General Terms and Conditions for Deliveries and Services of Immersion7
1. Scope of application
1.1 For lack of a separate agreement, all offers and orders for deliveries and ser-vices of Immersion7 (Immersion7) are based on these General Terms and Con-ditions for Deliveries and Services of Immersion7 in individual cases. 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 cus-tomer only apply if they are expressly acknowledged by Immersion7 in writing.
1.2 These General Terms and Conditions for Deliveries and Services apply exclu-sively 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 this is pointed out in the confirmation of order of Immersion7, further General Terms and Conditions or User Conditions of Immersion7 may apply in addition to these General Terms and Conditions for Deliveries and Services, particularly the licence and user conditions for software purchase or software leasing as well as the General Software Maintenance & Support Conditions of Immersion7. They have priority over provisions of these General Terms and Conditions for Deliveries and Services within the framework of their scope of application.
1.4 Rights Immersion7 is entitled to according to the statutory provisions or ac-cording to other agreements beyond these General Terms and Conditions for Deliveries and Services 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 Immer-sion7 in writing or if Immersion7 fulfils the purchase order, particularly if Immer-sion7 fulfils the purchase order by sending the products or rendering the ser-vice. A confirmation of order created by means of automatic facilities without any signature and name is deemed a written confirmation. The written confir-mation of order of Immersion7 is relevant to the scope of delivery or service. As far as the confirmation of order 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 be-come effective.
2.3 Immersion7 reserves all rights to service and product descriptions, drawings, test programs and other documents provided to the customer within the con-text 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 docu-ments 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 sub-stantiated request for the commencement of insolvency or similar proceedings for the assets of the customer is rejected for lack of assets, Immersion7 is enti-tled to rescind the contract in whole or in part as far as there are reasons to as-sume 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 en-tire service within a reasonable period of time; however, within three months af-ter the conclusion of the contract at the latest, unless otherwise agreed in writ-ing.
3. Prices, terms of payment
3.1 Unless otherwise stated in Immersion7’s confirmation of order, the prices ac-cording to the respectively applicable price list of Immersion7 apply. The stat-ed 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 out-of-pocket expenses as well as potential waiting periods of Immersion7 when rendering the assembly and in-stallation 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 a con-firmation of order is not deemed a fixed price agreement. With price increases of more than 10%, the customer is entitled to rescind the contract to that ex-tent. 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 ac-cordingly regardless of the offer and confirmation of order.
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 with-out written warning 30 days after the due date and the invoice receipt. If pay-ment 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 no. 3.3, 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 preju-dice to any further legal rights to exercise a right of retention for all still out-standing deliveries and services without prior announcement or to demand ad-vance 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 arrange-ment. Bills of exchange or cheques are only accepted on account of perfor-mance. 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 re-lease 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 Immer-sion7, unless such counter-claims are undisputed or established as final and absolute. The customer is only authorised to exercise a right of retention inso-far as its counter-claim is based on the same contractual relationship.
4. Transfer of title, acceptance, delivery and service dates, default 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 custom-er, 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 insur-ance is only taken out on the customer’s express instruction and at the cus-tomer’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 No 4.1 also applies if assembly or installation of the delivery item at the cus-tomer’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 confirmation of order of Immersion7; however, not prior to the timely and prop-er 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 com-plied 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 Immer-sion7 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 re-scinds 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 (lack of material, strikes) beyond Immersion7’s rea-sonable control and other events of force majeure as well as improper, particu-larly late supply to Immersion7 release Immersion7 from its performance obli-gation for the duration of the impediment. In case of improper supply to Im-mersion7, 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 inter-ested 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 Immer-sion7 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 compen-sation 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. Fur-ther 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 re-sponsible for the violation of other duties to cooperate. Immersion7 is entitled to otherwise dispose of the goods after the unsuccessful expiry of a reasona-ble 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 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 service, particularly in computer programs (“software”).
5.2 If software of external manufacturers (third party software) is delivered, the cus-tomer undertakes to use the delivered software only in compliance with the re-spectively applicable licence conditions of the manufacturer and to impose the same obligations on the purchaser in case it is resold (if resale is permitted).
5.3 According to the more detailed conditions of Immersion7’s confirmation of or-der, the General User Conditions for Software Purchase or Software Leasing as well as, where applicable, the General Software Maintenance Conditions of Im-mersion7 apply to the use of Immersion7 standard software. Within the frame-work of their scope of application, they have priority over these General Terms and Conditions for Deliveries and Services.
5.4 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 result, unless otherwise agreed in writing in individual cases. In all other cases, the li-cence and user conditions for software purchase apply to the use of such indi-vidual software in addition to these General Terms and Conditions for Deliver-ies and Services.
6. Reservation of ownership
6.1 If goods are delivered, such goods remain the property of Immersion7 until the complete payment of the delivery price 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 ap-plicable 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 con-tract, 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 dura-tion of the reservation of ownership and to adequately insure them against damage at replacement value for the duration of the reservation of ownership on Immersion7’s demand. The customer shall prove the effective insurance on Immersion7’s demand. The customer hereby assigns claims against the insur-ance company up to the amount of the underlying receivables of Immersion7 to Immersion7. Immersion7 hereby accepts this assignment. As far as such as-signment is not permitted, the customer hereby instructs the insurance com-pany 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 Im-mersion7 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 Im-mersion7’s measures to protect the goods subject to reservation of owner-ship. As far as the third party is not willing or able to reimburse Immersion7 for the court and out-of-court costs to enforce 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 without obligat-ing 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 in-voice 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 sub-ject to reservation.
6.6 The customer may dispose of 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 re-ceivables 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 10% security surcharge. Immersion7 hereby accepts the assign-ment.
6.7 The customer is entitled to collect the receivables assigned to Immersion7 ac-cording to the above no. 6.6 until this is revoked by Immersion7, which is per-mitted 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 re-ceivables of Immersion7 from the customer by more than 10% in total, Immer-sion7 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 legal systems where this reservation of own-ership regulation does not have the same securing effect as in the Federal Re-public of Germany, the customer hereby grants Immersion7 a corresponding security interest. If further measures need to be taken for this purpose, the cus-tomer will make all reasonable efforts to grant such security interest to Immer-sion7 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 noti-fy any defects to Immersion7 in writing immediately, however, seven working days after delivery, with hidden defects seven working days after recognisabil-ity at the latest. The customer shall describe the defects in writing in its notifica-tion 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 cus-tomer 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 customer. 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 Immer-sion7 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 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 responsible for the unjustified notification of defects.
7.4 If Immersion7 opts for new delivery to carry out subsequent improvement, Im-mersion7 may demand the return of the defective delivery item by the custom-er as provided by law. As far as the customer is legally obliged to pay com-pensation for use to Immersion7, the parties hereby agree the following com-pensation for use: – Use for more than one to three months: 10% of the net sales value; – Use for more than three to six months: 20% of the net sales value; – Use for more than six to twelve months: 30% of the net sales value; – 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 be-cause 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 per-formance, the customer, without prejudice to any claims for damages or com-pensation of expenses according to no. 9, may demand, at its option, the re-duction of the agreed remuneration for the delivery or service (reduction), re-move 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 – rescind the contract.
7.6 The customer does not have claims based on material defects as far as a de-fect is based on the fact that the delivery or service item has been changed ar-bitrarily by the customer or has not been used in accordance with the respec-tively 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 electromagnetic 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, op-erating 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 performanc-es). 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 limita-tion 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 and 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 no. 9 remains unaffected.
8. Legal defects
8.1 Immersion7 warrants within the limits of the statutory provisions that the ser-vices rendered by it are free from rights of third parties that oppose their con-tractual use by the customer.
8.2 If third parties assert such rights, the customer will inform Immersion7 immedi-ately 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, – to remove the rights of third parties impairing the contractual use of the service or their assertion by suitable measures; or – 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 functionali-ty of the service.
8.4 As far as the second attempt by Immersion7 to remove the legal defect ac-cording to the above no. 8.3 within a reasonable period to be set by the cus-tomer fails, the customer may, without prejudice to any potential claims for damages or compensation of expenses according to no. 9, demand at its op-tion the reduction (reduction of the agreed) remuneration or – if the legal defect is not only insignificant – terminate the contract.
8.5 No. 7.9 applies accordingly to the limitation period of claims based on legal defects.
9. Liability for damages and reimbursement of expenses
9.1 Immersion7 is liable according to the statutory provisions as far as the cus-tomer 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 con-tractual 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 compensation 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 General Terms and Conditions for Deliveries and Services is excluded ir-respective 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 Gen-eral Terms and Conditions for Deliveries and Services, this also applies to the liability of the organs of Immersion7 and of persons used to perform its obliga-tions 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 warnings about risks arising due to improper use of the delivery items. If this obligation is violated, the customer releases Immersion7 from product liability claims of third parties in internal relations, unless the cus-tomer is not responsible for the error triggering liability.
10.2 If Immersion7 is prompted to issue a product recall or warning due to a prod-uct error of the delivery items, the customer will use its best efforts to partici-pate in the measures Immersion7 considers to be necessary and purposeful and support Immersion7, particularly in the determination of the required cus-tomer 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 Im-mersion7 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. Protection of confidential information
11.1 The parties undertake to keep all information they obtain in connection with the contract performance and that are described as confidential or are identifiable as trade or business secrets according to other circumstances strictly confi-dential for the duration of five years starting with the knowledge, with the last delivery or provision of the last service at the latest, and not to record it, dis-close it to third parties or otherwise dispose of it, unless this is required in or-der to achieve the contractual purpose.
11.2 The confidentiality obligation does not apply as far as the information has de-monstrably already been known to the other party prior to the start of the con-tractual relationship, is generally known or generally accessible or becomes generally known or accessible through no fault of the other party. The burden of proof is borne by the other party.
11.3 The parties shall ensure by means of suitable contractual arrangements with their employees, authorised representatives and other persons used to per-form their obligations that they are subject to corresponding confidentiality ob-ligations as well.
12. International deliveries, export control
12.1 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 po-tential export controls or other restrictions of marketability. On Immersion7’s demand, the customer shall present an end-use certificate that meets the re-quirements of the respectively applicable provisions.
12.2 International deliveries are subject to the proviso that the fulfilment is not op-posed by national or international regulations, particularly export control regu-lations as well as embargos or other sanctions.
12.3 Delays due to export controls render delivery times invalid.
13. Applicable law, place of performance and place of jurisdic-tion, severability clause
13.1 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.
13.2 Exclusive place of performance for both contractual parties is Stuttgart. Place of jurisdiction is Stuttgart. However, Immersion7 is also entitled to sue the cus-tomer at its general place of jurisdiction.
13.3 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.
License Agreement Immersion 7 GmbH
Immersion7 GmbH, Hallstattstr. 16, 72766 Reutlingen, Germany, (hereinafter „Immersion7“) designs, develops and distributes the software platform smartPerform. smartPerform is a multi-touch enabled presentation software which allows content to be integrated into a zoomable user interface where it can be flexibly configured and linked for easy access. It enables presentation content to be communicated interactively. Immersion7 grants the right to use of the software via purchase or lease according to the terms and conditions set forth hereinafter.
1.1 The Customer receives the “smartPerform” software from Immersion7 in the version which is current when the contract is concluded (hereinafter “Software”). The Software will be provided in object code 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.
1.1.1 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.
1.1.2 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.
1.2 Software which is supplied with a physical safety device (“Dongle”) may only be used in conjunction with that dongle.
1.3 Proprietary Software will be delivered in executable Code, meaning object code. The Software source code is not part of the Product.
1.4 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 Immerion7. Customer has to submit a written request to LICENSOR. 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.
1.5 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.
1.6 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 is not owed by Immersion7.
2.1.1 Immersion7 grants Customer a non-exclusive right to use the Software and the Application Documentation for an indefinite period of time at one workstation. The right to use of 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, 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.
2.2.1 Immersion7 grants the Customer a 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 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. 4 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. 4.4 is applicable.
2.4 Customer may only use the Software for its own business purposes within the agreed license model. A separate written agreement is 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), or (iii) to individuals who are not employees for training purposes. The Software may not be leased commercially to third parties.
2.5 The Software may only be copied to the extent necessary for it to be used for its designated purpose. The Customer may make however backup copies of the Software necessary according to the acknowledged rules of technology. Back-up copies which are saved on portable data carriers must be designated as such and marked as being copyright of Immersion7.
2.6 Customer may only modify the Software to the extent necessary to remedy faults.
2.7 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.
2.8 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.
2.9 Notwithstanding the provision in Sect. 2.5, 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.
2.10 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.
2.11 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.
2.12 Customer is entitled to analyze and reengineer Proprietary Software which is linked to program libraries licensed under GNU Lesser General Public License (LPGL) 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.
3.1 Immersion7 is offering the Software complementary as a Demo Version to be used temporarily.
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. A use beyond that especially, but not exclusively the use (i) for creating a presentation, if not for testing purposes only; (ii) in a data processing center; (iii) in the way of application service providing; 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 Software by the user with immediate effect.
3.5 With discontinuation of the right to use the Software the user is obliged to delete it on its systems and return all product information it received during the testing period. User is not allowed to keep any copies of the Software or any related materials it received from Immersion7.
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 this License Agreement do apply as well.
Sample applications contain media content whose rights of use are held exclusively by Immersion7 GmbH. The use of the respective media content individually or the commercial distribution of the media content, outside the marketing of smartPerform, is not permitted in any form.
If sample applications are used as templates for individual customer projects, all graphics, media content, licensing for third-party components must be deleted and replaced with relevant customer content.
5. 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. 8.3 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 restrImmersion7ed 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. Final Provisions
10.1 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.