FlyGuide offers applications for collision avoidance in airspace. Some of these applications are available via the FlyGuide website using a browser (hereinafter referred to as ‘Web App[a][b]’ or ‘Website’) or can be installed on a tablet or smartphone (hereinafter referred to as ‘FlyGuide Apps’). These FlyGuide Apps are available through independent app stores, such as Apple’s App Store and Google’s Google Play (hereafter referred to as App Stores). The FlyGuide Web App, FlyGuide App are collectively referred to below as ‘Offers’.
1. Scope of application
1.2 The business relationship between FlyGuide and the user shall be governed exclusively by the following General Terms and Conditions (with the exception of any further terms and conditions of use of FlyGuide as set out in Section 1.1) in the version valid at the time of conclusion of the contract. Any deviating terms and conditions of the user shall not be recognized unless FlyGuide expressly agrees to their validity in writing.
1.3 These General Terms and Conditions shall apply to the contractual relationship between FlyGuide and users who are consumers. These General Terms and Conditions shall apply to contracts with companies (with the exception of sections 3.3. and 3.4. and the statutory right of revocation) insofar as the license is for one person. The user is a consumer insofar as the purpose of the ordered deliveries cannot be attributed to his commercial or self-employed professional activity (‘consumer’). On the other hand, an entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of his commercial or independent professional activity (“entrepreneur”).
1.4 The contract language is German.
2. Subject of performance
2.1 Prerequisite for the use of the Flyguide Apps is the registration of the user in the App Stores. Registration is free of charge. With the download or the call via the website, a basic version of the web app or FlyGuide apps is used free of charge (hereinafter referred to as ‘basic functions’). The basic functions allow the use of essential basic functions of the FlyGuide offer.
2.2 In addition, FlyGuide may offer an extended version of the Web App and FlyGuide App for a fee (hereinafter referred to as ‘PROVersion’).
3. Conclusion of a contract for chargeable content in an App Store
3.2 The remaining provisions of these GTC shall remain unaffected in the relationship between FlyGuide and the user. The user agrees to these GTC when executing the App or Webapp for the first time.
4. Granting of rights / restrictions of use
4.2 Intellectual property rights and copyrights to individual offers shall remain with FlyGuide or, in the case of content, with the cooperation partners or respective authors. Insofar as offers are made available to the user, FlyGuide grants the user the non-exclusive, non-transferable and non-sublicensable right, limited in time to the respective term of the offer in question, to use the offers within the framework of the website or the web app or the FlyGuide Apps.
4.3 Unless otherwise agreed, the user has no right to change, further develop or decompile the offers made available for use, unless this is expressly permitted by mandatory law. The removal of copy protection or similar protective mechanisms is only permitted if this protective mechanism impairs or prevents trouble-free use. The user shall bear the burden of proof for the impairment or prevention of trouble-free usability by the protective mechanism.
4.4 It is not possible or permissible to edit the content created by the publishers. The user is also not entitled to reproduce the contents or pass them on to third parties.
4.5 The scope of services of the offers may change during the license period if this is necessary for valid reasons, in particular due to reasonable technical development and does not unreasonably burden the user.
5. Term and termination / deactivation
5.1 Term and termination of the basic license
5.1.1 The contract for the use of the basic functions of FlyGuide shall be concluded for an unlimited period of time. A proper termination[c][d] is possible at any time by the user by uninstalling the FlyGuide APP or leaving the website.
5.2 Term and termination of chargeable offers
5.2.1 Contracts for services offered by FlyGuide and subject to a charge shall be concluded for fixed terms. When placing an order (as defined in Section 4.3.) or during an active term, the User may activate an automatic extension of the term. Thus, the order for a new term contract is automatically concluded when the previous term has ended. This automatic extension can be deactivated by the user at any time. If the renewal is deactivated, the contract ends as soon as the current contract term has been concluded. The General Terms and Conditions of the APP Stores apply.
5.2.2 There is no right of termination deviating from the agreed period of notice. The right of both parties to terminate for good cause remains unaffected. For FlyGuide, an important reason exists in particular if the user or any other user authorised by the user to use the service substantially and repeatedly violates the provisions of these General Terms and Conditions despite a reminder.
5.3 FlyGuide is entitled to deactivate offers if the remuneration owed for the offers is withdrawn due to revocation of the payment order.
6. Prices / payment modalities
6.1 The prices for chargeable offers are shown during the ordering process and can be found in the App descriptions in the AppStores.
6.2 In the case of term contracts for which an extension of the term is activated (as defined in section 7.2.), the indicated price for the respective term will be invoiced. If the user has benefited from a price reduction dependent on certain conditions when placing the order, this will not automatically be granted again in the case of an automatic extension if the conditions are no longer fulfilled at the time of the extension.
6.3 The prices quoted are total prices for the respective term of the contract and in the respective country-specific currency including the applicable statutory turnover tax. The prices at the time of the order shall apply.
6.4 Price quotations for offers are to be understood as remuneration for the provision of the offers and the associated possibility of use within the term specified in the FlyGuideApp. Not included is the remuneration for the data transport by the mobile phone provider or Internet connection provider chosen by the users and the other use of any data beyond proper use as a collision warning system in air traffic.
6.5 The invoice is issued digitally by the respective AppStore.
7 Warranty and liability limitations
7.1 Unless otherwise agreed below, the statutory provisions shall apply.
7.2 FlyGuide does not guarantee uninterrupted availability of offers. FlyGuide assumes no liability for the temporary failure of the offers based on technical or other reasons for which FlyGuide is not responsible (e.g. force majeure, fault of third parties, etc.). Short-term failures due to maintenance and modification measures or a missing data connection are also possible.
7.3 Complaints (warranty claims) can be sent by e-mail to info@FlyGuide.eu.
7.4 FlyGuide shall only be liable, for whatever legal reason, for culpable breach of essential contractual obligations or insofar as FlyGuide has fraudulently concealed a defect or has assumed a guarantee for the quality of the delivery item. Material contractual obligations’ shall mean obligations the performance of which is essential to the proper performance of the contract, the breach of which endangers the achievement of the purpose of the contract and the observance of which the user can regularly rely on. Damages for the violation of essential contractual obligations shall, however, be limited to the foreseeable damage typical for the contract.
7.5 FlyGuide’s liability is otherwise excluded. In particular, strict liability on the part of FlyGuide for defects already existing at the time of conclusion of the contract (cf. § 536a para. 1 1st old BGB) shall be excluded unless FlyGuide’s liability is unlimited in the cases specified in section 9.4.
7.6 The personal liability of the legal representatives, vicarious agents and employees of FlyGuide for damage caused by them as a result of slight negligence shall also be limited to the extent described in sections 9.4 et seq. of this Agreement.
8. Data protection
9. applicable law and jurisdiction
9.1 These General Terms and Conditions and the entire legal relationship between FlyGuide and the User shall be governed exclusively by the laws of the Federal Republic of Germany. However, this choice of law shall only apply to consumers to the extent that the protection granted by mandatory provisions of the law of the country in which the consumer has his habitual residence is not withdrawn. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
9.2 The exclusive place of jurisdiction for all legal disputes arising from or in connection with the contract, including the question of its conclusion, shall be Wetter (Ruhr), provided that the user is a merchant, a legal entity under public law or a special fund under public law. The same place of jurisdiction applies if the user does not have a general place of jurisdiction in Germany, moves his domicile or habitual residence outside Germany after conclusion of the contract or his domicile or habitual residence is not known at the time the action is filed.
10 Unilateral declarations, partial invalidity, written form and amendments
10.1 Should any provision of these GTC be or become invalid or unenforceable, in whole or in part, or lose its validity or enforceability later, this shall not affect the validity of the remaining provisions of these GTC.
10.2 We reserve the right to make changes or additions to the General Terms and Conditions, provided that they do not constitute a disadvantage to the customer contrary to good faith. The user will be informed about changes at least six weeks before they come into effect by e-mail to the user’s e-mail address. If the user does not object to the changes within the period of at least six weeks specified in the notification of change after receipt of the notification of change by e-mail or in writing to the address specified in the notification of change, the change shall become effective for the user. FlyGuide shall expressly draw the user’s attention to the consequences of failure to object in the notification of change.
11. right of revocation
11.1 Consumers within the meaning of § 13 BGB are entitled to a statutory right of revocation.
11.2 Please note that the offers of FlyGuide represent digital content. Your right of revocation shall expire if FlyGuide has begun to execute the contract before the expiry of the revocation period.