1. Scope of Application
1.3 Other terms and conditions, deviating contractual terms or stipulations in orders or other letters from the user shall only apply if FlunderLabs has expressly agreed to them.
2. Conclusion of Contract
2.1 In order to use Cling, a registration is required. All fields marked as mandatory must be filled in completely and correctly. The scope of this mandatory information can vary depending on the subscription. The user agreement between FlunderLabs and the user is only concluded when FlunderLabs confirms the registration by email.
2.2 FlunderLabs offers a free basic access for the use of Cling as well as a fee-based premium access, each offering a different scope of services. The user can switch from a basic access to premium access at any time in the settings of the account.
3. Services, Rights of Use
3.1 The user is granted the non-exclusive, non-transferable and revocable right, limited to the term of the contract, to use the software within the scope of the purpose of the contract. The user does not acquire any rights beyond this, in particular no rights to the software itself and has no right to obtain the software.
3.2 Insofar as copyrightable works are contractually made available for use, the user shall, in case of doubt, be granted simple, non-transferable rights of use limited to the term of this contract, insofar as these are necessary to achieve the purpose of the contract.
3.3 FlunderLabs is entitled at any time, at its sole discretion, to revise and change the Software, parts thereof or individual functionalities and to install updates and upgrades. In doing so, FlunderLabs will always take reasonable account of the legitimate interests of the user and ensure that the specific change is reasonable for the user.
When booking a fee-based accesses, the user is entitled to a right of withdrawal with the following conditions.
Right of Withdrawal
The user has the right to cancel this contract within fourteen days without giving reasons. The withdrawal period is fourteen days from the date of conclusion of the contract. In order to exercise the right of withdrawal, the user must inform FlunderLabs (FlunderLabs GmbH, Löwestraße 25, 10249 Berlin, Fax: Fax: +49 30 76583339, Email: email@example.com) of the decision to withdraw this contract by means of a clear statement by letter, fax or email. The user may use the standard withdrawal form, which is not mandatory. The user may submit the standard withdrawal form or other clear statement to the contact firstname.lastname@example.org. If the user makes use of this option, FlunderLabs will immediately send an e-mail confirming receipt of such a revocation. To comply with the withdrawal period, it is sufficient that the user sends the notification of the exercise of the right of withdrawal before the end of the withdrawal period.
Consequences of Withdrawal
If the user cancels this Agreement, FlunderLabs shall promptly refund to the user all payments received from the user, including delivery charges (except for additional charges resulting from the user's choice of a different delivery method than the cheapest standard delivery offered by FlunderLabs), without undue delay and in any event no later than fourteen days from the date FlunderLabs received notice of the user's withdrawal of this Agreement. For this refund, FlunderLabs will use the same means of payment that the user used for the original transaction, unless expressly agreed otherwise with the user; in no event will FlunderLabs charge the user for this refund.
5.1 FlunderLabs is not responsible for the nature of the user's software environment or the telecommunications connection between the user and FlunderLabs up to the point of delivery.
5.2 FlunderLabs guarantees an availability of 99.0% on a monthly average for Cling within its responsibility.
5.3 FlunderLabs has the right to discontinue or limit Cling's provision for the performance of maintenance and service work (Scheduled Downtimes). FlunderLabs will inform users of this. If FlunderLabs anticipates that a Scheduled Downtimes will last more than 3 hours, FlunderLabs will notify users by email at least one week prior to the commencement of the relevant work. Wherever possible, FlunderLabs will carry out maintenance and service work during periods of low usage, particularly at weekends. Scheduled downtimes up to a total duration of 4 hours per month are not considered when calculation the guaranteed availability.
6. Access software
6.1 Insofar as FlunderLabs offers its own access software for direct access to Cling, the user shall be granted a simple, non-transferable, non-sublicensable, revocable right of use, limited to the duration of the user agreement.
6.2 The access software requires certain technical requirements on the part of the user (in particular, certain platforms and versions of the operating system). The specific requirements are stated in the respective download presentation for the access software. In particular, the technical requirements may change when updates or new versions of the software are made available.
- to rent or lend the access software or make it available to a third party in any other way,
- to retranslate, decompile, compile, disassemble, edit, port, translate or otherwise modify the access software,
- to reproduce, distribute, transmit, publicly reproduce or otherwise make it available to third parties, or
- to remove, suppress or alter trademarks, other marks or copyright notices contained in the access software.
6.4 There is no right to the provision of access software.
7. Obligations of the user
7.1 The user must always keep the data provided during registration up to date, especially the contact data. If changes occur during the term of the contract of use, the user must update the information in the account immediately.
7.2 The user shall ensure that the use of Cling is not illegal or immoral, in particular that the information, texts, pictures, etc. stored by the user in Cling do not violate national and international data protection, competition, criminal, copyright, trademark, labelling, patent and name laws, regulations for the protection of minors, violate other rights of third parties or serve to incite hatred of the people, incite criminal activity, glorify violence or are sexually offensive.
7.3 Personal access data and/or user authorizations, which may be assigned to the user, must be kept secret and protected from access by third parties. Such data shall be protected by suitable measures in accordance with current requirements, e.g. by regularly changing passwords. The user shall notify FlunderLabs immediately if there is any suspicion that the access data or passwords have become known to unauthorised persons. This shall not affect the user's obligation to take appropriate measures to avert possible dangers, such as the immediate change of known access data, in such a case.
7.4 The software may only be used for own purposes. Any commercial exploitation of the software is prohibited.
7.5 The user is responsible for regularly securing the information stored in the software against loss and for making appropriate back-up copies in a suitable form.
7.6 The user shall refrain from taking any measures that could endanger the IT security and stability of FlunderLabs's systems. In particular, the user shall not access any information or data without authorisation, interfere with programs operated by FlunderLabs or penetrate FlunderLabs's data networks without authorisation or promote such penetration or generate network load, unless such actions are in accordance with the intended use of the contractual services.
7.7 The user indemnifies FlunderLabs against all claims at first request that third parties assert against FlunderLabs due to the user's use of Cling.
7.8 The user grants FlunderLabs all necessary rights to store, modify and process the user's content within the scope of the purpose of the contract. This includes the right to make backup copies within the scope of data backup, also for FlunderLabs's own backup purposes.
7.9 If there is any indication that the user is in breach of the aforementioned obligations, FlunderLabs is entitled to restrict or suspend the use of Cling. In selecting the measures, FlunderLabs shall take into account its own operational requirements and liability risks as well as the legitimate interests of any claimants and of the user. (e.g., fault, weight of the breach of duty, risks, user's opinion). The user may invalidate the established indications by presenting suitable counterevidence and thus avert the implementation of the measures.
8.1 The amount of the remuneration depends on the booked access and is provide for in the order. The current price plans are available at https://cling.com/pricing.
8.2 The remuneration is due monthly in advance on the 3rd calendar day of a month.
8.3 All prices quoted are gross prices including the statutory value added tax.
9.1 The following rules shall apply to all claims for damages or any other claims for compensation by the user arising from or in connection with the performance of this contract and liability cases, irrespective of their legal basis (e.g. warranty, default, impossibility, any breach of duty, existence of an impediment to performance, tort, etc.).
9.2 Within the scope of the free basic access as well as for the provision of an access software, FlunderLabs shall only be liable in cases of intent, gross fault and the absence of a warranted characteristic.
9.3 In all other respects, FlunderLabs shall be liable without limitation in the event of
- damages resulting from injury to life, body or health,
- fraudulent concealment of a defect by FlunderLabs or due to the absence of a quality for which FlunderLabs has given a warranty
- damages resulting from intentional or grossly negligent conduct by FlunderLabs, its officers or directors, and
- matters covered by the German Product Liability Act (Produkthaftungsgesetz - ProdHaftG).
9.4 In the event of slight negligence, FlunderLabs and Persons whom FlunderLabs uses to perform its obligations shall be liable for breach of a material obligation, i.e. an obligation whose fulfilment is essential to the proper performance of the contract and on whose compliance the user can regularly rely, limited to compensation for typical damage that was foreseeable at the time the contract was concluded. Otherwise, liability for slight negligence is excluded.
9.5 FlunderLabs's strict liability under tenancy law and similar user agreements for errors that already existed at the time the contract was concluded is expressly excluded.
9.6 FlunderLabs shall not be liable for errors within the telecommunications network that it has not culpably caused itself.
10. Term of Contract, Termination
10.1 The user agreement runs for an indefinite period of time.
10.2 The user can terminate the user contract for the free basic access at any time without time limits by giving notice in writing or by deleting the account.
10.3 The user contract of a fee-based premium account can be terminated at any time with a notice period of 14 calendar days to the end of the month by giving notice in text form or by deleting the account. The user can delete the information stored in the account at any time.
10.4 The right to terminate for good cause remains unaffected. On the part of FlunderLabs, such good cause shall be deemed to exist in particular, if the user violates the obligations under Clause 7.
10.5 It is the user's responsibility to back up the data before the end of the contract. FlunderLabs is not obliged to retain any data stored by the user in Cling beyond the term of the contract.
11.1 FlunderLabs points out that it does not participate in dispute resolution proceedings before a consumer arbitration board under the German Act on Alternative Dispute Resolution in Consumer Matters (Verbraucherstreitbeilegungsgesetz – VSBG).
11.2 Online dispute-resolutions pursuant to Art. 14 para. 1 ODR (Regulation on consumer ODR): The European Commission provides a platform for online dispute resolution which can be accessed at http://ec.europa.eu/consumers/odr/.
12. Final Provisions
Version: March 2020