The following user terms (hereinafter referred to as „Terms of Use“ will govern the contractual relationship between dawin® gmbh, Belgische Allee 50, D-53842 Troisdorf/Spich (hereinafter called „Operator“ or „We“) and the user (hereinafter called „User“) of the „spicture“ app, (hereinafter called „App“). Furthermore, please note our spicture Privacy Statement (available at: www.spicture-app.de).

We ask our users to carefully read and take note of the following Terms of Use. The Operator provides services to the User exclusively on the basis of these Terms of Use. The User accepts the Terms of Use by installing and using the software. Any general terms and conditions or terms of use of the user shall not become part of the contract, unless the Operator agrees to them expressly in writing.

Section § 1 Object of agreement

By downloading the „spicture“ App a contractual relationship will be entered between the Operator and the User regarding the App’s scope of usage as described in Section § 4 and the related granting of rights as  referred to in Section § 4 of the Terms of Use. The source code of the Software shall not be part of the Object of agreement.

The purchase contract between the App store and the User remains unaffected. Contracting party and therefore the owner of the rights and obligations stemming from that contract is the provider of the respective App Store.

Section § 2 Operation

By downloading the App, the User receives access to the scope of functionalities of the App. After opening the App, the User will arrive at the Photo Shoot View by way of the Start screen. The user can now take a new photograph, or select a picture from the local picture library, or select other functions, such as drawing on the picture, add text, tags (keywords), or create a separate audio recording and/or create a sketch. The data created by the User can now be sent as .pdf or .xls files via email.

Section § 3 Authorised user

An Authorised User is at least 18 years of age at the time of installation or has the permission of a legal representative (e.g. parent) who has agreed to the Terms of Use.

Section § 4 Concession of rights and Scope of use

  1. The operator shall grant the user a non-transferable, non-exclusive, spatially and temporally unrestricted and non-sublicensable right, to use the App under the conditions set out below. The right of ownership and copyright to the App remains the Operator’s in the relationship of the contracting parties.
  2. Should the User have the intention of using the software in a qualitative way exceeding the previously acquired rights (in terms of the nature of permitted usage), he will immediately acquire the necessary user rights for the intended use. Should he neglect to do so, the Operator can claim its attributable rights.
  3. Copyright labelling, serial numbers, as well as any other program identification characteristics must not be removed from the App or modified.
  4. Furthermore, the use of the App is subject to the terms of service and user agreement of Apple and Google. These can be viewed for Apple at  http://www.apple.com/legal/sla and for Google at https://play.google.com/intl/de_de/about/play-terms.html.
  5. The user grants the operator the right of use to the photographs, audio recordings and texts transferred by the user. This right is non-exclusive, non-transferable, unlimited with respect to time and place, non-sublicensable and may be exercised only within the context of the provision and operation of the app.

Section § 5 Guarantee or proprietorship

The User guarantees that he is owner of the transferred rights and that it is possible for him, to effectively grant the Operator the rights referred to in Section § 4. The user also ensures that the created photographs, audio recordings and texts do not infringe on the rights of third parties, in particular trademarks, competition, copyright, property rights or privacy rights. Furthermore, the User guarantees that the photography, the audio recording or the texts are in accordance with German law, are in particular not harmful to minors, misleading, inaccurate or even relevant to criminal and/or misdemeanor law.

Section § 6 Release

The User releases the operator at first request from all claims of third parties, in particular from claims for copyright and personality rights violations, that could be brought against the Operator in connection with exercising these contractual rights. Should the User become aware of any violations of the contractual rights, the Operator must be notified without delay. The Operator has the right to appropriate measures to protect itself from third party claims or to pursue its rights. The User’s own measures have to be cleared with the Operator in advance.  The release also includes the replacement of any costs that may arise or have arisen for the Operator in pursuing / defending those rights. This does not affect any further claims for damages on the part of the operator.

Section § 7 Proper App functionality

The Operator strives to provide constant functionality of the App to the User within the framework of its technical capabilities. Short-term disturbances, or temporary restrictions of the App cannot be prevented due to maintenance, security or for capacity reason. The User recognizes by accepting these Terms of Use, that the Operator cannot guarantee full functionality of the App at all times.

Section § 8 Runtime

The User can use the App for an indefinite period of time. Mutual obligations shall end as soon as the User has completely uninstalled or deleted the App.  The Operator reserves the right, in the event of a breach of these Terms of Use, to end the permission of use of the App early.

Furthermore, the Operator does have the right to discontinue the App at any time.

Section § 9 Liability and security

The liability of the Operator for slightly negligent breaches of duty is limited to foreseeable, contractually typical, direct damages, unless damage from injury to life, body or health, or guarantees, or claims under the Product Liability Act are involved. This does not affect liability for any breaches of duty, whose fulfilment is essential to the proper execution of the agreement and upon whose observance the User is relying on a regular basis. The same applies for breaches of duty by any agents of the Operator.

The Operator will apply all reasonable efforts to keep the App free of known viruses. But the User accepts that a virus-free environment ultimately cannot be guaranteed.  Claims against the Operator because of an infestation of terminal equipment with computer viruses, as a result of using the App are therefore not recognized. This also includes any compensation for data loss.

The Operator is not liable for interruptions of the App for technical or legal reasons, for example, for failure of the server or the software in so far as this is beyond its control.

Section § 10 Closing Agreements

The contractual relationship between the User and the Operator, as well as these Terms and Conditions of Use are governed exclusively by the laws of the Federal Republic of Germany. As far as an application of international personal laws and the UN-Kaufrecht (CISG), as it has been considered and accepted into German law, these are explicitly excluded.

If the User is a merchant, a legal person under public law, or public special assets, the exclusive place of jurisdiction will be Cologne for all disputes arising directly or indirectly from the contractual relationship. However, the Operator does in this case also have the right to sue the User at its place of business.

The Operator reserves the right to revise these Terms of Use at any time without notification of reasons for the change, unless the change is not reasonable for the User. The Operator will immediately notify Users of any changes in the Terms and Conditions of Use. If the User does not object to the application of the revised Terms and Conditions of Use within a period of 2 weeks, the revised Terms and Conditions of Use shall be considered accepted by him. The Operator commits to advise the Users of the consequences of its actions at the beginning of this time limit.
Any amendments to these User agreements require the written form. There are no additional agreements.

In the event that any of the provisions or essential elements of these Terms of Use be or become wholly or partially invalid, the validity of the remaining provisions is not affected.

Status as of: July 2017