Contractual Terms and Conditions for the Transfer and Use of Software (T&Cs)

As at 01/2017

1. Scope

1.1 The present Contractual Terms and Conditions shall apply exclusively to all services provided by 3D Interaction Technologies GmbH (hereinafter referred to as “3D:IT”) for other companies or legal entities under public law (hereinafter referred to as “the Customer”) – with respect to the creation, transfer and maintenance of customised software and standard programs, as well as training and consultancy – unless regulated otherwise in writing.

In addition, the valid legislation of the Federal Republic of Germany shall apply.

1.2 Conflicting and additional terms and conditions of the Customer shall not become part of the Contract – apart from in the event of the prior, written consent of 3D:IT – even if 3D:IT fulfils a contract or provides a service with expressly contradicting such terms and conditions.

1.3 The present Terms and Conditions of Contract shall also apply to the pre-contractual obligations. Especially with regard to the conclusion of the Contract, limitation of liability and confidentiality obligations.

2. Definitions

2.1 “Documentation” shall refer to documentation related to software.

2.2 “Third-party software” shall refer to standard software products including associated documentation which are made available to the Customer.

2.3 “IP rights” (or “intellectual property rights”) shall refer, without restriction, to all patents and other rights to inventions, copyrights, brand names, utility models and similar property rights.

2.4 “Modification” shall refer to all modifications of software (for example changes to the source code) created by the Customer and or by 3D:IT or a third party for the Customer.

2.5 “Maintenance” shall refer to the care and maintenance of the transferred software.

2.6 “Software” shall refer to all programs and the associated documentation which have been developed by or for 3D:IT, including their releases, updates, patches, corrections and all copies of these programs.

2.7 “Affiliated companies” shall refer to companies which are affiliated to another company in terms of Section 15 of the German Stock Corporations Act (AktG).

2.8 “Confidential information” shall refer to all information that 3D:IT or the Customer want to protect against disclosure to third parties or whose contents can be regarded as confidential.

3. Conclusion of the contract

3.1 Quotations by 3D:IT shall be non-binding and subject to change, unless they are expressly referred to as a binding quotation. 3D:IT may accept orders from the Customer within 6 weeks. In case of doubt, the contents of the quotation or the order confirmation by 3D.IT shall be decisive for the contents of the Contract. This shall apply if the Customer has placed an order and has not immediately contradicted it in the contents of the order confirmation.

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

4. Information provided prior to the Contract

4.1 Software and documents transferred prior to the Contract shall be the intellectual property of 3D:IT. This may not be reproduced or passed on without the prior consent of 3D:IT in writing.

4.2 If software is transferred to the Customer for test purposes, the right to use this software shall lapse after an appropriate or specifically agreed testing period. If no specific time period has been agreed for the testing period, a time period of one month shall apply.

4.3 Especially if no contract comes into effect, the transferred software and documents must be returned or 3D:IT must be provided with evidence of their deletion.

4.4 The confidentiality obligations shall apply to both Parties.

5. Delivery and service

5.1 Deadlines and fulfilment dates shall serve for orientation. They shall be deemed to be fixed deadlines if they are expressly guaranteed by 3D:IT in writing.

5.2 Delivery shall always take place at the discretion of 3D:IT either by 3D:IT sending the software to the agreed delivery address on data media or by 3D:IT making the software available (e.g. for download).

5.3 The time at which 3D:IT hands over the data medium to the carrier shall be decisive for compliance with delivery deadlines and for the transfer of risk in the event of physical shipping. In the event that the software is made available (e.g. for download), the time at which the Customer received the communication regarding the provision or readiness for download of the software.

6. Remuneration and terms of payment

6.1 The purchase price or remuneration shall be determined on the basis of the contractual documents or the order confirmation. Unless otherwise specified, 30% of the purchase price or remuneration shall be due upon the placement of the order.

3D:IT reserves the right to charge the Customer for services which have already been provided within the framework of an order (partial invoices).

All outstanding parts of the purchase price or remuneration shall be due no later than the completion of the full delivery or the completion of the project.

6.2 Additional services demanded by the Customer shall be invoiced at 3D:IT’s applicable hourly rate or alternatively, in the event of an individual contractual arrangement, in accordance with the agreed individual hourly rate according to the actual effort involved.

The standard rate for programming services provided by 3D:IT shall be 110.00 EUR per hour plus the statutory VAT.

6.3 3D:IT shall settle travelling times and expenses with the Customer as a lump sum. For assignments within the Federal Republic of Germany, 180.00 EUR plus the statutory VAT shall be charged for each employee and each day. This lump sum shall include travel expenses, subsistence expenses, travelling times and accommodation costs.

6.4 3D:IT’s invoices shall be due immediately and shall be payable within 14 days of the invoice being issued without deductions.

6.5 3D:IT may demand payments on account or a payment in full in advance if there has not yet been a business relationship with the Customer, if the delivery is to take place abroad or if there are doubts regarding the punctual payment of the Customer.

Retention of title, offsetting

7.1 3D:IT shall retain the title and the rights to the contractual service until its
claims have been settled in full.

In the event of a resale or transfer to third parties, the Customer hereby assigns to 3D:IT all claims arising from the resale or transfer until its obligations towards 3D:IT have been settled in full.

7.2 Offsetting by the Customer shall only be permitted against claims which are not disputed by 3D:IT, and which are due or have been legally established.

8. Regulations for the transfer of software

8.1 In the event of the handover of software, 3D:IT shall only owe this in the form of the machine-readable object code. The Customer shall have no entitlement to a transfer or handover of the source code.

8.2 A Customer shall only have a right to the transfer of the source code from 3D:IT if this has been contractually agreed in advance and 3D:IT receives a reasonable fee that is usual in the industry for this.

8.3 A subscription right or a right to subsequent delivery regarding the source code of a subsequent software development and adjustments by 3D:IT shall in no way be derived from this for the Customer.

9. Modification of the software

9.1 The Customer shall not be entitled to modify 3D:IT’s software or to have it modified by third parties, unless agreed otherwise.

9.2 If the Customer has been granted permission to modify the software and the Customer modifies the software, 3D:IT shall make no guarantee regarding the further fault-free operation of the software. Faults arising with modifications shall not be the responsibility of 3D:IT. Any liability for the operation of modified software on the part of 3D:IT shall be excluded.

10. Transfer of software to third parties

10.1 The Customer may only transfer 3D:IT software to a third party as a unit and by fully and finally giving up its own use of this software.

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

11. Licensing in the event of commercial use to a significant extent

11.1 In the event of the mass media use or reproduction of visualisation outcomes of 3D:IT software in more than 10,000 cases per year, appropriate licence fees must be paid to 3D:IT.

11.2 In the event of the mass media use or reproduction of visualisations of 3D:IT software, an annual licence fee of 1.3% of the economic benefit of the marketing (sales revenues) shall be due.

11.3 Responsibility for the reporting of the mass media use or reproduction of the visualisation outcomes shall lie with the Customer. The Customer must inform 3D:IT of the economic benefit unsolicited no later than one month after the end of the year, and must pay the licence fee to 3D:IT within the first two months after the end of the year.

11.4 All screen shots shall be exempt from licence fees if reference is made to the 3D:IT software product used in terms of a source citation when these screen shots are used or reproduced.

12. Liability for material defects and compensation for damages

12.1 3D:IT guarantees the agreed condition of the transferred software.

In the event of verified material defects in the software, 3D:IT shall transfer a new defect-free software status to the Customer by means of supplementary performance or remove the existing defect.

12.2 The removal of defects may alternatively also consist in 3D:IT showing the Customer reasonable options for how negative effects of the defect can be avoided when the software is used.

12.3 In all cases of contractual and extra-contractual liability, 3D:IT shall only provide compensation
to the extent specified below:

In the event of wilful intent, 3D:IT shall be liable to the amount of the verified damage incurred.

In the event of gross negligence and in the event of the absence of a quality which 3D:IT guaranteed, 3D:IT shall be liable to the amount of the verified damage incurred, but to no more than 1.5 times the affected order value. A claim against 3D:IT which goes beyond this shall be excluded.

12.4 A statutory limitation period of one year shall apply to all claims against 3D:IT for compensation or the reimbursement of fruitless expenditure in the event of contractual and extra-contractual liability.

The regulations on limitation shall not apply to liability in the event of wilful intent or gross negligence or in the event of personal injury or in accordance with the German Product Liability Act.

13. Confidentiality, data privacy

13.1 The Parties undertake to treat all the confidential information obtained from the other Party before and in the context of the execution of the Contract confidential and only to use it in the context of the execution of the Contract.

13.2 With regard to the confidential information provided, each Party shall act with great care to protect the confidentiality of the information. Each Party shall only grant access to the confidential information of the other Party to such persons who require access for the execution of the Contract. In addition, each Party shall ensure that this information is stored carefully and protected from misuse.

14. Final provisions

14.1 If individual parts of the Contractual Terms and Conditions are invalid, this shall not affect the validity of the remaining provisions of the present Contractual Terms and Conditions. In this case, the Parties shall replace the invalid provision with a valid provision whose content comes closest economically to the invalid provision.

14.2 In the event of any gaps in the contract, the Parties shall proceed in the same way as for invalid provisions.