Terms & Conditions

Valid from: 10/01/2018

Provider: visionar GmbH

Mitterweg 16/II,

A-6020 Innsbruck

E-mail: support@visionar.com

Commercial register number: 402718h

Commercial register court: Regional court Innsbruck

Trade: Services in the field of automatic data processing and information technology (free trade)

Sales tax identification number: ATU68204588

(hereinafter simply referred to as “visionar”)

Content
Preamble 1

A) Scope of application 2

B) Registration / conclusion of contract 2

C) Services / subject of the contract 3

D) Fees / due date / change of fees 4

E) System requirements and customer obligations and duties 4

F) Usage rights and copyrights 6

G) Availability / Warranty 6

H) Liability 7

I) Shutdown of service 8

J) Amendment of terms and conditions 8

K) Duration / termination of the contract 8

L) Data retrieval after contract termination 9

M) Discretion, privacy protection and confidentiality 9

N) Place of fulfillment, place of jurisdiction, choice of law, contract language 9

O) Withdrawal right for consumers, see also annexes 1 – 3 10

P) Final provisions 10

ANNEX 1 – Information on the general existence of the right of withdrawal 11
ANNEX 2: Exemption or omission of the right of withdrawal 12
ANNEX 3: Sample withdrawal form 12

Preamble

Subject of this contract is the granting of a license right to the software „visionar app“ for a fee and the granting of rights to use the web-based service “visionar” including the associated user documentation (https://docs.visionar.com). As such, it is a full-service solution for augmented reality. Integrated web-based tools allow for content to be uploaded and AR apps to be created. Thus, videos, advertising subjects, links and sounds can be linked to a pre-defined target image.
The software product and the user documentation are delivered online upon conclusion of the contract. The source code is not subject of this contract.

A) Scope of application

1. The following terms and conditions apply to all services offered by visionar GmbH and govern their use.
2. By placing an order, the customer expressly accepts these terms and conditions.

B) Registration / conclusion of contract

1. To use the services of visionar an order and a registration at www.visionar.com are required. The order is an offer by the customer to visionar to conclude a contract with the customer.

2. The customer is obliged to provide truthful and complete information when ordering and registering. Visionar reserves the right to check the correctness of information provided by the customer and to terminate the business relationship prematurely in the event that untrue information has been provided.

3. There is no right to conclude a contract. Visionar is entitled to refuse the conclusion of a contract without giving reasons.

4. When ordering and registering at www.visionar.com a confirmation e-mail will be sent to the e-mail address provided by the customer to confirm the registration and the conclusion of the contract. Only with the confirmation of the activation links sent to the customer the registration process is complete. If the customer has not received a confirmation e-mail within 24 hours after submitting the offer, he can contact visionar via the e-mail address provided and visionar will try to find the error in the registration process as quickly as possible and offer a solution.

5. The confirmation by visionar (acceptance of the customer’s offer) creates a contractual relationship between visionar and the customer which is governed by the provisions of these terms and conditions.

6. After activation visionar’s services shall be available to the customer and the customer shall receive the login data (URL, password, login ID) to his user account (“account”) with which he can log on.

C) Services / subject of the contract

1. During the contractually agreed term, visionar grants the customer a geographically unlimited, non-exclusive right (license) to the software visionar app according to the offer or acknowledgement of receipt including documentation for use and contractually agreed web storage space on the Internet. This is associated with a number of targets and web memory for data storage agreed in accordance with the offer selected by the customer. Apps created with visionar can only be distributed in those countries where Apple and Google facilitate it. Visionar has no influence of any kind on these country restrictions and any changes to the country list are beyond visionar’s control. Free offers can be canceled by visionar at any time.

2. Visionar will perform a one-time setup of a customer database to store the customer data on the visionar server in encrypted form. Due to the encryption, visionar is not able to view the recorded content itself, the corresponding key is transmitted to the individual customer.

3. The customer is not authorized to copy, edit, analyze or decompile the software. § 40 e of the copyright act remains unaffected. The customer is only permitted to edit visionar’s software products, if this is necessary for the intended use by the licensee, in particular for error correction or adaptation to the needs of the customer’s system landscape.

4. Visionar offers the provision of access to the data of the user on the visionar server.

5. The non-availability of the infrastructure due to planned maintenance work (daily from 06:00 – 07:00 CET) does not count as downtime. Unscheduled maintenance work will be announced by visionar as far as possible in advance.

6. If and as long as obligations cannot be met in due time or in an orderly manner due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, loss of power supply, loss of means of transport, loss of telecommunication networks or data lines, legal changes affecting the services after conclusion of the contract or other non-availability of products, this shall not constitute a breach of contract.

7. The customer is entitled to use the software to edit and create results and files for his own purposes.

8. Visionar provides the customer with a web-based system including a local app for a fee with which the customer

a. can upload content as “image targets” to the web storage space he has obtained for a certain time.
b. can link the uploaded image targets with content (videos, advertising subjects, links, sounds, etc.) by using the local visionar app.
c. end users can activate the associated content as an AR app by technically capturing image targets.

9. The visionar app can be used to manage the content owned by the customer.

10. With respect to the technical and economic development of the Internet, to statutory provisions or legal requirements and to the advancement of own and third-party products, visionar is entitled to make changes to the services provided at any time.

11. Daily / weekly performance of multi-level backups of all database data of the content stored by the customer on servers of visionar (in encrypted form).

D) Fees / due date / change of fees

1. Amount / due date:

a) The fee depends on the product chosen by the customer and confirmed by visionar in their offer confirmation.
b) The settlement is made monthly in advance and is due for payment within 7 days.

2. All payments of the customer to visionar are made by using the payment provider WIRECARD CEE. Its general terms and conditions are available at https://www.wirecard.at/agb/e0

3. If the customer is a business within the meaning of the Commercial Code, the customer shall be obliged to pay default interest at a rate of 9.2% per year above the respective base interest rate in the event of a default in payment. In all other cases the statutory provisions shall apply.

4. The customer shall not be entitled to set-off unless otherwise stipulated by law.

5. Visionar is entitled to change the fees described in Section D). Increases or reductions of these fees are to be announced to the customer in writing (by e-mail to the e-mail address provided by the customer). They become effective if the customer does not object in writing within 14 days after sending the change letter. If the customer objects, visionar shall be entitled to dissolve this contract at the end of the period for which the customer has already paid the agreed fee.

E) System requirements and customer obligations and duties

1. The establishment and maintenance of a sufficiently fast and available Internet connection is the responsibility of the customer

2. The customer has to take care of his own infrastructure (software and hardware, such as app-enabled smartphones, printer, barcode scanner, touchscreens, etc.) at his own cost and risk; in particular he has to make sure that the necessary connections (e.g. for data lines) are available. Visionar does not assume any responsibility for the infrastructure of the customer.

3. The customer has to make sure that his infrastructure (software and hardware, such as app-enabled smartphones, printer, barcode scanner, touchscreens, etc.) is suitable to use the visionar service. He shall always maintain or have maintained the software used by him in a timely and orderly manner. In addition, he must ensure that back-up copies of the data he has collected are made.

4. In order to be able to use visionar’s services to the full extent the customer has to use the (browser) technologies and the minimum version identification that visionar announces on its website www.visionar.com in the “Tech & Specs” Section. If other technologies are used, the customer may not be able to use visionar’s services to the full extent.

5. The customer is obliged to protect his connection, end devices and login data against unauthorized access. The customer acknowledges the following:

a. that storing login data (URL, password, login ID, etc.) and other confidential information on the hard drive of a PC is not safe;
b. that by accessing data from the Internet, viruses, trojan horses and other malware or other components can be transferred to his end device, which may have a negative effect on his data or may lead to the misuse of his login data and that this can be done by “hackers”.

6. The customer has to keep the login data (URL, password, login ID) strictly confidential and protect it from unauthorized access by third parties. He may not disclose this login data to anyone, not even visionar staff. If the customer has reason to believe that his login data (URL, password, login ID) has become known to third parties in any way, he is obliged to change the password immediately. The customer is obliged to immediately report to visionar any suspicion that his access data or other confidential information may have become known to unauthorized third parties. The customer shall be liable for damages incurred by visionar due to inadequate confidentiality of the access data by the customer or due to them being passed on to third parties, due to late notification of a corresponding suspicion that data may have become known to unauthorized third parties or due to the failure to secure his end devices and systems.

7. The customer acknowledges that

a. all ownership rights to the server belong exclusively to visionar. The customer has no rights to it and also no right to access the premises in which the servers are located and no right to access them;
b. in the event of excessive data transfer the visionar servers may be overloaded and may therefore eventually not function. Any claims against visionar in this respect are excluded.

8. The customer is obliged to use the services provided by visionar
with their intended purpose and while using it to refrain from actions that could harm or endanger visionar and/or other customers and/or restrict the availability of the services for other customers. Intended use also includes compliance with all notices, recommendations and similar that visionar provides at the time of the conclusion of the contract or thereafter, on its homepage, in user manuals and/or other documents made available to the customer.

9. Visionar offers customers the possibility to process contents in their own visionar database. The customer guarantees that he will not misuse visionar’s services. In particular, the customer has to comply to the following rules:
a. The customer bears sole responsibility for the content stored in his user account. The customer undertakes to comply with all relevant statutory provisions (such as levy-, tax-, and fee-scale provisions, e.g. Federal Tax Code [BAO], Income Tax Act [EStG], Value Added Tax Act [UStG]; Accounting regulations of the Commercial Code [UGB]; the Penal Code [StGB]; the Copyright Act [UrhG]; the Unfair Competition Act [UWG]; the Data Protection Act 2000 [DSG 2000]; the General Data Protection Regulation [GDPR]; personal rights, etc.) when posting content to a user account.
b. The customer has to ensure compliance with any legal storage obligations (e.g. § 132 BAO) himself. Visionar has no obligation to do so.

10. The customer guarantees not to upload data onto the visionar database or the visionar web storage space booked from visionar for a certain time and fee which contains viruses (infected software) or software and content for which third parties have copyrights – unless the customer has obtained the necessary rights or the consent of the entitled party.

11. The customer is obliged to continuously inform himself about scheduled maintenance work on the homepage www.visionar.com.

12. The customer is obliged to ensure that he is entitled to the lawful processing of the respective results and files and that he does not violate statutory provisions or the rights of third parties.

13. The customer will not develop content or provide any content that is suitable to negatively influence the health and well-being of the customer’s (sub-) customers. In particular, this includes disturbing, terrifying, pornographic, frightening or similar content, as well as all content that could trigger an epileptic reaction in the viewer.

F) Usage rights and copyrights

In the relation to the customer, visionar is the sole owner of the rights of reproduction, distribution, processing and all copyrights, as well as the right of incorporeal transmission and reproduction of the visionar app and the individual functions contained therein. The usage of the visionar app and the contents, materials, brand names and trade names contained therein is exclusively permitted for the purposes stated in these terms and conditions.

G) Availability / Warranty

1. For consumers, the statutory warranty provisions in accordance with Section N) apply.

For business transactions (B2B) applies:

1. Visionar’s warranty period is 6 months if the customer is a business.

2. In business transactions, defects which are subject to warranty will be remedied at visionar’s discretion either by repair or replacement. Price reductions are excluded. Warranty claims require that the customer meets visionar’s technical requirements (see point E) 4.) and has reported any defects in writing and justified within 2 working days after they appeared. A right of withdrawal pursuant to § 933b ABGB is excluded.

3. Visionar does not guarantee a permanent availability of its services. Downtimes due to maintenance, software updates and due to circumstances (such as technical problems of third parties, force majeure, external attacks, etc.) that are beyond visionar’s control and are therefore not visionar’s responsibility, causing the unavailability of visionar’s offered services via the Internet cannot be excluded. The customer declares that he will not file any compensation or warranty claims for downtimes.

4. Visionar also does not guarantee that the offered services meet all customer requirements, are compatible with other customer programs or that all errors can be resolved. Furthermore, the warranty is limited to reproducible (continuously repeatable) defects. If incompatibilities occur with the customer due to technologically expedient changes in visionar’s service, compensation claims against visionar are excluded.

5. Defects resulting from arrangements and assembly not made by visionar, insufficient equipment, non-observance of installation requirements and conditions of use, overuse beyond the performance specified by visionar, incorrect handling and use of unsuitable software or other operating materials shall be excluded from the warranty; this shall also apply to defects attributable to material or software ordered by the customer. Visionar is not liable for damage caused by atmospheric discharges, overvoltage and chemical influences.

6. The customer is obliged to inform visionar immediately about interruptions or disruptions to the services in order to enable visionar to solve the problem, insofar as visionar is contractually obliged to do so, before the customer commissions third parties – for whatever reason – to solve the problem. If the customer violates this obligation of notification, visionar shall not be liable for any damages or costs incurred by the customer as a result (e.g. costs of a third party commissioned by the customer).

7. Visionar will proceed with care with firewalls that have been installed, operated or inspected by visionar, but points out that absolute security and full functionality of firewall systems is not guaranteed. visionar’s liability for disadvantages arising from the fact that installed, operated or checked firewall systems are bypassed or rendered inoperative is excluded, unless it was visionar’s intentional or grossly negligent fault.

H) Liability

1. Unless this violates mandatory law, visionar shall be liable for compensation for damages caused by visionar, its employees and/or vicarious agents in connection with this contract only in the event that such damages were caused by gross negligence or intent. These limitations of liability do not apply to the compensation of personal injury. The customer must prove the damage and fault of visionar.

2. Notwithstanding the limitation of liability according to H) 1. visionar’s liability for consequential damages, loss of profit, loss of data and financial losses is expressly excluded.

3. Visionar is neither liable for content, which is posted by the customer to his web space (meaning on the servers of visionar), nor for damages, which result from it.

4. The customer shall indemnify and hold visionar harmless from and against any and all claims of third parties, in particular those based on the content stored by the customer on the web space provided by visionar or in connection with the visionar AR app.

5. Should visionar itself, through customers or third parties become aware of an illegal activity or information that a web space used by the customer contains possible illegal content, access to this content or the entire web space of the customer on visionar’s servers will be blocked until the situation has been clarified. This applies in particular to indications of content that is infringing copyright and/or is relevant under criminal law. visionar shall in no case be liable for damages resulting from these actions.

6. The customer is always responsible for observing the laws in all countries in which the content made available by the visionar app is used by end users. visionar is not liable for any damage resulting from these actions. The customer shall indemnify and hold visionar harmless from and against any infringement of laws and other mandatory statutory provisions outside of Austria.

7. Should visionar be informed of any unlawful activity on the part of the customer in the software, the provider’s right to block or delete the software in accordance with § 16 of the E-Commerce Act for the purpose of excluding liability shall remain unaffected. The customer shall not be entitled to any compensation from visionar.

8. Irrespective of any civil or criminal consequences, the customer shall indemnify and hold visionar harmless from and against any damages and claims of third parties – of whatever nature – resulting from the violation of the customer’s obligations under these terms and conditions.

I) Shutdown of service

Visionar is entitled to shut down the service, which is the subject of this contract, completely or partially, if its security or the security of customers is at risk. This right of the provider also exists if the continuation of the services or parts of the services is economically not reasonable for the provider. The provider will inform the customer immediately of such measures. This shall not entitle the customer to any claims against visionar.

J) Amendment of terms and conditions

Visionar is entitled to amend these terms and conditions at any time. Visionar will inform the customer about such amendments by sending the amended terms and conditions to the address provided during registration. The amendment of the terms and conditions entitles the customer to terminate the contractual relationship within a period of one month from notification in writing by registered letter. If the customer does not terminate the contract within this one-month period, the amended terms and conditions shall be deemed to have been agreed.

K) Duration/termination of the contractual relationship

1. This contract is concluded for a term in accordance with the package selected by the customer and is automatically extended for a further contract period if it is not terminated by a contracting party at least one month prior to the end of the term by sending an e-mail to the address specified at the time of conclusion of the contract.

2. Visionar is entitled to dissolve this contract by written declaration without notice if there is an important reason. Important reasons are in particular, if:

a. The customer violates Section E);
b. Visionar has drawn the customer’s attention to the violation of any other provision of this contract and has requested the customer to remedy the violation within a period of at least 14 days and the customer fails to comply with this request within the set deadline.

3. The customer is entitled to dissolve this contract by written declaration without notice if there is an important reason. Important reasons are in particular, if:

a. The customer has drawn visionar’s attention to the violation of an essential provision of this contract and has requested visionar to remedy the violation within a period of at least 14 days and the provider fails to comply with this request within the set deadline without reason.
b. The use of the visionar app is absolutely and permanently impossible for technical reasons for which visionar is responsible.

L) Data retrieval after contract termination

1. The customer may retrieve and delete data and files stored by him in the web application up to 1 month after termination of the contract. After the end of the contract, other processing of the data and files with the web application and mobile apps is not possible.

2. After the one-month period following the end of the contract, the provider shall finally delete the customer’s access and any data and files stored by him in the web application and mobile apps.

M) Discretion, privacy protection and confidentiality

1. Based on the present contract visionar and the customer will eventually exchange confidential information. Visionar and the customer are obliged to treat data, information and documents that they receive in connection with this contract and the usage of the visionar database confidentially. Without the prior written consent of the respective other contractual partner, they may not disclose these either in whole or in part, neither directly nor indirectly to third parties. This does not apply to official and court orders to disclose the information on the basis of sovereign procedures.

2. Confidential information is information which:

a. is confidential in that it is not, neither in its entirety nor in the precise arrangement and composition of its components, generally known or readily accessible to the persons in the circles who normally deal with this type of information; and
b. is of commercial value, because it is confidential; and
c. is subject to appropriate confidentiality measures according to circumstances by the person who having legitimate control over the information.

3. Visionar and the customer are obliged to comply with the regulations of the General Data Protection Regulation (GDPR) as well as any other legal confidentiality obligations of the respective countries.

4. Visionar processes the personal data provided to it within the framework of the conclusion of the contract exclusively for the fulfillment of the contract. The provider does not access the results and files created or processed by the software.

5. The above obligations shall also apply after termination of this contractual relationship.

N) Place of fulfillment, place of jurisdiction, choice of law, contract language

1. The place of performance shall be the registered office of visionar GmbH in 6020 Innsbruck (Austria).

2. Exclusive place of jurisdiction for legal disputes arising from and in connection with this contract shall be the competent court in Innsbruck, Austria. The regulations of consumer protection law regarding the place of jurisdiction shall remain unchanged.

3. Austrian law shall apply, with the exception of the reference standards of international private law (e.g. IPRG, ROM I VO etc.) and the UN Convention on Contracts for the International Sale of Goods.

4. The contract language is German.

O) Withdrawal right for consumers, see also annexes 1 – 3

1. If the customer is a consumer, he has a general withdrawal right within 14 days of conclusion of this contract (§ 11 FAGG), also for digital content.

2. The consumer may withdraw from the contract using the withdrawal form set out in Appendix 3 or with a corresponding definite declaration in any form (registered letter, e-mail, etc.).

3. The right of withdrawal expires with the delivery of digital content if
a. the consumer expressly gives his consent
b. in connection with his knowledge of the loss of the right of withdrawal in the event of “premature” (i.e. “immediate”) commencement before expiry of the otherwise existing period for withdrawal
c. after provision of a confirmation of the contract; begins with the delivery (the download).
The confirmation has to be made within a reasonable period after the conclusion of the contract, at the latest however before the beginning of the service provision. It has to contain a confirmation of the concluded contract on a durable data carrier (paper, e-mail) as well as all information obligations of § 4 Abs 1 FAGG. The confirmation also has to contain a confirmation of the consent to the immediate start as well as the consumer’s knowledge of the loss of the right of withdrawal.

P) Final provisions

1. All declarations of a legally binding nature based on a contract must be made in writing to the last known address (also e-mail address) of the other contracting party. If a declaration is sent to the address last notified in writing (also e-mail address), this shall be deemed to have been received by the respective contracting party.

2. The headings chosen for the individual chapters shall be designated solely for the sake of clarity and shall therefore not be used for the interpretation of this contract.

3. Should any provisions of this contract be legally invalid and/or void or become so in the course of their duration, this shall not affect the legal validity and validity of the remaining provisions. In this case, the contracting parties undertake to replace the legally ineffective, invalid and/or void provision with a provision which is legally effective and valid and corresponds in its economic effect to the replaced provision – as far as possible and legally permissible.

4. The rights and obligations agreed in this contract shall be transferred by all parties to this contract to their respective heirs and legal successors. The contracting parties undertake to transfer all rights and obligations arising from this contract to their respective heirs and legal successors in the event of other damages.

5. If there are several persons or companies on the buyer and/or seller side, rights, obligations, liabilities etc. shall be deemed to be joint and supportive.

6. The application of general terms and conditions, purchasing conditions or other contract forms by the customer is excluded, unless their use has been explicitly stipulated and agreed to by visionar in an individual contract. Visionar shall not be liable for any damages arising out of or in connection with the use of these contract forms.

ANNEX 1 – Information about the general existence of the right of withdrawal

Withdrawal right

You are entitled to withdraw from this contract within fourteen days without giving reasons.
The withdrawal period is fourteen days from the date of conclusion of the contract.
In order to exercise your right of withdrawal, you must inform

visionar GmbH

Mitterweg 16/II,

A-6020 Innsbruck

E-mail: support@visionar.com

Information pursuant to § 5 (1) ECG:

Sales tax identification number: ATU68204588

Commercial register number: 402718h

Commercial register court: Regional court Innsbruck

Trade: Services in the field of automatic data processing and information technology (free trade)

of your decision to withdraw from this contract by means of a clear statement (e.g. a letter sent by mail or e-mail).
You may use the attached sample withdrawal form (Annex 3), which is not mandatory.
In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

Consequences of withdrawal
If you withdraw from this contract, we shall reimburse you immediately and no later than fourteen days from the date on which we received notice of your withdrawal from 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). We will use the same means of payment used by you in the original transaction for such refund, unless expressly agreed otherwise with you and in no event will you be charged for such refund.

ANNEX 2: Exemption or omission of the right of withdrawal

The consumer has no right of withdrawal (right of revocation) for the delivery of digital content not stored on a physical data carrier if the business – with the express consent of the consumer, in conjunction with his knowledge of the loss of the right of withdrawal (right of revocation) in the event of premature commencement of contract performance and after provision of a copy or confirmation in accordance with § 7 (3) FAGG – has begun with the delivery before the expiry of the otherwise existing withdrawal period.
Pursuant to § 7 (3) FAGG, a confirmation of the concluded contract shall be made available to the consumer within a reasonable period of time after conclusion of the contract on a permanent data carrier (e.g. e-mail) together with the information specified in § 4 (1) FAGG, but at the latest before commencement of performance, unless this information has already been made available on a permanent data carrier. The confirmation of the contract shall in any case contain a confirmation of consent to the immediate provision of the service and the consumer’s knowledge of the resulting loss of the right of withdrawal (right of revocation).

ANNEX 3: Sample withdrawal form

(If you want to withdraw from the contract, please take over the following text, fill in this form and send it back to us)

To

visionar GmbH

Mitterweg 16/II,

A-6020 Innsbruck

E-mail: support@visionar.com

I/we (*) hereby withdraw from the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following services (*)

-Ordered on (*)/received on (*)

-Name of the consumer(s)

-Address of the consumer(s)

-Signature of the consumer(s) (only for paper communication)

-Date

(*) Delete as applicable

…, on (Validity from date…..)