General Terms and Conditions
1.1 The following General Terms and Conditions (hereinafter referred to as "Terms of Service") govern the contractual relationship between Mooncamp GmbH (hereinafter referred to as "Mooncamp") and the respective companies in accordance with § 14 BGB (German Civil Code) (hereinafter referred to as "user") and their employees in terms of section 4.1 who would like to use the HR platform for feedback, learning and cultural improvement (hereinafter referred to as "platform"; as exemplified under the domain app.mooncamp.com ) provided by Mooncamp.
1.3 The version of the terms of service valid at the time of conclusion of the contract is binding.
2. Subject matter of the contract
2.1 Mooncamp offers various services on the platform in connection with the administration and handling of employees (hereinafter "services"). Among other things, surveys, goals (OKR) and check-ins can be created on the platform. The complete scope of services results from the service description in the version valid at the time of the conclusion of the contract
2.2 Mooncamp offers as part of the services own content for use on the platform, such as pre-defined questionnaires. The user can also create own contents on the platform. However, Mooncamp is not responsible for the contents created by the user and their completeness, correctness, legality, topicality, quality and suitability. Mooncamp does not check the contents created by the user on the platform for completeness, correctness, legality, topicality, quality and suitability for a certain purpose or the contractually intended purpose.
2.3 The extent of the use of the services can be chosen by the user himself within the scope of different subscriptions according to section 3.5 and results from the service description in the version valid at the time of the conclusion of the contract.
2.4 Mooncamp is entitled to make changes to the contents or functionalities (e.g. through patches, updates or modifications) of the services which are reasonable under consideration of the interests of the user. Mooncamp is also entitled to have parts or the entirety of its services rendered by third parties, especially subcontractors.
2.5 The user can test the services fourteen (14) days after successful registration according to section 3.3 free of charge. Subsequently the use of the services will be blocked for the user, unless he/she takes out a paid subscription according to section 3.5.
3. Registration and its Requirements, Conclusion of Contract, Right of Use, Test Period, Conclusion of a Subscription
3.1 Full use of the services requires registration as a user and the conclusion of a corresponding subscription on the platform. Registration is effected by opening an account on the platform and agreeing to these Terms of Service.
3.2 Registration and the conclusion of a subscription are only permitted to legal entities with unlimited legal capacity and only in their own name and on their own account. Only entrepreneurs within the meaning of § 14 BGB (German Civil Code) may register as users. The registration as a legal entity or partnership as well as the administration of an account in accordance with section 3.3 may only be carried out by persons who act as legal representatives or other authorised parties of the legal entity or partnership on its behalf and will. To verify the authorization according to the previous sentence Mooncamp will request further documents (e.g. power of attorney, written permission, etc.) from the user if necessary.
3.3 In the registration form each user has to provide a valid email address. By submitting the completed registration form by clicking the button "Continue with E-Mail/Google/Microsoft" the user creates a user account (hereinafter referred to as "account") and submits his offer to conclude the contract for the use of the platform. If Mooncamp accepts this offer by sending a confirmation mail and the user subsequently confirms his registration by selecting the code listed in the confirmation mail (Double-Opt-In), a contract for the use of the platform is concluded between the user and Mooncamp (hereinafter "usage agreement"). A registration which the user does not confirm within one week by clicking the activation link can be deleted by Mooncamp.
3.4 Each user may only register once. One account must be created per user. One account is not transferable.
3.5 Within the first fourteen (14) days after successful registration in accordance with section 3.3, the user may use the services in limited functionality free of charge (hereinafter referred to as "test period"). Mooncamp is entitled to terminate the test period at any time or to further restrict the services during the test period. After the end of the test period the user can only use the services within the framework of a contract with costs (hereinafter "subscription"). The subscription can be concluded with a separate agreement with Mooncamp.
3.6 There is no claim to the conclusion of a user agreement or a subscription. Mooncamp reserves the right to refuse the registration and the conclusion of a subscription without giving reasons.
3.7 The data requested during the registration and the conclusion of a subscription must be complete and truthful. If the data changes subsequently, the user is obliged to update the information immediately. Upon request of Mooncamp the user has to confirm the data.
4. Employee Accounts
4.1 The user can activate his own employees (hereinafter referred to as "employees") under his account. For this purpose he invites employees to register on the platform.
4.2 The User warrants that he only invites people to the platform as employees if he is entitled to do so. Before sending the invitation, the user is obliged to ensure that the employee agrees to receive the invitation. In case the employee asserts claims against Mooncamp due to unsolicited sending of the invitation, the user indemnifies Mooncamp from all claims in connection with the sending of the invitation. Mooncamp reserves the right to assert further claims against the user from this circumstance.
4.3 In the registration form each employee has to create a password. By sending the completed registration form the employee will get access to his user account (hereinafter referred to as "employee account").
4.4 Access to the employee account is only permitted to natural persons with unlimited legal capacity and only in their own name. Employees must be at least 18 years of age at the time of registration.
4.5 The user can restrict or delete the employee account at any time via his account.
5. Prices and terms of payment
5.1 The conclusion of subscriptions to use the services is subject to a fee. Subscriptions are subject to the service description and prices for monthly or annual remuneration (hereinafter "remuneration") valid at the time of conclusion of the contract. However, the user can be charged by third parties for costs in connection with the use of the services (e.g. for the use of telecommunication networks); Mooncamp has no influence on such costs.
5.2 All prices are plus the legal value added tax, currently 19 %.
5.3 The remuneration owed by the user is due for payment in advance at the beginning of the booking period (monthly or annually).
5.4 The remuneration owed by the user can only be paid using the payment methods supported by Mooncamp. The supported payment methods are listed on the platform. Mooncamp reserves the right to exclude individual payment methods with respect to selected users, as far as a return debit note or cancellation of the payment or an insufficient coverage of the bank account to be debited is to be feared due to justified indications.
6. Granting of rights of use, Rights to the contents of the user
6.1 The user grants Mooncamp the simple, spatially, temporally and content-wise unrestricted right of use (hereinafter "license") of the contents posted by him on the platform (hereinafter "user contents"). This includes in particular the right to reproduce, use, operate, copy, publicly perform or display, distribute, modify, translate and create derived versions of the distribution as well as the right to edit. Mooncamp is especially entitled to technically process, prepare and adapt the user content in such a way that it can also be displayed on mobile receivers or in services and software applications of third parties.
6.2 The license ends when the user deletes his user content or his account.
6.3 The user guarantees that he is the owner of the transferred rights and that it is possible for him to effectively grant the rights mentioned in clause 6.1. The user also guarantees that the created content does not violate any rights of third parties, in particular trademark, competition, copyright, property or personal rights.
7. Account use, Confidentiality, Sanctions and blocking of the account
7.1 The user/employee undertakes:
- not to create any insulting, violence glorifying, discriminating, inhuman or slanderous contents
- not to create pornographic or racist content;
- not to create any content that violates youth protection laws or criminal laws;
- not to carry out any actions that could block, overload or impair the proper functioning or appearance of the Platform (e.g. denial of service attacks or the uploading of viruses or other malicious code);
- not to create untrue or unobjective content;
- not to engage in unauthorised commercial communication (e.g. spam) on the Platform;
- not to use automated mechanisms (such as bots, robots, spiders or scrapers) to collect content or information from other users or to access the platform in any other way without the explicit prior permission of Mooncamp;
- not to obtain login information or access an account belonging to another user and not to collect, use or process data of other users without being authorized to do so;
- not to use legally protected content without being authorized to do so;
- not to advertise for a company for commercial purposes;
- or to set links to such content.
- modify or delete contents;
- terminate the contract of use without notice;
- restrict the account/employee account temporarily or permanently;
- prohibit the user/employee from logging in again under a different name after deletion of his account/employee account.
7.4 Mooncamp can impose these sanctions without prior notice and without consultation with the user/employee even against his/her explicit will.
7.5 Mooncamp can finally exclude a user/employee from the use of the platform and the services (final ban), if he/she in particular
- provided incorrect data or failed to update the data as required,
- transfers his account/employee account without authorisation or
- damages other users/employees or Mooncamp to a considerable extent, especially abuses the services.
7.6 A permanent ban is also possible if there is another important reason.
7.7 After a user/employee has been blocked, there is no claim for the restoration of the blocked account / employee account. As soon as a user/employee has been blocked, this user/employee may not log in with another account/employee account.
8.1 The user/employee is obliged to keep the login data, passwords, etc. secret and not to pass on his access data to unauthorised third parties and to log off after each session. Declarations and actions which are made or committed after a login with the password and the e-mail address of the user/employee can be attributed to the user/employee even if he/she has no knowledge of them. An attribution is made in particular if the user/employee provides third parties (including family members) with access to the password or the account/employee account intentionally or negligently. The user/employee has to inform Mooncamp immediately as soon as he/she becomes aware that unauthorized third parties have access to the access data and are aware of it.
8.2 In case of a justified suspicion that access data became known to unauthorized third parties, Mooncamp is entitled but not obligated for security reasons to independently change the access data without prior notice or to block the use of the account/employee account at its own discretion. Mooncamp will inform the user/employee about this immediately and will provide new access data on request within an appropriate period of time. The user/employee has no right to have the original access data restored.
9. Duration and termination of the user agreement
9.1 The contract of use begins with the registration according to clause 3.3 and has an unlimited duration. The user can terminate the user contract at any time with a notice period of 14 days. If the user has concluded a subscription prior to termination of the Usage Agreement, the termination shall not take effect until the subscription has been fully executed, cancelled or otherwise terminated. In the event of termination, the account will be maintained for as long as necessary to process completed subscriptions.
9.2 When taking out a subscription, the user can choose between a monthly and an annual term.
- In the case of the monthly term, the subscription begins upon conclusion of the subscription and is concluded for a period of one month. It shall be extended by a further month in each case if it is not terminated in due time.
- In the case of an annual subscription, the subscription begins with the conclusion of the subscription and is concluded for a period of 12 months. It is extended by a further 12 months if it is not terminated in due time.
9.3 The user and Mooncamp can cancel the subscription with the periods of notice mentioned in the service description.
9.4 The usage agreement can be terminated by Mooncamp at any time with a notice period of four weeks. If the user has concluded a subscription prior to the termination of the Utilization Agreement, the termination will not become effective before the subscription has been completely executed, cancelled or otherwise terminated. In case of a cancellation the account will be maintained as long as necessary for the processing of completed subscriptions. The right to block a user account according to clause 7 remains unaffected.
9.5 Notwithstanding the above provision, Mooncamp may terminate the subscription without notice if the user is in default of payment of the remuneration or a not insignificant part of the remuneration for two consecutive months or, in a period extending over more than two months, in default of payment of an amount equal to the remuneration for two months.
9.6 The right to terminate for good cause remains unaffected.
9.7 Any termination must be made in writing. For the notice of cancellation an email to email@example.com or any other communication in text form to Mooncamp is sufficient. Alternatively, the notice of cancellation can also be made via the user's account.
10. Settlement after termination
The personal data deposited by the user/employee and the account will be deleted by Mooncamp upon termination of the user agreement. If Mooncamp is obligated to store data for legal or other reasons, Mooncamp may alternatively also block the data; with loss of authority the data will be deleted by Mooncamp.
11.1 Mooncamp guarantees an availability of the services to 99% on a monthly average. This does not take into account scheduled maintenance times and downtimes which are not based on a breach of duty by Mooncamp, such as attacks on systems of Mooncamp by third parties, hardware failures through no fault of Mooncamp or cases of force majeure, as well as related unscheduled maintenance work. Through maintenance work, further development or malfunctions the possibilities of use can be limited or temporarily interrupted. This can also lead to data loss under certain circumstances.
11.2 Scheduled maintenance work takes place regularly between 11 pm and 6 am (Central European time) and is announced to the user in the account at least 4 hours in advance. Scheduled maintenance work will affect the availability of the services for a maximum of 10 hours in a calendar month.
11.3 Mooncamp provides the services only on the platform. Errors or disturbances outside the sphere of influence of Mooncamp are not subject to the service obligation of Mooncamp. The user remains obligated to pay the corresponding remuneration in case of errors or disturbances which are not within the sphere of influence of Mooncamp.
11.4 It is the responsibility of the user to create, maintain, operate and, if necessary, update a sufficiently dimensioned hardware and software environment for the use of the services at his place.
12. Data protection
12.1 The personal data voluntarily provided by the user in the context of the use of the services will be used by Mooncamp exclusively in accordance with the regulations of the German Federal Data Protection Act (BDSG), the Telemedia Act (TMG) and the General Data Protection Regulation (EU-GDPR).
12.2 The processing of personal data is based on a separate data processing agreement (DPA) within the scope of a contractual relationship according to article 28 GDPR/ § 11 BDSG. The data processing agreement will be handed over to the user separately upon conclusion of the contract.
13. Limitations of liability
13.1 Subject to the further provisions of this section 13, Mooncamp is only liable if and as far as Mooncamp, its legal representatives, executives, employees or other vicarious agents are guilty of intent or gross negligence. However, in case of debtor's delay of Mooncamp or the impossibility of performance of services for which Mooncamp is responsible as well as in case of violation of essential contractual obligations (so-called cardinal obligations) Mooncamp is liable for each own culpable conduct or that of its legal representatives, executives, employees or other vicarious agents. In this context, essential contractual obligations are abstractly defined as those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the user/employee may regularly rely.
13.2 Except in the case of intent or gross negligence of Mooncamp, its legal representatives, executives, employees or other vicarious agents, the liability of Mooncamp is limited in amount to the typically foreseeable damages at the conclusion of the contract.
13.3 The exclusions and limitations of liability regulated in the above clauses 13.1 and 13.2 do not apply in the case of the acceptance of explicit guarantees, in the case of claims due to the lack of warranted characteristics and for damages resulting from injury to life, body or health as well as in the case of mandatory legal regulations. Furthermore, the limitations of liability regulated in section 13.2 do not apply in case of a debtor's default of Mooncamp for claims for default interest, for the default lump sum according to § 288 para. 5 BGB (German Civil Code) as well as for compensation of the damage caused by default, which is based on the legal costs.
13.4 Claims according to the product liability law remain unaffected by the regulations of this section.
14. Online dispute resolution
Mooncamp hereby refers to the Online Dispute Resolution (OS) site of the European Commission with the following link: https://ec.europa.eu/consumers/odr/
Mooncamp is not responsible for the contents of this site or for the conduct of complaint handling procedures through this site.
15 Indemnification, Attribution of behaviour of employees
15.1 The user indemnifies Mooncamp from all claims of third parties, especially from claims due to copyright, trademark and personal rights violations, which should be raised against Mooncamp in connection with the exercise of the contractual rights, upon first request. The user is obligated to also defend against unfounded claims of third parties with regard to the above mentioned rights. The user has to inform Mooncamp immediately of any impairments of the rights which are subject matter of the agreement. Mooncamp is entitled to take appropriate measures to defend itself against claims of third parties or to pursue its rights. Own measures of the user have to be coordinated with Mooncamp in advance. The indemnification also includes the reimbursement of the costs which Mooncamp incurs or has incurred through a legal prosecution/defense. This does not affect further claims for damages of Mooncamp. As far as Mooncamp itself is responsible for the violation of rights, claims against the user are excluded.
15.2 The conduct of the employees is attributed to the user. The user is liable to Mooncamp for the behavior of the employees. The user is responsible to Mooncamp for the fact that his employees act according to the contract and do not violate these terms of service, laws and/or rights of third parties in connection with the use of services. Violations of these regulations by the employees are attributed to the user, the user is in these cases the claimant of Mooncamp.
16. Assignment of claims
16.1 The user is only entitled to assign claims from or in connection with the business relationship with Mooncamp with the prior written consent of Mooncamp; § 354a HGB remains unaffected.
16.2 Unless otherwise regulated in the individual case, neither party is entitled to offset against claims of another party from this agreement or to assert a right of retention with regard to an obligation from the business relationship, unless the claims of the respective party asserting a right of offsetting or retention are ready for decision and undisputed or have been recognized by the other party or have been determined by a legally binding decision of a competent court or arbitration court. This restriction does not apply to synallagmatic, i.e. mutually dependent claims.
17. Exclusion of foreign general terms and conditions, Language, Contract text, Applicable law, Place of jurisdiction and place of performance
17.1 The validity of general contractual or business conditions of the user/employee is expressly excluded. This also applies if Mooncamp has not explicitly contradicted the terms and conditions of the user/employee and/or provides services without contradiction.
17.2 The registration, login and all conclusions of contracts between the user/employee and Mooncamp are exclusively in German language. The contractual language is German.
17.3 All contractual texts are accessible to the user/employee on the platform only in the current version. However, the respective text of the contract will be sent to the user by email and can be saved or printed out by the user.
17.4 These Terms of Service and the Usage Agreement regulated therein are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
17.6 In relation to entrepreneurs in the sense of § 14 paragraph 1 BGB the place of performance is the registered office of Mooncamp.
18. Amendment of these Terms of Service
18.1 Changes to these Terms of Service must be made in text form. No collateral agreements exist.
18.3 If a provision of these Terms of Service is invalid, the remaining provisions shall remain unaffected. The invalid provision shall be deemed replaced by a provision that comes closest to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to possible regulatory gaps.
Status: August 2020