Terms and Conditions
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 [email protected].
(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.