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Eye-Able® General Terms and Conditions for Consumers (AGB/V)

EYE-ABLE® Terms and Conditions

§ 1 Scope, change

  • Web Inclusion GmbH, Gartenstraße 12c, 97276 Margetshöchheim, represented by the managing director Oliver Greiner - hereinafter referred to as the provider - sells the "Eye-Able" software, which customers can use to adapt websites to their 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 apply exclusively, conflicting or deviating terms and conditions of the customer will not be recognized unless the provider has expressly agreed to them in individual cases.
  • The provider reserves the right to change these general terms and conditions at any time and without giving reasons. In this case, the provider will inform the customer of this no later than two weeks before the changed terms and conditions come into force and send him the changed terms and conditions. The customer can object to these changes within two weeks of receipt of the changed terms and conditions. If there is no objection or no objection within the time limit, the changed terms and conditions are deemed to have been accepted by the customer. In the event of a timely objection by the customer, the provider is free to terminate the legal relationship concerned at the point in time at which the changed terms and conditions are to come into force or to continue with the previous conditions.
  • A contract is only concluded in German. In addition, German law is applicable to the exclusion of the UN Sales Convention if the customer is a merchant.

§ 2 Conclusion of contract, subject matter of contract, place of performance

  • A contract is only concluded when the offer made by the customer is accepted by the provider (order confirmation). The order confirmation must be in text form to be effective. All offers by the provider are to be understood by the customer as an invitation to submit an offer and are non-binding.
  • The subject of the contract is the temporary transfer of the "Eye-Able" software in the agreed scope in the version current at the time of conclusion of the contract for a fee. 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 can also commission the provider separately for additional services such as customization and/or setting up 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 require at least text form to be effective. The provider is entitled to charge a reasonable amount for the costs incurred as a result.
  • The provider may use the help of third parties to provide the contractually owed service.
  • The place of performance is basically the seat of the provider, unless otherwise agreed.

§ 3 contract period

  • The contract for the temporary transfer of the contractual software begins at the time the contract is concluded and is limited to one year.
  • After one year, the contract is automatically extended for another year if it is not terminated by one of the parties in good time, ie three months before the end of the year or the extension period. The termination must be made in text form. The timely dispatch of the termination is sufficient to meet the deadline.
  • The right to extraordinary termination for important reasons (§ 316 BGB) remains unaffected. An important reason is given on the part of the provider in the following cases:
  1. Default of payment by the customer even after a period of grace has expired;
  2. Unauthorized transfer of use to third parties;
  3. Repeated and serious breaches of contractual obligations by the customer.

If the provider terminates the contract for cause due to culpable behavior on the part of the customer, the customer must compensate the provider for any damage that it incurs as a result of the premature termination of the contract. However, the customer is entitled to prove that no damage or less damage has occurred as a result. The provider reserves further rights.

 

§ 4 License Fee, Terms of Payment

 

  • All prices are net prices plus the applicable statutory VAT.
  • The respective license fee results from the price list valid at the time of conclusion of the contract and depends on the characteristics of the user and the scope of the subject matter of the contract.
  • Additional services such as customization and/or setting up the software are not included in the price and must be ordered separately by the customer. These costs and any travel costs incurred will be reimbursed separately at cost.
  • The provider offers the following payment methods:
  1. paypal,
  2. direct debit,
  3. Bank Transfer,
  4. Sofort-Überweisung (coming soon)
  5. Credit card (coming soon)
  6. Amazon Pay (coming soon)
  • All invoices are due immediately and without deduction. The customer is in default of payment if he does not pay the invoice within 30 days of receipt of the invoice.
  • Objections to invoices must be submitted to the provider in text form. An invoice is deemed to have been approved by the customer if he has not objected to it within four weeks of receipt of the invoice. The timely dispatch of the objection is sufficient to meet the deadline.
  • In the event of default in payment, the provider is entitled to withhold further services and to interrupt ongoing services.

In the event of a premature termination of the contract, regardless of the type, the services already provided by the provider must be remunerated in accordance with the contractual agreement until the circumstances of termination take effect. Any legal claims of the provider remain unaffected by this regulation. Any claims under this paragraph will be within the limits of the statutory claims

§ 5 Handover, Installation, Delivery Time

  • The respective subject matter of the contract will be handed over to the customer with the key required for installation immediately after receipt of payment in a customary manner (mail, plugin, download), unless the customer has commissioned any additional services within the meaning of Section 4 (3) of these General Terms and Conditions. In this case, the provision period is extended according to the scope of the adjustment or change.
  • The installation and configuration of the contractual software is carried out by the customer, unless the provider has been commissioned to do this separately.
  • An obligation to comply with the delivery or provision periods of the provider requires a contractual agreement in text form, if such does not result from mandatory statutory regulations.
  • The provision or delivery periods are extended accordingly if the customer does not comply with his obligation to cooperate and/or in the event of subsequent change or addition requests.
  • In the event of unforeseen events for which neither party is responsible, the provision and delivery periods are extended by the corresponding period. The customer will be informed immediately.
  • If the subject matter of the contract is individually adapted or changed for the customer, the customer is obliged to accept the subject matter of the contract and to check its functionality within 14 days of acceptance. The course of acceptance is logged. The subject of the contract is 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.
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§ 6 Customer Obligations

  • The customer is obliged to use the rights of use granted to him by the provider only for the contractually agreed purposes.
  • The customer is always obliged to actively participate. The scope of these obligations to cooperate results from the respective contract or from the circumstances of the respective contract, whereby the list is not exhaustive. In particular, the customer must provide all the required information in full at the beginning of the service.
  • If the customer's obligation to cooperate is not fulfilled or not fulfilled in full, the provider is entitled to demand additional remuneration in a reasonable amount for the additional costs caused.
  • The customer must provide truthful information upon conclusion of the contract. If this information changes, the customer must inform the provider immediately. If it turns out at a later point in time that the customer has given false information, e.g. regarding his personal characteristics, the purpose of the contract, etc., he is obliged to compensate the provider for the resulting damage, insofar as he is at fault in this regard.
  • 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 prior consent of the provider. For commercial users, the authorization to use the software in a network does not include the right to allow other companies or companies to use the software after conclusion of the contract.
  • The customer shall not remove or circumvent the existing protection 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 obliged to back up his 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 are only transferred to the customer after full payment has been received.
  • Unless a separate usage agreement is made, the customer generally receives a simple, non-transferable, time-limited and spatially unlimited right of use for the intended use.
  • The customer is entitled to use the subject matter of the contract for use within the framework of the acquired license for the contractually stipulated period.
  • The customer has no right to disclosure and/or transmission of the source code, unless there are mandatory legal regulations to the contrary.
  • In the relationship between the contractual partners, all rights to any software are exclusively due to the provider, insofar as no rights are granted to the customer under these terms and conditions or any other agreement.
  • The customer may create a backup copy according to § 69d Abs. 2 UrhG. The copy must 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 takes the place of the original.

 

§ 8 Liability

  • In principle, the provider is liable without limitation for damage caused intentionally or through gross negligence, for fraudulent concealment of defects, for 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 is only liable for defects that already existed when the contractual software was handed over to the customer insofar as it is responsible for these defects.
  • For other damages, however, the provider is only liable if an obligation is violated, compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligation).
  • In the event of slight negligence, the liability is limited to the amount of the foreseeable damage, the occurrence of which must typically be expected.
  • The provider is not liable for the loss of data and/or programs insofar as the damage is due to the fact that the customer failed to carry out regular data backups at the short intervals customary in the industry and thereby ensure that lost data can be restored with reasonable effort be able.
  • The above liability regulations also apply to the employees and/or vicarious agents of the provider.
  • Moreover, liability is excluded.

§ 9 Warranty in the context of individual adjustments or changes

  • The following regulations only apply to individual adjustments or changes to the contractual software that the customer has commissioned separately, see Section 2 (3) of these general terms and conditions.
  • In the case of individual adjustments or changes to the subject matter of the contract carried out as part of a separate order, the provider owes the customary care in the industry. In this respect, the provider assumes liability for defects that the subject matter of the contract meets the requirements agreed on the basis of the contract and is suitable for the contractual use.
  • The place of performance for the subsequent performance is the registered office of the provider.
  • The customer must report defects immediately. If the customer is a merchant, he is obliged to check the contractual software for defects immediately upon receipt and to report them if necessary, cf. § 377 HGB.
  • A self-performance by the customer is excluded before the unsuccessful expiry of a reasonable period of time set by the customer for supplementary performance.
  • Subsequent performance is carried out at the choice of the provider by eliminating the defect or delivering a defect-free item.
  • Subsequent performance can be carried out by means of telecommunication transmission of software, unless the telecommunication transmission cannot be expected of the customer, e.g. for reasons of IT security.
  • The provider is not 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 will support the provider in identifying and remedying the defect and will 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 is only liable for slight negligence in the event of a breach of an essential contractual obligation (cardinal obligation), the fulfillment of which is essential 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 subsequent performance claims expire twelve months after delivery of the contractual item, except in the case of intent.
  • Otherwise, the statutory provisions apply.

Section 10 Force Majeure

The provider is released from the obligation to perform in cases of force majeure. Force majeure includes all unforeseen events and events for which neither party is responsible for the impact on the fulfillment of the contract. These events include, in particular, lawful industrial action, also in third-party companies, as well as official measures.

§ 11 Data Protection, Secrecy

  • When providing the service, the provider will comply with the data protection regulations, in particular the regulations of the DSGVO and the BDSG.
  • The parties shall maintain secrecy about the business and company secrets, information, documents and data of the other party that become known.
  • The above obligations continue to exist even after the termination of any contracts.

§ 12 Final Provisions

  • If the customer is a merchant, the place of jurisdiction for all disputes relating to the contractual relationship is the court at the registered office of the provider.
  • Should a provision of this agreement be ineffective or become ineffective during the term of the contract, the remaining provisions of this agreement shall not be affected and shall continue to apply unchanged. The ineffective provision should be replaced by another, permissible provision that comes closest to the meaning and purpose of the ineffective provision.
  • Changes or additions to the respective contract require at least text form to be effective

§ 13 Dispute Resolution:

The EU Commission has created an internet platform for the online settlement of disputes. The platform serves as a point of contact for the out-of-court settlement of disputes relating to 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 settlement procedure before a consumer arbitration board.