Terms of Service — omul (hosted service)

1 Provider, subject matter and scope

1.1 Provider

The provider is Binary Please UG (haftungsbeschränkt), c/o Factory Works GmbH, Rheinsberger Straße 76/77, 10115 Berlin, Germany, registered in the commercial register of the Amtsgericht Charlottenburg under HRB 225876 B, VAT identification number DE341410687 ("we" or "us"). The full provider details are in the legal disclosure.

1.2 What these terms govern — and what they do not

1.2.1 These Terms of Service govern the use of the service we operate at app.omul.app and of the website omul.app (together, the "Service"). The Service allows presentations with interactive elements to be built and an audience to take part live by joining with a six-digit code.

1.2.2 They do not govern the software itself. The "omul" software is open source and available either under the GNU Affero General Public License, version 3 (AGPL-3.0-only) or under a commercial licence for a fee. Anyone who downloads, modifies, redistributes or self-hosts the software does so solely under the terms of the applicable licence; these Terms of Service do not apply to that, and they neither restrict nor extend the licence rights. Conversely, the licence confers no entitlement to use our hosted Service.

1.2.3 If you run the software yourself, you are solely responsible for that operation. We owe you nothing in respect of it, in particular no maintenance, no availability and no support.

1.3 Who may use the Service

1.3.1 The Service is open to consumers within the meaning of Section 13 BGB and to businesses within the meaning of Section 14 BGB. Where these terms make a provision for only one of the two groups, they say so expressly.

1.3.2 You must be at least 16 years old to create an account. Younger persons may take part in a session without an account where the presenting person invites them to; the presenting person is responsible for the permissibility of that participation and for obtaining any consents required (item 5.3).

1.3.3 If you act on behalf of an organisation, you warrant that you are authorised to represent it. In that case the organisation becomes the contracting party.

1.4 Incorporation and conflicting terms

1.4.1 These Terms of Service become part of the contract when you agree to them on registering or on first using the Service. They are available at any time at omul.app/en/terms and can be saved and printed from there in reproducible form. We do not store the contract text for you; please keep a copy yourself.

1.4.2 Differing, conflicting or supplementary standard terms of a user do not become part of the contract unless we expressly agree to their application in text form in the individual case. This also applies where we render performance without reservation in the knowledge of conflicting terms.

1.5 Language versions

These Terms of Service are provided in a German and an English version; the two are substantively identical. The contract language is German. In the event of a discrepancy between the versions, the German version prevails where the contract was concluded in German; where it was concluded in English, the English version prevails. In relation to consumers, item 13.5 applies.

2 Formation of the contract

2.1 Use without an account

You can create a presentation without registering. The contract of use then comes into being when you create the presentation. In doing so you receive a random edit token, which is stored solely in your browser. We do not know that token and cannot restore it; only a cryptographic hash of it is held on the server. If you lose the token — for instance by deleting your browser's website data or switching device — you permanently lose the ability to edit or delete the presentation concerned. We point this out expressly; no recovery route exists and none is owed. Anyone who wants to avoid this creates an account (item 2.2).

2.2 Use with an account

By registering you submit an offer to conclude a contract of use. The contract comes into being when we create the account and open access to you. Registration requires a valid e-mail address, a name of your choosing and a password. There is no entitlement to registration.

2.3 Taking part in a session

If you join a session with a six-digit code or a QR code, a contract of use free of charge comes into being between you and us in respect of that participation. You need no account for it and provide no e-mail address. The presenting person is responsible for the content of the session, for the questions asked and for the handling of your contributions (item 5.3 and item 2.3 of our privacy policy).

2.4 Electronic commerce

Before you submit your declaration we provide you with the information required by Article 246c of the Introductory Act to the German Civil Code (EGBGB), give you appropriate, effective and accessible technical means with which to identify and correct input errors before submitting, and confirm receipt of your declaration electronically without undue delay (Section 312i (1) sentence 1 nos. 1 to 3 BGB). You can retrieve these Terms of Service on conclusion of the contract and store them in reproducible form (Section 312i (1) sentence 2 BGB). These duties are not excluded in relation to consumers; in relation to businesses, the statutory option under Section 312i (2) sentence 2 BGB remains available where we expressly make use of it in the individual case.

2.5 No right of withdrawal

Consumers have no right of withdrawal. Sections 312b to 312h BGB, and with them the right of withdrawal under Section 312g BGB, apply under Section 312 (1) BGB only to consumer contracts under which the consumer undertakes to pay a price. The Service is free of charge; no payment obligation arises from these Terms of Service.

The extension in Section 312 (1a) BGB to contracts under which the consumer provides personal data instead of a price does not apply either: we process the data you provide exclusively in order to perform our contractual obligation and to meet legal requirements imposed on us, and use it for no other purpose — in particular not for advertising, not to build profiles and not to pass it to third parties for their purposes. For the same reason Sections 327 et seq. BGB on contracts for digital products do not apply (Section 327 (1) and (3) BGB).

Different rules will apply as soon as we offer paid plans; those will get their own terms with withdrawal instructions, a model withdrawal form, an order button under Section 312j (3) BGB and a cancellation button under Section 312k BGB.

3 Our services

3.1 Subject matter

We make the Service available to you over the internet for the duration of the contract. The scope of functions follows from the current description on omul.app and from the actual state of the Service. The point of delivery is the router output of the data centre we use; we are not responsible for the connection between that point and your systems.

3.2 No charge

3.2.1 The Service is currently provided entirely free of charge. No payment obligation arises from these Terms of Service. We request no payment details and bill nothing.

3.2.2 We reserve the right to introduce paid plans in future. A paid plan never comes about merely because you keep using the Service. It always requires a separate contract to which you expressly agree and for which separate terms apply. What is available free of charge today will not become chargeable for you retroactively.

3.3 Availability

We operate the Service according to the recognised rules of technology and endeavour to keep it available as continuously as possible. We do not owe any particular availability level and we make no commitment that the Service will be available at any given time. We carry out planned maintenance outside normal business hours where possible and announce it with reasonable notice in the Service or in text form.

One piece of advice matters more than any clause: do not rely on a free service alone for an event whose failure you cannot afford. Keep a fallback ready.

3.4 Development and modification of the Service

We develop the Service continuously and may modify it. Where a modification restricts the scope of functions other than insignificantly, or discontinues a function, we will give notice at least six weeks before it takes effect, in text form or in the Service; where the change is legally or security-mandated and admits of no delay, we will inform you without undue delay afterwards. Your right to end the contract at any time (item 9.2) remains unaffected.

We may discontinue the Service altogether. In that case we will give at least three months' notice and, during that period, make it possible for you to export your content and results. That period does not apply where continuing is impossible or unreasonable for us on legal grounds or by reason of force majeure.

3.5 Use of third parties

We may use third parties to provide the Service and remain responsible to you for performance. Who they are is set out in our privacy policy, item 6.

3.6 Third-party content you embed yourself

The Service allows content held on third-party servers to be embedded — images and video files by internet address, videos from YouTube and Vimeo, and presentations and whiteboards from Microsoft, Google Slides and Miro. If you embed such content, every participant's device connects directly to the provider concerned. You are responsible for that embedding and for its legality, in particular for the rights in the content and for informing your participants under Articles 13 and 14 of the General Data Protection Regulation (GDPR). We have no influence over the processing that happens there and accept no liability for it.

4 Account and access credentials

4.1 You are responsible for keeping your access credentials and your edit tokens confidential and for not passing them to unauthorised persons. If you have any indication of misuse, tell us without undue delay and change your password.

4.2 You are answerable for the acts of persons to whom you have granted access to your account, a workspace or a presentation as if they were your own. You are liable for third-party acts under your credentials to the extent you are answerable for the misuse.

4.3 A results link is access without further checks: whoever holds it sees the results. Pass it only to people who may see the results, and revoke it as soon as that ceases to be the case.

5 Your obligations

5.1 Permitted use

You undertake not to deliberately disrupt, interrupt or manipulate the Service, not to take measures that burden our systems beyond what contractual use requires, and not to circumvent security measures. In particular it is prohibited to circumvent the abuse-protection limits by automated means, to falsify voting results by automated or repeated voting, or to use the Service to distribute unsolicited advertising.

5.2 Responsibility for your own content

No content may be transmitted or posted through the Service that infringes applicable law or the rights of third parties — in particular no content that infringes third-party copyright, trade mark, name, sign or personality rights, that constitutes a criminal offence, or that incites hatred or violence. That applies to content you post as a presenting person as much as to contributions you submit as a participant. You are responsible for your content; we do not check it in advance and are not obliged to (Sections 7 to 10 of the German Digital Services Act, DDG).

5.3 Data protection in sessions

5.3.1 If you run a session, you are the controller within the meaning of Article 4 (7) GDPR for the personal data collected from your participants. You decide which questions you ask, whether you ask for names, how long you keep the results and when you delete them. In particular you are obliged to inform your participants under Articles 13 and 14 GDPR and to have a legal basis for the processing.

5.3.2 In that respect we are your processor within the meaning of Article 28 GDPR. On request to hallo@omul.app we will conclude a data processing agreement with you; it carries the technical and organisational measures, the list of sub-processors and the deletion concept as annexes. Such an agreement prevails over these Terms of Service on data protection questions.

5.3.3 If you use the Service in a context where participation is compulsory or a relationship of dependency exists — towards employees or pupils, for example — check beforehand whether consent can be given freely there at all and whether your works council or staff council must be involved. That assessment is one we cannot take off your hands.

5.3.4 If you use questions capable of eliciting special categories of personal data under Article 9 GDPR — on health, political opinions, religion or sexual orientation, for instance — you bear sole responsibility for that. We strongly advise against combining such questions with a name requirement.

5.4 Indemnity

If you breach the obligations in items 5.1 to 5.3 and a third party makes a claim against us as a result, you will indemnify us against those claims and reimburse the necessary and reasonable costs of legal defence — but only to the extent you are answerable for the breach. We will inform you of any claim without undue delay, enable you to conduct the defence, and neither make an admission nor enter into a settlement without your consent. Further claims remain unaffected.

6 Rights in content

6.1 Your content stays yours

We acquire no rights in the content you put into the Service or in the results of your sessions beyond what is required to provide the Service.

6.2 Licence for providing the Service

You grant us a non-exclusive right of use in your content, limited in territory and substance to the purpose of providing the Service, non-transferable, and ending with the end of the contract or with the deletion of the content concerned. It covers in particular storing, reproducing, reformatting and displaying your content to the extent necessary to present it to the participants in your session and to make the results available to you. We do not use your content for our own purposes — in particular no advertising, no disclosure to third parties for their purposes, and no training of machine learning models on your content.

6.3 Our rights

The Service, its design and the "omul" trade mark are protected. Neither these Terms of Service nor the software licence confers any right to use the trade mark; separate trade mark guidelines in the source repository apply to it.

7 Data protection

How we process personal data is set out in our privacy policy. It is part of the pre-contractual information and not a contractual term; any data processing agreement under item 5.3.2 prevails over it within its scope.

8 Unlawful content, reporting and suspension

8.1 If you consider content accessible through the Service to be unlawful, please report it to hallo@omul.app, stating the presentation or join code, a description of the content and your reasons. We will confirm receipt and examine the report without undue delay.

8.2 In the event of a material breach of the obligations in item 5 we may remove content and temporarily suspend access to the Service. We will give notice beforehand and set a reasonable period for remedy, unless averting an immediate threat to our systems, to other users' data or to third-party rights makes notice impossible. In that case we will inform you without undue delay after the suspension and state the reason. The suspension is lifted as soon as the reason has ceased.

8.3 You may object to a suspension or removal; we will examine the objection and tell you the outcome.

9 Term and termination

9.1 The contract runs for an indefinite period.

9.2 You can terminate at any time without notice by deleting your account in the application or sending us an informal message in text form to hallo@omul.app. If you use the Service without an account, the contract ends when the presentation concerned is deleted.

9.3 We may terminate the contract on 30 days' notice in text form. Either party's right to terminate for cause remains unaffected; cause exists for us in particular where the obligations in item 5 are materially breached on a continuing basis despite a warning.

9.4 Your right of use ends when the termination takes effect. Before a termination by us we will give you an opportunity to export your content and results; the Service's export functions are available for that. If you delete your account yourself, the deletion takes effect immediately; so save what you want to keep beforehand.

Deleting your account does not currently delete your presentations with it. It removes the account, the sign-in sessions and the access keys; the presentations remain, together with every contribution made inside them, and afterwards nobody can reach them any more — not even us, by the ordinary routes. So delete your presentations first and your account afterwards. If a presentation has already been orphaned, a message to hallo@omul.app is enough and we will delete it server-side together with everything belonging to it.

What is deleted on deletion, and what survives it by reason of statutory retention obligations, is set out in item 8 of the privacy policy.

10 Defects

10.1 We provide the Service with due care and skill. You are aware that software cannot be entirely free of defects even when developed carefully; we do not warrant that the Service will be available without interruption or free of errors.

10.2 If you find a defect, please tell us in text form with a comprehensible description of the fault. We will take the measures required to remedy it as far as that is possible and reasonable for us with proportionate effort.

10.3 Because the Service is provided free of charge, our liability for defects is limited to the statutory cases; item 11 applies accordingly. Your statutory rights where a defect has been fraudulently concealed remain unaffected.

11 Liability

11.1 Unlimited liability

We are liable without limitation

11.1.1 for intent and gross negligence,

11.1.2 for damage arising from injury to life, body or health,

11.1.3 under the German Product Liability Act,

11.1.4 to the extent of any guarantee we have given, and

11.1.5 where a defect has been fraudulently concealed.

11.2 Liability for material contractual obligations

Where a material contractual obligation is breached through slight negligence, our liability is limited in amount to the foreseeable damage typical of this type of contract at the time of conclusion. Material contractual obligations are those whose performance makes the proper execution of the contract possible in the first place and on whose observance you may regularly rely.

11.3 Exclusion otherwise

Any further liability is excluded. This applies in particular to the slightly negligent breach of non-material contractual obligations.

11.4 Loss of data

For loss of data we are liable under the preceding items only up to the amount that would have been required to restore it had you backed it up properly and regularly. The Service is not a substitute for your own backups. Export any results you depend on.

11.5 Interruptions

We are not liable for interruptions attributable to announced maintenance, to force majeure, or to faults in the internet connection outside our sphere of responsibility.

11.6 Vicarious agents

The above limitations of liability also operate for the benefit of our legal representatives, employees and vicarious agents.

12 Changes to these Terms of Service

12.1 We may change these Terms of Service where the change is prompted by a change in the law, by a decision of a supreme court or an authority, by technical development or by an equivalent change in circumstances, and does not shift the relationship between performance and consideration to your detriment.

12.2 We will notify you of the intended change at least six weeks before it is to take effect, in text form or in the Service. The notice will contain the amended provisions, a statement of when they take effect, and an express reference to your right to end the contract at any time without notice.

12.3 We do not treat your silence as consent. If you do not agree to the change, end the contract under item 9.2; that is possible at any time and without notice. If you continue to use the Service after the change takes effect, the amended terms apply to that continued use.

12.4 Changes to the principal obligations and to this item 12 are excluded from the right to amend; they require an express agreement. Introducing a payment obligation is, under item 3.2.2, never the subject of an amendment to these Terms of Service in any event.

13 Final provisions

13.1 Text form

Amendments and additions to the contract require text form (Section 126b BGB). That also applies to any amendment of this text-form clause. Individual agreements always take precedence (Section 305b BGB).

13.2 Set-off, retention, assignment

In relation to businesses: set-off is permitted only against undisputed or legally established claims; a right of retention may be exercised only where the counterclaim arises from the same contractual relationship. Assignment of rights under this contract requires our prior consent in text form, which will not be refused without good cause; Section 354a of the German Commercial Code (HGB) remains unaffected. In relation to consumers, the statutory rules apply.

13.3 Severability

Should individual provisions of these Terms of Service be or become invalid, the validity of the remaining provisions is unaffected. The statutory provisions take the place of the invalid provision (Section 306 (2) BGB).

13.4 Applicable law

The contractual relationship is governed exclusively by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and to the exclusion of the conflict-of-law rules of private international law.

13.5 Consumer protection unaffected

If you are a consumer habitually resident in another state, you retain the protection of the mandatory consumer protection provisions of the law of that state; the choice of law in item 13.4 may not deprive you of that protection (Article 6 (2) of Regulation (EC) No 593/2008 — the Rome I Regulation).

13.6 Place of performance and jurisdiction

The place of performance is Berlin. If you are a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising out of or in connection with this contract is Berlin; we are additionally entitled to sue at your general place of jurisdiction. This jurisdiction agreement does not apply in relation to consumers; for them the statutory places of jurisdiction remain.

13.7 Consumer dispute resolution

We are neither willing nor obliged to take part in dispute resolution proceedings before a consumer arbitration board. On the classification of this statement see item 6 of the legal disclosure.

13.8 Version

As at: [TO BE COMPLETED: month and year of publication] (version 1.0).