General terms and conditions for the Endel-App
General; Scope of Application
The following General Terms and Conditions (hereinafter also referred to as “T&C”) of Endel Sound GmbH, Hohenzollerndamm 61, 14199 Berlin (hereinafter also referred to as “Endel” or “we”) govern the use of the Endel App (hereinafter also referred to as “App”) and the contractual relationship between Endel on the one hand and you (hereinafter also referred to as “User”, “You”) on the other hand.
Note that certain services offered by us may be subject to other terms and conditions. We will point out such further contractual conditions to you separately in each case. In the event of an objection, the provisions of such special contractual conditions shall take precedence over these T&C, unless expressly agreed otherwise. Please read these T&C carefully before using our App. If you do not agree to our T&C, you may not use our App.
The application of general terms and conditions of the users or other contractual partners is excluded. Deviating, conflicting or supplementary terms and conditions of the users or other contractual partners shall only become part of the contract if and to the extent that we have expressly agreed to them.
In addition, the provisions of the Apple App Store (“App Store”), which the User agrees with the provider of the App Store, shall apply.
Endel provides the services according to these T&C only to users who are consumers within the meaning of § 13 BGB (German Civil Code).
Subject matter of the contract and scope of services
Description of the functionality
The App provides personalized, adaptive sound environments to help you relax, concentrate, and sleep. At the start you will be offered a generic sound environment. You then have the option to make various entries to personalize your sound. The App reacts to inputs such as time of day, weather, heart rate and location.
For your personalized sound environment there are currently the following modes:
On the Go mode
Reports and highlights
We will inform you periodically, usually once a week, about your weekly highlights when using the App and show you statistical analyses.
You can grant the following authorizations for personalization:
Location data; the App can be granted access to your location data. The App may have to use the GPS, Wifi, mobile network or sensors of your device.
Health data; the App can be granted access to Apple Health. It uses your heart rate and your movements to personalize your sound environment. Please note that a personalized sound environment requires third-party hardware, such as an Apple Watch to measure your heart rate. The currently supported devices are displayed in the App.
Modification of the offer
Endel reserves the right to change or extend its offer or to discontinue certain services. The services you have already ordered are not affected by this. The current service description in the App at the time of registration or booking of a service is relevant in order to determine the respective services.
Prices and payment
We currently offer the following payment models for using the App:
Downloading and using the App is free for 7 days (trial version). During this time you can try out and use all functions of the App. After 7 days the free trial version ends.
*If you decide to order a twelve-month subscription before the trial version begins, the price will be reduced to [17.99] (“Exclusive Offer”).
You pay us via App Store. The costs for booked services are to be paid in advance and are due immediately after Endel’s acceptance of the order. The costs will only be deducted within the scope of the payment option of the App Store.
Payment for the monthly or annual subscription shall be made periodically in advance in the amount stated in each case. If you have opted for lifelong access, the payment will also be made in advance and you will receive unlimited access to the App’s offers.
Registration, formation of contract
We offer our services to all natural, fully contractually capable persons (generally you must be at least 18 years old).
Contracts are concluded exclusively between you and Endel. The booking of services is only effective through our express acceptance of an order placed by you. In this respect, the relevant offers made by us in the App only represent invitations to place orders which still require separate acceptance by Endel.
The use of the App requires that you agree to these T&C for the entire use.
To use both the free and the paid part of the App we can ask you to create an account, for which you will need to enter your email address and password.
With the help of your account, payment will be made via App Store payment system.
Right of withdrawal
If you are a consumer within the meaning of § 13 BGB (German Civil Code), you are entitled to a statutory right of withdrawal with the following provisions:
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us
Endel Sound GmbH,
Phone: [+49 176 228 77 069], E-Mail: firstname.lastname@example.org
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly
agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
Our relationship with you; obligations of the user
You are responsible for maintaining the hardware and Internet access necessary to use our services.
You may not engage in any unlawful activity and/or violate any Applicable law, including, but not limited to:
Using scraping or similar techniques to compile content, use it for any other purpose, republish it, or otherwise use it without written permission from Endel;
Use techniques or automated or other services designed to misrepresent user activity, such as using bots, botnets, scripts, Apps, plugins, extensions or other automated means to register accounts, play content, send messages, post comments or other activities;
Record, copy, edit, remix or otherwise use the sounds and sound environment created by the App other than listening to the sound environment as expressly set forth in these T&Cs.
Endel’s services may only be accessed using the App provided by Endel.
Intellectual property rights and your rights of use
Our App and all related software, sounds, music, databases, graphics, user interfaces, designs and other content, designations, names and trademarks are protected by copyright, trademark and other intellectual property laws. In relation to you, Endel is the sole owner and beneficiary of all intellectual property rights.
Subject to compliance with these T&C and any other Applicable provisions, Endel grants you the non-exclusive and non-transferable right to use the App and the services offered therein (the “Services”) as permitted by Endel. The right of use expires at the end of the agreed period of use and may be limited or revoked by Endel at any time with respect to the free part of the App. In particular, the user is not entitled to (i) transfer the App or his access to third parties, in particular to rent, lend, reproduce, resell or otherwise distribute or pass on; (ii) use the App or the Services to develop other services; (iii) to activate and use functionalities of the App or the Services for which he has not been granted any rights of use; (iv) to change, translate, reproduce, decompile the source code of the App, to examine its functions, except to the extent expressly permitted by law; (v) to remove, conceal or change legal notices, in particular regarding intellectual property rights.
Confidentiality; Data protection
Endel undertakes to treat all information made available to it in connection with the use of the App as strictly confidential and to pass it on exclusively in accordance with the relevant data protection provisions.
The App is provided with an annual availability of 90.00%. Excluded from the aforementioned availability are (a) times of unavailability due to maintenance of the App; (b) times of unavailability due to circumstances beyond Endel’s control, including force majeure; and (c) times of unavailability if and to the extent caused by the User.
In the event of intent and gross negligence on the part of Endel, a legal representative or vicarious agent of Endel, Endel shall be liable in accordance with the statutory provisions. The same Applies in the event of injury to life, limb and health, in the event of Endel assuming a guarantee, or liability under the Produkthaftungsgesetz (Product Liability Act).
In the case of material damage and financial loss caused by slight negligence on the part of Endel, a legal representative or vicarious agent of Endel, Endel shall only be liable in the event of a breach of a material contractual obligation, but limited in amount to the damage foreseeable and typical for the contract at the time the contract was concluded. Material contractual obligations are those whose fulfilment makes the proper execution of a contract possible in the first place and on whose observance the contracting parties may regularly rely.
Insofar as Endel provides services free of charge, Endel shall be liable in addition to liability in accordance with the above paragraph a. only for damages caused by gross negligence or intent.
The above exclusions and limitations of liability shall also apply with regard to the liability of Endel’s employees, workers, staff, representatives and vicarious agents, in particular for the benefit of shareholders, employees, representatives, organs and their members with regard to their personal liability.
Term and termination
The contract between Endel and the user has a limited duration, unless the option of lifelong access has been chosen. Subscriptions (e.g. monthly or annual subscriptions) are automatically extended after expiry by the original period if they are not cancelled 24 hours prior to expiry at the latest.
The user can cancel the trial version of Endel at any time. The exclusive offer can be cancelled until the trial version ends.
Terminations can be made in the App Store Settings. To manage your subscriptions please go to your Account Settings in the App Store and open a list of your active Subscriptions. .
The right of both parties to extraordinary termination remains unaffected. In particular, we reserve the right to temporarily block use in the event of suspicion of misuse or other breaches of contract and to terminate the contract (as far as possible and reasonable after prior warning) in the event of justified suspicion.
Modification of services and T&C
Changes of the services: We reserve the right to change, restrict and discontinue the services offered by us at any time, unless this is unreasonable for the user. We further reserve the right to adapt or change the services as far as
the changes or adaptations are merely beneficial to users, or
the changes or adaptations are necessary to conform with applicable law, in particular if the applicable law changes, or to comply with a court judgment or an administrative decision, or
if the modifications or adaptations have no material effect on the functions of the services or are of a purely technical or organisational nature.
Changes of the T&C: We further reserve the right to change our T&C at any time, unless this is unreasonable for the user. In case of a change of the T&C we will inform you about the changes at least 4 weeks by a push notification within the App or via e-mail . If you do not object within this 4-week period and open the App again, the amended general terms and conditions shall be deemed accepted with effect for the future and shall become part of the contract at the time they come into effect. We will inform you of the effect of silence and the significance of the 4-week period in the notification containing the amended general terms and conditions.
In addition, we reserve the right to adapt or amend the T&C, insofar as
the changes or adaptations are only beneficial to the registered users, or
the changes or adaptations are necessary to bring them into line with applicable law, in particular when the applicable legal situation changes, or to comply with a court judgment or an administrative decision,
if the modifications or adaptations have no significant effect on the functions of the services or are of a purely technical or organisational nature, or
Endel introduces additional, completely new services or performances that require a description in the T&C, unless this would be disadvantageous for the current user relationship.
This contract is subject exclusively to the law of the Federal Republic of Germany, excluding international private law and the UN Convention on Contracts for the International Sale of Goods. If the user is a consumer, he shall nevertheless be entitled to the protection of the mandatory provisions of the law which would be applicable without this clause pursuant to Art. 6 (2) of Regulation (EC) No. 593/2008.
Should individual provisions of these T&C be or become invalid in whole or in part, the remaining T&C shall remain valid. In the event of such ineffectiveness, the ineffective provision shall be replaced by the statutory provision.
Information on the settlement of disputes: We are not obliged to participate in dispute resolution proceedings before a consumer arbitration board and do not participate in these. The European online dispute resolution platform http://ec.europa.eu/consumers/odr/ provides information on alternative dispute resolution (note: we are currently not participating in this program).
Version: 1.0 ; Date: 6 November 2018