Structure and Scope
These Terms of Service are divided into three parts:
Part A (Clauses 1 to 13) applies to all Users.
Part B (Clauses 14 to 22) applies in addition only to Users who are businesses (“B2B”).
Part C (Clauses 23 to 29) applies in addition only to Users who are consumers (“B2C”).
Where provisions in Part B or Part C deviate from Part A, they take precedence for the respective group of Users. Part B does not apply to consumers and Part C does not apply to businesses.
PART A – Provisions for all users
1 Scope; consumers and businesses
1.1 The following terms of use (“Terms of Service”) apply to the use of the “Appster” platform of A38 digital processing GmbH, Bürgermeister-Finsterwalder-Ring 10, 82515 Wolfratshausen (hereinafter “A38”) by its Users. A38 and the User are each hereinafter a “Party” and together the “Parties”.
1.2 A “consumer” is any natural person who uses Appster for purposes that can be attributed neither predominantly to their commercial nor to their self-employed professional activity (Section 13 of the German Civil Code (BGB)). A “business” is any natural or legal person or partnership with legal capacity that uses Appster in the exercise of its commercial or self-employed professional activity (entrepreneur within the meaning of Section 14 BGB).
1.3 When registering, the User states whether they are a consumer or a business and is obliged to make this statement truthfully. If their status changes later, they shall inform A38 without delay.
1.4 General terms and conditions of the User that deviate from these Terms of Service shall not apply, even if A38 does not expressly object to them.
1.5 These Terms of Service govern only the contractual relationship between A38 and the User. Contracts between the User and their own customers (“End Customers”), even if concluded via the Appster marketplace, are concluded exclusively between the User and the End Customer; A38 does not become a party to them.
2 Definitions
2.1 “Appster” is a platform (hereinafter also referred to as the “Software”) that enables Users to create, host, publish and monetise their own content ideas in the form of apps. For this purpose, A38 provides in particular app development tools, hosting and distribution functions and a marketplace for publishing and monetising apps.
2.2 “User” is anyone who enters into a contract with A38 for the use of Appster on the basis of the Subscription and Price Overview and these Terms of Service. The term includes all persons who use the contractual services on behalf of the User.
2.3 “Subscription and Price Overview” means the current overview of the packages and services offered by A38, including the applicable scope of services and the relevant prices, fees and additional costs (including a free package). The current version can be viewed in the User’s account on the plan page of the dashboard (https://dashboards.appster.eu/plan); an account is required for this, which can be created free of charge. There, prices are shown to consumers including and to businesses excluding value added tax.
2.4 “Content” means all data, texts, images, questionnaires, apps and other works that the User creates, uploads, stores, publishes or shares by means of Appster.
3 Subject matter of the contract and services
3.1 For the duration of the contract, A38 makes Appster available to the User for use by means of online access via a web app, subject to the terms of the Subscription and Price Overview and these Terms of Service. Use is subject to a fee or, where the Subscription and Price Overview so provides, free of charge, depending on the package chosen.
3.2 Appster enables the User to create, edit, manage, host, publish and commercially exploit their own apps on a server basis with AI support. For this purpose, app development tools, hosting and distribution functions and a marketplace for publishing and monetising the apps are available in particular. Paid distribution via the marketplace is open to businesses only (Clause 16). Each User receives an area that is separate from other Users.
3.3 During the term of the contract, A38 provides the following services:
3.3.1 Provision of Appster: A38 offers the User the possibility to use the Appster web app via online access using a current standard web browser (preferably Google Chrome and Microsoft Edge) in its current version.
3.3.2 Further development and maintenance: A38 further develops Appster with regard to quality, security and functionality and adapts Appster to changed technical requirements. This includes the provision of patches and corrections to maintain the agreed quality. The User is automatically granted access to new versions of Appster.
3.3.3 Support: A38 supports the User in using Appster by providing guidance on proper use and by checking, diagnosing and remedying faults and impairments. Support requests are to be sent by email to kontakt@a38dp.io.
3.4 The User’s Content is passed on to third parties (e.g. external partners or End Customers) exclusively by the User. The User is responsible for the accuracy, quality and lawfulness of the Content created or shared by means of Appster, unless mandatory statutory provisions provide otherwise.
3.5 Advising the User, in particular on legal matters, and reviewing the Content created by the User are not part of A38’s services.
3.6 A38 performs all contractually agreed services in accordance with the generally recognised rules of technology.
4 Conclusion of contract and registration
4.1 The contract is concluded exclusively online via the website appster.eu. The contract languages are German and English.
4.2 In order to use the agreed services, the User must create an account. For this purpose, at least one email address must be provided, which is verified by the system. Authentication is not password-based but uses a passkey that the User must store on their end devices. For certain services, in particular paid distribution via the marketplace, further information is required, such as name and address and, where required by law or necessary to prevent misuse, proof of identity. Which data is processed for which purpose is set out in the privacy notice.
4.3 By completing the registration with a click on the button ‘Create account’, the User submits a binding offer to conclude the contract for the free package. The contract is concluded when A38 accepts the offer by confirming or activating the account. The User books paid packages in their account on the plan page of the dashboard. The prices are displayed there and the User is forwarded to Stripe for payment processing. By clicking the button ‘order with obligation to pay’ (or a similarly unambiguously labelled button), the User submits a binding offer to conclude the contract for the selected paid package. The contract is concluded when A38 activates the package after payment has been confirmed. Before submitting, the User can review their entries and correct them using the back function of their browser or the fields provided for making changes.
5 Rights of use
5.1 A38 grants the User a simple, i.e. non-exclusive, territorially unlimited right to use Appster within the scope of use specified in the Subscription and Price Overview and these Terms of Service, limited in time to the term of the contract and non-transferable.
5.2 The User is entitled to grant End Customers the simple, non-transferable rights, not entitling them to grant further rights of use, that are required for the intended use of the User’s apps.
5.3 Use of Appster on behalf of or for the account of third parties who are not End Customers of the User’s own apps is excluded.
5.4 All industrial property rights, copyrights and other intellectual property rights in Appster belong exclusively to A38 or its licensors. The User receives only the right of use described in Clause 5.1.
6 Content of the User, intellectual property and AI functions
6.1 All industrial property rights, copyrights and other intellectual property rights in the Content created by the User by means of Appster belong exclusively to the User or the respective authors. A38 does not acquire any rights of use in this Content that go beyond Clause 6.2 and the use for AI Training regulated in Clauses 6.5 to 6.7.
6.2 The User grants A38 a simple, i.e. non-exclusive, territorially unlimited, non-transferable and non-sub-licensable right to reproduce, store, archive, make publicly available, publish, distribute and transmit the Content to the extent technically necessary, insofar as this is required for the provision of the contractual services (including hosting, display and distribution via the marketplace). The right exists for the term of the contract and for the duration of the periods under Clause 10.4.
6.3 The User is responsible for ensuring that the Content they create, upload or share does not infringe the rights of third parties and complies with applicable law.
6.4 Appster uses AI-supported functionalities. The following provisions apply to this:
6.4.1 The AI-supported functions serve to support the User. Results may be inaccurate, incomplete or unsuitable. The User is responsible for checking, on their own responsibility, all work results generated by means of the AI functions for accuracy, completeness, lawfulness and suitability before passing them on, publishing them or otherwise using them. The User shall comply with statutory labelling obligations for AI-generated content (in particular under Regulation (EU) 2024/1689) when publishing their apps.
6.4.2 A38 is entitled to use third-party services to provide the AI functions. In this case, A38 ensures that the User’s Content is only transmitted or made accessible to the third-party provider to the extent technically necessary.
6.5 For the development, training, validation and improvement of AI models (“AI Training”), A38 uses exclusively the structure of the apps and questionnaires that the User creates with Appster (in particular layout, organisation, sequence, question types and branching logic, “Structural Data”). The following are not used for AI Training: the User’s specific Content (in particular texts, images and other media) and all data that respondents, end customers or other third parties enter into the User’s apps (in particular answers and personal data).
6.6 Towards businesses, Structural Data is used for AI Training without separate consent. For this purpose, the business grants A38 a simple, non-exclusive, territorially unlimited, non-transferable and non-sublicensable right to reproduce the Structural Data, to the extent it is protected by copyright or other intellectual property rights. AI Training operations that have already been completed are not affected by the termination of the contract.
6.7 Towards consumers, Structural Data is used for AI Training only if the consumer has expressly consented to this in the settings of their account. Consent may be withdrawn at any time with effect for the future; AI Training operations that have already been completed remain unaffected.
7 Obligations of the User; blocking and removal of Content
7.1 The User must observe the minimum technical requirements for the use of Appster. A common browser (preferably Google Chrome and Microsoft Edge) in its current version is required to use the web app. The User must have a functioning internet connection. A38 reserves the right to change the supported browser versions insofar as this is necessary for technical or security reasons.
7.2 The User is responsible for compliance with the relevant statutory provisions when using Appster. The statutory provisions at the User’s habitual place of residence are decisive in particular. In particular, the User must not:
7.2.1 misuse Appster or violate public morality when using it;
7.2.2 infringe copyrights, trademarks, patents, name and mark rights or other industrial property rights and/or property rights of third parties;
7.2.3 upload or transmit Content containing viruses, Trojan horses or other malware;
7.2.4 upload, transmit, create, make accessible or distribute pornographic, violence-glorifying, discriminatory or otherwise unlawful Content or incite unlawful acts.
7.3 The User must refrain from any actions that are likely to place an excessive load on Appster, to impair or manipulate the functionality of the underlying technical infrastructure, or to endanger the integrity, stability or availability of the Software.
7.4 The User shall keep their access data, in particular their passkeys, inaccessible to third parties. If there is reason to suspect that unauthorised persons have gained access, the User shall inform A38 without delay and change or block the access data concerned.
7.5 The User shall notify A38 of any faults in Appster without delay. The fault report must contain a comprehensible description of the nature of the fault and the circumstances in which it occurred.
7.6 When Appster processes the Content provided by the User, transmission and processing errors cannot be ruled out despite the use of modern technologies. The User shall check the Content created before publishing it or making it accessible internally or externally.
7.7 The User shall pass on the obligations under Clauses 7.2 and 7.3 to their End Customers, insofar as they use Appster or the User’s apps.
7.8 A38 is entitled to block, geographically restrict or remove the User’s Content in whole or in part, or to restrict individual functions, if there are concrete indications that the Content infringes the rights of third parties, violates Clause 7.2 or otherwise violates applicable law, or if an authority or a court so orders. A38 will first examine whether a less severe measure is sufficient.
7.9 A38 will inform the User of any measure under Clause 7.8 in text form no later than when it takes effect, stating the reasons. The statement of reasons contains the relevant facts and circumstances, the legal basis, an indication of whether the decision was made using automated means, and an indication of the options for complaint and legal remedy. This may be dispensed with insofar as the law permits or an authority so requires.
7.10 The User may lodge a complaint against any measure under Clause 7.8 by email to kontakt@a38dp.io. A38 will examine the complaint promptly and carefully with the involvement of a natural person, will lift the measure if it was not justified, and will inform the User of the outcome, stating the reasons. Further legal remedies, in particular recourse to the courts and out-of-court dispute resolution bodies, remain unaffected.
7.11 Third parties may report unlawful Content via kontakt@a38dp.io. The report should contain a statement of reasons, the exact location (URL), the name and email address of the person reporting, and the declaration that the information is accurate and complete to the best of their knowledge.
8 Availability
8.1 A38 provides Appster in paid packages with an availability of 99.5% on a monthly average. Availability is calculated on the basis of the total hours of a calendar month less scheduled maintenance windows. Times during which Appster is unavailable for reasons that are not within A38’s sphere of responsibility (e.g. disruptions of public networks or of the User’s end devices, force majeure) are not taken into account.
8.2 A38 will notify the User in good time of outages or restrictions due to maintenance, as a rule at least 48 hours in advance. Scheduled maintenance work will be carried out outside normal business hours where possible.
8.3 Support and fault rectification take place during normal business hours (Monday to Friday, 09:00 to 18:00 CET, excluding public holidays at A38’s registered office).
8.4 In the event of outages, A38 will restore availability as quickly as possible.
8.5 The statement in Clause 8.1 describes the contractually owed quality of Appster. It is not a guarantee within the meaning of Section 276(1) of the German Civil Code (BGB).
9 Remuneration and payment
9.1 The remuneration and any agreements on the method of payment are set out in the Subscription and Price Overview (Clause 2.3) applicable at the time the contract is concluded. No remuneration is owed for free packages.
9.2 The remuneration for paid packages is payable monthly in advance.
9.3 The Subscription and Price Overview shows prices to consumers including and to businesses plus the applicable statutory value added tax. Value added tax is determined on the basis of the invoicing details stored in the account.
9.4 Price changes are possible only in accordance with Clause 11.
10 Term and termination
10.1 The term of the contract is one (1) month. It is extended in each case by the same period unless the contract is terminated by the User with a notice period of seven (7) days to the end of a given month. A38 may terminate the contract by ordinary notice with a notice period of thirty (30) days to the end of a month.
10.2 The right of both Parties to extraordinary termination for good cause remains unaffected. A good cause exists for A38 in particular if the User materially breaches obligations under these Terms of Service and does not cease the breach within a reasonable period after notice from A38, which is as a rule ten (10) days, or if the User is in default with the payment of the remuneration for two consecutive months.
10.3 Termination is made in text form, directly via the user account or via the termination form provided on the website. Further requirements for termination by consumers are set out in Clause 27.
10.4 From receipt of the notice of termination, the User has the opportunity, for a period of six (6) weeks and at least until the contract ends, to download the Content they have posted on Appster themselves. After this period has expired, A38 is entitled to delete the stored Content and will inform the User of this in text form at least two (2) weeks before the intended deletion. Further provisions are contained in Clause 22 (businesses) and Clause 27 (consumers).
11 Amendments to these Terms of Service
11.1 A38 determines the prices, packages and these Terms of Service and may offer amendments to these Terms of Service, the Subscription and Price Overview and the prices. The amendment offer will be sent to the User in text form (email is sufficient) at least six (6) weeks before the planned entry into force, which falls at the end of a calendar month. It states that the contract ends at the time of the planned entry into force if the User does not consent (Clause 11.3).
11.2 The amendment takes effect only if the User expressly consents to it, for example by confirmation in their account or in text form. Silence does not constitute consent.
11.3 If the User does not consent to the amendment by the planned date of entry into force, the contract continues on the previous terms until then. In that case A38 is entitled to terminate the contract in the ordinary course with effect from the planned date of entry into force; A38 will point out this consequence in the amendment offer. The User may also terminate the contract at any time before the amendment takes effect with immediate effect without incurring any costs; A38 will refund pro rata any remuneration paid in advance for the period after termination.
11.4 A38 may make editorial corrections as well as adjustments that are mandatorily required because laws or official requirements have changed and that do not place the User at a disadvantage without the User’s consent. A38 will inform the User of this in text form.
11.5 Changes to the services are governed by Clause 18 for businesses and by Clause 28 for consumers.
12 Data protection
12.1 In performing this contract, the Parties will comply with the relevant data protection provisions, in particular Regulation (EU) 2016/679 (GDPR) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG).
12.2 Insofar as A38 processes personal data on behalf of the User in the course of providing the contractual services (for example data of the User’s End Customers in the User’s apps), the Parties conclude a data processing agreement pursuant to Art. 28 GDPR (“DPA”). The DPA will be made available to the User on request at kontakt@a38dp.io and becomes a binding part of the contractual relationship upon conclusion of the contract. For the purposes of the DPA, the User is the controller and A38 is the processor. A38 processes this data only on the documented instructions of the User; it is not used for A38’s own purposes, in particular not for AI Training.
12.3 Insofar as A38 processes the User’s personal data as a controller (e.g. account and usage data), the data protection notices provided on the website apply.
12.4 Insofar as the User processes personal data when using Appster, the User is responsible for compliance with all applicable data protection provisions.
13 Final provisions
13.1 Amendments and additions to the contract require text form. The priority of individual contractual agreements (Section 305b of the German Civil Code (BGB)) remains unaffected.
13.2 The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). For consumers, Clause 29 applies in addition.
13.3 Should any provision of this contract be or become void or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected. The statutory provisions shall take the place of the void provision (Section 306 of the German Civil Code (BGB)). With regard to businesses, the following also applies: the Parties shall replace the void provision with a valid one that comes as close as possible to it in legal and economic terms; the same applies to any unintended gaps in the regulations.
PART B – Supplementary provisions for businesses (B2B)
Clauses 14 to 22 apply only to Users who are businesses.
14 Scope of use and infringements
14.1 The grant of the right of use under Clause 5.1 is subject, for paid packages, to the condition precedent of full payment of the remuneration due in each case.
14.2 If the User uses Appster beyond the acquired scope of use (qualitatively or quantitatively), the User must acquire the necessary additional rights of use without delay. If there is a justified suspicion of unauthorised use, A38 is entitled to require the User to provide a complete and truthful list of the actual users within fourteen (14) calendar days.
14.3 If the User culpably violates the provisions of this Clause 14, A38 is entitled:
14.3.1 to request the User in text form to restore the contractual state within a period of at least fourteen (14) calendar days;
14.3.2 after the unsuccessful expiry of the period, to block access to Appster in whole or in part until the contractual state has been restored; the User’s payment obligation remains unaffected by this;
14.3.3 to terminate the contract for good cause without notice if the contractual state is not restored within thirty (30) calendar days after the blocking or if the infringement is serious;
14.3.4 to demand additional remuneration for the unauthorised use on the basis of A38’s current Subscription and Price Overview.
14.4 Further claims of A38, in particular for damages, remain unaffected. In the event of blocking or termination, the User must cease using Appster without delay.
14.5 The User may transfer rights and obligations under this contract to third parties only with the prior consent of A38 in text form. Section 354a of the German Commercial Code (HGB) remains unaffected.
15 Indemnification
15.1 The User shall indemnify A38 against claims asserted against A38 by third parties on the grounds of an infringement of their rights or of applicable law by the Content created, uploaded or shared by the User or by the User’s End Customers, insofar as the User is responsible for the infringement. The indemnification includes the reasonable and necessary costs of legal defence, including attorney’s fees.
15.2 A38 will inform the User without delay of any claims asserted by third parties, will not acknowledge such claims without the User’s consent, and will give the User the opportunity to take over the legal defence. The User shall support A38 in its legal defence to a reasonable extent or, if requested by A38, shall take over the defence at its own expense.
16 Marketplace and platform fee
16.1 The paid distribution of Content via the Appster marketplace is open only to Users who are businesses and who act in that capacity.
16.2 The fees payable by End Customers are processed exclusively via the external payment service provider Stripe (“Stripe”). A prerequisite for paid distribution is that the User
16.2.1 maintains their own Stripe account in their own name;
16.2.2 connects this Stripe account to Appster via the technical interface provided for this purpose;
16.2.3 completes all registration, identification, verification and cooperation steps required by Stripe fully and on time.
16.3 The User concludes the contracts required for the use of the payment services directly with Stripe. The terms agreed between the User and Stripe apply to Stripe’s payment services. A38 does not become a party to this agreement and does not itself provide any payment services.
16.4 The payments made by End Customers are processed via Stripe and allocated to the User’s connected Stripe account. A38 does not itself receive the funds intended for the User and does not hold them for the User.
16.5 If payment processing cannot be carried out because of a missing, blocked, unverified or improperly connected Stripe account, A38 is entitled to temporarily suspend the paid distribution of the User’s Content until the obstacle has been removed.
16.6 For the distribution of the User’s Content via the marketplace, A38 receives a platform fee of 30% of the Net Revenue that the User generates through the paid distribution of their Content via Appster. “Net Revenue” is the fee actually paid by the respective End Customer, excluding the value added tax contained therein.
16.7 The User is obliged to instruct Stripe to automatically credit the platform fee for every End Customer payment processed via Appster to the recipient account of A38 stored in the interface.
16.8 If the platform fee cannot be credited to A38 via Stripe, or cannot be credited in full, for technical, legal or other reasons, A38’s claim to the platform fee remains unaffected. The User must pay the outstanding amount within fourteen (14) days to the account stated in A38’s invoice and inform A38 of this.
16.9 The User is not entitled to accept End Customer payments for sales concluded via Appster by circumventing the intended payment processing, or to ask End Customers to pay outside Appster, insofar as this circumvents or reduces the platform fee.
16.10 The User shall keep complete, correct and comprehensible records of all transactions relevant to the calculation of the platform fee, in particular the sales made via the platform and the fees paid by the End Customers in each case, and shall retain them for at least three years after the end of the calendar year.
16.11 A38 is entitled to verify the accuracy and completeness of the User’s information, records and statements that are relevant to the calculation of the platform fee, or to have them verified by an attorney, tax advisor, auditor or other independent expert examiner who is bound to professional secrecy. A38 bears the costs of an audit. However, if the audit shows that the platform fee owed for the audited period was invoiced or remitted too low by more than 5%, or that the User culpably circumvented or manipulated the payment processing, the User shall reimburse A38 for the reasonable and documented costs of the audit in addition to the shortfall determined.
16.12 If A38 restricts or suspends a User’s access to the marketplace or to individual marketplace functions, or removes individual Content, A38 will inform the User of the reasons in text form no later than when the measure takes effect. If A38 intends to terminate the provision of the marketplace to a User altogether, A38 will inform the User of this, stating the reasons, at least thirty (30) days in advance; the right to extraordinary termination and statutory or official obligations to terminate sooner remain unaffected. The User may lodge a complaint against these measures in accordance with Clause 7.10.
17 Default in payment, set-off and place of jurisdiction
17.1 In the event of default in payment, A38 is entitled to demand default interest at nine (9) percentage points above the respective base interest rate pursuant to Section 288(2) of the German Civil Code (BGB). The right to claim further damages for default is reserved.
17.2 The User is only entitled to set off undisputed claims or claims that have been finally established by a court. The User has a right of retention only on account of counterclaims arising from the same contractual relationship.
17.3 The place of performance is the registered office of A38. If the User is a merchant, a legal entity under public law or a special fund under public law, the registered office of A38 is the exclusive place of jurisdiction for all disputes arising out of or in connection with this contract.
18 Changes to the services
18.1 A38 is entitled to further develop and adapt Appster, in particular due to a change in the legal situation, technical developments or to improve IT security. Changes that do not materially restrict the contractually agreed scope of functions are permissible.
18.2 A38 will announce material restrictions of the contractually agreed scope of functions to the User in text form (email is sufficient) at least six (6) weeks before they take effect. In this case, the User has a special right of termination effective at the time the change takes effect.
19 Warranty and defects of title
19.1 A38 warrants the contractually agreed quality of Appster and its maintenance during the term of the contract (including availability in accordance with Clause 8). Insignificant deviations do not give rise to warranty rights. Complete freedom from errors cannot be owed even with the greatest possible care.
19.2 The User shall notify A38 in text form, without delay after discovery, of any defects in Appster, describing the nature of the defect and the detailed circumstances in which it occurred, and shall cooperate in narrowing down and identifying the defect and the source of the error.
19.3 In the event of defects, the User is entitled to demand that they be remedied. The User’s rights to a reduction of the remuneration for the duration of the defect (Section 536 of the German Civil Code (BGB)) and to terminate for good cause (Section 543 BGB, after a reasonable period set unsuccessfully for remedying the defect) remain unaffected.
19.4 Unless otherwise agreed, A38 is obliged to enable the User to use Appster in accordance with these Terms of Service and free of third-party industrial property rights.
19.5 If a third party asserts justified claims against the User because of the infringement of property rights through the use of Appster in accordance with the contract, A38 will, at its own choice and at its own expense, either obtain a right of use for the infringing software component of Appster, modify Appster so that the property right is not infringed, or replace the infringing software component, provided that the owed functionality is not significantly impaired as a result. If A38 is unable to do this on reasonable terms, the User may, under the statutory conditions, terminate the contract or reduce the remuneration. If, despite reasonable efforts, A38 does not succeed within a reasonable period in remedying the infringement or in procuring a corresponding right of use for the User, this constitutes good cause for termination for A38.
19.6 The obligations under Clause 19.5 exist only insofar as the User notifies A38 without delay in text form of the claims asserted by the third party, does not acknowledge an infringement, and all defensive measures and settlement negotiations are reserved to A38. The User’s claims are excluded insofar as the User is responsible for the infringement of property rights, or insofar as it is caused by special specifications of the User, by an application that A38 could not foresee, or by a modification of Appster by the User.
20 Liability and limitation periods
20.1 A38 is liable without limitation:
20.1.1 in cases of intent or gross negligence;
20.1.2 for injury to life, body and/or health;
20.1.3 in accordance with the provisions of the German Product Liability Act (Produkthaftungsgesetz);
20.1.4 for damages arising from the assumption of a guarantee and for fraudulently concealed defects;
20.1.5 in other cases in which liability is mandatory by law.
20.2 In the event of a negligent breach of an essential contractual obligation, A38’s liability is limited in amount to the damage that is typical for this type of contract and foreseeable at the time the contract is concluded, but to a maximum of one hundred thousand euros (EUR 100,000.00) per damaging event. Essential contractual obligations are those obligations whose fulfilment is what makes the proper performance of the contract possible in the first place, on whose observance the User may regularly rely, and whose breach jeopardises the achievement of the purpose of the contract.
20.3 Liability for the negligent breach of obligations that are not essential contractual obligations within the meaning of Clause 20.2 is excluded, unless liability exists under Clause 20.1.
20.4 For the loss of data, A38 is liable within the scope of Clause 20.2 only up to the amount of the effort that would have been incurred to restore the data if the User had backed it up properly and regularly. The User is obliged to back up their Content regularly, for example by means of the export functions of Appster.
20.5 A38’s no-fault liability for damages for defects existing at the time the contract is concluded pursuant to Section 536a(1), first alternative, of the German Civil Code (BGB) is excluded.
20.6 The User is responsible for the Content they store and publish by means of Appster. A38’s liability in this respect is governed by Clauses 20.1 to 20.3; statutory liability privileges for hosting services remain unaffected.
20.7 Insofar as A38’s liability under this contract is excluded or limited, this also applies in favour of its statutory representatives, vicarious agents and employees. Both Parties shall take reasonable measures to mitigate damage.
20.8 Claims of the User against A38 in connection with the contractual relationship, including any claims for defects in Appster, become time-barred within one (1) year from the User’s knowledge, or grossly negligent lack of knowledge, of the circumstances giving rise to the claim. This does not apply to claims under Clause 20.1 or to other cases in which mandatory statutory limitation periods apply.
21 Confidentiality
21.1 “Confidential Information” means all information that one Party makes accessible to the other Party in connection with the contract and that is marked as confidential or is to be regarded as confidential by its nature or the circumstances, in particular unpublished Content, technical and business information, and trade secrets within the meaning of the German Trade Secrets Act (Geschäftsgeheimnisgesetz).
21.2 The Parties shall treat the other Party’s Confidential Information as confidential, including after the end of the contract, shall keep and secure it in such a way that access by unauthorised third parties is excluded, and shall use it only for the performance of the contract.
21.3 Excluded from this obligation is information that:
21.3.1 was demonstrably already known to the recipient when the contract was concluded, or becomes known to the recipient from a third party thereafter, without thereby violating a confidentiality agreement, statutory provisions or official orders;
21.3.2 is publicly known when the contract is concluded or becomes publicly known thereafter, insofar as this is not due to a breach of these Terms of Service;
21.3.3 must be disclosed due to statutory obligations or by order of a court or authority, whereby the recipient obliged to disclose will inform the other Party in advance, insofar as permissible and possible.
21.4 The Parties shall grant access to Confidential Information only to those employees and advisors who need to know it for the performance of the contract, and shall oblige them accordingly to maintain confidentiality. The User shall protect Appster against unauthorised access by third parties. The rights of the injured Party to injunctive relief and damages under the statutory provisions remain unaffected.
22 End of contract, return of data and switching providers
22.1 Insofar as the period under Clause 10.4 is not sufficient for the User, the User may request extensions of one (1) month each in text form (email is sufficient), with the agreed pro rata monthly remuneration falling due for each extension.
22.2 Insofar as the provisions of Regulation (EU) 2023/2854 (Data Act) on switching between data processing services apply to Appster, the following also applies: the User may at any time, with a notice period of no more than two (2) months, request to switch to another provider or to their own infrastructure. During the subsequent transition period of thirty (30) calendar days, A38 will provide Appster unchanged and will support the switch to a reasonable extent. Thereafter, the User has the opportunity for at least thirty (30) calendar days to retrieve their Content, apps and configurations in a common, machine-readable format. For the switch, no more than the costs actually incurred will be charged up to and including 11 January 2027, and no switching charges will be levied from 12 January 2027.
PART C – Supplementary provisions for consumers (B2C)
Clauses 23 to 29 apply only to Users who are consumers.
23 Right of withdrawal
23.1 Consumers who have concluded the contract online via the website have the statutory right of withdrawal. A38 informs them of this as follows:
Withdrawal Instructions
Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day of the conclusion of the contract.
To exercise your right of withdrawal, you must inform us (A38 digital processing GmbH, Bürgermeister-Finsterwalder-Ring 10, 82515 Wolfratshausen, email: kontakt@a38dp.io) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or an email). You may use the attached Model Withdrawal Form, but it is not obligatory. You can also declare your withdrawal via the ‘Withdraw from contract’ button in the footer of our website appster.eu.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Consequences of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments we have received from you without undue delay and in any event not later than fourteen days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested that the services should begin during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until the point in time you inform us of your exercise of the right of withdrawal from this contract, in comparison with the full coverage of the services provided for in the contract.
23.2 The consumer can declare their withdrawal via the ‘Withdraw from contract’ button in the footer of every page of appster.eu. There, without logging in, they state their name and the email address of their account and confirm the withdrawal with the ‘Confirm withdrawal’ button. A38 will confirm receipt of the withdrawal without delay on a durable medium (email), stating the content, date and time of receipt.
23.3 Commencement of performance before the end of the withdrawal period: If the consumer expressly requests in the ordering process that A38 begin performance before the end of the withdrawal period, the consumer owes, in the event of withdrawal, the compensation stated in the Withdrawal Instructions.
23.4 Model Withdrawal Form: If you wish to withdraw from the contract, you may complete this form and send it to A38 digital processing GmbH, Bürgermeister-Finsterwalder-Ring 10, 82515 Wolfratshausen, email: kontakt@a38dp.io: I/We (*) hereby withdraw from the contract concluded by me/us (*) for the use of Appster. Ordered on (*) / received on (*); Name of consumer(s); Address of consumer(s); Signature of consumer(s) (only if this form is notified on paper); Date. (*) Delete as appropriate.
24 Digital products: updates and warranty rights
24.1 The statutory provisions of Sections 327 et seq. of the German Civil Code (BGB) apply to contracts with consumers for digital products.
24.2 During the term of the contract, A38 provides the consumer with the updates that are necessary to maintain the conformity of Appster with the contract, including security updates, and informs the consumer of them.
24.3 In the event of defects, the consumer is entitled without restriction to the statutory rights (subsequent performance, termination of the contract, price reduction, damages). There is no obligation to notify defects in text form. The limitation period is governed by the statutory provisions.
25 Liability
25.1 A38 is liable without limitation in cases of intent or gross negligence, for injury to life, body and health, under the German Product Liability Act (Produkthaftungsgesetz), for damages arising from the assumption of a guarantee, for fraudulently concealed defects, and in other cases in which liability is mandatory by law.
25.2 In the event of a negligent breach of an essential contractual obligation, A38’s liability is limited to the damage that is typical for this type of contract and foreseeable at the time the contract is concluded. Essential contractual obligations are those obligations whose fulfilment is what makes the proper performance of the contract possible in the first place, on whose observance the consumer may regularly rely, and whose breach jeopardises the achievement of the purpose of the contract. In all other respects, liability for simple negligence is excluded.
25.3 Statutory rights of the consumer under Sections 327 et seq. of the German Civil Code (BGB) remain unaffected.
26 Default in payment
26.1 In the event of default in payment, A38 is entitled to demand default interest at five (5) percentage points above the respective base interest rate pursuant to Section 288(1) of the German Civil Code (BGB). The right to claim further damages for default is reserved.
26.2 The consumer’s rights of set-off and retention are governed by the statutory provisions.
27 Termination and return of data
27.1 The consumer may terminate the contract in accordance with Clause 10, including via the termination function provided on the website (‘Cancel contracts here’ button, followed by confirmation via the ‘Confirm cancellation’ button), which can be reached without logging in. A38 will confirm the termination without delay, stating the point in time at which the contractual relationship ends.
27.2 After the end of the contract, A38 will, on request, make available to the consumer, free of charge, within a reasonable period and in a common, machine-readable format, the Content provided or created by the consumer that is not personal data (Section 327p of the German Civil Code (BGB)). Clause 10.4 remains unaffected.
28 Changes to the digital product
28.1 A38 may change Appster beyond what is necessary to maintain conformity with the contract if there is a valid reason for doing so (in particular further development, technical developments, IT security or a change in the legal situation), if no additional costs are incurred by the consumer as a result, and if the consumer is informed clearly and comprehensibly about the change (Section 327r of the German Civil Code (BGB)).
28.2 If a change affects the consumer’s access to Appster or its usability by more than a minor degree, A38 will inform the consumer in text form at least six (6) weeks before it takes effect. In this case, the consumer may terminate the contract free of charge within thirty (30) days after the information or, if later, after the time of the change.
29 Applicable law and place of jurisdiction
29.1 For consumers with their habitual residence in another country, mandatory consumer protection provisions of that country remain unaffected.
29.2 The statutory provisions apply to the place of jurisdiction.