Contractual Terms and Conditions for the Provision and Use of Software (GTC)

Status 01/2017

1. scope

1.1 For all services rendered by 3D Interaction Technologies GmbH (hereinafter referred to as “3D:IT”) for other companies or legal entities under public law (hereinafter referred to as “Customer”) – with regard to the creation, provision and maintenance of individual software and standard programs, as well as training and consulting – these Terms and Conditions of Contract shall apply exclusively, unless otherwise agreed in writing.

In addition, the applicable legal provisions of the Federal Republic of Germany shall apply.

1.2 Conflicting as well as supplementary terms and conditions of the Customer shall not become part of the contract – except in case of 3D:IT’s prior written consent – even if 3D:IT fulfills a contract or renders a service without expressly objecting to such terms and conditions.

1.3 These contractual terms and conditions shall also apply to the pre-contractual obligation. In particular with regard to the conclusion of the contract, limitation of liability and confidentiality obligations.

2. definition

2.1 “Documentation” means documentation pertaining to the Software.

2.2 “Third Party Software” means standard software products including related documentation provided to the Customer.

2.3 “IP Rights” (or “Intellectual Property Rights”) shall mean, without limitation, all patents and other rights in inventions, copyrights, trademarks, designs and similar intellectual property rights.

2.4 “Modification” shall mean all reworkings of Software (e.g. changes to the source code) made by Customer and/or 3D:IT or a third party for Customer.

2.5 “Care” means care and maintenance of Software provided.

2.6 “Software” means all programs and related documentation developed by or for 3D:IT, including their releases, updates, patches, corrections, and all copies of such programs.

2.7 “Affiliated Companies” shall mean companies which are affiliated with another company within the meaning of Section 15 of the German Stock Corporation Act (AktG).

2.8 “Confidential Information” shall mean any information that 3D:IT or Customer wish to protect against disclosure to third parties or the content of which is to be considered confidential.

3. conclusion of contract

3.1 Offers made by 3D:IT shall be subject to confirmation and non-binding unless they have been expressly designated as a binding offer. 3D:IT can accept orders from the customer within 6 weeks. In case of doubt, the content of the offer or the order confirmation of 3D:IT shall be decisive for the content of the contract. This applies if the customer has placed an order and has not immediately objected to the content of the order confirmation.

3.2 Contractual guarantees and promises, if they go beyond the scope of these Terms and Conditions, shall require the express written confirmation by 3D:IT.

4. information provided in advance of the contract

4.1 Software and documents provided in advance of the contract shall be the intellectual property of 3D:IT. Duplication or distribution is prohibited without the prior written consent of 3D:IT.

4.2 If software is provided to the Customer for test purposes, the right to use such software shall expire after a reasonable or specifically agreed test phase. If no specific period has been agreed for the test phase, a period of one month shall apply in principle.

4.3 Especially if no contract is concluded, software and documents provided shall be returned or proof of their deletion shall be provided to 3D:IT.

4.4 The obligations to maintain confidentiality shall apply to both contracting parties.

5. delivery and performance

5.1 Dates and times of performance this of basic orientation. They shall be considered as fixed dates if they have been expressly assured in writing by 3D:IT.

5.2 Delivery shall always be made at 3D:IT’s option either by 3D:IT sending the software on data carriers to the agreed delivery address or by 3D:IT making the software available (for download, if applicable).

5.3 In case of physical shipment, the time at which 3D:IT hands over the data carrier to the carrier shall be decisive for compliance with delivery dates and the passing of risk. If the software is made available (for download, if applicable), the point in time from which the customer has received notification that the software is available or ready for download shall apply.

6. remuneration and terms of payment

6.1 The purchase price or remuneration shall be determined in accordance with the contract documents or the order confirmation. Unless otherwise agreed, 30% of the purchase price or remuneration shall be due upon placement of the order.

3D:IT reserves the right to invoice the customer for services already rendered within the scope of an order (partial invoices).

At the latest upon completion of the complete delivery or upon completion of the project, all outstanding portions of the purchase price or remuneration shall become due.

6.2 Additional services requested by the Customer shall be invoiced at the valid standard hourly rate of 3D:IT or alternatively, in case of individual contractual arrangements, according to the agreed individual hourly rate based on actual expenditure.

The standard rate for programming services of 3D:IT is 110.00 EUR per hour plus VAT.

6.3 3D:IT shall invoice travel times and costs to the Customer as a lump sum. For assignments within the Federal Republic of Germany, EUR 180.00 plus statutory value-added tax will be charged per employee per day. This lump sum includes travel costs, expenses, travel time and accommodation costs.

6.4 Invoices of 3D:IT shall be due immediately and payable without deduction within 14 days after the date of invoice.

6.5 3D:IT may demand down payments or complete advance payment if there has been no business relationship with the Customer yet, if the delivery is to be made abroad or if there are doubts about the Customer’s punctual payment.

7. retention of title, set-off

7.1 3D:IT shall retain the title and the rights to the performance under the Contract until
to settle their claims in full.

In the event of resale or transfer to third parties, the customer already now assigns to 3D:IT all claims arising from the resale or transfer until complete settlement of its liability towards 3D:IT.

7.2 The Customer shall only be entitled to set off claims which are undisputed by 3D:IT, which are due or which have become res judicata.

8. regulations for software transfer

8.1 3D:IT shall owe Software only in the form of the machine-readable object code. In principle, the customer has no claim to the surrender or release of the source code.

8.2 A customer shall only have a right to transfer the source code to 3D:IT if this has been contractually agreed in advance and 3D:IT receives an appropriate fee for this, as is customary in the industry.

8.3 Under no circumstances shall the Customer have a right of reference or an obligation to subsequently deliver the source code of subsequent software developments and adaptations by 3D:IT.

9. modification of the software

9.1 Unless otherwise agreed, the customer shall not be entitled to make any modifications to the software of 3D:IT or to have such modifications made by third parties.

9.2 If the Customer has been granted permission to modify the Software and the Customer makes modifications to the Software, 3D:IT shall not assume any warranty for the further error-free operation of the Software. 3D:IT is not responsible for any malfunction that may occur with modifications. Any liability for the operation of modified software is excluded on the part of 3D:IT.

10. software transfer to third parties

10.1 The Customer may only transfer 3D:IT Software to a third party uniformly and under complete and final abandonment of its own use.

10.2 The temporary or partial transfer of the software use to third parties is prohibited.

11. licensing in the event of commercial use on a substantial scale

11.1 In case of mass media use or duplication of visualization results of the software of 3D:IT in more than 10,000 cases per year, reasonable license fees shall be paid to 3D:IT.

11.2 In case of mass media use or duplication of visualizations of the 3D:IT Software, an annual license fee in the amount of 1.3% of the economic benefit of the marketing (sales revenue) shall be due.

11.3 The Customer shall be responsible for displaying the mass media use or duplication of the visualization results. The Customer shall notify 3D:IT of the economic benefit without being requested to do so no later than one month after the end of the year and shall pay the license fee to 3D:IT within the first two months after the end of the year.

11.4 As a matter of principle, all screenshots shall be exempt from license fees if, when using or reproducing these screenshots, reference is made to the 3D:IT software product used in the sense of a source reference.

12 Liability for material defects and damages

12.1 3D:IT warrants the agreed quality of the software provided.

In case of proven material defects of the software, 3D:IT shall provide the customer with a new software version free of defects by way of supplementary performance or remedy the existing defect.

12.2 The remedy of the defect may alternatively also consist in 3D:IT showing the Customer reasonable possibilities how to avoid negative effects of the defect in the use of the Software.

12.3 In all cases of contractual and non-contractual liability 3D:IT shall pay compensation for damages
only to the extent determined below:

3D:IT shall be liable in case of intent in the amount of the incurred proven damage.

In the event of gross negligence and in the absence of a quality for which 3D:IT has assumed a guarantee, 3D:IT shall be liable in the amount of the proven damage incurred, however, not exceeding 1.5 times the value of the order concerned. Any further claim of 3D:IT shall be excluded.

12.4 A limitation period of one year shall apply to all claims against 3D:IT for damages or reimbursement of futile expenses in case of contractual and non-contractual liability.

The provisions on the statute of limitations shall not apply to liability in the event of intent or gross negligence or in the event of personal injury or under the Product Liability Act.

13. confidentiality, data protection

13.1 The contractual partners undertake to treat as confidential all Confidential Information of the respective other contractual partner obtained prior to and in the course of the performance of the contract and to use it only in the course of the performance of the contract.

13.2 With respect to the information provided in confidence, each party shall act with great care to preserve the confidentiality of the information. Each party shall grant access to the other party’s confidential information only to those persons who require such access for the performance of the contract. In addition, each contracting party shall ensure that this information is carefully stored and protected against misuse.

14. final provisions

14.1 Should individual parts of the contractual conditions be invalid, this shall not affect the validity of the remaining provisions of these contractual conditions. In this case, the contracting parties shall replace the invalid contractual provision with a valid provision whose content most closely corresponds to the invalid provision in economic terms.

14.2 In the event of any gaps in the contract, the contracting parties shall proceed in the same manner as in the event of ineffective contractual terms.