1. Scope of application, exclusion of deviating terms and conditions of business

1.1. The following General Terms and Conditions (hereinafter referred to as the “Terms of Use”) govern the contractual relationship between aptone GmbH, c/o TH Köln, Betzdorfer Straße 2, 50679 Cologne, Germany (hereinafter referred to as the “Provider”) and the registered users (hereinafter referred to as the “User”) who use the services provided online by the Provider (hereinafter referred to as “aptone”) as well as the software provided by the Provider as part of the use of aptone (hereinafter referred to as the “aptone Software”) and other services offered by the Provider as part of aptone.

1.2. The data protection statement shall also apply.

1.3. The validity of the User’s general contractual or business terms and conditions is expressly excluded. This shall also apply if the Provider has not expressly objected to the User’s terms and conditions and/or provides services without objection.

2. Subject matter of the contract

2.1. The Provider offers registered Users the opportunity to manage their own audio files online via aptone. Via the aptone Software, the User can upload audio files (hereinafter “Contents”) to the aptone cloud storage. Subsequently, the User’s Contents are analyzed and additional information (so-called metadata) is added. The Contents and the metadata, are stored in aptone’s system. The metadata is prepared in such a way that the user can search for and filter his or her contents. The analysis is based on probabilities, so that the analysis results are only approximate values.

2.2. The use of aptone is only possible within the framework of a free User contract after registration and opening of a User account in accordance with Item 3.

2.3. In return for payment of the fee agreed pursuant to Item 5.2, the Provider shall offer the User additional services in the form of Subscriptions pursuant to Item 4. The Provider’s complete scope of services can be found in the FAQs.

2.4. The specifications for the Contents that the User wishes to upload can be viewed in the FAQs.

2.5. Contents uploaded by the User shall be converted to another format for compatibility reasons and stored separately. aptone is not a storage or backup solution for Contents of the User. The User shall be responsible for storing and backing up its Contents itself.

2.6. The Provider shall not be liable for the legal or technical suitability of the Contents uploaded by the User. The User shall only be entitled to upload Contents via aptone to which he/she holds all the necessary rights of use pursuant to Item 7.

2.7. The Provider uses technologies from third-party providers as part of its services. The availability of these technologies is beyond the Provider’s control. The Provider’s provision of services is therefore subject to the technical and/or legal availability of the third-party technologies.

3. Registration and Creation of a User Account

3.1. Use of aptone requires registration and opening of a user account (hereinafter “Account”). To register and open an Account, the User must enter a valid e-mail address in the registration form and create a password. Alternatively, the User can register via so-called single sign-on (social logins) from third-party providers such as Facebook or Google. 3.2. By submitting the registration form/single sign-on form and accepting these Terms of Use, the User makes an offer to conclude a free User contract.

a. In case of registration via the registration form, the Provider accepts the registration by sending the User a confirmation e-mail with a personalized activation link. Upon confirmation of the activation link, a contract for the free use of aptone shall be concluded between the Provider and the User (hereinafter “User contract”). Upon successful registration, an Account shall be created for the User, which the User can access using his/her e-mail address and password. The password can be changed at any time via the Account.

b. In the event of registration via the single sign-on form, a contract for the free use of aptone shall be concluded between the Provider and the User upon submission of the form (hereinafter referred to as the “User contract”). Upon successful registration, an Account shall be created for the User, which the User may access using the access data stored in the single sign-on.

3.3. Registration is only permitted in the user’s own name and for his own account. Users must either have reached the age of 18 at the time of registration and conclusion of the contract, or their legal representatives must have given their consent to registration and conclusion of the contract.

3.4. Registration is only permitted for Users residing in Germany.

3.5. Each User may only register once. One Account must be created per User. An Account is not transferable.

3.6. There is no entitlement to registration and conclusion of a User contract. The Provider reserves the right to refuse the registration and the conclusion of a User contract without giving reasons.

3.7 The data requested during registration must be provided completely and truthfully. If the data changes subsequently, the User is obliged to update the information immediately. Upon corresponding request of the Provider, the User shall confirm the data.

4. Conclusion of a Paid Subscription

4.1. If the User wishes to use further functionalities of aptone, he/she must take out a paid Subscription (hereinafter referred to as “Subscription”). The conclusion of a paid Subscription shall take place as follows:

a. A User can select a Subscription provided by the Provider under the Pricing page, enter his/her payment details and confirm the booking by clicking “Buy now”. Before sending the booking, the User can check all the data previously entered by him again and, if necessary, correct it by entering other data or delete the data entered in the respective input field.

b. The Provider accepts the booking by sending a confirmation email to the User, thereby entering into a contract against payment based on these Terms of Use.

5. Prices and terms of payment

5.1. The Provider does not charge any fee for the registration according to section 3.

5.2. The conclusion of a Subscription is subject to a fee. The User shall pay the Provider the fee specified in the respective Subscription .

5.3. The fee owed by the User pursuant to Section 5.2 may only be paid using the payment methods supported by the Provider. The supported payment methods are listed in the booking process. The Provider reserves the right to exclude individual payment methods for selected Users if there is reason to fear a return debit note or cancellation of the payment or insufficient funds.

5.4. The fee pursuant to Section 5.2 shall be due monthly in advance upon conclusion of the Subscription.

5.5. The Provider is entitled to block the Account and to temporarily suspend the provision of the service if the User is in arrears with an amount over two service periods or with an amount that in total covers the amount of two service periods. 5.6 All prices are inclusive of the statutory value added tax.

6. Use and rights of use of aptone/ aptone Software

6.1. In order to use aptone, the User shall require at least the hardware and software environment described in more detail in the FAQs.

6.2. The Provider shall grant the User the non-exclusive, non-transferable, non-sublicensable right, limited in time to the term of the User contract, to access aptone by means of telecommunications and to use the functionalities associated with aptone by means of a browser in accordance with the User contract and Subscription concluded in each case.

6.3. The Provider shall also grant the User the non-exclusive, non-transferable, non-sublicensable right, limited in time to the term of the User contract, to use the aptone Software for the contractual purpose set out below.

6.4. The Provider hereby draws the User’s attention to the fact that third-party open source components (hereinafter referred to as “OSS”) are used within the framework of the aptone Software. The User acknowledges that the OSS are subject to the provisions of the respective OSS license of the third-party providers. Clause 6.2 shall not apply to the OSS used. The terms and conditions of the respective OSS license shall apply to the OSS.

6.5. If the Provider provides the User with supplements (e.g. patches) or a new version of the aptone Software (e.g. update, upgrade) during the term of the User contract, these shall be subject to the provisions of these Terms of Use.

6.6. The User is not entitled to process the aptone Software, in particular to modify it, translate it, reverse engineer it, decompile it, disassemble it, or redesign it, unless permitted by this Item 6.6 or by law. Reengineering is permitted if it is necessary for the correction of a defect and the Provider is in default with the correction of the defect, the Provider refuses to correct the defect without justification or is unable to correct the defect without delay for other reasons attributable to the Provider’s sphere of responsibility. Decompilation of the aptone Software shall only be permitted if the prerequisites and conditions specified in Section 69 e (1) of the German Copyright Act (UrhG) are met. The information obtained in this way may not be used or passed on in contravention of the provisions of Section 69 e (2) UrhG.

6.7. Markings on the aptone Software, in particular copyright notices, trademarks, serial numbers or the like, may not be removed, altered or rendered unrecognizable unless the Provider has given its prior written consent to this.

6.8. The Provider shall remain the owner of all rights to the aptone Software, even if the User modifies the aptone Software or combines the aptone Software with its own programs or those of a third party.

6.9. The User shall take the necessary precautions to prevent the aptone Software from being used by unauthorized persons.

6.10. Without the Provider’s permission, the User shall not be entitled to transfer the aptone Software, access to the aptone Software, copies of the aptone Software given to him/her or any backup copies made to third parties. In particular, the user is not permitted to sell, lend, rent or otherwise sublicense the aptone Software or access to the aptone Software, or to publicly reproduce the aptone Software or make it accessible.

7. Granting of rights of use to the User’s Contents

7.1. The User grants the Provider the simple rights of use to all Contents uploaded by the User to aptone for the duration of the User contract, which are necessary for the performance of the contractual services. This shall include, in particular, the right to analyze, copy, edit, convert, translate, and reproduce the Contents.

7.2. The User guarantees that the Contents uploaded by the User do not violate any third-party rights, in particular trademark rights, competition rights, copyrights, property rights or personal rights.

8. Rights and duties of the Provider

8.1. The Provider shall provide, maintain and service the technical server landscapes necessary for the provision of the services. In this respect, the Provider is entitled to use third party companies as subcontractors.

8.2. The Provider shall secure its system and the stored data in accordance with the current state of the art. There is no contractual obligation to archive Contents. The User shall not have any claim to the surrender of the data backup medium.

8.3. The Provider shall be entitled to modify and optimize aptone to an extent that does not materially impair or jeopardize the contractual purpose of these Terms of Use. With regard to services offered free of charge, the Provider shall be entitled to discontinue them at any time after giving reasonable notice.

9. Rights and duties of the User, Account use, sanctions and blocking of the Account

9.1. The User guarantees that the information provided by him is correct, complete and up-to-date. He will inform the Provider immediately about changes of the data necessary for the execution of the contract.

9.2. The User also undertakes:
a. not to make any false statements regarding his data;
b. not to upload any pornographic or racist Contents;
c. not to upload Contents that violate youth protection laws or criminal laws;
d. not to take any action that could block, overload or impair the proper working or appearance of aptone (e.g. denial of service attacks or uploading of viruses or other malicious code);
e. not to engage in unauthorized commercial communications (for example, spam) on aptone;
f. not to use automated mechanisms (such as bots, robots, spiders or scrapers) to collect Contents or information from other Users or otherwise access aptone, unless the Provider’s express prior permission has been obtained;
g. not to upload any legally protected Contents without being authorized to do so.

9.3. The Provider shall be entitled to delete Contents and information that violate the Terms of Use, that violate the applicable rules of politeness, etiquette, objectivity and respectful interaction, or that are otherwise offensive and/or improper. The Provider will inform the User about the deletion. User has no claim to reinstatement of Contents that have already been deleted.

9.4. If the User violates the Terms of Use or legal regulations, the Provider may a. Change or delete contents and information of the User; b. terminate the User contract with the User without notice; c. restrict the Account and the User for a limited period of time or block the User permanently.

9.5. The Provider may impose these sanctions after prior notice and notification of the respective reason. In this case, the User shall be given the opportunity to comment.

9.6. After a User has been permanently blocked, there is no right to have the blocked Account restored. As soon as a User has been blocked, this User may also not log in with another Account.

10. Secrecy of passwords

10.1. The User is obliged to keep login data, passwords, etc. secret and not to pass on his access data to unauthorized third parties and to log out after each session. Declarations and actions made or committed after logging in with the password and e-mail address or via the User’s single sign-on can be attributed to the User even if the User has no knowledge of them. In particular, the User shall be held liable if the User intentionally or negligently provides third parties (including family members) with access to the password or the Account. The User shall immediately inform the Provider as soon as he/she becomes aware that unauthorized third parties have access to and are aware of the access data.

10.2. In the event of a justified suspicion that access data has become known to unauthorized third parties, the Provider is entitled, but not obligated, for security reasons to independently change the access data without prior notice or to block the use of the Account. The Provider shall inform the User of this without delay and, upon request, provide new access data within a reasonable period of time. The User has no right to have the original access data restored.

11. Term and Termination, Deletion of the Account

11.1. User contracts are concluded for an indefinite period of time. Subject to section 11.2, free User contracts may be terminated by either party at any time. The User may give notice of termination via his Account by deleting his Account. Alternatively, the notice of termination may be sent by e-mail to hello@aptone.io or by any other means of communication in text form.

11.2. If the User has taken out a Subscription, he may only terminate his User contract with effect from the end of the term of the Subscription booked. The Account shall be maintained for the duration of the Subscription.

11.3. Subscriptions are concluded for an indefinite period. The Subscription may be terminated by either party with 2 weeks’ notice to the end of the month. The User may terminate the Subscription via his Account by cancelling his Subscription. Alternatively, the notice of termination can be sent by e-mail to hello@aptone.io or by any other means of notification in text form.

11.4. The User can upgrade his Subscription at any time, i.e. change to a higher-priced Subscription. The User may upgrade the Subscription through his Account by changing his Subscription. In case of an upgrade, the higher-priced fee will be charged proportionally for the term of the current month.

11.5. The Provider’s right to block a User’s account pursuant to Section 9.4 shall remain unaffected.

11.6. After termination of the User contract, the Provider shall be entitled to delete all Contents uploaded by the User via aptone and his Account.

11.7. If Accounts without a Subscription are inactive for a period of 365 days, they and their Contents shall be permanently deleted. The Provider shall notify the User of the deletion of the Account by e-mail with a notice period of two (2) weeks. If the User wishes to continue the Account, he may object to the deletion of the Account via a link provided in the deletion notice. In this case, the Account shall remain active for another 365 days.

11.8. The right to terminate for cause remains unaffected.

12. Availability

The Provider guarantees 99.9% availability of aptone on an annual basis. This does not include downtimes that are not due to a breach of duty on the part of the Provider, such as attacks on the Provider’s systems by third parties, hardware failures for which the Provider is not responsible, or cases of force majeure, as well as related maintenance work that cannot be scheduled. Due to maintenance work, further development or disruptions, the usage options may be restricted or temporarily interrupted. This may also result in data loss under certain circumstances.

13. Warranty

Subject to the provisions of section 14, the statutory provisions on warranty shall apply.

14. Limitation of liability

14.1. Subject to the further provisions of this clause 14.1, the Provider shall only be liable if and to the extent that the Provider, its legal representatives, executives, employees or other vicarious agents are guilty of intent or gross negligence. However, in the event of the Provider’s default or the impossibility of performance for which the Provider is responsible, as well as in the event of a breach of material contractual obligations (so-called cardinal obligations), the Provider shall be liable for any culpable conduct on its part or on the part of its legal representatives, officers, employees or other vicarious agents. Essential contractual obligations are defined in the abstract as obligations whose fulfillment is essential for the proper performance of the contract and on whose fulfillment the User may regularly rely.

14.2. Except in the case of intent or gross negligence on the part of the Provider, its legal representatives, officers, employees or other vicarious agents, the Provider’s liability shall be limited to the amount of damages typically foreseeable at the time of conclusion of the contract.

14.3. Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk.

14.4. The Provider shall neither be liable for the operability of the telecommunication connection (telephone/ISDN/DSL lines, etc.) to its server in case of power failures nor in case of failures of servers which are not within the Provider’s sphere of influence. Furthermore, the Provider shall not be liable for damages caused by force majeure or comparable events. Comparable events are in particular strikes, official orders, pandemics, the failure of telecommunications networks or gateways of other operators as well as disruptions in the area of other telecommunications or service providers. Furthermore, the Provider shall not be liable for Contents uploaded by the User.

14.5. The strict liability of the Provider for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded.

14.6. The exclusions and limitations of liability regulated in the above clauses 14.1 to 14.5 shall not apply in the case of the assumption of express guarantees, in the case of claims due to the lack of warranted characteristics and for damages arising from injury to life, limb or health and in the case of mandatory statutory provisions. Furthermore, the limitations of liability set forth in Section 14.2 shall not apply to claims for interest on arrears, for the lump-sum compensation for default pursuant to Section 288 (5) of the German Civil Code (Bürgerliches Gesetzbuch - BGB), or for compensation for the damage caused by the delay, which is based on the costs of legal action, in the event of a default of the Provider.

14.7. Claims under the Product Liability Act shall remain unaffected by the provisions of this Clause 13.

15. Exemption

The User shall indemnify the Provider from all claims of third parties, in particular from claims due to copyright and personal rights violations, which should be raised against the Provider in connection with the Contents of the respective User, upon first request. The User shall notify the Provider immediately of any third-party claims of which the User becomes aware. The Provider shall be entitled to take suitable measures himself to defend himself against third party claims or to pursue his rights. The User must coordinate his own measures with the Provider in advance. The indemnification also includes the reimbursement of costs incurred by the Provider as a result of legal action/defense. Further claims for damages of the Provider remain unaffected. Insofar as the Provider is responsible for the infringement, claims against the User are excluded.

17. Amendment of these Terms of Use

17.1. Amendments to these Terms of Use must be made in text form. There shall be no ancillary agreements.

17.2. The Provider reserves the right to amend these Terms of Use unilaterally if this appears objectively justified. Changes shall be objectively justified, for example, in the event of an expansion of aptone’s functions, a change in the legal or statutory situation (for example, if case law declares a clause to be invalid), or if the relationship of equivalence existing at the time of conclusion of the contract is disturbed to a not insignificant extent by unforeseeable changes that the Provider does not cause and over which it has no influence. The prerequisite for a change is always that it is reasonable for the User.

17.3. Registered Users shall be notified of any changes to the Terms of Use. They shall be deemed to have been approved if the User has not objected to the validity of the amended Terms of Use within six weeks in writing or by e-mail to the Provider and the Provider has pointed out the legal consequences of failure to object.

18. online dispute resolution

The Provider hereby refers the User to the online dispute resolution (ODR) site of the European Commission with the following link. The Provider is not responsible for the Contents of this page or also the possibility of carrying out the complaint procedure via this page. The Provider’s e-mail address is hello@aptone.io.

19. Reference to the VSBG (law on alternative dispute resolution in consumer matters)

The Provider is not obligated or willing to conduct proceedings pursuant to the VSBG before a consumer arbitration board. However, the law on alternative dispute resolution in consumer matters (VSBG) requires that reference is nevertheless made to a consumer arbitration board responsible for the consumer:

Online-Schlichter
Zentrum für Europäischen Verbraucherschutz e.V.
Bahnhofsplatz 3
77694 Kehl

Phone: +49 7851 991480
E-Mail: mail@online-schlichter.de
Internet: www.online-schlichter.de

20. Contractual language, contractual text, choice of law, place of jurisdiction, severability clause

20.1. The registration and provision of aptone shall be in English. All contractual agreements between the User and the Provider shall be concluded in German. The contractual language shall be German.

20.2. The current version of all contractual texts shall be available to the User on the aptone.io website.

20.3. The entire contractual relationship between the Provider and the User shall be governed by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

20.4. Cologne shall be deemed agreed as the place of jurisdiction if the contractual partners are merchants, legal entities under public law or special funds under public law. However, the Provider is also entitled to sue the User at his general place of jurisdiction. This shall not apply if mandatory statutory provisions within the meaning of Articles 24, 25 or 26 of the EuGVVO as amended on December 12, 2012 conflict with this.

20.5. In the event of any conflict between the English and German version of the respective terms and conditions of this Terms and Conditions, the German version prevails.

20.6. Should a provision be wholly or partially invalid or later lose its legal validity, this shall not affect the validity of the remaining provisions. If the contract contains a loophole, the same shall apply.

Date: 1st December 2021