Eye-Able® General Terms and Conditions for Consumers (AGB/V)
§ 1 Scope, Amendment
- Web Inclusion GmbH, Gartenstraße 12c, 97276 Margetshöchheim, represented by the Managing Director Oliver Greiner, - hereinafter referred to as the Provider - distributes the software "Eye-Able", with the help of which customers can adapt websites to individual needs. These General Terms and Conditions are intended to regulate the legal relationship between the Provider and the respective Customer as well and as far as possible. These terms and conditions shall apply exclusively; any terms and conditions of the customer that conflict with or deviate from these terms and conditions shall not be recognized unless the Provider has expressly agreed to them in an individual case.
- The Provider reserves the right to amend these General Terms and Conditions at any time and without stating reasons. In this case, the Provider shall inform the Customer of the amended Terms and Conditions no later than two weeks before the amended Terms and Conditions come into force and shall send the Customer the amended Terms and Conditions. The customer may object to these changes within two weeks of receipt of the amended terms and conditions. If no objection is made or if no objection is made in due time, the amended Terms and Conditions shall be deemed accepted by the customer. In the event of a timely objection by the Customer, the Provider shall be free to terminate the legal relationship concerned at the time at which the amended Terms and Conditions are to enter into force or to continue it under the previous terms and conditions.
- A contract is concluded only in the German language. Furthermore, German law is applicable to the exclusion of the UN Convention on Contracts for the International Sale of Goods, insofar as the customer is a merchant.
§ 2 Conclusion of contract, subject matter of contract, place of performance
- A contract shall only be concluded upon acceptance of the offer submitted by the Customer by the Provider (order confirmation). The order confirmation must be in text form to be effective. All offers of the Supplier are to be understood as an invitation to the Customer to submit an offer and are non-binding.
- The subject matter of the contract is the temporary provision of the "Eye-Able" software to the extent agreed in each case in the version current at the time of conclusion of the contract in return for payment. The scope of services of the contractual software results from the respective contract and/or from the information in the underlying order confirmation.
- The Customer may also commission the Provider separately for additional services such as the individualization and/or setup of the software. The scope of these services then results from the respective order.
- Changes and additions to the subject matter of the contract or the scope of services must at least be made in text form to be effective. The Provider shall be entitled to charge reasonable costs incurred as a result.
- The Provider may use the assistance of third parties in the provision of the contractually owed service.
- The place of performance shall generally be the registered office of the Supplier, unless otherwise agreed.
§ 3 Contract period
- The contract for the temporary transfer of the contractual software begins at the time of the conclusion of the contract and is limited to one year.
- At the end of a year, the contract is automatically extended for a further year if it is not terminated by one of the parties in good time, i.e. three months before the end of the year or the extension period. Notice of termination must be given in text form. Timely dispatch of the notice of termination shall be sufficient to meet the deadline.
- The right to extraordinary termination for good cause (§ 316 BGB) remains unaffected. Good cause shall be deemed to exist on the part of the Provider in the following cases:
- Default of payment by the customer even after expiry of a grace period;
- Unauthorized transfer of use to third parties;
- Repeated and serious violations of contractual obligations by the customer.
If the Provider terminates the contract for cause due to the Customer's culpable conduct, the Customer shall compensate the Provider for all damages incurred due to the premature termination of the contract. However, the Customer shall be entitled to prove that no damage or a lesser damage has been incurred as a result. Further rights of the Provider are reserved.
§ 4 License Fee, Terms of Payment
- All prices are net prices plus the applicable statutory value-added tax.
- The respective license fee results from the price list valid at the time of the conclusion of the contract and depends on the property of the user and the scope of the subject matter of the contract.
- Additional services such as the individualization and/or the setup of the software are not included in the price and must be ordered separately by the customer. These costs, as well as any travel expenses incurred, shall be remunerated separately according to the time and effort involved.
- The provider offers the following payment methods:
- Direct debit,
- Bank transfer,
- Instant bank transfer (available soon)
- Credit card (available soon)
- Amazon Pay (available soon)
- All invoices are due immediately and without deduction. The customer is in default of payment if he does not settle the invoice within 30 days after receipt of the invoice.
- Objections to invoices must be raised with the Provider in text form. An invoice shall be deemed to have been approved by the Customer if the Customer has not objected to it within four weeks of receipt of the invoice. The timely dispatch of the objection shall be sufficient to meet the deadline.
- In the event of default in payment, the Provider shall be entitled to withhold further services and to interrupt ongoing services.
In the event of premature termination of the contract, irrespective of its nature, the services already rendered by the Provider shall be remunerated in accordance with the contractual agreement until the termination event takes effect. Any statutory claims of the Provider shall remain unaffected by this provision. Any claims arising from this paragraph shall be settled within the scope of the claims arising by law.
§ 5 Handover, installation, delivery time
- The respective subject matter of the contract shall be handed over to the customer with the key required for installation in principle immediately after receipt of payment in a manner customary in the market (mail, plug-in, download), unless the customer has ordered additional services within the meaning of § 4 para. 3 of these General Terms and Conditions. In this case, the provision period shall be extended in accordance with the scope of adaptation or modification.
- The installation and configuration of the contractual software shall be carried out by the Customer, unless the Provider has been commissioned separately to do so.
- An obligation to comply with delivery or provision periods of the Provider requires a contractual agreement in text form, if such an obligation does not result from mandatory statutory provisions.
- The provision or delivery periods shall be extended accordingly if the customer fails to meet its obligations to cooperate and/or in the event of subsequent requests for changes or additions.
- In the event of unforeseen events for which neither party is responsible, the provision and delivery periods shall be extended by the corresponding period. The customer shall be informed of this without delay.
- If the subject matter of the contract is individually adapted or modified for the customer, the customer is obliged to accept the subject matter of the contract and to check its functionality within 14 days after acceptance. The course of the acceptance shall be recorded. The subject matter of the contract shall be deemed to have been accepted if the Provider has set the Customer a reasonable deadline for acceptance and the Customer has not refused acceptance within this period, stating at least one defect.
§ 6 Obligations of the customer
- The Customer is obliged to use the rights of use granted to him by the Provider only for the contractually agreed purposes.
- The customer shall always be obliged to actively cooperate. The scope of these duties to cooperate shall result from the respective contract or from the circumstances of the respective contract, whereby a list is not exhaustive. In particular, the customer shall provide all required information in full at the beginning of the services.
- In the event that the Customer fails to cooperate or fails to cooperate fully, the Provider shall be entitled to demand additional remuneration in an appropriate amount for the additional work caused thereby.
- The customer must provide truthful information when concluding the contract. In the event of changes to this information, the customer must inform the provider immediately. If it turns out at a later date that the customer has provided false information, e.g. regarding the nature of his person, purpose of the contract, etc., he is obliged to compensate the provider for the resulting damage, insofar as he is at fault in this respect.
- The Customer may not sell, give away, lend, rent and/or lease the subject matter of the contract and the associated rights of use to third parties without the Provider's prior consent. For commercial users, the authorization to use the software in a network does not include the right to provide the software to other companies or companies joining after the conclusion of the contract for use.
- The customer may not remove or circumvent the existing protective mechanisms of the software against unauthorized use, unless this is necessary to achieve trouble-free use. Copyright notices, serial numbers and other features serving to identify the software may also not be removed or changed.
- The Customer is obligated to back up its data regularly, insofar as these obligations do not lie with the Provider according to the type and scope of the respective contract.
§ 7 Rights of use
- The agreed rights of use to the respective subject matter of the contract shall in principle not pass to the customer until payment has been received in full.
- Unless a separate agreement on use is concluded, the customer shall in principle receive a simple, non-transferable right of use, limited in time and unlimited in space, for the intended use.
- The customer is entitled to use the subject matter of the contract for use within the scope of the purchased license for the contractually stipulated duration.
- The customer shall have no claim to disclosure and/or transfer of the source code, insofar as no mandatory statutory regulations conflict with this.
- All rights to any software in the relationship between the contracting parties shall be vested exclusively in the Provider, unless rights are granted to the Customer under these Terms and Conditions or any other agreement.
- The Customer may make a backup copy pursuant to Section 69d (2) UrhG. The copy shall be marked as such. If the customer can prove that the original version can no longer be found or has become unusable, the backup copy shall take the place of the original.
§ 8 Liability
- The Supplier shall be liable without limitation for damage caused intentionally or by gross negligence, in the event of fraudulent concealment of defects, in the event of the assumption of a guarantee of quality, for claims based on the Product Liability Act and for injury to life, limb or health.
- The Provider shall only be liable for defects that were already present at the time the contractual software was provided to the Customer if the Provider is responsible for these defects.
- In contrast, the Provider shall only be liable for other damages if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation).
- In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage that can typically be expected to occur.
- The Provider shall not be liable for the loss of data and/or programs insofar as the damage is due to the Customer's failure to perform regular data backups at short intervals as is customary in the industry and thus to ensure that lost data can be restored with reasonable effort.
- The above liability provisions shall also apply to the employees and/or vicarious agents of the Provider.
- In all other respects liability is excluded.
§ 9 Warranty within the scope of individual adjustments or modifications
- The following provisions shall apply only to individual adaptations or modifications of the contractual software ordered separately by the customer, cf. § 2 para. 3 of these General Terms and Conditions.
- In the case of individual adaptation or modification of the subject matter of the contract carried out within the scope of a separate order, the Supplier shall owe the due care customary in the industry. In this respect, the Supplier shall assume liability for defects to the effect that the subject matter of the contract complies with the requirements agreed on the basis of the contract and is suitable for use in accordance with the contract.
- The place of performance for the supplementary performance is the registered office of the Provider.
- The customer must report defects without delay. If the customer is a merchant, it shall be obliged to inspect the contractual software for defects immediately upon receipt and, if necessary, to report such defects, cf. section 377 of the German Commercial Code (HGB).
- Self-remedy by the customer shall be excluded prior to the unsuccessful expiry of a reasonable period set by the customer for subsequent performance.
- Subsequent performance shall be effected, at the Supplier's option, by remedying the defect or by delivery of a defect-free item.
- Subsequent performance may be effected by telecommunicative transmission of software, unless telecommunicative transmission is unreasonable for the customer, for example for reasons of IT security.
- The Supplier shall not be liable in cases where the Customer or third parties have made changes to the subject matter of the contract, unless these changes had no influence on the occurrence of the defect. The Customer shall assist the Provider in determining and eliminating the defect and shall immediately grant access to the documents from which the more detailed circumstances of the occurrence of the defect result.
- The provider is liable in connection with warranty for intent and gross negligence. The Provider shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation), the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the Customer may regularly rely, as well as in the event of damage resulting from injury to life, limb or health.
- Any claims for subsequent performance shall become statute-barred twelve months after delivery of the subject matter of the contract, except in the case of intent.
- In all other respects, the statutory provisions shall apply.
§ 10 Force majeure
The Provider shall be released from the obligation to perform in cases of force majeure. Force majeure shall be all unforeseen events as well as such events whose effects on the performance of the contract are not the responsibility of either party. These events include, in particular, lawful industrial action, also in third-party companies, as well as official measures.
§ 11 Data protection, secrecy
- In providing its services, the Provider shall comply with the provisions of data protection law, in particular the provisions of the DSGVO and the BDSG.
- The parties shall maintain confidentiality with regard to any business and trade secrets, information, documents and data of the other party that become known to them.
- The foregoing obligations shall survive the termination of any contracts.
§ 12 Final provisions
- If the Customer is a merchant, the place of jurisdiction for all disputes concerning the contractual relationship shall be the court at the registered office of the Provider.
- Should any provision of this agreement be invalid or become invalid during the term of the agreement, all other provisions of this agreement shall not be affected thereby and shall continue to apply unchanged. The invalid provision shall be replaced by another, permissible provision that comes as close as possible to the meaning and purpose of the invalid provision.
- Amendments or supplements to the respective contract must be made at least in text form in order to be effective.
§ 13 Dispute Resolution:
The EU Commission has created an Internet platform for online dispute resolution. The platform serves as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts. More information is available at the following link: http://ec.europa.eu/consumers/odr. We are neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board.