Terms of Service (B2B)
as of April 20, 2021
PLEASE READ THESE TERMS OF SERVICE (B2B) CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES WHICH ARE AIMED EXCLUSIVELY AT BUSINESSES (ENTREPRENEURS IN THE MEANING OF SECTION 14 OF THE GERMAN CIVIL CODE (BGB)). WE DO NOT CONCLUDE ANY CONTRACTS WITH CONSUMERS. These terms do not apply if you have entered into a separate arrangement with autoretouch with individually agreed business terms.
These Terms of Service (the “Agreement”) are an agreement between you (the entrepreneur or legal entity on whose behalf you are entering into this Agreement) (“you” or “your”) and autoretouch GmbH (“AUTORETOUCH”, “we”, “us” or “our”) which governs the access and use of our Services (as defined in Section 1) by you. AUTORETOUCH and you are also referred to in this Agreement as “party” or “parties”.
Your access and use of the Services constitute your legally binding acceptance of this Agreement. If you do not wish to be bound by the terms and conditions of this Agreement, please do not access and use our Services.
1. Our Services.
- www.autoretouch.com is an online platform for automated editing and processing of images by uploading image files to our website and using our software as a service (our website www.autoretouch.com, our customer support and our software are collectively referred to as the “Services”).
- For additional information regarding the scope of our services, performance description and prices, please refer to our documentation and FAQs which both can be found on our website www.autoretouch.com (collectively the “Documentation”).
2. Your Right to Use.
- During the term, and subject to your compliance with this Agreement, AUTORETOUCH grants you a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services.
- The Services shall not be distributed and hired out to you. You do not receive any right to the source code of the Services. Unless otherwise agreed or prescribed by mandatory law or applicable open source software usage conditions, you are not entitled to modify, reverse engineer, decompose, disassemble or otherwise attempt to decipher the object or source code of the software as included in the Services. Reproduction that goes beyond what is necessary for access and use of the Services is not permitted.
- We are entitled, but not obliged, to further develop the Services on an ongoing basis and will only make the current version of the Services available to you. This shall only apply if the change is reasonable. The right to use the Services also extends to fixes, patches, developments and updates.
- The Services may contain open source software components. The use of these components may be subject to the license terms of the open source software components, which are referenced within our Services. Nothing in this Agreement shall affect your rights or obligations under any applicable license terms of the open source software components. In the event of contradictions or conflicting provisions of the license provisions of the open source software and the provisions of this Agreement, the license provisions of the open source software shall take precedence.
3. Free Testing of our Services.
You may test our Services free of charge and without registration by accessing our website www.autoretouch.com. You acknowledge and agree that all images which you receive by accessing and using our Services during such free testing will be in low resolution only. In order to use the full range and functionalities of our Services, you are required to register and set up an account pursuant to Section 4 below.
4. Your Account.
- In order to access and use our Services, you must register on our website www.autoretouch.com. Once you have successfully registered, an account will be created for your business or legal entity. You must not create more than one account for your business or legal entity.
- During the registration process, you will be asked to provide certain contact and personal details as well as customary billing information such as name and billing address and your credit card number. All fields that are mandatory to complete will be explicitly indicated. False, incorrect, or outdated information, such as an invalid E-Mail address, may prevent you from registering and impair our ability to provide you with the Services.
- You are required to keep all information up to date. We may suspend or terminate your account and refuse any current or future access and use of our Services, or any parts thereof, if any information is untrue, inaccurate, incomplete or not up to date.
- To login, you must provide your E-Mail address and password. AUTORETOUCH may also establish and require from time to time additional or different means of identification and authentication for logging in and accessing the Services. We strongly recommend that you create a strong initial password and only change it if you have reasons to believe that your information was misused.
- You are responsible for all activity that occurs via your account. You are required to notify us immediately in writing if you become aware of any unauthorized use of your account. You may not share your account information, except with authorized users of your business or legal entity.
5. Promotional Credit.
- Once you have successfully established your personal account, you may be eligible to a promotional credit, which would be automatically transferred to your account, and which would allow you to upload and process a certain number of image files for testing the full range and functionalities of our Services.
- The promotional credit: a) is not redeemable for cash and is nonrefundable; b) can only be redeemed once and only on one account; c) is valid for a limited time only and expires automatically after 3 months without notice. Failure to use the promotional credit before its expiration date will result in its forfeiture.
- We reserve the right to cancel promotional credits at any time. No refunds will be granted for any expired or cancelled promotional credit.
6. Your Content.
- “Content” means the image file(s) that you upload to www.autoretouch.com for use of our Services. For further information regarding applicable file formats, file sizes etc., please refer to the Documentation.
- You retain all rights to and ownership of your Content. However, when you upload Content to our website, you grant AUTORETOUCH a non-exclusive, worldwide, royalty-free, perpetual, sublicensable and transferable license to use, reproduce, distribute and modify the Content as needed to provide, support and improve the Services, including internal testing and training of our software algorithm. AUTORETOUCH will not publicly display, disseminate, sell or use the Content other than in connection with the Services as described above.
- Furthermore, you grant AUTORETOUCH a royalty-free, worldwide, non-exclusive, irrevocable and perpetual license to use, modify and incorporate into our Services any suggestions, enhancement requests, recommendations or other feedback which you may decide to provide to us.
- We do not review all content uploaded to the Services, but we retain the right to use at our discretion any available technologies, processes or vendors to screen content for certain types of illegal content (for instance, child pornography) or other abusive content or behavior (for instance, patterns of activity that indicate spam or phishing).
7. Your Conduct.
7.1 You are required to access and use our Services responsibly, in a professional manner and always in accordance with all applicable laws and regulations. You must not misuse our Services in any way. For instance, you must not:
- upload or share any Content that violates any third-party rights (e.g., patent, copyright, trademark, trade dress, trade secret, right of privacy, or any other proprietary rights);
- upload or share any Content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, pornographic, profane, invasive of another’s privacy, or hateful;
- upload or share any Content that contains viruses, malicious code, malware, or any parts or components designed to harm or limit the functionality of the Services;
- attempt to disable, impair, delay or destroy the Services;
- access or use our Services for any illegal or abusive purposes.
7.2 You acknowledge and agree that you are solely responsible for any further usage of the processed images that you receive after accessing and using the Services.
8. Data Protection.
- We are well aware of the fact that a careful handling of our customer’s personal data processed by us is of paramount importance. We, as a matter of course, comply with all applicable data protection laws and regulations and implemented a solid data protection management system.
- Personal data contained in pictures processed via our Services are processed by us as a data processor on your behalf and on your instructions. This data processing is regulated in our Data Processing Addendum. The Data Processing Addendum is an integral part of this Agreement.
- We may, but are not obliged to, store your Content and/or images once they have been processed within your Account.
- As defined under Section 6 (“Your Content”), we are also using the Content to improve the Services, including internal testing and training of our software algorithm. You are obliged to provide any required information to data subjects identifiable via the Content processed by us both as a data processor and as a data controller (for testing and training of our software algorithm), including the information required under Art. 13 and 14 GDPR.
9. Mutual Confidentiality.
- Each party undertakes to treat as confidential all information received in the context of this Agreement which (a) is marked as “confidential” or “secret” or with an equivalent reference, or is verbally designated as confidential; (b) is to be regarded as confidential on account of its contents; or (c) is derived from confidential information which has been made available; is to be used exclusively for the purposes of this Agreement, is to be treated as confidential and is to be protected from disclosure to unauthorized third parties. This confidentiality obligation shall be imposed on all persons entrusted with the performance of this Agreement.
- The confidentiality obligation pursuant to Section 9.1 does not apply to information which (a) is publicly accessible or subsequently becomes publicly accessible or was already known to the other party at the time the Agreement was entered into; (b) was independently developed by the other party; (c) has been disclosed to the other party by a third party who is not subject to any confidentiality obligation; or (d) is required to be disclosed by law or governmental or judicial order (in which case the party concerned must be notified immediately).
10. Fees, Payment, Expiry of Credits and Taxes.
- The fees for our Services are stated in the Documentation. These fees apply if and to the extent that the Services are not used via a third party vendor with whom you have entered into separate terms and conditions superseding this Agreement.
- In order to access and use the Services after your promotional credit is used up or expired, you are required to top up your account by purchasing prepaid credits. The minimum credit to be purchased is stated in the Documentation. Our fees are billed against your prepaid credit, i.e. you may upload and process images in the amount equivalent to the credits which have been previously acquired. An image is considered to have been processed once it is available to you for download (regardless of whether or not you actually download the image).
- Unless otherwise agreed, sales are conducted by Paddle (https://paddle.com ) as our online reseller and Merchant of Record. Paddle’s Buyer Terms and Conditions apply and can be found here (https://paddle.com/legal-buyers/ ).
- If you do not access and use our Service at least once in any 18 months period, your account will be suspended, and we will notify you via E-Mail accordingly. If you wish to access and use our Services again after your account has been suspended, you are requested to contact our customer support. If you do not access and use our Services at least once during an additional 6 months period after the notification of suspension of your account, we will close your account permanently and any remaining credits on your account will expire.
- Credits are valid for a period of 24 months starting from the date of purchase (“Validity Period”). Any remaining credits will expire at the end of the Validity Period and you will not be able to reclaim the value. If you top up your account before your existing credits expire, your new credits will be added to your existing credits and the Validity Period for the combined amount of credits will commence on the date of your last purchase. Credits may expire prior to the end of the Validity Period if your arrangement is subject to an earlier expiration date.
- You are responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to your access and use of the Services.
11. Our Intellectual Property.
- AUTORETOUCH and its licensors, as the case may be, remain the sole owner of all right, title and interest to and in the Services.
- Unless otherwise noted, all materials including, without limitation, logos, brand names, images, designs, photographs, video clips and written and other materials that appear as part of our website www.autoretouch.com are copyrights, trademarks, service marks, trade dress and/or other intellectual property, whether registered or unregistered (“Intellectual Property”), owned, controlled or licensed by AUTORETOUCH. Our website as a whole is protected by copyright and trade laws. Nothing on our website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Intellectual Property displayed or used on our website, without the prior written permission of the Intellectual Property owner. The names and logos of AUTORETOUCH may not be used in any way, including in advertising or publicity pertaining to the distribution of materials on our website, without prior written permission from AUTORETOUCH.
12. Your Warranties and Indemnification Obligations.
By uploading the Content to the Services, you agree that you have a) all necessary rights, licenses and permissions as required to use the Content for or in connection with the Services; and b) all necessary rights to grant the licenses to AUTORETOUCH pursuant to Section 6.2 of this Agreement.
- You agree to defend AUTORETOUCH, its affiliates, officers, agents and employees against any claim, demand, suit or proceeding made or brought against us by a third party, a) alleging that the Content or the use of the Content for or in connection with the Services infringes or misappropriates such third party’s rights, or b) arising from your use of the Services or Content in an unlawful manner or in violation of this Agreement, (each a “Claim against us”), and will indemnify AUTORETOUCH from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim against us, provided that we a) promptly give you written notice of a Claim against us, b) give you sole control of the defense and settlement of the Claim against us (except that you may not settle any Claim against us unless it unconditionally releases us of all liability), and c) give you all reasonable assistance, at your expense.
- The above defense and indemnification obligations do not apply if a Claim against us arises from our breach of this Agreement.
13. Our Warranties and Indemnification Obligations.
Agreed Quality and Availability of the Services.
- AUTORETOUCH warrants that, during the term of this Agreement, a) we will not materially decrease the overall security of the Services; b) the Services will perform materially in accordance with the applicable Documentation; and c) we will not materially decrease the overall functionality of the Services.
- Our Services as an online platform and cloud-based application are by its very nature subject to technical and other prerequisites and limitations which may not always be foreseeable, and which may be out of our control. While we agree to use our best efforts to keep any interruptions to a necessary minimum, you acknowledge and agree that our Services may not be accessible, uninterrupted and usable at all times.
- We provide the Services in accordance with this Agreement and as further described in the Documentation. We have no influence or control as to how, and for what purpose, you may decide to use the results of our Services. That is why we provide you with sufficient opportunity to test our Services free of charge and without any commitment. You therefore acknowledge and agree that we do not warrant a) that the results you obtained from accessing and using the Services will be effective, accurate, reliable, merchantable or usable for any particular purpose, and b) that the quality or outcome of the Services will meet your requirements and expectations.
Defects in Title. Defects in title of the Services shall be handled in accordance with the provisions of Section 13.4 (“Indemnification”).
Disclaimer of Warranties. You acknowledge and agree that you will have no claims under this Section 13 (“Our Warranty and Indemnification Obligations”) if a defect, damage, loss or other impairment was caused by the Services not being used by you in accordance with the provisions of this Agreement or the Documentation.
- AUTORETOUCH will defend you against any claim, demand, suit or proceeding made or brought against you by any third party alleging that your access and use of the Services infringes or misappropriates such third party’s intellectual property rights (“Claim against you”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim against you, provided you a) promptly give us written notice of the Claim against you, b) give us sole control of the defense and settlement of the Claim against you (except that we may not settle any Claim against you unless it unconditionally releases you of all liability), and c) give us all reasonable assistance, at our expense.
- If we receive information about an infringement or misappropriation claim related to our Services, we may in our discretion and at no cost to you a) modify the Services so that they are no longer claimed to infringe or misappropriate, b) obtain a license for your continued use of our Services in accordance with this Agreement, or c) terminate this Agreement upon 30 days’ written notice and refund any remaining credits on your account.
- The above defense and indemnifications do not apply if a) the allegation does not state with specificity that the Services are the basis of the Claim against you; b) a Claim against you arises from the use or combination of the Services or any part thereof with software, hardware, data, por processes not provided by us, if the Services would not infringe without such combination; c) a Claim against you arises from the Content or your breach of this Agreement.
14. Limitation of Liability.
- Unlimited Liability. AUTORETOUCH is liable without limitation a) in the event of willful conduct or gross negligence; b) within the scope of a guarantee taken over by AUTORETOUCH; c) in the event that a defect to our Services is maliciously concealed; d) in case of an injury to life, body or health (Section 309 Nr. 7 lit. a BGB); and e) according to the German Product Liability Law.
- Liability for Breach of Cardinal Duties. Unless we are liable in accordance with Section 14.1 (“Unlimited Liability”), if material contractual duties (“cardinal duties”), the fulfillment of which enables the proper implementation and execution of this Agreement and upon the fulfillment of which you may reasonably rely, are infringed due to slight negligence, our liability shall be limited to foreseeable damages typical for this type of contract.
- Liability for Breach of Non-Cardinal Duties. Unless we are liable in accordance with Section 14.1 (“Unlimited Liability”), if contractual duties which are not cardinal duties (as defined in Section 14.2) are infringed due to slight negligence, any liability for damages shall be excluded.
- Liability for Loss of Data. If you violate your obligation to properly back up data, we are liable according to this Section 14 for loss of data limited to the amount of damages that would have occurred even if you had properly and regularly backed up the data.
- Exclusion of Liability. Unless we are liable in accordance with Section 14.1 (“Unlimited Liability”), we are not liable a) for any damages, loss, costs or expenses you might incur from using, or your inability to use, the results of the Services for any particular purpose; and b) for any damages, loss, costs or expenses you might incur due to any delay, a temporary interruption or non-availability of the Services.
- With the exception of liability in accordance with Section 14.1 (“Unlimited Liability”), the above limitations of liability shall apply to all claims for damages, irrespective of the legal basis, including claims for tort damages. The above limitations of liability also apply in the case of claims for a party’s damages against the respective other party’s employees, agents or bodies.
15. Term and Termination.
- This Agreement is concluded for an indefinite period.
- Termination by you. You may terminate this Agreement at any time without cause by giving us a termination notice in writing (E-Mail). You acknowledge and agree that in this case, any unused credit in your account will expire at the time of your termination and will not be reimbursed or returned. You also acknowledge and agree that your termination of this Agreement without cause does not affect in any way the licenses granted to us pursuant to Section 6 above. Any extraordinary termination rights and your right to terminate for cause remain unaffected.
- Termination by us. If we terminate this Agreement for reasons other than for cause, we will notify you at least 30 days prior to termination in writing with instructions on how to retrieve your Content and your remaining credits, if any, from your account. Notwithstanding any remedies that may be available to AUTORETOUCH under the applicable law, we may, at any time without notice, temporarily or permanently, deny, limit, suspend or terminate this Agreement, your account and your right to use and access the Services if a) you breach any material provision of this Agreement; b) we are required to do so by law; c) we elect to discontinue the Services, in whole or in part (such as if it becomes impractical for us to continue offering Services due to a material change of law); or d) there has been an extended period of inactivity in your account pursuant to Section 10 above.
- Upon the termination or expiration of this Agreement, some or all of the Services may cease to operate with immediate effect and without prior notice. Any perpetual licenses granted under this Agreement, however, continue in full force and effect. Sections 12 (“Your Warranties and Indemnification Obligations”), 13 (“Our Warranties and Indemnification Obligations”) , 14 (“Limitation of Liability”), this Section 15.4 (“Survival”) and Section 16.2 (“Governing Law and Dispute Resolution”) will survive the expiration or termination of this Agreement for an indefinite period of time.
- Amendments. We may have to respond from time to time to material changes in the applicable law, our market and business environment, technical developments or similar good reason by amending relevant terms of this Agreement with regard to the provision and support of our Services in accordance with this paragraph, provided that the amendment does not have any impact on the contractual content that is material for the equivalency of our Services and support and your remuneration. We will inform you about any amendment of this Agreement pursuant to paragraph in electronic form in due time before the amendment takes effect. If you do not expressly object in writing within 4 weeks after receipt of the amendment notice, the amendment will be deemed to be effected, and from this point in time, the amended version of this Agreement is applicable and binding. We will draw attention to this consequence in the amendment notice. Your objection to any amendment pursuant to this paragraph is deemed to constitute your notice of termination of this Agreement. In this case, any unused credit in your account will expire at the time of your termination and will not be reimbursed or returned. You also acknowledge and agree that your termination of this Agreement pursuant to this paragraph does not affect in any way the licenses granted to us pursuant to Section 6 above.
- Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of Germany, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The exclusive jurisdiction for any disputes arising out of or in connection with this Agreement shall be the competent court in Munich, Germany.
- Notice to Us. You may send notices to us only via E-Mail to the following address: email@example.com.
- Notice to You. We may notify you by E-mail, postal mail, postings within the Services, or any other legally accepted means.
- Non-Assignment. You may not assign or otherwise transfer this Agreement or your rights and obligations hereunder, in whole or in part, without our prior written consent. We may transfer this Agreement, in whole or in part, to a third party.