1. Content and conclusion of the Agreement

1. Parties and subject matter of the Agreement. These Terms of Use govern the legal relationship between Friendly Captcha GmbH, Am Anger 3-5, 82237 Wörthsee/Germany (“FC”) and its customer (“Customer”) in relation to the provision of the “Friendly Captcha” bot protection service. FC does not provide its services to consumers in the for-fee service packages but solely for the purposes of the Customer acting in exercise of their trade, business or profession.
2. No deviating provisions. Provisions that deviate from or go beyond these provisions are invalid. This applies in particular to the Customer’s General Terms and Conditions, even if FC accepts an order from the Customer in which the Customer refers to its General Terms and Conditions and/or the Customer’s General Terms and Conditions are appended to the order and FC does not object to them.
3. Conclusion of the Agreement. The Agreement is deemed concluded when the Customer and FC sign an order form. 
4. Web-based conclusion of the Agreement. If the Agreement is concluded online, the following shall apply: The Agreement is concluded when, after completion of the order process, the Customer receives an e-mail from FC in which FC accepts the Customer’s offer. Article 312i para. 1 nos. 1, 2 and 3 BGB [German Civil Code] and Article 312i para. 1 sentence 2 BGB, which lay down provisions concerning certain obligations of the trader with respect to contracts relating to electronic business transactions, are hereby waived; this also applies if the Agreement is concluded in writing and amendments are subsequently agreed in electronic form. Insofar as these Terms of Use refer to the order form, this means the input from the ordering process.

2. Services provided by FC

1. Functions and service provision of the bot protection service. FC shall provide the Customer with its “Friendly Captcha” bot protection service for its own use (hereinafter referred to as “Friendly Captcha” or “Service”). Friendly Captcha is a system designed to make it more difficult for automated programs and scripts (“Bots”) to use websites. For this purpose, FC provides the Customer with program code (“Protection Software”) which the Customer integrates into the websites to be protected (“Protected Website”). The Protection Software ensures that the visitor’s end device connects to FC’s servers when visiting the Protected Website and receives a calculation task request from FC (“Puzzle” or “Puzzle Request”). If the service package includes the “Smart Difficulty Scaling” function, the complexity of the Puzzle depends on the risk value determined. For this purpose, connection data, environment data, and interaction data is captured on the user’s end device. It is then sent to the Contractor’s server where the risk value is determined. The visitor’s end device solves the Puzzle, using certain system resources, and sends the solution to the web server of the Protected Website (i.e., the Customer’s web server). This server contacts the FC server via an interface and receives a response stating whether the Puzzle has been solved correctly by the end device (this puzzle validation and the provision of Puzzles are hereinafter referred to as “Server Services”). Depending on the validation result, the Protected Website can assign rules to requests from the visitor and thus, for example, continue to process them or reject them. The bot protection is therefore based on the assumption that it is unprofitable for a bot operator to automatically visit websites if its systems need to use increased computing power for this. Like other bot protection services, Friendly Captcha can therefore make it difficult for bots to use the Protected Website but it cannot rule it out. 
2. Right of use. FC provides the Customer with the Friendly Captcha Server Services to protect its websites. The usage authorization is valid for the term of this Agreement. The usage authorization applies only to the site key that FC provides to the Customer and to websites owned by the Customer. If the Customer wishes to use Friendly Captcha on third-party websites (e.g., affiliated companies, customers of the Customer), they must obtain prior consent from FC. With respect to the provided Protection Software, FC grants the Customer the non-exclusive right, limited to the term of this Agreement, to use it in connection with the Server Services and the Friendly Captcha Service. This includes the right to temporarily store (e.g., in the main memory or browser cache) and execute program code (e.g., JavaScript) on the user’s computer to the extent required for this purpose. The right of use is limited to the maximum number of Puzzle Requests booked by the Customer per billing period, as per the order form. One Puzzle Request is defined as the provision and validation of one Puzzle. If just a Puzzle Request is made but a validation request is not made by the Protected Website, this also counts as one Puzzle Request. Unless rights are expressly granted in this Agreement, all rights to Friendly Captcha shall remain with FC. The granted rights of use do not include any processing rights and no rights related to decompiling/reverse engineering, unless the Customer is entitled to these rights by law. 
3. Excluded uses. The Customer shall not use Friendly Captcha in connection with or for the operation of critical infrastructure, such as power stations, military or defense facilities, medical equipment or other equipment, the failure or impairment of which would lead to unforeseeable economic or physical damage, including but not limited to critical infrastructure as defined in the European Council Directive 2008/114/EC.
4. Availability. FC provides its Server Service at the point of connection of the data centers used by FC (content delivery network) to the internet. Depending on the service package booked, the availability to be provided can be viewed in the Service Level Agreement at www.friendlycaptcha.com/legal. 
5. Set-up. The Customer sets up Friendly Captcha on the pages of the Protected Website (e.g., integration, requesting and handling puzzle validation) themselves. This Agreement does not provide for an obligation to make adaptations to Friendly Captcha, in particular reprogramming it in line with the Customer’s wishes. 
6. Support. FC does not provide any support for the use of Friendly Captcha beyond the statutory claims for defects (e.g., no assistance or advice on integration), unless this is agreed and remunerated separately. 
7. Documentation. Unless otherwise agreed, FC is only obliged to provide installation instructions in the form of an online help or PDF user manual in English at www.friendlycaptcha.com. 
8. “Beta” functions. Insofar as FC provides individual functions to the Customer free of charge as “beta” functions and denotes them as such, the following shall apply. The provided functions are still in the development and test phase and may contain errors. The availability and integrity of the customer data are not ensured with these functions. The services are provided to the Customer solely for the purpose of testing them for errors, giving FC feedback on errors, and making suggestions for improvement. The Customer is not to use these functions for live use. FC reserves the right to change the functions at any time or to terminate the provision. 
9. Modifications to services. The Customer is aware that Friendly Captcha is a standard service that is centrally provided and that a large number of customers have access to a centrally managed system. The economies of scale resulting from a model such as this can only be exploited if it is a standardized service that can be developed further. The parties therefore agree that FC may modify the Service (including the system requirements) for good reason. Such a reason is, in particular, when the modification is necessary due to (i) a necessary adaptation in line with a new legal basis or court decision, (ii) the changed technical framework (new browser versions or technical standards), or (iii) the safeguarding of system security and the effectiveness of bot detection (e.g., in the event of the emergence of new attack tactics or evasion attempts by bot operators). In addition, FC may modify the Service appropriately as part of the further development of the Service (e.g., deactivation of old functions which have been largely replaced by new ones). FC shall notify the Customer by e-mail of modifications that are more than just insignificantly detrimental to the Customer in good time, usually four weeks before they come into force. The Customer’s consent to a modification such as this shall be deemed to have been granted if the Customer does not object to the modification in writing or by e-mail by the date of the modification. When announcing the modification, FC shall once again draw special attention to this legal consequence. If the modification would affect the contractual balance between the parties to the expense of the Customer to more than an insignificant extent, the modification shall not be made.

3. Remuneration and payment

1. Fee structure. The Customer shall owe FC the remuneration agreed in the order form for the use of the Service during the term of the Agreement. The remuneration may comprise a once-only set-up fee, a fixed monthly basic fee, and a monthly usage fee that is based on the units used (e.g., number of maximum requests per month). 
2. Determination of the basic fee and usage fee. The basic fee and usage fee are due in full and in advance at the beginning of the Agreement for the basic period (see Point 9.2) and thereafter at the beginning of each renewal period (see Point 9.2) for the renewal period, unless otherwise agreed on the order form. An increase in the booked usage units (or switching to a higher service package) is possible at any time; a reduction (or switching to a lower service package) is only possible with effect at the end of the basic period or a renewal period, or before this with the consent of FC. In the event of an increase in the booked usage units within the basic period or renewal period, the additional fees will be invoiced proportionately. The prices as per the FC price list valid when the additional usage units are ordered shall apply for the additional usage units.
3. Invoicing. FC shall invoice the fees in advance at the start of the Agreement and, afterwards, at the beginning of each renewal period. The invoice amount must be paid within 30 days. Invoicing is performed online by providing the invoice as a downloadable and printable PDF file in a customer menu or by sending it by e-mail (“Online Invoice”). 
4. Methods of payment. Payment of the invoice amounts is made by bank transfer (for Professional Plans with an annual contractual period only) or by credit card. 
5. Start of usage. Using the service – except in the context of a free trial phase – is only permitted and possible after FC has received the invoice amount.
6. Net prices. The applicable statutory VAT must be added to all the stated prices. 
7. Late payment. If the Customer defaults for two calendar months on payment of the remuneration or a not insignificant part of the remuneration, or, during a period of more than two months, defaults on payment of the remuneration to an amount that equals at least twice the monthly basic fee plus usage fee, FC is entitled to block access to the Service or to terminate the Agreement extraordinarily after a corresponding warning by e-mail. 

4. Duties and obligations of the Customer, blocking

1. Lawful use. The Customer shall use the Service only within the framework of the contractual and legal provisions and shall not infringe any rights of third parties during this use. When using the Service, the Customer shall in particular comply with the regulations on data protection, competition law, and copyright law and shall not send any harmful or illegal data to the Server Service or misuse the Service in any other way. The Customer shall access the Server Services only via the Protection Software provided and in line with the technical documentation provided by FC. The Customer must name FC appropriately by stating the name of FC and providing a link to the official FC website wherever FC is used. The Customer may do this in any suitable form, but not in a form that gives the impression that FC endorses the Customer or the Customer’s usage. All trademarks and rights to names shall remain the sole property of FC. 
2. System requirements. Requirements for the system environment of the Protected Website or for the visitor are provided in the technical description at www.friendlycaptcha.com. The Customer shall familiarize themselves with the requirements in advance. 
3. Blocking. FC is entitled to temporarily block the use of the Service by the Customer if FC has a legitimate reason to assume that the use of the Service by the Customer impairs the system security of the Service (e.g., DDoS attacks, etc.) or infringes the contractual provisions. In the event of a block, FC will notify the Customer of this by e-mail immediately and work with the Customer to promptly lift the block. 

5. Customer data and data privacy, references

1. Customer data. FC will treat the data generated by using the Service (e.g., number and times of the Puzzle Requests) confidentially and use it solely for the provision and improvement of the Service.
2. Data processing. Insofar as the customer data is personal data as per Art. 4 (1) GDPR and the GDPR is valid, the following shall apply: FC processes the customer data for the Customer as the processor (Art. 4 (8) GDPR), whereby the Customer is the controller in relation to FC as per Art. 4 (7) GDPR. The parties shall govern the details in a data processing agreement as per Art. 28 GDPR. 
3. Privacy policy. It is the responsibility of the Customer to inform the data subjects (i.e., the website visitors) about the use of Friendly Captcha in the privacy policy of the Protected Website and, if deemed necessary, to obtain user consent. Insofar as FC provides a sample privacy policy or explanations on the subject of data protection, they are for the purpose of describing the service and the sample is purely an example. The Customer is responsible for the content of the privacy policy. FC does not provide any legal advice and does not guarantee the legal compliance of the sample. The Customer must check the content of the sample themselves and adjust it if necessary, or have this performed by a competent third party.
4. References. FC is entitled to name the Customer as a reference using the Customer’s name, company, trademarks and logos (e.g., on the FC website). 

6. Claims for defects

1. Defect-free state and condition. FC shall provide the Service free of material defects and defects of title and shall maintain it in a condition suitable for use in line with the Agreement for the term of the Agreement. 
2. Rectification of defects. Defects of the Service are to be reported to FC by the Customer immediately and the Customer is to explain the exact circumstances of the occurrence. FC shall rectify the defect within a reasonable period of time. FC is entitled to temporarily show the Customer options for circumventing the error and to rectify the defect later by adapting the Service, insofar as this is reasonable for the Customer.  
3. Initial impossibility. The liability for initial defects regardless of fault as per Article 536a paragraph 1 alternative 1 of the German Civil Code is ruled out. 
4. Refusal to grant use. The Customer’s right of termination for refusal to grant use as per Article 543 paragraph 2 sentence 1 (1) BGB is ruled out, unless the provision of the service is to be regarded as permanently failed.
5. Period of limitations. Claims for defects become statute-barred within 12 months, unless the Customer is a consumer. This does not apply in the event of claims for damages related to claims for defects, insofar as FC is legally liable (see Point 8.1, sentence 2).
6. Provision free of charge. Insofar as FC provides services free of charge (e.g., during a trial period or beta phase), the provisions concerning the gratuitous lending shall prevail, i.e., in particular, FC’s liability for defects is limited to fraudulent acts as per Article 600 BGB, FC’s liability as per Article 599 BGB is limited to intent and gross negligence, and the shortened limitation period of six months as per Article 606 BGB applies.
7. Statutory provisions. The statutory provisions related to liability for defects shall apply in all other cases.

7. Release obligations

1. Obligation to release. If third parties (including public authorities) make claims against FC, including in relation to infringements of the law, that are based on the assertion that the Customer has breached their contractual obligations, in particular has used the Service in a manner that is contrary to data protection, copyright or competition law or in any other unlawful manner, the following shall apply: The Customer shall immediately release FC from these claims, provide FC with adequate support for the legal defense, and release FC from the costs of the legal defense. The obligation to release does not apply if the Customer is a consumer. 
2. Requirements for the obligation to release. The requirements for the obligation to release as per Point 7.1. is that FC shall immediately inform the Customer in writing of asserted claims, shall not make any acknowledgements or equivalent declarations, and shall enable the Customer – as far as possible – to conduct all court hearings and out-of-court negotiations concerning the claims at the Customer’s expense.

8. Limitation of liability

1. Exclusion in certain cases. FC is liable for damages, insofar as these
   a) were caused by FC intentionally or due to gross negligence on the part FC, or 
   b) were caused due to slight negligence on the part of FC and are due to material breaches of duty that jeopardize the achievement of the purpose of this Agreement or are due to the breach of duties whose fulfilment makes the proper execution of this Agreement possible at all and whose compliance the Customer should be able to rely on.
   In all other cases, the liability of FC is excluded irrespective of its legal basis, unless FC is obligatorily legally liable, in particular for injury to life, limb or health of a person, for the assumption of an express guarantee, for the fraudulent concealment of a defect or as per the German Act on Liability for Defective Products [ProdHaftG]. Guarantees granted by FC are only given in writing or in text form and, in the case of doubt, are only to be interpreted as such if they are named a “guarantee”.
2. Limitation according to amount. In the case of Point 8.1, sentence 1 (b), FC is only liable to a limited extent for the damages that are typically foreseeable for an agreement of this kind. 
3. Amount of the typically foreseeable damages. For the cases pertaining to Point 8.1, sentence 1 (b), the parties hereby determine that the “typically foreseeable damages” for all cases of damages occurring in a calendar year shall not exceed the net remuneration of FC’s Software as a Service services as provided or incurred for that calendar year (whichever amount is the higher) as per the Agreement.
4. Free trial period. FC’s liability is limited to intent and gross negligence for damages caused during a free trial period.
5. FC employees and agents. The limitations of liability set out in Points 8.1 to 8.4 also apply in the event of claims against FC employees and agents.

9. Term of the Agreement and termination

1. Free trial period. If the service package booked by the Customer provides for a free trial period, the following applies for the term of the Agreement: Firstly, the trial period begins with the conclusion of the Agreement. No set-up, basic or usage fees are incurred for the trial period. Once the trial period has expired, the basic period as per Point 9.2 automatically begins, unless the Customer terminates the Agreement as at the end of the trial period.  
2. Term of the Agreement. The Agreement is concluded for a specific term (“Basic Period”) in line with the Customer’s order and is then automatically renewed for the same period (“Renewal Period”) if the Agreement has not been terminated by one of the parties as at the end of the Basic Period or a Renewal Period with a period of notice of four (4) weeks (“Notice Period”). Unless otherwise agreed, the Basic Period and the Renewal Period shall each be twelve (12) months. The right to terminate for good cause is not affected. Point 3.2 applies to a reduction of the usage units.
3. Form. Termination must be made in writing or in text form.

10. Amendments to the Terms of Use

1. FC has the right to amend these General Terms and Conditions or to supplement them with provisions for the use of any newly introduced additional services or functions of Friendly Captcha. The amendments and supplements to the General Terms and Conditions shall be announced to the Customer no later than six weeks before they are scheduled to become effective. The Customer’s consent to the amendment of the General Terms and Conditions shall be deemed to have been granted if the Customer does not object to the amendment in writing or in text form within a period of six weeks, beginning on the day following the announcement of the amendment. In the announcement of the amendment, FC shall separately refer to the possibility of objection, the deadline for the objection, the requirement for the objection to be in text form, and the significance or consequences of failure to object.

11. Final provisions

1. Declarations and notices. FC is entitled to send all declarations and notices relating to the contractual relationship to the e-mail address provided by the Customer at the time of registration. The Customer will check their mails regularly and notify FC of any changes in good time.
2. Order form. The order form is a component part of this Agreement. In the event of inconsistencies between these General Terms and Conditions and the order form, the terms and conditions of the order form shall prevail.
3. Offsetting. The Customer may only offset against or assert a right of retention with respect to claims other than their contractual counter claims from the respective legal transaction concerned if this claim is undisputed by FC or has been legally established.
4. Written form. Amendments to this Agreement must be made in writing or in text form. This also applies to the exclusion of the requirement for the written form. 
5. Applicable law. This Agreement and all related disputes (both contractual and tortious) are governed solely by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. 
6. Place of jurisdiction. If the Customer is a merchant, a legal entity under public law or a public-law special fund, the sole place of jurisdiction is that of FC. FC is entitled to sue at the Customer’s registered office.
7. Severability clause. If any individual provisions in this Agreement are, or become, invalid, the validity of the rest of the provisions shall remain unaffected. The invalid provision shall be replaced by the provision that the parties would have agreed on in good faith, taking economic factors into consideration, in line with the original intended purpose. The same applies in the event of an omission in the Agreement. 
8. Different language versions. In the event of any inconsistencies between different language versions of the Terms of Use of Friendly Captcha or of other legally relevant documents, the German version shall prevail.

This policy is effective as of April 24, 2024.