1. Scope of application

1.1. These General Terms and Conditions ("GTC" or “Terms of Service”) are applied by Superlist Software GmbH with its seat in Berlin ("Superlist").

1.2. Superlist has developed the superlist software, [an organizational tool to enhance productivity and communication] (the “Software” or “App”) and offers the Software under a Software-as-a-Service model (“SaaS”) and the App for download on any electronic device.

1.3. The precise system requirements and the full scope of functions of the Software are found in the product description on the distribution platform used to download the App (the “App Store”) and on Superlist’s website www.superlist.com (the “Website”).

1.4. The offer of Superlist for the use of the Software is directed to both Consumers and Business Customers (each a “Customer”).  For the purpose of these GTC, (i) a “Consumer” is any individual entering into the contract for a purpose not related to the individual’s business, trade or self-employed professional activity (§ 13 of the German Civil Code (BGB)) and (ii) a Business Customer is a user (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or self-employed professional activity (§ 14 of the German Civil Code (BGB)).

1.5. The legal relationship between Superlist and the Customer are exclusively these GTC. General terms and conditions of the Customer are excluded. Counter-confirmations of the Customer with reference to the Customer’s terms and conditions are hereby contradicted.

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2. Subject of the contract

2.1 Superlist makes the Software available to the Customer for use for the duration of the Agreement via the internet or for download against payment or free of charge for a certain test period (the "Service"). As part of the SaaS Superlist sets up the Software on a server operated by Superlist or a subcontractor commissioned by Superlist.

2.2 Superlist only owes the properties of the functions and characteristics of the Software as shown in the documentation and adapting the Service to the pertinent state of the art.

2.3 Superlist will continuously expand the Software and the Service through patches, updates and upgrades and make improvements if these (i) serve technical progress or (ii) appear necessary to prevent misuse. In addition, Superlist may modify the Software and/or the Service if (i) applicable law requires such modifications, (ii) the modifications are beneficial to the Customer, and (iii) the modifications are purely technical or procedural and do not materially affect the Customer. All other changes are subject to section 14 of these GTC.

2.4 Superlist does not owe an adaptation of the Service to the needs of the Customer. Upgrades such as additional features may be made available to the Customer by agreement and, if applicable, against separate remuneration.

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3. Registration, Sign-up

3.1 The usage of the Service requires the registration as well as the set-up of a user account (the “User Account”) by filling in the name, address, email address as well as a password and a username. During the initial registration by pressing [“Subscribe”] and having clicked the checkbox “I agree to Terms of Service” the Customer submits an offer on the conclusion of the agreement to use the Service according to the Terms of Service (the “Agreement”). If the Customer chooses a paid subscription the Customer will also be asked for payment information and the Customer will be informed that by clicking the button [“Subscribe to paid plan”] Superlist has the right to charge the fees via the Customer’s chosen payment option respectively. Otherwise, the registration is free of charge. Superlist will accept the Customer’s offer by sending the Customer a confirmation email or by providing the Service to the Customer.

3.2 When the Customer creates a User Account, the Customer must provide Superlist information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of these Terms of Service, which may result in immediate termination of the registration.

3.3 The Customer shall take all necessary steps to ensure that the password is at all times kept confidential. The Customer shall notify Superlist by contacting support@superlist.com without undue delay if there are signs of unauthorized use of the Customer’s User Account or any breach of security by a third party. The Customer is not authorized to grant the use of the User Account to any third party. The Customer is responsible for all activity that occurs on the Customer’s User Account.

3.4 The Customer may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than the Customer without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

AS A CONSUMER (as defined in clause 1.4 hereof) THE CUSTOMER HAS A RIGHT TO WITHDRAW FROM AN AGREEMENT REGARDING A PAID SUBSCRIPTION IN ACCORDANCE WITH THE STATUTORY PROVISIONS AS SHOWN BELOW.

4. Provision of the SaaS Software,Service Availability

4.1 The Software shall be hosted on a server infrastructure licensed by Superlist. Superlist shall make the Software available for use at the router outlet point of the computer center in which the server with the Software is housed (the "Handover Point"). The Customer is responsible for the internet connection between the Customer and the computer center and the hardware and software required therefore (e.g. PC, network connection).

4.2 The Customer must be aware that restrictions and/or impairments of the Services provided may arise that are beyond Superlist's control, such as actions of third parties not acting on behalf of Superlist, technical conditions beyond Superlist's control and force majeure.

4.3 Superlist will make daily backups and store them for a period of seven days.
4.4 The Software is offered subject to availability. For paid accounts, the average availability of the Software is 98.5 % on a monthly average. The decisive factor is the availability of the Software at the delivery point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to [6] hours per week and are usually carried out between [10:00] p.m. and [4:00] a.m. Central European Time, (ii) periods of unavailability due to mandatory unscheduled maintenance work necessary to eliminate malfunctions, (iii) periods of unavailability due to circumstances beyond the control of Superlist, in particular force majeure.

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5. Support services

5.1 The scale of the support services shall depend on the scope agreed between the parties.

5.2 Support requests must be reported in writing with a comprehensible description of the error symptoms, which, if possible, should be substantiated by written records, screenshots or other documentation proving the defects. Support requests are generally processed within Superlist’s normal business hours.

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6. Fees

6.1 For paid accounts, the Customer shall pay Superlist the agreed monthly or annual fee depending on the agreed number of Seats (“Seats” will be further defined on the Website).

6.2 The billing of a subscription is made on a pre-paid basis. The chosen payment source will be billed within [five (5)] bank working days (Berlin) of the beginning of the chosen subscription period and at every renewed period of subscription respectively according to the current price list. Details of the offered payment methods and conditions will be shown on the Website.

6.3 If the Customer wants to upgrade the Service by adding additional Seats, the Customer may do so without further notice by making appropriate settings in the User Account. The corresponding higher fee shall be billed accordingly for the remaining period of the Agreement’s term. The Customer may also decrease the number of Seats accordingly, in that case the corresponding lower fee will by charged with the beginning of the following billing cycle.

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7. Content

7.1 The Service allows the Customer to post, upload, save, share or otherwise make available text, images or other information regardless of the form of that content (“Content”). The Customer is responsible for the Content that the Customer posts to the Service, including its legality, reliability, and appropriateness.

7.2 By posting Content to the Service, the Customer grants Superlist the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service to the extent necessary to provide the Service (“License”). Apart from that, the Customer retains any and all of the Customer’s rights to any Content the Customer submits, posts or displays on or through the Service and the Customer is responsible for protecting those rights. The Customer agrees that the License includes the right for Superlist to make the Content available to other users of the Service, who may also use the Content subject to these Terms of Service.

7.3 The Customer represents and warrants that: (i) the Customer is the owner of the rights in and to the Content or the Customer has the right to use it and grant Superlist the rights under the License, and (ii) the posting of the Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.

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8. Content Restrictions

8.1 Superlist is not responsible for the content of Customers. The Customer expressly understands and agrees that the Customer is solely responsible for the Customer’s Content.

8.2 The Customer may not transmit any Content that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable Content include, but are not limited to, the following:

8.2.1 Unlawful or promoting unlawful activity.

8.2.2 Defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups.

8.2.3 Spam, machine – or randomly – generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling.

8.2.4 Containing or installing any viruses, worms, malware, trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third person.

8.2.5 Infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights.

8.2.6 Impersonating any person or entity including Superlist and its employees or representatives.

8.2.7 Violating the privacy of any third person.

8.2.8 False information and features.

8.3 Superlist reserves the right, but not the obligation, to, in its sole discretion, determine whether or not any Content is appropriate and complies with these GTC, refuse or remove this Content. Superlist can also limit or revoke the use of the Service if the Customer posts such objectionable Content. As Superlist cannot control all content posted by users and/or third parties on the Service, the Customer agrees to use the Service at the Customer’s own risk with regard to the following: The Customer understands that by using the Service the Customer may be exposed to content that the Customer may find offensive, indecent, incorrect or objectionable, and the Customer agrees that under no circumstances will Superlist be liable in any way for any content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the Customer’s use of any content, unless in case of a liability of Superlist pursuant to section 10 hereof.

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8.4 Content Backups

8.5 Although regular backups of Content are performed, Superlist does not guarantee there will be no loss or corruption of data.

8.6 The Customer shall make backup copies of data transmitted to the Service on the Customer’s own data carriers in order to ensure the reconstruction of the data and information in the event of loss.

8.7 Corrupt or invalid backup points may be caused by, without limitation, Content that is corrupted prior to being backed up or that changes during the time a backup is performed.

8.8 Superlist will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of Content. But the Customer acknowledges that Superlist has no liability related to the integrity of Content or the failure to successfully restore Content to a usable state, unless Superlist is responsible for the loss pursuant to section 4.3 in connection with section 10 hereof.

9. Indemnification

9.1 The Customer will indemnify, defend and hold harmless Superlist and its officers, directors, employees for any and all claims, suits, litigation, cause of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the Customer’s use of the Services; (ii) any breach by a Customer of any of the Customer’s obligations pursuant to section 8.2 hereof; (iii) any claim that the Customer’s Content caused damage to a third party. If the Customer is a Consumer, such obligations shall only apply if the Customer is responsible for the infringement resulting in any Losses.

9.2 In cases of an aforementioned enforcement of claims by third parties, the Customer will provide Superlist with all the information that is needed for the examination of the claim and for the defense against it. The Customer provides the information immediately, truthfully, and completely.
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10. Rights to use the Software

10.1 Subject to the payment of the agreed fees, Superlist shall grant the Customer the non-exclusive and non-transferable right to use the Software during the term of the Agreement in the agreed scope and in particular with the agreed storage space. The Customer shall use the Software as intended for the Customer’s own interests (albeit not of affiliated companies pursuant to Section 15 ff. Corporation Act or third parties).

10.2 An increase of the scope of use shall be possible pursuant to clause 6.3.

10.3 The Customer may only reproduce the Software in so far as this is covered by the intended use of the Software as per the current performance description. Such necessary reproduction includes, in case of the SaaS offer, loading the Software in the working memory on the provider's server, albeit not, even only, temporary installation or storage of the Software on data media (such as hard drives or suchlike) of the hardware deployed by the Customer.

10.4 The Customer is also not permitted to decompile, disassemble or reverse engineer the Software. The Customer has no claim to access to the source code or surrender of the source code for the Software.

10.5 The Software may contain Open Source Software components. Use of such components is subject to the corresponding terms of use of the Open Source Software components which are furnished and/or cited in conjunction with the Open Source Software components. In the event of contradictions or conflicting provisions in license terms for the Open Source Software and the provisions of these GTC, the license terms and conditions for the Open Source Software shall prevail.

11. Warranty

11.1 The Software provided by Superlist essentially corresponds to the product description. In the case of update, upgrade and new version deliveries, the claims for defects are limited to the innovations of the update, upgrade or new version deliveries compared to the previous version status.

11.2 In principle, the statutory provisions on warranty in rental agreements apply as well as §§ 327 et seq BGB. However, the application of § 536a (2) BGB (renters' right to remedy defects himself) is excluded.

11.3 In all other respects, the provisions of the law on service contracts (§§ 611 et seq. BGB) shall apply.

11.4 Superlist does not warrant that the Customer's business expectations associated with the use of the Software will be realized.

11.5 Superlist does not provide any additional warranty for the Software without express confirmation. 11.6 Any claims for damages shall be subject to the limitations set out in section 12.

12. Liability of Superlist for damages of the Customer

12.1 In the following cases, Superlist shall be liable for damages or reimbursement of fruitless expenses to an unlimited extent and in accordance with the statutory limitation periods:

12.1.1 in the event of intent and gross negligence on the part of Superlist,

12.1.2 in the event of personal injury for which Superlist is responsible,

12.1.3 for guarantees from Superlist and

12.1.4 in the event of claims under the German Product Liability Act (Produkthaftungsgesetz) against Superlist.

12.2 In cases of simple negligence, Superlist shall be liable in the event of a breach of material contractual obligations by Superlist or one of its legal representatives or agents for the contract-typical, foreseeable damages. A material contractual obligation is an obligation the fulfilment of which is a requirement for the proper performance of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer regularly can rely.

12.3 Without prejudice to sections 9.1 and 9.2 the liability of Superlist, its legal representatives and agents is excluded, i.e. in particular for force majeure (incl. strikes, natural disasters, pandemics) and for the simple negligent breach of non-material contractual obligations. Strict liability for initial defects (§ 536a (1) BGB) is excluded.

12.4 Superlist retains the right to object due to contributory negligence on the part of the Customer (e.g. due to a breach of the Customer's duty to cooperate).

12.5 Superlist shall only be liable for the loss of data up to the amount that would have been incurred to restore the data if it had been properly and regularly backed up.

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13. Limited liability for Services provided free of charge

Contrary to clauses 11 and 12 above, the following shall apply for Services provided by Superlist free of charge:

13.1 Superlist shall not be obligated to remedy a defect.

13.2 If the Customer has suffered harm from a defect, Superlist shall owe damages only if the defect was willfully concealed by Superlist. Otherwise, Superlist's liability shall be limited to intention and gross negligence.

14. Data protection and data security

14.1 Where necessary, the Customer and Superlist shall enter into an agreement which is subject to commissioned processing and technical organizational measures (TOM) in accordance with the template provided by Superlist.

14.2 Superlist takes appropriate technical and organizational measures to ensure data security. Personal data and business-critical data are stored in a secure environment (protection by means of firewall, password protection, encryptions, etc.).

15. Term and termination

15.1 The term of the Agreement shall be the chosen subscription period (“Initial Term”), which, will be renewed automatically for the same period (each a “Renewed Term”), unless terminated pursuant to these GTC. If the Customer is a Consumer, the Renewed Period shall, in deviation of the foregoing, in no event be longer than one month.

15.2 The Customer may unsubscribe from any subscription, and thereby terminate the Agreement to the period stated below, without giving reason by using a respective “Termination”-button in the User Account. An unpaid subscription may be terminated at any time with immediate effect, whereas a paid subscription may only be terminated with effect to the end of the ordered Initial Term or to the end of the respective Renewed Term.

15.3 If the Customer wants to delete the entire User Account, the Customer may do so by pressing the button “Delete Account”. If the Customer cancels the User Account and still has a valid paid subscription for the Service, any amount the Customer may already have paid for the subscription will not be refunded.

15.4 The right of either party to terminate the Agreement without notice for good cause and the right to terminate the Agreement in accordance with section 17 (extraordinary termination in the event of changes to the GTC) shall remain unaffected. Superlist shall be deemed to have a good cause to terminate the contract in particular if (i) the Customer fails to comply with any applicable legal provisions or (ii) the Customer fails to comply with any terms of these Terms of Service, in particular section 12.2, and, where reasonable, Superlist has given the Customer the opportunity to stop any misconduct but the Customer failed to do so.

15.5 With the end of the Agreement, the rights to use the Software pursuant to clause 7 shall automatically end without any declaration being required from Superlist. However, the Customer of SaaS Services shall have to the right to export the Customer’s data in csv format within seven (7) days from the end of the Agreement.

16. Changes to the GTC

Superlist reserves the right to change or amend these GTC. The planned changes or amendments shall be announced to the Customer by e-mail or in writing with a reasonable period of notice before the planned entry into force. If the Customer does not object to the amended GTC in text form (e.g. letter or e-mail) within six (6) weeks after receipt of the e-mail, the amended GTC shall be deemed accepted, unless the such changes affect any primary obligations of Superlist to provide the Service with the main functions as agreed between the parties. In the event of an objection or non-acceptance of changes to primary obligations as stated above, the original GTC shall continue to apply unchanged; in this case, however, Superlist shall be entitled to terminate the Agreement within the scope of an extraordinary right of termination with a notice period of thirty 30 days from receipt of the objection to the end of the current, as applicable, Initial Term or Renewed Term.
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17.  Links to Other Websites

17.1 The Service may contain links to third-party web sites or services that are not owned or controlled by Superlist.

17.2 Superlist has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. The Customer further acknowledges and agrees that Superlist shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.

17.3 Superlist strongly advises the Customer to read the terms and conditions and privacy policies of any third-party web sites or services that the Customer visits.
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18. Final provisions

18.1 The European Commission provides a platform for an online settlement of disputes which can be accessed under http://ec.europa.eu/consumers/odr/. We are neither obliged to take part in alternative dispute resolutions before a consumer dispute settlement comission or will do so voluntarily.

18.2 The Customer shall only be permitted to offset claims that are undisputed by Superlist or have been legally established.

18.3 The exclusive place of jurisdiction for all disputes arising from and in connection with this Agreement is Berlin if the Customer is a Business Customer. Place of performance is the registered office of Superlist.

18.4 The law of the Federal Republic of Germany shall apply exclusively. If the Customer is a Consumer and has his/her habitual residence in another county, the Customer, shall, however, continue to have the protection afforded to consumers by provisions that cannot be derogated from by agreement by virtue of the law applicable in the state of the Customer’s habitual residence.

18.5 Should a provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of §§ 305 ff. BGB (validity of general terms and conditions), an effective provision which comes closest to the economic intentions of the parties shall be deemed to have been agreed in place of the ineffective provision. The same shall apply in the event of a loophole. In the event of an invalid term, the legally permissible term shall apply.

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