General Terms and Conditions of Use of Linearity GmbH (GTC)
General Terms and Conditions of Use of Linearity GmbH (GTC)
(Version 1.0, as of 21.02.2024)
1. Validity of the GTC | Subject matter of the contract
1.1. Linearity GmbH, Schönhauser Allee 9, 10119 Berlin (hereinafter referred to as the "Provider") operates a software-as-a-service application for graphic design (the application hereinafter referred to as "SOFTWARE") for the apps "Linearity Curve" and "Linearity Move", which are provided as downloadable applications for mobile devices ("App(s)").
1.2. The subject matter of these General Terms and Conditions of Use (hereinafter referred to as "GTC") is (i) the provision of the SOFTWARE in the form of the Apps and, in the future, possibly a web application, which is made available to the Customer via a remote data connection as a Software as a Service for the use of its functionalities; (ii) the granting of rights of use to the SOFTWARE and (iii) the provision of storage space for the data generated by the Customer through the use of the SOFTWARE and/or the data required for the use of the SOFTWARE (hereinafter "User Data") by the Provider to the Customer (hereinafter also collectively referred to as "Contractual Services").
1.3. All agreements made between the Provider and the Customer are set out exclusively in these GTC and the price list on the Provider's website. These are an integral part of the contract.
1.4. These GTC apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from these GTC shall not become part of the contract, even if the Provider is aware of them, unless the Provider has expressly agreed to their validity in writing.
1.5. The Provider is entitled to amend and adapt these GTC during the term of the contract with effect for the future if this becomes necessary for a compelling reason, such as compelling operational reasons, changes to laws or case law, or if exclusively new services of the Provider (such as the expansion of the offer through the provision of additional services) are introduced. The Provider shall send the Customer the amended terms and conditions in text form prior to the planned entry into force and draw particular attention to the new regulations and the date of entry into force. At the same time, the Provider shall grant the Customer a reasonable period of at least four (4) weeks to declare whether it objects to the amended GTC. If no objection is made within this period, which shall commence upon receipt of the notification in text form, the amended terms and conditions shall be deemed to have been agreed. The Provider shall inform the Customer separately of this legal consequence, i.e. the right of objection, the objection period and the significance of silence, at the beginning of the period.
1.6. These GTC are available at any time at the link [https://www.linearity.io/terms-of-use/] and can be printed out or downloaded.
2. Key definitions
2.1. "Force Majeure" is an event that is not foreseeable by either party. Force Majeure in this sense includes in particular (i) fire, explosions or other accidents; (ii) storms, earthquakes, tornadoes, floods, volcanic eruptions or other natural disasters; (iii) war, threat of war, terrorism, insurrection or other unrest; (iv) epidemics, pandemics, quarantine restrictions or other restrictions imposed by public health measures; (v) strikes or other industrial action by the parties or their suppliers or their employees; or (vi) sanctions or embargoes.
2.2. "Customer" is any legal or natural person who has registered to use the SOFTWARE.
2.3. "User" is any natural person for whom the Customer has concluded a user license and who has authenticated himself when using the SOFTWARE.
3. Conclusion of contract
3.1. To use the SOFTWARE, it is necessary to download and install the app belonging to the SOFTWARE from the Apple App Store ("App Store"). This requires the creation of an account for the App Store. By downloading the app from the App Store, the Customer receives a personal, limited, non-exclusive, perpetual, non-transferable license to install the app on a mobile or desktop device. The license is valid for all mobile devices linked to the app store account.
3.2. Furthermore, in order to use the SOFTWARE, it may be necessary for the Customer or user to be logged into services provided by the manufacturer of the mobile device or the manufacturer of the operating system of the mobile device.
3.3. These terms of use can be viewed and printed out or saved on a permanent data carrier in the app store before the Customer or user downloads the app.
3.4. The conclusion of contracts for the conclusion of fee-based subscriptions for the SOFTWARE via the App Store is also subject to the terms and conditions of the App Store, see Section 8.1 of these GTC.
3.5. The contract can be concluded in English. The contractual provisions with details of the subscriptions booked, including these GTC, will be sent to the Customer by email upon acceptance of the contract offer or upon notification thereof. The contractual provisions are not saved by the Provider.
4. Provision of the Contractual Services
4.1. The Provider shall provide the Customer with the use of the SOFTWARE in the scope described for the respective version, which can be viewed at www.linearity.io/pricing/.
4.2. The Customer receives instructions for using the software in the form of a user guide (hereinafter "Documentation") on the Provider's website.
4.3. The Provider reserves the right to change, extend or discontinue individual services, while safeguarding the legitimate interests of the Customer, in particular if this is necessary to prevent misuse or if the Provider is obliged to do so by law. The Provider shall give the Customer reasonable notice, but at least one week, of any changes to the service in accordance with sentence 1 above. If the contractual use of the Contractual Services by the Customer is not only insignificantly impaired as a result, the Customer is entitled to demand a price adjustment or to terminate the contract. The Provider may make improvements, extensions or adjustments to the SOFTWARE at any time without observing a notice period, provided that the identity of the service is preserved.
5. Granting of rights of use and data processing
5.1. Subject to full and unconditional payment of the remuneration due, the Customer receives the simple, non-transferable, worldwide, non-sublicensable right, limited to the term of the subscription, to use the SOFTWARE via the Internet to the extent granted. The Provider expressly does not grant the Customer any further rights, in particular rights to the SOFTWARE.
5.2. If the Provider provides the Customer with additions (e.g. patches, additions to the Documentation) or a new version of the SOFTWARE (e.g. update, upgrade) during the term of the contract, these are subject to the provisions of these GTC.
5.3. The Customer is not entitled to use the SOFTWARE or make it accessible to third parties beyond the scope of this contract. In particular, the Customer is not entitled to reproduce and/or sell the SOFTWARE or parts thereof for a fee or free of charge or to pass it on to a third party in any other form, to enable a third party to use or gain knowledge of it or to use the software for a third party, in particular not to rent or lend it. The right of use shall expire upon termination of the contract for whatever reason.
5.4. In the event of an unauthorized transfer of use, the Customer shall, upon request, immediately provide the Provider with all information required to assert claims against the unauthorized third party, in particular the name and address of the unauthorized third party.
5.5. The Customer grants the Provider the right to use the user data fed into the SOFTWARE during the term of the contract in order to provide the Contractual Services.
5.6. With the explicit consent of the Customer, the Provider is authorised to use the User Data to train the SOFTWARE with the aim of further developing it. This right shall survive any termination of the contract, unless this conflicts with the legitimate interests of the Customer. The provisions of §§ 87a et seq. of the German Copyright Act (UrhG) remain unaffected. In the event that the User Data contains personal data, the rights of data subjects under the applicable data protection laws shall remain unaffected. For clarification, in no event will Provider use User Data to train the SOFTWARE without explicit consent of the Customer. Please refer to Linearity's Privacy Policy for additional information.
5.7. If and to the extent that additional software property rights in accordance with §§ 69a et seq. UrhG for rights of use to the SOFTWARE or any further developments arise during the term of the contract as a result of the User Data fed in the SOFTWARE in accordance with Section 5.6 above, the Provider shall be exclusively entitled to these rights together with all property rights, without the Provider being obliged to pay any remuneration to the Customer. They are hereby assigned or transferred to the Provider in advance, without restriction in terms of content, time and territory, as well as sub-licensable and transferable. Provider hereby accepts the assignment and transfer.
6. Conditions of use at the Customer
6.1. Use of the SOFTWARE requires that the system requirements specified in the Documentation are met and that the Customer has Internet access with a customary bandwidth.
6.2. The provision of these requirements as well as Internet access including transmission services from the service transfer point to the devices used by the Customer are not the subject of this contract, but are the responsibility of the Customer.
6.3. Please refer to Linearity's AI principles and policy for terms and policies on AI-powered tools and products.
7. Obligations of the Customer to cooperate
The parties agree that the provision of the Contractual Services depends to a large extent on the efficient and successful cooperation of the parties. Against this background, the Customer shall fulfill the following obligations to cooperate at no cost to the Provider and shall ensure that Users fulfill the obligations to cooperate. The Customer or user shall in particular,
7.1. keep the access data assigned to it and any other agreed identification and authentication safeguards secret, protect them from access by third parties and not pass them on to unauthorized third parties. This data must be protected by suitable and customary measures. The Customer shall inform the Provider immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons;
7.2. the information in Section 6 conditions of use described in Section 6;
7.3. the restrictions and obligations with regard to the rights of use pursuant to Section 5 must be complied with;
7.4. ensure that all industrial property rights and copyrights of third parties are observed when using the SOFTWARE;
7.5. not use the SOFTWARE improperly or allow it to be used improperly, in particular not transmit any illegal or immoral content or refer to such information that serves to incite hatred, incite criminal offenses or glorify or trivialize violence, is sexually offensive or pornographic, is likely to seriously endanger the morals of children or adolescents or impair their well-being or may damage the reputation of the Provider or third parties. Please review our AI principles and policies for uses of Linearity's AI-powered tools and products;
7.6. refrain from attempting to retrieve information or other data without authorization, or to interfere with the SOFTWARE or have it interfered with by unauthorized third parties, or to penetrate the data networks of Provider without authorization;
7.7. indemnify the Provider and its vicarious agents from all claims of third parties (including the costs of necessary legal defense) that are based on an unlawful use of the SOFTWARE by the Customer or are made with the Customer's knowledge or negligent ignorance or that arise in particular from data protection, copyright or other legal disputes associated with the use of the SOFTWARE. If the Customer recognizes or must recognize that such a violation is imminent, he is obliged to inform the Provider immediately.
7.8. The Customer shall provide the Provider with a contact person and (legal) representative as well as contact details (e-mail address) for communication in connection with the fulfillment of the contract.
7.9. In the event of inaccuracies or changes in the contact details and in the event of a change of a contact person appointed by the client in accordance with Section 7.8 in text form without delay, providing updated information.
7.10. The Provider is entitled to block the Customer's access to the SOFTWARE for the duration of the breach of duty in the event of breaches of the Customer's obligations under this contract that have not been omitted despite a reminder and in the event of justified suspicion of a corresponding breach of duty, without this invalidating the Provider's claim to remuneration.
8. Subscriptions and payment methods
8.1. The SOFTWARE is generally provided free of charge as a freemium application in the form of a free basic version "Starter" and subject to the further provisions of this Section 8 for a fee in the form of chargeable versions "Pro" and "Org". Details on the scope, license scope and prices can be found at www.linearity.io/pricing/.
8.2. The purchase of the paid version "Pro" as a single license per Apple ID is possible directly in the App Store (hereinafter referred to as "In-app Purchase") or the purchase of multiple licenses via the Provider's website. The In-app Purchase is processed by the App Store. The conclusion of the contract and payment processing are governed by the terms and conditions of the App Store.
8.3. The Provider reserves the right to introduce further paid versions of the SOFTWARE, e.g. enterprise versions, which enable the purchase of licence packages via the Provider's website.
8.4. Before ordering a subscription, the Customer must create a free user account. By selecting a subscription and clicking the button (labeled "Order with obligation to pay" or similar) at the end of the order process, the Customer submits a legally binding offer to conclude a contract for the selected subscription and the number of licenses. Before submitting the order, the Customer can make changes to the order at any time. After receipt of the order, the Customer receives an automatically generated summary of the subscription. This is a non-binding confirmation of receipt, which informs the Customer that the order has been duly received and the number of licenses ordered. A contract is only concluded when the Provider confirms the order or when the actual provision of services begins.
8.5. The prices of the subscriptions can be paid monthly or annually using the payment options provided by the App Store or via the Provider's website using a credit card.
8.6. All prices are subject to the applicable statutory value added tax.
8.7. Only claims that are undisputed, legally established or in a synallagmatic relationship to the respective claim of the Provider shall entitle the Customer to offset or withhold payment.
9. Availability
Provider warrants (“gewährleistet”) an availability of the SOFTWARE of 99% on a monthly average. This does not include times when the servers for the SOFTWARE cannot be reached via the Internet due to technical or other problems beyond the Provider's control (e.g. Force Majeure, fault of third parties, failures or delays of Internet service providers, failures or delays of hosting service providers, denial of service attacks, etc.). Also excluded are times when routine maintenance work is being carried out. Provider may restrict access to the SOFTWARE if the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disruptions to the network, the SOFTWARE or stored data require this; these times are also not taken into account when calculating accessibility. The liability of the Provider for unavailability of the servers in the event of intent and gross negligence remains unaffected. Further details on the warranty and liability of the Provider can be found in Sections 10 and 11.
10. Claims for defects
10.1. The Provider warrants that the Contractual Services are free from defects which cancel or reduce the value or suitability for the usual use or the use assumed in the respective applicable version of the service description. An insignificant reduction in value or suitability shall not be taken into account.
10.2. The Customer shall provide the Provider with all necessary information, documents or data for the analysis and rectification of defects and, in exceptional cases, enable and permit access to the Customer's servers if necessary.
10.3. If a not insignificant defect occurs in the Contractual Services provided by the Provider, the Provider shall, within a reasonable period of time and at the Provider's discretion, either remedy the defect or provide the defective service again free of defects (collectively referred to as "Subsequent Performance"). Subsequent Performance may also be effected by handing over or installing a new program version or a workaround. If the defect does not impair the functionality or only insignificantly, the Provider shall be entitled to remedy the defect by delivering a new version or an update within the scope of the version, update and upgrade planning, to the exclusion of further claims for defects.
10.4. If the Subsequent Performance fails, in particular because the defect is not remedied despite an attempt to remedy it, the Subsequent Performance is unreasonably delayed or is unjustifiably refused, the Customer may, subject to the statutory requirements, terminate the contract, reduce the purchase price and demand compensation for damages or expenses.
10.5. The Customer has no claims for defects due to faults caused by damage, incorrect connection or incorrect operation.
10.6. If the Customer is an entrepreneur in accordance with § 14 BGB (German Civil Code), the Customer's claims for defects shall lapse within twelve months of their occurrence, unless the Provider has fraudulently concealed the defect; the statutory limitation period for the Customer's claims for damages shall remain unaffected.
10.7. If the Provider has made the SOFTWARE available to the Customer free of charge, e.g. during a time-limited demonstration or evaluation period, defects in the SOFTWARE shall only be remedied by the Provider if they are due to gross negligence or willful misconduct on the part of the Provider, unless the remedy of a defect in the SOFTWARE is otherwise required by law.
10.8. Under no circumstances shall the Customer be entitled to the surrender of the source code of the SOFTWARE with regard to any defects.
11. Liability of the Provider
Finally, the Provider is liable as follows:
11.1. The Provider shall be liable without limitation for damages due to intentional or grossly negligent acts, culpable injury to life, limb and/or health, in the event of a breach of a guarantee expressly designated as a "guarantee" (Garantie), and in the event of mandatory statutory liability under the Product Liability Act.
11.2. In cases other than those specified in Section 10.1 the liability of the Provider for the slightly negligent breach of a material contractual obligation (vertragswesentlichen Pflicht), the fulfillment of which is necessary for the achievement of the purpose of the contract and on the fulfillment of which the Customer may therefore regularly rely, is limited to the foreseeable and contract-typical damages at the time of the conclusion of the contract.
11.3. In all other cases, the Provider is not liable for slight negligence.
11.4. The Provider's strict liability for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded. Sections 10.1 to 10.3 remain unaffected.
11.5. If the Provider provides services free of charge, the Provider shall only be liable for damages in the event of gross negligence or willful misconduct.
11.6. The Customer is responsible for regularly backing up his data at appropriate intervals. In the event that the Provider is liable on the merits for a loss of data, this liability shall be limited to the amount that would be required to restore the data if such reasonable regular backups had been made.
11.7. The Provider shall not be liable for data loss caused by technical failures, interrupted data transmissions or other problems arising in this context that are beyond the Provider's control (e.g. faults on the transmission paths of telecommunications service Providers or the Internet).
11.8. All claims for damages against the Provider shall expire twelve (12) months after provision, provided that the Customer is an entrepreneur in accordance with § 14 BGB. This does not apply to claims in tort.
11.9. The above liability provisions of Sections 10.1 to 10.7 shall also apply in favor of the Provider's executive bodies, employees, representatives and/or vicarious agents.
12. Secrecy
12.1. Each party (the "Receiving Party") acknowledges that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as the Disclosing Party's "Confidential Information"). Provider Confidential Information includes non-public information about the features, functionality and performance of Vendor's SOFTWARE and other technology. Customer's Confidential Information includes non-public data that Customer provides to Provider to enable the provision of the Services. The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in the performance of the Services or as otherwise permitted by this Agreement) or disclose to third parties such Confidential Information.
12.2. The Disclosing Party agrees that the foregoing shall not apply to information that becomes publicly known after five (5) years from the date of disclosure or to information that the Receiving Party can demonstrate (a) is or becomes generally available to the public; or or (b) was in its possession or known to it before it received it from the Disclosing Party, or (c) was lawfully disclosed to it without restriction by a third party, or (d) was independently developed without using Confidential Information of the Disclosing Party, or (e) it is required by law to disclose.
12.3. The parties are obliged to obligate their employees and other persons involved in this contract and its execution to observe this confidentiality in an appropriate manner.
13. Reference citation
13.1. Supplier is entitled, but not obliged, to mention a Customer who has purchased or used products from Supplier in marketing material for potential Customers of Supplier, in particular on its websites. This shall be done at the sole discretion of Provider, but with the proviso that Provider shall remove any reference to the Customer within 20 working days at the request of the Customer.
13.2. The Customer therefore hereby grants the Provider the right to use the Customer's name, logo or other brand ("Customer Brand") - including a mutually agreed quotation - expressly limited to naming the Customer as a Customer of the Provider. Any further use of the Customer Brand or the publication of the actual use (e.g. the specific application) requires the prior written consent of the Customer. Provider and Customer shall be entitled to publish the existence of their general cooperation with the respective other contractual partner.
14. Involvement of subcontractors
The Provider is entitled to have individual or all of its service obligations performed with the help of third parties (e.g. by subcontractors).
15. Contract term and termination
15.1. Unless expressly agreed otherwise, the contract term in the case of a paid subscription begins on the date the subscription is taken out for the duration of the respective selected subscription of one year or one month. After expiry of the term, the contract shall be extended by a further year in the case of the annual subscription or by one month in the case of the monthly subscription, unless the respective subscription is terminated by either party with one (1) month's notice prior to expiry of the respective term.
15.2. The right to extraordinary termination for good cause remains unaffected. The statutory provisions shall apply in this respect. The sale of individual business areas of the Provider or a change of shareholder shall not constitute a special right of termination for the Customer. Good cause exists for the Provider in particular (i) if the Customer is in arrears with the payment of invoices for two consecutive months or a not insignificant part of the remuneration or (ii) in a period extending over more than two months, is in arrears with the payment of the remuneration in an amount that reaches the remuneration for two (2) months and/or (iii) if the Customer violates its obligations under Section 7.1 even after a warning has been issued. 7 even after a warning has been issued.
15.3. The Customer can cancel via the App and in the App Store in the Subscriptions section.
16. Online arbitration procedure
The EU Commission provides an online platform for online dispute resolution (ODR platform). It can be accessed via the link http://ec.europa.eu/consumers/odr/. The seller is not obliged and not willing to participate in a dispute resolution procedure before a consumer arbitration board.
17. Force Majeure
If the performance of the contractual obligations is hindered by a Force Majeure event, the affected party shall be released from the obligation to fulfill the affected obligations for the duration of the force majeure event. The affected party shall immediately inform the other party in writing of the circumstances that led to the occurrence of force majeure. As long as the Provider is prevented from providing the Contractual Services due to a force majeure event, the Customer shall be released from its payment obligation.
18. Right of withdrawal for consumers
If the Customer is a consumer according to Section 13 BGB, the Customer has a statutory right of withdrawal. Details on the right of withdrawal can be found here. The Customer acknowledges that all payments handled by Apple, such as in-app purchases, can only be refunded by Apple and with Apple’s consent. If you would like to contact Apple, please click here
19. Choice of law, place of jurisdiction and final provisions
19.1. The place of performance is the registered office of the Provider.
19.2. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the provisions of private international law. This does not apply to consumers with regard to those provisions that are mandatory under the law that would be applicable without this clause (i.e. generally the law of the country in which the consumer has his main place of residence) and which may not be deviated from by agreement.
19.3. The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Berlin, provided that the contracting parties are merchants or the Customer has no general place of jurisdiction in Germany or in another EU member state or has moved his permanent residence abroad after these terms of use come into effect or the place of residence or habitual abode is not known at the time the action is brought. The Provider reserves the right to sue the Customer at his general place of jurisdiction.
19.4. There are no ancillary provisions outside of this contract and its annexes. Any amendments, additions or the rescission of these GTC and/or the contract must be made in writing; this also applies to the amendment, addition or rescission of this Section 19.4.
19.5. Should individual provisions of these GTC be or become invalid in whole or in part, or should there be a loophole in the terms and conditions, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in the agreements.
19.6. These Terms and Conditions are written in English. Any translation or version in a language other than English is for convenience only. In the event of any inconsistency between this English version and any other language version, the English version shall prevail.
Berlin, 21.02.2024