General Terms and Conditions of interactive scape GmbH
Valid from: March 1, 2012
Scope. These Conditions shall apply to all supplies, services and licenses of any kind provided by interactive scape GmbH (“interactive scape”) to any customers who are not consumers pursuant to § 13 BGB (German Civil Code) (“Customer(s)”). If interactive scape and the Customer have entered into a contract of sale or a service, license or other agreement (each a “Contract”), these Conditions shall apply except if and to the extent that the Contract provides otherwise. These Conditions shall also apply to all future Contracts even if they are not explicitly agreed therein.
“Deliverables” shall mean the goods, rights, licenses, or tangible or intangible works which are the subject matter of the respective Contract.
No Other Terms and Conditions. interactive scape does not accept any terms and conditions which deviate from these Conditions, except if interactive scape has agreed in writing to such terms and conditions and has waived the validity of these Conditions. Such consent shall be valid only for the specific Contract and does not extend to former or future Contracts.
Any cost estimates which interactive scape may provide shall not be binding on interactive scape. Any orders from Customers referring to offers designated as “subject to change” or “non binding” by interactive scape may be rejected by interactive scape within two weeks of receipt of such written order (or, in case of an oral order, of receipt of a written confirmation of such order). If the order is received more than one month after such offer by interactive scape, exclusively Sect. 5 shall apply.
Orders to interactive scape may be accepted within two weeks either by performance or by an order confirmation. Acceptance of orders may be expected only when they are submitted in writing.
The Customer shall refrain from using for any purpose other than permitted under the Contract, copying and/or making available to third parties any technical specifications, cost estimates, quotations, images, drawings, calculations, software and other records which the Customer may receive from interactive scape, in particular in connection with the negotiation or the performance of the Contract. The Customer may not pass these items on to third parties except with interactive scape’s prior written consent. interactive scape reserves the copyright and all other rights in such materials. In the event that the Customer violates the foregoing obligation, interactive scape shall be entitled to request immediate release and delivery of such materials.
Terms of Delivery. All Deliverables shall be delivered ex works (EXW) interactive scape Berlin (Incoterms 2010). Prices quoted by interactive scape shall be deemed agreed on the same basis. Unless otherwise agreed interactive scape will arrange for shipping, packaging and insurance at the Customer‘s expense. Within reason, interactive scape shall meet Customer’s requests concerning the mode of dispatch and shipping route.
interactive scape shall be under no obligation to observe any agreed delivery date until and unless the Customer has complied fully and timely with all its responsibilities regarding delivery including receipt by interactive scape of any down payment agreed. Time shall not be regarded to be of the essence except if the term “time to be of essence” has been agreed in writing. No delivery date shall be binding on interactive scape unless it has been expressly confirmed as “binding”.
Even absent express stipulation, the Customer shall interact with interactive scape to the extent necessary to enable interactive scape to define, manufacture, procure, adapt and/or configure the Deliverables, notably to timely answer any related questions, take decisions, deliver release notes and/or submit any drawings or other records under its control. If Customer changes or revokes decisions, drawings or other records after submission to interactive scape, Customer shall be obliged to inform interactive scape explicitly with respect to each and any change made. Customer shall bear any additional costs resulting from such change, based upon the then applicable price list of interactive scape. If the estimated additional costs exceed 10 percent of the total price of the Contract, interactive scape shall inform the Customer thereof and shall refrain from further works and services until the Customer has decided upon such additional work; any agreed delivery dates shall be deferred proportionately, taking into account, however, any disposition interactive scape takes with respect to any third party orders.
Customer shall name a person authorized to represent Customer, who shall be solely responsible for the Customer’s decisions and entitled to receive notifications and statements from interactive scape.
In case delivery is delayed due to Customer’s orders or default, interactive scape will store the Deliverables at Customer’s risk for two weeks without charging fees. After such period interactive scape may claim a lump sum storage fee of 0.5% of the total contractual amount of such Deliverables for every month or fraction of a month of storage. The Customer’s right to prove that interactive scape did not incur any damage or a substantially lower damage, shall remain unaffected. Interactive scape’s right to claim higher damages, shall remain unaffected. Customer may request that the Deliverables shall be insured during storage by interactive scape at Customer’s cost.
interactive scape reserves the right to make partial deliveries. Interactive scape reserves the right to supply a successor product to the Deliverable ordered which has become available prior to delivery, provided that the successor product meets the agreed specifications, and is not more expensive than the Deliverable ordered, and the Customer has not explicitly precluded delivery of such successor product.
Delivery of any Deliverables shall be subject to the condition precedent that interactive scape has been supplied correctly and in due time by its suppliers.
Property Rights. Customer‘s right to use any Deliverables supplied by interactive scape and protected by intellectual property rights, in particular computer software Deliverables and documentation (“Software”), shall be strictly limited to internal business purposes and otherwise as provided in the Contract and in these Conditions. All other rights are reserved. The source code of the Software will not be delivered unless expressly agreed.
The Customer shall refrain from (a) reverse engineering the Software or reducing it in any other ways to a form perceptible to humans; or (b) modifying, adapting or translating the Software, or creating derivative works of the Software, except in each case to the extent expressly permitted in the Contract or by mandatory law. The same shall apply to any publication of any benchmark tests relating to the Software without interactive scape‘s prior written consent. Any copies of the Software shall contain all of the copyright notices, trademarks and trade names, and user information as shown on the original.
Neither the Customer‘s right to copy and modify the Software to the extent expressly permitted by applicable mandatory legislation regarding back up or the elimination of errors nor the Customer‘s rights under applicable mandatory legislation regarding reverse engineering shall be deemed restricted hereby.
The Customer shall refrain from selling the Software or generally making the Software available to any third party, whether by delivering a data medium, over a network, or in any other form, whether or not for compensation, except with interactive scape‘s prior written consent. Interactive scape shall give such consent if the third party acquirer assumes all obligations regarding the Software under the Contract and these Conditions and the Customer destroys all copies of the Software in its possession. Lending the Software for other than commercial purposes shall not require interactive scape’s consent to the extent that the recipient has accepted to be bound by the terms of this Section and such lending does not result in simultaneous use of more than one copy of the Software. Rented software may only be made available to any third party with interactive scape‘s prior written consent.
To the extent the Contract provides that Customer may make available to a third party (“End User”) copies of the Software, this right shall only apply to the extent that (a) such End User has agreed to terms at least as restrictive as provided herein, and (b) the Customer implements appropriate procedures to supervise and enforce End User compliance with such restrictions. The Customer also agrees to indemnify interactive scape for any damage or loss suffered in connection with the infringement of interactive scape’s Property Rights in such Software by an End User, and hold interactive scape harmless from any claims asserted by End Users in connection with the use of, or access to, the Software, unless these are based upon interactive scape’s breach of the Contract.
Derivative Works, New Materials. All right and title worldwide, including any right of use or exploitation, in or to any (a) modifications, alterations or derivate works of a Deliverable, even if discovered, developed or created by or for Customer, and (b) Deliverables or other works or results discovered, developed or created by interactive scape or interactive scape’s agents – whether or not in cooperation with the Customer – in connection with the Contract shall exclusively be owned by interactive scape. The Customer hereby transfers such right and title to interactive scape who accepts such transfer.
For the avoidance of doubt, interactive scape’s right or title shall not extend to any improvements independently developed by Customer to the extent that such improvements are separable, i.e. can be exploited without infringing upon interactive scape’s rights in the Deliverable.
Where an assignment is not legally possible, Customer herewith grants interactive scape a fully paid, exclusive, perpetual, worldwide, transferable and sublicensable license for all methods of use. Where such development is part of interactive scape’s services to the Customer, Customer shall receive a non-exclusive license in such derivative works, works or results under the terms of the Contract and/or these Conditions.
Support. If interactive scape has agreed, in the Contract, to provide software or hardware support (“Support”), it shall be released from such obligation to the extent that (a) the Customer fails to identify the alleged errors in reproducible form or to provide interactive scape upon request with all information, tools, access to systems, personnel and other assistance which may be required to provide Support; (b) Support is requested by persons other than representatives of the Customer authorized under the terms of the Contract; or (c) the Customer fails to use reasonable efforts to implement advice received from interactive scape. The same shall apply where the Deliverable has been adapted, modified or enhanced by a party other than interactive scape or a third party certified by interactive scape, unless the Customer can establish that such modification neither caused the error nor negatively affects interactive scape’s ability to provide Support.
Confidentiality. The parties mutually agree to keep all technical and commercial information which by its nature is confidential and was received from the respective other party strictly confidential and to refrain from using any such confidential information except as strictly required to perform the Contract. This restriction shall not apply to information which the recipient can show was already published or known to it at the time of disclosure or that was published later without the fault of the recipient. The parties represent that their respective employees, consultants and subcontractors are bound by, and shall comply with, a secrecy obligation at least as strict as the one set forth herein, and which survives the contractual term of such employment or. The recipient shall notify the disclosing party without undue delay if it receives notice from a court or authority or third party to disclose such confidential information. This confidentiality clause shall survive termination of the Contract.
Acceptance. Any Deliverables delivered and installed by interactive scape which require acceptance under the Contract or statutory law, shall be accepted by the Customer within two weeks from installation – if requested by interactive scape, in the presence of representatives of interactive scape –, provided the Deliverable essentially complies with the specifications agreed between the parties. Customer shall confirm the acceptance in writing. Prior to delivery of the acceptance certificate to interactive scape the Customer shall refrain from using the Deliverable other than for testing purposes. Prior use other than for testing purposes shall be regarded as acceptance.
interactive scape is entitled to submit individual components or phases of Deliverables for separate, independent acceptance (Acceptance in Part). The complete Deliverable will then be deemed accepted after the last Acceptance in Part has taken place. In that case, no additional final acceptance for the complete Deliverable is required.
Minimum Term, Notice. Support Contracts and other Contracts providing for recurrent services shall be deemed made for the term set forth in such Contract. Unless otherwise agreed, either party shall be entitled to give notice of termination of such Contracts observing a notice period of three months effective on the second or any later anniversary of the signing of the Contract. Either party’s right to terminate the Contract for cause shall remain unaffected.
Adjustment of the Purchase Price. In the event that the parties have agreed to deliver the Deliverables more than four months after the date of the signing of the Contract and interactive scape’s sourcing costs increase between the contract date and the delivery date, interactive scape shall have the right to increase the price agreed by an amount equivalent to such increase by giving notice of such increase to the Customer. In such case the Customer shall have the right to withdraw from the Contract, by giving written notice to interactive scape within one week from the date on which the Customer has received the notice of the price increase.
Changes of these Conditions or Recurrent Fees may be effected by interactive scape unilaterally with proactive effect during the term of a Contract as follows:
interactive scape shall be entitled to change or amend these Conditions or any recurrent fees by unilateral notice with proactive effect, observing three months notice with effect to the end of an agreed minimum contract term or any other date on which interactive scape could alternatively terminate the Contract in accordance with its terms.
In such case the Customer shall have the right to withdraw from the Contract, observing one month notice with effect to the effective date of the proposed amendment. Where Customer does not exercise this right, the amendment shall become effective.
The amendment shall apply to future supplies and services under Contracts providing for continuous or recurrent performance such as hosting, support contracts or limited term licenses only; pre-existing perpetual licenses shall not be affected by such change.
Notwithstanding Sec. 19.1, interactive scape shall also have the right to modify any recurrent fees upon three months‘ notice with effect to the end of any calendar month, if and to the extent that the cost of interactive scape‘s staff in charge of providing such services and/or the costs of materials and services reflected in such fee increase. If the increase exceeds 10% of the total sum payable in the preceding year, the Customer shall be entitled to terminate the Contract providing for such recurrent fee, irrespective of any minimum term which may have been agreed, observing a one month notice period with effect to the effective date of the proposed modification. Where Customer does not exercise this right, the amendment shall become effective.
Terms of Payment; Set Off. All invoices shall be due and payable upon receipt without any deduction, unless otherwise agreed. Customer will be deemed in default with a payment ten days after (i) the due date or (ii) receipt of interactive scape’s invoice, whichever is later. Customer may set off any counterclaims only to the extent such counterclaim is undisputed or established by final court decision.
Value Added Tax shall not be deemed included in the prices quoted by interactive scape, and, if applicable, it will be shown separately in the invoice at the statutory rate prevailing on the date of the invoice.
Price List. Supplies and services not covered by the Contract shall be billed based on the price list prevailing at the time of receipt of the order.
Responsibilities of the Customer. Customer shall be solely responsible to procure a system environment complying with any technical guidelines, such as installation and/or hardware requirements, which the manufacturer may have issued, and to provide interactive scape with all information and assistance which interactive scape may reasonably require. In the event that interactive scape identifies to Customer a third-party service provider, interactive scape shall not assume any liability with respect to the performance of such third-party service provider.
Limited Remedies for Defects (Warranty). In the event of any defect of a Deliverable, including any deviation from agreed specifications and/or any violation of rights of third parties (collectively “Defects”) the Customer may exercise its statutory remedies for repair or replacement of the Deliverable, and, only where that fails or in other exceptional cases as provided for in statutory law, withdraw from the Contract or demand a reduction in the agreed price (“Warranty Claims”), subject to the following limitations:
Any Warranty Claims shall be excluded (i) unless the Defect in question substantially limits the suitability of the Deliverable for the agreed purpose and (ii) if and to the extent such Warranty Claim results from information, works or services or components provided by Customer.
The Customer shall inspect any Deliverables and notify interactive scape of any defects or deviations thereof immediately upon delivery. In the absence of such immediate notice, the Customer shall be deemed to have accepted any deviations of the Deliverables that could have been detected, in particular, without limitation, (a) defects, or (b) delivery of (i) a quantity or (ii) a product other than agreed. The notice shall in particular not be deemed immediate if it is received more than 14 days after delivery.
interactive scape reserves the right to decide whether to repair or to replace any Deliverable which should prove to be defective. If interactive scape fails to exercise such right within a reasonable time limit, such right shall pass to Customer. Interactive scape shall have – also in contracts for works – at least two attempts at such repair or replacement for every single defect, except where this should unduly prejudice Customer in individual cases or due to the nature of the defect or the Deliverable or other circumstances, a larger number of attempts is appropriate. Customer shall allow interactive scape a reasonable period of time for each attempt.
Warranty Claims shall be excluded to the extent that the Customer (a) uses the Deliverable for any purpose other than the contractual purpose or in violation of the relevant statutory requirements and/or any guidelines issued by the manufacturer; or (b) either (i) modifies the Deliverable or (ii) uses the Deliverable together with any hardware or software not approved by the manufacturer of the Deliverable for such purpose, unless, in each case, the Customer has obtained interactive scape’s prior written consent, and except, in each case, where the foregoing circumstances did not cause the Defect.
Any Warranty for the Deliverables not infringing third party rights shall be limited to the country stipulated in the Contract where the Deliverables shall be used. Absent any express stipulation the Warranty is limited to the country where the Customer has its principal place of business. Furthermore any Warranty Claims for violation of third-party rights shall be excluded unless the Customer enables interactive scape to conduct the defense alone without any restriction and grants to interactive scape the necessary powers.
Customer’s Warranty Claims shall be excluded unless payment in full of all payments due has been effected, unless the sum of all payments due would constitute an excessively high part of the total price if compared to the value of the Defect.
To the extent that Customer could have avoided or reduced any Defect by maintenance as described in any user manual of the defective Deliverable (notably to avoid any greater damage by timely discovery of such Defect), any Warranty Claim for such Deliverable shall be excluded, if Customer has not carried out such maintenance in due form, in due extent or in due time.
Recourse: The Deliverables are not for distribution to consumers as defined under statutory law; therefore the Customer does not have a statutory right of recourse.
Absent express confirmation, interactive scape shall not be deemed to have guaranteed certain properties of the Deliverables. Any manufacturer‘s warranty issued with any Deliverable shall not be deemed a guarantee of certain properties unless it expressly states otherwise.
Liability. interactive scape shall be liable in damages, whether based on contract or any other legal theory, only to the extent that the damage was caused by gross negligence or willful misconduct imputable to interactive scape. In the event of death or personal injury, interactive scape shall be liable also for slight negligence in accordance with statutory law. In addition, interactive scape shall also be liable in accordance with statutory law for a slightly negligent violation of a fundamental duty under the Contract, but such liability shall be limited to the purchase price (excluding VAT) of such Contract which resulted in the damage..
Customer herewith confirms that the total amount of any foreseeable damages does not exceed such purchase price. Interactive scape’s shall not be liable for any consequential damages.
Fundamental duties as used herein comprises all duties which must be fulfilled by interactive scape in order to enable consummation of the Contract and the achievement of its purposes; provided that Customer may reasonably expect fulfillment of such duties in view of the content and purposes of the Contract.
interactive scape‘s liability shall cover neither damage caused by the loss of data to the extent such loss could have been avoided by reasonable (at least daily, alternating) state-of-the-art back-up, nor damage caused by use of any Deliverables which could have been prevented by examination of the work products of such Deliverable at regular intervals.
Limitations on interactive scape’s liability agreed in the Contract or these Conditions shall apply also to the personal liability of interactive scape’s officers, employees and agents.
Where Deliverables are provided free of cost, e.g. demo software, interactive scape’s liability shall be liable for damages only in case of gross negligence or willful misconduct imputable to interactive scape and/or fraudulent concealment of defects.
Any mandatory liability under the German Product Liability Act and/or arising from a guarantee of properties shall remain unaffected.
Limitation Period. Customer’s remedies for Defects of Deliverables – including the right to withdraw from the Contract - shall be subject to a limitation period of twelve months. The foregoing limitation period shall also apply to claims for indemnification or damages, in particular incidental or consequential damages, based on Defects.
Notwithstanding the foregoing, all remedies based on
fraudulent concealment of defects, or
Deliverables designed to be incorporated into a building, so incorporated and having caused such building to be defective, or
(i) gross negligence, willful misconduct or (ii) death or personal injury, caused by negligence or willful misconduct, or
guarantees of certain properties and/or
the right to withdraw from the Contract based on a breach imputable to interactive scape other than a Defect shall be subject to the applicable statutory limitation periods.
The limitation periods shall begin on the date specified by the statute.
Repair or replacement of a Deliverable shall not result in a renewal of the limitation period for the Customer’s Warranty Claims with respect to the repaired Deliverable. Notwithstanding the repair or replacement, such Warranty Claims shall be subject to a limitation period equivalent to the remaining limitation period applicable to the original Deliverable, except that such limitation period shall at the earliest expire three months after such repair or replacement or interactive scape’s refusal to undertake further attempts of repair or replacement.
Indemnification. The Customer shall hold interactive scape harmless from all claims asserted by third parties that the Customer has violated statutes or regulations applicable to its business, including, but not limited to, statutes of unfair competition or data protection.
The Customer shall hold interactive scape harmless from all claims asserted by third parties and any other damage or loss based on the Customer’s representations vis-à-vis third parties with regard to properties or technical specifications of the Deliverables, to the extent that such claims deviate from the specifications or materials published by the manufacturer.
Retention of Title. Until payment in full of the purchase price by the Customer, interactive scape shall retain title to the Deliverables (“Reserved Deliverables”). The Customer shall advise interactive scape without delay of any attachments regarding such Reserved Deliverables, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Reserved Deliverables. The Customer shall advise the third party of interactive scape’s right to the Deliverables.
In the event that any Reserved Deliverable is shipped to or used in a country where this Retention of Title Clause is not fully valid and enforceable, the Customer shall provide interactive scape with equivalent security.
Export. The Customer shall not export any Deliverables and technical information received from interactive scape, except in the event that all relevant export regulations in force in its country of residence as well as in the United States of America are observed, and the Customer shall impose this obligation also upon its customers, without prejudice to any other provisions of the Contract or these Conditions.
Subcontractors. interactive scape may subcontract any of its obligations under the Contract, provided that the use of any such subcontractors shall not limit or restrict interactive scape‘s obligations towards the Customer.
References, Rights of Use. Customer agrees that interactive scape may name him and, if applicable, his end customer as reference in any publication, notably in any advertising material. Interactive scape may in this context disclose details of the respective Deliverable.
Customer herewith grants to interactive scape the right to communicate to the public the Deliverable (including any project developed using such Deliverable), notably visually, orally, via video or other media. To the extent necessary Customer herewith grants to interactive scape a royalty-free, non exclusive, world wide, perpetual, transferable and sublicenseable right of use under any intellectual property rights which may be disclosed in such communication to the public. Customer confirms that he is entitled to grant such right.
Customer may exclude such approval and/or such grant of rights by written statement in the respective purchase order. Thereafter Customer may revoke his approval and/or grant of rights only with respect to any use of interactive scape which at the time of revocation had not been executed or commissioned for execution by a third party.
Notices. Any notices, declarations or waivers which may be declared or made pursuant to the Contract or these Conditions shall be valid only if they are in writing unless explicitly agreed otherwise.
No Assignment. The Customer shall not be entitled to assign any of its rights under the Contract – except for claims for payment – to any third party without interactive scape‘s prior written consent, which consent shall not be unreasonably withheld.
Severability. Should one or more of the provisions of the Contract or these Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.
Place of performance shall be Berlin, Germany.
Governing Law. The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany with the exception of its choice of law provisions and the UN Convention on the International Sale of Goods (CISG).
Jurisdiction. All disputes arising under or in connection with Contract and/or these Conditions shall be submitted exclusively to the courts of Berlin, Germany, to the extent that the Customer is a commercial entity or a public law corporation, or a public law fund or trust. The Customer hereby submits expressly to the jurisdiction of the Berlin courts.
The same shall apply if, at the time the claim is brought, the Customer’s domicile is not in Germany or not known.
Interactive scape reserves the right to take legal action against the Customer in the courts having general personal jurisdiction over the Customer.
Remedies. If Customer should breach any of its obligations under Contract and/or these Conditions, or if such a breach is likely to occur, interactive scape shall be entitled to seek equitable relief, including specific performance or an injunction, in addition to any other rights or remedies, including monetary damages, provided at law or in equity.
Attorneys’ Fees. The prevailing party in any legal action arising out of or relating to the Contract and/or these Conditions shall be entitled to an award of its reasonable attorneys’ fees and costs, in addition to any award of damages or other relief, if any, awarded to the prevailing party.
Language: The English text version of these Conditions is for information purposes only. Only the German version of these Conditions is legally binding.
Data Protection, Advertising: The Customer is hereby notified that interactive scape will process and use personal data and other contact information provided by the Customer in the context of the business relationship for the purposes of contract management and advertising. The Customer may object the processing and use of its data for advertising purposes at any time and at no charge except for regular transmission costs.