1. Scope
1.1. These Terms of Use apply to the use of ModelMe (hereinafter "Application"), a web-based tool for the creation of virtual models by ModelMe UG (haftungsbeschränkt), Prenzlauer Allee 36 G, 10405 Berlin (hereinafter "Service Provider"). By using the Application, Clients of the Service Provider can modify uploaded photographs of natural persons and thus generate new "models" to use them for their own (marketing) purposes. The Service Provider does not conclude contracts with consumers.
1.2. Unless otherwise agreed in writing, these Terms of Use shall apply in the version valid at the time of registration by the Client. These Terms of Use are always an integral part of the contract of use concluded with the Client. This applies irrespective of the form in which the contract of use was concluded.
1.3. The Terms of Use of the Service Provider apply exclusively. The Service Provider objects to general terms and conditions of the Client that deviate from, contradict or supplement these Terms of Use. The Client's general terms and conditions shall not become part of the contract between the parties unless the Service Provider has expressly agreed to their validity in writing. This consent requirement applies in any case, even if the Service Provider grants the Client access to its Application without reservation, notwithstanding any knowledge of the Client's general terms and conditions.
1.4. The Service Provider reserves the right to change these Terms of Use at any time with effect also within the existing contractual relationship. The Service Provider will notify the Client of such changes at least 30 calendar days before the planned entry into force of the changes (e.g. by e-mail) and obtain the Client's consent. If the Client does not give his consent within 30 days of receipt of the notification or objects to the Application, but nevertheless continues to use the Application after expiry of the deadline, the changes shall be deemed to have been agreed with effect from the expiry of the deadline. In the event of an objection, these Terms of Use shall continue to apply unchanged unless the Service Provider agrees with the Client on the validity of the amended Terms of Use.

2. Contractual Relationship
2.1. The provision of the Application via the Internet does not constitute a legally binding offer to conclude a contract, but an invitation to order (invitatio ad offerendum).
2.2. The contractual relationship between the parties regarding the use of the Application comes into being through the registration of the Client - his offer - and the acceptance of this offer by the Service Provider. Acceptance is effected by the activation of the user account (see also para. 3.3).

3. Registration
3.1. The use of the Application requires the registration of the Client. For this purpose, he/she must state the company name of the legal person or organisation for which he/she wishes to use the Application (if applicable) as well as the other data requested during registration. There is no entitlement to the conclusion of a contract.
3.2. The Client assures that he/she is of age and not just only a consumer in the sense of section 14 BGB (German Civil Code). If the user is acting on behalf of a legal entity, he/she warrants that he/she is authorised to act on behalf of the legal entity and to conclude this user contract. The Client also warrants that he is not a competitor of the Service Provider. Upon request, the Client shall provide the Service Provider with the information required under section 3.2 according to section 3.2. If the Client does not prove that the assurances according to clause 3.2 apply, the Service Provider may, at its discretion, cancel the registration process or delete an account that has been created and exclude the Client from participating in the Application.
3.3. The contact details and other information requested by the Service Provider during the registration process must be provided completely and correctly by the Client. After the Client has provided all the requested data, the Service Provider checks it for completeness and plausibility. If, in the view of the Service Provider, the information is complete and plausible and if there are no other concerns, the Service Provider will activate the requested access and notify the Client of this by e-mail. The e-mail shall be deemed to be acceptance of the Client's offer. The Client must confirm his activation by clicking on the link contained in the e-mail ("activation"). From activation of the account, the Client is entitled to use the Application within the scope of these Terms of Use.
3.4. Each Client receives an individual account and a user ID during registration. During the registration process, the Client sets the user name and password. User name and password can be changed by the Client at any time. The Client is obliged to choose a strong and secure password according to the current state of the art (e.g. according to the current recommendations for the creation of secure passwords of the Federal Office for Information Security (BSI)). If there is a fear that unauthorised third parties have gained or will gain knowledge of the access data of the Client or a person authorised by the Client, the Service Provider must be informed immediately.

4. Rights to use the Application
4.1. The Service Provider (or its licensor) reserves all rights in the Application not expressly granted by these Terms of Use.
4.2. The Service Provider grants the Client a non-exclusive, non-transferable and non-sublicensable right during the term of the Agreement to use the Application for its own internal business purposes in accordance with these Terms of Use.
4.3. The Service Provider is entitled to provide new and updated versions of the Application ("Updates") at its sole discretion. The Service Provider shall always provide the Client with the current version of the Application. Insofar as the Service Provider provides the Client with updates of the Application in individual cases, the rights of use granted under these Terms of Use shall apply in the same way to these updates. Unless otherwise agreed in writing, the respective scope of use results from the selected licence package. The licence packages vary depending on the desired number of images to be generated and the planned use of the Application by the Client. The content and scope of the respective licence package result from the service description of the respective licence package published on the website of the Service Provider ("service description"). The service description valid at the time of the conclusion of the contract shall always apply.
4.4. Unless otherwise agreed in writing, the Client may not distribute, sublicense or otherwise transfer the Application to third parties.

5. Rights of use to the generated images
5.1. As part of using the Application, the Client uploads their own image to the Application. The AI-based Application generates a new image from this ("generated image"), based on parameters and prompts that the Client can determine in the settings area (e.g. red hair, blue eyes, etc.).
5.2. The Service Provider reserves all rights to the generated images not expressly granted by these Terms of Use.
5.3. The Client is aware that the Service Provider uses the uploaded images and generated images for its own purposes, in particular for training the AI-based Application and analytic purposes. The Client grants the Service Provider the non-exclusive, irrevocable right, unlimited in time, content and location, to use the images uploaded by the Client for the training of the AI-based Application and for the creation of images to be generated by other users by means of the Application.
5.4. The Service Provider grants the Client a non-exclusive, non-transferable and non-sublicensable right to the generated images for use for its own business purposes in accordance with these Terms of Use during the term of the User Agreement. The Client may use the generated images for advertising or other business purposes and may also publish or make them publicly available for this purpose on a specific medium without restriction. The provisions of Section 5.4 shall not apply if the User uses the Software only in the "Free VersionTrial". In this case, the user is not entitled to use the generated images, regardless of the intended purpose.

6. Licence fees and terms of payment
6.1. The amount of the licence fees is determined by the agreed licence package.
6.2. The licence fees for the use of the Application are payable monthly in advance. The Service Provider shall invoice the licence fees for the use of the Application for the respective month in advance, unless otherwise agreed in writing between the Parties.

7. Obligations of the Client
7.1. The Client shall (i) keep secret the usage and access authorisations assigned to it for the purposes of the contract and protect them from access by unauthorised third parties; (ii) not disrupt or cause to be disrupted the Application operated by the Service Provider or penetrate the Service Provider's data networks without authorisation or promote such efforts; (iii) ensure that he/she does not infringe any copyright, privacy/confidentiality rights, data protection rights or other rights of third parties when uploading the Images and has all necessary rights to use the Images in the Application; and (iv) not introduce any viruses or other malicious software or instructions into the Application.
7.2. Client will further (i) protect the Application from unauthorised copying, reverse engineering, decompilation, modification, disclosure or distribution and (ii) not remove, delete or alter any copyright, proprietary or similar notices.
7.3. The client guarantees not to use the application for the following purposes:
7.3.1. In any way that violates any applicable national, federal, state, local or international law or regulation;
7.3.2. For the purpose of exploiting, harming or attempting to exploit or harm minors in any way;
7.3.3. To generate or disseminate verifiably false information and/or content with the purpose of harming others;
7.3.4. To generate or disseminate personal identifiable information that can be used to harm an individual;
7.3.5. To defame, disparage or otherwise harass others;
7.3.6. For fully automated decision making that adversely impacts an individual’s legal rights or otherwise creates or modifies a binding, enforceable obligation;
7.3.7. For any use intended to or which has the effect of discriminating against or harming individuals or groups based on online or offline social behavior or known or predicted personal or personality characteristics;
7.3.8. To exploit any of the vulnerabilities of a specific group of persons based on their age, social, physical or mental characteristics, in order to materially distort the behavior of a person pertaining to that group in a manner that causes or is likely to cause that person or another person physical or psychological harm;
7.3.9. For any use intended to or which has the effect of discriminating against individuals or groups based on legally protected characteristics or categories;
7.3.10. To provide medical advice and medical results interpretation;
7.3.11. To generate or disseminate information for the purpose to be used for administration of justice, law enforcement, immigration or asylum processes, such as predicting an individual will commit fraud/crime commitment (e.g. by text profiling, drawing causal relationships between assertions made in documents, indiscriminate and arbitrarily-targeted use).

8. Warranty
8.1. The Application is provided "as is". The Service Provider does not warrant or guarantee that the Application is suitable for the particular use intended by the Client.
8.2. The Client shall not be entitled to any warranty claims (i) if it misuses the Application, or (ii) if it modifies or changes the Application without the prior written consent of the Service Provider, or (iii) if problems or errors are due to the fact that the Application has been used with programs that are not compatible with the Application, unless the Client proves that the defect is attributable to the Application or that such use is permitted by these Terms of Use .
8.3. The Service Provider does not guarantee the quality of the Application.
8.4. The Client must notify the Service Provider immediately of any defects that occur, describing the defect in as much detail as possible.
8.5. After notification of a defect, the Service Provider shall begin to rectify or circumvent the defect within a reasonable period of time. The Service Provider shall also fulfil its obligation to remedy defects by providing the Client with an update to remedy the defect.
8.6. A claim to the use of the functionalities available on the Application exists only within the framework of the technical and operational possibilities at the Service Provider and its vicarious agents. The Service Provider shall endeavour to ensure that the usability of its Application is as uninterrupted as possible. However, temporary restrictions or interruptions may occur due to technical faults (such as power supply interruptions, hardware and software faults, technical problems in the data lines). Furthermore, the Service Provider has the right to interrupt the service provision for a short time in order to be able to carry out maintenance or repair work on the Application or server. Planned and schedulable interruptions of access to the Application shall, if possible, take place outside normal business hours at the registered office of the Service Provider.
8.7. A rectification of defects by the Client himself as well as claims for reimbursement of expenses due to a defect according to § 536a para. 2 BGB are excluded. This restriction does not apply in the case of intent or fraudulent intent.
8.8. If the Client has a claim for damages or reimbursement of futile expenses on the basis of a warranty claim, such claim shall be subject to the limitation of liability in the following clause 9.

9. Limitation of Liability
9.1. The strict liability of the Service Provider pursuant to Section 536a(1)(1) BGB (German Civil Code) is waived in a fault-based liability. This limitation does not apply in the case of intent or fraudulent intent.
9.2. The Service Provider is liable for intent and gross negligence. Furthermore, the Service Provider is liable for the negligent breach of obligations, the fulfilment of which is essential for the proper performance of the contract of use, the breach of which jeopardises the achievement of the purpose of the contract of use and the observance of which the user as Client may regularly rely on. In the case mentioned in the previous sentence, the Service Provider shall only be liable for the foreseeable damage typical for the contract.
9.3. The aforementioned exclusions of liability shall not apply in the event of damage resulting from injury to life, limb or health. Liability under the Produkthaftungsgesetz (German Product Liability Act) remains unaffected.
9.4. The aforementioned limitations of liability also apply to the personal liability of the employees, representatives, organs and vicarious agents of the Service Provider.

10. Third Party Rights & Clients Liability
10.1. The Client warrants that it holds all necessary commercial property rights, exploitation rights, copyrights and ancillary copyrights and/or the necessary rights of use in respect of the images it uploads to the Service Provider's Application and that the uploading of the images to the Application does not infringe any third party rights.
10.2. Insofar as persons are depicted or named on the images, the Client guarantees that they agree to the uploading to the Application and the processing by the Application and that they have been granted the necessary rights.
10.3. The Service Provider is not obliged to check whether the images made available to it by the Client infringe the rights of third parties.
10.4. The Client is obliged to indemnify the Service Provider on first demand against all claims of third parties which are based on a use of the Application by the Client or his vicarious agents in breach of the law or the contract. The Service Provider's claim for indemnification includes the costs incurred by the Service Provider for appropriate legal defence. The Client shall inform the Service Provider without delay if it becomes aware that the assertion of such claims against the Service Provider could be imminent.

11. Confidential Information
11.1. "Confidential Information" means all non-public confidential information of the Service Provider relating to the Service Provider's business, including all information relating to intellectual property, know-how and technical expertise, Application, business, operations, research and development and/or other plans and strategies, source code, object code, algorithm, input and output formats, digitally embodied information (data), trade secrets, products, business relationships, business strategies, business plans, financial planning or personnel matters. It is irrelevant on which carrier medium the confidential information is embodied, whether it is marked as "confidential" or "secret", whether it has a special economic value from the Client's point of view, whether other technical or organisational measures are taken by the Service Provider to protect confidentiality, or whether the information is additionally protected as a business secret within the meaning of the German Business Secrets Act (GeschGehG). Only information which, according to the reasonable assessment of a prudent businessman, is inconsequential and therefore does not require confidentiality shall not be considered confidential information. In cases of doubt, the Client is obliged to agree the status of such information with the Service Provider. The Service Provider's decision on the confidentiality of this information, which is to be made at its reasonable discretion, is then binding.
11.2. The Client shall maintain the confidentiality of the Service Provider's Confidential Information during the term of the Agreement and for a further 3 years after termination of the User Agreement and shall treat such Confidential Information with at least the same standard of care as the Client uses to protect its own Confidential Information, but with no less than a reasonable standard of care. The Client shall only use the Service Provider's Confidential Information to exercise rights and perform obligations under this Agreement. Confidential Information of the Service Provider may only be disclosed to those affiliates, employees or contractors of the Client who need to have access to such information in order to perform this Agreement and only on condition that the Client imposes on such affiliates, employees or contractors the same obligations as those imposed on the Client in this Clause 11 entered into. Client agrees not to derive or attempt to derive, directly or indirectly, any source code or other trade secrets of Service Provider, or otherwise reverse engineer or decompile all or any part of Service Provider's technology, except and only to the extent permitted by applicable law.
11.3. The obligation of confidentiality shall not apply to the extent that (i) the relevant Confidential Information is in the public domain at the time it is made available by Service Provider for any reason other than a breach of this Agreement; (ii) the relevant Confidential Information becomes available to Client by means of a source other than Service Provider, provided that Client has no reason to believe that such source is itself prevented from disclosing the Confidential Information by a legal or contractual obligation; (iii) the Service Provider has authorised the Client by prior written consent to disclose certain Confidential Information to a third party; (iv) the Confidential Information was already in the Client's lawful possession prior to its provision by the Service Provider; or (v) the Client is required to disclose Confidential Information pursuant to the order or direction of a court of competent jurisdiction, a competent authority or a mandatory provision of stock exchange law.
Apart from that, section 5 GeschGehG (German Business Secret Act) emains unaffected by this agreement.
11.4. Insofar as the Client in a case of para. 11.3 (v) of this Agreement, Client shall notify Service Provider in writing of the required disclosure promptly upon receipt of the order or direction and shall make no further disclosure and shall assist Service Provider in protecting, or obtaining judicial protection for, the Confidential Information to the maximum extent possible.
11.5. All Confidential Information of the Service Provider shall be and remain the sole property of the Service Provider. Upon termination of the contractual relationship or upon request, the Client shall return to the Service Provider or delete all Confidential Information (including all copies thereof) in the Client's possession. Applicable statutory retention obligations shall only prevent this if they are mandatory. A right of retention of the Client (for whatever legal reason) is excluded.
11.6. The Service Provider is entitled to name the Client as a "reference Client" vis-à-vis third parties. The Service Provider is entitled to include the name and logo of the Client on its own Internet pages or on presentation materials for the purpose of reference. The Client is entitled to revoke this consent at any time.

12. Data Protection
12.1. In order to provide the Application in accordance with these Terms of Use, the Service Provider processes the Client's personal data contained in the Application under its own responsibility pursuant to Art. 4 No. 7 GDPR. The Service Provider shall inform the Client about the data processing in the context of the use of the Application via its privacy policy pursuant to Art. 13 GDPR.
12.2. The Client guarantees that - insofar as personal data of the persons depicted are processed by the uploading of the images by the Client - the Client has obtained the required consent of the person depicted (Art. 6(1)(a) GDPR) or another legal basis under data protection law is met for the use of the image.

13. Temporary suspension
The Service Provider may suspend the use of the Application if the Client's use of the Application (i) poses a security risk to the Application, (ii) the Client breaches any terms of the User Agreement or these Terms of Use, or (iii) the Client breaches its payment obligations.

14. Term and Termination
14.1. Unless otherwise agreed in writing, the basic term for all licence packages shall be 1 month (basic term) and shall be automatically extended by 1 further month in each case (each "extension period"; "basic term" and "extension period" together also "contract term") unless one party terminates the licence agreement in writing with a notice period of 1 months to the end of the basic term or the respective extension period. Unless otherwise agreed in writing, the contract of use shall commence upon registration of the respective account.
14.2. The right to terminate the contract for non-granting of use pursuant to Section 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) shall be excluded unless any repair or replacement delivery is deemed to have failed.

15. Final Provisions
15.1. The Client may assign its rights and obligations under this Agreement only with the prior written consent of the Service Provider.
15.2. The Service Provider is entitled at any time to transfer the contractual relationship in its entirety by way of contract takeover to a company newly (co-)established by the shareholders of the Service Provider for the purpose of further development and distribution of the Application and the training courses. The Client agrees to such a transfer of the contract already upon conclusion of this contract. However, in the event of the transfer of the contract, the Client shall be entitled to terminate the contractual relationship extraordinarily with two weeks' notice to the end of the month.
15.3. These Terms of Use shall be governed exclusively by the laws of the Federal Republic of Germany, excluding its conflict of laws provisions, and shall be construed and enforced in accordance with German law. The Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The exclusive place of jurisdiction for all disputes arising from or in connection with the User Agreement or these Terms of Use is Berlin, Germany.
15.4. Amendments or supplements to the contract of use or these Terms of Use must be made in writing. This also applies to the amendment or cancellation of this written form clause.
15.5. The User Agreement and these Terms of Use conclusively and completely set forth the agreements of the parties in connection with the use of the Application and supersede all prior written, oral and implied agreements, understandings or representations between the parties.
15.6. If any provision of the User Agreement or these Terms of Use is or becomes invalid, unenforceable or unenforceable in whole or in part, the validity and enforceability of the remaining provisions shall not be affected thereby. The parties undertake to replace any such provision with a provision that legally corresponds as closely as possible to what the parties would have agreed according to the meaning and purpose of the respective contract or these Terms of Use if they had recognised the invalidity of the provision.

Status: May 2023, ModelMe UG (haftungsbeschränkt)