1. Content and conclusion of contract
- No deviating regulations. The validity of any provisions which deviate from or go beyond the present provisions is excluded. This shall apply in particular to the general terms and conditions of the client, even if FC accepts an order from the client in which the latter refers to or attaches its general terms and conditions and FC does not expressly reject them at that time.
- Conclusion of the contract. The contract is concluded when the client and FC sign the order form.
- Web-based contract conclusion. In the case of a web-based contract, the following applies: the contract is concluded when the client receives an email from FC after completing the order process in which FC accepts the customer’s offer. §312i para. 1 No. 1, 2 and 3 of the German Civil Code (BGB) as well as §312i para. 1 clause 2 BGB, which provide for certain obligations of the entrepreneur in contracts in electronic business transactions, are hereby waived; this also applies if the contract is concluded in writing and changes are later agreed in electronic form. As far as the order form is mentioned in these terms, the entries from the order process are meant.
2. Services to be provided by FC
- How the bot protection service works and what it does. FC provides the client with its “Friendly Captcha” bot protection service (hereinafter “Friendly Captcha” or “service“). Friendly Captcha is a system that makes it more difficult for website visitors to use websites using automated programs and scripts (so-called “bots”). For this purpose, the contractor will provide the client with a program code (“widget“) for the client to integrate into the websites to be protected (“protected website“). When a visitor attempts to access the protected website, the widget will direct the visitor’s device to the contractor’s servers where the visitor will be asked to complete an arithmetic task (“puzzle” or “puzzle query“). If the service package includes the “Smart Difficulty Scaling” function, the complexity of the puzzle will depend on various factors, such as whether several puzzle queries have already been placed from the IP address range of the visitor’s device. The arithmetic task is solved on the visitor’s device using certain system resources and sends the result to the web server of the protected site (i.e. the client’s web server). This makes contact with the contractor’s server via an interface and receives an answer as to whether the puzzle has been correctly solved on the visitor’s device (“server services“). Depending on the validation result, the protected website can add rules to queries from the visitor and thus continue to process or reject them. Bot protection is therefore based on the assumption that it is unprofitable for a bot operator to automatically attempt to access up websites if increased computing power is required on its systems. Like other bot protection services, Friendly Captcha can make it difficult for bots to use the protected website, but it cannot prevent it.
- Excluded uses. The customer will not use Friendly Captcha in connection with or for the operation of critical infrastructures such as power plants, military or defense installations, medical devices or other devices, the failure or impairment of which would lead to unforeseeable economic or physical damage, including but not limited to critical infrastructures within the meaning of the European Directive 2008/114/EC.
- Availability. FC provides its server service at the connection point of the data centers used by FC (content delivery network) to the internet. The availability owed depends on the service package booked from the Service Level Agreement and can be accessed at www.firendlycaptcha.com/legal.
- Setup. The client is responsible for setting up Friendly Captcha on the protected website (e.g. widget integration, query and handling of puzzle validation). FC is not required to adapt Friendly Captcha, in particular make programming changes to meet client wishes.
- Support. FC does not provide any support for the use of Friendly Captcha beyond the statutory claims for defects (e.g. no support or advice on integration), unless this is separately agreed and remunerated.
- Documentation. Unless otherwise agreed, FC only owes the provision of installation instructions as online help or a PDF user manual in English at www.friendlycaptcha.com.
- “Beta-testing.” Insofar as FC provides the client with individual functions at no charge as part of “beta-testing” and identifies them accordingly, the following applies: The functions provided are still in the development and test stage and may contain errors. The availability and integrity of client data for these functions is not guaranteed. The services are provided to the client solely for the purpose of testing them for errors and giving FC feedback on errors and suggestions for improvement. The client should not use these functions for productive use. FC reserves the right to change the functions or to terminate the provision at any time.
- Service performance changes. The client is aware that Friendly Captcha is a standard service that is provided centrally and that a large number of clients access a centrally managed system. The economies of scale resulting from such a model can only be used if it is a uniform service that can also be further developed.The parties therefore agree:FC may change the service (including the system requirements) for an important reason. Such a reason exists in particular if the change is necessary due to (i) a necessary adjustment to a new legal situation or case law, (ii) the changed technical framework (new browser versions or technical standards), or (iii) for the protection of the system security and effectiveness of bot detection (e.g. when new attack tactics or bypass attempts by bot operators emerge). In addition, FC can change the service appropriately as part of a further development of the service (e.g. deactivation of old functions that have largely been replaced by new ones). FC will inform the client by email about major and potentially adverse changes in good time, usually four weeks before they come into effect. The approval of the client to such a change shall be deemed granted if it does not object to the change in writing or by email before the expected effective date of the change. FC will refer again to this legal consequence while announcing the change. Should this change seriously disturb the contractual balance between the parties at the expense of the client, then the change will not take place.
3. Remuneration and default in payment
- Fee structure. The client owes FC the remuneration agreed in the order form for the use of the service during the contract period. The remuneration can consist of a one-time setup fee, a fixed monthly basic fee, and a monthly usage fee that depends on the usage units (e.g. number of maximum requests per month).
- Incurrence of the basic and usage fees. The basic and usage fees are due in advance at the start of the contract for the basic term (see section 9.2) and thereafter at the start of each extension term (see section 9.2) for the extension term, unless otherwise agreed in the order form. An increase in the booked usage units (or change to a higher service package) is possible at any time; a reduction (or change to a lower service package) is only possible with effect at the end of the basic or an extension period; exceptions may be made by request. In the event of an increase in the booked usage units within the basic or an extension period, the additional fees will be charged on a pro-rata basis. For the additional usage units, the prices apply in accordance with the FC price list valid when the additional usage units were ordered.
- Invoicing. FC will invoice the fees in advance at the beginning of the contract and then at the beginning of each renewal period. The invoice amount is payable within 30 days. Invoicing takes place online by placing the invoice as a downloadable and printable PDF file in a client menu or by sending it by e-mail (“online invoice“).
- Payment methods. The invoice amounts are paid by bank transfer (for Professional Plans with annual contract term only) or credit card.
- License start. The use of the service is, with the exception of a free test phase, only permitted and possible after FC has received payment for its invoice.
- Net prices. All prices are exclusive of the statutory value-added tax.
- Late payments. If the client is in arrears for two calendar months with the payment of the total remuneration or a not inconsiderable part of the remuneration; or in a period that extends over more than two months, with the payment of the remuneration in the amount of double the monthly basic fee plus usage fee, FC is, after a corresponding warning sent by email, entitled to block access to the service or to terminate the contract extraordinarily.
4. Client duties and obligations, blocking
- Lawful use. The client will only use the service within the framework of the contractual and legal provisions and will not violate any third-party rights when using it. When using the service, the client will in particular observe the regulations on data protection, fair competition law, and copyright law and will not send any damaged or illegal data to the server service or misuse the service in any other way. The client will address the server services exclusively through the widgets provided or in accordance with the technical documentation provided by FC.
- System requirements. Requirements for the system environment of the protected website or that of the visitors are found in the technical description at www.friendlycaptcha.com. The client agrees to familiarize itself with these requirements in advance.
- Blocking. FC is entitled to temporarily block the use of the service by the customer if FC has legitimate reason to believe that the use of the service by the customer affects the system security of the service (e.g. DDoS attacks, etc.) or is in breach of the contractual provisions. In this case, FC will inform the client immediately by email and work with it to remedy the concern in a timely manner.
5. Client data and data protection, references
- Client data. FC will treat the data resulting from the use of the service (e.g. number and times of the puzzle queries) confidentially and use it exclusively for the provision and improvement of the service.
- Third-party data processing. Insofar as client data is personal data within the meaning of Art. 4 No. 1 GDPR and the GDPR applies, the following applies: FC will process said data for the client as a third-party data processor (Art. 4 No. 8 GDPR), where the client will remain the data controller responsible for compliance with data protection regulations within the meaning of Art. 4 No. 7 GDPR. The parties will regulate the details in a separate third-party data processing agreement according to Art. 28 GDPR.
- References. FC is entitled to name the client as a reference with use of the client’s name, company, brands, and logos (e.g. on the FC website).
6. Claims for defects
- Freedom from defects, suitability. FC will provide the service free of material and legal defects and will keep it in a condition suitable for use as agreed for the duration of the agreement.
- Elimination of defects. The client shall immediately report any defects in the service to FC and explain the particular circumstances which led to their occurring. FC shall remedy said defects within a reasonable period. FC shall be entitled to show the client temporary workaround options and to remedy the defect at a later moment by means of a software adaptation, provided that this reasonable to the client.
- Initial impossibility. The strict liability for initial defects in accordance with §536a para. 1, Alt. 1 BGB is excluded.
- Failure to provide. Any right to terminate the agreement due to FC’s failure to grant access to the service per §543 para. 2 clause 1 no. 1 BGB is excluded, unless the provision proves to be a permanent failure.
- Statute of limitations. Claims for defects shall be forfeited if not asserted within 12 months, unless the client is a consumer. This does not apply in the case of claims for damages for defects insofar as FC is legally liable (see §8.1 clause 2).
- Free provision. Insofar as FC provides services free of charge (e.g. during a test phase or beta phase), the provisions on the loan take precedence, i.e. in particular FC’s liability for defects per §600 BGB is limited to damages caused by its fraudulent intent and any liability according to §599 BGB is limited to damages caused with intent or out of gross negligence and a shortened limitation period of six months in accordance with §606 BGB shall apply.
- Legal regulation. Apart from that, the applicable statutory rules for liability for defects shall apply.
7. Indemnification obligations
- Obligation to indemnify. If third parties (including public bodies) assert claims or legal violations against the contractor based on the client’s breach of its contractual obligations, in particular by using the service in such a way that violates data protection, copyright, fair competition, or other laws, the following applies: the client will immediately indemnify and hold FC harmless from said claims, offer FC adequate support in mounting a legal defense, and cover the costs of the same. This does not apply if the client is a consumer.
- Prerequisites for the indemnification obligation. The prerequisite for this obligation per §7.1 to apply is that FC will notify the client immediately in writing of any such claims, does not make any acknowledgments or equivalent declarations concerning the same, and will enable the client, as far as possible, to conduct all judicial and extrajudicial negotiations concerning the same at its expense.
8. Limitation of liability
- Exclusion of liability in certain cases. FC is liable for damage insofar as this a) was caused intentionally or out of its gross negligence; or b) were caused with minor negligence, but result from either a fundamental violation of duty which jeopardizes the fulfilment of the purpose of this agreement or from the violation of obligations which are essential requisites for the proper execution of this agreement and the fulfilment of which the client must be able to rely on.
Any other liability on FC’s part shall be excluded regardless of its alleged legal basis, except where FC is legally liable for damages, including, but not limited to cases of injuries caused to the life, limb or health of a person, the undertaking of an express warranty, the fraudulent concealment of a defect, or as provided by the German Product Liability Law (Produkthaftungsgesetz). Guarantees by FC will be made in writing only and shall in case of doubt only be interpreted as such if they are referred to as “Guarantees.”
- Limitation on damages. In the case of a valid claim under §8.1 clause 1 lit. b), FC’s liability is limited to the typically foreseeable damage for a contract of this type.
- Amount of typically foreseeable damage. In the cases covered by §8.1 clause 1 lit. b), the parties agree that the “typically foreseeable damage” for all claims incurred in a calendar year shall be limited to a maximum amount corresponding to the net remuneration received or anticipated by FC for its software-as-a-service, whichever is higher.
- Free trial. FC’s liability is limited to damage caused with intent or out of gross negligence during a free trial period.
- Employees and agents of FC. The limitations of liability in §§8.1 to 8.4 also apply to claims against employees and agents of FC.
9. Duration and termination
- Free trial. If the service package booked by the client provides for a free test phase, the following applies for the term of the contract: the test phase begins upon conclusion of the contract. There will be no setup, basic, or usage fees charged during the test phase. At the end of the test phase, the basic term according to §9.2 shall begin automatically, unless the customer terminates the contract at the end of the test phase.
- Term. Depending on the client’s order, the contract is concluded for a certain term (“basic term“) and is then automatically extended by the same term (“extension term”) if the contract is not terminated by one party with four (4) weeks’ notice ( “notice period“) prior to the end of the current term. Unless otherwise agreed, the basic term and the extension term are each twelve (12) months. The right to extraordinary termination for cause remains unaffected. If the number of usage units needs to be reduced, §3.2 applies.
- Written form. The termination notice shall be in writing or text form.
10. Amendment of these terms
- FC has the right to change these general terms and conditions or to add regulations for the use of any newly introduced additional services or functions of Friendly Captcha. The client will be notified of such changes and additions no later than six weeks prior to the planned effective date. The client’s consent to the change in terms shall be deemed to have been given if the client does not object to the change in writing or in text form within six weeks after receiving such notice. In such notice, FC will separately point out the client’s option to object, the deadline for making such an objection, the formal requirement for the same, and the significance or consequence of failing to object.
11. Final provisions
- Declarations and notices. FC is entitled to send all declarations and notices relating to the contractual relationship to the email address provided by the client when it registered. The client will check these details regularly and inform FC about any changes in good time.
- Order form. The order form is a part of the agreement. In the event of a contradiction between these terms and the order form, the provisions on the order form take precedence.
- Offsets. The client shall only be entitled to offset payments with other claims other than its contractual counterclaims from the respectively affected legal transaction or to enforce a lien, if such claim has been established as final and absolute or is undisputed by FC.
- Written form. Changes to this agreement must be made in writing or in text form. This also applies for waiving of the requirement for the written form.
- Applicable law. German law applies exclusively to this contract and all disputes related to it (both contractual and tort), excluding the UN sales law.
- Place of jurisdiction. If the client is a merchant or a legal entity/special fund under public law, the exclusive place of jurisdiction shall be that of FC’s registered office. FC remains entitled to seek redress at the client’s registered office.
- Severability. If any individual provisions of this agreement is or shall become invalid, this shall not affect the validity of the remaining provisions. In this case, the invalid provision shall be replaced by another, valid provision that corresponds to the originally intended purpose and the economic result the parties would have agreed upon in good faith. The same shall apply in the event of any provision unintentionally omitted (loophole).
- Different language versions. In case of contradictions between different language versions of the Friendly Captcha Terms of Service or any other document of legal relevance, the German version shall prevail.
This policy is effective as of March 12, 2021.