TOXEVO, owner: Bernhard Miller, with registered office at Segnerstraße 5K, 1100 Vienna, Austria (hereinafter referred to as "PROVIDER") offers the interactive game, TOXEVO, in which one operates a computer program with a bow and arrow. The game consists of a software to be executed at the player and an online backend on which mainly user accounts and related data (e.g. games played, high scores) are stored (hereinafter "SOFTWARE"). In order to play the game, various hardware is also required, such as a special vibration sensor that detects the impact of arrows on the wall. The Provider also sells merchandise related to TOXEVO (hereinafter "PRODUCT").
These General Terms and Conditions (hereinafter referred to as "GTC") are addressed to persons who want to use the services for professional purposes, i.e. entrepreneurs in the sense of section 1 Abs 1 Z 1 KSchG [Austrian private customer Act], but also private customers (consumers in the sense of section 1 Abs 1 Z 2 KSchG) (both together hereinafter referred to as "CUSTOMERS").
The CUSTOMERS can purchase monthly memberships from „Patreon“, www.patreon.com, operated by Patreon Inc., 600 Townsend Street, Suite 500, San Francisco, CA 94103, USA and its subsidiaries (hereinafter "PATREON") that can extend the functionality and use of the SOFTWARE.
For reasons of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination. All genders are addressed equally.
For all business relationships between the PROVIDER and the CUSTOMER in connection with the acquisition and use of the SOFTWARE or PRODUCT, these GTC shall apply in the version valid at the time of the conclusion of the transaction. Deviating terms and conditions of the CUSTOMER shall not apply unless the PROVIDER has agreed to their validity in writing.
The GTC are effectively agreed upon either by the CUSTOMER expressly accepting them when purchasing the PRODUCT or by the CUSTOMER expressly accepting the GTC when registering within the SOFTWARE.
The SOFTWARE contains proprietary software components and open source components (hereinafter "OSS components"). With regard to the OSS components, the respective licence conditions of the OSS licensors apply. The PROVIDER is not a contractual partner of the CUSTOMER with regard to the OSS components and cannot be held liable for them. This licence agreement therefore relates exclusively to the proprietary software components. Proprietary software" refers to those elements which were developed by PROVIDER and whose source code qualifies as confidential.
The language of the contract, order and business shall be German or English, depending on the choice of the CUSTOMER.
These GTC are permanently available on the website.
The SOFTWARE developed and provided by the PROVIDER contains components that are licensed as open source software. The OSS components may only be used under the respective OSS licence conditions. The OSS components are listed in Annex I. The source code of the OSS components (see "Readme" in Annex I), the respective licence texts, any copyright notices and their disclaimers shall be made available to the CUSTOMER via the link in Annex I. The current version of Annex I can be viewed at https://www.toxevo.com/oss.html.
At the CUSTOMER's request, the open source code can also be transmitted on a permanent data carrier (e.g. USB stick).
Attention: The contractual partner of the CUSTOMER with regard to the OSS components used is not the PROVIDER, but the respective open source licensor.
Attention: The PROVIDER points out that there are risks associated with the use of OSS components. Examples are: permanent maintenance and use of the OSS components is not guaranteed; warranty claims and claims for damages are largely excluded.
The CUSTOMER is obliged to provide truthful and complete information within the framework of the business relationship and to keep his data up to date at all times. He shall treat his data confidentially. If the CUSTOMER suspects misuse by third parties, he must inform the PROVIDER immediately.
The CUSTOMER shall refrain from all actions that may endanger or impair the PROVIDER's technical service provision (including cyber attacks). Such conduct will be prosecuted under criminal law.
It is strictly forbidden for the CUSTOMER to publish illegal or discriminatory content (in particular but not exclusively: right-wing extremist content or content infringing copyright) by means of the SOFTWARE. In case of infringement, the PROVIDER reserves the right to block the CUSTOMER as well as to pursue legal action.
It is the responsibility of the CUSTOMER to create the electronic infrastructure (in particular e-mail account as well as hardware and software infrastructure) necessary for the use of the services. This also means that the CUSTOMER has the necessary software and hardware equipment to use the SOFTWARE. The PROVIDER is not obliged to provide information or advice in this regard.
By clicking the button "Pay now" (or a similar button) and entering the required data in the input mask, the CUSTOMER makes a binding offer to conclude a contract with the PROVIDER. The PROVIDER is not obliged to accept this offer, but will confirm receipt of the offer ("order confirmation"). The acceptance of the CUSTOMER's offer and thus the conclusion of the contract is effected by the PROVIDER granting the CUSTOMER permission to use the SOFTWARE, sending the SOFTWARE or by express acceptance of the offer ("contract confirmation") by e-mail. Please note that the order confirmation and the contract confirmation may be combined.
If the CUSTOMER wishes to purchase chargeable versions of the SOFTWARE, this shall be done via PATREON. In this respect, the terms of use of PATREON shall apply.
The prices stated on the website of the PROVIDER are in EUR. In case of doubt, VAT is not
yet included.
The content of the agreed service results from the package selected by the CUSTOMER.
The amounts stated at the time of the order shall apply in each case.
Payments are due upon invoicing.
The PROVIDER reserves the right to adjust the agreed fees to inflation once a year. The Austrian consumer price index published on the website of Statistics Austria in October of the previous year shall be used as the reference value.
The CUSTOMER may only use the SOFTWARE offered by the PROVIDER for the intended purpose.
The PROVIDER grants the CUSTOMER a non-exclusive licence (within the meaning of Section 24 (1) first sentence UrhG [Austrian Copyright Act] "Werknutzungsbewilligung") to use the SOFTWARE, which is limited in terms of territory and content to the purposes of the business relationship.
Sub-licensing or further licensing is only permitted with the express consent of the PROVIDER.
The right to decompile the SOFTWARE is excluded to the extent permitted by law. The CUSTOMER is not entitled to modify the SOFTWARE without the consent of the PROVIDER.
Markings of the SOFTWARE, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognisable.
The source code of the SOFTWARE is expressly not owed. Support services are also not owed. A user manual is also not owed.
Note: The use of the OSS components is governed by the respective licence conditions. All restrictions of use and copyright designations made in these licence conditions do not apply to the OSS components.
This right of withdrawal only applies to private consumers (“Verbraucher”).
The CUSTOMER has the right to revoke an already concluded contract within fourteen days without giving reasons if the contract was concluded electronically. The withdrawal period is fourteen days from the day of the conclusion of the contract.
In order to exercise the right of withdrawal, the CUSTOMER must inform the PROVIDER by means of a clear declaration (e.g. a letter sent by post or e-mail) of the decision to withdraw from this contract. For this purpose, the CUSTOMER may use the model cancellation form, which is listed in Annex I B of the Austrian Distance Selling and Foreign Trade Act (https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20008847) and can also be accessed on the PROVIDER's website.
A declaration of revocation must be sent to the following address:
TOXEVO
Bernhard Miller
Segnerstraße 5K,
1100 Vienna,
Austria
E-Mail: hello@toxevo.com
Phone: +43 660 1474903
In order to comply with the cancellation period, it is sufficient for the CUSTOMER to send the notification of the exercise of the right of cancellation before the expiry of the cancellation period. If this option is used, the CUSTOMER will receive an acknowledgement of receipt of the revocation. If the CUSTOMER revokes the contractual statement or an already concluded contract, the PROVIDER shall repay all payments already received from the CUSTOMER without undue delay and at the latest within fourteen days from the day on which the PROVIDER received the notification of the revocation of this contract. For the repayment, the PROVIDER shall use the same means of payment that the CUSTOMER used for the original transaction.
The direct costs of the return shipment shall be borne by the CUSTOMER.
If a loss in value of the PRODUCT is due to the fact that the PRODUCT has been used in a way that is not necessary for checking the condition, the CUSTOMER shall be liable for this loss in value.
The CUSTOMER shall return or hand over the PRODUCT to us without undue delay and in any case no later than within fourteen days from the day on which the PROVIDER was informed of the revocation of this contract. The time limit is met if you send the goods before the expiry of the fourteen-day period. The PROVIDER may refuse repayment until it has received the PRODUCT back or until you have provided proof that you have returned the PRODUCT, whichever is the earlier.
All PRODUCTS delivered by the PROVIDER shall remain the property of the PROVIDER until payment has been made in full.
If the CUSTOMER has not taken over the PRODUCTS as agreed (default of acceptance), the PROVIDER shall be entitled to either store the PRODUCTS, for which a reasonable storage fee may be charged per calendar year or part thereof, or to deposit the PRODUCTS in court at the CUSTOMER's expense and risk.
The PROVIDER's liability for slightly negligent conduct is excluded. The PROVIDER's liability is limited to the amount of the fees paid by the CUSTOMER (which was either paid to the PROVIDER or to PATREON). The PROVIDER shall not be liable for loss of profit.
If the SOFTWARE is provided free of charge, liability claims in this respect are excluded in their entirety.
The limitations of liability do not apply with regard to the infringement of personal rights or to claims under the Product Liability Act.
Note: In the case of OSS components, liability and warranty shall be governed exclusively by the rules of the OSS licence conditions. These OSS licence conditions usually contain far-reaching liability and warranty restrictions. The PROVIDER is not liable for the OSS components.
The disclosure of data and information to the respective business partners required is permissible insofar as this is necessary for the fulfilment of the contractual relationship and the legal obligations or is justified on the basis of legitimate interests (Art 6 (1) (b), (c) and (f) GDPR).
The PROVIDER points out that data of the CUSTOMER may be processed for advertising purposes on the basis of legitimate interests (Art 6 (1) (f) GDPR). The CUSTOMER may object to this form of data processing at any time (Art 21 (2) GDPR).
The PROVIDER is entitled to draw attention to the fact of the business relationship with the CUSTOMER by means of a reference on its website or other marketing/business documents. He is entitled to use the CUSTOMER's logo in this context. This right also exists beyond this contractual relationship.
Austrian law shall apply to this contractual relationship and this shall be deemed to be agreed. However, this choice of law may not result in a consumer being deprived of the protection granted to him by the mandatory provisions of his country of residence (Art 6 (2) Rome I Regulation). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws rules is excluded.
The exclusive place of jurisdiction is Vienna, Austria. If the CUSTOMER is a private consumer (“Verbraucher”) and has his domicile or habitual residence in Austria or is employed in Austria, the CUSTOMER may, in derogation thereof, only be sued before those courts in whose jurisdiction his domicile, habitual residence or place of employment is located.
Reference is made to the possibility of dispute resolution via an online dispute resolution platform (Art 14 (1) sentence 1 ODR Regulation) (https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=DE) and national consumer arbitration boards. The PROVIDER is willing to participate in such a dispute resolution procedure if the CUSTOMER qualifies as a private consumer.
(November 2022)
Annex 1: Open Source Note: Link