Terms And Conditions
I. General Terms and Conditions (GTC)between
the company flyingshapes GmbH (Mombacher Str. 68, 55122 Mainz, HRB 48179 Local Court of Mainz, represented by Jonas Kunze and Dr. Johannes Mattmann, see legal notice: https://www.flyingshapes.com/impressum/ - hereinafter also "we" or "us")
You, irrespective of whether you are a natural person or legal entity, consumer or entrepreneur (hereinafter also referred to as "you", "customer" or "licensee")
§ 1 Scope of application, contract language, definition of terms(1) These General Terms and Conditions apply to the contracts concluded between you and us. The additional or special conditions for software rental and for the software trial phase as well as the free phase can be found under Section II. Deviating or conflicting conditions of the customer shall only be recognized by us if we have expressly agreed to them in writing. The current version of the General Terms and Conditions at the time of the order shall always apply.
(2) In accordance with this provision, we reserve the right to amend these General Terms and Conditions if this amendment is reasonable for you, taking into account the interests of both parties; this is particularly the case if the amendments are without significant legal and/or economic disadvantages for you, e.g. changes in the ordering process or changes to contact information.
Furthermore, you will be informed and asked for your consent at least one month before these GTC are amended. The information will be sent to the e-mail address provided by you or as a note in the software.
(3) The language used for the contract is exclusively German. Translations of these General Terms and Conditions into other languages are for your information only. In the event of any differences between the language versions, the German text shall prevail.
(4) The customer is a consumer insofar as the purpose of the products or services ordered cannot be predominantly attributed to his or her commercial or self-employed professional activity. On the other hand, an entrepreneur is any natural person or legal entity or partnership with legal capacity who, when concluding the contract, acts in the exercise of its commercial or independent professional activity. A partnership with legal capacity is a partnership that is endowed with the ability to acquire rights and incur liabilities.
§ 2 Applicable law, mandatory consumer protection regulationsThese GTC shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods if
you have your habitual residence in Germany, or your habitual residence is in a State which is not a member of the European Union.
In the event that you have your habitual residence in a member state of the European Union, the applicability of German law shall also apply, whereby mandatory provisions of the state in which you have your habitual residence shall remain unaffected.
§ 3 Conclusion of a contract(1) The presentation of the products on our websites does not constitute a legally binding offer, but a non-binding online catalogue.
(3) If you order our products or services via websites of third parties, these conditions become part of the contract with the conclusion of the ordering process there. In this case, the conditions will be deposited with the third parties for information during the ordering process.
§ 4 Provisioning of contractual provisionsThe contractual provisions with details of the goods ordered and/or services booked including these General Terms and Conditions and the revocation instructions will be sent to you by e-mail with acceptance of the contractual offer or with notification thereof. We archive the e-mail in accordance with the provisions of German tax and commercial law and thereby also save the contract text of the GTC.
§ 5 Collection, storage and processing of your personal data(1) You can order goods or services on our website as a registered user. As a registered user you do not have to enter your personal data every time, but you can simply log in to your customer account with your e-mail address or your user name (if given) and the password you freely chose during registration before or within the scope of an order.
(2) For the execution and handling of an order we need the following data from you:
Company name for entrepreneurs* First name and surname of the customer or representative of a company* Email address* Postal address for entrepreneurs* Sales tax number (VAT Number / TAX Number) for companies* Account number if applicable (e.g. IBAN)
*= Required disclosures, if applicable
(3) If you wish to create a customer account, we require the data specified in paragraph 2 as well as a password of your choice.
If you are not a consumer and purchase goods and/or services (in short: product) from us - also through third parties - and provide us with your e-mail address, we reserve the right to send you information about the purchased product and suitable or similar products if you do not already object to this when purchasing the products. Afterwards you have the possibility at any time to object to the sending of information by clicking on a unsubscribe link which is included in every e-mail.
(6) The data provided by you will remain stored until you delete your account. In all other respects, the data shall remain stored until our tax and commercial retention obligations have been fulfilled, but at least as long as it is necessary to assert or avert claims in accordance with the statute of limitations in Sections 194 et seq. of the German Civil Code (BGB).
§ 6 Terms of paymentAll prices for entrepreneurs are exclusive of the respectively valid value added tax, unless it concerns products for consumers for whom the final price inclusive value added tax is indicated. The "free version" of the software, which is directed solely at consumers in accordance with § 22 para. 1 of these provisions, is always free of charge, so that no charge or value added tax is levied anyway. The payment is due immediately with the order. Payment is made by credit card (we always use an encoded transmission procedure according to the latest technology), by bank transfer or via our payment service providers.
§ 7 Reservation of titleGoods remain our property until full payment has been made. If you are more than 10 days in arrears with payment, we have the right to withdraw from the contract and reclaim the goods.
§ 8 Terms of deliveryWe deliver the goods according to the specifications in the product description. Shipping costs and delivery times, if any, are listed in the product description and are shown separately on the invoice. We bear the shipping risk if the customer is a consumer.
§ 9 Right of revocation(1) As a consumer within the meaning of § 1 para. 4 of these provisions, you are entitled to a right of revocation in accordance with the instructions given in the appendix.
(2) The right of revocation expires with a contract over the supply of digital contents not on a physical data medium if we begin with the execution of the contract, after a consumer as a customer
expressly agreed that we begin with the execution of the contract before expiry of the revocation period, and confirmed his or her knowledge of it that he or she loses his right of revocation by his agreement with beginning of the execution of the contract.
We obtain these consents for digital content as part of the ordering process.
(3) Entrepreneurs within the meaning of § 1 para. 4 of these General Terms and Conditions shall not be entitled to the right of revocation.
§ 10 Warranty for the purchase of goods(1) Insofar as the goods purchased and delivered on our website are defective, you shall be entitled within the framework of the statutory provisions to demand subsequent performance, to withdraw from the contract or to reduce the purchase price.
(2) The limitation period for warranty claims for the delivered goods is two years from receipt of the goods. For entrepreneurs, the warranty period for the purchased and delivered goods is 12 months. Claims based on defects which we have fraudulently concealed shall become statute-barred within the regular period of limitation.
(3) In addition, you are also entitled to rights due to defects within the framework of a quality and/or durability guarantee, insofar as we have expressly given such a guarantee with regard to the object sold in the individual case.
(4) An additional guarantee exists with the supplied goods only if this was expressly indicated in the article description and order confirmation to the respective article.
§ 11 Limitation of liability(1) Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
(2) In the event of a breach of essential contractual obligations, the provider shall only be liable for the foreseeable damage typical of the contract if this was caused by simple negligence, unless it is a matter of the customer's claims for damages arising from injury to life, limb or health.
(3) The restrictions of paragraphs 1 and 2 shall also apply in favor of the legal representatives and vicarious agents of the provider if claims are asserted directly against them.
(4) The limitations of liability resulting from paragraphs 1 and 2 shall not apply if the provider fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The same applies if the supplier and the customer have reached an agreement on the condition of the item. The provisions of the Product Liability Act shall remain unaffected.
(5) Data communication via the Internet cannot be guaranteed to be error-free and/or available at all times according to the current state of the art. In this respect, we are not liable for the constant and uninterrupted availability of our online system.
§ 12 Final provisions(1) The General Terms and Conditions (in connection with the conditions under Section II "Special conditions for temporary provision of software") are complete and final. Amendments and supplements to these General Terms and Conditions should be made in writing in order to avoid confusion or dispute between the parties over the content of the contract agreed in each case.
(2) If you were domiciled or habitually resident in Germany at the time the contract was concluded and either moved out of Germany at the time we brought the action or if your domicile or habitual residence is unknown at that time, the place of jurisdiction for all disputes shall be the registered office of our company.
(3) We draw your attention to the fact that, in addition to ordinary legal action, you also have the option of out-of-court settlement of disputes in accordance with Regulation (EU) No. 524/2013. Details can be found in Regulation (EU) No 524/2013 and on the Internet at: http://ec.europa.eu/consumers/odr
Our e-mail address is: email@example.com
In accordance with Section 36 of the German Consumer Dispute Settlement Act (VSBG), we point out that we are not obliged to participate in an out-of-court dispute resolution procedure before a consumer arbitration board.
(4) Should individual provisions of this contract be invalid, this shall not affect the remainder of the contract.
§ 13 Annexes
Consumer information and revocation instruction,
If you order goods when visiting our website, we would like to point out the following:
(1) The language available for the conclusion of the contract is exclusively German. Translations into other languages are for your information only. In the event of contradictions, the German text shall take precedence.
(2) The essential characteristics of the goods and services offered by us as well as the validity period of limited offers can be found in the individual product descriptions in the context of our Internet offer.
(3) The presentation of our goods does not constitute a binding offer on our part. Only the order of a product by you is a binding offer. If this offer is accepted, we will send you an order confirmation by e-mail. The license agreement between you and us is thus concluded.
(4) You can recognize any input errors when placing your order at the final confirmation before the checkout and correct them at any time with the help of the delete and change function before sending the order.
(5) If the goods ordered by you are not available, we reserve the right not to perform the service, and we will inform you of this immediately before the conclusion of the contract.
(6) The prices quoted by us are final prices including taxes. The shipping costs are shown separately with the respective products as well as with the order overview.
(7) The purchase price is due directly upon ordering, immediately after the end of a free trial phase, if any. The payment of the goods takes place at your choice by credit card (thereby we use via our service provider state of the art procedures for the encryption of your personal data), via SEPA direct debit or via our payment service provider. Deviating conditions are only possible by written agreement.
(8) We draw your attention to the fact that, in addition to ordinary legal action, you also have the option of out-of-court settlement of disputes in accordance with Regulation (EU) No. 524/2013. Details can be found in Regulation (EU) No 524/2013 and on the Internet at: http://ec.europa.eu/consumers/odr
Our e-mail address is: firstname.lastname@example.org
In accordance with Section 36 of the German Consumer Dispute Settlement Act (VSBG), we point out that we are not obliged to participate in an out-of-court dispute resolution procedure before a consumer arbitration board.
(9) The data required for the execution of the contract between you and us are stored by us and are accessible to you at all times. In this respect we refer to the data protection regulations in our General Terms and Conditions and in our data protection regulations (see above under § 5).
(10) For the rest, we refer to our General Terms and Conditions above.
(11) Contact details and legal representatives:
flyingshapes GmbH (HRB 48179 Local Court of Mainz), Mombacher Str. 68 55122 Mainz,
represented by the managing directors Jonas Kunze and Dr. Johannes Mattmann
(12) As a consumer (i.e. a natural person who places the order for a purpose which cannot be predominantly attributed to his or her commercial or self-employed professional activity) you have a right of revocation in accordance with the following instructions with the exception of the case from § 9 para. 2 of these provisions:
RIGHT OF REVOCATION You have the right to revoke this contract within fourteen days without giving reasons.
The revocation period is fourteen days from the date of conclusion of the contract.
In order to exercise your right of revocation, you must inform us (flyingshapes GmbH, Mombacher Str. 68, 55122 Mainz, telephone: +49 6131 4950813, e-mail: email@example.com) of your decision to revoke this contract by means of a clear declaration (e.g. a letter, fax or e-mail sent by post).
You can use the attached model revocation form, which is not mandatory.
In order to comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.
CONSEQUENCES OF THE REVOCATION
If you revoke this contract, we shall reimburse you immediately and no later than fourteen days from the date on which we received notice of your revocation of this contract for all payments we have received from you, including delivery charges (other than additional charges arising from your choice of a method of delivery other than the cheapest standard delivery offered by us). For this refund we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged for this refund.
MODEL REVOCATION FORM
(If you want to revoke the contract, please fill in this form and send it back)
To the company flyingshapes GmbH, Mombacher Str. 68, 55122 Mainz, Germany Phone: +49 6131 4950813, E-Mail: firstname.lastname@example.org)
I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (detailed description so that the goods to which the revocation relates can be clearly identified), the provision of the following services (detailed description so that the goods to which the revocation relates can be clearly identified) (*):
Ordered on: /received on: (*);
Name of the consumer(s): ;
Address of the consumer(s): ;
Signature of the consumer(s) (only for paper communication);
(*) Delete as appropriate II. Special conditions for temporary provision of software (also within the trial phase)
The General Terms and Conditions of Business (hereinafter referred to as "GTC") under Section I. above shall also apply to the licensing of the software "flyingshapes" (hereinafter referred to as "software"), unless otherwise regulated below for the software licensing. The following terms and conditions supplement the General Terms and Conditions under Section I. In the event of contradictions between the following terms and conditions and the General Terms and Conditions under Section I., the terms and conditions under Section II. take precedence.
The following terms and conditions of us for the licensing of software shall apply to all contractual relationships with the licensee in connection with the licensing of software and shall become an integral part of the contract unless individual written agreements have been made. By downloading, installing or otherwise using the software, the licensee acknowledges the validity of the following provision as binding. The provisions shall apply accordingly if and insofar as new program versions of the software (e.g. patches, bug fixes, updates, upgrades, etc.) are provided.
The software is protected by copyright. The copyright regarding the licensed software is also subject matter of this contract.
Deviating or conflicting conditions of the customer shall only be recognized by us if we have expressly agreed to them in writing.
§ 14 Our service within the scope of software licensing(1) We license out to the licensee the software described in the offer, in the contract, in the acceptance pursuant to § 3 para. 2 of these terms and conditions or also in any other kind of contract for the duration specified in § 17 in addition to a video instruction as documentation which can be downloaded from the Internet: www.flyingshapes.com/tutorials. The source code is not part of the contract and is not supplied. The software and other documentation are available exclusively via download on our web presences and on the Steam web shop.
(2) The video instructions in paragraph 1 and, if applicable, in the other documentation of the software on our websites or in the case of websites of third parties - if available - describe in detail which functions and services the software has when used in accordance with the contract. For the agreed quality of the software as well as the intended use, only the video instructions from paragraph 1 and, if applicable, other documentation - if available - shall be decisive. Public statements, promotions or advertisements do not represent any indication of the quality of the software programs.
(3) Our services within the scope of the licensing of the contractual software do not include the software installation or de-installation at the end of the licensing period (both are to be performed by the licensee), customer-specific adaptations, training, user support and other services or work beyond the licensing of the contractual software described above. In particular, we do not owe any services that enable connection and data exchange with other software, even if the software contains interfaces. Both the establishment of this connection as well as the services mentioned above or mentioned here in a non-exhaustive manner shall only be performed against additional payment within the framework of a separate agreement to be concluded with the customer.
(4) In particular, the following are not included in our services
creating backups ensuring downward compatibility creating and providing new program versions, unless this is done voluntarily, for example as part of a maintenance program changing the scope of functions a guarantee on the product's existence (in this case, any contracts would be terminated in advance in accordance with the terms of these General Terms and Conditions)
(5) Any access codes (hereinafter: license keys) required for the use of the software shall be made available to the licensee by us or by other third parties authorized to transfer them.
(6) Use of the software is only possible if and as long as the licensee has its own Internet connection available so that the software can check the right of use via the Internet. This does not apply to the On-Premise license, where the licensee can generate an offline access code in the login area of our website.
§ 15 Granting of rights(1) Upon full payment of the fee in accordance with § 16 of this contract, the licensee shall receive the non-exclusive, non-transferable and non-sublicensable right to use the software to the extent granted in this contract, limited in time to the respectively selected term of the license agreement. All data carriers, software and any user documentation handed over shall be subject to retention of title prior to full payment of the remuneration in accordance with § 16 of this contract. The contractual use includes the installation as well as the loading, displaying and running of the installed software by the licensee.
(2) The licensee is entitled to make a backup copy of any data carrier provided to it. The licensee shall visibly affix the note "Backup Copy" and a copyright note of the manufacturer to the backup copy made.
(3) In addition, the licensee shall only be entitled to copy, edit or decompile the software if this is legally permissible and only if the necessary information is not made accessible by the software manufacturer at the licensee's request.
(4) Beyond the cases mentioned in paragraphs 1 to 3, the licensee is not entitled to duplicate the software.
(5) The licensee is not entitled to transfer the copy of the software handed over to it or the backup copy, if made, to third parties. In particular, the licensee is not permitted to sell, lend, rent or sub-license the software in any other way or to reproduce the software publicly or make it accessible.
(6) If the licensee violates any of the above provisions, all rights of use granted within the framework of this contract shall immediately become invalid and shall automatically revert to us. In this case, the licensee must immediately and completely cease using the software, delete all copies of the software installed on his systems and delete any backup copies made or hand them over to us.
(7) The above provisions shall also apply to the free trial phase and to the free version with the proviso that the software may only be used for private purposes within the scope of the free version.
§ 16 Licensee fees and default(1) The licensee is obliged to pay the agreed license fees. The license fee shall be the price deposited on the website, unless another price has been agreed within the scope of an offer declaration. In this case, the provisions in the offer declaration shall become an integral part of this contract. The license fee is to be understood plus the value added tax in the respective legal amount.
(2) The license fee plus value added tax is due in advance from the first day of the chosen term depending on the corresponding price on the first day of the term. If SEPA direct debit has been chosen as the method of payment, the licensee shall authorize us to collect the fee, including any value-added tax due, by direct debit and to ensure the necessary coverage of his bank account.
(3) If the licensee is more than 10 days in arrears with the payment of the license fee, we are entitled to deactivate the use of the software until the licensee effects its payment again. Only with the payment of the then paid license fee is the licensee again entitled to use its license under the originally agreed conditions. In the event of default of more than 30 days, the contract shall be deemed terminated. The obligation to pay the license fee until the end of the contractual term is not affected by this.
(4) The licensee shall only be entitled to set-off rights if the counterclaim has been legally established, acknowledged or undisputed. The licensee is not entitled to withhold payments unless it has a statutory right of retention from the same contractual relationship.
§ 17 Contractual term and termination(1) The term shall be determined by the customer within the framework of the acquisition of the right of use in accordance with the various terms offered by us and shall be extended by the selected term in each case, but by no more than one year, unless notice of termination is given with a period of 10 days to the end of the selected term in each case. The cancellation is also possible via our website in the login area of the homepage under "Subscription".
(2) In addition, the license agreement can be terminated in writing by either party without notice for good cause. An important reason which entitles us to terminate the contract is in particular if the licensee does not pay the fee and/or infringes our rights of use by using the software beyond the extent permitted under this contract and/or does not remedy the delay or infringement within a reasonable period of time following a warning from us.
(3) The cancellation must be made in text form to email@example.com.
(4) In the event of termination, the licensee shall cease to use the software and remove all installed copies of the program from his computers and return any backup copies made to us immediately or destroy them at our discretion. However, the licensee has the right to continue to use the software as a consumer solely for private purposes within the framework of the free version in accordance with § 22 para. 1 of these provisions.
§ 18 Protection of the softwareThe licensee is obliged to take appropriate measures to protect the software from access by unauthorized third parties, in particular to store all copies of the software in a protected place.
§ 19 Liability for material defects and defects of title(1) Technical data, specifications and performance specifications in public statements, in particular in advertising material, shall not be deemed to be quality specifications. The functionality of the software is based on the video instructions (www.flyingshapes.com/tutorials) which can be viewed via the Internet and, if made available, on a description in the user documentation and any agreements made in addition thereto. Otherwise, the software must be suitable for the use presumed under this contract and must otherwise have a quality that is usual for software of the same type.
(2) We shall provide and maintain the leased software in a condition suitable for the contractual use. The defect shall be remedied at our discretion either by replacement delivery or by subsequent improvement, which may also take the form of a circumvention solution, as long as the contractual use is not significantly impaired. The obligation to maintain does not include the adaptation of the software to changed operating conditions and technical and functional developments, such as changes to the IT environment, in particular changes to the hardware or operating system, adaptation to the functional scope of competing products or the creation of compatibility with new data formats.
(3) The strict liability for damages for defects which already existed at the time of conclusion of the contract is excluded.
(4) The licensee is obliged to notify us in writing of any defects in the software immediately after their discovery. In the case of material defects, this is done by describing the time of occurrence of the defects and the detailed circumstances.
(5) The aforementioned rights of the licensee to maintain the software pursuant to paragraphs 2 and 4 and the other statutory defect rights shall not apply within the framework of the trial phase and free version (lending agreement). Within the framework of the trial phase and free version, we shall only compensate for damage suffered as a result of our fraudulent concealment of a defect in law or a defect in the software.
§ 20 Exclusion of the right to reduce the license feeThere is no right to a reduction of the license fee in the event of a defect in the software. This does not affect flyingshapes' obligation to provide and maintain the software in the contractual condition. If the licensee waives the plea of limitation, any claim to enrichment by the licensee shall also remain unaffected, even if the licensee pays without reservation.
§ 21 Liability in other respects(1) We shall be liable for intent and gross negligence. In the event of slight negligence, we shall only be liable in the event of breach of a material contractual obligation (cardinal obligation), the fulfillment of which is essential for the proper performance of the contract and on the observance of which the licensee may regularly rely, as well as in the event of damage resulting from injury to life, limb or health.
(2) We owe the care customary in the industry. When determining whether we are at fault, it must be taken into account that software cannot be created without technical errors.
(3) In the event of a slightly negligent breach of an obligation which is essential for achieving the purpose of the contract (cardinal obligation), our liability shall be limited in amount to the damage which is foreseeable and typical for the type of transaction in question.
(4) We shall not be liable for the loss of data and/or programs insofar as the damage is due to the fact that the licensee has failed to carry out data backups and thereby ensure that lost data can be restored with justifiable effort.
(5) The above limitation of liability also applies to the personal liability of employees, representatives and organs of flyingshapes GmbH.
(6) Within the scope of the software trial phase and free version, we are only responsible for intent and gross negligence. Liability for a negligent breach of an obligation under paragraph 3 is excluded.
§ 22 Trial phase and free version(1) The trial phase for extensive testing of the software with full functionality exists with the very first acquisition of a paid right of use for a period of 30 days. Subsequently, the software can only be used by consumers to a limited extent (see the description on the website) free of charge for an unlimited period of time, as a so-called "free version".
(2) With regard to the rights of use, reference is made to § 15 para. 7.
(3) With regard to maintenance obligations and warranty rights, reference is made to § 19 para. 5.
(4) With regard to liability in other respects, reference is made to § 21 para. 6.