Terms&Conditions

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ZREALITY GmbH  General terms and conditions of business

 

These terms and conditions apply to all services and deliveries of goods (online products/SaaS solutions) of ZREALITY. Legal transactions (delivery, invoicing, etc.) are carried out by ZREALITY GmbH in its own name for the account of third parties (commission).

1. Order; conclusion of contract

1.1 The presentation of the products in the online shop is not a legally binding offer, but a non-binding online catalogue. By clicking on the button “Buy” / “Order subject to payment” you place a binding order of the goods contained in the shopping cart. The confirmation of receipt of the order follows immediately after sending the order and does not constitute acceptance of the contract. We can accept your order by sending an order confirmation by e-mail/letter/fax within 3 working days. In the case of electronic orders via the Internet, the text of the contract is stored after conclusion of the contract and can be retrieved by the customer at ZREALITY GmbH.

1.2 If available, the ordered goods or services shall be delivered or rendered immediately. We reserve the right to refrain from executing an order if the goods or services are no longer in stock, out of print or available. In this case the customer will be informed about the unavailability. Binding delivery dates must be agreed in writing. If the order is placed via the Internet, the expected delivery date can be found in the order offer.

1.3 Software is up to date upon delivery. In order to keep it up-to-date, the customer automatically participates in the subscription/update service according to the respective product description. The scope and price of the respective updates correspond to the information in the order offer (Internet shop).

1.4 The customer sometimes has the possibility to access content from third party providers. For this purpose he may be redirected to the servers of these third party providers. Should additional costs arise for the contents of the third party providers (e.g. Paypal), the customer will be informed of this by appropriate notices.

2. Viewing period/test phase

If a viewing period/test phase is specified in the order offer (e.g. “Test now 4 weeks. Free of charge!”), the customer has a viewing period/test phase that depends on the offer when he purchases the product for the first time. During the viewing period/test phase the customer can test the ordered products extensively.

3. Customer account; access to online products/SaaS solutions

3.1 Via the online customer account, the registered customer can carry out all activities (administration of orders, cancellations or returns, changes of addresses and methods of payment, checking the account balance, downloading invoices, etc.) online himself.

3.2 The use of the online customer account and online products/SaaS solutions requires registration. The registration of a legal entity may only be carried out by an authorized natural person who must be named by name. We may refuse to accept registrations if there is a factual reason for doing so, e.g. if incorrect information is provided or if there is a fear that payment obligations will probably not be met.

3.3 The customer’s access to the online customer account and/or the online products/SaaS solutions is password-protected via the Internet. The customer is obliged to keep his access data and password secret and to protect them from misuse by third parties. In this context we would like to point out that our employees are not authorized to request passwords by telephone or in writing. When choosing a password, the generally known rules should be observed (length, complexity of the password), changes to the password are only possible online within the customer account. The customer must inform us immediately if the access data or password are lost or if there is a suspicion of misuse of these data. Otherwise, we are entitled to block access to the customer account or to the online products/SaaS solutions in the event of misuse. The customer is liable for misuse for which he is responsible.

4 Terms of payment

4.1 As payment methods we currently offer payment by invoice/direct debit, Paypal and credit card. If a payment method by direct debit is chosen, we use the SEPA direct debit procedure. We will inform you of this in good time before a SEPA direct debit is executed, usually five days in advance.

 4.2 The delivery shall be effected at the gross end price valid at the time (net price plus statutory value added tax). We expressly reserve the right to adjust the respective prices for the products annually in an appropriate manner, even for existing subscription/update services. This right to adjust prices shall also apply in particular in the event of demonstrable increases in production, shipping and labour costs.

4.3 The customer is not entitled to withhold payments unless he is entitled to a legal right of retention from the same contractual relationship. Offsetting is only permitted if the claim with which offsetting is to be made is undisputed or has been established as final and absolute. Costs for unauthorised return debit notes are to be borne by the customer.

4.4 All deliveries are made at the expense of the customer. The actual shipping costs can be found in the respective order offer.

5. Termination

5.1 In the case of a contract for continuous delivery for an indefinite period (subscription/update service), a minimum subscription/minimum usage period of 12 months is agreed, unless otherwise agreed in the order offer.

5.2 The contract can be terminated with a notice period of 3 months for the future, unless the contract contains a specially agreed notice period. Any deliveries still received after the termination of the contract must then be returned. Otherwise, the contract shall be automatically extended by a further 12 months or by the respective period stated in the order offer.

5.3 In the event of termination of a contract with an agreed period of notice or minimum usage period, the customer shall continue to be entitled to the contractually agreed services until the end of the remaining contractual term.

5.4 Each termination must be made in text form (letter, fax, e-mail). Furthermore, for most products, cancellations/terminations can be made in the customer account (online). A refusal to accept or non-use of deliveries and services shall not be considered as termination. Without a cancellation received in time, the contract period is automatically extended.

6. Retention of title

The unrestricted ownership until the complete fulfilment of all payment obligations remains reserved. In the case of deliveries/services to resellers, the latter shall be entitled to resell the goods/services in the ordinary course of business. He is basically authorized to collect the claims. As a precaution, the reseller assigns all claims against his customers in the amount of the invoice value of the goods (extended reservation of title).

7. Copyright/rights of use

7.1 Upon conclusion of the contract, the customer is granted the right to use the services and deliveries of goods within the scope of the statutory provisions.

7.2 For online products/SaaS solutions and information/database products, the non-transferable and non-exclusive rights of use shall only be granted for a limited period of time.
limited for the duration of the agreed term of the user contract. The right of use is limited to the use described below.

7.2.1 Software (calculation programs)

The customer has the right to use the software to the contractual extent (number of purchased licenses, duration of the right of use). The software may only be used by one person per license (named user). In the case of a contract for a network version/multiple license, the customer is entitled to use the software by a number of persons corresponding to the number of licenses purchased (named user). The duration of the right of use is determined by the respective offer.
The customer is entitled to use the software for his own purposes; the use of the software free of charge or against payment on behalf of third parties and the transfer of the research or calculation results resulting therefrom to third parties is not permitted, unless the results are transferred to the third party for exclusive personal use.

7.2.2 Databases

The information/database and online products are protected by copyright as database works (§ 4 Abs. 2 UrhG) and as databases (§ 87a ff. UrhG). Furthermore, the individual documents are copyrighted works (§ 2 UrhG); the software required to display and search the contents of the online products is subject to the protection of the copyright law according to §§ 69a ff. UrhG. The customer is entitled to use the information/database and online products to the extent customary in business and necessary for his needs within the limits of § 87b UrhG. Insofar as the actual use unreasonably impairs our legitimate interests, we shall be entitled to restrict or prevent access to the database work/database. This applies in particular to the duplication, distribution or public reproduction of essential components or the repeated and systematic duplication, distribution or public reproduction and making accessible of insignificant components of the database. All copyrights, rights of use and other protective rights to the information/database and online products not expressly listed below remain with us as the owner of all rights of use and protective rights.
The customer acquires the right to access the information/database and online products from any computer that is suitable for these purposes. The duration of the right of use is determined by the agreement on which the contractual relationship is based; the customer will be informed of this at the beginning of the contract and it ends at the latest when the contractual relationship expires. Information/database products, contain a timer that excludes further use; their term is limited in each case until the next update is released.
The customer undertakes to use the Information/Database and Online Products only for his own purposes and not to provide third parties with separate access to the Information/Database and Online Products either free of charge or against payment. The information/database and online products may only be used by one person per license (named user). In case of a contract for a network version/multiple license, the customer is entitled to use the information/database and online products by a number of persons corresponding to the number of licenses purchased (named user).

7.3 Use is only permitted on the hardware platforms supported by us and their operating system environment(s). The customer is prohibited from changing copyright notices, marks/trademarks and/or ownership information on the products.

8. Changes to these terms and conditions

The validity of conflicting or deviating terms and conditions is excluded, even if we do not expressly object to them or accept services without reservation. In accordance with the following provisions, we reserve the right to amend these General Terms and Conditions of Business, provided that this amendment is reasonable for you, taking into account the interests of us; this is particularly the case if the amendment is without significant legal or economic disadvantages for you, e.g. changes in the registration process, changes in contact information. In all other respects we will inform you of any changes to these terms and conditions with reasonable advance notice, but at least one month before they are intended to come into force. The information will be sent to the email address you have provided. If you do not agree with a change we intend to make, you have the right to object to the change within one month of notification. If you object in due time, we are entitled to terminate the contract in writing with a notice period of one month to the end of the calendar month.

9. Place of jurisdiction

The place of performance and jurisdiction for merchants, legal entities under public law or special funds under public law is Freiburg. German law applies exclusively.

Please send complaints and cancellations to the following address:
ZREALITY GmbH
Zollamtstr. 7
67663 Kaiserslautern
Germany
support@zreality.com

Special terms and conditions for SaaS solutions

In addition to the general terms and conditions, the following special terms and conditions apply to the SaaS solutions.

1. Subject of the contract

1.1 We offer various software solutions to support business processes and make them available for use over the Internet as web applications (SaaS solution). The concrete scope of functions of the SaaS solution and the requirements for the hardware and software environment that must be fulfilled on the customer side are determined by the respective offer and the user documentation. The transfer of the SaaS solution (on data carriers or by way of online transfer) to the
local installation is not possible.

1.2 As part of the SaaS solution, storage space is provided on central servers where the data generated and processed with the SaaS solution is stored.
data can be stored for the duration of the contractual relationship. The archiving of the data in accordance with the commercial and tax law retention periods
is currently included in the scope of services.

1.3 The service transfer point is the router exit of the data center used by us to the Internet. For the connection to the Internet, the provision of
or the maintenance of the network connection to the data center as well as the procurement and provision of network access components for the Internet on the customer side must be provided by the customer himself.

1.4 Normally, the SaaS solution is also available outside of operating hours (365 days, 24 hours), but there is no entitlement to this. If, for urgent, urgent technical reasons that cannot be postponed, maintenance work becomes necessary in exceptional cases during operating hours, with the result that the SaaS solution is not available during this time, we will inform you in good time, if possible, by e-mail to the address provided by you.

The following service levels apply to SaaS solutions:

Operating time: 24 hours a day, 7 days a week
Maintenance times: We carry out planned maintenance work that requires an interruption of operations, as far as this is technically possible, on working days between 20:00 and 08:30h.
Availability during operating hours: min. 99% on average per calendar month, whereby planned maintenance work is excluded from the calculation of availability.

1.5 We undertake the analysis and correction of documented, reproducible errors in the SaaS solution (hereinafter “support services”) by competent personnel and in accordance with recognised industry standards. We do not vouch for the success in eliminating errors and to this extent we do not assume any guarantee. “Error” in the sense of these terms and conditions is any fault reported by the client that results in the quality and functionality of the SaaS solution deviating from the offer and user documentation and

this has a more than insignificant effect on their fitness for use, or
Corruption of data or loss of data processed with or generated by the SaaS solution occurs

If a fault that has occurred cannot be reproduced, it is not considered a fault. In this case, the parties will jointly agree on the further procedure.

1.6 The client must report any errors that occur immediately with a precise description of the problem. The report can initially be made verbally, but must be repeated in text form (e-mail) no later than the next working day. We are available to receive error messages Monday – Friday from 09:00 to 17:00 hours.

1.7 In case of error messages, the activities described below will be carried out within the response time. The response time depends on the error class; the following error classes apply:
Error class 1: Productive use of the SaaS solution is not possible or only possible to a considerably limited extent or essential performance features are missed.
Error class 2: The core functionality is guaranteed, but there is a significant error in a submodule that prevents or significantly restricts working with this module.
Error class 3: All other errors

1.8 Within the response times, we submit a proposal for the correction of the error. It includes the following:

Presentation of the results of the analysis performed;
presentation of the effects on other functionalities (criticality);
Proposal of a procedure to correct the error.

Reaction times:

Standard Support

Error class 1: By next working day
Defect class 2: At discretion
Defect class 3: At discretion

Enterprise support
Error class 1: 1 hour
Error class 2: 2 working days
Error class 3: 5 working days

 

Remedy time:

Standard support

Error class 1: Not available
Error class 2: Not available
Error class 3: Not available

Enterprise support

Error class 1: Next working day
Error class 2: By arrangement
Error class 3: By arrangement

1.9 We are not obliged to provide support services:

for errors caused by unauthorized changes or adjustments to the SaaS solution;
for other software (especially third-party software used on customer systems);
for errors that are based on improper or unauthorized use of the SaaS solution or on operating errors, unless the operation is carried out in accordance with the user documentation;
for any hardware defects;
if the SaaS solution is used on other permissible hardware and operating system environments than those specified in the user documentation;
in the form of on-site assignments by our employees.
We are entitled to treat such services as a separate order and to invoice them at the user fees for SaaS solutions in accordance with the service rates applicable at the time.

1.10. The above-mentioned services are conclusive. We are not obliged to provide any further services, in particular installation, adaptation, programming, consulting and training services.

2. Obligations to cooperate

The cooperation services required for the performance of the contractual services must be provided in full and in good time. The obligations to cooperate include in particular the following activities:

all applicable laws and other legal provisions must be observed during use. It is forbidden to transfer data or content to our servers that violate legal regulations or infringe third-party property rights or copyrights or other rights of third parties. In the event of an error message, all documentation, logs and other information relevant to the elimination of the error must be made available to us immediately. The customer is obliged to regularly attend appropriate product training courses or otherwise acquire the necessary knowledge to use the SaaS solution only data that is free of computer viruses or other harmful code may be transmitted. No software or other techniques or procedures may be used in connection with the use of the SaaS solution that are likely to impair the operation, security and availability

3. Adjustment of the remuneration

We are entitled to adjust the remuneration during the term of the contract. However, such a price adjustment is only permissible once a year. Price increases must be announced in writing at least six weeks before they take effect. In the event that the price increase amounts to more than 10% of the previous remuneration, the customer has a special right of termination which he may exercise in writing with a notice period of one month to the end of the calendar month after receipt of the price increase announcement.

4. Blocking of data

If a third party asserts an infringement of rights against us by data or content transmitted by the customer to the data storage devices provided by us, we are entitled to temporarily block the corresponding data or content if the third party has conclusively demonstrated the infringement. In this case we will request the customer to cease the infringement within a reasonable period of time or to prove the legality of the content. If this request is not or not sufficiently complied with, we shall be entitled, without prejudice to further rights and claims, to terminate the contract for good cause without notice. Insofar as the customer is responsible for the infringement of rights, he is also obliged to compensate for the resulting damage and must indemnify us in this respect from any claims by third parties on first demand. Further rights are reserved.

5. Changes to services

We are entitled at any time to further develop, change or supplement the SaaS solutions in part or in whole. We will announce contract-relevant, significant changes by e-mail to the e-mail account you have specified at least six weeks before they take effect. The client can object to the changes in writing or by e-mail with a period of notice of one month from receipt of the notification of change. Uncontradicted, the changes become part of the contract. In the notification of change the consequences of the objection will be pointed out accordingly. In the event of timely objection, we are entitled to terminate the contract in writing with a notice period of one month to the end of the calendar month.

6. Rights in case of defects

6.1 If the Service Level specified in II. 2.4 is maintained for a period of three (3) consecutive calendar months or for three (3) calendar months within
of a period of six (6) calendar months (availability during the operating period less than 95%) and if we are responsible for this, the customer shall be entitled to terminate the contract without notice and to claim damages instead of performance.

6.2 In other cases of non-contractual performance, we shall be entitled and obliged to subsequent performance. If subsequent performance is not effected within a reasonable period of time, a reasonable grace period with a threat of rejection may be set. After the unsuccessful expiry of this period, the legal remedies are available, whereby the cancellation of the contract (withdrawal or compensation instead of performance) is only possible if the defects are defects of defect classes 1 or 2.

6.3 The limitation period for rights in the event of defects shall be twelve (12) months.7.

7. Property rights of third parties

7.1 If industrial property rights and copyrights of third parties are violated by the contractual use of the SaaS solution and if third parties assert claims against the client due to such a violation of rights, we shall, at our discretion and at our own expense, either

obtain the right to use the SaaS solution, or
redesign the SaaS solution so that it no longer violates the rights of third parties and at least has the contractually stipulated properties.

7.2 If the claim of the third party is not based on

Changes to the SaaS solution that have not been approved by us under this agreement or otherwise, or
the use of the SaaS solution in a manner other than that agreed in accordance with the purpose of this contract, or
the use of the SaaS solution on a hardware platform or operating system environment not approved by us,

we shall, at our own discretion, defend the customer or indemnify and hold him harmless from and against any damages arising directly from such a claim and asserted against the customer in court within the scope of the limitations of liability under II. 9. The obligation to pay compensation is excluded if we prove that the customer is not responsible for the infringement of third party rights.

7.3 The customer is obliged to inform us immediately if third parties assert property right infringements against him. The customer shall only be entitled to take measures, in particular to defend himself in court against the claims or to satisfy legal claims of the third party subject to reservation, if we have previously notified the customer that we will not defend the customer against the claim.

8. Liability

We are liable for all damages arising in connection with this contract, regardless of the actual or legal reason, only in accordance with the following regulations:

8.1 In the event of intent and gross negligence, claims under the German Product Liability Act and in the event of injury to life, body or health, we shall be liable without limitation in accordance with the statutory provisions.

8.2 In all other respects, liability per calendar year is limited to the damage foreseeable at the time of conclusion of the contract up to a total amount for all cases of damage per calendar year which corresponds to 50% of the remuneration paid by you in this calendar year. This limitation of liability shall also apply in the event of data loss and data deterioration.

9. Protection of secrets; data protection; data security

9.1 The processing by external service providers of data that are subject to professional secrecy protection (e.g. patient data, client data for legal and tax advisory professions) may require the consent of the patients or clients. The client is responsible for ensuring that such a consent requirement exists and, if so, that the corresponding declaration of consent is available.

9.2 When providing SaaS solutions we may gain access to personal data. When processing and using personal data, we may be acting on behalf of the client and are obliged under § 11 BDSG to follow the client’s instructions exclusively. The instruction must be in writing. The customer is responsible for the permissibility of the collection, processing and use of data and for the exercise of the rights of the persons concerned.

9.2.1 We may only grant access authorizations for the data provided to our own employees to the extent necessary for their respective tasks. If an employee of ours leaves the company or if there is a change in activity with the consequence that the employee no longer needs access to the user’s data, the access authorization of this employee must be deleted immediately.

9.2.2 We undertake not to make any copies or other records of the personal data transferred or made available for processing, or to tolerate the making of such copies or records by third parties or to pass them on to third parties. This does not apply to copies or other records that are absolutely necessary in the course of proper data processing.

9.2.3 We may not use the data provided for processing or use for our own purposes or for the purposes of third parties, nor may we allow third parties access to such data.

9.2.4 Insofar as the customer is obliged to provide information to a person on the collection, processing or use of that person’s data on the basis of applicable data protection regulations, we shall assist in providing this information.

9.2.5 We only employ employees and subcontractors who are bound to data secrecy.

9.3 We effectively secure all data, as far as this is possible with technically and economically justifiable effort, against unauthorized access, modification, destruction or loss, unauthorized transmission, other unauthorized processing and other abuse. If a threat to data and SaaS solution cannot be eliminated in any other way with technically and economically reasonable effort or not promisingly, we are entitled to delete data with harmful content. We will inform the customer of this intention by e-mail to the e-mail address given to us.

10. Confidentiality

10.1 The contracting parties shall be obliged to treat as confidential all information made available to them under this Agreement by the other party as well as any knowledge which they acquire on the occasion of this cooperation on matters of a technical, commercial or organisational nature of the other party and not to exploit or use such information or make it available to third parties during the term and after termination of this Agreement without the prior written consent of the party concerned. The disclosure to third parties who are subject to a legal obligation to maintain secrecy is not subject to approval. The passing on of the information to employees who require the information for their work in the performance of contractual services also does not require approval. However, the parties shall ensure that such employees are bound by appropriate confidentiality obligations. Any use of this information is limited solely to the use for the execution of this contract. Each party shall inform the other party immediately upon becoming aware of any unauthorized disclosure or possible loss of confidential information.

10.2 This aforementioned obligation shall not apply to information that is demonstrably

the other party has lawfully received or will lawfully receive from third parties,
were already generally known at the time of conclusion of this contract or became generally known subsequently without breach of this confidentiality obligation,
was previously held by the party receiving the information, or
have already been developed independently of the notification by the party receiving the information.

10.3 The prohibition of disclosure shall not apply if the parties are obliged to disclose the information by law or by court or official order. In this case, however, the party obliged to disclose is obliged to notify the other party of the disclosure of the information in advance so that the other party has the opportunity to defend itself against such disclosure and to prevent or restrict it. The Party obliged to disclose shall use its best efforts vis-à-vis the authorities ordering disclosure to ensure that all confidential information to be disclosed is treated confidentially.

10.4 The confidentiality obligations of this contract shall continue to apply for a period of 2 years after termination of this contract. With regard to data that is subject to data secrecy or professional secrecy, the confidentiality obligation shall apply for an unlimited period of time.

11. Assumption of contract

We are entitled to transfer rights and obligations from this contractual relationship in whole or in part to a third party with a notice period of four (4) weeks.
transferred. In this case, the customer is entitled to terminate the contract within two weeks after notification of the transfer of the contract.

12. Termination, consequences of termination

12.1 The right of both parties to terminate for good cause remains unaffected. In particular, we are entitled to terminate this contract without notice for extraordinary reasons if

the customer is in default of payment of an amount for a period of more than two months which is at least equal to the agreed fee for use for the period of two months
insolvency proceedings or other judicial or extrajudicial proceedings serving to settle debts have been or are being initiated against the customer’s assets
the user account has been transferred or the access data to the SaaS solution has been made available to third parties without our prior consent
the customer has otherwise breached his obligations under this contract and, despite the setting of a deadline with a threat of rejection, does not cease the breach of contract or proves measures which are suitable to exclude the repetition of the breach of contract in the future

12.2 In the event of termination of the contractual relationship, irrespective of the legal grounds, the parties shall be obliged to duly execute the contractual relationship. For this purpose we will

to hand over the data stored with us within the scope of the contract as well as any databases created within the scope of the contractual relationship at his own expense no later than four weeks after the termination of the contract, either by remote data transmission or on data carriers to the customer or a third party named by him, at his choice
delete the data immediately after confirmation of successful data transfer and destroy all copies made.
or, at the customer’s option, without deleting data, limit access to a read-only authorization for the duration of the commercial and tax law retention obligations.

We can provide further support services for the migration of the data on the basis of a separate order. Such further support services shall be remunerated in accordance with the price list valid at the time.

Status: April 2018

 

 

 

 

 

 

 

 

 

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