Terms - Up!Graphix

TERMS OF SERVICE Up!Graphix

As of January 2023

These Terms of Service were drawn up in German language and may have been translated into other languages at the company's own discretion. The German text is binding and applies in the event of discrepancies between the German text and another translation.

If you do NOT agree to all these Terms of Service, please do NOT use the "The Goodeys App", the websites of Up!Graphix and "The Goodeys" or the service.

Up!Graphix is authorized to amend the Terms of Service at any time, with the amended Terms of Service effective as soon as they are posted on this website. Please check the most current Terms of Service to ensure that you are aware of all the terms and conditions regulating your use of the "The Goodeys App", the websites of Up!Graphix and "The Goodeys" or the service.

The Terms of Service and Condition of Use set forth the terms between Up!Graphix, Owner: Volker Drews (hereinafter „Up!Graphix“) and “Users” or “User” of any services or features of the applications and websites provided by Up!Graphix.

By continuing to use or accessing the service, user agrees that these terms of use, including the license terms (see “License Terms”), have been read and understood, and that a binding agreement has been concluded between Up!Graphix and the user, and that the collection and use of user data takes place in accordance with our data protection guideline, regardless of whether the user is a registered user or not. These terms of use apply to all visitors, users and other persons who access the "The Goodeys App", the websites of Up!Graphix and "The Goodeys" or the service.

1. Definitions

1.1. Content

The subject of the Terms of Service is digital “content such as emojis, avatars, stickers, animated stickers, texts, gifs or video material which may be used or available via Services operated by Up!Graphix under the brand name “The Goodeys” and its related services (collectively, “Service” or “Services”).

1.2. User

"User" or "Users" means any individual(s) or company that accesses to the Up!Graphix and The Goodeys websites, that downloads and/or accesses the application “The Goodeys” and/or services or applies and / or creates an Up!Graphix- or The Goodeys Account.

1.3. Resources

"Resources" means (but are not limited to) all artwork, avatars, emojis, characters, graphics, images, photographs, logos, illustrations, icons, data, content, text, copyrighted or licensed materials, associated websites, programs, software and/or all other material

which is made available via the "The Goodeys App, the websites of www.upgraphix.com or www.thegoodeys.com" (hereinafter collectively referred to as "service") or provided and / or owned by Up!Graphix.

2. General

All texts, graphics, (graphical) user interfaces, photographs, brands, logos, sounds, music tracks, illustrations and computer codes (summarized below under the term "content"), including design, structure, selection, coordination, expression, "overall picture "and the arrangement of such content, which are contained on www.upgraphix.com, www.thegoodeys.com and the" The Goodeys App ", are owned by Up!Graphix, are controlled by Up!Graphix or are licensed from or to Up!Graphix and are subject to commercial form, copyright, patent and trademark rights as well as other laws for the protection of intellectual property and laws against unfair competition.

If not expressly permitted by these Terms of Service, no part of the websites and apps and none of their content may be copied, reproduced, republished, uploaded, posted, publicly displayed, coded, translated, transmitted or in any other way without the prior written consent of Up!Graphix and manner (including "mirroring") on other computers, servers, websites or other media for the purpose of publication, distribution or for other business purposes.

You may not use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the site or any content, or in any way reproduce or circumvent the navigational structure or presentation of the site or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the site. Up!Graphix reserves the right to bar any such activity.

3. Acceptance of the Terms of Service

3.1. User may only use the service in accordance with the regulation of the Terms of Service. Users may only use the service if they agree to the Terms of Service.

3.2. If users use the service on behalf of or for the purposes of a company, this company is also deemed to agree to the Terms of Service and thereby concludes a valid and irrevocable agreement between Up!Graphix and the business company.

3.3. Scope of the general terms and conditions

Up!Graphix provides all services exclusively on the basis of the corresponding service description of the Terms of Service and these terms and conditions.

These general terms and conditions also apply to future contracts concluded by the parties.

The contractual partner or user accepts these terms and conditions upon conclusion of the contract. Any other general terms and conditions will not be accepted by Up!Graphix and are generally excluded. This also applies if Up!Graphix unconditionally provides the service(s) in the knowledge of the conflicting terms of contract. Up!Graphix does not save the contract terms individually for each contractor. The applicable terms and conditions, including all associated provisions, can be viewed at www.upgraphix.com and www.thegoodeys.com.

3.4. Subject to alterations

By accessing and continuing to use the service, user accepts changes to these Terms of Service and agrees to them.

Up!Graphix reserves the right to change the terms and conditions and with that the content of this Up!Graphix contract with the consent of the user, and to adapt the terms and conditions appropriately to technical and business developments, provided that the change takes into account the interests of Up!Graphix is reasonable for the user. The changes take effect with the consent of the user. The consent shall be deemed granted if the user does not object to the change within four weeks after receipt of the notification of amendment. The user is entitled to terminate the Up!Graphix contract without giving notice of termination at the time the change takes effect in writing (eg by letter or e-mail) in the event of changes that are not exclusively in his favor.

4. Service

4.1. Providers

The services offered via www.upgraphix.com, www.thegoodeys.com and the "The Goodeys App" are provided by Up!Graphix.

4.2. Object of the contract

Up!Graphix creates and sells emojis under the name "The Goodeys®" (hereinafter referred to as "Emojis"), which it makes available to the contractual partner (hereinafter referred to as "user"), and in particular allows the user to use them within the scope of the contract rights acquired and / or to use them as part of "The Goodeys App".

Up! Graphix also offers various services, e.g. the creation of emojis on customer request, graphic works and designs.

4.3. Information

The services offered via www.upgraphix.com, www.thegoodeys.com and the "The Goodeys App" are constantly subject to insignificant and reasonable adjustments and changes (designs, colors, control bar etc.). Up!Graphix reserves the right to inform the user of one or more services from time to time about technical and general changes and innovations by sending e-mails to the e-mail address provided by the user.

4.4. Authority to adjust

Up!Graphix reserves the right to expand or change the services and content offered in a way that is reasonable for the user, so that the user is not objectively inferior. In principle, a deterioration is not assumed if the measure is appropriate or necessary from a technical or legal point of view or if it helps to prevent misuse or if the terms and conditions of third parties change without fault on the part of Up!Graphix in such a way that it is no longer possible to maintain certain partial offers.

4.5. Contractual partner

The services and emojis from Up!Graphix are offered both to companies within the meaning of §14 of the German Civil Code (BGB) who use the services and services offered in the context of their independent professional or commercial activity, as well as to private individuals insofar as they conclude an Up!Graphix contract and / or agree to the general terms and conditions.

4.6. Right to refuse

Up!Graphix may change the service without notice, discontinue the provision of the service (temporary or permanent) or discontinue the functions of the service (including resources), or create usage restrictions for the service. Up!Graphix can permanently or temporarily terminate or block the user's access to the service for any reason without prior notice and liability, even if Up!Graphix has determined that the user has violated a provision of these terms of use or for no reason. After termination for any reason or for no reason, User remains bound by these Terms of Service.

Up!Graphix reserves the right to refuse a contract without giving reasons.

5. Account

5.1. When users provide information about the user to Up!Graphix when using the service, such information shall be true, accurate, complete, and kept up-to-date. In some cases, users may be required to provide their name, address, phone numbers, e-mail address, information necessary to use certain features of the Service.

5.2. User who has consented to the use of the service can withdraw from the use of the service.

5.3. Up!Graphix may terminate the agreement entered into between the user and Up!Graphix regarding the service without giving prior notice to the user, if Up!Graphix believes is or is likely to be one of the following:

5.3.1. Any person that has harmed, or there is a possibility that such person may harm, the reputation of Up!Graphix or “The Goodeys”;

5.3.2. Any person that has violated, or there is the possibility of a violation of, the Terms of Service, Separate Terms of Service, and any applicable laws and regulations;

5.3.3. Any person that has not used the service for a certain period of time, or has been determined by Up!Graphix, under reasonable criterion, to make no use of the service in the future;

5.3.4. In addition to all (5.3.1.) through (5.3.3.) above, any person that Up!Graphix, under reasonable criterion, determines as inappropriate to execute the service, including, but not limited to, mutual trust being lost between the user and Up!Graphix.

5.4. Up!Graphix may also terminate this agreement between Up!Graphix and the user for any reason, or no reason and at any time.

6. Licence Agreements, Copyright

The user will respect all industrial property rights, including copyrights of Up!Graphix. In particular, the user may not change or remove any copyright notices from Up!Graphix. The user will not change the content of the emojis or parts thereof. The user is also not entitled to rent, lease or sublicense the emojis.

The parties will inform themselves as soon as possible if third parties assert claims for infringement.

If the contractual use is impaired by the rights of third parties, Up!Graphix shall have the right to change or exchange the emojis or components thereof at its own expense.

The Terms of Service apply to (but are not limited to) all artwork, avatars, emojis, characters, graphics, images, photographs, logos, illustrations, icons, data, content, text, copyrighted or licensed materials, associated websites, programs, software and/or all other material (collectively, the “Resources”). The resources accessed and used by the user or otherwise made available through the service are owned, controlled and/or licensed by or to Up!Graphix and are protected by copyright and intellectual property rights. „The Goodeys“ and the resources are the sole and legal property of Up!Graphix.

6.1. Copyright notices

The user agrees to provide the following copyright notice in any of his media using the emojis of Up!Graphix:

6.2. Preservation of copyrights

It is not allowed to unauthorizedly copy, archive, download, upload, distribute, syndicate, broadcast, perform, reproduce, make available, or otherwise use The Goodeys or any part thereof except it is permitted by Up!Graphix.The copyright holder "Up!Graphix" will take appropriate legal action against the perpetrator of the breach in the event of a breach of the copyrights set forth in these Trademark Policies.

Please refer to our Brand Policy at www.upgraphix.com or www.thegoodeys.com.

The brand guidelines are part of these Terms of Service.

7. Use of content

7.1. User can send the content using the “The Goodeys App”. Up!Graphix grants user a non-transferable, non-sublicensable, revocable and non-exclusive, limited license to use the application for the sole purpose of using the service. Up!Graphix can terminate this license at any time without giving a reason. With the exception of the rights expressly granted to user herein, all rights to or in relation to the service are the property of Up!Graphix. Up!Graphix reserves all rights that are not expressly granted here and are specified in this agreement.

7.2. Up!Graphix may partially or completely restrict, suspend or terminate the distribution of the content without the prior consent of the user if Up!Graphix determines that the distribution of the content is inappropriate. Up!Graphix may stop distributing the content for another reason or for no reason.

7.3. Up!Graphix may, at its own discretion, for example at the time of an Apple, Android or Google and / or service update, or for any other reason, change the content or create derived content to optimize the distribution of the content within the service.

8. License conditions and Granting of license

8.1. Up!Graphix grants users a personal, worldwide, license-free, non-transferable, non-exclusive, revocable and non-sublicensable license to access and use its services. This license is for the sole purpose of enabling users to use the Up!Graphix services in a manner that allows these conditions.

8.2. Up!Graphix has the exclusive right to create new packages or select certain content for inclusion in other similar content without limitation offered for sale by downloading or similar exploitation, as well as the right to sublicense all of these rights to others or to transmit in other ways.

8.3. User also grants Up!Graphix the right to sublicense or otherwise transfer the above rights to all Up!Graphix partners.

9. Usage Limitations

9.1. User agrees that although the user is authorized to use the service, including (but not limited to) the sharing of avatars, emojis or characters, user do not have permission to otherwise violate copyrights and licensing rights of Up!Graphix by making derivative works outside of "The Goodeys App" or by selling, distributing, transmitting, publishing, reproducing or exploiting the resources, the service and any other material. Users understand that the content contained in the "The Goodeys App" and the services offered cannot in any way be used for commercial or non-private purposes and are for personal, non-commercial purposes only.

9.2. User understands that access to and use of the "The Goodeys App" and the service may require to create an account (using his email and setting a password). He understands that his password protects his account and personal information. He accepts that it is his responsibility to keep his password safe and secure. User understands that he is responsible for the use of his username and password. In the event, the user suspects that his username and password has in any way been comprised, stolen, lost or accessed without their permission, the user must change his password immediately and/or submit an email or message through the “contact us” page. User agrees to contact Up!Graphix immediately of any unauthorised use of his account or any breach of security. User understands that he may be liable for losses incurred by Up!Graphix or any other user because another person used his username and password or account as a result of his failure to keep his account details safe. User understands that he is not allowed to use any other person’s username, password or account without obtaining their express permission and consent first. Up!Graphix will not be legally responsible or liable for any loss or damage that arises from users failure to conduct himself in accordance with these terms.

9.3. All content is copyrighted and protected under German and international copyright law. Up!Graphix grants the user a limited personal, non-commercial, non-assignable, non-exclusive, revocable, and non-sublicensable license to access, use and share the content contained in “The Goodeys App” within the previously listed usage rights.

9.4. Except for the limited license granted to user, Up!Graphix retains and reserves all rights, titles, and interest in and to all Up!Graphix -owned or licensed intellectual property utilised in and in connection with “The Goodeys”, including, without limitation, content, registered and unregistered trademarks, service marks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how, and other confidential and proprietary information of Up!Graphix, and all other proprietary or intellectual property rights of any kind in any country.

9.5. The use of the service, the resources and the content of Up!Graphix and “The Goodeys” shall NOT be taken to grant either directly or indirectly, or by implication, estoppel, or otherwise, any license under the copyrights, trademarks or trademark applications of Up!Graphix except for the normal, non-exclusive, limited license to use the service, “The Goodeys App” and the resources as expressly set out herein. All other rights expressly reserved.

9.6. The restricted license offered by Up! Graphix is effectively terminated if the user violates one of the conditions set out in this agreement.

User accepts that if he disagrees with any part of the service and / or these terms, his only and exclusive remedy is to stop using “The Goodeys App” and the resources and service, including its features.

10. Property rights of Up!Graphix

10.1. The content of the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, emojis, avatars, custom assets, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music and all intellectual property rights related thereto, are the exclusive property of Up!Graphix.

10.2. Except as explicitly provided herein, nothing in these Terms of Services shall be deemed to create a license in or under any such intellectual property rights, and user agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any content belonging to Up!Graphix. User may not copy, modify, distribute, sell, or lease any part of the Up!Graphix-services, nor may user reverse engineer or attempt to extract the source code of that software, unless laws prohibit these restrictions or user has the written Up!Graphix-permission to do so.

11. Relationship

11.1. Up!Graphix and users will remain independent of each other. The relationship between Up!Graphix- and users are strictly independent and nothing in these Terms of Service will in any way constitute or be construed as evidence of intent to establish any association, partnership, joint venture, agency employment, company or any other relationship.

11.2. Each party will be responsible for covering their respective costs and expenses in performing their duties under these Terms of Service, unless expressly provided otherwise herein. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of these Terms of Service and the remainder of these Terms of Service will continue in full force and effect.

12. Pricing and Membership

12.1. Up!Graphix may offer certain portions of his services at no charge and others for a one-time fee or on a subscription basis or under any other lawful pricing structure.

12.2. User understands and agrees that he may be required to pay for certain locked items and locked features if he logs in with a different Apple ID or Android ID. User understands that his purchase is associated with his Apple ID or Android ID and thus will not be able to access locked content if he is signed with a different Apple ID or Android ID which was not used to make that original in-app purchase.

13. License agreements for service packages

Up!Graphix grants the user rights to use the contractual emojis for a license fee to the extent specified in the contract. These rights are not transferable and are only granted for the term of the contract. After termination of the contract, there is no longer any right to use it.

13.1. Conclusion of a contract for license contracts for service packages

By signing the order form / contract, the user enters into a binding contract with Up!Graphix. On the day of delivery of the emojis, cancellation of the contract or withdrawal of the emojis is no longer possible. Payment is made in advance within 10 working days of the conclusion of the contract.

The e-mail address with which the user has registered at Up!Graphix is the contact address. Up!Graphix is entitled to send all messages to the user at this email address. The user undertakes to check them regularly and to ensure that the email address remains available for Up!Graphix. If the user's email address changes, the new email address Up!Graphix must be notified.

14. Up!Graphix's obligation to perform

14.1. Scope of services

The subject of the contract and the scope of services result from the Up!Graphix contract and the respective service descriptions.

Up!Graphix is entitled to freely expand services and make improvements, and Up!Graphix is also entitled to change or redefine services, if this is necessary for technical reasons and does not result in any additional costs for the user.

As far as Up!Graphix provides free services (courtesy services), this does not give the user any entitlement to future services. These services can be stopped at any time. The user will be informed in advance of the termination of the services within a reasonable period. Claims for reimbursement or compensation do not arise from this.

Up!Graphix endeavors to complete the services as soon as possible. Up!Graphix is not responsible for any delays that may arise due to a lack of customer cooperation, incomplete or incorrect documents, data or traditional technical specifications.

15. Contract termination for license contracts for service packages

15.1. Contract term

The Up!Graphix contract is concluded for a term of one year and is automatically extended for another year if the notice period expires.

15.2. Notice period for license contracts for service packages

The Up!Graphix contract can be terminated by either party with 3 months' notice. Any termination must be in writing to be effective, e-mail is sufficient. This notice period ensures that there is sufficient time for the user to remove the emojis from all of his products (app, homepage, software, brochures, etc.) until the end of the contract.

15.3. Termination for an important reason

The right of both parties to terminate the contract without notice for good cause remains unaffected.

An important reason on the part of Up!Graphix is when misuse of the emojis appears to be certain based on objective evidence, at least in the case of pornographic, commercially erotic or extremist content.

An important reason also exists if the emojis are used outside of the contractually regulated use or if the user culpably violates the contractually granted rights.

15.4. Consequences of termination in the case of license contracts for service packages

After the end of the contract term, all rights of use and / or reproduction rights expire. The emojis may no longer be used by the user and must be removed from all their media within 3 months.

Furthermore, after the contract term has expired, the user is no longer entitled to make the emojis available to third parties for a fee and / or to offer them for download.

Up!Graphix is entitled to request the deletion of the emojis by the user from all of his media after the termination of the contract.

Used fees for services that are payable in advance will not be refunded if the user terminates.

16. Payment terms for license agreements for service packages

The remuneration agreements made in the Up!Graphix contract or a written additional agreement to the Up!Graphix contract apply and the payment terms specified therein.

16.1. Compensation obligation

The user is obliged to pay agreed fees on time, including the respective statutory sales tax. In the event of a change in the statutory VAT rate, Up!Graphix is entitled to adjust the fees for services and goods that are delivered or rendered in the context of permanent obligations.

16.2. Due date

The user must pay the license fees as a whole as an annual amount at the beginning of the new contract term.

The billing of the aforementioned profit sharing by users to Up!Graphix takes place via email within 21 days after the end of the quarter for all positive profits actually received in the respective quarter. Payment to Up!Graphix will be made within 10 working days after settlement. All payments are made in euros plus VAT.

16.3. Objections to the invoice

The user is obliged to check the created invoices. Objections to the amount of the bills and fees must be raised against Up!Graphix 14 days after receipt of the invoice by the user. If the user fails to object within these 14 days, the invoice is deemed to be accepted. Up!Graphix will inform the user in the invoice of the consequences of a failure to object.

16.4. Payment method

Remuneration is paid by transfer to the Up!Graphix account. The total amount is due as an annual amount at the beginning of the new contract term.

Payment of the license fee must be made to Up!Graphix's account within 10 working days of the conclusion of the contract and / or the start of the new contract term. The emojis will only be delivered after receipt of payment in the Up!Graphix account.

The user receives a separate invoice for the services. All invoices are sent via email. If the user wishes the invoice to be sent by post, Up!Graphix is entitled to request EUR 2.50 per invoice for this.

16.5. Reminder

If the user is in arrears with his payment obligations, Up!Graphix is entitled to charge a reminder fee of EUR 2.50 for each reminder. Up!Graphix reserves the right to assert further claims due to late payment.

16.6. Price adjustment

Up!Graphix is entitled to change the fees a maximum of once a year to compensate for increased costs. A price increase requires the consent of the user. Up!Graphix will inform the user about the changes four weeks before they take effect. The user has a special right of termination from the time of notification of the price increase. If the user does not cancel within four weeks after receipt of the change notification, the consent is deemed granted and the changes take effect four weeks after receipt of the change notification. Up!Graphix undertakes to notify the user with the change notification of the consequences of a failure to terminate the contract.

16.7. Compensation

The user can only offset claims from Up!Graphix with undisputed or legally established claims.

16.8. Right of retention

The exercise of a right of retention that is not based on a right from this contractual relationship is not permitted.

16.9. Delay of the user

If the user has not paid the license fees for a contract or an extension of the contract despite two warnings, Up!Graphix is entitled to pass on the outstanding claim 10 working days after delivery of the second warning to a company entrusted with the collection.

Up!Graphix is also entitled to pass on other outstanding claims to the company entrusted with the collection.

16.10. Discounts

Any special or discount promotions from Up!Graphix cannot be combined. After conclusion of the contract, the user is not entitled to the following discounts or special or discount campaigns.

16.11. Warranty for license contracts for service packages

(1) For any defects, Up!Graphix guarantees, at its option, by rectification or new manufacture.

(2) Warranty claims by the user are excluded, however, if the user has changed the performance of Up!Graphix himself or had it changed by third parties.

(3) Up!Graphix guarantees that the performance results it provides under the Up!Graphix contract are free of copyright, trademark, patent, name and trademark rights as well as other industrial property rights and personal rights of third parties or any usage rights exist and that, according to their knowledge, no other rights exist that restrict or exclude use in accordance with this agreement.

17. Billing for license contracts for service packages

Up!Graphix is entitled to check the documents on which user billing is based at its own expense. This billing may be carried out for each billing during normal business hours and in the business premises of users by an auditor approved according to German commercial law. If the checking of a shortfall in favor of Up!Graphix results in more than 2%, the user will reimburse Up!Graphix the difference with the statutory interest rate together with the reasonable costs of the bookkeeping.

18. Terms of use for license agreements for service packages

18.1. Emojis

The user will not use the emojis in such a way that they contravene the rights of third parties or applicable law through their provision, public access or use. The user may not take any other action within the use of the emojis that violates legal provisions or that violates the rights of others or otherwise misuses the emojis.

The user must also ensure that the use of the emojis does not impair Up!Graphix or other providers or other third parties.

Up!Graphix has no obligation to check the use of the emojis for any legal violations.

The emojis may only be used within the scope of rights specified in the contract for the package ordered. It is not permitted to change the content of the emojis, to remove components or to use them individually.

18.2 Disclosure to third parties

The user is not entitled to give the emojis provided by Up!Graphix to third parties or to offer them for download, unless he has obtained the rights via the "Package Addition: Monetization". Once the user has obtained the rights, he can offer the emojis to his users for a committed fee.

18.3 Non-transferability

The Up!Graphix contract concluded with Up!Graphix cannot be transferred by the user to third parties.

18.4 Illegal use of emojis

If the emojis are used illegally beyond the scope of rights regulated in the contract, Up!Graphix reserves the right to request the additional costs for the corresponding package with the corresponding scope of services.

18.5 Notification obligation

The user is obliged to report defects to Up!Graphix immediately.

18.6 Correctness of the data / notification of change

The user assures Up!Graphix that the data provided by him (e.g. contact email address, name, address, bank details) is correct and complete. He undertakes to inform Up!Graphix immediately of any changes to the data provided and to confirm the correctness upon request by Up!Graphix.

18.7 Blocking option

As soon as Up!Graphix has reasonable grounds to suspect that the user is committing a breach of duty, in particular using the emojis to distribute content, violating the legal provisions and / or in the event of other serious violations of the duties incumbent on the user, in particular in the event of a violation of third party rights, Up!Graphix is entitled to request that the emojis be deleted and / or removed immediately.

19. Responsibilities of Users

19.1. User shall use the service on his own responsibility and at his expense and remain responsible for any acts and results thereof associated with his use of the service, including, but not limited to, corresponding to any third party claims, demands, and/or lawsuits or the like at his own expense and responsibility. Up!Graphix’s review, approval or selection of the contents will not relieve the user of any of responsibilities hereunder.

19.2. Up!Graphix may take measures that it considers necessary and appropriate, if Up!Graphix believes that a user is using the service in a way which violates the Terms of Service. However, Up!Graphix shall not be responsible for correcting or preventing such violation.

19.3. In the case where Up!Graphix has suffered any loss or damage or has been charged an expense (including but not limited to lawyer’s fees) directly or indirectly (including but not limited to cases where Up!Graphix has been sued for damages by a third party) due to a user’s use of the service, the user shall immediately compensate Up!Graphix in accordance with Up!Graphix’s request.

20. Up!Graphix’s Obligations

20.1. Up!Graphix will take reasonable measures to ensure that the service is available to the user but because the service is provided by means of computer and telecommunications systems, Up!Graphix makes no warranties that the service will be working at all times, without any interruptions or will be error-free and Up!Graphix will not be liable for interruptions of the service or downtime.

20.2. Any use of the „The Goodeys App" or the service / resources / websites is at the user’s own risk and they are provided ‘as is’ and ‘as available’. No warranties are made of any kind. Up!Graphix disclaims all warranties, express or implied, including any warranties of merchantability, fitness for any purpose or non-infringement of intellectual property. Up!Graphix makes no representations, guarantees or warrantees as to the quality, accuracy, suitability, truth or completeness of any portion of the „The Goodeys App", the Up!Graphix- und The Goodeys-websites or the service or any material or information made available through the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service.

20.3. Up!Graphix reserves the right, at its sole discretion, to change, revise, replace, remove or make any other modification to the service.

20.4. Up!Graphix does not guarantee that in-app purchases made by a user or purchases available for download will remain available for any period of time.

20.5. User understands that Up!Graphix accepts no responsibility for any data loss or corruption.

20.6. Up!Graphix makes no guarantee that the service will operate in any certain way or on any particular platform, software, browser, or hardware.

20.7. The user is solely responsible for any damage to computer hardware or software or loss of data that occurs as a result of or during the use of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service regardless of fault, including damage or loss due to viruses, Trojans or other malware.

21. User Restrictions

21.1. User understands that he must not provide his account password to any other person.

21.2. User understands that he must not access the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service through any other person’s username and password.

21.3. Users will not intentionally interfere with or cause damage to the operation of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service by any means.

21.4. User will not attempt to gain unauthorised access to the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service, or any part of it, other accounts, computer systems or networks connected to the „The Goodeys App", “The Goodeys” or Up!Graphix or the service or any part of it, through hacking, password mining or any other means or interfere with the proper working of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service, or any activities conducted on the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service.

21.5. User will not make derivative works to any content or the identifiers on content without first obtaining the permission of Up!Graphix. Users will not alter headers or otherwise remove watermarks outside of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service to disguise the origin of the content.

21.6. User will not infringe any intellectual property or other proprietary rights of any party.

12.7. User will not send any content with the intellectual property of Up!Graphix or post, email, transmit or otherwise make available any “The Goodeys” or Up!Graphix content that they do not have the right to make available under any law or under contractual or fiduciary relationships.

21.8. User will not send any content with the intellectual property of Up!Graphix or post, email, transmit or otherwise make available any “The Goodeys” or Up!Graphix content that contains constitutes unsolicited or unauthorised advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes” or any other form of solicitation.

21.9. User will not send any content with the intellectual property of Up!Graphix or post, email, transmit or otherwise make available any “The Goodeys” or Up!Graphix content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

21.10. User will not send any content with the intellectual property of Up!Graphix or post, email, transmit or otherwise make available any “The Goodeys” or Up!Graphix content that is unlawful, harmful, threatening, abusive, harassing, tortious, excessive violent, defamatory, vulgar, obscene, pornographic, libelous, invasive, of another’s privacy, hateful, or racially, ethically or otherwise objectionable.

21.11. User will not send any content with the intellectual property of Up!Graphix or post, email, transmit or otherwise make available any “The Goodeys” or Up!Graphix content that in the sole judgment of Up!Graphix, is objectionable or which restricts or inhibits any other person from using or enjoying the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service, or which may expose Up!Graphix or its users to any harm or liability of any type.

21.12. User will not violate any applicable local, state, national or international law, or any regulations having the force of law.

21.13. User will not impersonate any person or entity, including (but not limited to) a Up!Graphix employee, owner, or misrepresent the affiliation to Up!Graphix with a person or entity or collect or keep personal information about other users in connection with the prohibited conduct.

21.14. User will not harvest or collect email addresses or other contact information of other users from the service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications.

21.15. User will not obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided through the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service.

21.16. Users will not publish, copy, modify, adapt, translate, create a derivative work of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service, decompile, dissemble all or a portion of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service, or reverse engineer, reverse assemble or otherwise attempt to discover any source code, lease, rent, sell, assign, sublicense, or otherwise transfer any right in the software of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service.

21.17. Users will not encourage or permit others to use the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service and the resources to create content for any purpose that is unlawful or prohibited by these terms.

22. Updates and Notifications

22.1. User acknowledges and agrees that some devices may be configured to automatically receive updates. If he enables such an auto-update feature on his device, updates to the „The Goodeys App" may be automatically downloaded and installed on his device. Updates may be used to deliver features and services (including software, content, and data) and may be required for user to fully enjoy all features of the „The Goodeys App" or for continued access to and use of the „The Goodeys App" or the Service.

22.2. User acknowledges and agrees that he may also receive notifications. User may turn off notifications by going to his device settings. This may however impact his experience and ability to enjoy all features of the „The Goodeys App".

23. Third-Party Links

The „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Up!Graphix. Up!Graphix does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If user accesses a third party website from the service, he does so at his own risk, and he understands that these Terms of Service and the Privacy Policy do not apply to his use of such sites. He expressly relieves Up!Graphix from any and all liability arising from his use of any third-party website, service, or content. Additionally, his dealings with or participation in promotions of advertisers found on the service, including payment and delivery of goods, and any other terms (such as warranties) are solely between user and such advertisers. User agrees that Up!Graphix shall not be responsible for any loss or damage of any sort relating to users dealings with such advertisers.

24. Termination and Refunds

24.1. User understands that his account may be terminated at any time and without prior notice. He understands that Up!Graphix may terminate a user’s access to and use of the „The Goodeys App" or the service, at their sole discretion, at any time and without prior notice.

24.2. Where Up!Graphix determines that a user has breached any of the terms set out in this agreement, Up!Graphix may without any prior notice terminate or suspend users access to the „The Goodeys App", the service and/or their account.

24.3. User understands that when his account or access to and use of the service is terminated, discontinued, withdrawn or cancelled, all provisions of these terms will continue to be valid and enforceable in accordance with their terms.

24.4. User may cancel his account or access to the „The Goodeys App" or the service at any time by deleting the „The Goodeys App". Upon any termination, discontinuation or cancellation of the service or his account, all provisions of these terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.

25. No guarantee

The service is provided "as is" and "as available". Use of the service is at your own risk. To the extent permitted by applicable law, the service is provided without any express or implied guarantee. Without restricting the foregoing, Up!Graphix does not guarantee that the content is accurate, reliable and correct; that the service meets the requirements of the user; that the service is available at any particular time or location; is continuous or secure; that bugs are fixed; or that the service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the "The Goodeys App" and the Up!Graphix and The Goodeys websites and the service is downloaded at your own risk.

User is solely responsible for damage to his computer system or mobile device or loss of data that results from such a download or use of the service.

Up!Graphix assumes no guarantees or responsibility for products or services that are advertised or offered by third parties and does not carry out any control or monitoring in any way and for any transactions between users and third-party providers for products and services and does not assume any guarantees for this.

26. Limitation of Liability

26.1. Up!Graphix does not explicitly or implicitly guarantee that the service (including the program) is free from de facto or de jure defects (including but not limited to stability, reliability, accuracy, integrity, effectiveness, suitability for certain) purposes, security-related errors, malfunctions, errors or violations). Up!Graphix is not obliged to provide the service to users without such defects.

26.2. Up!Graphix is not liable for any damage caused to users in connection with the use of the "The Goodeys App" and the websites of Up!Graphix and The Goodeys and the service, including but not limited to measures taken by Up!Graphix in accordance with the Terms of use has taken.

26.3. Insofar as this is permissible under applicable law and regardless of a neglect of an essential purpose, a limited remedy or a limitation of liability, Up!Graphix is in no case liable for special, indirect, consequential or other damage of the same kind (however caused and independent of the theory of Liability, whether arising from a contract or injustice (including and without limitation of negligence) or otherwise), including without limitation for loss of profits, loss of revenue, loss of use, loss of data, interruption of business, procurement costs for replacement goods or services or other remuneration or other similar commercial or economic losses of any kind, even if the possibility has been pointed out, Up!Graphix is still not liable for damage caused by force majeure or the actions of third parties.

26.4. To the extent permitted by applicable law, Up!Graphix assumes no liability or responsibility for (I) errors, mistakes or inaccuracies in the content. (II) personal injury or property violation of any kind arising from access to, or use of, the "The Goodeys App" and the Up!Graphix and The Goodeys websites; (III) any unauthorized access to or use of Up!Graphix's secure servers / and / or any personal information stored therein; (IV) any interruption or cessation of transmission to or from the Service; (V) any bugs, viruses, Trojan horses or similar that can be transmitted to the Up!Graphix service by third parties; (VI) any errors or omissions in content, or for any loss or damage arising from the use of content, by email, transmitted or otherwise made available through the Service; and / or the defamatory, hurtful or illegal behavior of third parties. The above limitation of liability applies to the full extent permitted by law.

26.5. Up!Graphix and affiliated companies are not liable for any loss, injury, claim, liability or damage of any kind that results from user errors or omissions.

26.6. The User must indemnify and keep indemnified Up!Graphix and its officers, employees and agents (“those indemnified”), from and against all actions, proceedings, claims, demands, costs, losses, damages and expenses (including reasonable legal costs and expenses), which may be brought against, made upon, or suffered or incurred by any of those indemnified arising directly or indirectly as a result of or in connection with any infringement or alleged infringement of any intellectual property rights (including Moral Rights) by the user or any of its officers, employees, agents and/or sub-contractors in connection with the provision, supply or use of the content provided to Up!Graphix.

In no event shall Up!Graphix be liable for the unavailability or inoperability of the application, Apple, Android or Google technical related issues, server issues, technical malfunctions, computer errors, corruption or loss of information or other injury, damage or disruption of any kind beyond the reasonable control of Up!Graphix. In no event will Up!Graphix be liable for any indirect, incidental or consequential, personal injury or unfortunate death, special or exemplary damage, including but not limited to damage for lost profits, debts, costs and expenses or prevented business relationships, even if such damages are forseeable and whether or not Up!Graphix has been advised of these options or not.

26.7. The user is obliged to indemnify Up!Graphix against all claims by third parties that arise as a result of a violation of the rights and obligations listed in these Terms of Service or due to other actions for which the user is responsible in connection with the services provided by Up!Graphix.

The user must also support Up!Graphix in the defense against legal claims of third parties, insofar as these claims are asserted due to a breach of duty by the user. The user is also obliged to reimburse the costs incurred by the legal proceedings if the user is responsible for the reason for the legal proceedings.

26.8. No liability without fault

Up!Graphix is not liable for consequences arising from facts that are beyond the control of Up!Graphix. Up!Graphix is not liable to recourse against the user or third parties for direct or indirect damage and costs of all kinds, which are due to force majeure, interventions by government and administrative authorities, strikes, riots, war, natural disasters, improper use of the emojis or similar Influences are attributable to which Up!Graphix or its vicarious agents have no direct influence. This also applies in the case of bindingly agreed deadlines and dates.

Liability according to the Product Liability Act and other non-mandatory legal provisions remains unaffected.

No-fault liability, including that for initial defects within the meaning of § 536a BGB, is excluded.

Any further liability is excluded.

If the damage is due to both fault on the part of Up!Graphix and fault of the user, the user must have his fault credited.

27. Disclaimer of liability

The service and information provided in connection with this are made available to users "as is". As expressly stated herein, Up!Graphix expressly disclaims any implied or statutory warranties, including, but not limited to, the implied warranties of merchantability or the

suitability for a specific purpose. Up!Graphix does not guarantee that the service meets the specific requirements of the user or that the operation of the service is completely error-free.

28. Inclusion

The above exclusions and limitations of liability apply to the same extent to the vicarious agents of Up!Graphix and Up!Graphix's employees, legal representatives and organs. In addition, Up!Graphix accepts no liability for grossly negligent behavior by simple vicarious agents.

29. Confidentiality

User and Up!Graphix will keep confidential information they have received from the other party strictly confidential. They will not disclose such confidential information to any third party without the prior written consent of the other party (approval by email is sufficient) and they will not use it for any purpose other than for profit. However, the recipient of confidential information may pass this on to his affiliated companies, service providers and vicarious agents, insofar as this is necessary to fulfill the obligations or to exercise rights under this contract, provided that such affiliated companies, service providers and vicarious agents relate to a confidentiality obligation subject to the disclosed confidential information, the content of which is no less strict than this confidentiality obligation. Confidential information can be disclosed at any time within the framework of the exercise of claims and rights or the fulfillment of legal obligations to the relevant authorities (authorities, courts, etc.) and persons committed to professional secrecy (tax consultants, lawyers, etc.).

By using the service, user declares his consent to the acquisition of certain protected and confidential information (collectively “confidential information”). He agrees to keep confidential information confidential and not to disclose confidential information to third parties, except to representatives, lawyers, accountants, accountants and consultants who need to know this in good faith and agree to keep this information confidential. This provision includes all materials that are exchanged in the course of an arbitration, except for the scope required to enforce an arbitration award.

30. Notification and contact

30.1. When Up!Graphix notifies or contacts the user of the service, Up!Graphix may use a method that Up!Graphix deems appropriate, including posting on the Up!Graphix-operated website or direct email to users.

30.2. To contact Up!Graphix about the service, user uses the "Contact Us" request form available on the website or on the "Contact Us" page through Up!Graphix's "The Goodeys App" or by using Up!Graphix contacted directly or otherwise by email.

31. Data protection

Up!Graphix processes the data transmitted when ordering only for the execution of the concluded contract. The user agrees that his personal contract data (inventory data) can be registered by Up!Graphix and stored electronically.

Up!Graphix is also entitled to pass on data to a bank and the company entrusted with the collection.

In addition to the information on data protection in these Terms of Service, the data protection declaration applies to users, see at https://www.upgraphix.com/en/privacy.html.

31.1. Order processing

The agreement on order processing according to Art 28 EU-DSGVO is concluded between the user (client) and Up!Graphix (contractor). With acceptance of these Terms of Service, this agreement between the client and the contractor is concluded.

31.2. Object of the order

(1) The contractor processes personal data on behalf of the client. The client has selected the contractor as a service provider within the framework of the due diligence requirements of Art. 24 EU General Data Protection Regulation (EU-DSGVO). According to the will of the parties, this contract contains the written order for order processing i.S.d. Art. 28 EU-DSGVO and regulates the rights and obligations of the parties in connection with data processing.

(2) If the term "data processing" or "processing" (of data) is used in this contract, this generally means the use of personal data. The use of personal data includes, in particular, the collection, storage, transmission, blocking, deletion, anonymization, pseudonymization, encryption or other use of data.

31.3. Scope, type and purpose of the collection, processing and use of data

(1) The order from the client to the contractor comprises the services of the contractor resulting from the main contract.

(2) The processing and use of the data takes place exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area. Any relocation to a third country requires the prior consent of the client and may only take place if the special requirements of Art. 45 EU-DSGVO are met.

(3) The client will confirm verbal instructions immediately in writing or by email (in text form). The contractor will not use the data for any other purpose and in particular is not authorized to pass it on to third parties. Copies and duplicates are not made without the knowledge of the client. This does not include backup copies, insofar as they are required to ensure proper data processing, as well as data that are necessary with a view to complying with statutory retention requirements.

31.4. Data secret

1) The contractor is obliged to maintain data secrecy when processing data for the client. The contractor undertakes to observe the same secret protection rules as are incumbent on the client.

(2) The contractor assures that he is aware of the applicable data protection regulations and that he is familiar with their application.

(3) The contractor also guarantees that he will familiarize the employees involved in the execution of the work with the relevant data protection provisions before starting work. The contractor monitors compliance with the relevant data protection regulations.

31.5. Obligations of the contractor

(1) The contractor processes personal data exclusively within the framework of the agreement made. The purpose, type and scope of data processing are based exclusively on the instructions of the client. The processor only has to correct, delete, restrict or block the data that is processed in the order, following instructions from the person responsible. If a data subject should contact the processor directly to correct or delete their data, the processor will immediately forward this request to the person responsible.

(2) The contractor will support the client in carrying out checks by the client and will contribute to the complete and rapid processing of the check.

(3) The contractor confirms that he has an operational data protection officer within the meaning of Art. 38 EU-DSGVO has been ordered and will be named to the client in writing or in text form (e.g. email) on request to privacy@upgraphix.com.

(4) The contractor assures the contractual processing of all agreed measures in the area of processing personal data in accordance with the contract

(5) The contractor is obliged to design his company and his business processes in such a way that the data that he processes on behalf of the client are backed up to the extent necessary and protected against unauthorized access by third parties. The contractor will coordinate changes in the organization of data processing on order that are significant for the security of the data with the client in advance.

(6) The contractor is obliged to inform the client immediately of any violation of data protection regulations or of the agreement made and / or the instructions given by the client, which occurred in the course of the processing of data by him or other persons involved in the processing.

(7) The contractor agrees that the client is entitled to control compliance with the data protection regulations and the contractual agreements to the extent necessary himself or by third parties, in particular by obtaining information and viewing the stored data and the Data processing programs and other controls on site. The contractor guarantees that, if necessary, he will take part in these checks.

31.6. Subcontracting

(1) Subcontracting relationships are generally permitted.

(2) The contractor must assure that he has carefully selected the subcontractor, taking particular account of the suitability of the technical and organizational measures he has taken. Should the processor process further processors, he will inform the person responsible.

(3) The contractor has to check in advance and regularly during the contract period that the subcontractor has taken the technical and organizational measures required to protect personal data in accordance with Art. 32 EU-DSGVO.

(4) The contractor is obliged to have the subcontractor confirm that he is an operational data protection officer within the meaning of Art. 38 EU-DSGVO has ordered.

(5) The contractor must ensure that the regulations and additional instructions of the client agreed in this contract also apply to the subcontractor. The contractor must regularly check compliance with these obligations.

31.7. Others

(1) Written agreements or a documented electronic format are generally required for ancillary agreements.

(2) If the property or the personal data of the customer to be processed by the contractor are endangered by measures of third parties (such as attachment or seizure), by an insolvency or settlement procedure or by other events, the contractor must inform the customer immediately.

(3) The defense of the right of retention i.S.v. § 273 BGB is excluded with regard to the data processed for the client and the associated data carriers

(4) Should individual parts of this agreement be ineffective, this does not affect the validity of the rest of the agreement.

32. Acceptance of contract

Up!Graphix reserves the right to transfer the rights and obligations from this Up!Graphix contract to third parties (contract transfer). The content of the contractual relationship remains unaffected. If Up!Graphix transfers the Up!Graphix contract to another person, it will inform the user by email. In the event that Up!Graphix makes use of their transfer right, the user already has the right to terminate this Up!Graphix contract without notice.

33. General

33.1. These terms constitute the entire agreement between Up!Graphix and the user pertaining to the subject matter in this agreement and supersedes all prior and contemporaneous agreements, representations, and understandings between the parties.

33.2. User must not assign or transfer these Terms of Service or any of their rights, interests or obligations under these terms by operation of law or otherwise, without Up!Graphix’s written consent. Any attempt by the user to transfer or assign these terms, without Up!Graphix’s consent, will have no force and shall be deemed void with no effect, wholly invalid. Up!Graphix may freely assign or transfer these terms without restriction.

33.3. User agrees and consents for Up!Graphix to transfer by novation all the rights, liabilities, duties and obligations under this Terms of Service and in respect of each transaction without his prior written consent to another party.

33.4. Up!Graphix’s failure to enforce any right or provision of these terms will not be considered a waiver of those rights.

33.5. Up!Graphix disclaims any or all liability for interruption or suspension of the availability of the „The Goodeys App“, the service, the resources, websites and/or in-app purchases made by the user.

33.6. Up!Graphix expressively disclaims any and all liability associated with the purchase, download and/or use of content made available through the „The Goodeys App“ or the service which, for example, infringes any third party intellectual property rights or copyrights.

33.7. Under no circumstances will Up!Graphix be liable in any way for any content or materials of any third parties, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content.

33.8. User agrees to indemnify Up!Graphix in respect of any claims, actions, damages, losses, liabilities, costs, charges, expenses or payments of any kind or nature whatsoever made against Up!Graphix by any third party due to or arising out of or in connection with your use of the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service.

33.9. User agrees to indemnify Up!Graphix of liability for any damages whatsoever (including, without limitation, direct or indirect damages, consequential damages, damages for loss of profits, business interruption, loss of information) arising out of the use of or inability to use the „The Goodeys App", the Up!Graphix- and The Goodeys-websites or the service even if Up!Graphix has been advised of such damages.

34. Obligations and duties of the user

The user must notify Up!Graphix of any change in his personal name and / or his company name, his place of residence or business, or his billing address, his email address, any change in his person or legal form.

35. Place of jurisdiction, applicable law

User agrees that all matters relating to his access to or use of the "The Goodeys App", the website or the service, including all disputes, are subject to the laws of the Federal Republic of Germany and are interpreted in accordance with them.

The exclusive place of jurisdiction for all disputes arising from or in connection with the Up!Graphix contract is the competent court at the respective headquarters of Up!Graphix.

Up!Graphix is also entitled to sue the user at his general place of jurisdiction. For the contracts concluded by Up!Graphix on the basis of these general Terms of Service and for any claims resulting therefrom of any kind, the law of the Federal Republic of Germany applies exclusively, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

36. Final provisions

Deviations from these terms and conditions must be in writing, this also applies to a deviation from this written form requirement. Verbal agreements are not valid. To maintain the written form, it is sufficient to send notifications by email.

The place of performance is Bad Schwartau, Germany.

37. Severability clause

Should individual provisions of these Terms of Service be or become ineffective, the effectiveness of the remaining provisions remains unaffected. All clauses that cannot be applied due to a legal error or due to invalidity, should, as far as possible, be replaced by clauses that have the legal validity that most closely corresponds to the original economic intent and that the parties are aware of Ineffectiveness would have been agreed upon conclusion of the contract. Contract texts are valid in German and English.