Terms and Conditions
General Terms and Conditions of Sale of Oculyze GmbH
1. Application
The following General Terms and Conditions (hereinafter referred to as “Terms of Sale”) shall apply exclusively to all contracts concluded by and between Oculyze GmbH (“Oculyze” or “we”) and its customer who is not a consumer in the sense of § 13 German Civil Code or other applicable law (“Customer”), for the sale of goods by Oculyze, i.e. microscopes to use the services of Oculyze, unless otherwise provided in written agreement between the parties in individual cases.
These Terms of Sale shall also apply to any and all future business transactions for the sale of goods between the parties, and even if we carry out the delivery of goods with knowledge of different or conflicting terms and conditions of the Customer. Terms and conditions of the Customer shall only be applicable if and to the extent we have expressly agreed to such terms in writing.
2. Conclusion of Contract
(1) The Customer will receive an offer for sale of goods upon request. This offer shall be accepted by a manual or digital signature. The contract will be concluded when the Customer accepts the offer within the time limit specified in the offer; a late acceptance shall be regarded as a new binding offer by the Customer, which may be accepted by Oculyze with 14 days.
(2) The presentation of goods on the website does not constitute a legally binding offer by Oculyze, but the invitation to submit the offer (invitatio ad offerendum). By clicking on the button “Binding Order”, the customer makes a binding offer to Oculyze to conclude a sales contract. The customer then receives a message confirming the receipt of his order at Oculyze. This order confirmation does not constitute acceptance of the offer. The contract is concluded as soon as Oculyze transmits the acceptance via email, fax or message in the customer account (confirmation of acceptance), at the latest however with the dispatch of the ordered goods to the Customer.
(3) The Customer will receive a reference to these Terms of Sale along with the offer and can save them at any time or print.
(4) The Customer assures that all information (such as name, company, address, E-Mail address, bank account, etc.) entered in the order or at the registration is accurate and true. Any changes shall be brought to Oculyze’s attention without undue delay.
(5) The conclusion of the contract and subsequent deliveries to the Customer are subject to national or international regulations of foreign trade law, embargoes or other legal prohibitions. The contractual obligations of Oculyze shall cease to exist insofar as they conflict with applicable national or international regulations of foreign trade and / or embargo and / or other sanctions.
(6) The Customer undertakes to refrain from doing business with UN / EU embargo states or persons, organizations or institutions that are on a sanction list in accordance with EC regulations or US export regulations, and also transactions that do not have the necessary approval. The Customer is liable for all expenses and damages incurred to Oculyze from any infringement.
3. Delivery of Third-Party Goods
(1) Goods of third-party, such as compatible smartphones, may be added to the delivery subject to respective agreement between the parties. The Customer can freely decide from whom he may acquire a compatible smartphone.
(2) Any claims of warranty for the goods of a third party are subject to and to be raised within the scope of the respective manufacturer’s warranty. Oculyze assumes no further warranty or liability for defects in such products. As soon as Oculyze assigns its contractual claims against the third party arising from the defective products to the Customer, the Customer automatically releases Oculyze from all liability with respect to such goods.
4. Prices and Shipping Costs
Unless otherwise agreed, prices shall be ex works (EXW; Incoterms 2010) at Oculyze’s place of business, and exclude packing and unloading, freight, postage and insurance, plus all applicable value added, sales, use and other similar tax.
The prices and shipping costs will be stated in the offer sent to the Customer.
5. Payment
(1) The payment shall be made in accordance with the offer, which the Customer has received from Oculyze separately.
(2) For the Customer with its principal place of business in Germany: A payment on bill can be arranged upon agreement. In this case, the purchase price shall be paid within 30 days of the invoice, unless expressly otherwise agreed in writing. Upon expiry of the term, a default penalty shall be charged in amount of 9 percentage points above the base interest rate (§ 247 German Civil Code) per annum. Oculyze is further entitled to claim compensation for any higher losses caused by default.
Where the Customer is in default of payment, or the credit unworthiness of the Customer becomes noticeable in other ways, all further claims against the Customer shall become due immediately upon notification of Oculyze.
(3) For the Customer with its principal place of business outside Germany: The purchase price is due immediately upon Customer’s submitting an order. The obligation of Oculyze to perform arises only upon the receipt of full amount of purchase price and all other amounts hereunder.
(4) The Customer may only set-off with undisputed claims, or claims finally settled by jurisdiction, against Oculyze. The Customer is entitled to exercise retention right if and to the extent that its counterclaim arises from the same contractual relationship.
6. Delivery; Transfer of risk
(1) Time of delivery specified by us are based on assessment according to previous experience and are generally not to be deemed as binding delivery date, unless explicitly stated as such. Delivery requires the timely and ordinary fulfilment of the obligations by the Customer. We reserve the right of retention of goods with respect to unperformed contract.
We are entitled to perform partial deliveries to a reasonable extent.
(2) In the case that the ordered goods are not available for a reason out of our scope of responsibility due to late or incorrect delivery (including the short delivery) by our suppliers despite the supply contract for the ordered goods between us and our suppliers, or for other causes outside our reasonable control, we are not obligated to deliver. In this case we commit ourselves to inform the Customer immediately about the non-availability of the goods ordered and provide the Customer with a refund of the payments received forthwith.
(3) Where the Customer is in default of acceptance or other culpable violation of its duty to cooperate, we are entitled to claim damages, including any additional expenses. We also reserve the right to further claims for remedies. The risk of accidental loss of or damage to the goods shall pass to the Customer at latest at the time of default of acceptance or other violation of duty to cooperate to the buyer.
The risk of accidental loss of and damage to the goods shall pass to the Customer at the time of pickup by the Customer at Oculyze’s place of business, or upon dispatch from Oculyze’s place of business in case of delivery of the goods on request of the Customer.
7. Retention of Title
(1) The delivered goods remain our property until the payment are received in full amount.
(2) The Customer shall immediately notify us of any request of third parties to possess the goods subject to the retention of title. The Customer is liable for all costs incurred for the repeal of such requests, in particular for raising third-party counterclaims or opposition complaints, if and to the extent that the costs are not reimbursed by the relevant third parties.
8. Defect Claims
(1) In the case that the purchased goods are defective, the statutory provisions shall apply. The Customer is entitled to raise defect claims only if it has duly fulfilled its inspection and opposition duty according to § 377 German Commercial Code (HGB). Oculyze has to be informed of any defect claims immediately after detection. The regulations under paragraph 9 shall apply in addition to the statutory requirements for claims for damages in the case of a defect of the goods.
(2) All claims on the grounds of defects shall become time-barred 12 months after transfer of risk pursuant to sec. 6 (3).
9. Claim for Damages
The following disclaimers and limitations shall apply to a liability of Oculyze for damages without prejudice to Oculyze’s other legal rights and remedies.
(1) Oculyze is liable for intentional misconduct and gross negligence. The liability for slight negligence shall be limited to the cases where an obligation essential for the achievement of the contract purpose (so-called cardinal obligation) is violated.
Any further liabilities for damages of any kind, no matter on which legal grounds, including the liability for negligence in the course of conclusion of the contract, shall be excluded.
(2) Should Oculyze be liable in accordance with paragraph 1 for simple negligence, the liability of Oculyze shall be limited to the amount of damage which is typical according to the nature of the relevant business and was foreseeable to Oculyze at the time of the conclusion of the contract.
(3) The foregoing disclaimers and limitations of liability shall apply neither to the case of an express guarantee provided for the features of the goods, nor to the damage caused to life, body or health; any mandatory claims under the German Product Liability Act shall remain unaffected.
(4) The foregoing disclaimers and limitations of liability shall also apply in favor of the employees, and other agents of Oculyze and/or other third parties engaged by Oculyze to perform the contract.
10. Data Protection
(1) Oculyze collects and stores the data of the Customer insofar as required for the business. It adheres to the legal data protection regulations.
(2) The Customer grants Oculyze for the purposes of the contract performance the right to process the data to be stored by Oculyze, insofar as this is necessary to provide the contractual services.
(3) Further information about the collection, use and protection of personal data is to be found in the privacy policy of Oculyze published on the website https://www.oculyze.de/datenschutz .
(4) The Customer may receive information about its stored personal data on request at any time.
11. Applicable Law; Place of Jurisdiction
(1) For these Terms as well as the entire contractual relationship between Oculyze and the Customer, the law of the Federal Republic of Germany (not including the UN Convention on Contracts for the Sale of Goods) shall apply.
(2) For the Customer with its principal place of business in Germany, Austria or Switzerland, the following jurisdiction shall apply: Place of jurisdiction is the principal place of business of the Provider. The court has jurisdiction over all disputes arising from or in connection with these Terms and contract(s) between the parties. Before raising the claim in legal proceeding, the parties shall endeavor to resolve the dispute through negotiation.
(3) For the Customer with its principal place of business outside Germany, Austria and Switzerland, the following arbitration agreement shall apply: All disputes arising out of or in connection with these Terms and contract(s) between the parties or the validity thereof shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The place of arbitration is the principal place of business of the Provider. Language of the arbitration shall be English.
12. Final Provisions
(1) The contract contains all agreements between the parties on the subject of the contract. Verbal collateral agreements do not exist. This contract can only be amended in writing, signed by the parties.
(2) Should any provision of these Terms of Sale be or become, totally or partially, invalid or ineffective, the validity of the remaining provisions shall not be affected. Where the legislative rules are not available or not sufficient to close the gap, the Parties shall strive to substitute the invalid provision with a valid one which as closely as possible achieves the economic purpose of the invalid provision.
General Terms and Conditions for Software-as-a-service (SaaS) of Oculyze GmbH
The following terms and conditions (“these Terms”) shall apply to all contracts between Oculyze GmbH (“Oculyze” or “Provider”) and its user (“User”) who is not a consumer within the meaning of § 13 German Civil Code (or any other applicable law) for the use of software provided by the Provider to be accessed via the internet (the “Services”) by the User. These Services include the use of the image recognition software and other services in the mobile application (“Mobile App”) with the use of Oculyze microscopes as smartphone accessories (“Microscope”).
In order to use the Services, the User must agree to both these Terms and the Privacy Policy of the Provider (https://www.oculyze.de/datenschutz). By accepting these Terms, the User confirms to have read, understood and accepted the Privacy Policy.
1. Subject of the Contract
The subject of the contract is according to the Customer’s order:
use of software of the Provider via internet (SaaS services)
storage of the User´s data (data-hosting)
The Services enable the User to carry out microscopic analyses using the Mobile App, the image recognition software (“Software”), a compatible mobile device and the Microscope.
(1) The Software is operated by the Provider as a SaaS or cloud solution. It enables the User to use the Software stored and operated on the servers of the Provider or of a service provider authorized by the Provider via internet access during the term of this agreement for its own purposes, store and process its data therewith.
(2) The Provider will make the Software available for use to the User at the router output of the computer center where the server with the software is located (“transfer point”). The Mobile App required for the usage of Service and the necessary memory and data processing space will be provided by the Provider within the scope and subject to Customer’s order. The Provider is not responsible for the creation or maintenance of the data connection between the Customer’s IT systems and the transfer point.
(3) The obligations of the Provider according to these Terms are limited to the providing of the Oculyze-account and making Software available for use. The Provider does not owe or otherwise provide the User, in particular, any specific analysis, history or results.
(4) The Provider will take reasonable measures to provide access to SaaS services twenty-four (24) hours a day and seven (7) days a week, throughout the year. With the aim of providing the accessibility of the Services for at least 90% of the time, the Provider may suspend the provided Services at its sole discretion, where maintenance work is to be conducted, or it is legally necessary, or the User has violated essential obligations under these Terms.
(5) The Provider is entitled to use, in particular to reproduce, process and make available to a third party, the data associated with the analyses and results in anonymous form to improve the service, as well as for the purpose of research and development.
(6) The Provider may update or modify the Services at any time and with immediate effect.
(7) The Provider reserves the right to assign any or all of the obligations of the Provider under these Terms and conditions to a third party to perform.
2. Right of Use
The Provider is owner of all copyrights and all other intellectual property rights in the Software. The Software is not sold to the User, nor are any intellectual property rights conferred, except for the license expressly granted herein.
The Provider grants the User the non-exclusive, limited in duration of this agreement, and non-transferable license to use the Software during the term of this agreement, subject to conditions specified herein and within the scope of the SaaS services.
The license is limited in use to the implementation of microscopic analyses for the use of the User. No further right of use thereof is granted to the User. In particular, the User is not entitled to change, revise, reproduce, develop, translate, decompile or reverse engineer, rent, lend, transfer, sublicense or otherwise make available to a third party the Software.
The User is not entitled to provide the Software to third parties, whether for a fee or free of charge. A sub-license of the Software by the User (including without limitation by means of application service providing or software as a service) is expressly prohibited.
3. Oculyze-Account
(1) To use the Services of the Provider, the User must register and set up an Oculyze-account. The
User confirms that all the information regarding the User and/or its business is correct at the time of account opening. Upon completed registration, the User will receive a confirmation email of the Provider sent to the primary email address of the User. The User is obligated to ensure that the information saved in the Oculyze-account is accurate and up-to-date at all times.
(2) The User shall choose an adequate descriptive business name, if it differs from its company name, clearly identifying the User or its business entity, and specify the correct phone number.
(3) The Oculyze-account is registered on one of the Provider´s servers.
4. Restrictions on the Use of Services
In order to use the Services, a compatible mobile device and an internet connection are required, which will be provided by third parties. These third parties will charge for the internet connection and devices that are used by the User to access the Services. The User is solely responsible for the payment of any invoices relating thereto.
5. Microscope & Software
(1) The User can buy a Microscope from the Provider, subject to the Provider’s standard terms and conditions. The User can generally use only one microscope for each Oculyze account. Upon request of the User, the Provider may provide the User with more microscopes for additional accounts or sub-accounts against payment of additional charges.
(2) The User is not entitled to allow third parties to use the Services. The User is also not allowed to modify the Software or any hardware of the Microscope in any way.
(3) In order to use the Services, the User is required to install all updates of the Mobile App.
6. Data Processing, Data Backup
(1) The Provider and User shall comply with the statutory data protection provisions.
(2) For the purpose of contract performance, the User grants the Provider the right to use and process the data to be stored by the Provider for the User, as far as this is appropriate for the provision of the Services under this agreement. The Provider is also entitled to hold the data in a default system or separate backup data center. To rectify faults or malfunction, the Provider is further entitled to make changes to the data structure or data format.
(3) The Provider will regularly back up the data of the User saved on the server within the scope of the Provider´s responsibility on an external backup server. The User can at any time to the extent of technical feasibility access such data for backup purposes. If the User has not used the Service for more than 1 year, the Provider may delete its data without notice of any kind.
(4) If and insofar as the User processes personal data in the IT system for which the Provider takes technical responsibility, a separate agreement for data processing shall be concluded.
7. Support
(1) The Provider shall provide support, when the Services do not fulfill, in all material respects, the contractually stipulated functions according to the product description as published by the Provider. Upon discovering an error in the Services, notification of error shall be sent by Customer via the function contained in the Mobile App or by email to support@oculyze.de.
(2) Once the User reports a support request, it has to deliver a detailed description of the respective malfunction for the purpose of effective troubleshooting.
(3) The parties can enter into a separate agreement on the provision of support, maintenance and helpdesk services.
8. Fees and Payment
(1) Payment term and amount of fees, as well as the method of payment, are set forth in the respective order. Unless otherwise stipulated in individual case, prices do not include any sales, use, consumptions, value-added, or any other tax (including applicable withholding tax) and the Customer is responsible for the payment of any and all such taxes. Bank fees shall be borne by the Customer.
(2) Should the User be in default of payment or otherwise for more than four weeks, the Provider is entitled to set a deadline with reminder and block the access to the Software upon expiry of the deadline, without prejudice to the Provider´s claim for the fees or the exercise of its other rights and remedies. The access to the Software may be, in the discretion of the Provider, re-established after the Customer pays all arrears and cures all other defaults.
(3) The Provider can adjust the prices and all other fee rates after the expiry of the initial term of contract. Should the fees be increased more than 5%, the User is entitled to terminate the contract at the end of the current contract month.
(4) The fees for any other services will be charged according to the applicable price list of the Provider.
(5) The User has to check immediately the bills of the Provider, as well as credits, refunds, chargebacks and all other transactions, which were credited or charged to the User’s bank account. Any objections must be raised within twenty-five (25) business days (“Business day” means every day from Monday to Friday except statutory holidays) after receipt of the respective bill or charge. Without a timely objection, the bill or charge shall be regarded as approved.
9. Provider´s Warranty and Limitation of Liability
(1) The Provider shall only be liable for defects in the provision of Services in case of simple negligence, regardless of the legal grounds, in the case of a culpable violation of a major contractual obligation, that is, the breach of which will endanger the purpose of the contract, and/or the fulfilment of which is the preposition for the proper contract performance and the contractual partners may regularly trust upon. The Provider´s liability for simple negligence shall be limited to the typical damage foreseeable at the time of contract conclusion.
(2) The Provider shall be liable for damage caused by its gross negligence or intentional misconduct without limitation. The limitation of liability provided for in paragraph 1 above shall apply notwithstanding in the same way for damage caused as a result of gross negligence by employees or agents of the Provider who are not its directors or officers. The same shall also apply to the advertisements of any third parties on the website of the Provider.
(3) The Provider is not liable for disruption or impairment of Services or for disruptions or impairments of any third-party services utilized by the User or the Provider.
(4) The Provider shall only be liable for the damage and losses causes by its own fault. The Provider assumes no liability for special requirements of the User.
(5) The Provider is not liable for the data loss to the extent that the damage is due to User’s failure to back up its data so as to ensure that lost data can be restored at a reasonable cost.
(6) Warranty claims of the User, if any, shall lapse in any case if the User changes the software or hardware without consulting the Provider and being granted a written permit by the Provider to do so.
(7) The above limitations of liability shall apply accordingly also in favor of the employees and agents of the Provider.
(8) The Provider´s liability for any damage caused by intentional acts, as well as for claims under the German Product Liability Act or on the ground of an absence of expressly promised or guaranteed features, and/or damages for injury to life, body or health, shall remain unaffected.
10. Release
To the maximum extent permitted by any applicable law, the User undertakes to hold the Provider as well as its employees, directors, agents, affiliates, representatives and service providers, harmless and indemnify it/them against all the liabilities, judgments, claims, direct and indirect losses and expenses (including attorney’s fees), etc., arising from the cases where (i) the User violates laws or regulations, these Terms, network rules, or any other conditions which apply to the Oculyze account of the User.; or: (ii) the User culpably uses the Services in incorrect or inappropriate manner; or (iii) the User culpably violates third parties rights, including data protection, publication and intellectual property rights; or (iv) any third party uses the user name, password or other suitable security code of the User to access the Services and/or has used such, unless the User has already taken appropriate security measures against unauthorized use.
11. Confidentiality & Privacy; Consent to Use as a Reference
(1) The User and the Provider are committed to keep confidential information of the other party made available in frame of the business relationship, confidential and shall not make such available to a third party. “Confidential information” refers to, in particular, information with respect to the business secrets of the respective party. Both parties are obliged to comply with all data protection regulations and take appropriate precautions against unauthorized use of the card and cardholder data; such data may only be stored if and to the extent that is absolutely necessary.
(2) More information about the collection, use, and protection of personal data can be found in the Privacy Policy on the website of the Provider at https://www.oculyze.net/de/rechtliches/datenschutzerklaerung/.
(3) Consent to the use of personal data: the User agrees that the Provider may publish the data collected within the framework of the contractual relationship, such as business name and address as reference. This consent may be revoked with a reasonable notice to the Provider at any time with effect for the future.
12. Contract Duration, Suspension and Termination
(1a) Contracts with a monthly payment schedule shall be concluded for a minimum period of 12 months (“Initial Term”). Upon expiration of the Initial Term, the contract will subsequently be renewed automatically until one of the parties terminates the contract in writing. In case of a termination the contract will cease at the end of the following calendar month. The Provider can block, close or delete the Oculyze account of the User without prior notice if the User violates these Terms of Use or any other contractual provisions applicable to our Services.
(1b) Contracts with an annual payment schedule shall be concluded for a minimum period of one year (“Initial Term”). Upon expiration of the Initial Term, the contract will subsequently be renewed automatically for additional periods of one year each if none of the parties terminates the contract to the end of the respective term with a four- week notice in writing. If not otherwise agreed in writing the Customer is limited to a maximum of 5000 analysis per year and user account. The Provider can block, close or delete the Oculyze account of the User without prior notice if the User violates these Terms of Use or any other contractual provisions applicable to our Services.
(2) In the event of closure or termination of the Oculyze account: (i) the User shall immediately discontinue the use of the Services, (ii) the license granted to the User under these Terms ends forthwith; (iii) the Provider reserves the right (without being obligated) to delete the User’s account data stored on the Provider’s servers; and (iv) the Provider is not liable for the termination of access to the Services or the deletion of the User’s account data against the User or a third party.
(3) The User has to pay to the Provider all due amounts according to these Terms immediately after the effective termination of the Oculyze account.
13. Communication
(1) Written notice and notification shall be transmitted to the User by email to the address that the User has specified in the Oculyze account, or using the function on the webpage. Such notice and notification shall be deemed as received twenty-four (24) hours after the posting on the website of the Provider, or twenty-four (24) hours after sending the email, unless the Provider receives a message notifying that the email is not received. This shall not apply to statements of special importance such as notice of termination, bill, reminders and notice setting deadlines.
(2) For this reason, the User is obliged to ensure that at all time at least a valid email address is registered with the Oculyze account of the User.
(3) The User is obligated to check messages regularly. Emails may contain links with reference to other notifications on the webpage of Oculyze. As far as Oculyze is bound by law to notify the User in the form of a durable medium, Oculyze will send either an email or a message to the User notifying that the information on the website of Oculyze is available for print. The User is obliged to keep copies of all notifications sent or provided by Oculyze.
(4) Besides communication via email, Oculyze reserves the right to contact the User by post or telephone. Messages sent by post will be deemed as received five (5) business days after sending (subject to date of postmark). This shall not apply to the statements of special importance such as notice of termination, bill, reminders and notice setting deadlines.
(5) The Provider will write messages to the User in German or to the Users from non-German speaking countries in English. Documents or notifications in any other language, if any, are only for the purpose of better understanding and shall not establish an obligation of the Provider to communicate in the same language in future.
14. Intellectual Property Rights
(1) “Intellectual Property Rights” refer to all intellectual property rights that directly or indirectly contained in the Services, the Microscope, the webpage, the internet domain, all contents, technologies relating to the Services and all logos, including all copyrights, moral rights, database rights, trademarks and name rights, utility models, designs and patents, as well as all worldwide exclusive or non-exclusive rights of use that currently exist or arise, granted or transferred in the future.
(2) The Provider is the exclusive owner of all intellectual property rights. No items of these Terms shall be deemed as transfer or granting of rights to the User, except for the license expressly granted to the User herein. The User may not copy, imitate, or use the intellectual property rights without the prior written consent of the Provider, except to the extent expressly permitted herein.
(3) The contractual relationship between the Provider and the User shall not bring any changes to the intellectual property rights, unless explicitly otherwise regulated in written agreement.
(4) Should the User be granted a right of use, it may exercise such right only within the scope of the license and shall not, without the prior written consent of the Provider: (i) transfer the right granted to the User under these Terms to third parties; (ii) allow third parties to use Services (by renting, leasing or otherwise); (iii) change, modify, transfer, resell or distribute contents, materials or information of the Provider; (iv) use the Service for any purpose other than permitted by these Terms.
(5) During the use of the Services, the User may generate or submit contents (“User Contents”). The Provider is entitled to use the data associated with the analyses and results in an anonymous form, to process the data, in particular, to copy and make available to third parties.
(6) For any User Contents submitted by the User, the User confirms that it is the legal owner of the copyright or has the permission of the legal owner, to upload the contents and grant the Provider a worldwide, non-exclusive, free of charge, fully paid, transferable and sub-licensable right to use and process the User Contents in promotional activities and other public presentations related to the Services of the Provider.
(7) While using the Services, the User shall not submit any user content that (i) is wrong, misleading, unlawful, obscene, offensive, indecent, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive or inflammatory; (ii) encourages conduct which may lead to criminal acts or cause civil liability; (iii) violates an obligation or infringe the rights of a third party, including publication and confidentiality rights; (iv) damages data or contains other harmful, disruptive or destructive files; (v) advertises goods or services of providers in competition to the Provider or its partners; or (vi) in the Provider´s view, interferes with other users or disturbs the use of Services by the others, or that may give rise to the Provider´s risks of infringements or liabilities. Although the Provider is not obliged to review, revise or monitor the User Content, the Provider reserves the right to modify or to delete the User Content at any time without notice. The User is aware that, while using the Services, it may be exposed to the User Contents of other users that may be offensive, indecent or not desirable.
15. Applicable General Terms
These Terms shall apply exclusively. Terms and conditions of the User do not apply. Counter confirmation of the User with reference to its own terms and conditions are expressly excluded.
16. Change of General Terms
(1) The Provider has the right to change, in its discretion, these Terms at any time and to revise, remove, delete or add certain conditions to the provisions on the Services, if it is required due to change of law, the jurisdiction or market conditions.
(2) The Provider will inform the User about proposed changes to these Terms by email to the primary email address registered with the Oculyze-account or by a notification in the Mobile App.
(3) The proposed changes shall take effect two (2) months after the date of the change notification, provided that the User has not raised objection to the changes by notification to the Provider prior to the effective date. Changes to the benefit of the User shall take effect immediately, provided that it has been so communicated in the change notification.
(4) The current version of these Terms is available on the website of the Provider.
17. Assignment
(1) The Provider is entitled to assign any and all of its rights under the contract(s) between the parties to a third party.
(2) The User may assign its rights and obligations under the contract(s) between the parties to third parties only with the prior consent of the Provider.
18. Complaint
The User shall send its complaints about the Services to the customer service of the Provider.
19. Applicable Law; Place of Jurisdiction
(1) For these Terms as well as the entire contractual relationship between Oculyze GmbH and the User, the law of the Federal Republic of Germany (not including the UN Convention on Contracts for the Sale of Goods) shall apply.
(2) For the User with its principal place of business in Germany, Austria or Switzerland, the following jurisdiction shall apply: Place of jurisdiction is the principal place of business of the Provider. The court has jurisdiction over all disputes arising from or in connection with these Terms and contract(s) between the parties. Before raising the claim in legal proceeding, the parties shall endeavor to resolve the dispute through negotiation.
(3) For the User with its principal place of business outside Germany, Austria and Switzerland, the following arbitration agreement shall apply: All disputes arising out of or in connection with these Terms and contract(s) between the parties or the validity thereof shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The place of arbitration is the principal place of business of the Provider. Language of the arbitration shall be English.
20. Severability
Should any provision of these Terms of Sale be or become, totally or partially, invalid or ineffective, the validity of the remaining provisions shall not be affected. Where the legislative rules (sec. 306 German Commercial Code) are not available or not sufficient to close the gap, the Parties shall strive to substitute the invalid provision with a valid one which as closely as possible achieves the economic purpose of the invalid provision.
General Terms and Conditions for Platform-as-a-service (PaaS) of Oculyze GmbH
Definitions
“Agreement” means this Platform as a Service Agreement.
“Platform and Services” means the cloud-based platform and services.
“PaaS Provider” means the provider of the Platform and Services.
“Client” means the entity signing an order which refers to this Agreement with the intention of using the Platform and Services of the PaaS Provider (incl. its employees, subcontractors, agents, consultants and customers).
“Client Data” means all personal information of the Client which the Client submits to the PaaS Provider in any way (incl. name, contact details, payment details, date of birth, demographic data).
“Client Content” means any content or data that the Client uploads or uses on the Platform or Services
“Trademarks” means the PaaS Provider’s trademarks and logos
“Feedback” means any feedback, suggestions, or ideas provided by the Client to the PaaS Provider regarding the Platform or Services
1. Subject of the Agreement
(1) The subject of the Agreement is according to the Client’s order: (i) for the Client to use the Platform and Services of the PaaS Provider via internet; (ii) for the Client to carry out image analyses using the Platform and Services with a compatible device; (iii) for the PaaS Provider the storage of the Client’s data.
(2) The Client acknowledges that the Platform and Services may only be used for the agreed upon purpose as described in the order signed by the Client and shall not be used for any other purpose.
(3) The Platform and Services are operated by the PaaS Provider as a cloud solution. It enables the Client to use the Platform and Services stored and operated on the servers of the PaaS Provider or of a service provider authorized by the PaaS Provider via internet access during the term of this agreement for its own purposes, store and process its data therewith.
(4) The PaaS Provider will make the Platform and Services available for use to the Client at the router output of the computer center where the server with the Platform and Services software is located (“Transfer Point”). The PaaS Provider is not responsible for the creation or maintenance of the data connection between the Client’s IT systems and the transfer point.
(5) The PaaS Provider will take reasonable measures to provide access to Platform and Services twenty-four (24) hours a day and seven (7) days a week, throughout the year. With the aim of providing the accessibility of the Platform and Services for at least 90% of the time, the PaaS Provider may suspend the provided Platform and Services at its sole discretion, where maintenance work is to be conducted, or it is legally necessary, or the Client has violated essential obligations under this Agreement.
(6) The Client shall not, and shall not permit any third party to, use the Platform and Services to upload any illegal, harmful, or offensive content or data.
(7) The PaaS Provider reserves the right to modify, update, or discontinue the Platform and Services at any time, with or without notice.
(8) The Provider reserves the right to assign any or all of the obligations of the Provider under these Terms and conditions to a third party to perform.
2. Access and Use
(1) Subject to the terms and conditions of this Agreement, the PaaS Provider grants the Client a non-exclusive, non-transferable, limited right to access and use the Platform and Services for the Client’s business purposes.
(2) The Client shall not, and shall not permit any third party to: (i) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in the Platform or Services; (ii) use the Platform or Services for any illegal or unauthorized purpose or in any manner that could damage, disable, overburden, or impair the Platform or Services; (iii) use the Platform or Services to access, store, distribute, or transmit any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to the Platform or Services, other accounts, computer systems or networks connected to the Platform or Services, through hacking, password mining or any other means; (v) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “scrape,” “data mine” or in any way gather the Platform or Services or reproduce or circumvent the navigational structure or presentation of the Platform or Services; or (vi) use the Platform or Services in any manner that could interfere with or disrupt the integrity or performance of the Platform or Services or any data contained therein.
(3) The PaaS Provider reserves the right to discontinue or modify any aspect of the Platform or Services at any time, in its sole discretion.
(4) The Client shall be responsible for all fees associated with access to and use of the Platform and Services, as well as any applicable taxes.
(5) The Client shall provide the PaaS Provider with accurate and complete billing and contact information, and shall update this information as necessary to keep it current, complete and accurate.
3. Data Protection and Security
(1) The PaaS Provider shall implement and maintain appropriate technical and organizational measures to protect the Client Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
(2). The PaaS Provider shall promptly notify the Client in writing of any unauthorized access or disclosure of Client Data that it becomes aware of, and shall take such steps as are reasonably necessary to prevent any further unauthorized access or disclosure.
(3) The PaaS Provider shall not access, use, process or disclose any Client Data, except: (i) as necessary to provide the Platform and Services; (ii) as required by law; or (iii) as directed by the Client in writing.
(4) The PaaS Provider shall assist the Client in ensuring compliance with its obligations under any applicable data protection laws, including but not limited to the General Data Protection Regulation (GDPR).
(5) The PaaS Provider shall provide the Client with all information necessary to demonstrate compliance with the obligations laid down in this section and shall allow for and contribute to audits, including inspections, conducted by the Client or an auditor mandated by the Client.
4. Intellectual Property
4.1 Ownership
(1) The PaaS Provider shall retain all rights, title, and interest in and to the Platform, Services and any and all proprietary software, technology, and other materials used in connection with the Platform and Services, including all intellectual property rights.
(2) The Client shall not, and shall not permit any third party to, copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in the Platform or Services.
(3) The Client shall have no rights in the Platform or Services other than the limited right to use the Platform or Services in accordance with this Agreement.
(4) The Client shall not remove or alter any proprietary or intellectual property rights notices on the Platform or Services.
4.2 Licenses
(1) Subject to the terms and conditions of this Agreement, the PaaS Provider grants the Client a non-exclusive, non-transferable, limited license to access and use the Platform and Services for the Client’s business purposes during the term of this Agreement.
(2) The Client shall not, and shall not permit any third party to, reproduce, distribute, sell, transfer, sublicense, or otherwise make the Platform or Services available to any third party, except as specifically permitted by this Agreement.
(3) The Client shall not, and shall not permit any third party to, use the Platform or Services for any illegal or unauthorized purpose or in any manner that could damage, disable, overburden, or impair the Platform or Services.
(4) The license granted under this section shall automatically terminate upon termination or expiration of this Agreement.
4.3 Client Content
(1) The Client shall retain all right, title, and interest in and to any content or data that the Client uploads or uses on the Platform or Services, including all intellectual property rights.
(2) The Client grants the PaaS Provider a non-exclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to access, use, process, copy, distribute, transmit, display, and perform the Client Content for the purpose of providing the Platform and Services to the Client.
(3) The PaaS Provider is entitled to use, in particular to reproduce, process and make available to a third party, the Client Content associated with the analyses and results in anonymous form to improve the Platform or Services, as well as for the purpose of research and development.
(4) The Client represents and warrants that it has all necessary rights to upload or use the Client Content on the Platform or Services, and that such use does not infringe any third party rights.
(5) The Client shall be solely responsible for the accuracy, completeness, and legality of the Client Content.
(6) The PaaS Provider shall not be responsible or liable for any loss or damage to the Client Content or for any loss or damage of any kind incurred as a result of the use or access of the Client Content.
4.4 Infringement
(1) The PaaS Provider shall promptly notify the Client in writing of any claim or action that alleges that the Platform or Services infringe the intellectual property rights of any third party.
(2) The PaaS Provider shall cooperate with the Client in the defense of any such claim or action and shall allow the Client to control the defense and settlement thereof, at the Client’s expense.
(3) If the Platform or Services, or any part thereof, are held by a court of competent jurisdiction to infringe any third party’s intellectual property rights, or if the PaaS Provider receives notice of such claim, or if the PaaS Provider believes that the Platform or Services may infringe any third party’s intellectual property rights, the PaaS Provider may, at its option and expense: (i) obtain for the Client the right to continue using the Platform or Services; (ii) modify the Platform or Services to make them non-infringing; or (iii) terminate the Client’s right to use the Platform or Services and provide the Client with a pro-rata refund of any prepaid fees, based on the remaining term of this Agreement.
(4) The Client shall promptly notify the PaaS Provider of any actual, suspected, or alleged infringement of the intellectual property rights of any third party related to the Client Content.
(5) The Client shall cooperate with the PaaS Provider in the defense of any such claim or action and shall allow the PaaS Provider to control the defense and settlement thereof, at the PaaS Provider’s expense.
4.5 Trademarks
(1) The PaaS Provider grants the Client a non-exclusive, non-transferable license to use the PaaS Provider’s trademarks and logos (the “Trademarks”) for the sole purpose of identifying the Platform and Services in the Client’s marketing and promotional materials and on the Client’s website.
(2) The Client shall use the Trademarks only in accordance with the PaaS Provider’s guidelines and instructions and shall not use the Trademarks in any way that is likely to cause confusion or dilute the PaaS Provider’s rights in the Trademarks.
(3) The Client shall not, and shall not permit any third party to, use the Trademarks or any confusingly similar marks as part of the Client’s corporate or product names or in any manner that creates the impression that the Client and the PaaS Provider are the same or related entities.
(4) The Client shall not, and shall not permit any third party to, register or use any domain name, social media account, or any other online presence that includes any of the Trademarks or any confusingly similar marks.
(5) The license granted under this section shall automatically terminate upon termination or expiration of this Agreement.
(6) The Client acknowledges that the PaaS Provider is the sole owner of the Trademarks and that the Client acquires no rights in the Trademarks except as set forth in this Agreement.
4.6 Feedback
(1) The Client may provide feedback, suggestions, or ideas (“Feedback”) to the PaaS Provider regarding the Platform or Services.
(2) The Client grants the PaaS Provider a perpetual, non-exclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to use, reproduce, distribute, display, perform, and incorporate the Feedback into the Platform or Services or any other products or services of the PaaS Provider.
(3) The Client acknowledges that the PaaS Provider may have similar feedback, suggestions, or ideas under development or consideration, and that the PaaS Provider shall not be liable for any similarities between the Feedback and any other products or services of the PaaS Provider.
(4) The Client shall not provide feedback, suggestions, or ideas that are confidential or proprietary to the Client or any third party without the express written consent of the Client or the third party.
5. Warranty and Disclaimers
(1) The PaaS Provider represents and warrants that it has the right and authority to enter into this Agreement and to perform its obligations hereunder.
(2) The PaaS Provider represents and warrants that the Platform and Services will be provided in a professional and workmanlike manner, in accordance with industry standards.
(3) The PaaS Provider does not warrant that the Platform or Services will be uninterrupted or error-free, and shall not be liable for any interruptions or errors.
(4) The PaaS Provider does not warrant that the Platform or Services will meet the Client’s requirements or that the operation of the Platform or Services will be completely secure or free from errors or viruses.
(5) The PaaS Provider shall not be liable for any loss or damage arising from any unauthorized access to or use of the Client’s account or data.
(6) The Client acknowledges and agrees that the Platform and Services are provided on an “AS IS” and “AS AVAILABLE” basis, and that the PaaS Provider makes no representations or warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement, or that the Platform or Services will meet the Client’s requirements.
(7) The Client assumes the entire risk as to the quality and performance of the Platform and Services.
6. Limitation of Liability
(1) The PaaS Provider shall not be liable for any indirect, incidental, consequential, special, or exemplary damages, including but not limited to, damages for loss of profits, revenue, business, or data, arising out of or in connection with this Agreement or the use of the Platform and Services, even if the PaaS Provider has been advised of the possibility of such damages.
(2) The PaaS Provider’s total liability to the Client arising out of or in connection with this Agreement or the use of the Platform and Services, whether in contract, tort, or otherwise, shall not exceed the amount of any fees paid by the Client to the PaaS Provider in the 12 months preceding the claim.
(3) The PaaS Provider shall not be liable for any failure or delay in performance of its obligations under this Agreement caused by any act of God, war, strikes, or other labor disputes, embargoes, government orders or any other force majeure event.
(4) The Client shall be liable for any damages caused by its misuse of the Platform and Services and shall indemnify the PaaS Provider against any claims, losses, costs, expenses, or damages that may be incurred as a result.
(5) The PaaS Provider shall not be liable for any failure to perform its obligations hereunder if such failure is caused by the Client’s failure to make payment when due.
7. Indemnification
(1) The Client shall indemnify, defend and hold harmless the PaaS Provider, its affiliates, and their respective directors, officers, employees and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with: (i) the Client’s use of the Platform or Services; (ii) the Client’s violation of this Agreement; (iii) the Client’s violation of any rights of another; (iv) the Client’s failure to comply with any applicable laws or regulations; or (v) the Client’s negligence or wilful misconduct.
(2) The PaaS Provider shall promptly notify the Client in writing of any claim for which the PaaS Provider intends to seek indemnification under this section and shall provide the Client with reasonable assistance in defending such claim, at the Client’s expense.
(3) The Client shall have the right to participate in the defense of any such claim with counsel of its own choosing at its own expense.
(4) The PaaS Provider shall not settle any such claim without the Client’s prior written consent, which shall not be unreasonably withheld or delayed.
(5) This indemnification shall survive the termination of this Agreement for a period of 12 months after the date of termination.
8. Fees and Payment
(1) Payment term and amount of fees, as well as the method of payment, are set forth in the Client’s order. Unless otherwise stipulated in an individual case, prices do not include any sales, use, consumptions, value-added, or any other tax (including applicable withholding tax) and the Client is responsible for the payment of any and all such taxes. Bank fees shall be borne by the Client.
(2) The PaaS Provider may increase its prices on an annual basis, provided that the PaaS Provider gives the Client 30 days prior written notice of any such increase. Should the fees be increased more than 5%, the User is entitled to terminate the contract at the end of the current contract month.
(3) The Client has to check immediately the invoices of the PaaS Provider, as well as credits, refunds, chargebacks and all other transactions, which were credited or charged to the Client’s bank account. Any objections must be raised within twenty-five (25) Business Days (“Business Day” means every day from Monday to Friday except statutory holidays) after receipt of the respective invoice or charge. Without a timely objection, the invoice or charge shall be regarded as approved.
(4) If the Client fails to make any payment when due, the PaaS Provider may suspend the Client’s access to the Platform and Services until such payment is made.
(5) Any amount not paid when due shall bear interest at the rate of 1,5% above the key interest rate set by the ECB, from the date such amount was due until the date of payment.
9. Term and Termination
(1) The minimum term of this Agreement is 12 months (“Initial Term”), unless otherwise agreed in writing. Upon expiration of the Initial Term, the Agreement will subsequently be renewed automatically by another 12 months (“Subsequent Term”) if not terminated by the Client in writing twenty-five (25) Business Days (“Business Day” means every day from Monday to Friday except statutory holidays) prior to the end of each term. In case of a termination the Agreement will cease at the end of the term.
(2) The PaaS Provider may terminate this Agreement immediately upon written notice to the Client if the Client breaches any of its obligations under this Agreement, including but not limited to failure to make payment when due.
(3) Upon termination of this Agreement for any reason, the Client shall immediately cease all use of the Platform and Services and shall pay all outstanding fees and charges up to the date of termination.
(4) Upon termination of this Agreement, the Client’s right to access and use the Platform and Services shall terminate, and the PaaS Provider shall have no further obligation to provide the Platform and Services to the Client.
(5) The Client has to pay to the PaaS Provider all due amounts according to the terms of this Agreement immediately after the effective termination of this Agreement.
(6) Any provisions of this Agreement that by their nature should survive termination or expiration shall survive termination or expiration.
10. General Terms
(1) The terms of this Agreement shall apply exclusively. Terms and conditions of the Client do not apply. Counter confirmation of the Client with reference to its own terms and conditions are expressly excluded.
(2) This Agreement may not be amended or modified except in writing signed by both parties.
(3) No failure or delay by either party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
(4) Neither party shall be liable for any failure to perform its obligations hereunder (other than payment obligations) if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party, including, without limitation, acts of God, war, strikes, or other labor disputes, embargoes, government orders or any other force majeure event. The party affected by such occurrence shall give prompt written notice thereof to the other party and shall use its reasonable efforts to avoid or remove such causes of non-performance and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.
(5) The PaaS Provider has the right to change, in its discretion, the terms of this Agreement at any time and to revise, remove, delete or add certain conditions to the provisions on the Platform and Services, if it is required due to change of law, the jurisdiction or market conditions.
(6) The PaaS Provider will inform the Client about proposed changes to the terms of this Agreement by email to the primary email address the Client provided.
(7) The proposed changes shall take effect two (2) months after the date of the change notification, provided that the Client has not raised objection to the changes by notification to the PaaS Provider prior to the effective date. Changes to the benefit of the Client shall take effect immediately, provided that it has been so communicated in the change notification.
(8) The current version of the terms of this Agreement is available on the website of the PaaS Provider.
11. Applicable Law; Place of Jurisdiction
(1) For the terms of this Agreement as well as the entire contractual relationship between the PaaS Provider and the Client, the law of the Federal Republic of Germany (not including the UN Convention on Contracts for the Sale of Goods) shall apply.
(2) For the Client with its principal place of business in Germany, Austria or Switzerland, the following jurisdiction shall apply: Place of jurisdiction is the principal place of business of the PaaS Provider. The court has jurisdiction over all disputes arising from or in connection with the terms of this Agreement and contract(s) between the parties. Before raising the claim in legal proceedings, the parties shall endeavor to resolve the dispute through negotiation.
(3) For the Client with its principal place of business outside Germany, Austria and Switzerland, the following arbitration agreement shall apply: All disputes arising out of or in connection with the terms of this Agreement and contract(s) between the parties or the validity thereof shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The place of arbitration is the principal place of business of the PaaS Provider. Language of the arbitration shall be English.
12. Severability
Should any provision of the terms of this Agreement be or become, totally or partially, invalid or ineffective, the validity of the remaining provisions shall not be affected. Where the legislative rules (sec. 306 German Commercial Code) are not available or not sufficient to close the gap, the parties shall strive to substitute the invalid provision with a valid one which as closely as possible achieves the economic purpose of the invalid provision.