Deutsche Version des Vertrags

Section 1    Subject of the terms and conditions of use and licensing conditions

  1. These terms and conditions of use and licensing conditions govern the terms under which you as the licensee or purchaser may use the products Isadora and/or IzzyCast (hereinafter jointly referred to as "the licensed product") provided by Coniglio TroikaTronix e. K., Neue Schönhauser Straße 12, 10178 Berlin, Germany (hereinafter referred to as "TroikaTronix"). 
  2. The subject matter of these terms and conditions of use and licensing conditions is, in the case of licensing, the granting of rights of use and exploitation of the licensed product by TroikaTronix to its customers (hereinafter referred to as “licensee"); in the case of purchase, the scope of the acquired rights to the licensed product. Resellers and other customers of TroikaTronix who purchase the licensed product for the purpose of resale to end users shall ensure that these terms and conditions are conclusively incorporated vis-à-vis their customers.
  3. The owed nature of the licensed product shall result exhaustively from the product description. Any use deviating from this shall expressly not be guaranteed. Installation and configuration services shall not be the subject of any licence or purchase agreement.
  4. The technical requirements necessary for the use of the licensed product are set out in the current product description and shall be checked by the licensee prior to purchasing a licence or the licensed product and shall be kept available by the licensee during the term of the contract in order to ensure smooth functionality. TroikaTronix shall not be responsible for the absence of technical requirements on the part of the licensee.

Section 2    Changes to the terms and conditions of use and licensing conditions

  1. TroikaTronix reserves the right to amend these terms and conditions of use at any time, also with effectiveness within the existing contract. TroikaTronix shall notify the licensee of such amendments at least 30 calendar days before the planned entry into force of such amendments. If the licensee does not object within 30 days of receipt of the communication and continues to use the services even after the expiration date of the objection period, the amendments shall be deemed to have been effectively agreed as of the expiry of the above-mentioned deadline. If the licensee objects, the contract shall be continued under the previous terms. In the communication of the amendment, TroikaTronix shall inform the licensee of their right of objection, and of the consequences.
  2. In the event of changes to VAT, TroikaTronix shall be entitled to adjust the remuneration in line with these changes without the aforementioned right of objection.

Section 3    Licence

  1. The licensee can acquire Isadora and/or IzzyCast in the form of a licence. In this case, TroikaTronix shall grant the licensee a non-exclusive, non-transferable, non-sublicensable licence for the installation and/or web-based use of Isadora and/or IzzyCast (in whole or in part). Updates, upgrades, patches and modifications may be necessary for the (continued) use of Isadora and/or IzzyCast in combination with specific hardware products.
  2. The right of use and exploitation shall be limited to the intended use of Isadora and/or IzzyCast ("intended use").
  3. The right to reproduce the licensed product shall be limited to installing the licensed product on a computer system which is in the licensee’s direct possession in order to fulfil the intended use, and to reproducing it to the extent necessary for loading, displaying, running, transferring and saving the licensed product.
  4. If the licensee acquires a licence, this licence shall be limited in time to the agreed duration of contract, and shall expire automatically in the event of termination of the contract.
  5. The right to reproduce the licensed product shall be limited to installing the licensed product on a computer system which is in the licensee’s direct possession in order to fulfil the intended use, and to reproducing it to the extent necessary for loading, displaying, running, transferring and saving the licensed product, unless expressly agreed otherwise. 
  6. The right to process the licensed product shall be limited to maintaining or restoring the agreed functionality of the licensed product. Further rights of use and exploitation of the licensed product shall not be granted. 
  7. The licensee shall not be entitled to make available to third parties the copy of the licensed product, which has been made available to the licensee either digitally or physically. In particular, they shall not be permitted to sell, lend, rent or otherwise sub-licence the licensed product, or to reproduce it publicly or make it accessible in any other manner not in accordance with the purpose of the contract, unless expressly agreed otherwise in writing. 
  8. The term of the contract of the respective licence shall be determined by the licence package that was chosen. Timed licenses shall end after expiry of the agreed term of the contract; cancelling is not required. A renewal can be booked at any time. Credit packages shall grant the use of the selected product within the agreed time and content scope. After the expiration of the term of the contract, the access may no longer be used. TroikaTronix reserves the right to block the user name and password once the term of the contract has ended.
  9. TroikaTronix shall be entitled to irrevocably delete all data created by the licensee in the course of use and stored in the licensed product or on the TroikaTronix servers 30 calendar days after of the end of the term of the contract and after expiry of any statutory retention periods.

Section 4    Purchase of the licensed product

  1. The licensee shall also have the option to purchase Isadora. In this case, the licensee shall acquire a perpetual, non-exclusive, non-transferable, non-sublicensable licence to use Isadora. They shall be given exclusive access to downloading the product and to a physical licence key on a USB stick, which shall be sent to them by TroikaTronix, and/or a non-physical licence key in text form. The specific form depends on the product description.
  2. TroikaTronix shall offer each purchaser of the licensed product a time-limited update package, the specific scope and time limit of which shall be specified in the product description (maintenance service). Unless otherwise stated in the product description, this included service shall comprise updates every 3 to 6 months over a period of one year starting from the conclusion of the purchase contract, and shall be free of charge for the licensee. After expiry of the one-year maintenance service, the licensee can book one or more renewals for a fee. This shall not give rise to any further obligations on the part of TroikaTronix. 
  3. In all other cases, use shall be subject to the terms under Section 3.

Section 5    Warranty, defects, guarantees

  1. The licensed product provided by TroikaTronix materially corresponds to the product description. Claims for defects shall not exist if the deviation from the agreed or assumed nature is trivial, and if the impairment of the suitability for use is only trivial. Without a separate written agreement, product descriptions shall not constitute a guarantee. In the case of update, upgrade or new version deliveries, claims for defects shall be limited to the new features of the update, upgrade or new version delivery compared to the previous version status.
  2. If the licensee demands supplementary performance because of a defect, TroikaTronix shall have the right to choose between repair, substitute delivery or alternative performance. If the licensee has set TroikaTronix a further fair and reasonable grace period after the first period has elapsed without result and this period has also elapsed without result, or if a reasonable number of attempts at repair, substitute delivery or alternative performance have been unsuccessful, the licensee may, subject to statutory requirements, choose to either withdraw from the contract or reduce the price and claim compensation for damages or expenses. Supplementary performance may also be effected by handing over or installing a new version of the programme or a work-around. If the defect does not impair the functionality or only trivially impair it, TroikaTronix shall be entitled to rectify the defect by delivering a new version or an update as part of its version, update and upgrade planning, to the exclusion of further claims for defects.
  3. Defects shall be notified in writing by means of a logically understandable description of the symptoms of the defect, as far as possible proven by written records, hard copies or other documents illustrating the defects. The notification of defect should enable the reproduction of the deficiency. Statutory obligations to examine and give notice of defects shall remain unaffected.
  4. The limitation period for claims for defects shall be 12 months provided the licensee is not a consumer. In this case, the statutory warranty period shall apply. The period shall commence upon delivery of the first copy of the licensed product, including the user manual/operating instructions, which shall be made available to the licensee for download/retrieval and shall be available at all times. In the case of the delivery of updates, upgrades or new versions, the period for these parts shall commence upon delivery. Unless otherwise agreed, there shall be no right to updates, upgrades or the delivery of new versions. TroikaTronix shall provide the current version through the licence model. 
  5. Any modifications or extensions to the services or delivered items carried out by the licensee themselves or by third parties upon the licensee’s request, shall make any claims for defects inapplicable, unless the licensee can prove that the modification or extension is not substantive for the defect. TroikaTronix shall also not be liable for defects that are attributable to inappropriate operation or operating conditions, or the use of unsuitable equipment by the licensee.
  6. TroikaTronix may refuse supplementary performance until the licensee has paid the licensor the agreed remuneration, less a portion corresponding to the economic significance of the defect.
  7. Claims for damages shall be subject to the limitations of Section 6.

Section 6    Liability, damages

  1. Under this contract, TroikaTronix shall only be liable in accordance with the following provisions under (a) to (e):
    a) TroikaTronix shall be liable without limitation for damage caused by TroikaTronix, its legal representatives or executives, either intentionally or through gross negligence, as well as for damage caused intentionally by other vicarious agents; for wilful misconduct on the part of other vicarious agents, liability shall be determined by the provisions for slight negligence set out in (e) below.
    b) TroikaTronix shall be liable without limitation for damages of life, body or health caused intentionally or negligently by the licensor, their legal representatives or vicarious agents.
    c) TroikaTronix shall be liable for damages due to the lack of warranted features up to the amount that was covered by the purpose of the warranty and that was recognisable to TroikaTronix when the warranty was given.
    d) TroikaTronix shall be liable for any product liability damages under the German Product Liability Act.
    e)    TroikaTronix shall be liable for damages arising from the breach of material contractual obligations by TroikaTronix, its legal representatives or vicarious agents; Material contractual obligations are the essential obligations that form the basis of the contract, that were decisive for the conclusion of the contract and on the fulfilment of which the licensee may rely. If TroikaTronix has breached these material contractual obligations through slight negligence, its liability shall be limited to the amount that was foreseeable for TroikaTronix at the time of the respective performance.
  2. TroikaTronix shall only be liable for the loss of data up to the amount that would have been incurred if the data had been properly and regularly backed up in order to restore it.
  3. TroikaTronix shall not be liable for any damage resulting from breaches and/or infringements of these terms and conditions of use and licensing conditions by the licensee, in particular against Section 9 (3) and Section 10. TroikaTronix shall in particular not be liable for damages caused by content created by the licensee, for example by executing Python codes.
  4.  Any further liability on the part of TroikaTronix shall be excluded on the merits of the case.

Section 7    Registration, user profile

  1. The use of the licensed product shall require the licensee’s application and/or registration and – in order to use all functions – the purchase of a licence. There is no right to claim licensing. TroikaTronix shall have the right to reject applications without giving reasons. 
  2. Only persons of legal age and full legal capacity shall be permitted to register. Minors shall be prohibited from registering. In the case of a legal entity, registration shall be made by a natural person with unlimited legal capacity and who is an authorised representative.
  3. The contact details and other information requested by TroikaTronix during the registration process shall be provided in full and correctly by the licensee. When registering a legal entity, the natural person who is also an authorised representative shall be stated. Once all the requested data has been entered, TroikaTronix shall check it for completeness and plausibility. If TroikaTronix's finds the data to be correct and TroikaTronix has no other concerns, TroikaTronix shall activate the requested access and notify the licensee by e-mail. The e-mail is deemed to be acceptance of the licensee’s application. Upon receipt of the e-mail, the licensee shall be authorised to use IzzyCast in accordance with these terms and conditions of use and licensing conditions. To do so, the licensee shall first confirm the activation by clicking on the link contained in the e-mail.
  4. The licensee agrees to keep their data (including contact details) up to date. If during the term of the contract, the data provided change, the data shall be corrected without undue delay in the personal settings, or TroikaTronix shall be informed without undue delay by e-mail or post.
  5. The licensee shall keep access data, including passwords, confidential and shall not make them available to unauthorised third parties. TroikaTronix shall not be liable for loss or unauthorised use due to a breach of the licensee's obligation to preserve business records. 
  6. TroikaTronix therefore provides no guarantee that each profile owner is the person that the respective profile owner claims to be.

Section 8    Protection of content, responsibility for third-party content

  1. The content available via the licensed product and made available by licensees shall be predominantly protected by copyright or other protective rights and shall be owned by TroikaTronix, the respective licensee, the participating artists or other third parties who have made the respective content available. The compilation of the content as such shall be protected as a database or database work within the meaning of Sections 4 (2) and 87a (1) of the German Copyright Act. The licensee may only use this content in accordance with these conditions and, if applicable, within the framework specified by the rights holder.
  2. Content from licensees, participating artists or other third parties who have provided the respective content shall hereinafter collectively be referred to as “third-party content". TroikaTronix is unable to check third party content for completeness, accuracy and legality, and shall assume no responsibility or warranty for the completeness, accuracy, legality or other nature of the third-party content. This shall also apply to the quality of the third-party content and its suitability for a specific purpose. The same shall apply to links, statements, references or other information provided by third parties.

Section 9    Posting of own content

  1. To the extent that this functionality is available in the licensed product, the licensee may post content and thus make it available to third parties, subject to the following provisions.
  2. By posting content, the licensee shall grant TroikaTronix a free and transferable right of use to the respective content, in particular to store the content on TroikaTronix's server and to publish it, in particular to make it publicly accessible (e.g. by displaying the content in Isadora and/or IzzyCast), to edit and reproduce it, insofar as this is necessary for the provision or publication of the respective content, and to grant third parties the right of use – also against payment – to the content in accordance with (5). If the licensee removes the content previously posted from the licensed product, the rights of use and exploitation granted above shall expire. However, TroikaTronix shall remain entitled to retain copies made for backup and/or evidence purposes. The rights of use already granted to other participants/licensees to the content posted by the licensee shall also remain unaffected.
  3. The licensee shall be fully responsible for the content posted, streamed or otherwise made publicly available. TroikaTronix will not check the content for completeness, accuracy, legality, topicality, quality and suitability for a specific purpose. The licensee asserts and warrants towards TroikaTronix that they are the sole owner of all rights (in particular copyrights and rights to privacy) to the content posted by them on Isadora and/or IzzyCast, or that they are otherwise authorised (e.g. by effective permission from the rights holder) to post the content in Isadora and/or IzzyCast and/or otherwise exploit it, and to grant the rights of use and exploitation in accordance with paragraph (2) above.
  4. TroikaTronix reserves the right to refuse to post content and/or to edit, block or remove content that has already been posted without prior notice if the posting of content by the licensee or the posted content itself has led to a breach of these terms and conditions, or if there are concrete indications that a serious breach of these terms and conditions will occur. TroikaTronix shall, however, take the licensee’s legitimate interests into account and choose the mildest means of defence against the breach.
  5. Unless further use is expressly permitted in these terms and conditions or enabled by a corresponding functionality, the licensee may only use the available content for the contractually intended purposes. This right of use shall be limited to the term of the contract. The licensee shall be prohibited from editing, modifying, translating, presenting or demonstrating, publishing, exhibiting, reproducing or distributing the licensed product or the content available therein, in whole or in part, outside the purpose of the contract. The licensee shall also be prohibited to remove or change copyright notices, logos or other distinguishing marks or protection notices.
  6. The licensee shall only be entitled to download (“download") and to print content if a download or print function is available (e.g. by means of a download button). The licensee shall receive a perpetual and non-exclusive right of use for the agreed intended use of the properly downloaded or printed content. In all other cases, all rights to the content shall remain with the original rights holder (TroikaTronix or the respective third party).
  7. Mandatory statutory rights (including reproduction for private and other personal use in accordance with Section 53 of the German Copyright Act (UrhG)) shall remain unaffected.
  8. Individual applications within the licensed product enable the licensee to execute code written in the programming language Python within the licensed product using the "Pythoner" module (the “Python code”). TroikaTronix points out that the use of Pythoner and the application of Python code may lead to considerable security risks and other potential risks. TroikaTronix therefore expressly recommends not using them, or only using them with great care and caution. The option to execute Python code is therefore not activated by default and must be confirmed and activated manually by the licensee. TroikaTronix shall not be liable for any damages incurred to the licensee or third parties as a result of the activation, use and execution of Python code. There shall be no entitlement to execute Python code, or to activate or use Pythoner or such programmes. TroikaTronix reserves the right to deactivate, restrict or change such functions at any time.

Section 10    Prohibited activities

  1. Any activities on or in connection with the use of the licensed product that violate applicable law, infringe third-party rights or violate the principles of the protection of minors shall be prohibited. In particular, the following actions shall be prohibited:
    - posting, disseminating, offering or advertising pornographic content, services and/or products that violate laws on the protection of minors, data protection laws and/or any other laws and/or fraudulent content, services and/or products;
    - using content that insults or defames other participants or third parties;
    - using, providing or distributing content, services and/or products that are legally protected or subject to third-party rights (e.g. copyrights) without being expressly authorised to do so.
  2. Furthermore, licensees shall also be prohibited from the following activities when posting their own content and communicating with other participants (e.g. by sending personal messages), irrespective of any violation of the law:
    - disseminating viruses, Trojans or other malicious files;
    - sending junk or spam messages or chain letters;
    - disseminating lewd, offensive, sexually explicit, obscene or defamatory content or communication as well as any content or communication that is likely to promote or support racism, fanaticism, hatred, physical violence or unlawful acts (in each case explicitly or implicitly);
    - harassing other participants, e.g. through repeated personal contact without or contrary to the response of the other participant, as well as encouraging or supporting such harassment;
    - requesting other participants to disclose passwords or personal data for commercial or illegal and/or unlawful purposes;
    - disseminating and/or publicly communicating available content, unless expressly authorised by the respective author or expressly made available as a functionality.
  3. Taking any action that is likely to impair the smooth operation of the licensed product, in particular from placing an excessive load on TroikaTronix's systems shall also be prohibited.
  4. If the licensee becomes aware of any use of the licensed product that is illegal, improper, contrary to the contract or otherwise unauthorised, such use shall be reported to info@troikatronix.com. 
  5. If there is a suspicion of unlawful acts or criminal offences, TroikaTronix shall be entitled and, possibly, obliged to review the activities and, if necessary, to take appropriate legal action. This may also include forwarding the facts of the issue to the public prosecutor's office.

Section 11    Blocking access

  1. TroikaTronix may temporarily or permanently block access to the licensed product if there are concrete indications for the licensee violating or having violated these terms and conditions and/or applicable law, or if TroikaTronix has another legitimate interest in blocking access. In determining whether to block the licence, TroikaTronix shall give fair and reasonable consideration to the legitimate interests of the licensee.
  2. In the event of temporary or permanent blocking, TroikaTronix shall revoke the access authorisation and notify the licensee by e-mail.
  3. In the event of temporary blocking, TroikaTronix shall reactivate the access authorisation after the blocking period has expired and notify the licensee of this by e-mail. Permanently revoked access authorisation cannot be restored. Permanently blocked persons shall be permanently excluded from participation and may not re-register.

Section 12    Offer and availability of services

  1. TroikaTronix shall provide the licensee with various services for temporary use in the licensed product, depending on the selected licence package. In the case of IzzyCast, such services may include, for example, the release for making available data, contributions, image and sound documents, information and other content (hereinafter collectively referred to as “content"), as well as the option to stream such content live, record it or otherwise make it available. 
  2. The content and scope of the services shall be determined by the respective contractual agreements, in all other cases by the available functionalities.
  3. Within its area of responsibility, TroikaTronix shall warrant a 99% average availability of the licensed product per month. The regular maintenance windows of web applications, which are every Sunday between 2:00 and 4:00 a.m., shall not be included in the calculation of availability.
  4. In all other cases, a claim to the use of the services shall be limited to the scope of the technical and operational possibilities of TroikaTronix. TroikaTronix shall endeavour to ensure that its services are available with as as little interruption as possible. However, temporary restrictions or interruptions may occur due to technical faults (e.g. power outage, hardware or software deficiencies, technical problems in the data lines).
  5. The licensee shall be responsible for creating the technical requirements necessary for the contractual use of the services within their area of responsibility. TroikaTronix shall not owe any consultation in this regard and shall not provide any hardware.
  6. TroikaTronix points out that usage activities may be monitored to the extent permitted by law. This may also include the logging of IP connection data and call histories and their evaluation in the event of a concrete suspicion of a breach of these terms and conditions and/or in the event of a concrete suspicion of another unlawful act or criminal offence.

Section 13    IzzyCast 

  1. IzzyCast is based on the Zoom VideoSDK technology by Zoom Video Communications, Inc, 55 Almaden Blvd, San Jose, CA, 95113, Suite 600, USA. TroikaTronix has undertaken to Zoom Video Communications, Inc. to comply with their terms and conditions of use and to oblige TroikaTronix’s end users (licensees) accordingly. 
  2. In order to use IzzyCast, the licensee shall accept the terms and conditions of use of Zoom Video Communications, Inc. and undertake to comply with them vis-à-vis TroikaTronix. The licensee is requested to do so as part of the registration. The terms and conditions of use of Zoom Video Communications, Inc. can be accessed at any time at https://explore.zoom.us/de/terms/. 
  3. IzzyCast permits individual participants to access selected functions and devices of other participants as part of a session. Access shall be defined and authorised by the participants at the beginning. The licensee undertakes vis-à-vis TroikaTronix and the participant concerned to the contractual use of the access rights granted to them, in particular not to use them for purposes that have not been agreed with the participant concerned, or that violate these terms and conditions and/or the law, and to respect the right to privacy of the participant concerned. Section 10 applies accordingly. 
  4. If the use of IzzyCast involves access to (in particular external) hardware or other electronic devices, the licensee shall take appropriate and sufficient safety precautions so that, in particular in the event of possible failures, malfunctions or other unforeseeable restrictions on the usability of IzzyCast, there is no risk to life, limb or property of the licensee or third parties.
  5. IzzyCast allows the direct provision of content (sessions) via third-party platforms in the form of live broadcasts. When using this function, the licensee undertakes to pay particular attention to the obligations set out in (3). 
  6. The licensee shall be responsible for the content they create, make available and/or otherwise exploit via IzzyCast. By way of precaution, the licensee indemnifies TroikaTronix from any liability for such content. 
  7. IzzyCast expressly does not guarantee interference-free and fail-safe, as well as error-free system availability. IzzyCast may therefore not be used in environments, situations or other cases that require such interference-free and fail-safe, as well as error-free system availability (e.g. medical applications and in particular emergency medical care, activities that may pose a risk to life and limb) or that entail the risk of death, physical injury or environmental damage. TroikaTronix shall not be liable for any damages incurred by the licensee or third parties in connection with such use.
  8. The aforementioned paragraphs (3) to (7) apply accordingly to the licensed product, insofar as it is used accordingly (e.g. RTMP plugin). 

Section 14    Data protection

  1. TroikaTronix's quality standards include the responsible management of the personal data of licensees (this data is hereinafter referred to as "personal data"). TroikaTronix shall therefore only collect, store and process the personal data resulting from a registration and from the use of the available services insofar as this is necessary for the contractual provision of services and is permitted by statutory provisions or ordered by the legislator. TroikaTronix shall treat the personal data confidentially and in accordance with the provisions of the applicable data protection law, and shall not pass it on to third parties.
  2. Beyond this, TroikaTronix shall only use the personal data if the licensee has given their express consent. Any consent given may be revoked at any time.
  3. In all other cases, the TroikaTronix data protection provisions apply.

Section 15    Final provisions

  1. Unless expressly stated otherwise in these terms and conditions of use and licensing conditions, all declarations made in connection with the use of the licensed product shall be made in writing or by e-mail. The e-mail address of TroikaTronix is info@troikatronix.com. The postal address of TroikaTronix is Coniglio TroikaTronix e. K., Neue Schönhauser Straße 12, 10178 Berlin, Germany. We reserve the right to change the contact details. In the event of such a change, TroikaTronix shall inform the licensee thereof.
  2. Should any provision of these terms and conditions of use and licensing conditions be or become invalid, this shall not affect the legal validity of the remaining provisions. In place of the invalid provision, a valid provision which comes closest to the economic intention of the parties shall be deemed to have been agreed.
  3. (3)    These terms and conditions of use and licensing conditions are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
  4. The exclusive place of jurisdiction for all disputes arising from these terms and conditions of use and licensing conditions shall be the registered office of TroikaTronix, insofar as such an agreement on the place of jurisdiction is permissible.
  5. In the event of a conflict between the German and English versions of the contract, the German version shall prevail.