End Use License Agreement („EULA“) of Vivira Health Lab GmbH
1.1. Vivira Health Lab GmbH (“Vivira”) develops and operates the Vivira website www.vivira.com (“Website”) and Vivira Health
Application (“App”). Vivira offers programs for rehabilitation and prevention (“Programs”) via the App.
1.2. Use of both, Website and App, occurs exclusively on the base of this end user license agreement (EULA).
1.3. User in terms of this EULA is every natural person that uses Website, App or Programs offered therein.
1.4. By using Website and App, the user accepts the application of this EULA. Conflicting terms or terms exceeding this EULA will not be part of this agreement.
2. User’s health condition / no medical or therapeutic diagnosis, recommendation or treatment / own risk
2.1. Prerequisite for the use of Programs is a general stable health condition. User assures that he/she fulfils this requirement.
2.2. Vivira and Programs do not offer any medical or therapeutic diagnosis, recommendation or treatment.
2.3 Users that need or have a medical or therapeutic diagnosis, recommendation or treatment, need to talk to their doctor or therapist prior to using Programs.
2.4. Use of the Programs takes place at your own risk. In case the user feels pain or discomfort during or after use of Programs, he/she should stop the program and – at his/her own discretion – meet a doctor if necessary.
2.5. Vivira is entitled to make the use of Programs subject to a suitable proof of identity or capability of use of the user.
3.1. App and web-based use of Programs are licensed – not sold – to the user. The License for the use of App and web-based Programs is subject to the previous acceptance of this end user license agreement.
3.2. Vivira grants to the user a non- transferable license for use of Programs to the extent permitted in local usage rules. The conditions apply to all contents, materials or services that can be accessed from the licensed application or via the website, or that can be purchased within the licensed application or the website, as well as for all upgrades provided by Vivira that replace or complete the initial licensed application or web-based program provided that the concerned upgrade is not linked to an amended end user license agreement.
4. Content and Services
4.1. Vivira Programs support rehabilitation and prevention through physical exercises, informative content, self- assessment of physical functions and tracking of progress.
4.2 Vivira provides its services within the scope of this EULA in accordance with the current state of technology.
4.3. Vivira continually refines its software and services. New functions may be introduced and existing functions may be replaced or deleted without replacement.
4.4. The user can choose from a range of products that differ regarding to both, scope of performance and service. Vivira is obliged to provide service elements defined in the license packets as described in Annex 1. Vivira reserves the right to complement or amend the scope of services at any time.
4.5. Vivira may temporarily block services in whole or in part, in case of a negligent breach of legal provisions or of this EULA by the customer or other users or third parties attributable to him/her.
5. Usage Fees and Payments
5.1. Usage Fees are to be paid in advance. In case of recurrent fees, invoices are issued by either Vivira or the provider of the distribution channel (eg. iOS App Store or Google Play Store) in accordance with the invoicing and service periods agreed upon.
5.2. The current version of the end user fee table can be found on the Website and in the App respectively. Vivira reserves the right to adapt fees and/or pay scale levels to changed conditions with future effect at any time.
5.3. Usage fees are not refundable, expect required by law. User undertakes to specify all information required for the payment correctly. Vivira may de- activate or block all services for the customer in case of outstanding payments.
6. Right of Revocation
6.1. In case you, as a user, wish to cancel your order, you can revoke it without giving reasons within 14 days from the receipt of invoice. This does not apply to orders placed via third-party distribution channels (eg. iOS App Store or Google Play Store), neither does it apply to the use of vouchers in the form of activation codes, after the code has been redeemed.
In order to revoke your order, you need to inform us about your decision in writing via email. Any declaration of intent that unambiguously expresses your revocation in this form is sufficient.
6.2. In order to meet the revocation period, you need to dispatch your notice concerning the cancellation of the order before the expiry of the 14-days period. In case you make use of your right of revocation, we will refund your payment within 14 days after receipt of your notice of revocation. For the reimbursement, we will use the same payment device you used for the transaction, no fees will be charged therefore.
6.3. An order for digital content cannot be revoked in case the delivery started with your express approval and your information of the fact that you will lose hereby your right of revocation.
7. Rights and Obligations of the User / Assignment of Rights
7.1. The User is entitled to private use of Programs exclusively. The right of use includes download of the App as well as saving of Programs within the App for the period of use.
7.2. The user is entitled to use of Website, App and Programs only when he agrees to this terms and conditions and to Vivira’s Data Protection Policy (www.vivira.com/privacy).
7.3. The user is solely responsible for security and privacy of the login data entered by him/her during registration process.
7.4. The user solely guarantees the completeness and correctness of all options chosen and data provided during the installation and onboarding of the program.
7.5. In case of intentional provision of wrong or false date, Vivira reserves the right to exclude the user from use of Programs and to claim compensation for any damages caused thereby.
7.6. User has to provide by himself all hard- and software equipment required for the use of Website, App, and Programs, as well as to provide the necessary network and data volume.
8. Scope of use of Programs / Copyright Protection
8.1. Vivira program content (eg. videos, audio, images, text, software) are protected by copyright. Its use is subject to the relevant applicable copyright laws.
8.2. Within the relation between User and service provider, the service provider is entitled without limitation to all rights to program content, in particular to copyrighted rights of use and to exploitation rights.
8.3. Saving or archiving any program content provided through App and Website outside App and Website, is not permitted.
8.4. Transmitting or offering any content to third parties is not permitted.
8.5. Any commercial reproduction of copyrighted content or commercial distribution to third parties is not permitted and will be pursued with legal measurements by Vivira.
8.6. It is prohibited to the user to delete copyright notices, trademarks and other legal reservations from downloaded content.
9. Liability of the Provider / No Warranty
9.1. The physical health condition of each user is different. The health of each person depends on many different factors. Likewise, the success of Programs depends on numerous factors on which Vivira has no influence. Consequently, no warranty can be given regarding the success of a Program.
9.2. Vivira assumes no liability or guarantee for the intended operating modes or availability of Program content.
9.3. Any liability of Vivira is excluded with regards to fitting of operating mode or availability of with medical needs of the user, in particular in case the user provided incorrect or incomplete information.
9.4. Vivira assumes no liability for health damages caused to the user by incorrect performance of program content and/or by known or undiagnosed pre-existing illnesses.
9.5. Vivira is not liable for damages that arise out of non-availability or technical malfunction of the services. Possible reductions of the paid usage fees remain unaffected.
9.6. Vivira excludes any liability for negligent breach of duties, except for damages resulting from the destruction of life, personal injury or health damages or guaranties.
9.7. The indicated limitations of liability also apply to breach of duties of Vivira subcontractors and its legal representatives.
9.8. Any claims against Vivira for damages or compensation for futile expenses are subject to a limitation period of 2 years after the user obtained knowledge of the damage. Regardless of such knowledge, claims for damage are subject to a limitation period of 3 years after the damaging event took place. This does not apply to liability arising from intent or gross negligent or to personal injuries.
10. Right for de-activation, deletion
The right to deactivation of a Program and to deletion of a user account for cause remains unaffected by the previous provisions. Vivira will immediately notify the concerned user of deactivation of the Program or the deletion of his or her user account. If necessary, Vivira will reimburse an already provided consideration for the period after the deactivation or deletion respectively.
11. Amendments to these terms and conditions
11.1. Vivira may amend, adept, or update these terms and conditions anytime with effect for the future due to legislative changes, change of case- law, change of economic circumstances, subsequently detected loopholes, new functions provided by Vivira or any other objective reason.
11.2. Vivira will inform the user of the amendments per email to the email address provided by the user no later than two weeks prior to coming into effect of the modified terms and conditions. Vivira will also inform the user of the possibility and period for an objection as well as of the consequences of refraining from an objection.
11.3. Provided that the user does not object to the amendments within two weeks, the amendments shall be deemed as agreed. The period starts either with the day the amended terms and conditions come into effect, which had been announced priory per email, or with the day on which the user gains knowledge of the amendments for the first time, if this day lies before the date on which the terms and conditions come into effect.
11.4. In case of a timely objection, Vivira dissolves the user relationship with effect as for the date on which the terms and conditions come into effect. In this case, user fees will be refunded pro rata for the early termination of the contract.
12. Final Provisions
12.1. The invalidity or unenforceability of any provision of this terms and conditions shall not affect the remaining provisions. Any invalid provision shall be replaced by a provision that, from its economic effect, approximates the invalid provision as closely as possible.
12.2. This Agreement shall be exclusively governed by and construed in accordance with the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
12.3. The courts of Berlin, Germany, shall have exclusive jurisdiction insofar as you are a business owner, legal entity under public law or special fund under public law, or you do not have a general place of jurisdiction in the Federal Republic of Germany or another member state of the EU, or you transferred your residence abroad after validity of these terms and conditions, or your residence or habitual residence is not known at the time legal proceedings are started, or you have no general jurisdiction in Germany.
Annex 1 – End User License Packages
1.1. Vivira Free vs Vivira Premium License Packages Vivira Free enables the use to test Programs with limited functionality for free. Limitations regard e.g. number of available difficulty level for exercises, number of possible functional self- assessments, and number of possible progress reports. Vivira Premium enables the user use the Program’s full functionality with different end user license packages. The Packages include subscriptions with licenses for a user period of 3 months (44,99 Euro), 6 months (79,99 Euro) or 12 months (99,99 Euro).
1.2. Initiation of the order of Vivira Premium, range of services for use of activation codes, terms and conditions of providers of used distribution channels. The order of Vivira Premium is usually purchased by selection of a Vivira Premium license packages in the Vivira App using a third-party distribution channel (eg. iOS App Store or Google Play Store) and by confirming the purchase of a subscription by the end user. The order can also be purchased when the end user enters a voucher in the form of an activation code in order to activate Vivira Premium. Range of services for users that have purchased the order using a voucher in form of an activation code may differ from the range of services of other Premium users. For the use of the App and from the time the order has been purchased, terms and conditions of the provider of the used distribution channel additionally apply, in particularly with regards to the Vivira 7-day free trial during which termination is possible at no cost and with immediate effect. Likewise, terms and conditions of the provider of the used distribution channel apply with regards to periods for termination and payment terms after the 7-day free trial of Vivira Premium.