General terms and conditions

A. General Provisions

1. Scope of application

1.1 The following conditions of use apply for the utilization of the website, operated by eyefactive GmbH, Feldstrasse 128, 22880 Wedel (hereinafter referred to as “eyefactive”) under www.[...].de and the therein offered services (hereinafter summarized as “eyefactive AppStore”), as well as for all contracts entered between eyefactive and the contractual partner (hereinafter referred to as “client”) on software products from the eyefactive AppStore.

1.2 eyefactive shall not recognize any client´s conflicting, deviating or supplementary general terms and conditions of business unless eyefactive has expressly accepted them in writing.

1.3 The conditions of use are structured as follows: Part A. contains general provisions applying to all clients of the AppStore. Part B. contains “license terms for free eyefactive-Apps test versions”, part C. contains “license terms for the purchase of eyefactive-Apps” and part D. contains “license terms for the rental of eyefactive-Apps”. The special conditions from part B. to D. apply supplementary to the general provisions explained in part A.

1.4 These general business conditions only apply to companies in terms of § 14 BGB.

2. Registration, user account, login

2.1 In order to use the AppStores, the client is required to register for it first (1. registration step). By registering and submitting his registration information, the client requests the opening of an account for using the eyefactive-AppStores (hereinafter referred to as “user account”).

2.2 After receiving the application, eyefactive decides at its own discretion on its acceptation. In case of acceptance of the application, a declaration of acceptance will be issued. A confirmation mail will be sent to the client’s registered email address, containing a link for activation. The user account will be activated when clicking on this activation link.

2.3 Only individual persons, corporate bodies and business partnerships being entrepreneurs in the sense of § 14 of the German Civil Code (BGB) are permitted to register. The registration of a corporate body can only be executed through an authorized individual person that avails his/her name to the registration form.

2.4 For the sole purpose of verifying the entrepreneurial capacity in the sense of § 14 BGB, eyefactive is entitled to demand the presentation of adequate documents (e.g. copy of trading license, or trade register excerpt).

2.5 In the scope of the registration process, the client has to provide the data required by eyefactive in a complete and truthful way (hereinafter referred to as “login credentials”). If the credentials change after registration, the client has to update this information in the eyefactive-AppStore or inform eyefactive instantaneously on the changes.

2.6.The client agrees to his /her email address being disclosed to eyefactive upon login in order to provide the client with support within the scope of AppSuite if neccessary.

2.7 The client declares his/her consent to eyefactive supplying tips and tricks for the use of the platform via email.The client may revoke this declaration of consent at any time.

2.8 When logging in to the eyefactive-AppStore for the first time via the downloaded eyefactive-Appsuite, the login name, the password and a hardware key will be transmitted to eyefactive. This hardware key pertains to the hardware on which the eyefactive-Appsuite is installed.

3. General duties of the client

3.1 The client must not convey his/her personal access data (user ID / password) to third parties and must protect it against third-party access. The client must not transfer his user account to a third person.

3.2 The client must comply with all technical regulations, published in the documentation by eyefactive.

4. Costs

4.1 All given prices are excluding the legally valid value added tax, if not explicitly stated otherwise.

4.2 eyefactive grants the client various discounts. Further information about these discounts can be found on the website https://www.multitouch-appstore.com/en/features/licence. eyefactive may modify or cancel these discounts for future contractual relationships at any time.

5.Payment

5.1 Different payment options are available to the client in the online shop.

5.2. Payment of invoices received from eyefactive are due within 7 days unless otherwise stated in the invoice.

5.3 A payment is deemed completed from the date on which the amount is freely available to eyefactive or third parties authorized by eyefactive. In the event of a default of payment eyefactive shall be entitled to charge interest for businesses at 9 percentage points above the respective base rate of the EZB in accordance with the discount rate transitory act. eyefactive reserves the right to addtionally charge the client a standard amount of 40 Euro in the event of a delay. The same applies to delayed payments of advance payments or other instalment payments. The standard amount of 40 Euro shall be deducted from an owed compensation insofar as the damage is incurred through the costs of a prosecution. Exchanges or cheques shall only be accepted upon explicit agreement and only as a conditional payment. They shall only be considered as payment once they have been successfully redeemed. Discount and collection charges shall pass to the buyer. The seller shall not be liable for the timely presentation.

5.4 The client is only entitled to the fulfilment of the obligation to pay by offsetting, if his/her counterclaims have been stated legally binding and undisputed. Furthermore the client ist only entitled to the right of retention insofar as his/her counterclaims are based on the same contractual relationship.

5.5 Until complete payment the software remains the property of eyefactive. eyefactive particularly is entitled, in the event of eyefactive withdrawing from the contract (for instance due to the client´s delay of payment), to prohibit the further use of the software and particularly the licence key and to demand the return of all copies and the deletion of these if surrender is not possible. The client is obliged to inform about eyefactive´s reservation any third party, who prior to the full payment gains access to the reserved property and to immediately inform eyefactive in writting of the third party´s access.

6. Termination of user account

6.1 The user account can be terminated either by eyefactive or the client with a notice period of 2 weeks.

6.2 The contractual parties´ right of termination without notice for good cause remains unaffected. A good cause for eyefactive exists e.g., if a client culpably breaches an essential contractual obligation even after an unsuccessful expiration of a grace period or after a failed reminder, or in the event of an insolvency proceeding ,which is opened, or if the opening is refused due to lack of sufficient assets.

6.3 Terminations must be in written form. The requirement of written form shall be deemed if executed by email, telefax or letter.

7. Blocking of user account

7.1 eyefactive shall have the right to temporarily deactivate the client´s user account, if there are specific reasons to believe that the client violates these terms of use, rights of third parties, or if eyefactive has any other justified interest in blocking the account. When determining whether or not to block an account eyefactive will take the client´s legitimate interests into consideration.

7.2 In case of temporary blockage of the user account, eyefactive will inform the client on the matter via email.

8. Designation for reference purposes

The client entitles eyefactive to make use of his/her company name and logo for means of self-promotion on the eyefactive website, for all advertising material of eyefactive, as well as for product presentations and trade fairs.

9. Changing the terms of use

9.1 eyefactive reserves the right to change these terms of use, insofar a change of legislation, the jurisdiction of the supreme court or a change or advancement of the technical framework with respect to the subject matter require an amendment of these terms of use and these changes do not disadvantage the client unreasonably. eyefactive shall inform the client of any changes in these terms of use via email at least four weeks prior to their coming into effect.

9.2 The changes shall take effect if the client does not revoke in writing or via email within four weeks after receipt of the notification of change (email). eyefactive notifies the client of this legal consequence in the notification of change (email).

9.3 Any existing software licensing contracts between eyefactive and the client at the time the changes enter into force shall remain unaffected by these changes.

10. Other provisions

10.1 Place of fulfilment for all services by eyefactive is the registered office of eyefactive GmbH, Feldstrasse 128, 22880 Wedel, Germany.

10.2 Hamburg is agreed upon as the exclusive venue of jurisdiction towards entrepreneurs, legal persons under public law and public-law special funds.

10.3 German law applies exclusively. The stipulations of the United Nations agreement on contracts of international merchandise are not to be applied here.

10.4 If one of the legal clauses of these General Terms and Conditions is ineffective or should become ineffective, the other clauses remain unchanged by this. The statutory regulations apply.

B. Terms of license for free test versions of eyefactive apps

1.Contractual item

1.1 The "Terms of license for free test versions of eyefactive apps" govern the permanent free provision of test versions of eyefactive apps as well as eyefactive´s AppSuite to the client from eyefactive.

1.2 The client receives from eyefactive software test versions from the eyefactive AppStore in form of eyefactive apps and eyefactive AppSuite (hereinafter called "software") subject to the following licensing conditions.

2. Conclusion of contract

2.1 If the client wants to test the software for free, he is required to previously register in the eyefactive-AppStore and to open a user account.

2.2 After setting up the user account, the client can order the software for testing by clicking the respective download button. When clicking this button, the client makes a binding bid to eyefactive to acquire the free software test version.

2.3 In case of approval, eyefactive will confirm the offer immediately by providing the software for download.

2.4. After the download and installation of the eyefactive AppSuite some eyefactive apps are already preinstalled. Further eyefactive apps may be downloaded and installed within AppSuite by clicking the download button.

3. Subject and form of services

3.1 The client receives the software along with the electronic instruction manual released by eyefactive (hereinafter referred to as “documentation”). The documentation primarily comprises electronic help.

3.2 The characteristics of the software as well as the operational environment for which it was released, result from the documentation. The test versions are versions of the eyefactive-Apps marked with water marks and inserts.

4. Granting of the rights of use, Scope of use

4.1 eyefactive grants the client a basic, non-exclusive right for permanent use of the software. This entitles the client only to use the software on one computer including a display connected to this computer. The client is not allowed to use the software on a server or virtual server.

4.2 The use of the software may only take place in object code. The customer has no entitlement to be given the source code and receives no rights to the source code of the software or to related program libraries.

4.3 The client must not, neither partly nor entirely, rent out the software, lend it and/or sublicense it and/or make it accessible to third parties in any other way.

4.4 The client can make a copy for backup purposes on his/her own expenses. If originals carry a copyright notice, any copy must mention the same proprietary notice as well.

4.5 If not explicitly allowed by the copyright law, the software provided by eyefactive must not be regressed, decompiled or disassembled.

4.6 Likewise, copyright notices, serial numbers as well as other features serving as means of program identification must not be removed or amended. The same applies to suppressing the display of such features on the screen.

4.7 Resale and/or dissemination of the software is not permitted.

4.8 If eyefactive provides the client with software of another producer or with open-source-software (hereinafter referred to as “third party components”), the license conditions for third parties components that have been enclosed with the delivery item, apply additionally for third party components (hereinafter referred to as “third party license conditions ”). The third party license conditions can change. In case of contradiction between the contents of the clauses 4.1 to 4.7 and the rules of the third party license conditions, the rules for third party license conditions have priority with exclusive reference to third party components.

5. Adding of contents to the software, release

5.1 Within the scope of using the software, the client commits him/herself to refrain from placing any content in the software that violates third party rights, especially copyrights, trademark or other sign rights, as well as third party privacy rights.

5.2 The client shall indemnify eyefactive from all claims that third parties assert against eyefactive, concerning the violation of their rights as a result of contents being placed in the software by the client. In doing so, the client commits him/herself to assume the costs of the necessary legal defence of eyefactive, including all court and lawyer costs, in case he/she has him/herself caused the infringement.

6. Warranty and liability

The warranty and liability of the software provided free of charge, in case of defect in goods or title, is determined according to §§ 523, 524 BGB. For the rest, eyefactive is only liable for compensation of damages or expenditure in case of intent and gross negligence.

7. Updates, Upgrades

eyefactive is not bound to surrender updates and upgrades of software. If eyefactive provides suchlike updates and upgrades that substitute or complement the original licensed software, the afore mentioned license conditions shall apply for these updates accordingly. This does not apply if such an update or upgrade is subject to a separate license.

C. Terms of license for the purchase of eyefactive apps

1. Contractual item

1.1 The „Terms of license for the purchase of eyefactive apps” regulate the permanent transfer of eyefactive apps (hereinafter referred to as “software”) against payment to the client from eyefactive (purchase of software).

1.2 The client purchases from eyefactive further specified software online in the eyefactive AppStore as well as the corresponding electronic user manual (hereinafter "documentation") according to following license terms.

2. Conclusion of contract

2.1 The prerequisite for a purchase of a software is the client´s registration including bank details (2. registration step) and an activation by eyefactive.

2.2 The offers in the eyefactive AppStore constitute an unconditional invitation for clients to purchase products.

2.3 eyefactive declares acceptance of the offer by sending a prompt confirmation of receipt via email to the client and thereby concludes the sales contract. Thereafter the products will be provided by eyefactive for immediate download.

2.4 The order including all details of the sales contract are stored by eyefactive. The terms and conditions are sent to the client. He/she may also access the terms and conditions on the webpage at any time. Registered clients may also access them via the client login area (my orders).

2.5 The software is unlocked, respectively licensed exclusively by using the eyefactive AppSuite. By clicking the licensing button within eyefactive AppSuite the client conveys the hardware information, for which the license shall be unlocked (hereinafter "hardware key"), to eyefactive. On the basis of this information eyefactive produces a hardware bound license key (hereinafter "license key") for the client. By clicking the licensing button in the AppStore, the above mentioned process is noted and automatically implemented at the next start of the eyefactive AppSuite. The technical prerequisite in both cases is a functioning internet connection.

3. Subject and form of services

3.1 The client receives the software along with the documentation released by eyefactive. The documentation is primarily comprised of electronic help.

3.2 The characteristics of the software as well as the operational environment for which it was released, result from the documentation.

3.3 The consignment takes place after activation through a corresponding license key. After activation, the already downloaded test version of the software can be used without any watermarks and inserts.

3.4 The contract does not comprise the Installation of the software. It may be stipulated with eyefactive in writing though.

4. Granting of the rights of use, Scope of use

4.1 The regulations from B.4.1. to B.4.2. and from B.4.4. to B.4.6. of these terms of use apply mutatis mutandis.

4.2 The client may not sublicense the software neither as a whole nor in parts and/or make it available to third parties in any way (e.g. by means of Application Service Providing (ASP).The letting and rental of the software is permitted according to the provisions laid out in these terms and conditions.

4.3 The client is allowed to let or rent out the software to third persons only if he/she completely surrenders his own rights for the time of letting/renting and only for the hardware that is protected by the license key. The client has to impose contractual conditions on the leaser or borrower that correspond with the paragraphs D.4.1. and B.4.2. to B.4.7.

4.4 The client is entitled to permanently relay the software to a third person (hereinafter referred to as “third party”) onetime, if the following conditions are fulfilled cumulatively: (i) The client deactivates the license key for the software (hereinafter referred to as “old license key”) (ii) the client deletes the license files of the software and confirms this in writing to eyefactive (iii) the client immediately imparts the name and address of the third party in writing to eyefactive and (iv) the third party registers in the eyefactive-AppStore and submits the respective hardware key to eyefactive. If the requirements (i) to (iv) are met, eyefactive will transfer the license to the third party and activate it through a new license key (hereinafter referred to as „new license key“).

4.5 If eyefactive provides the client with software of another producer or with open-source-software (hereinafter referred to as “third party components”), the license conditions for third parties components that have been enclosed with the delivery item, apply additionally for third party components (hereinafter referred to as “third party license conditions ”). The third party license conditions can change. In case of contradiction between the contents of the clauses 4.1 to 4.4 and the rules of the third party license conditions, the rules for third party license conditions have priority with exclusive reference to third party components.

5. Adding of contents to the software, release

The regulations from B.5 of these terms of use apply mutatis mutandis.

6. Warranty for deficiencies

6.1 The client has to provide eyefactive with complete, timely and sufficiently precise error messages, including an error analysis of suitable files and protocols.

6.2 If the product delivered by eyefactive is deficient, the claims of the client shall be limited to subsequent performance. In the course of subsequent performance, eyefactive chooses to provide the client with a new, flawless software status or to remove the deficiency.

6.3 If subsequent performance fails, the client can chose to demand either reduction of the purchase price (abatement) or cancellation of the contract (withdrawal). In the event of an insignificant contractual violation, particularly for insignificant defects, the client shall have no right of withdrawal. With the second vain attempt, the subsequent improvement is regarded as failed, unless further improvements are deemed adequate and acceptable for the client due to the contractual object. The statutory cases in relation to the dispensability of setting a deadline remain unaffected.

6.4 Subject to the provisions made in C.7.2, warranty claims and claims for damages in connection with a deficiency expire within a period of 12 months after delivery of the software.

6.5 eyefactive does not provide guarantees, unless this has been explicitly agreed upon in writing between eyefactive and the client, applying the term “guarantee”.

7. Limitation of liability

7.1 eyefactive is not liable in the event of slight negligent violation of insignificant contractual obligations. In case of slight negligent violation of a substantial contractual obligation, eyefactive’s liability is restricted to foreseeable damage typical of the contract according to type of goods and services. Substantial contractual obligations are obligations whose fulfilment enables the proper implementation of the contract in the first place and whose observance the contracting party can trust on a regular basis.

7.2 The limitations on liability do not concern product liability claims of the client. Furthermore, the liability restrictions shall not apply in the case of damage to body and health attributable to eyefactive, in the case of loss of life or in case that damage can be traced back to errors in guaranteed features or other failure of guarantee.

7.3 The above mentioned liability limitations apply for all claims for compensation, independent of their legal cause, and particularly for liability due to pre- and subcontractual as well as non-contractual claims.

7.4 The client is responsible for the regular safeguarding of his/her data. Liability for loss of data is limited to the usual recovery expenses, which would have been incurred if the client had made backup copies on a regular and risk-adequate basis.

7.5 As far as liability of eyefactive is excluded or limited, this also applies to their staff, employees as well as vicarious agents.

8. Updates, Upgrades

The regulations from B.7 of these terms of use apply mutatis mutandis.

9. Change of hardware

9.1 In case the client wants to utilize a valid software license on a different hardware than the one declared in the hardware key (hereinafter referred to as “old hardware”), the client has to (i) deactivate the software’s “old license key” and (ii) submit the hardware key of the new hardware on which he wants to utilize the software (hereinafter referred to as “new hardware”) to eyefactive. If requirements (i) and (ii) are met, eyefactive will generate a “new license key” and transmit it to the client.

9.2 For every change of hardware according to C.9.1, eyefactive charges the client an administrative fee of 10,00 € per software license.

10. Technical protections

eyefactive has the right to apply adequate technical measures to guarantee that the software is not being used under the „old license key“ anymore, should the hardware change and/or should the software be sold.

D. Terms of license for the rental of eyefactive apps

1. Contractual item

1.1 The „Terms of license for the rental of eyefactive apps” rule the temporary transfer of eyefactive apps (hereinafter referred to as “software”) against payment to the client from eyefactive.

1.2 The client rents the software, which is further defined in the eyefactive-AppStore, as well as the related electronic user manual (hereinafter referred to as “documentation”) from eyefactive, according to the following license conditions.

2. Conclusion of contract

2.1 The registration including bank details (2. registration step) is the prerequisite for a purchase of a software.

2.2 eyefactive declares acceptance of the offer by sending a prompt confirmation of receipt via email to the client and thereby concludes the sales contract. Thereafter the products will be provided by eyefactive for immediate download.

2.3 The order including all details of the sales contract are stored by eyefactive. The terms and conditions are sent to the client. He/she may also access the terms and conditions on the webpage at any time. Registered clients may also access them via the client login area (my orders).

3. Subject and form of services

The regulations from C.3.1 to C.3.3 of these terms of use apply mutatis mutandis.

4. Granting of the rights of use, Scope of use

4.1 eyefactive grants the client a basic, non-exclusive user right to apply the software for the period of the rental agreement. This entitles the client only to use the software on one computer including a display connected to this computer. The client is not allowed to use the software on a server or virtual server.

4.2 The regulations from B.4.2 and B.4.4 to B.4.6 and B.4.8 of these terms of use apply mutatis mutandis.

4.3 The client may not sublicense the software neither as a whole nor in parts and/or make it available to third parties in any way (e.g. by means of Application Service Providing (ASP).The letting and rental of the software is permitted according to D.4.4.

4.4 The client is allowed to let or rent out the software to third persons only if he/she completely surrenders his own rights and only for the hardware that is protected by the license key. The client has to impose contractual conditions on the leaser or borrower that correspond with the paragraphs D.4.1 and B.4.2 to B.4.7.

4.5 If eyefactive provides the client with software of another producer or with open-source-software (hereinafter referred to as “third party components”), the license conditions for third parties components that have been enclosed with the delivery item, apply additionally for third party components (hereinafter referred to as “third party license conditions ”). The third party license conditions can change. In case of contradiction between the contents of the clauses 4.1 to 4.4 and the rules of the third party license conditions, the rules for third party license conditions have priority with exclusive reference to third party components.

5. Duty of disclosure and care of the client

5.1 The client is obligated to notify eyefactive immediately in case of deficient software. He/she will consider the problem analysis directions provided by eyefactive within the scope of his/her reasonable capacities and relay all information available to him/her as well as relevant for the elimination of the defect to eyefactive.

5.2 The client has to take appropriate precautions to protect the software from unauthorized access of third parties. He/she will store the original data medium, as well as the data medium with the contractually produced copies made by him/her, in a safe place.

6. Adding of contents to the software, release

The regulations from B.5 of these terms of use apply mutatis mutandis.

7. Client’s rights in case of deficiencies

7.1 In case of deficiencies, the warranty right concerning rental contracts applies, unless deviating requirements are specified below.

7.2 In case of occurring deficiencies, disruptions or damages, the client needs to notify eyefactive immediately.

7.3 eyefactive is obligated to fix deficiencies on the provided software.

7.4 In order to correct deficiencies, eyefactive can choose between providing free, subsequent improvement or replacement of the software.

8. Limitation of liability

The regulations from C.7.1 to C.7.5 of these terms of use apply mutatis mutandis.

9. Contract period

9.1 The period of the rental agreement results from the rental contract signed by eyefactive and the client. The rental contract expires at the end of the rental period stipulated in the rental contract.

9.2 Each party reserves the right to extraordinarily terminate this agreement for important reason. An extraordinary termination has to be made in writing (i.e. via email, fax or letter).

10. Use after termination of contract

After termination of the contractual relationship, the client has to refrain from any utilization of the software, except for the use of the software as test version according to B.3.2.

11. Updates, Upgrades

The regulations from B.7 of these terms of use apply mutatis mutandis.

12. Change of hardware, technical protections

The regulations from C.9 and C.10 of these terms of use apply mutatis mutandis.