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Note: These Terms of Service are a translation from German to English. The German version is legally binding. You can find it here.

Terms of Service

These Terms of Service apply from 21.10.2024.

“kula” is a (cloud) service of kula app GmbH (short: kula), company registration number FN 584452 p, Taubstummengasse 11, 1040 Vienna, with multiple clients (iOS apps, Android apps, web client), to offer various creative digital services, in particular the creation of mobile applications for iOS and Android, web applications and websites (hereinafter referred to as “Customer Apps”) for the personal use case of the user, i.e. you, using a configurator (website builder). The clients can be obtained through the following distribution channels:

  • kula App (iOS) – App Store for iOS
  • kula App (Android) – Google Play Store
  • kula App (Web) - https://web.kula.app

(hereinafter collectively referred to as Software)

1. GENERAL INFORMATION OBLIGATIONS

1.1. Pursuant to the Consumer Protection Act (KSchG) and the Distance and Off-Premises Contracts Act (FAGG), kula provides the user with the following information to the extent possible within the scope of these Terms of Service:

a) Essential characteristics of the Software: It entitles a person or organization to use the (booked) services and platform.

b) Contracting party is kula.

c) Total price/costs: The stated prices include all taxes and charges.

d) Costs of remote communication: Standard rate of the user (no premium rates).

e) Payment terms: immediately online via payment provider.

f) Right of withdrawal: Due to the provision of digital content (or downloads), the right of withdrawal expires because kula has begun performing the contract. The user therefore expressly agrees to the commencement of performance before the expiry of the withdrawal period and confirms having acknowledged that the user loses the right of withdrawal due to the early commencement of performance. A confirmation of the contract will be provided.

g) Warranty rights: pursuant to § 922 ff ABGB.

2.1. By using the Software, the user agrees to have read and understood the following terms of use (Terms of Service) and undertakes to use the Software only within the scope of these Terms of Service. Upon download, the terms of the online store (e.g. Apple App Store, Google Play Store), over which kula has no influence, also apply.

2.2. Business terms of the user do not apply and are only valid if kula expressly agrees to them in writing.

2.3. The Terms of Service apply to both all electronically submitted orders to kula and to the use of the Software.

a) The Software has various functions and is acquired by the user on the basis of these functions or for their use.

b) kula reserves the right to expand functions at any time without notice, offer new functions within updates of the Software and — for important reasons — remove individual functions temporarily or permanently.

c) These Terms of Service refer to the purchase, rental and use of the Software in its current version.

d) The prices for the usage variants in their current valid version are also part of the contract and remain unaffected by this. These are available at www.kula.app.

2.4. kula reserves the right to make changes to these Terms of Service without prior notice. In the event of such a change, you as a registered user will be informed by email and can revoke the change within the given period. kula reserves the right to separately inform the user upon next use of the Software and request consent. The amended Terms of Service apply from this point in time or after the expiry of the revocation period for future usage processes.

2.5. If the user does not consent to a change to the Terms of Service, further use of the Software as a registered user is no longer possible. In this case, the user can also no longer use their own Customer Apps, as these are also subject to these Terms of Service.

2.6. The Customer Apps are “property” of kula and the user does not acquire ownership of them by acquiring the Customer Apps, but a time-limited, non-exclusive and non-transferable license to use them in the sense of Austrian copyright law.

3. USE OF THE SOFTWARE

3.1. The user’s right of use includes the operation of the Customer Apps for (i) the purposes of their organization through download and activation, as well as (ii) use by all persons who are in an employment or other contractual relationship with the customer, and (iii) use by third parties with access to a download link.

3.2. Duplication, decompilation or duplication of the technical and digital processes used in the Software or Customer Apps is not permitted either for private or commercial use.

3.3. The user is also not permitted to remove, alter or otherwise obscure or make illegible copyright notices, serial numbers or other references serving to identify the Software.

3.4. To the extent that kula provides the user with software created by third parties for use, the user rights granted to the customer are limited in scope to the rights of use that the third party has granted to kula. In this case, kula is obliged to disclose to the user the scope of the rights of use granted by the third party upon the customer’s request.

3.5. kula is obliged to take all technical precautions necessary to ensure the highest possible availability level. However, liability is excluded.

4. CONTRACT CONCLUSION

4.1. In principle, the creation of Customer Apps by a user is offered free of charge, and the publication of Customer Apps in the app stores is paid for through in-app and web purchases. The purchasing options or license terms are offered in several packages, which differ in the scope of available features and limitations. Various limitations (e.g. included cloud storage volume, available selection of settings) can individually be increased through paid add-ons. These add-ons are either billed once for a specific period or regularly until the respective termination. Individual support is only partially included in the packages and can also be purchased via add-ons.

4.2. kula reserves the right to offer the user discounts, individual contract packages and special prices for implementation under conditional circumstances.

4.3. The services offered by kula in the Software and at www.kula.app are non-binding and a non-binding invitation to the user to make a binding offer for the offered services. By ordering the Customer Apps, the user makes such a binding offer.

4.4. By downloading the Software and registering and clicking the button e.g. “order now for a fee / buy / buy for €xx” during the ordering process, possibly with sending an order confirmation by email, a legally valid contract is concluded between you and kula. Your customer and contract data, as well as information about the campaign through which a registration takes place, are stored for billing and subscription contract creation.

4.5. Furthermore, kula is entitled not to accept the offer for justified reasons. These reasons include in particular technical reasons (e.g. unavailability of services/bandwidths at the user’s location), economic reasons and reasons that would entitle kula to dissolve the contract or block the user.

4.6. Digital content within the meaning of these Terms of Service is all content not located on a physical data carrier (software and data) that we provide to you with the granting of the rights of use mentioned in these Terms of Service and/or in accordance with the license conditions stated in the respective item description.

4.7. If you purchase digital content from us (via the Software), we owe you exclusively:

a) the disclosure of a source for the respective digital content. We can either name a specific website from which you can download the acquired digital content or provide a download option via our own website or Software; if applicable

b) the provision of a license key with which you can unlock the digital content; and

c) the granting of the contractually agreed rights of use.

4.8. With the exception of the respective rights of use granted to you, you do not acquire any further rights, in particular no ownership of the digital content.

4.9. Campaigns conducted in cooperation with partner companies are clearly identified on the respective landing pages hosted at kula.app through logos and links of the partner companies.

Current campaigns and partner companies are:

4.9.1. Campaign “Appful” (https://web.kula.app/campaign/appful) With the partner company:

4.9.2. Campaign “BTV” (https://web.kula.app/campaign/btv) With the partner companies:

4.10. In campaigns or in individual cases, partner companies of kula identified on the landing pages may provide app store accounts for publishing the app. This is optional and is agreed on a case-by-case basis between the parties. If the customer publishes via their own accounts, the regular fees from Apple and Google also apply.

5. PRICES, PAYMENT TERMS

5.1. The respective stated prices are in euros and include all taxes. The amounts stated at the time of the order apply. We will inform you again about the prices and taxes in the order summary before completing the order.

5.2. We use Stripe as a payment method. At https://stripe.com/at/privacy you will find all details about the associated privacy policy. The terms and payment conditions of this provider apply. kula reserves the right to change the payment provider at any time.

5.3. Unless we agree otherwise with you, the invoice amount is due immediately. In the event of default, we are entitled to claim statutory default interest.

5.4. If you choose Stripe as the payment method, we declare in advance our acceptance of your offer at the time you click the order button and thereby issue the payment order to Stripe.

5.5. We expressly point out that receiving data packets may incur costs that depend on the terms of your mobile phone provider. Please therefore inquire with your mobile phone provider about possible costs that may arise when downloading data over the mobile network (including roaming charges).

5.6. When the subscription is changed by the customer or kula, the amount already paid for the current period is credited to the customer on a pro rata basis and taken into account in the next billing.

6. CONTRACT DURATION, TERMINATION

6.1. The contractual relationship and the individual agreements made on its basis are — unless otherwise agreed — concluded for an indefinite period.

6.2. As a rule, services are subscribed to on a monthly basis — depending on the user.

6.3. Individual users subscribe to the Software on an annual basis via in-app and web purchases.

6.4. The contractual relationship can — unless otherwise agreed — be terminated by either contractual party at the end of each calendar month or at the end of the annual period with one month’s notice without stating reasons in writing or via the user account in the Software. The termination leads to a termination of all individual agreements made on its basis, which are to be assessed according to the dates and periods set out therein.

6.5. The termination of an individual agreement is governed by the dates and periods set out therein. It does not affect the existence of any further individual agreements or the framework contractual relationship.

6.6. If a minimum contract period (contractual commitment) is agreed between the contracting parties, then in the event of termination of the contractual relationship before the expiry of this minimum contract period, the user must pay a remaining fee equal to the sum of the fees for the period between the termination of the contract and the end of the minimum contract period. This does not apply if the contractual relationship was terminated for reasons attributable solely to kula.

6.7. The contracting parties are entitled to terminate the contract and/or individual agreements made on its basis without regard to dates and periods for the following important reasons:

a) The customer is in arrears with payment obligations from the contractual relationship in the amount of at least two monthly fees and has been unsuccessfully reminded with setting of a reasonable deadline of two weeks and with threat of contract termination.

b) If insolvency proceedings are opened against the assets of the contracting party, or an application for the opening of such proceedings is rejected due to insufficient assets, or the conditions for the opening of such proceedings or the rejection of such an application are present.

c) A contracting party, for whatever reasons, culpably or without fault, is no longer able to fulfill essential provisions of this contract.

d) If the contracting party violates essential provisions of this contract.

6.8. Further reasons entitling kula to extraordinary termination of the contract and/or individual agreements exist when conditions are fulfilled that entitle kula to a blockage. The customer acknowledges that kula is entitled to delete the data stored and held in fulfillment of the contract upon termination of the contractual relationship. It is the responsibility of the user to back up their data before the termination of the contractual relationship.

6.9. After termination of this contract, the customer is obliged to refrain from further use of the Software and the Customer Apps as well as any user documentation (in any form) or to delete them from their systems and third-party services.

7. SERVICES

7.1. kula makes the Software available to the user for the duration of this contract as of the date of these Terms of Service via (cloud) transmission over the internet for use against payment. All other exploitation and usage rights as well as copyrights and other intellectual property rights to the Software and the associated user documentation that are not covered by this contract belong exclusively to kula.

7.2. The scope of functions of the Software is solely at kula’s discretion in its expansion and adaptation. The Customer Apps include the features chosen by the user, provided through the website builder of the Software.

7.3. kula makes application programs and storage space on computers available to the user via a cloud for use over the internet in accordance with these Terms of Service and any individual contracts concluded (e.g. for additional packages) (Application Service Providing). The application programs are executed on computers rented by kula and use the storage space available thereon. The customer accesses the programs through the clients of the Software.

7.4. kula is entitled to temporarily interrupt or restrict the provision of services and/or to discontinue the contractually agreed services in whole or in part if and to the extent this is necessary to rectify or avoid disruptions, defend against attacks on the network infrastructure, or carry out operationally necessary work.

7.5. The user acknowledges that kula must restrict or completely block data traffic in accordance with any official or judicial order. To this extent, kula has no unconditional obligation to data traffic. The same applies in cases where kula would otherwise expose itself to the risk of legal prosecution.

7.6. kula informs the user that in the case of individual development of new features in the Software and Customer Apps, these may also be made available to other users, so there is no exclusive right of use for the user.

7.7. kula cooperates with partner companies in certain campaigns, which are identified on kula’s landing pages. More on this in 4.9. These companies may access customer data to offer support services. This takes place exclusively within the scope of contractual fulfillment and does not include access to data beyond support.

8. DATA INPUT

The user is entitled to enter data into the Software, which is stored therein. The user is solely responsible for the copyright and data protection legality of the data entered by them and shall indemnify and hold kula harmless in this regard.

9. USE OF DATA

9.1. kula generally has no control over the data entered by you in the Customer Apps and undertakes not to store, use or pass it on to third parties outside the Software and Customer Apps, unless laws (e.g. GDPR, UGB, BAO etc.) provide otherwise.

9.2. The user undertakes to keep their access data (username/email and password) secret and to protect it from unauthorized access. If the user suspects that third parties are misusing their access data, they must immediately report this suspicion to kula and change the password.

9.3. The customer is also not entitled to make access to the Software available to third parties for a fee or free of charge and to organize their contractual relationships with third parties in such a way that free use of the contractual Software is excluded, unless it is an authorized group of users approved by kula.

10. LINKS AND CONTENT

10.1. To the extent that kula enables access to online services of third parties on its platform via links, it is not responsible for the third-party content contained therein. kula does not adopt the linked content as its own.

10.2. If kula gives the user the opportunity to upload their content for publication, e.g. in a forum, the following provisions apply:

a) The content uploaded by the user (e.g. comments, images, video) is potentially available to all users. It is not possible for kula to exercise direct control over the content and therefore assumes no responsibility for the content, accuracy and form of this content. The user is themselves responsible for their content.

b) The user grants kula an unlimited in time and location, transferable and non-exclusive license to use the content uploaded by them. kula is not obliged to keep the content accessible and can reject, publish elsewhere, shorten or delete content from users at any time.

c) The user guarantees kula not to upload any content whose provision, publication or use violates applicable law or infringes the rights of third parties. The uploading of racist, pornographic, inhumane, offensive and immoral content is expressly prohibited. The user guarantees in particular that the uploaded content does not infringe any rights (especially copyrights) of third parties.

d) The user undertakes to indemnify and hold kula and its vicarious agents harmless against all justified claims arising from unlawful content and to provide full satisfaction for the resulting disadvantages; this also includes the costs of necessary and appropriate legal defense.

e) If a third party claims to have had their rights violated by the content, kula is entitled to disclose the contact data stored about the user.

f) In the event of rejection of Customer Apps from distribution channels Apple App Store and Google Play Store due to content not complying with App Review Guidelines, kula will notify the user but is not obliged to adapt the content to comply with the guidelines.

11. GRANTING OF RIGHTS OF USE FOR DIGITAL CONTENT

11.1. Unless otherwise stated in the respective service description, upon full payment of the fee, kula grants the user the non-exclusive, geographically unlimited and temporally limited to the license period right to use the acquired digital content for private and commercial purposes. This right is not transferable to third parties.

11.2. Any further use beyond this is prohibited. In particular, the user may not copy, edit, distribute, publicly perform or present the acquired digital content or make it publicly available on the internet without the separate consent of the rights holders or a statutory exception.

11.3. Passing on the acquired digital content to third parties or making copies for third parties is prohibited, unless mandatory law provides otherwise.

12. YOUTH PROTECTION

By placing an order for digital content that, according to the age recommendation stated in the product description, is not suitable for minors (e.g. FSK or USK-18 items), you declare that you have reached the corresponding minimum age. You are yourself responsible for ensuring that digital content purchased from us is only accessible to children and young people in accordance with the age recommendation.

The Software, user interface and components of the Customer Apps (photos, videos, graphics, etc.) and other services and offers are protected by copyright. The copyright includes the program code, documentation, appearance, structure and organization of the program, all program names and all logos.

14. CONFIDENTIALITY

14.1. The contracting parties must maintain confidentiality about all business and operational matters that have come to their knowledge on the occasion of this contract. The contracting parties mutually assure each other to treat all information related to the fulfillment of this contract strictly confidentially even beyond its expiry.

14.2. The contracting parties undertake to impose these specified confidentiality obligations on all employees, staff and all other persons whose services they make use of for the fulfillment of the contract or who otherwise obtain knowledge thereof.

15. WARRANTY, LIABILITY

15.1. If the user makes false statements when using kula’s services or uses them abusively, the user is liable to kula for damages incurred. Furthermore, the user can in this case be permanently excluded from using these services.

15.2. Adaptations, additions and changes to the Software and Customer Apps, as well as measures to identify and rectify functional faults, may only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.

15.3. We cannot guarantee uninterrupted availability of the online services offered, as the necessary technical prerequisites for internet services and telecommunications are outside our sphere of influence. We therefore assume no liability, warranty or guarantee if the online services are temporarily unavailable. The same applies to necessary maintenance periods.

15.4. kula assumes no liability for the completeness, consistency, accuracy and timeliness of information content provided by third parties (e.g. links to websites of third parties).

15.5. kula undertakes to make the contractual Software and Customer Apps accessible and to maintain them for use via a data network in accordance with the current state of the art. For this purpose, kula stores the Software on a server that can be accessed by the customer via the internet.

15.6. kula warrants that the Software meets the normally required specifications and is suitable for fault-free use and ensures the functionality and operational readiness of the Software for the duration of the contract.

15.7. If kula fails to meet this obligation within a reasonable period, the customer may demand a corresponding reduction of the fee or, in the event of a significant deviation or malfunction, withdraw from the contract.

15.8. kula is obliged to remedy defects in the contractual Software without delay. When remedying defects, kula shall endeavor to ensure that no interruption occurs in the connection between kula’s server and the user.

15.9. If a malfunction or deviation is attributable to circumstances not attributable to kula, such as improper handling, use of unsuitable hardware or operator errors, warranty claims of the customer are excluded.

15.10. It is noted that kula is not liable for the functionality of lines to its server, in the event of power outages and failures of servers that are not within its sphere of influence.

15.11. kula is not liable for the content provided by the contracting party. In particular, kula is not obliged to check the content for possible legal violations. Should third parties claim against kula for possible legal violations resulting from the content of the internet presentation, the customer undertakes to indemnify kula from all liability and to reimburse kula for all costs incurred due to the possible legal violation.

15.12. kula guarantees that the Software is free of (protective) rights of third parties that would prevent free and unrestricted use by the user, and indemnifies the user against any claims raised by third parties for a period of 3 years from delivery. The warranty commitments or indemnifications provided in this point are excluded if a defect or infringement of (protective) rights of third parties was caused by the customer’s behavior beyond the contractual use or the customer’s unauthorized modification or editing of the Software.

15.13. kula is only liable for damages caused intentionally or by gross negligence. Liability for slight negligence or lost profits is excluded to the legally permissible extent. Furthermore, kula assumes no liability for consequential damages or indirect damages such as data loss.

15.14. In the event of changes in legal regulations, technical or scientific findings that are significant for the functionality of the contractual Software with regard to the purposes that users of the Software typically pursue when using it, kula undertakes to make corresponding adaptations of the Software without delay as soon as the change becomes known to kula when applying due diligence.

15.15. The selection of the adaptation to be carried out for the contractual Software is solely at kula’s discretion.

15.16. In the event of delivery or performance obstacles for which kula is responsible, the user is entitled to withdraw (from the individual contract) regarding the respective affected service if kula does not remove the delivery or performance obstacle within a reasonable deadline set by the user of at least two weeks.

15.17. If kula cannot provide the service for reasons attributable to the user, kula is entitled to withdraw (from the individual contract) regarding the respective affected service if the user does not remove the obstacle within a reasonable deadline set by kula of at least two weeks.

16. DISPUTE RESOLUTION

Of the bodies mentioned in the Alternative Dispute Resolution Act for out-of-court alternative dispute resolution (“ADR bodies”), the Internet Ombudsman and the Consumer Arbitration Board are eligible: Internet Ombudsman, Margaretenstr. 70/2/10, 1050 Vienna, www.ombudsmann.at. Consumer Arbitration Board, Mariahilfer Straße 103, Staircase 1, Unit 18, Vienna, 1060, www.verbraucherschlichtung.at. The Online Dispute Resolution platform of the European Commission can also be used to resolve disputes with kula: http://ec.europa.eu/consumers/odr/.

17. FINAL PROVISIONS

17.1. Austrian law applies, excluding the conflict of law rules of private international law and the UN Sales Law.

17.2. The place of jurisdiction is the competent court at kula’s registered office. For consumers within the meaning of the KSchG, the provisions of § 14 KSchG apply.

17.3. If individual provisions of these Terms of Service are or become invalid, this does not affect the validity of the remaining provisions.

17.4. This contract conclusively governs the legal relationships of the contracting parties. Any agreements made or declarations made in connection with this contract lose their validity upon signing of the present contract.

17.5. The contract language is German.

For comments and complaints about these Terms of Service, please send us an email at legal@kula.app