on the accusation that any content or data provided by the Customer infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) are arising from or relating to the Customer’s failure to comply with this Agreement.
Further claims for damages of Geek Techware shall remain unaffected.
Term and Termination
The term of this Agreement commences with the first login to Geek Divers. The Customer (including the logins created by them within Geek Divers) may terminate the Agreement at any time with a notice period of ten days to the end of each contractual month via email. Geek Techware may terminate the Agreement with a notice period of two weeks.
The right of both Parties to terminate this Agreement for good cause shall remain unaffected.
Termination notices via email shall be sufficient.
The sole place of jurisdiction for all differences arising out of or in connection with this Agreement shall be the court of Bochum, Germany, if the Customer is a merchant, a legal entity under public law or a special fund under public law.
This Agreement shall be governed and construed in accordance with the laws of the Federal Republic of Germany under the exclusion of German International Private Law and the UN Convention on the International Sale of Movable Goods.
If any provision of this Agreement is entirely or partly invalid or unenforceable, this shall not affect the validity and enforcement ability of the other provisions of this Agreement. The invalid or unenforceable provision shall be regarded as replaced by such valid and enforceable provision that as closely as possible reflects the economic purpose that the parties hereto had pursued with the invalid or unenforceable provision.
Any amendment to this Agreement must be made in writing. This requirement applies to the amendment of this provision as well.
Geek Techware reserves the right to use subcontractors for the provision of its services.
Geek Techware reserves the right to amend this Agreement from time to time. Geek Techware will notify the Customer of such amendment via email. The Customer may terminate the Agreement according to the terms described in this Agreement, should he not agree with the amended terms.
Last amended: 24th May 2018