Licence agreement regarding use of the Virtofy software

Last changed: March 22, 2024

Note: Virtofy is a brand of

eachTick GmbH
André Weinhold (CEO)
Mohrenstraße 20
50670 Cologne
GERMANY
Email: info@eachtick.com
Phone: +49 (0) 221 - 78 94 41 75
(hereafter referred to as the “licenser”).

The licensor grants you a non-exclusive license to use the Virtofy software. The exact scope of this licensing is determined by the license of the Virtofy software you have selected. The possible scope of services can be found at https://www.virtofy.com/en/buy

Using the software it is possible to import or consolidate projects with the aid of 3D graphics, images, texts, videos and sounds. These projects can be shared with other users in a tour and/or viewed on an individual or common basis.

A precondition for provision of the licence is that you (also referred to in the following as the “licensee”) consent to the following conditions:

§1 Definitions

(1) “Software” is the Virtofy software, i.e. all programs and files contained in the respective download file.

(2) “Confidential information” includes all information and documents of the other party respectively, which are marked as confidential or are to be considered confidential due to the circumstances, in particular information regarding commercial processes, business relations and expertise.

(3) “Cloud” refers to the servers with which the software communicates in order to function properly.

§ 2 Object of the contract

(1) The object of this contract is the transfer of the software and granting of the rights required to use it in accordance with the contract per § 3, limited to the duration of the contract period.

(2) The licenser shall make the software available for the licensee to download from the licenser’s website https://www.virtofy.com/ , as well as from supported App stores.

(3) If the licensee does not activate the free version, they receive a licence key with which they are able to enable the functions of the licence type selected by them. If the licensee does not enter a licence key, they receive the free version (see below). The licensee can choose between a non-commercial licence (“Free”) and commercial licences (“Plus” or “Professional”). (4) Installation and configuration services are not included in this contract, although these can be agreed between the parties separately.

§ 3 Granting of rights

(1) The parties are in agreement that the software is subject to copyright protection.

(2) The software, all of the information contained in it and its documentation are the intellectual property of the licenser. The licenser reserves all rights to the software insofar as these are not granted in accordance with these licence conditions.

(3) If the licensee does not have an active commercial license, the free “Free” license will be automatically used (see below).

(4) The licensee is entitled to create a backup copy of the software provided to them. They must visibly attach the notice “backup copy” to this backup copy, as well as the copyright notice of the licenser. Further to this, the licensee is not entitled to duplicate the software.

(5) The licensee is not entitled to transfer the copy of the software provided to them, or any backup copy they produce, to a third party or to in any way sublicense the software or publicly reproduce the software or make it in any way accessible.

(6) The licensee does not have the right to decompile the software or modify it in any other way.

(8) Each license, whether commercial or free, can be used for both commercial and personal purposes.

(9) The licensee is permitted to install the software on an arbitrary number of devices. The maximum number of devices registered simultaneously for one licensee is dependent on the active licence. The licenser reserves the right to add devices to the devices supported by the software and also to remove such devices, at any time and without providing grounds for doing so. The licenser also reserves the right to change the minimum requirements for devices at any time and without providing grounds for doing so.

(10) If the licensee infringes one of the preceding conditions, the licenser reserves the right to withdraw all rights of use to the software granted to the licenser within the framework of this contract. In this case, the licensee must halt all use of the software immediately and fully, delete all copies of the software installed on their systems, as well as any backup copy produced, or surrender this to the licenser. In the event of an infringement of the contractual conditions, the licenser is entitled to block the licence granted to the licensee through technical means.

§ 4 Third party licences

The software and plugin may contain software components that are (sub)licensed under the licensing conditions of other software licences. The licence conditions applicable to this third-party software are part of the software licence conditions. An overview of the third-party providers and references to their licence conditions can be found at https://www.virtofy.com/licenses/app and https://www.virtofy.com/licenses/unity .

§ 5 Remuneration, date payable and arrears

(1) No fee is payable for the “Free” software licence.

(2) The compensation for the right to use additional software licenses (hereinafter referred to as “license fee”) varies depending on the license utilized. The license fees are individually agreed upon between the licensor and licensee.

(3) The license fee is to be paid to the licensor before the license is activated. The license period begins on the start date specified in the offer, regardless of the timing of payment receipt by the licensor.

(4) The licence fee shall be settled using the payment methods provided.

§ 6 Term and cancellation

(1) The contract is concluded for an indefinite period of time. It can be terminated by either party at the end of each calendar month with a notice period of two weeks.

(2) The contract can also be terminated by either party in writing without prior notification if good cause to do so exists. Good cause for the licenser to terminate the contract exists in particular if the licensee infringes the rights of use of the licenser by utilising the software beyond the scope permitted according to this contract and does not desist within an appropriate period of time despite the licenser issuing a warning against this infringement.

(3) In the event of termination, the licensee must stop all use of the software and remove all copies of the program installed on their devices, and return any backup copy produced to the licenser with immediate effect or destroy any backup copy according to the preference of the licenser. Once termination is effective, the licenser is entitled to implement technical measures in order to prevent the licensee from using the cancelled licence.

(4) The free license “Free” does not expire.

(5) Upon activation of a commercial license by the licensor, the licensee will be credited with a daily quota for this license, as specified in the offer. This quota determines the number of days during which the licensee can use the selected license.

The allocation of days is reduced by one day after each calendar day passes from the time point of activating the respective licence.

The licence type booked by the licensee with the largest scope of functions will always be activated on the licensee’s user account, if a minimum allocation of one day is still available. All other licences remain deactivated during this time.

If the licence activated in the user account of the licensee has an allocation of less than one day remaining, this licence will be deactivated and the licence with the next greatest scope of functions to the previous licence will be activated.

The contents stored on the Cloud can be accessed by the licensee for 14 days after the allocation of days for a commercial licence has expired. After this time the contents of the licensee’s user account, the file size of which exceeds the Cloud storage for the licensee’s currently activated licence, will be deleted. The licenser is responsible for selecting contents for deletion.

If the licensee has no remaining daily quota for any of the commercial license types, the free license (“Free”) will be automatically activated for their user account.

§ 7 Consumer’s right of revocation

If the licensee is a consumer, i.e. a natural person who concludes the licence agreement for purposes that can be attributed to neither commercial nor independent professional activities, they have the right of revocation. Further information on the right of revocation can be found in our cancellation policy, which can be viewed here: Download power of revocation form.

§ 8 Function and protection of the software

(1) Use of the software with the full scope of functions per the respective licence acquired requires a connection with the internet and the Cloud.

(2) The licensee is obligated to protect the software against access by unauthorised third parties through suitable measures, and in particular to store all copies of the software in a protected location.

(3) The licenser is entitled - although not obligated - to make updates available. In order to guarantee the most seamless possible operation of the software, the licensee undertakes to install the updates prompted in the software. If this does not take place, the software may not continue to run for compatibility reasons.

(4) The licensor reserves the right to adjust the functionality of the software at any time. If this results in a reduced level of performance for the licensee’s commercial license, the licensor will strive to minimize this limitation or compensate for it with other functionalities. (5) The licensor reserves the right to make changes to fundamental data structures that may render the projects and tours created by the licensee unusable. Such adaptation does not constitute a diminution of performance.

§ 9 Unity3D and plugin

(1) In order to create projects, the licensee can use the third-party product Unity3D in conjunction with a plugin made available by the licenser.

(2) If the licensee utilises this service, they undertake to accept and comply with the conditions of use applicable to Unity3D. The rights of use applicable to Unity3D can be viewed at https://unity3d.com/legal/ .

(3) If the plugin is obtained via the Unity3D Asset Store, the conditions of use of the Unity3D Asset Store also apply. These can be found at https://unity3d.com/legal/as_terms/

(4) The licenser reserves the right to make changes to the plugin, which do not guarantee backwards compatibility with earlier projects.

§ 10 Cloud storage

(1) Depending on their licence type, the licensee receives online storage space that is used by the software to share and store contents. The licenser provides no guarantee for the continuous availability and security of the data on the server of the third-party provider. The current third-party provider is Hetzner Online GmbH, Industriestr. 25, 91710 Gunzenhausen. This is subject to change, depending on selection by the licenser.

(2) The maximum project size is dependent on the respective active licence.

(3) In case of violations of the guidelines on content creation (§12), the affected projects will be deleted without prior notification. Furthermore, the licenser reserves the right to deactivate the respective licensee and the associated licences.

§ 11 Online Meetings

(1) Depending on the type of license, the licensee can conduct online meetings with other users. The required network infrastructure is provided by a third-party provider. The current third-party provider is Exit Games GmbH (Germany), located at Hongkongstraße 7, 20457 Hamburg.

(2) The maximum number of participants in online meetings depends on the respective commercial license.

(3) If a user account of the licensee generates excessive traffic, the licenser is entitled to restrict the respective user account. The licensor reserves the right to charge any additional costs incurred due to the generation of excessive traffic by the licensee’s registered user account, whether intentional or unintentional. “Excessive traffic” refers to the streaming and download volume that exceeds 500 times the storage space of the project.

(4) The unavailability of creating or joining an online meeting by the licensee, for any reason whatsoever, does not constitute a deficiency. However, the licensor endeavors to ensure the permanent availability of the online meeting service.

(5) Any coarse, sexist, or otherwise inappropriate language used in online meetings may result in the deactivation of the meeting feature for the relevant account. This measure can be taken without prior warning and may be reported by other participating users.

§ 12 Guidelines for content creation

(1) The licensee is prohibited from creating projects or tours that contain one or more of the following elements:

Pornography, erotica, sex Violence, weapons Drugs Gambling and other addictive elements Promotion of violence or hate against a genuine group, race, nation or religion.

(2) Please note the following guidelines and restrictions for content creation:

• https://developer.oculus.com/policy/content-guidelines/
• https://developer.picoxr.com/document/unity/content-review-for-non-mainland-china/#Content%20Requirements

(3) The licensor reserves the right to deactivate the user account of the respective licensee in case of violation of these provisions.

(4) It is also necessary to observe the health and safety instructions for the VR/Augmented Reality glasses worn, as well as other devices used. The licensee undertakes to inform all users of these health and safety instructions.

§ 13 Defects and warranty

(1) The licenser undertakes to maintain the contractually agreed condition of the software for the duration of the contract and to ensure that contract-compliant use of the software does not violate the rights of third parties. The licenser shall remedy any material and legal defects in the software within an appropriate period of time. However, the licensee has no entitlement to regular updates. The licensee shall receive notification of any updates made available.

(2) If the licensee discovers any software defects, they are obligated to inform the licenser of these in writing with immediate effect. In case of material defects, this notification shall include a description of the time point of occurrence and the particular circumstances.

(3) If the licensee demands supplementary performance due to a defect, the licenser is entitled to choose between repair, replacement delivery or compensation. Supplementary performance can also take the form of transferring or installing a new program version or a workaround. If the defect does not impair the functionality or does so to an insignificant degree only, the licenser is entitled to rectify the defect by supplying a new version or an update within the framework of their version and update planning. This entitlement only applies with the exclusion of further claims for defects.

§ 14 Liability

(1) In accordance with the legal regulations, the licenser shall be liable without limitation for damages due to the injury to life, body or health, which arise due to a wilful or negligent violation of obligations, and for other damages that arise due to a wilful or grossly negligent violation of obligations, as well as malice. Furthermore, the licenser shall be liable without limitation for damages covered by liability according to statutory legal regulations, such as the Product Liability Act, and also where guarantees have been provided.

(2) In the case of damages that are not covered by point (1) and that are the result of simple or minor negligence, the licenser shall be liable insofar as this negligence pertains to the infringement of contractual obligations, the fulfilment of which is essential for the correct execution of the contract and the fulfilment of which the licensee should be able to regularly rely upon (so-called cardinal duties). In this case, the liability of the licenser is restricted to contract-typical, foreseeable damages.

(3) In the event of violations of such contract obligations arising due to minor negligence, which are not covered by point (1) or point (2) (so-called minor contractual obligations), the licenser shall be liable to consumers - this is limited to contract-typical, foreseeable damages.

(4) The preceding limitation of liability also applies to personal liability of the personnel, representatives and entities of the licenser.

(5) Any further liability is excluded.

(6) The licensee undertakes to produce backup copies of uploaded files. The licenser shall not be liable for any data loss.

§ 15 Infringements of proprietary rights

(1) The licensee shall inform the licenser with immediate effect of any claims lodged by third parties as a result of alleged infringements of proprietary rights.

(2) In the case of infringements of proprietary rights, with respect to the affected service the licenser can choose, at their own cost, to

(i) make changes whilst safeguarding the interests of the licensee, which guarantee that the infringements of proprietary rights no longer apply, or (ii) acquire the rights of use required for the licensee.

§ 16 Confidentiality

(1) The parties agree to maintain secrecy with respect to confidential information. This obligation also applies for a period of 2 years after the contract comes to an end.

(2) Excluded from this obligation is contractual information that: a) was already demonstrably known to the recipient at the time of contractual conclusion, or that was disclosed thereafter by a third party without an infringement of a confidentiality agreement, legal regulations or official ordinances; b) was public knowledge at the time of contractual conclusion or that became public knowledge thereafter, insofar as this does not relate to an infringement of this contract; c) must be disclosed due to legal obligations, or the instruction of a court of law, or an authority. Insofar as permissible and possible, if a recipient is obligated to disclose confidential information then they shall inform the other party of this in advance and provide them with an opportunity to act against disclosure.

(3) The parties shall only grant access to confidential information to those advisors who are subject to professional confidentiality or who have had obligations imposed upon them beforehand, in accordance with the confidentiality obligations of this contract. Furthermore, the parties shall only disclose confidential information to those employees who are required to receive this information in order to execute the contract, and who are obligated to maintain confidentiality for a period of time after leaving the company to the scope permitted by employment law.

(4) In the event of a breach the licensee shall pay a contract penalty, the equitable sum of which shall be determined by the licenser, and the equitable sum of which may be legally verified by the licensee. Any further claims of the parties remain unaffected.

§ 17 Data protection

(1) Personal data shall only be acquired, used and saved by the licenser insofar as necessary in order to fulfil the contract concluded with us.

(2) Further to this, our privacy policy applies and can be viewed at https://www.virtofy.com/en/privacy/ .

§ 18 Miscellaneous

(1) The licensee is not entitled to transfer rights and obligations arising from or in connection with this contract to third parties.

(2) The licensee’s general terms and conditions of business shall not apply. In addition to this licence agreement, the general terms and conditions of business of eachTick GmbH apply, https://www.virtofy.com/en/terms/ . However, the provisions of the licence agreement take precedence.

(3) The law of the Federal Republic of Germany applies. This choice of law shall only apply to consumers, who conclude the contract for non-professional or non-commercial purposes, if the granted protection has not been withdrawn through compelling provisions of the law of the state in which the consumer has their usual place of residence.

(4) The object of the contract may be subject to import or export restrictions. If the licensee resides outside of Germany, they must ensure before using the object of the contract that use of the contract object is permissible in their country.

(5) Insofar as the licensee is a commercial party, a public body or a special public fund, the place of jurisdiction for all disputes arising from the contractual relations between the licenser and licensee is Cologne.

(6) If individual conditions of this contract should prove to be or become unworkable, this shall not affect the validity of the remaining conditions. The contracting parties shall endeavour to replace the ineffective condition with a condition that reflects the legal and economic objective of the contract as closely as possible.

(7) All annexes specified in this contract are part of the contract.