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.multitouch-appstore.com 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 does not acknowledge deviating, opposing or complementary general business conditions of the client, unless eyefactive would have explicitly agreed to their validity 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. 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

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

5. Termination of user account

5.1. The user account can be terminated either by eyefactive or the client, considering a notice period of 2 weeks.

5.2. The Parties right to terminate the contract for important reason without complying with a deadline remains unaffected. An important reason for eyefactive is given e.g.: if the client culpably violates an essential contractual obligation, even after receiving a warning or expiration of a reasonable period, or in the event an insolvency proceeding is opened over the customer’s assets or the opening is refused due to lack of sufficient assets.

5.3. Terminations according to A.5.1 und A.5.2 must be made in writing (i.e. via email, fax or letter).

5.4. In case of termination with immediate effect for important reason, the client is not allowed to register again and with new access data for the eyefactive-Appstore.

6. Blocking of user account

6.1. eyefactive can block the user account temporarily, if there is clear evidence that the client violates the conditions of use, any third party rights and/or any applicable law or if eyefactive has other legitimate interests in blocking the account. When deciding on a blockage, eyefactive will consider the legitimate interests of the client in an appropriate way.

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

7. 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.

8. Changing the conditions of use

eyefactive reserves the right to change the user conditions if changes in law, in the highest judicial jurisprudence, or if changes or developments regarding the technical framework in view of the contractual item require an amendment of the user conditions, and this change does not harm the client inappropriately. eyefactive will inform the client via email about changes relating to the conditions of use at least four weeks prior to their planned coming into effect. The changes become operative if the client does not object in writing or via email within a period of four weeks after receiving the amendment notification (email) and if eyefactive has informed the client about the legal consequences in its amendment notification (email). Already existing software licensing contracts between eyefactive and the client at the time of entry into force of the amendments remain unaffected by the changes.

9. Other provisions

9.1. The venue of execution for all of eyefactive’s services is eyefactive’s registered office.

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

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

9.4. 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 “license terms for free eyefactive-Apps test versions” regulate the permanent and gratuitous transfer of eyefactive-Apps test versions to the client through eyefactive.

1.2. eyefactive provides the client with software test versions from the eyefactive-Appstore in the form of Appsuite (hereinafter referred to as “software”) according to the following license 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.

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 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. 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, this has to be attached to the copy 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 „license conditions for the purchase of eyefactive-Apps” regulate the permanent and gratuitous transfer of eyefactive-Apps (hereinafter referred to as “software”) to the client through eyefactive (purchase of software).

1.2. The client acquires through eyefactive and the eyefactive-Appstore further defined software as well as the related electronic user manual (hereinafter referred to as “documentation”) according to the following license conditions.

2. Conclusion of contract

2.1. When purchasing the software, it is required that the client registers with his account details (2. registration step). After activation of the registration through the client, the software can be purchased according to C.2.2. and C.2.3.

2.2. In order to acquire the software, the client needs to click the order button. By clicking on the order button, the client submits the hardware information, for which the license shall be activated, to eyefactive (hereinafter referred to as “hardware key”). Based on this information, eyefactive creates a hardware-related license key (hereinafter referred to as “license key”) for the client. In submitting the order, the client makes a binding offer to eyefactive.

2.3. If approving, eyefactive will confirm the acceptance of the order immediately. The confirmation will be sent to the client’s email address stated in the order form. As soon as the confirmation is retrievable under the provided email address, the contract has come into effect.

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.

4. Remuneration

4.1. The client has to pay the price declared in the order form for the contractual service rendered by eyefactive.

4.2. If not stated otherwise in the invoice, invoices of eyefactive must be paid within 7 days.

4.3. eyefactive shall retain title to the software until complete payment has been received. In case of withdrawal from the contract by eyefactive (e.g. for reasons of delayed payment), eyefactive is expressly entitled to prohibit further use of the software and the license key and to demand surrender of all copies, or, in case surrender is not possible, demand their deletion. Should a third party gain access to the reserved property prior to full payment of the contractual software, the client is obliged to inform this third party about eyefactive’s reservation and immediately inform eyefactive in writing of the third party’s access.

4.4. The installation of the software is object of the contract and can be agreed upon with eyefactive separately and in writing.

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

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

5.2. The client may not, neither partly nor entirely, sublicense the software and/or make it accessible to third parties in any other way (e.g. by way of Application Service Providing [„ASP“]). Letting or renting is permitted according to C.5.3.

5.3. 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.5.1. and B.4.2. to B.4.7.

5.4. 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“).

5.5. 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 5.1 to 5.4 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.

6. Adding of contents to the software, release

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

7. Warranty for deficiencies

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

7.2. 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.

7.3. 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.

7.4. Subject to the provisions made in C.8.2, warranty claims and claims for damages in connection with a deficiency expire within a period of 12 months after delivery of the software.

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

8. Limitation of liability

8.1. 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.

8.2. 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.

8.3. 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.

8.4. 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.

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

9. Updates, Upgrades

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

10. Change of hardware

(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.

(2) For every change of hardware according to C.10.1, eyefactive charges the client an administrative fee of 10,00 € per software license.

11. 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 „license conditions for the rental of eyefactive-Apps” regulate the transfer of eyefactive-Apps (hereinafter referred to as “software”) for valuable consideration to the client through eyefactive (rental of software).

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. A precondition for the rental of software is the registration of the client with his account data with eyefactive (2. registration step). After activating the registration through the client, the rental of software can be conducted according to D.2.2 and D.2.3 of these user conditions.

2.2. In order for the client to rent software, he needs to complete the registration form within the Appsuite and then click the order button. By clicking the order button, the client submits the hardware key to eyefactive. Based on this information, eyefactive then creates a hardware-related license key (hereinafter referred to as “license key”) for the client. In submitting the order, the client provides eyefactive with a binding offer on the conclusion of a rental agreement.

2.3. If approving, eyefactive will confirm the acceptance of the order immediately. The confirmation will be sent to the client’s email address stated in the order form. As soon as the confirmation is retrievable under the provided email address, the contract has come into effect.

3. Subject and form of services

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

4. Remuneration

The regulations from C.4.1, C.4.2 and C.4.4 of these user terms apply mutatis mutandis.

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

5.1. 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.

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

5.3. The client must not, neither partly nor entirely, sublicense the software and/or make it accessible to third parties in any other way (e.g. by way of ASP). Letting or renting is permitted according to D.5.4.

5.4. 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.5.1. and B.4.2. to B.4.7.

5.5. 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 5.1 to 5.4 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.

6. Duty of disclosure and care of the client

6.1. 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.

6.2. 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.

7. Adding of contents to the software, release

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

8. Client’s rights in case of deficiencies

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

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

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

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

9. Limitation of liability

The regulations from C.8.1 to C.8.5 of these user terms apply mutatis mutandis.

10. Contract period

10.1. 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.

10.2. 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).

11. 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.

12. Updates, Upgrades

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

13. Change of hardware, technical protections

The regulations from C.10 and C.11 of these user terms apply mutatis mutandis.