General Terms and Conditions
For Deliveries and Services
Tel.: +49 (0) 7172 209.00
Fax: +49 (0) 7127 20973.01
Geschäftsführer: Ralph Westenburger, Marc Armbruster
Registernummer: HRB 750013 Amtsgericht Stuttgart
These General Terms and Conditions for Deliveries and Services of Immersion7 GmbH (hereinafter “Immersion7”) apply for entrepreneurs (hereinafter “customer”). As of December 2020.
1. Scope of Terms
1.1 All offers and orders for deliveries and services of Immersion7 are based on these General Terms and Conditions for Deliveries and Services (“GTC”) if not agreed differently. This also applies if they are no longer expressly referred to later in an ongoing business relationship. Additional, contrary or deviating terms and conditions of the customer only apply if they are expressly acknowledged by Immersion7 in writing.
1.2 These GTC shall apply exclusively to entrepreneurs in terms of Section 14 BGB [German Civil Code] as far as the contract pertains to the company’s operation, as well as to legal entities under public law and special funds under public law in terms of Section 310 (1) BGB.
1.3 If referred to in the order confirmation, further General Terms and Conditions may apply in addition to these GTC, particularly the Licence and User Conditions for Software Purchase or Software Lease as well as the General Software Maintenance & Support Conditions of Immersion7. They have priority over provisions of these GTC within the framework of their scope of application.
1.4 Rights Immersion7 is entitled to according to the statutory provisions or according to other agreements beyond these GTC remain unaffected.
2. Offers, conclusion of contract
2.1 All offers made by Immersion7 are subject to confirmation.
2.2 Purchase orders are only deemed accepted if they are confirmed by Immersion7 in writing or if Immersion7 fulfils the purchase order, particularly if Immersion7 fulfils the purchase order by sending the products or rendering the service. An electronic order confirmation without any signature and name is deemed a written confirmation in the means of these GTC. The written order confirmation of Immersion7 is relevant to the scope of delivery or service. Insofar as the order confirmation includes any obvious mistakes, typing or calculation errors, it is not binding to Immersion7. Oral collateral agreements are always subject to the written confirmation of Immersion7 in order to become effective.
2.3 Immersion7 reserves all rights to service and product descriptions, drawings, test programs and other documents provided to the customer within the context of the offer or a later time without limitation. Such documents may only be made accessible to third parties after the prior written consent of Immersion7. The product- describing details and technical data contained in such documents and in brochures, advertisements and other information and promotional materials are prepared carefully; however, they do not constitute any quality or other guarantees for lack of express labelling as such. Modifications technically required remain reserved after the conclusion of the contract, unless they have significant effects on the agreed functionality of the delivery or service item or are unreasonable for the customer.
2.4 If Immersion7 presents the customer with samples, models or drafts and if no contract is concluded, Immersion7 may charge the customer for such samples, models and drafts at cost. The same applies accordingly to accrued transport, dispatch or other ancillary costs. The samples, models and drafts remain the property of Immersion7 until they are paid in full.
2.5 If Immersion7 fails to respond to offers, purchase orders, requests or other declarations of the customer, this is only deemed a consent if this has been agreed in writing in advance.
2.6 If the customer’s financial circumstances substantially deteriorate or if the substantiated request for the commencement of insolvency or similar proceedings for the assets of the customer is rejected for lack of assets, Immersion7 is entitled to rescind the contract in whole or in part as far as there are reasons to assume that the customer will not be able to meet its contractual duties as a consequence of the deterioration.
2.7 As far as Immersion7 and the customer agreed on delivery or service on call in writing, the customer is obliged to call the entire delivery volume and/or the entire service within a reasonable period of time; however, within three months after the conclusion of the contract at the latest.
3. Prices, Terms of Payment
3.1 Unless otherwise stated in Immersion7’s order confirmation, the prices according to the respectively applicable price list of Immersion7 apply. The stated prices exclude the statutory value added tax; with delivery of goods from stock including packaging and excluding particularly assembly, installation, freight costs and transport insurance as well as customs and other public dues. Potentially accruing travel costs and outof-pocket expenses as well as potential waiting periods of Immersion7 when rendering the assembly and installation services Immersion7 is not responsible for will be invoiced separately.
3.2 Orders for which fixed prices have not been expressly agreed and the delivery or service time of which is set at a date at least six months after the conclusion of the contract are charged according to the Immersion7 price list applicable at the day of the delivery of goods or provision of service. The entry of the list price applicable at the date of the purchase order in an order form or in an order confirmation is not deemed a fixed price agreement. With price increases of more than 10%, the customer is entitled to rescind the contract to that extent. On Immersion7’s demand, the customer will state immediately whether it will exercise its right of rescission.
3.3 If production-related or other price increases occur until the date of the delivery of goods or provision of service, Immersion7 is entitled to adjust the price accordingly regardless of the offer and order confirmation.
3.4 Invoices of Immersion7 are paid immediately upon receipt without deduction. The customer is in delay with payment if it fails to pay upon the receipt of a written warning after the due date has passed. Furthermore, it is in default without written warning 30 days after the due date and the invoice receipt. If payment is delayed, Immersion7 is entitled to claim default interest to the statutory amount. The proof of higher damage caused by delay remains reserved.
3.5 In international transactions, in deviation from clause 3.4, payment is made prior to delivery or service provision, unless otherwise agreed in writing in advance.
3.6 If the customer is in delay with payment, Immersion7 is entitled without prejudice to any further legal rights to exercise a right of retention for all still outstanding deliveries and services without prior announcement or to demand advance payment or the provision of collateral security to that extent. The same applies if Immersion7, after it has accepted an order, becomes aware of facts raising justified doubts about the customer’s solvency.
3.7 Payment by cheque or bill of exchange is only permitted after prior arrangement. Bills of exchange or cheques are only accepted on account of performance. The time of payment is the point in time the bill or cheque is collected; in the case of bill of exchange or cheque proceedings, the point in time of release from liability. All costs and expenses for the discounting or collection of the bills of exchange are borne by the customer.
3.8 The customer is not entitled to set off counter-claims against claims of Immersion7, unless such counter-claims are undisputed or established as final and absolute. The customer is only authorised to exercise a right of retention insofar as its counter-claim is based on the same contractual relationship.
4. Transfer of title, acceptance, Delivery and Service Dates, De-fault of acceptance
4.1 In the event of delivery of goods, the risk of accidental loss and of accidental deterioration is transferred to the customer at the latest as soon as the goods leave the warehouse of Immersion7; if they are to be collected by the customer, upon the notification of the readiness for collection. Dispatch is always made at the customer’s cost and risk. If no written instructions of the customer are available, Immersion7 determines the method of dispatch. Transport insurance is only taken out on the customer’s express instruction and at the customer’s cost. If dispatch is delayed for reasons the customer is responsible for, the risk is transferred to the customer upon the notification of readiness for dispatch. However, in this case, Immersion7 is willing to effect the insurances requested by the customer at the customer’s cost.
4.2 Clause 4.1 also applies if assembly or installation of the delivery item at the customer’s premises by Immersion7 has been agreed, unless this constitutes a delivery, assembly and installation obligation under a contract for work and services; in this case, the risk is only transferred upon the acceptance of the work. If the acceptance is delayed for reasons the customer is responsible for, the risk is transferred to the customer upon the notification of the readiness for acceptance.
4.3 Unless expressly agreed in writing, the statement of periods or deadlines for the provision of deliveries and services is subject to confirmation. Firmly agreed delivery and service periods start no earlier than upon the receipt of the order confirmation of Immersion7; however, not prior to the timely and proper fulfilment of the customer’s duties to cooperate, and thus particularly not prior to the provision of the documents, approvals or releases to be provided by the customer and not prior to the receipt of any potentially agreed advance payment. Any potentially agreed delivery or service is reasonably postponed under the aforementioned preconditions. Delivery periods and dates are complied with if the delivery item has left the Immersion7 delivery warehouse until their expiry or if Immersion7 has notified the readiness for collection and/or dispatch. This does not apply if acceptance is stipulated in the contract or if Immersion7 is obliged to carry out assembly or installation.
4.4 Immersion7 strives to adhere to agreed delivery and service periods. If Immersion7 is in delay with a delivery or service, the customer is entitled to rescind the contract after the unsuccessful expiry of a reasonable grace period it has set to Immersion7 after the event of default. However, the right of rescission requires that Immersion7 is responsible for the delay. The customer is obliged to state on Immersion7’s demand within a reasonable period whether it rescinds the contract after the expiry of the deadline due to the delayed delivery or service or if it insists on the delivery or service.
4.5 Disruptions of operation due to e.g. lack of material or strikes beyond Immersion7’s reasonable control and other events of force majeure as well as improper, particularly late supply to Immersion7 release Immersion7 from its performance obligation for the duration of the impediment. In case of improper supply to Immersion7, it is not released from its performance obligation if it is responsible for the reason for the improper supply. Clause 1 and clause 2 also apply if sub-suppliers experience such circumstances or if Immersion7 is already in default. As far as Immersion7 is released from the performance obligation, Immersion7 returns any advance payments made by the customer. Any further claims for damages of the customer are excluded. Immersion7 is entitled to rescind the contract after the expiry of a reasonable period if Immersion7 is no longer interested in the fulfilment of the contract due to the impediment. On the customer’s demand, Immersion7 will state after the expiry of the deadline whether Immersion7 will exercise its right of rescission or if it will perform the delivery and/or render the service within a reasonable period of time.
4.6 Partial deliveries and service are permitted as far as they are reasonable for the customer.
4.7 If the customer is in default of acceptance, Immersion7 may demand compensation for the accrued loss including any potential extra expenses. Immersion7 is particularly entitled to store the goods during the default of acceptance at the customer’s cost. The costs for the storage of the goods are determined at the lump sum of 0.5% of the net invoice value per started calendar week. Further claims of Immersion7 remain unaffected. The customer is entitled to prove that no or less costs had been incurred by Immersion7. The same applies if the customer violates other duties to cooperate, unless the customer is not responsible for the violation of other duties to cooperate. Immersion7 is entitled to otherwise dispose of the goods after the unsuccessful expiry of a reasonable period set by Immersion7 and to supply the customer within a reasonable extended period of time.
5. Copyrights, Rights for Use of Software
5.1 With regard to the Copyrights as well as the use of the Software the General License and Use Terms as well as the General Software Maintenance and Support Conditions of Immersion7 in its then applicable version shall apply. Within the framework of their scope of application, they have priority over these GTC.
6. Reservation of Ownership
6.1 If goods are delivered, such goods remain the property of Immersion7 until complete payment of the agreed remuneration and the fulfilment of all further claims arising from the legal relation with the customer, irrespective of their legal ground. With running accounts, the reserved ownership is deemed a collateral security for the respective balance claim of Immersion7.
6.2 If the customer acts in violation of the contract, particularly if it violates the applicable licence conditions, is in delay with payment or if a request for the commencement of insolvency proceedings for the assets of the customer has been filed that leads to non-fulfilment of due payments, Immersion7 is entitled to take back the delivered goods. The customer is obliged to surrender such goods. The withdrawal and/or assertion of the reservation of ownership is not subject to Immersion7’s rescission of the contract. Such actions or the pledge of the delivered goods by Immersion7 do not constitute rescission of the contract, unless this is expressly stated by Immersion7 in writing. Immersion7 is entitled to dispose of the goods after it has taken them back. The resulting proceeds – minus reasonable disposal costs – are to be set off against the customer’s payables.
6.3 The customer is obliged to handle the delivered goods with care for the duration of the reservation of ownership. Necessary maintenance and inspection works are to be done by the customer on its own costs. If required by Immersion7 customer is obliged to adequately insure the goods against damage at replacement value for the duration of the reservation of ownership. The customer shall prove the effective insurance on Immersion7’s demand. The customer hereby assigns claims against the insurance company up to the amount of the underlying receivables to Immersion7. Immersion7 hereby accepts this assignment. As far as such assignment is not permitted, the customer hereby instructs the insurance company to make any potential payments to Immersion7 only. Further claims of Immersion7 remain unaffected.
6.4 In case of pledges or other third party interventions, the customer informs Immersion7 immediately in writing and provides all required information so that Immersion7 can assert its property rights. Furthermore, the customer informs the third party about the property rights of Immersion7 and participates in Immersion7’s measures to protect the goods subject to reservation of ownership. As far as the third party is not willing or able to reimburse Immersion7 for the court and out-of-court costs to en-force the property rights of Immersion7, the customer is obliged to reimburse the resulting loss to Immersion7, unless the customer is not responsible for the pledge or other third party intervention.
6.5 Subject to revocation, the customer is entitled to process the delivered goods in the proper course of business or to combine them with other items at all times. The processing or combination is made for Immersion7 but without obligating Immersion7. In case of processing or combination, the customer procures for Immersion7 co-ownership of the new or combined item in the proportion of the invoice value of the reserved goods of Immersion7 to the sum of the invoice values of all used external goods including the processing costs. In all other cases, the item resulting from the processing or combination is subject to the same provisions that apply to the goods delivered by Immersion7 subject to reservation.
6.6 The customer may dispose goods owned or co-owned by Immersion7 only in the ordinary course of business on its normal conditions; however, this only applies as long as the customer is not in delay with payment. If the goods are resold, the customer hereby assigns to Immersion7 in advance the receivables from its purchasers or third parties to the amount of the respective invoice amount of Immersion7 for the resold goods (including value added tax) plus a security surcharge of the amount of 10%. Immersion7 hereby accepts the assignment.
6.7 The customer is entitled to collect the receivables assigned to Immersion7 according to the above clause 6.6 until this is revoked by Immersion7, which is permitted at any time. Immersion7 will only exercise such right of revocation for good cause. The collected amounts shall be paid to Immersion7 without delay. The customer is obliged on demand to inform the third-party debtors about the assignment to Immersion7 and to provide Immersion7 with the information and documents required for the collection.
6.8 If the value of the collateral securities existing for Immersion7 exceed the receivables of Immersion7 from the customer by more than 10% in total, Immersion7 is obliged to release the collateral securities exceeding such threshold on the customer’s demand; Immersion7 is entitled to select the individual items to be released.
6.9 If goods are delivered into other countries where this reservation of ownership regulation does not have the same securing effect as in the Federal Republic of Germany, the customer hereby grants Immersion7 a corresponding security interest. If further measures need to be taken for this purpose, the customer will make all reasonable efforts to grant such security interest to Immersion7 without delay. The customer will participate in all measures required and purposeful for the effectiveness and enforceability of such security interests.
7. Material defects in deliveries (purchase) and works
7.1 If goods are delivered, the customer shall carefully inspect the delivery item immediately after delivery, including after a trial use where reasonable, and notify any defects to Immersion7 in writing immediately, however, seven working days after delivery, with hidden defects seven working days after recognisability at the latest. The customer shall describe the defects in writing in its notification to Immersion7.
7.2 Work performances shall be accepted by the customer immediately after the performance in writing; the acceptance cannot be refused due to insignificant defects. Written acceptance is particularly deemed occurred even if the customer fails to accept the work performances within a reasonable period set by Immersion7 although it is obliged to do so. Furthermore, written acceptance is particularly deemed occurred if the customer starts using the work or resells it.
7.3 If defects of the delivery item (in case of delivery of goods) are notified in due time and in case of defects not known upon acceptance or in case of defects of work performances reserved upon acceptance, the customer is first entitled to subsequent performance within a reasonable period of time to be set by the cus-tomer. Immersion7 decides on the method of subsequent performance (removal of defects or new delivery/new production). The required expenses such as wage, material, transport and road costs are only borne by Immersion7 as far as such expenses do not increase due to the fact that the delivery or service item has been subsequently brought to a place other than the originally agreed delivery or service destination, unless this corresponds to the intended use. If a defect was notified without good reason, Immersion7 is entitled to claim compensation for the expenses incurred by it from the customer, unless the customer is not re-sponsible for the unjustified notification of defects.
7.4 If Immersion7 opts for new delivery to carry out subsequent improvement, Immersion7 may demand the return of the defective delivery item by the customer as provided by law. As far as the customer is legally obliged to pay compensation for use to Immersion7, the parties hereby agree the following compensation for use:
7.4.1 Use for more than one to three months: 10% of the net sales value;
7.4.2 Use for more than three to six months: 20% of the net sales value;
7.4.3 Use for more than six to twelve months: 30% of the net sales value;
7.4.4 Use for more than twelve to twenty months: 50% of the net sales value. The customer is entitled to prove that it has not had any or less benefits from the defective delivery item. The customer’s obligation to value replacement because it fails to benefit contrary to the rules of proper economics although it would have been possible for it remains unaffected.
7.5 As far as Immersion7 is unsuccessful in the second attempt of subsequent performance, the customer, without prejudice to any claims for damages or compensation of expenses according to clause 9, may demand, at its option, (i) the reduction of the agreed remuneration for the delivery or service (reduction); (ii) remove the defect itself and demand compensation of the required expenses (only applicable to work performances); or, if Immersion7’s breach of duty is not only insignificant, (iv) rescind from the contract.
7.6 The customer does not have claims based on material defects as far as a defect is based on the fact that the delivery or service item has been changed arbitrarily by the customer or has not been used in accordance with the respectively applicable product description or other documents pertaining to the goods. Claims based on defects do not arise for defects due to ordinary wear and tear, particularly with wear and tear parts, improper treatment, assembly, use or storage, heat influence, strong electro-magnetic fields, moisture, dust or static charging, and for defects following instable power supply.
7.7 The customer’s claims based on defects are subject to the compliance with the requirements, notes, guidelines and conditions in the technical information, operating manuals and other documents of the individual delivery items.
7.8 Unless otherwise agreed in individual cases, Immersion7 does not assume any guarantees, particularly no quality or durability guarantees.
7.9 The limitation period for the customer’s claims based on defects is one year after delivery (with deliveries) and/or after acceptance (with work performances). The limitation period reduction to one year also applies to claims arising from tort that are based on a defect of the delivery item or service. The limitation period reduction does not apply to the unlimited liability of Immersion7 for damage arising from the violation of a guarantee or from injury to life, body or health, to intention and gross negligence, to product errors, or as far as Immersion7 has assumed a procurement risk.
7.10 Claims based on defects of used delivery items are excluded. Used delivery items are such delivery items that had already been commissioned or used. Immersion7’s liability according to clause 9 remains unaffected.
8.1 Immersion7 warrants within the limits of the statutory provi-sions that the services rendered by it are free from rights of third parties that oppose their contractual use by the customer.
8.2 If third parties assert such rights, the customer will inform Immersion7 immediately and provide Immersion7 with all powers of attorney and authorisations required to defend the customer against asserted third party rights.
8.3 In case of a legal defect, Immersion7 is entitled, at its option,
8.3.1 to remove the rights of third parties impairing the contractual use of the service or their assertion by suitable measures; or
8.3.2 to change or replace the service so that it no longer infringes rights of third parties if and as far as this does not impair the warranted functionality of the service.
8.4 As far as the second attempt by Immersion7 to remove the legal defect according to the above clause 8.3 within a reasonable period to be set by the customer fails, the customer may, without prejudice to any potential claims for damages or compensation of expenses according to clause 9, demand at its option the reduction (reduction of the agreed) remuneration or – if the legal defect is not only insignificant – terminate the contract.
8.5 Clause 7.9 applies accordingly to the limitation period of claims based on legal defects.
9. Damages and Reimbursement of Expenses
9.1 Immersion7 is liable according to the statutory provisions as far as the customer asserts claims for damages or compensation of expenses that are based on intention or gross negligence or the non-compliance with guarantees issued in writing (including the assumption of a procurement risk) and in the cases of intentional or negligent injury to life, body or health.
9.2 Apart from that, in case of simple negligence, Immersion7 is only liable for the violation of essential contractual obligations. Essential contractual obligations are such obligations resulting from the nature of the contract and of significant importance for the achievement of the contractual purpose. If essential contractual obligations are violated due to simple negligence, Immersion7’s liability is limited to the foreseeable damage typical for this type of contract; in this case, claims for damages and com-pensation of expenses become statute-barred after twelve months.
9.3 If data are lost, Immersion7 is at most liable for the expenses required for the reconstruction of the data with proper data backup by the customer.
9.4 Any further liability for damages or compensation of expenses than provided in these GTC is excluded irrespective of the legal nature of the asserted claim. The mandatory liability for product errors remains unaffected.
9.5 As far as Immersion7’s liability is excluded or limited according to these GTC, this also applies to the liability of the organs of Immersion7 and of persons used to perform its obligations and vicarious agents, particularly employees.
10. Product Liability
10.1 The customer will not change the delivery items; it will particularly not change or remove any existing product warnings. If this obligation is violated, the customer releases Immersion7 from product liability claims of third parties in internal relations, unless the customer is not responsible for the error triggering liability.
10.2 If Immersion7 is prompted to issue a product recall or warning due to a product error of the delivery items, the customer will use its best efforts to participate in the measures Immersion7 considers to be necessary and purposeful and support Immersion7, particularly in the determination of the required customer data. The customer is obliged to bear the costs of the product recall or warning, unless it is not responsible for the product error and the resulting damage according to the Product Liability Act principles. Further claims of Immersion7 remain unaffected.
10.3 The customer will inform Immersion7 about risks when using the delivery items and potential product errors it becomes aware of in writing without delay.
11. Confidential information
11.1 The parties shall be obliged to treat as confidential both any information that has become known to them during the implementation of this Agreement and any knowledge that they will obtain as part of the cooperation about matters, e.g. of a technical, business management or organizational nature, of the respective other party hereto and its customers or other partners. Knowledge become known must be utilized, used or made accessible to third parties without the prior written consent of the party concerned neither during the term nor after termination hereof. The use of any information that has become known shall be limited to the utilization that is absolutely necessary for the performance of this Agreement.
11.2 The parties shall apply the same due diligence and care with regard to the protection of the know-how of the respective other party as th one they apply to protect their own confidential information, but in any case at least the due diligence and care of a prudent businessperson.
11.3 Such secrecy obligation shall comprise the entire know-how, including any and all documents, materials, drawings, data and items that the parties have already made and/or will still make available to each other.
11.4 The receiving party shall not be entitled to use the know-how for own purposes or for the purposes of third parties. The receiving party shall also be prohibited to register industrial property rights for the know-how in whole or in part.
11.5 Such non-disclosure obligation shall not comprise (i) any know-how that has been and/or will be independently developed by the receiving party; (ii) know-how made available to the receiving party by a third party without any secrecy undertaking being breached; (iii) know-how which is publicly known at the time of disclosure; or (iv) know-how which becomes subsequently known to the public without limitation; or (v) cases in which disclosure is ordered on account of an enforceable decision of a competent public authority or a final judgement of a competent court. The affected party shall inform the respective other party both of any official or judicial order once it has gained knowledge of the fact that such an order might be enacted and of the relevant proceedings. Upon corresponding request, the party obligated to disclose shall grant the other party any authorization for the initiation of proceedings that it deems appropriate to protect its secrecy interests. The party invoking the existence of one of the aforementioned exceptions shall bear the burden of proof for the existence of the relevant exception.
12. Data Privacy
12.1 The personal data communicated by the customer within the course of the contractual relationship of the parties shall be used confidentially and in line with the provisions of the German Federal Data Protection Act, the General Data Protection Regulation as well as of the German Telemedia Act.
12.2 To the extent that data is processed in a non-anonymised form by Immersion7 legal basis is Art. 6 par. 1 lit b) GDPR. If personal data is forwarded to third parties when conducting the contractual services the processing of such data are the statutory provisions.
12.3 Conducting the agreement, Immersion7 will evaluate anonymised access data of Customer and/or its partners to the licensed products for product improvement and product enhancement purposes.
12.4 The customer shall have the right at any time to obtain information regarding the retained personal data and to claim their rectification. This shall include information about the origin of the data as well as the recipients to whom the data had been forwarded. Requests for information, specifying the question as precisely as possible, must be addressed to Immersion7 GmbH, Hallstattstraße 16, 72766 Reutlingen, fon: +49 7127 209 73.00, e-mail: email@example.com.
12.5 The competent supervisory authority is the Baden-Württem-berg State Commissioner for Data Protection and Freedom of Information, www.baden-wuerttemberg.datenschutz.de.
13. International Deliveries, Export Control
13.1 With international deliveries, the customer shall issue all declarations to the competent authorities in due time for the export from Germany and import to the country of destination and take all related measures, particularly procure all documents required for customs clearance and meet the requirements to potential export controls or other restrictions of marketability. On Immersion7’s demand, the customer shall present an end-use certificate that meets the requirements of the respectively applicable provisions.
13.2 International deliveries are subject to the proviso that the fulfilment is not opposed by national or international regulations, particularly export control regulations as well as embargos or other sanctions.
13.3 Delays due to export controls render delivery times invalid.
14. Final Clauses
14.1 The law of the Federal Republic of Germany excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods applies exclusively to the legal relations with the customers of Immersion7.
14.2 Exclusive place of performance for both contractual parties is the registered seat of Immersion7. Place of jurisdiction is Stuttgart. However, Immersion7 is also entitled to sue the customer at its general place of jurisdiction.
14.3 Should any provision of these General Terms and Conditions for Deliveries and Services be or become invalid or unfeasible in whole or in part or should these General Terms and Conditions for Deliveries and Services contain a gap, this does not affect the validity of the remaining provisions. Instead of the invalid or unfeasible provision, such valid or feasible regulation is deemed agreed that comes closest to the purpose of the invalid or unfeasible provision. In case of a gap, such regulation is deemed agreed that corresponds to what would have been agreed according to the purpose of these General Terms and Conditions for Deliveries and Services if the parties had considered the matter from the outset.
© Immersion7- GTC Deliveries and Services
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License and User Conditions
Tel.: +49 (0) 7172 209.00
Fax: +49 (0) 7127 20973.01
Geschäftsführer: Ralph Westenburger, Marc Armbruster
Registernummer: HRB 750013 Amtsgericht Stuttgart
These License and User Conditions of Immersion7 GmbH (hereinafter “Immersion7”) apply for entrepreneurs (hereinafter “customer”). As of December 2020.
1. Scope of Contract
1.1 Immersion7 designs, develops and distributes the software platform smartPerform (Content Management System configured for kiosk application) for production and operating of tailor-made user interfaces and functions. So called apps complete as independent and configurable applications the smartPerform portfolio.
1.2 The Customer receives the software from Immersion7 in the version which is current when the contract is concluded (“Software”). The Software will be provided as an executable program either (i) as a digital copy on a suitable data carrier or (ii) for download by the Customer, the way of supply to be decided by Immersion7. In the same way as the Software the applicable application documentation (“Application Documentation”) in English (collectively “Product”) will be provided to Customer at the terms and conditions set forth in this Agreement.
1.3 Software in the content of these terms and conditions means all components of the Software, of which Immersion7 holds all right, title and interest in and to the intellectual property rights as well as such components of software, which are distributed by Immersion7, including the Application Documentation and all updates which are received by Customer via Immersion7.
1.4 Proprietary Software means such components of software, which are in the sole property of Immersion7 or partner of Immersion7, therefore neither free software nor Open Source Component.
1.5 Software which is supplied with a physical safety device (“Dongle”) may only be used in conjunction with that dongle.
1.6 Proprietary Software will be delivered in executable Code, meaning object code. The Software source code is not part of the Product.
1.7 If Customer receives Components licensed by Immersion7 under Ms-PL and GPLv2 in the form of binary files, Customer may request a copy of the source code according to the relative license via Immersion7. Customer has to submit a written request to Immersion 7. The written request to Customer must include the following information: Name and version number of the licensed Software, name of Customer, point of contact of Customer, full postal address and email address. Immersion7 shall be entitled to charge a fee for the physical media. Immersion7 will inform Customer about the costs and the payment procedure prior to the dispatch of the media. The request of Customer has to be made within 3 (three) years from the date of the last delivery of the product.
1.8 Not object of this Agreement are performances regarding the installation and customizing of the delivered Software. For these services the Parties have to enter into separate agreements.
1.9 The condition of the Software is finally defined in the then actual specification and the Application Documentation when entering into the License Agreement. An exceeding condition of the Software is not owed by Immersion7.
2. Right of Use, Time of Use
2.1 Purchase of Software
2.1.1 Immersion7 grants Customer a simple, non-exclusive right to use the Software and the Application Documentation for an indefinite period of time at one workstation. The right to use the Software comprises installing, loading, displaying and running the installed Software as well as saving the Software in the main memory of the computer on which the Software is installed.
2.1.2 Customer may only pass the Product on to a third party in its entirety according to the terms and conditions of this License Agreement, in which case it must then surrender completely and permanently all rights to use the Product itself. The right of use may not be transferred to third parties in whole or in part on a temporary basis for a charge irrespective of whether the Product was supplied physically or non-physically. The same shall apply if it is transferred free of charge.
2.1.3 In case of a change of the licensee the customer has to disclose towards Immersion7 the contact data of the new licensee, this especially to enable Immersion7 to deliver future support services.
2.2 Lease of Software
2.2.1 Immersion7 grants the Customer a simple, non-exclusive non-transferable right to use the Software and Application Documentation for the duration of the Lease Agreement at one workstation. The right to use includes the installing, loading, displaying and running of the installed Software as well as saving the Software in the main memory of the computer on which the Software is installed.
2.2.2 The right to use terminates with the end of the duration of the Lease Agreement notwithstanding the right of termination without notice. The termination has to be done in written form. The Agreement will not be automatically extended.
2.2.3 The use of the Software by the Customer after termination of the Lease Agreement is not allowed.
2.3 Copyrights, General Rights for Use
2.3.1 The Customer undertakes to observe the copyrights and other intellectual property rights inherent in the delivered goods or in the work created in the course of rendering the services, particularly in the Software.
2.3.2 If software of external manufacturers (third party software) is delivered by Immersion7 together with the Software, the Customer undertakes to use the third party software solely in compliance with the respectively applicable licence conditions of the manufacturer and to impose the same obligations on the purchaser in case it is resold (if resale is permitted).
2.3.3 The Customer may only install and use the Software on the agreed number of computers for which he is paying the purchase price or lease rent as defined in Sect. 5 of this Agreement. If the Software cannot be used temporarily or in full on any of the computers, particularly owing to technical problems or repair work, Customer may install the Software on an alternative computer. If the computer on which the Software is installed is changed on a permanent basis, the Software may be installed on the new computer. The Software must be deleted completely from the previous computer beforehand. In case of a multiple use Sect. 5.4 is applicable.
2.3.4 Customer may only use the Software for its own business purposes within the agreed license model. A separate written agreement is especially required inter alia for (i) operating a computer center for third parties or (ii) making the Software available on a temporary basis (e.g. by application service providing). The Software may not be leased commercially to third parties.
2.3.5 In the standard scope of delivery, the Software is intended for use in closed and secured networks such as showrooms, conference centers, sales rooms or even a company campus only. If the Customer uses the Software for presentations in public areas and/or outside of secured networks, this shall be at the Customer’s own liability. The systems used by the Customer in this context shall be secured in such a way that unauthorized access to the systems by third parties is prevented. The Customer shall be fully liable for any damages incurred by third parties and/or Immersion7 as a result of unauthorized third parties accessing its systems and the Software.
2.3.6 Customer may only modify the Software to the extent necessary to remedy faults.
2.3.7 Customer may only decompile the Software within the limits of § 69e German Copyright Act (Urhebergesetz) and only if Immersion7 has failed to provide the necessary data and/or information to create interoperability with other hardware and software within a reasonable period after having been requested in writing to do so.
2.3.8 If Immersion7 provides Customer with items such as patches, supplementary Application Documentation or a new version of the Product such as an update or upgrade in the context of supplementary improvement or service which supplant Products which were provided previously (“Old Software”), these are subject to the terms and conditions of this contract. If Immersion7 makes a new version of the Product available, the Customer’s rights under this contract related to the Old Software lapse as soon as the Customer starts using the new Software productively even if Immersion7 has not expressly requested that it be returned. However, Immersion7 grants the Customer a one-month transitional period during which both versions of the Product may be used parallel, if Customer has been observant until then.
2.3.9 Notwithstanding the provision in Sect. 2.3.5, the Application Documentation may not be copied. The Application Documentation may only be copied or modified to the extent that it is integrated in the Software and the Customer is entitled to copy the Software.
2.3.10 If not been granted expressly under this contract or by law, all rights in the Products (and in any copies which the Customer may have made) including without limitation copyright, the rights to or in inventions and technical property rights shall lie solely with Immersion7. This does not apply to the Customer’s title in the data carriers on which such copies have been saved.
2.3.11 To the extent that the Software contains Open-Source-Components, Customer has the right to use these within the scope as defined in this Agreement. It can be that Customer can obtain further rights regarding the Open-Source-Components. For this purpose, he has to enter into separate License Agreements with the respective holder of rights.
2.3.12 Insofar as the proprietary Software is linked to program libraries which are licensed under GNU General Public License (LGPL) Customer is entitled to analyze and reengineer such Proprietary Software to patch Proprietary Software and modify program libraries under LGPL. Customer may not transfer information generated by the modification process. The Application Documentation is accompanied by a list of Proprietary Software, which is linked to licensed program libraries under LGPL.
2.3.13 With the individual creation of software on the Customer’s behalf or with the performance of individual adjustment programming (“Individual Software”), the Customer receives a non-exclusive right to use the respective service results, unless otherwise agreed in writing in individual cases. In all other cases, the General Licence and Use Conditions for Software apply to the use of such Individual Software in addition to these License and User Conditions.
3. Demo Version of the Software
3.1 Immersion7 is offering the Software complementary as a Demo Version to be used temporarily. The then applicable conditions for the use of the Demo Version are defined in the order confirmation.
3.2 The User has to install the Demo Version on its own Systems by its own.
3.3 The Demo Version is solely to be used for testing the Software and its functions on a single working station. Furthermore the Demo Version may be used to present the performance of the Software and applications produced with it. The use beyond that especially, but not limited to the use (i) for creating a presentation, if not for testing purposes only; (ii) in a data processing center; (iii) in the way of temporarily providing application services; or (iv) for training purposes or any other commercial or non-commercial uses, which are not serving for temporarily testing of the Software are strictly forbidden. Same applies to the reproduction of the Software and the Application Documentation.
3.4 The time period to use the Software is limited to the extent necessary and appropriate to test it. Immersion7 may at any time and without giving reason forbid any further use of the Demo Version by the user with immediate effect.
3.5 With discontinuation of the right to use the Demo Version the user is obliged to delete it on its systems and return all product information and documents it received during the testing period. User is not allowed to keep any copies of the Software or any related materials it received.
3.6 The liability of Immersion7 regarding the Software which has been let complementary is limited to material and legal defects which has been withhold fraudulently. Beside this any liability of Immersion7 is excluded.
3.7 The before mentioned limitation of liability does not apply in case of a mandatory legal liability especially according to the product liability act, in case of given guarantees and culpable caused damage of life, body or health of any person.
3.8 If not defined differently above the terms and conditions set forth in this License Agreement do apply for the use of any Demo Version.
3.9 If, at the end of the testing period, user decides to buy or rent the Software the applicable terms and conditions of the order confirmation as well as of this License Agreement do apply.
4.1 Usage examples for our application contain media content, which sole and only rights to use are owned by Immersion 7. The usage of the respective media content, whether separately or in the scope of their commercial distribution, is solely permitted for marketing purposes of smartPerform only, but not for an independent usage or the usage independently from our application.
4.2 Insofar as examples for the usage of our application are used as templates for individual customer projects all graphics, media content, licenses for third party components have to be deleted and replaced by the relevant content of the respective customer.
5. Remuneration, Terms of Payment
5.1 Unless otherwise stated in the order form, the purchase price for the Product shall be as set out in the Immersion7 price list which applies when the contract is concluded.
5.2 If Customer purchases the Product, the purchase price is due on the invoice date.
5.3 If Customer enters into a Lease Agreement the lease fee for Lease Agreement with a term up to 30 days is due at the beginning of the lease term. For Lease Agreement with a longer term the Parties shall enter into a separate agreement regarding payment terms.
5.4 The Customer may only use the Software to an extent which goes beyond the scope of the rights of use granted in this Agreement on the basis of a written agreement with Immersion7. Failure to seek Immersion7′ s consent entitles Immersion7 to charge the Customer for the increased use according to the Immersion7 price list valid at the time of the extended use. The calculation of the compensation will be calculated on four-year straight line depreciation.
5.5 All prices quoted are net price and are subject to VAT at the applicable statutory rate.
5.6 The price of the Product does not include transport and packaging. The Customer shall refund Immersion7 reasonable expenditure incurred for delivery. If the Product is provided for download via a network Immersion7 shall bear the costs of making it possible to download; the Customer shall bear the costs of downloading.
6. Protection of Software and Application Documentation
6.1 Customer may not change or remove Immersion7′ s copyright marks, labelling and/or control numbers or marks. If the Customer changes or edits the Products these marks and labelling must be displayed on the changed version of the Product.
6.2 If Customer passes data carriers, storage media or other hardware containing Product (in whole or in part, unchanged or modified) (i) to third parties without this constituting transfer pursuant to Sect. 2.1.2 of this contract or (ii) ceases to have direct possession it shall ensure that the Products saved on such carriers shall be completely and permanently deleted beforehand.
6.3 Whenever entitlement to use ends (e.g. term of contract ends, termination, replacement delivery) Customer shall release all Products without undue delay and delete all copies, in which case it shall provide Immersion7 with written confirmation that it has complied.
7. Duties to cooperate and provide information
7.1 Customer shall inform itself with the material functions of the Software before entering into the Agreement and shall bear the risk of it failing to meet the Customer’s wishes and needs.
7.2 The responsibility for setting up a suitable and functioning hardware and software environment and for ensuring that this environment is sufficiently powerful to meet the additional demands which the Products place on the hardware and software lies with the Customer.
8. Material and legal defects
8.1 Material and legal defects when entering into a Purchase Agreement
8.1.1 Any warranty rights of Customer presuppose that he shall have properly met his duty of inspections and obligations to report defects in accordance with Section 377 German Commercial Code (HGB). Customer shall immediately report to Immersion7 any defects found in written form, latest within 7 days after transfer of the Product. Defects which couldn’t be detected within the course of a proper business routine shall be reported latest within 7 days after detection. In all other cases the Products shall be deemed accepted unless Immersion7 fraudulent concealed the defect.
8.1.2 If the Product is defective, Customer shall provide Immersion7 with an opportunity to remedy the defect or to replace the Product, the decision of whether to remedy or replace being at Immersion7′ s sole discretion. If Immersion7 chooses to remedy the defect, Customer has to grant Immersion7 the right of two repair attempts within the term set by Customer unless the Customer cannot be reasonably expected to accept it, or if Immersion7 refuses to or do not render subsequent performance within a reasonable period set by the Customer. In this case Customer may withdraw from the Agreement. Customer may not withdraw from the Agreement owing to only minor defects.
8.1.3 Immersion7′ s liability shall lapse to the extent that the Customer modifies Product without Immersion7′ s prior written consent and the defect is attributable to these modifications.
8.1.4 The limitation period for claims for defects is 12 months. This does not apply to claims for compensation. The beginning of the limitation period shall be as provided for by statute. Claims attributable to intent or gross negligence on the part of Immersion7, malicious failure to disclose a defect, personal injury and or legal defects within the meaning of § 438 (1) no. 1(a) German Civil Code, and to guarantees (§ 444 German Civil Code) shall be subject to the limitation periods provided by statute. The same applies to claims under the German Product Liability Act.
8.2 Material and legal defects when entering into a Lease Agreement
8.2.1 Immersion7 shall remedy any defects in the Product. Immersion7 is free to choose whether to remedy the defect by improving or replacing the Product free of charge.
8.2.2 Customer may only terminate the Agreement pursuant to § 543 (2) sentence 1 no. 1 German Civil Code on the grounds of Immersion7′ s failure to supply a product which can be used for the purpose set out in the contract if Immersion7 has first been given sufficient opportunity to remedy the defect and has definitively failed. Remedy of the defect is deemed to have failed if remedy is impossible, if Immersion7 has refused to remedy or if remedy is delayed in a manner which is unreasonable, if there is good reason to doubt the prospects of success or if the Customer cannot be reasonably expected to accept remedy for other reasons.
8.2.3 Immersion7 s liability shall lapse to the extent that the Customer modifies the Product without Immersion7′ s prior written consent and the defect is attributable to these modifications. This does not affect the Customer’s rights regarding defects provided that the Customer is authorized to make modifications including any modifications which it makes in accordance with § 536 a (2) German Civil Code and that it makes such modifications to professional standard and keeps clear records thereof.
8.3 Immersion7 warrants that it will remedy legal defects by subsequent delivery. For this purpose, Immersion7 shall ensure that the Customer is lawfully entitled to use the Products supplied or provide Customer with equivalent replaced or modified Products.
8.4 If third parties assert claims which prevent the Customer from exercising rights of use which it has been granted by this contract, the Customer shall notify Immersion7 in detail and in writing without undue delay. The Customer hereby authorizes Immersion7 to bring action against third parties in and out of court.
9.1 Subject to Sect. 9.3 below Immersion7′ s liability for damage caused by Immersion7 or its vicarious agents or agents shall be limited as follows:
9.1.1 The amount of Immersion7′ s liability for slightly negligent breach of material duties arising from the obligation shall be limited to the damage typically foreseeable at the time the contract is concluded, whereas the term “material duties” describes duties which are indispensable to proper implementation of the contract and which the Customer can normally rely on to be fulfilled. Immersion7 is not liable for the slightly negligent breach of non-material duties arising from the contract.
9.1.2 The above limitations of liability do not apply to cases of mandatory statutory liability, including without limitation liability under the German Product Liability Act (Produkthaftungsgesetz), to assumption of a guarantee or to culpable injury to life, the body and health.
9.2 Liability for loss of data shall be limited to the losses which would be incurred assuming that back-up copies are made at regular intervals. Unless expressly otherwise agreed, responsibility for safeguarding the data lies solely with the Customer.
9.3 If Customer leases the Product the liability of Immersion7 regardless of culpability according to § 536 a (2) German Civil Code due to defects which already existed when entering into the Lease Agreement is excluded.
9.4 Apart from that the Parties are liable according to the then applicable legal regulations.
10. Data Privacy
10.1 The personal data communicated by the Customer within the course of the contractual relationship of the parties shall be used and processed confidentially and in line with the provisions of the German Federal Data Protection Act, the General Data Protection Regulation as well as of the German Telemedia Act.
10.2 Conducting the agreement, Immersion7 will evaluate anonymised access data of Customer and/or its partners to the licensed products for product improvement and product enhancement purposes.
10.3 To the extent that data is processed in a non-anonymised form by Immersion7 legal basis is Art. 6 par. 1 lit b) GDPR. If personal data is forwarded to third parties when conducting the contractual services, the processing of such data are the statutory provisions.
10.4 The customer shall have the right at any time to obtain information from Immersion7 regarding the retained personal data and to claim their rectification. This shall include the origin of the data as well as the recipients to whom the data had been forwarded. Requests for information, specifying the question as precisely as possible, must be addressed to Immersion7 GmbH, Hallstattstraße 16, 72766 Reutlingen, fon: +49 7127 209 73.00, e-mail: firstname.lastname@example.org.
10.5 The competent supervisory authority is the Baden-Württemberg State Commissioner for Data Protection and Freedom of Information, www.baden-wuerttemberg.datenschutz.de.
11. Final Provisions
11.1 Customer is obliged to comply with all relevant regulations regarding the export of the Product of Germany, the European Union, the United States of America and any other export and import regulations which do apply in the country where the Product will be used. It’s the sole and only liability of Customer to comply with the applicable regulations.
11.2 If not agreed upon differently in these License and User Conditions the General Terms and Conditions for Deliveries and Services of Immersion7 GmbH and for booked maintenance services the General Software Maintenance & Support Conditions shall apply. If a Partner Agreement has been entered into its terms and conditions shall apply as well, including possibly agreed special agreements. You find these under www.smartperform.de.
© Immersion7- License and User Conditions
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General Software Maintenance & Support Conditions
Tel.: +49 (0) 7172 209.00
Fax: +49 (0) 7127 20973.01
Geschäftsführer: Ralph Westenburger, Marc Armbruster
Registernummer: HRB 750013 Amtsgericht Stuttgart
The following General Software Maintenance & Support Conditions (hereinafter “GTC Maintenance and Support”) of Immersion7 GmbH (hereinafter “Immersion7”) apply for entrepreneurs (hereinafter “customer”) who order Software Maintenance and Support Services for the Software by Immersion7. As of December 2020.
1. Scope of Contract
1.1 Immersion7 offers its contractual partners for its standard software smartPerform (smartPerform Pro and products based on smartPerform App-Viewers within smartPerform Applications, hereinafter „Software“) developed and produced by Immersion7, based on its then applicable General Terms and Conditions for Deliveries and Services (“GTC”) as well as the Licence and User Conditions (“License Agreement”) support services as detailed below.
1.2 Software maintenance and support services (“Maintenance Services”) are delivered for sales partners and end customers who either entered directly with Immersion7 or with their respective contractual partners, who is a licensed partner of Immersion7, into a software maintenance and support agreement (“Support Agreement”).
1.3 “Partner” in the means of this Support Agreement is (i) a sales partner of Immersion7, using the Software by itself based on the partner agreement the parties entered into or distributing it to its own end customers and who has entered into a support agreement with Immersion 7 regarding the licensed Software; or (ii) the end customer of a partner or of Immersion7 who is represented towards Immersion7 by a Power User as defined in Sect. 2.6 and who has entered into a Support Agreement with Immersion7 directly or via a sales partner.
1.4 The exact indication of the respective contractual Software for which Maintenance Services are rendered according to these GTC Maintenance and Support is stated in the licence schedule attached to the delivery of Immersion7 for the relevant software licence.
1.5 The Maintenance Services offered by Immersion7 for the Software and its conditions are defined in the order confirmation.
1.6 The maintenance services to be provided by Immersion7 for the Software licensed by the end customer are detailed in the maintenance schedule. The partner receives the maintenance schedule when entering into the Support Agreement; the partner will receive an actualized maintenance schedule with changes of the Maintenance Services.
1.7 The Maintenance Services offered by Immersion7 for the Software licensed by an end customer always refers to the entire licence portfolio of an end customer; they therefore can only be terminated for the entire licence portfolio of an end customer.
1.8 In so far as Immersion7 provides Maintenance Services for the Software of an end customer of the partner, the commissioning of Immersion7 shall be done directly by the partner. If Immersion7 provides Maintenance Services for an end user or an end customer represented by a Power User, the conclusion of the contract for Maintenance Services may at the parties’ discretion be done directly between the end customer and Immersion7.
1.9 These GTC Maintenance and Support also apply to later versions of the Software provided to the partner by Immersion7 within the context of the Update & Upgrade Services according to Sect. 3.1, if not agreed differently upon the provision of the relevant actual version.
1.10 After a new software version is released, the Maintenance Services for the respective previous version will still be rendered for a period of six months.
2. Support Service
2.1 Within the scope of the respective service agreement in accordance with the Support Agreement entered into incidents which occur during the contractual use of the Software by the end user are dealt with by Immersion7 after notification by the upstream support (as defined in Sect. 2.6) of the partner.
2.2 An incident has occurred if the Software does not fulfil the functions stated in the program documentation, delivers wrong results, interrupts its run in an uncontrolled manner, or otherwise fails to work according to its functions so that the contractual use of the Software is impaired not only insignificantly.
2.3 In line with the Maintenance Services, Immersion7 undertakes to offer a timely solution for the endured incident by narrowing down the cause of the incident, analysing the incident and remove it or, to the extent that a removal is not possible with a reasonable expenditure, maintaining the operation of the Software bypointing out a bypass solution.
2.4 In accordance with the service agreements defined in the Support Agreement Immersion7 offers qualified designers of smartPerform application projects of the partner, its end customers or its authorized agents support services in case of questions regarding the usage / handling of smartPerform during its performance as well as in the course of generating and editing a smartPerform project. If Immersion7 has no knowledge about the respective smartPerform application the required introductory training of Immersion7 has to be commissioned to the then actual remuneration rates.
2.5 Within the scope of the Maintenance Services booked in accordance with the order confirmation the partner may issue the defined number of notifications towards Immersion7 without further remuneration. These notifications will be administrated by Immersion7 in so called tickets. Immersion7 will inform partner if a ticket has been open and when it will be closed.
2.6 The partner or its agent may be qualified as an upstream support trier (e.g. 2nd / 1st level support). Precondition is that at least one employee of the partner or its agent is qualified as a certified power user (“Power User”). To become a certified Power User, the respective person has to take part in the trainings and qualifications measures offered by Immersion7 therefore. The communication by and with Immersion7 in the course of the upstream support will only be via the certified Power User.
2.7 The Immersion7 Support Service Center can be reached by a Power User under the contact data noticed in the order conformation or published on the website. The respective service times of Immersion7 are published on the website. Measures out of the service times will only be delivered based on a separate agreement in each case and will be remunerated separately.
2.8 The response times within a staff member of the Support Service Center of Immersion7 starts to work on an incident notified is defined in the order confirmation. The handling of incoming notifications will be done by phone, by e-mail, by remote access or, if required, by activities on site at the partner’s or the end customer’s premises. In accordance with the contractual agreements additional costs may incurred subject to the then applicable remuneration rates.
3. Update, Upgrade, Release Service
3.1 Within the scope of the Update-, Upgrade and Release Service, Immersion7 provides the partner with new program releases of the Software and with the related program documentation via download for self-installation. Precondition for the usage of actualized updates, upgrades or releases is that the end customer has the then applicable version of the operational environment (hardware, operational system, third party software, etc.).
3.2 Updates are minor functional extensions and removals of defects. They are highlighted in the versioning of the Software by a change to the last 4 digits after the last point.
3.3 Upgrades are new program versions that include removals of defects but in particular functional extensions of the Software. An Upgrade is highlighted in the versioning of the Software by a change to the second last digit.
3.4 Releases are Upgrades, containing essential extensions of the functional scope of the Software. The first two digits, separated by a point, define the Release number. Immersion7 reserves the right to publish Major Releases.
Versioning format: Release.Release.Upgrade.Update
Example: The version 2020.2.2.6304 is delivered
The version 2020.2.2.6305 is an Update
The version 2020.2.3.xxxx is an Upgrade
The version 2020.3.xx.xxxx is a Release
3.5 With regard to the rights for the use of new Software versions provided within the scope of the Update-, Upgrade- and Release Service, the Licence and User Conditions of Immersion7 for the originally provided Software Version shall apply. The warranty and liability of Immersion7 for new Software versions is in accordance with the GTC and the respective Licence and User Conditions.
4. Services not included
4.1 Immersion7 is not obliged to render Maintenance Services according to terms:
4.1.1 outside the notified times for Support Services;
4.1.2 if the Software is used contrary to the provisions of the respectively applicable licence conditions;
4.1.3 if unauthorised changes have been made to the Software by the partner or by an unauthorised third party;
4.1.4 in case of disorders of the Software due to application errors caused by the partner or a third party and this could have been prevented if careful attention had been paid to the program documentation;
4.1.5 in case of disorders of the Software due to a virus attack or other external events Immersion7 is not responsible for;
4.1.6 in case of disorders of the Software due to errors or the usage of versions of the hardware, the operating system or other computer programs which have not been released by Immersion7;
4.1.7 for the recovery of data stock that has not been adequately secured against loss by the partner or third parties contrary to the provisions of the GTC and the Licence and User Conditions.
4.2 The scope of maintenance does furthermore not include the installation of the Software and new Software versions provided within the context of the update services on the system of the partner or third parties, the performance of release changes, the performance of potentially required adjustment programming as well as the training of staff of the partner or third parties. Immersion7 may render such services on request of the partner against separate remuneration.
4.3 The partner will inform Immersion7 about any potential changes regarding the installation site of the Software or a change of the Power User without delay and without being requested. Additional expenses of Immersion7 related to the rendering of the Maintenance Services resulting from the change to the installation site or the contact person are borne by the partner.
5. Partner’s Duty to Cooperate
5.1 If a notification is submitted towards the Support Service Center, the partner provides Immersion7 with all available failure reports, system logs, log files, interim and test results as well as all other documents and information required for the analysis and handling of the occurring incident immediately and unrequested.
Furthermore, the partner provides Immersion7 with the licence activation code and, where required, the hardware IDs of the affected systems.
The contractual response time only starts after the receipt of the complete documents and a comprehensible description of the incident in accordance with Sect. 5.2.
5.2 The notification must be submitted in a way that the respective incident can be reproduced. If Immersion7 carries out a failure analysis on demand of the partner and if it turns out that there is no failure Immersion7 is obliged to eliminate according to these GTC Maintenance and Support, Immersion7 may charge the partner for the expenses accrued on the basis of the respectively applicable hourly rates as stated in the current price list of Immersion7.
5.3 The partner grants Immersion7 and its staff unrestricted access to the Software, hardware and the operating system of the partner and/or the end customer to render the Maintenance Services, particularly within the framework of the Support Service. The partner also undertakes to provide Immersion7 with a suitable infrastructure for the remote access to the Software in case of an incident.
5.4 The partner undertakes to carry out regular data backup according to the generally recognised principles of secure data processing. Corresponding regulations shall be provided by the partner in the contracts to be concluded with its end customers.
5.5 The partner provides aforementioned duties of cooperation without separate remuneration.
6.1 The remuneration for the Maintenance Services to be rendered according to these maintenance conditions for purchase-, hire-purchase- or hire rented licenses are defined in the order confirmation.
6.2 With entering into a maintenance agreement the service fees will be invoiced proportionally until the end of the respective calendar year. At the beginning of the new calendar year and for each following year the service fees will be invoiced in each case at the beginning of the year for the current year. If the Support Agreement will be terminated during a year, the partner will receive a credit note for overpaid service fees. The timely payment of the service fees is precondition for rendering the Maintenance Services in the respective contractual year.
6.3 In so far as the partner and/or end customer does not commission Maintenance Services at the time the Software is accepted in the course of the first installation or with commencing of the use of the Software but to a later point of time, the service fees have to be paid in arrears until the time of first installation of the Software, if not agreed differently between the parties.
6.4 In case of extended use through the acquisition of further licences during the term of the Support Agreement, the annual service fees increase on a pro rata basis in accordance with the then applicable price list, if not agreed differently. The increased service fees are to be paid as from the time of delivery of the additional licences.
6.5 Immersion7 is entitled to adjust the annual service fees with a four months’ notice period at the start of each contractual year, for the first time upon the expiry of the minimum term stated in the licence schedule, to compensate any wage and other cost increases and/or within the framework of the general increase of the licence and maintenance prices for the Software. If such increase exceeds 10%, the partner is entitled to terminate the Support Agreement without cause.
6.6 Apart from that and if not agreed differently the provisions of the GTC shall apply.
7. Term, Termination
7.1 The Support Agreement starts with sending the order confirmation to the partner. The service fees will be invoiced with acceptance of the installation of the Software, latest with beginning of use of the Software. In case that Maintenance Services for the Software are ordered to a later point of time the provision of Sect. 6.3 regarding remuneration shall be applicable.
7.2 Immersion7’s obligation to render the contractual services starts with the contract start date set out in the maintenance schedule of Immersion7; however, not prior to payment of the contractual agreed service fees.
7.3 The contractual term for the respective Maintenance Services is defined in the Support Agreement (“Minimum Term”). After the Minimum Term has expired, the agreement is extended for respectively one further year (“Extension Term”), unless it is terminated by one of the contractual parties in writing with a three months’ period of notice to the expiry of the minimum term or any of the following Extension Term. The Support Agreement cannot be terminated with due notice by any of the contractual parties during the minimum term or during an extension term.
7.4 Partial termination of the Support Agreement with regard to parts of the licence portfolio of an end customer of the partner is not permitted. Reference is made to Sect. 1.7.
7.5 The Support Agreement ends without termination being required when the licence granted to the partner for the Software to be maintained ends according to the respectively applicable licence conditions. In this case, Immersion7 is not obliged to refund any already paid service fees for periods until termination.
7.6 The right to terminate the Support Agreement for good cause remains reserved.
7.7 Any termination shall be made in writing.
8. Final provisions
8.1 Immersion7 is entitled to render parts of the Maintenance Services through or with the assistance of third party companies upon prior announcement.
8.2 The partner is not permitted to assign any rights or obligations arising out of this Support Agreement to third parties without the prior written consent of Immersion7.
8.3 For rendering the Maintenance Services and the legal relationship between Immersion7 the partner the GTC, the Licence and User Conditions, these GTC Maintenance & Support, the offer and order confirmation and the then applicable price list shall apply. In case the parties have entered into a partner agreement including the General Partner Terms and any special agreements defined therein shall apply.
© Immersion7- GTC Maintenance and Support
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General Partner Conditions
Tel.: +49 (0) 7172 209.00
Fax: +49 (0) 7127 20973.01
Geschäftsführer: Ralph Westenburger, Marc Armbruster
Registernummer: HRB 750013 Amtsgericht Stuttgart
The following General Partner Conditions of Immersion7 GmbH (hereinafter “Immersion7”) apply for entrepreneurs (hereinafter “Partner”) who distribute the products and services of Immersion7 and perform services for them. As of December 2020.
1. Scope of Contract
1.1 Immersion7 is the service provider and manufacturer of the software smartPerform (the “Software”) for producing and operating of tailor-made user interfaces and functions. So called apps complete as independent and configurable applications the smartPerform portfolio.
1.2 The Partner has experience and contacts as well as the required technical know-how in order to successfully market the Software according to its partner status and in accordance with the General Partner Conditions (“hereinafter “GTC Partner”), a possibly sent order confirmation and/or an individual partner agreement and its attachments in the then applicable version (hereinafter jointly referred to as “Partner Agreement”), to implement and adjust it at its customer’s premises as well as to deliver or procure maintenance services.
2. Distribution Rights of the Partner
2.1 Immersion7 hereby grants Partner the non-exclusive right, limited to the term and the Territory defined in the Partner Agreement, to distribute the Software defined in Partner Agreement and to parametrize it in accordance with the License and User Conditions.
2.2 The distribution rights defined in Sect. 2.1 always refer to the then actual Software Version released by Immersion7 for the Partner.
2.3 The Partner undertakes to market, sell or lease the Software to end customers to the best of its ability and with the due diligence of a prudent businessman and, where required:
2.3.1 to carry out individual adjustments of the Software according to the customer requirements through configuration in terms of parameterisation of the Software (i.e. without intervening in the Software’s machine code);
2.3.2 to render additional services for the Software of the end customer, such as the installation of the Software at the customer’s premises or the provision of training courses to the endcustomer users;
2.3.3 to provide the first and possibly the second level support for the Software to end customers; and
2.3.4 provide Updates and Upgrades as far as a valid Support Agreement was concluded with the end customer for the Software.
2.4 For the terms of this Partner Agreement the Partner is granted the right to enter into (i) a purchase agreement on its own behalf and for its own account with its end customer for the purpose of cede for good regarding the Software that the Partner sold beforehand from Immersion7; or (ii) a lease agreement regarding the Software the Partner has leased from Immersion7 on its own behalf and for its own account for temporarily use by the end customer; and (iii) to adjust the Software for the relevant end customer according to its requirements.
2.5 It is governed for the relevant Software individually in the order confirmation whether it is sold or temporarily leased to an end customer.
2.6 If the Partner has bought the Software for its own purpose or for purposes of distribution copies of the Software, the licence codes as well as the software dongles must not be used for leasing to end customers.
2.7 Software leased by the Partner from Immersion7 remains the property of Immersion7 and may only be used for terms of sublet, but not for sale to third parties.
2.8 If the Partner is offering the Software by way of Application Service Providing (ASP) or for the simultaneous use of several users in the network the Partner has to enter into separate contractual agreements with Immersion7. Immersion7 reserves the right to check the contracts to be concluded with the providers of ASP solutions. If there are reasons to fear that the rights of Immersion7 are not adequately protected, Immersion7 is at liberty to refuse its consent to the conclusion of such a contract in whole or in part.
3. Enhancement of the Software
3.1 Immersion7 is entitled to discontinue the production and/or sale of the Software or individual elements thereof in compliance with a three months’ notice period to the end of a month. This does not result in any claims of the Partner towards Immersion7. The Partner is in particular not entitled to any claim for lost profit.
3.2 Purchase orders received by Immersion7 until the time the discontinuation is announced will be performed on the conditions applicable at that time.
4. Sales Territory
4.1 The contractual Territory is defined in the Partner Agreement.
4.2 The Partner is not entitled to actively sell the Software outside the Territory, in particular not in such territories Immersion7 allocated exclusively to third parties. A list of the then currently exclusively allocated or reserved territories will be announced by Immersion7 towards the Partner.
4.3 The Partner is entitled to market the Software outside the Territory, if the transaction is made at the end customer’s initiative (passive transaction).
5. Status of the Partner
5.1 The Partner sells and/or leases the Software on its own behalf and for its own account. It acts as an independent merchant both in dealings with the end customer and with Immersion7.
5.2 The Partner is at liberty to determine its end customer conditions.
5.3 The Partner is not entitled to represent Immersion7 in legal transactions towards its partners and/or end customers.
5.4 The Partner is entitled to name itself as Partner of Immersion7 during the term of the Partner Agreement. Further agreements regarding the title of the Partner shall be agreed upon in the Partner Agreement.
6. Contract Partners of the Partner
6.1 The Partner may instruct third parties, its own partner companies, to provide the agreed services under this Partner Agreement.
6.2 The Partner is not allowed to entitle third parties beyond the rights granted according to the terms and conditions of this Partner Agreement.
6.3 For purposes of this Partner Agreement, any action or omission of third parties instructed by the Partner shall be deemed an action or omission of the Partner, and any breach by such third party(ies) of this Partner Agreement shall be deemed to be a breach by the Partner hereunder.
6.4 The Partner shall inform Immersion7 in writing before instructing a third party. Immersion7 will not be obliged hereby by itself. Immersion7 may, at it is sole discretion, reject cooperating with the third party named by the Partner.
6.5 With beginning to provide services at or in connection with the Software any third party instructed by the Partner has to prove that it has the then actual qualification demanded by Immersion7. Immersion7 will classify the third party in accordance with the Partner Agreement. The third party is not allowed to start provide services before Immersion7 has finalized the classification of it.
6.6 The Partner is liable towards Immersion7 that the third party will keep up the requested qualification during the duration of service provision.
7. Rights in the Software, Trade Marks
7.1 The Partner is not permitted to reproduce the Software in whole or in part.
7.2 The Partner is not entitled to any rights to use the Software, unless they are expressly granted in the Partner Agreement for sales purposes. Unless otherwise stipulated in the Partner Agreement, the respectively current Licence and User Conditions apply in addition.
7.3 The Partner will conclude a contract with its relevant end customer to ensure that no rights in excess of the rights stipulated in the Partner Agreement and the current Licence and User Conditions are granted to the end customer.
7.4 The Partner shall only distribute the Software under the product names released by Immersion7, as integrated by Immersion7 into the Software, in the agreed design adapted by Immersion7 and with the original features delivered.
7.5 The Partner undertakes not to remove or modify any proprietary right or copyright notices, serial numbers or other identification features attached on the Software.
7.6 Unless permitted according to the provisions of the Partner Agreement and the Licence and User Conditions, the Partner is not authorised to process, modify, decompile or disassemble the Software or to otherwise generally change it to other code forms. 7.7 Any other form of reverse engineering of the various production stages of the Software is not permitted.
7.8 Individual requirements of the end customer to the Software will be met by the Partner through configuration in terms of parameterisation only. Parameterisation in the terms of these GTC Partner is understood by the parties as all adjustments of the Software that are possible without programming (i.e. without in-tervening in the source code).
7.9 Insofar as the Partner intends to receive widgets, i.e. program extensions, for own use or for end customers via an interface to be defined by Immersion7, the parties need to conclude a separate written agreement in advance.
7.10 If not agreed upon differently by the parties the Partner is obliged to distribute the Software under the product name (“Trademark”) defined in the respectively applicable price list. The Partner is furthermore obliged to observe the respective corporate design regulations of Immersion7 in every public presentation of the Trademarks in connection with the Software.
7.11 The Partner is not entitled to interfere with the use of the Trademarks in the sales territory by Immersion7 or third parties authorised by Immersion7.
7.12 Immersion7 is entitled to all rights accruing to the Partner in connection with the use of the Trademarks, which are hereby transferred and assigned to Immersion7 where permitted by law.
7.13 Immersion7 is not aware of any rights of third parties opposing the use of the Trademarks. As far as third parties assert claims arising from unauthorised use of trademarks and symbols of Immersion7 to the Partner, the Partner is obliged to inform Immersion7 without delay.
7.14 The Partner is not entitled to register or have registered the Trademarks or other symbols of Immersion7 in the Territory or otherwise. Furthermore, the Partner is not entitled to create or acquire the Trademarks, other symbols or trademarks or symbols similar to the Trademarks and symbols of Immersion7 or to have related proprietary rights registered. The Partner is not entitled to use the Trademarks or other symbols of Immersion7 or mistakably similar trademarks or symbols in its company or its domain name or as other corporate symbol.
8. Demo Licenses
8.1 The Partner may receive Demo Licenses of the Software for the term of the Partner Agreement. These are solely for use of demonstration. The conditions of use as well as the number of the Demo Licenses made available are defined in the order confirmation.
8.2 The Partner is not entitled to make available Demo Licenses to end customers or to use them for other terms as for the noncommercial demonstration and for testing purposes.
8.3 With expiration of the Partner Agreement the Partner has to immediately deactivate the Demo Licenses and return them to Immersion7. Partner may only claim rights of retention for undisputed or legally established claims.
8.4 If not defined differently in this Sect. 8. As well as in the Partner Agreement the License and User Conditions shall apply accordingly.
9. Software Maintenance and Support
9.1 The Software Maintenance and Support Services offered by Immersion7 are defined in the General Software Maintenance & Support Conditions (“GTC Maintenance & Support”) and the respective current price list of Immersion7. The third level support will always be solely delivered by Immersion7.
9.2 The Partner will seek the procurement and the conclusion of software maintenance contracts for the Software between the end customer and the Partner to the best of its ability and with the due diligence of a product businessman. Where required, Immersion7 may provide the Partner with a sample.
9.3 The respectively Maintenance Services booked by the end customer are defined in the order confirmation and set out in the maintenance schedule upon delivery.
9.4 In accordance with clause 1.7 of the GTC Maintenance & Sup-port the Partner needs to uniformly define for the licence pool of an end customer which Maintenance Services are to be delivered respectively has to terminate the support services for the entire license pool of an end customer.
9.5 The software maintenance fees respectively accruing for the Maintenance Services are defined in the order confirmation. Such fees apply irrespective of any deviating fees agreed by the Partner in its software maintenance or service contracts concluded with its end customer.
9.6 The recommended fees for the provision of the Maintenance Services are defined in the price list which is an Attachment to the Partner Agreement. Immersion7 recommends to the Partner for the passing on of the services a surcharge to the end customer. Immersion7 does not pay any remuneration to the Partner for the provision of the first and second level support. Such remuneration shall be governed in the software maintenance contracts to be concluded between the Partner and the end customer.
9.7 Immersion7 is always entitled to adapt the Software Maintenance and Support Fees with a four months’ period of notice until the end of the Minimum Term or before the beginning of an Extension Term. Reference is made to clause 7.3 of the GTC Maintenance & Support. As far as Immersion7 seeks an increase of the fees by more than 10%, the Partner is entitled to an exceptional right to terminate the Support Agreement.
9.8 If within the contractual agreements entered into a change of user shall become effective, Partner has to inform Immersion7 upfront in writing. The Partner has to disclose the data of the new user towards Immersion7 and Immersion7 will enter into a new Support Agreement regarding this user. The transfer of an existing Support Agreement to a new end customer is not allowed.
10. Maintenance Services of the Partner
10.1 Partner ist obliged to deliver at least fist level support ser-vices for sold or leased Software licences of its end customers.
10.2 In particular the Partner has to provide hotline services for enquiries of the end customer during the usual business hours. The first level support can be delivered by the Partner itself, by an authorized person or company or by a qualified attorney (Power User) of the end customer.
10.3 The Partner advises its end customers with regard to further offered services such as the second level support and user support. The Partner is free to choose whether to deliver these services on its own, via authorized persons or companies, to pur-chase these services from Immersion7 or to procure the conclusion of a Support Agreement between Immersion7 and its end customer.
10.4 The Partner indemnifies Immersion7 from and against all claims of the end customer arising in connection with the provision of the first and second level support by the Partner at the end customer’s premises.
11. Qualification of the Partner
11.1 To ensure the quality of the service provision, the Partner shall hire and train an adequate number of qualified employees for sales, marketing, service provisions and training courses as well as the other services for end customer according to the provisions of the Partner Agreement.
11.2 Immersion7 will offer to the Partner training courses and advanced trainings for the Software, its use and distribution. The place of trainings will be determined by Immersion7. The costs arising shall be borne by the Partner.
12 Reporting, Customer Data
12.1 The Partner regularly reports to Immersion7 on its sales, current and future sales opportunities as well as on the current market developments particularly in view of competitors in a format stipulated by Immersion7.
12.2 An evaluation of the sales figures for the following year shall be presented in the 4th quarter of each year. Resale prices shall expressly not be submitted or disclosed.
12.3 The Partner is obliged to regularly provide Immersion7 with an updated list of all customers who purchased or leased the Soft-ware or concluded software maintenance contracts, at least once a month.
The Partner shall immediately inform Immersion7 about any con-flicts of interest that could have a negative effect on the parties’ cooperation and the proper provision of the owed services.
14. Services of Immersion7
14.1 Immersion7 supports the Partner through the provision of brochures, catalogues, productrelated documents and other promotional materials (hereinafter jointly referred to as “Promotional Materials”) in the German and/or English language.
14.2 If not agreed differently Immersion7 will provide Partner with Promotional Materials in electronic form. Immersion7 reserves all rights to the provided Promotional Materials, their contents and the incorporated proprietary rights.
14.3 All modifications of the Promotional Materials as well as the preparation and use of own marketing materials for the Software by the Partner by using contents, trademarks and symbols of Immersion7 are subject to Immersion7’s prior written consent.
14.4 Immersion7 offers support services for the implementation of end customer projects. The costs for these services are set out in the then applicable price lists of Immersion7. Additional expenditure such as travel costs or out-of-pocket expenses are billed separately and are not included.
15. Remuneration, Payment Terms
15.1 The prices of the then current price list of Immersion7 shall apply, less possibly agreed discounts defined in the Partner Agreement. The price list applicable upon the conclusion of the Partner Agreement is attached as an Attachment to the Partner Agreement.
15.2 The prices are ex works (EXW Immersion7 plant according to the Incoterms 2010) and plus the respectively applicable statutory value added tax.
15.3 Immersion7 is entitled to adapt the prices with a four months’ period of notice. Purchase orders already confirmed are not affected by any price change.
15.4 As far as the prices increase by more than 10%, an extraordinary termination right is granted to the Partner.
15.5 Immersion7 supports the active project development of its partners. In this context delivered services are notified by a separate project development discount in the amount defined in the Partner Agreement. The receipt of a project development discount is subject to a project notification of the Partner confirmed by Immersion7 in accordance with the provisions of the Partner Agreement.
15.6 The payment terms are defined in the respective order confirmation or an individual agreement between the parties.
16.1 Immersion7 only warrants that the Software complies with the Immersion7 datasheet applicable at the time the order is placed. Apart from the above warranty, Immersion7 does not assume any further warranty, particularly not for the suitability of the Software for a specific purpose.
16.2 The Partner is obliged to inspect each delivery immediately upon receipt and to notify any identifiable defects in writing no later than within 48 hours after delivery.
16.3 The Partner is obliged to inform Immersion7 in writing about all defects that could not be identified during the proper incoming goods inspection immediately and no later than 48 hours after their identification.
16.4 On Immersion7’s demand, the Partner shall provide Immersion7 with further documents and other evidence regarding the problems occurred in order to enable Immersion7 to examine the alleged defect.
16.5 The Partner is obliged to limit its liability to the end customer to the extent permitted by law.
16.6 The Partner is not permitted to disclose information beyond the information published by Immersion7 regarding the Software and is particularly not permitted to make any further statements or commitments regarding the quality and suitability of the Software.
17. Limitation of Liability
17.1 Immersion7’s liability is limited to the damage typical for this type of contract that had to be expected by the Partner and/or its end customer upon the conclusion of the contract due to the circumstances known at the time. Any further claims, particularly claims for damages including lost profit or due to other pecuniary damage are excluded.
17.2 The above limitation of liability does not apply to such damage that is caused intentionally or at least grossly negligently by actions to be attributed to Immersion7.
17.3 Regarding damage arising from injury to life, body or health, the amount of liability is unlimited even with simple breach of duty caused by actions to be attributed to Immersion7.
17.4 The liability according to the Product Liability Act remains unaffected.
18. Term and Termination
18.1 The Partner Agreement takes effect upon its legally effective signature by both parties. The term is set out in the Partner Agreement.
18.2 Each party is entitled to terminate the Partner Agreement with immediate effect for good cause. Good cause is particularly established if (i) a Partner is in delay with payment by more than three months despite written warning and setting of a grace pe-riod; or (ii) one of the parties repeatedly violates essential obliga-tions despite a written warning or continues to breach these obligations despite a written warning and sufficient opportunity for subsequent improvement.
18.3 Immersion7 has sin particular a right to terminate the Partner Agreement for good cause, if (i) the Partner experiences a significant change in the ownership structures, the management or the essential staff members who deal with the sale of the Software, unless such change does not affect the legitimate interests of Immersion7. However, the Partner shall always inform Immersion7 about such changes immediately, comprehensively and in writing; (ii) the Partner fails to pay the remuneration for an agreed minimum sales volume when due; (iii) the Partner violates its obligations according to sect. 7. or 20. of GTC Partner.
18.4 Any termination shall be made in writing.
18.5 Termination with due notice and the resulting end of the partnership as such do not affect already confirmed purchase orders of the Partner. Immersion7 will continue to supply the Partner to the agreed extent on the applicable conditions until the termination takes effect. However, Immersion7 is entitled to demand advance payment.
18.6 Upon the receipt of the notice of termination, any granted exclusivity for a sales territory ends automatically.
18.7 After the partnership has ended, the Partner ceases the use of the trademarks and industrial property rights of Immersion7. Furthermore, the Partner is no longer authorised to act as a Partner of Immersion7.
18.8 After the partnership has ended, the Partners return the papers, documents and Demo Versions provided by the other party without delay and refrain from making any reference to the sales cooperation.
19. Contact Details
19.1 All communication in connection with the Partner Agreement must be made in writing and in German to the defined address. Changes of the contacts and their data must be disclosed in the appropriate form.
19.2 All correspondence and requests to Immersion7 are to be directed at the contact data of Immersion7 published on the Website www.smartperform.de.
19.3 Contact persons of Immersion7 and the Partner will be set out in the Partner Agreement.
20. Obligation to inform, Confidentiality
20.1 The Partner will transfer all information and business documents required for a proper handling of an order to Immersion7. This includes especially such information needed for the calculation and settlement of due remuneration and discounts. The Partner shall be liable if Immersion7 cannot conduct or settle an order due to missing or incorrect information.
20.2 With regard to the Confidentiality the terms and conditions of the GTC shall apply.
21. Data Protection
21.1 The Partner shall assure that the Partner’s undertaking is organized in line with the respective current provisions of data protection and meets the legal requirements on any processing of personal data at any time. This shall include, in particular, but shall not be limited to, the fact that the Partner (i) maintains appropriate technical and organizational measures to ensure protection against any unauthorized or unlawful processing, accidental loss or destruction of personal data, (ii) meets its own information and disclosure obligations towards the owner of personal data at any time, (iii) has erasure concepts in line with the legal requirements and (iv) ensures that personal data is transmitted to third countries outside the European Union or the European Economic Area only if the transmission of the data under Art. 45 GDPR has been authorized by the European Commission, appropriate protective measures w. t. m. of Art. 46 GDPR had been taken or one of the exemptions defined in Art. 49 GDPR exists.
21.2 The Partner shall assure that personal data collected as part of the fulfilment of this Agreement will be processed in compliance with the provisions of the applicable legal provisions at any time and, in particular, that relevant declarations of consent of the Partner’s business partners and Customers to any data processing and transfer of the data to Third Parties, including, in particular, to Immersion7, where necessary, are available to the Partner as well.
21.3 The Parties shall each designate a point of contact for each other who shall be informed in matters of data protection in the relevant company.
21.4 The Parties shall inform each other without delay to the extent that they obtain knowledge of any violation of applicable data protection provisions as part of the processing of personal data on account hereof.
21.5 To the extent required as part of the cooperation, the Parties undertake to conclude an arrangement on the processing of personal data as per order.
21.6 The Partner shall continuously and fully document compliance with such provisions on data protection.
21.7 The responsibility inters parties for the compensation of any damage suffered by a data subject due to any data processing or use that is inadmissible or incorrect under the legal provisions of data protection shall be exclusively borne by the Party acting as the controller. The Parties shall release each other from liability if either Party demonstrates that it is not responsible in any way for the circumstance having caused the damage to the data subject.
21.8 The Partner shall have the right at any time to obtain information regarding the retained personal data and to claim their rectification. This shall include information about the origin of the data as well as the recipients to whom the data had been forwarded. Requests for information, specifying the question as precisely as possible, must be addressed to Immersion7 GmbH, Hall-stattstraße 16, 72766 Reutlingen, fon: +49 7127 209 73.00, e-mail: email@example.com.
21.9 The competent supervisory authority is the Baden-Württemberg State Commissioner for Data Protection and Freedom of Information, www.baden-wuerttemberg.datenschutz.de.
22. Final Provisions
22.1 No collateral agreements have been made in addition to this document. Modifications and/or supplements to this documents shall be made in writing to become effective. This applies accordingly to a change or waiver of this written form requirement.
22.2 Immersion7 and the Partner are independent partners. This document shall not be interpreted to the effect that the parties constitute a joint venture or a company.
22.3 Set-off against claims for payment of Immersion7 is only permitted with a counter-claim that is undisputed or established as final and absolute.
22.4 None of the parties is entitled to transfer any rights and duties resulting from the Partner Agreement and its implementation without the prior written consent of the other party.
22.5 Headings in this document are for convenience only and do not affect the interpretation of its contents.
22.6 This document and all sales contracts concluded on its basis are subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.
22.7 Place of jurisdiction for all disputes arising from and/or in connection with this document and on its validity and the sales contracts concluded on its basis is Stuttgart.
23. Order of Documents
23.1 Beside the terms of the Partner Agreement the then applicable GTC, the License and User Conditions as well as the GTC Maintenance and Support shall govern the legal relationship between Immersion7 and the Partner.
23.2 Beside the then applicable price list as well as the offer and the order confirmation and the license and maintenance schedule shall apply.
24. Severability Clause
Should one or several provisions of these GTC Partner be or be-come invalid, this does not affect the validity of the remaining provisions. The parties will negotiate in good faith about the replacement of the invalid provision with a valid regulation that comes closest to the economic purpose pursued with the invalid provision.
© Immersion7- AGB Partner
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