Conditions générales de vente
Date: 14.12.2022, Version: 3.2
Online Election Manager Terms and Conditions
Download the General Terms and Conditions and the Order Processing Agreement in PDF format.
POLYAS uses the website www.polyas.com to offer associations and other organizations the possibility of conducting online voting. Users have the option of creating and conducting voting projects themselves.
Terms and Conditions
Terms and Conditions refer to these general Terms and Conditions for using the Online Voting Manager from POLYAS Distribution GmbH. They represent a framework agreement for the purchase of Voting Products on the basis of Individual Contracts.
DPA denotes the Data Processing Agreement concluded between POLYAS and the User, which is attached to these Terms and Conditions as APPENDIX 1.
The Individual Contract is a contract for a Voting Product that can be completed through a browser application, the Online Voting Manager, by completing a new project.
Users are people who register to use the Online Voting Manager at www.polyas.com.
If you enter a billing address from Switzerland, your contractual partner is POLYAS (Schweiz) GmbH, Neumarkt 2, St. Leonhard-Str. 39, 9000 St. Gallen, Switzerland, UID: CHE-367.376.799. If your billing address is outside of Switzerland, your contractual partner is POLYAS Distribution GmbH, Marie- Calm-Str. 1-5, 34131 Kassel, Germany, Kassel District Court, HRB 15856.
Eligible Voters are those persons who the User provides the opportunity to digitally cast their vote or to nominate candidates using the Voting Products.
Online Voting Manager
The Online Voting Manager refers to the website where the User can view his/her projects and enter and modify personal data. The User can create a new project via the Online Voting Manager.
Voting Products is a generic term for various products relating to online voting that can be ordered via the Online Voting Manager. Currently available products are the classic Online Voting, Live Voting, and the Nomination Platform. The Voting Products that are available at any particular time can be viewed along with their associated service descriptions at www.polyas.com.
The voting period means the time between the start and end of voting. The start and end of voting can be freely configured by the User before concluding an Individual Contract.
2. Area of Application
- These Terms and Conditions apply exclusively to Users who are not Consumers. According to Section 13 of the German Civil Code (BGB), a Consumer means every natural person who enters into a legal transaction for purposes that are predominantly outside his trade, business or profession. The Online Voting Manager is not intended for Consumers and shall not be used by Consumers.
- The Terms and Conditions of POLYAS apply exclusively. Conflicting or deviating provisions of the User, even if known, are not part of the Contract, unless POLYAS expressly agrees to them in writing.
- The provisions of these Terms and Conditions apply both to the use of the Online Voting Manager and to Individual Contracts.
- The Terms and Conditions are concluded in German. POLYAS can also provide the Terms and Conditions translated into other languages. In the event of contradiction between the German and the translated version of the Terms and Conditions, the German version prevails.
3. Customer Account and Conclusion of Contract
- Use of the Online Voting Manager requires the User to register. When registering a customer account, an e- mail address shall be provided. Users are obliged to use an e-mail address that they are authorized to use. The User can view and save the Terms and Conditions when registering. Terms and Conditions are accepted with the registration.
- The User can use the Online Voting Manager to configure Voting Products. This includes in particular the setting of the voting period and the determination of who the Eligible Voters are. After configuration, the User is shown the price for the chosen Voting Product in the chosen configuration. By clicking the “Pay” button, the User submits a binding offer to purchase a Voting Product. The Individual Contract is concluded when POLYAS expressly accepts the offer or provides the Voting Product in the chosen configuration.
4. Purpose of the Contract
- The service from POLYAS consists of providing the Online Voting Manager, which can be used to order various Voting Products and to make the respective Voting Products available. The Online Voting Manager and the individual Voting Products are made available to the User for retrieval via the Internet for the duration of these Terms and Conditions and the corresponding Individual Contract (known as “Software-as-a-Service”).
- The User is responsible for providing Internet-capable end devices and an adequate and functional Internet connection. This is not part of the Contract and is not within the control of POLYAS.
- POLYAS uses a server to provide the Voting Product to the User for the duration of the voting period.
- POLYAS has the right to modify the Online Voting Manager at any time and without individual notification of Users, for example to further its development and add new Voting Products, or to partially or completely discontinue the Online Voting Manager or individual Voting Products. This shall not affect the performance of Individual Contracts already concluded.
5. Rights of Use
- The User shall receive simple and non- transferable rights of use to the Online Voting Manager and the Voting Products limited to the extend required for contractual use. The rights to use the Online Voting Manager are limited in time to the duration of this Contract. The rights to use the Voting Products are limited in time to the voting period. If new versions or updates are provided during the term of this Contract or the Voting Period, the rights of use shall also extend to these.
- During the Voting Period, the User shall be entitled to grant eligible voters the right to use the Voting Products in accordance with paragraph 1 insofar as this is necessary for the participation in voting.
- Further rights of use shall not be granted.
6. Technical Requirements and Transfer Point
- The technical requirement for using the Online Voting Manager and the Voting Products is an up-to-date version of a standard Internet browser.
- The transfer point for the Online Voting Manager and the Voting Products is the outbound router interface at the data centers used by POLYAS.
- POLYAS owes an availability of the Voting Products of 98% within the Voting Period. If the duration of the Voting Period is less than 50 hours, the non-availability of the Voting Products within the Voting Period may be up to 60 minutes without POLYAS being in breach of its obligation to perform.
- The Voting Products are deemed to be available if there is an uninterrupted connection between the servers, on which the Voting Products are hosted, and the transfer point to the Internet.
- If the availability is not met, the remuneration shall be reduced pro rata temporis. The User must provide evidence of the shortfall in availability. The User must notify POLYAS immediately of any unavailability. Otherwise Sec. 8 (2) (f) shall apply.
- Further claims due to the shortfall in availability shall be excluded, unless they are based on injury to life, limb or health, the assumption of a guarantee, or the German Product Liability Act.
- Otherwise, the limitations of liability set forth in Section 10 shall apply.
8. Duties and Obligations of the Election Organizer
1. The User shall create the technical, legal, and organizational preconditions to enable Eligible Voters to use the Voting Products. In particular, the User shall be responsible for
a. In the event that the User transmits voting data (including voter registers) to POLYAS for the purpose of setting up and conducting a voting project, he/she shall back up such data regularly and in accordance with the significance of the voting data and make their own back-up copies to enable reconstruction of the voting data and information in the event of loss.
b. Ensuring that the legal requirements for the use of Internet-based voting for the selected Voting Product are met and complied with and
c. Ensuring that the other legal requirements for the use of Internet-based voting for the selected Voting Product are met and complied with, including, but not limited to sub-legislative norms, administrative regulations, and public and private-law statutes.
2. The User shall fulfill all duties and obligations that are necessary for the execution of the Contract. These include in particular:
a. Keeping the usage and access authorization assigned to him/her as well as his/her access data secret, protecting them from access by third parties and not passing them on to unauthorized third parties. These data are to be protected by appropriate and customary measures. The User shall inform POLYAS immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons;
b. Compliance with the restrictions/ obligations with regard to the rights of use, in particular the User shall:
i. not retrieve or cause to be retrieved any information or data without authorization or interfere or cause to be interfered with any programs operated by POLYAS or intrude or promote such intrusion into data networks of POLYAS without authorization;
ii.not misuse the exchange of electronic messages possible within the framework of the contractual relationship and/or using the voting software for the unsolicited sending of messages and information to third parties for advertising purposes;
iii. indemnify POLYAS against claims of third parties, which are based on an illegal use of the voting software by him/her or which result from data protection, copyright or other legal disputes caused by the User and for which POLYAS is not responsible, which are connected with the use of the voting software;
iv. oblige the Eligible Voters to comply with the provisions of this Contract applicable to them;
c. Ensuring that he/she (e.g. when transmitting texts/data of Third Parties to the voting software or to employees of POLYAS) observes all rights of third parties to material used by him/her;
d. Obtain any required consent from the respective person insofar as he/she collects, processes, or uses personal data when using the voting software and no legal permissions permit this;
e. Before sending data and information to POLYAS, the User shall check them for viruses and use state-of-the-art virus protection programs;
f. Defects in contractual services are to be reported to POLYAS without undue delay. If the User fails to notify POLYAS in due time for reasons for which the User is responsible, this shall constitute contributory causation or contributory negligence. Insofar as POLYAS was unable to provide a remedy due to the omission or delay of the notification, the User is not entitled to reduce the agreed fee in whole or in part, to demand compensation for the damage caused by the defect, nor to terminate the Contract without notice. The User has to prove that he/she is not responsible for the omission of the notification;
g. Pay the agreed remuneration when due;
h. In the event that the User transmits voting data (including voter registers) to POLYAS for the purpose of setting up and conducting a voting project, he/she shall back up such data regularly and in accordance with the significance of the voting data and make their own back- up copies to enable reconstruction of the voting data and information in the event of loss.
- POLYAS offers the payment methods invoice, credit card, and PayPal. POLYAS reserves the right not to offer certain payment methods and to refer to other payment methods. Please also note our privacy statement.
- For the payment methods invoice, PayPal, and credit card, POLYAS uses the payment service provider BS Payone GmbH, Lyoner Straße 9, D- 60528 Frankfurt/Main, Germany – Frankfurt/Main District Court, HRB 28985, to which POLYAS assigns claims against the User for the purpose of payment processing. For the invoice payment method, a positive credit assessment by our payment service provider is required.
- Fees incurred for conducting a voting project, including additional services (e.g. additional development of product functionalities or services), are due in advance.
- Unless otherwise agreed, all invoices from POLYAS are to be paid immediately upon receipt of the invoice without deduction.
- All prices are stated as net prices and are subject to the applicable value added tax.
- The User can only offset against claims by POLYAS with undisputed or legally established counterclaims. The User can only exercise a right of retention if his/her counterclaim is based on the same contractual relationship.
- If the User is in default of payment, POLYAS may suspend the voting project.
- POLYAS is liable – irrespective of the legal basis – for claims for damages or claims for reimbursement of futile expenses within the meaning of Section 284 of the German Civil Code (BGB) in accordance with the following provisions in paragraphs 2 to 8.
- POLYAS shall be liable without limitation in accordance with the statutory provisions for damages arising from injury to life, limb, or health, for damages caused by intent or gross negligence as well as for damages falling within the scope of protection of a guarantee, quality, or durability guarantee by POLYAS, unless otherwise specified in the respective guarantee agreement.
- For damages other than those mentioned in paragraph 2, which are based on a culpable breach of an material contractual obligation, POLYAS shall be liable, limited to compensation for the foreseeable damage typical of the Contract, but not exceeding EUR 250,000 per damage event and not exceeding a total amount of EUR 2,500,000. Material contractual obligation within the meaning of sentence 1 means any obligation, which must be fulfilled to allow proper performance of the Contract in the first place and which the User is able to rely on as being regularly observed.
- Claims for damages due to loss of profit and consequential harm caused by a defect are excluded unless they are based on intent or gross negligence.
- POLYAS shall have no further liability.
- Liability under the Product Liability Act remains unaffected.
- POLYAS shall not be liable for damages resulting from a non- contractual use of the software.
- The above limitation of liability also applies to the personal liability of the employees, representatives, and bodies of POLYAS.
11. Contract Term and Termination
- The Contract is concluded for an indefinite period and may be terminated by either Party at any time without notice.
- The term of the Individual Contracts corresponds to the voting period set by the User. Ordinary termination of an Individual Contract is excluded according to Section 542 (2) BGB (German Civil Code).
- If at the time of termination of the General Terms and Conditions, Individual Contracts have been concluded and the voting period has not yet been completed, termination is only possible at the end of the voting period for the last Individual Contract.
- The right to extraordinary termination remains unaffected.
12. Amendments to the Terms and Conditions
- POLYAS can amend the Terms and Conditions at any time with consent from the User. For this purpose POLYAS will inform the User by e-mail about the changes and indicate how consent can be granted. If the User grants his/her consent, the new Terms and Conditions shall apply between the Parties for the future.
- If the User does not provide consent within four weeks after being informed about the amendments to the Terms and Conditions, POLYAS is entitled to block the User's account. The block will be lifted as soon as consent is granted.
13. Data Security and Data Protection
- The Parties shall comply with the applicable data protection provisions, in particular those applicable in the European Union and the Federal Republic of Germany, and shall oblige their employees deployed in connection with the Contract and its performance to maintain confidentiality and to observe data protection, insofar as they are not already generally obliged to do so.
- If the User collects, processes or uses personal data, he/she is responsible for ensuring that he/she is entitled to do so in accordance with the applicable provisions, in particular data protection regulations, and indemnifies POLYAS from Third- Party claims in the event of a violation. Insofar as the data processing involves personal data, POLYAS will comply with the legal requirements of data processing and the instructions of the User (e.g. to comply with deletion and blocking obligations). The instructions must be communicated in writing in a timely manner.
- In the event that personal data is processed by POLYAS on behalf of the User, the Parties shall regulate the data processing in the Data Processing Agreement in accordance with Art. 28 GDPR, which is attached to these Terms and Conditions as APPENDIX 1.
1. POLYAS and the User (each Receiving Party) shall keep information of the other Party (each Disclosing Party) confidential within the scope of the following provisions.
2. “Confidential information” shall be:
a. in addition to all information expressly designated as “confidential”, all technical, operational, commercial, strategic, financial, legal, and tax information as well as information relating to pricing, customers, advertising, financing, business activities, and business processes which one Party (the “Disclosing Party”) discloses to the other Party (the “Receiving Party”) in the context of the project and in which there is a legitimate interest in confidentiality.
b. in particular products (e.g. software codes), business relationships, customer lists, business ideas, inventions, developments, business strategies, business calculations, business plans and personnel matters of the Parties.
c. information of commercial value, which one Party obtains by observing, reverse engineering or testing pro-ducts or items of the other Party and in which there is a legitimate interest in confidentiality.
d. the fact that Confidential Information has been brought to the attention of the Parties, the existence and content of such an Agreement, and any other information pertaining to the completion or performance of the project, including the fact that negotiations are taking place and the status of such negotiations.
e. other information (including data, records, and know-how) within the meaning of Section 2 GeschGehG (German “Law on the Protection of Business Secrets”), which are neither general knowledge nor readily accessible, of economic value and subject to confidentiality measures.
3. The form of transmission and the storage medium are irrelevant; in particular, information provided only verbally is also included.
4. Confidential information within the meaning of this Agreement is not information,
a. which is already public or which is made available to the public without violating this Agreement;
b. which the Receiving Party lawfully obtained from a Third Party;
c. which was lawfully in the Receiving Party's possession at the time of disclosure; or
d. the disclosure of which the Disclosing Party has consented to in advance in writing.
5. The burden of proof for the existence of these conditions shall be borne by the Party invoking this exception.
6. In case of doubt, information disclosed to one of the Parties is to be treated as confidential until mutual clarification.
7. Confidential information pursuant to this Section 1 shall also include information from Affiliated Companies of the Disclosing Party within the meaning of Sections 15 et seq. AktG (German Stock Corporation Act).
8. “Authorized persons” are the Parties, their corporate bodies and employees as well as their Affiliated Companies, their corporate bodies and employees provided that they are each subject to a confidentiality obligation that does not fall below the protection of this Agreement and who necessarily require access to the Confidential Information within the scope of the project in order to fulfill the purposes specified in the Recital Clause. Furthermore, Authorized Persons are consultants of the Parties who are professionally or contractually obliged to maintain confidentiality. Each Party shall provide the other Party with the names and positions of its consultants upon request.
9. “Employees” are employees of the Parties and their respective Affiliated Companies as well as employees without employee status such as freelancers and temporary workers.
10. The Receiving Party is prohibited from disclosing or publishing Confidential Information as defined above to third parties who are not Authorized Persons without the prior written consent of the Disclosing Party. The Receiving Party shall use all reasonable efforts to ensure the confidentiality and security of the Disclosing Party's Confidential Information. This means in particular that
a. the Confidential Information is handled in strict confidence and is also marked as such internally and that appropriate secrecy measures (as defined in Section 2 (1) (b) GeschGehG (German “Law on the Protection of Business Secrets”) are taken to protect the Confidential Information from access by Third Parties. This includes, in particular, appropriate technical and organizational security measures. In order to always be able to ensure an appropriate level of processing security, the Parties shall regularly evaluate the measures implemented at your site according to the state of the art and make adjustments if necessary. Each Party shall notify the other Party in advance of any significant changes to the technical and organizational measures.
b. the Confidential Information will only be used for the purposes agreed between the Parties and may not be used for other purposes and/or disclosed to third parties. The Receiving Party shall inform Authorized Persons who receive Confidential Information from it about the content and scope of the rights and obligations under this Agreement and ensure that these Authorized Persons comply with the provisions of this Agreement.
c. the Confidential Information of the Disclosing Party is not used to gain a competitive business advantage over the Disclosing Party, any of its Affiliates, or any third party.
11. The Receiving Party shall refrain from exploiting the Confidential Information disclosed to it within the scope of this Agreement in any way outside the agreed purpose or from imitating it (including by way of so- called “reverse engineering”) or having it exploited or imitated by Third Parties and, in particular, from applying for industrial property rights to the Confidential Information – in particular trademarks, designs, patents or utility models – unless expressly agreed otherwise.
12. The Receiving Party shall, subject to statutory or regulatory retention obligations, immediately return the Confidential Information upon request of the Disclosing Party and/or immediately completely destroy the duplicates and/or data still in its possession and, upon request of the Disclosing Party, inform the Disclosing Party in writing which Confidential Information has been returned, destroyed or deleted and which has not.
13. The Receiving Party shall promptly notify the Disclosing Party in writing (or in text form, e.g. by e-mail) if it, its officers, employees or consultants become aware that Confidential Information has been disclosed in violation of this Agreement.
14. Not covered by the described prohibition of disclosure is the disclosure of Confidential Information due to a law, a regulation or a court or official order. In such case, the Receiving Party shall take all reasonable and permissible steps to prevent disclosure of the Confidential Information to the maximum extent practicable and, to the extent permissible, notify the Disclosing Party in writing prior to disclosure to allow the Disclosing Party to take legal action against the order of disclosure.
15. The disclosure of Confidential Information to Internet-based Cloud Services does not constitute disclosure, publication, transmission, or transfer and is not prohibited by this Agreement to the extent that the Receiving Party ensures by technical measures that the Confidential Information is encrypted before transmission in such a way that access by third parties (including the Cloud Service provider) is effectively excluded. Even if the above conditions are met, the Receiving Party shall be liable to the Disclosing Party for the security and confidentiality of the Confidential Information it transmits to Cloud Services in accordance with the provisions of this Agreement.
16. The obligation to maintain confidentiality shall continue for further five years beyond the end of the Agreement.
15. Reference Naming and Public Statements
- Public statements by the Parties about the cooperation shall be made only by prior mutual consent. This also includes the mere public statement that the Parties are cooperating.
- If POLYAS would like to name the User as a reference for advertising purposes, the Parties shall reach a separate agreement on this.
16. Final Provisions
- The appendices to these General Terms and Conditions are an essential and integral part of this Contract.
- The exclusive place of jurisdiction for all claims arising from and on the basis of these General Terms and Conditions is Kassel, Germany.
- This Contract shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
- Amendments and supplements to this Contract must be made in writing. This also applies to changes to the written form requirement.
- General Terms and Conditions of the User, even if known by POLYAS, shall not be part of the Agreement, unless POLYAS expressly agrees to them.
- Should any of the provisions of this Agreement be invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that fulfills the original purpose as far as possible. The same shall apply in the event that a provision should be unenforceable or unclear. In this case, instead of the impracticable or unclear provision, such a provision shall be deemed to have been agreed which is practicable and clear and comes as close as possible to the originally intended purpose.