General Terms and Conditions of oculavis GmbH, Vaalser Str. 259, 52074 Aachen (in the following: GTC), as of 01.11.2016
I. The parties
(1) oculavis GmbH, registered in the German Commercial Registry at the legal court Aachen to register-number HRB 20412, Vaalser Str. 259, 52074 Aachen (in the following 'oculavis') develops software for companies.(2) The customer is a company in terms of §14 German Civil Code.
II. Conclusion of contract / Start of contract
(1) The offer of oculavis in prospects, advertisements, etc. is without obligation.(2) The contract becomes effective when oculavis confirms it in written form. The start of the contract depends on the facts that the customer discloses all owing information in time and satisfies all obligation like advance payment.
III. Liberation from liability and obligation to delivery
Due to force majeure and all unexpected obstacles after conclusion of the contract that oculavis is not responsible for, oculavis is disburdened from its liability and obligation of delivery - also when legally in distortion. This applies in particular for disruptions in operations, strike, lockout or distortion of traffic routes, when such obstacles have a significant effect on delivery and service. It also applies, if these circumstances occur at suppliers or sub-suppliers of oculavis. Start and ending of these circumstances will be communicated by oculavis immediately. Is the end of the circumstance not foreseeable, or it takes longer than six weeks, every party has the right to withdraw from the contract.IV. Validity of GTC / Priority rule
(1) The GTC of oculavis are valid for all contracts between the parties about deliveries and services from oculavis. For future contracts the GTC are valid in the current respectively effective version at the time the particular contract is concluded. The customer accepts the General Terms and Conditions of oculavis.(2) Divergent or complementary Terms and Conditions of the customer will not become integral part of the contract, unless their validity is explicitly accepted in written form.
(3) Contrary Terms and Conditions of the customer will not become integral part of the contract, even without contradiction, in the case of delivery and service.
(4) If regulations of the confirmed contract respectively its annexes are in contradiction to regulations of the GTC, the contractual regulations have priority. The validity of the GTC remains unaffected incidentally.
(5) In case of special regulations in the GTC are designated, especially for the licensing of standard and individual software (contract-based), these regulations have priority compared to the general regulations of the GTC.
V. Scope of service
(1) The scope of service is defined in the confirmed contract of oculavis and its annexes, in particular in the specification of services in written form.(2) oculavis has the right to source parts or the full service to competent third parties. The invoicing is carried out by oculavis.
(3) In case oculavis provides services free of charge, the customer has no claim for performance for the provision of the service. Damages for indemnity are not given due to that.
VI. Regulations for the delivery of standard and/or individual software (contract software)
1. Licensing for the delivery of standard or individual software (on-premise installation)
(1) On-premise installation means local installation of software on the client’s hardware or on hardware environments the client leases.
(2) If not agreed upon other, oculavis grants a restricted, non-exclusive license to the customer, timely restricted to the end of the contract. The license includes the permission to install the software, to access it and use it in its operation for own use. This comprises the permanent or temporary, completely or partly duplication of the contract software by loading, displaying, transferring or saving for the purpose of the software execution.
(3) Every usage of the contract software beyond the agreed scope constitutes an infringement of the agreement.
(4) The customer has the right to make copies of the contract software and to take regular data backups. The production of further copies than necessary according to the contract including security copies and backups is not allowed.
(5) The licensing grants under the condition precedent that the agreed license fee is paid.
(6) The customer commits himself to maintain protection notes in the licensed material like copyrights or other legal reservations without any change as well as to take it over in all copies, whether partly or completely, of the license material.
2. Licensing for Software-as-a-Service products
(1) Software-as-a-Service means to host the software on server environment that is operated by oculavis. The server environment is hosted by oculavis or a service provider. Within the contract, oculavis specifies the service provider where hardware and databases are leased.
(2) If not agreed upon other, oculavis grants a restricted, non-exclusive license to the customer, timely restricted to the end of the contract. The license includes the permission to install the software to access it and use it in its operation for own use. This comprises the permanent or temporary, completely or partly duplication of the contract software by loading, displaying, transferring or saving for the purpose of the software execution.
(3) Software for mobile devices like tablets, smart phones or smart glasses will be made available via the App-Stores or as an installation file.
(4) The customer is authorized, to hand over licenses to their customers as guest accounts. For guest accounts, licenses have to be charged according to the offer.
(5) oculavis commits to take regular backups of the server and databases for the purpose of data protection. The scope of the backups is specified in the offer.
(6) Every usage of the contract software beyond the agreed scope constitutes an infringement of the agreement.
(7) The customer has the right to make copies of the contract software and to take regular data backups. The production of further copies than necessary according to the contract including security copies and backups is not allowed.
(8) oculavis assures to handle customer data with care. An access to customer data is only viable for the purposes data backup, software maintenance or updates. In particular, there will be no data transferred to third parties.
(9) The licensing grants under the condition precedent that the agreed license fee is paid.
(10) The customer commits himself to maintain protection notes in the licensed material like copyrights or other legal reservations without any change as well as to take it over in all copies, whether partly or completely, of the license material.
3. Change of the contract software by the customer
(1) Changes of the contract software by the customer, that are not according to the intended use and that go beyond the described changes in the accompanying documents to his individual demands, are defeated by the following regulations:
(i) Changing, decompiling, re-developing, disassembling and other changes of the contract software as well as the duplication of the results of such work by the customer is only permitted after approval by oculavis in written form. The customer rights according to §§69 lit. d) and e) UrhG remain thereby unaffected.
(ii) If the customer needs information to achieve interoperability of an independently created computer program with other programs, he ist obliged to request the relevant information of the contract software at oculavis in written from. He will indicate thereby, for what purpose he will use the requested information and if the information will be disclosed to third parties. If oculavis will not deliver the relevant requested information within 5 working days in a suitable manner, the customer is allowed to execute his legal rights according to § 69 lit. e UrhG.
4. Liability for material defects granting standard or individual software as well as Software-as-a-Service products
(1) The customer has to report obvious defectiveness of the licensed material in written form immediately, at latest two weeks after transmission under exact description of the failure, and has to describe, what the defect effects, affects, under what circumstances it occurs and how it has to be classified from the customers point of view. Customer claims due to obvious defectiveness are excluded, if he does not meet these obligations.
(2) In the case oculavis detects a defect after a customer's report in fact, oculavis will fix the problem within reasonable time. If an attempt to remedy the defect within reasonable time is not successful, and if it fails also within another period of grace set by the customer, and if oculavis cannot provide a workaround following section 4, the customer can lower the remuneration or he can withdraw from the contract.
(3) If the customer chooses the withdrawal from the contract due to failed subsequent fulfillment, he shall hold no additional entitlement to compensation for the defect
(4) oculavis shall be authorized to provide a workaround solution for a potential defect if the defect itself can only be resolved at unreasonable expense.
(5) oculavis shall not be liable for material defects, if the customer made changes on the licensed material in contradiction to paragraph VI. number 3 of this GTC or to the agreed application environment, unless the customer proves that the changes have no relation with the occurred defect and do not impede its analysis and remedy.
(6) As a material defect only significant deviations of the software description according to the offer and/or its annexes apply that affect the usage of the contract software not only insignificantly.
(7) The claims shall lapse after 12 month after the transmission of the licensed material. This does not apply unless the corresponding material defect were maliciously concealed.
5. Warranty of title for defects granting standard or individual software as well as for Software-as-a-Service products
(1) If the contractually agreed use is prejudiced by any third parties' property rights, the parties will inform when acquiring the knowledge in written form immediately. In this case, oculavis has the right
(i) in the extent in which the customer can reasonably be expected to tolerate - to either modify the licensed product in such a way as to let it drop out of the protected sphere, or
(ii) to obtain the authorization to use the licensed product without any limitations and at no additional cost to the customer in accordance with the agreement, or
(iii) if none of the described solutions can be achieved at reasonable efforts, to withdraw from the contract.
(2) If oculavis does not take one of the measures and the customer does not withdraw from the contract, the customer gets other claims on condition that
(i) the customer gives the sole control to oculavis for the legal defense against the third party and the negotiations involved and
(ii) the customers grants the necessary support, information and power of attorney to oculavis.
(3) For claims according to this number section VI. number 4 paragraph (3) and (7) apply respectively.
6. Protection of data for Software-as-a-Service products
(1) oculavis acknowledges and agrees that the client data remains the property of the client and it has no right, title or interest in any client data.
(2) oculavis undertakes to preserve the integrity and confidentiality of the data uploaded by the Client on the SaaS Services and to comply with state-of-the-art security measures.
VII. Regulations for the software care by oculavis
1. Scope of service
(1) If oculavis offers services, scope and service level comply with the description of the offer and its annexes. Services timely extended beyond require special agreements and have to be reimbursed separately.
(2) The customer will indicate defects in written form and with an exact description immediately - also after the warranty period - and has to describe, what the defect effects, affects, under what circumstances it occurs and how it has to be classified from the customers point of view.
(3) The final classification of the defect according to service levels is done by oculavis.
(4) A defect is deemed to exist if the software does not fulfill a function described in the performance specification fully or not applicable or in other ways that it is not working as functionally intended.
(5) The remedy of interferences and damages which are caused by improper handling by the contractual partner, by the influence of third parties or by force majeure, are not the object of the service agreement, can however be agreed between the contractual parties in an individual case against payment of a separate fee. The same shall apply to any damages or interferences, that are caused by environmental conditions at the installation site, due to failures in electricity supply, defective hardware or other effects the provider cannot be held responsible for. Such maintenance work will be charged according to the time consumed on the basis of the hourly rates generally valid at the time of issue by the provider.
(6) Maintenance work will be executed remotely or, if necessary, at installation site. If the customer provides the data processing systems itself or has leased them, the customer has to provide a site or a remote access to oculavis.
2. Further development of the software
(1) During the period of software maintenance the software has to be updated to the current technical status. For SaaS-products oculavis delivers new versions to the respective server environment. Apps for mobile devices (e.g. smart phones, tablets, smart glasses) will be provided via the app-stores or as installation file. When server is operated by the customer (on-premise), oculavis will deliver new versions of the program. oculavis provides a current version of the user documentation.
(2) The customer is responsible for the installation of new software versions for local server installations (on-premise) and for its mobile devices (e.g. smart phones, tablets, smart glasses). If the customer is not installing the newest software updates on notice by oculavis, the compatibility of the application, in particular for mobile devices, cannot be assured by oculavis.
(3) During the period of software maintenance oculavis will provide updates and upgrades to the customer.
(4) The customer has the same rights of use for the updated software as well as other software in the course of the maintenance agreement. Further use rights have to be agreed upon.
(5) Additional services (e.g. customer-specific individual adaptions of the contractual software, of hardware or of the operating system of the customer) are not covered by the service fee. For such changes - as far as not agreed upon otherwise by the parties - a remuneration according to expenditure has to be paid.
3. Termination of granting of the contract software
(1) The customer is obliged, in case of termination of the granting of the on-premise software, to give back all material of the contract software and to delete the contract software on all data carriers that remain at the customer site.
(2) In case of termination for any reason of the agreement for Software-as-a-Service products, oculavis will deactivate the access to the software with the day of the contract’s end.
(3) After contract termination, oculavis assures that the customer gets access to the data uploaded in Software-as-a-Service products (e.g. pictures, documents) for further purposes.
VIII. General terms and conditions for all services and deliveries of oculavis
1. Involvement of customer
(1) The customer is obliged to provide an appropriate support during the period of the contract. In particular the provision of relevant information for the fulfillment of the contract like documents is mandatory. The customer commits to deliver test data that is necessary in terms of amount, structure and type for the future application.
(2) The customer guarantees that all deliveries he gives to oculavis and is necessary for the contract are free of rights of third parties (patents, trademarks, copyright, licenses or other proprietary rights). The customer releases oculavis from all claims of third parties regarding this.
(3) The customer will purchase additional hard- and software that is possibly necessary to use the contract software in his network on his own expenses and install it timely.
(4) The customer is responsible for service and maintenance of its own infrastructures (on-premise), on which oculavis software is installed on.
(5) The customer has to perform a data backup before implementation of the contract specifications by oculavis. The customer commits to backup its software and data at regular intervals. A normal protection is currently one day. The customer is also obligated to analyze its data with a virus protection software regularly.
(6) The customer grants a right of access to its facilities to oculavis employees, as far as it is necessary for the implementation of the contract. With the consent of the customer the work can also be done as remote maintenance or remote installation, as far as the technical conditions are given at the customer site.
2. Acceptance
(1) If the service is specified in phases, the customer has to inspect and accept every service phase separately. It is particular true concerning milestones or similar project phases that are given in a project plan. oculavis has the right to predicate further work on partial acceptance. By acceptance of a phase it will be result and binding basis for further work.
(2) In other cases than paragraph 1 the acceptance of the work will become due immediately after completion.
(3) The service work is classified as accepted, if it has been in productive use for four weeks, also just partially.
(4) An acceptance is also given if the service work has not used for 6 months.
3. Remuneration, prices and terms of payment
(1) The costs specified in the offer respectively the offer confirmation are binding.
(2) The costs are without VAT and travel costs.
(3) Services honored on a timely basis will be charged on a hourly basis. Working time is calculated in 15 minutes per unit. One working day consists of eight (8) hours.
(4) Deliveries and services for which no costs have been agreed on will be calculated according to the cost rates in the last valid offer on a hourly basis.
(5) As additional expenses in particular expenses of oculavis for changes on customer request can be classified (change requests) - that means after agreement on services in the offer or its annexes and specifications.
(6) If the order execution is delayed according to reasons the customer is responsible for, oculavis can demand for an appropriate increase of remuneration. In case of intent or gross negligence oculavis can also claim for compensation.
(7) Travel time is classified as working time, as long as no other regulation is agreed on.
(8) Where a private car is used, reimbursement will be calculated in accordance to statutory provisions. Costs for trains, taxis and airplanes will be charged extra.
(9) Additional costs and other costs necessary for the fulfillment of the contract will be charged when they occur, if nothing else is agreed on.
(10) § 353 HGB is applicable. In the event of default in payment, oculavis is entitled to claim for default interest in accordance to statutory provisions. This shall be without prejudice to the assertion of further default damages.
(11) Any cash discounts that have been agreed shall not be granted if the customer is late in paying for earlier deliveries.
(12) Should oculavis become aware of the risk of poor performance of the customer following conclusion of the contract, then oculavis shall be entitled to carry out outstanding services/deliveries only against advance payment or provision of a security. If the advance payments or collateral have not been provided even after a reasonable deadline has been set, oculavis can withdraw from individual or all of the affected agreements in full or in part each respective case. The right of oculavis to pursue further rights shall remain unaffected.
4. Invoicing
(1) The agreed price in EURO is fully due after 10 days after reception of the correspondent bill.
(2) For services that are charged on a time basis - if nothing else has been agreed upon - interim bills are invoiced
(3) The bill becomes binding and the accounts receivable shall be considered as accepted, unless the customer does not oppose it within six weeks from receipt of the invoice. oculavis commits at the beginning of the period to indicate to the customer the relevance of his behavior with a highlighted imprint on the invoice.
5. Offsetting / Right of retention
The customer shall only be allowed to offset our claims against claims of his own right, which are undisputed or legally established. The same shall apply for any right to withhold right of retention.
6. Retention of title
(1) Until full payment of all claims from oculavis against the customer resulting from the contract, the delivered goods shall remain property of oculavis.
(2) This regulation applies for all claims from the business relationship.
7. Warranty rights for deliveries and services, in particular when purchasing hardware
(1) Obvious defectiveness or incompleteness of the goods have to be communicated to oculavis in writing within two weeks after the goods receipt by the customer specifying the fault in detail. Customer claims due to obvious defectiveness are excluded, if he does not meet these obligations.
(2) As a material defect only significant deviations to the agreement apply that affect the usage of the contract service or delivery not only insignificantly.
(3) oculavis grants warranty for any defect first upon his own choice by means of rectification or replacement.
(4) The customer shall bear the full burden of proof for all pre-requisites for the claim, in particular faults as such, for the time of detecting the fault and for any notification of the fault made in due course.
(5) Upon receipt of a notice of defect, oculavis shall have the right to inspect and test the allegedly defective goods. The customer shall grant oculavis the necessary time and opportunity to do this. For this, oculavis can require the customer to send back the allegedly defective goods at the expense of oculavis. Should the customers notification of defects prove to be unfounded, he shall reimburse oculavis for all expenses incurred in this connection like travel, test and shipping costs.
(6) If subsequent fulfillment fails, if this is not reasonable for the customer or if oculavis has refused subsequent fulfillment, the customer has a choice of demanding reduction or compensation of the contract or withdrawal from the contract. In the case of minor defects, the customer has no right of withdrawal.
(7) After the failed subsequent fulfillment the customer chooses to withdraw from the contract due to a legal or material fault, he shall not have any additional claim for damages owing to that defect.
(8) The compensation is restricted to the difference between purchasing price and value of the defective good.
(9) The warranty claims shall be forfeited within 12 month from delivery and acceptance of the service.
(10) The previous sections 7-9 shall not apply if oculavis maliciously committed the contract violation.
8. Liability
(1) Unlimited liability: oculavis shall be liable without limitation for intent and gross neglience, according to the German Product Liability Act as well as for damages from injury of life, body and health of persons.
(2) Limitation of liability: oculavis shall not be liable in the case of slight negligence, besides only due to a violation of a substantial contractual obligation, whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which fulfillment the customer normally trust (cardinal duty).
(3) For local installations (on-premise) oculavis is only liable for the recovery of data provided that the customer has, appropriate to the level of risk, made regular backup copies and ensured that the data from such backup copies can be reconstructed at reasonable expense. Any further liability for data losses is excluded subject to the provisions of the aforementioned sections 1 and 2.
(4) For Software-as-a-Service installations oculavis is only liable for the recovery of data, as far as oculavis did not comply to its contractual obligations of data backups for server environments and databases. Any further liability for data losses is excluded subject to the provisions of the aforementioned sections 1 and 2.
(5) The customer exempts oculavis from all claims made by third parties including expenses for legal and court costs, that are claimed due to the use of the licensed material in particular taking the regulations of strict liability into account.
9. Termination of contracts
(1) If the contract has been concluded for an unlimited time, the parties have the right to terminate the contract without giving reasons with four week notice to the end of each month.
(2) If the contract has been concluded for a limited time, the agreement ends the end of the limited period without automatic extension.
(3) The right to terminate for important reasons remains untouched. An important reason in particular is the customer is not fulfilling his obligations to pay of two monthly payments behind schedule.
(4) Any termination notice must be in writing to be effective. eMail is not sufficient.
10. Secrecy
(1) Both parties agree, that the licensed material by oculavis includes secret knowledge by oculavis. The customer undertakes to protect from disclosure to any third party the licensed software including all accompanying documentation, any backup copies made, and all other information of oculavis identified or marked as confidential, and which is made accessible to the customer within the context of this contractual relationship. This includes, in particular, all information made accessible which goes beyond the outward appearance of the licensed software and the mere list of its range of functions, as well as the methods and processes used by oculavis.
(2) Furthermore, both parties have to treat all business and operational matters of which they are aware of and all information that are in connection with the fulfillment of this contract also beyond its termination strictly confidential. The same applies for personal data with due consideration of the provisions of the data protection laws.
(3) The obligation of secrecy shall not apply to confidential information which
(i) was already publicly known at the time of disclosure, or became public knowledge thereafter (and where noncompliance with the above provisions was not a contributory factor),
(ii) is expressly revealed by oculavis on a non-confidential basis,
(iii) was already in the lawful possession of the customer prior to the disclosure, or
(iv) is subsequently revealed to the customer by a third party without contravening an obligation of secrecy. The customer has the burden of proving the existence of one of the above exceptions.
11. Place of jurisdiction
Place of performance and exclusive place of jurisdiction for all claims arising is Aachen, Germany (including suits filed in connection with checks and bills of exchange). This shall apply equally if the owner of the addresses does not have a general place of jurisdiction in the Federal Republic of Germany or, following conclusion of the contract, shall transfer his usual domicile abroad or the residence or general stay are not know at the time that legal action is taken.
12. Final provisions
(1) The conditions of the contract are exclusively liable to the right of the Federal Republic of Germany with the exception of the UN-Convention from April 11, 1980 about international purchasing of goods (CISG).
(2) Modifications or supplements to this agreement must be made in writing. This shall likewise apply to any waiver of such form requirement.
(3) The conditions of this contract shall supersede any previous agreement between the parties within its scope of application.
(4) The German version of the contract is binding.
(5) Should any provision of the agreement or these business conditions be or become invalid, either in part or in full, the effectiveness of the other provisions shall not be affected thereby. The parties agree to replace the invalid provision with a provision the economic content comes closest to the content of the invalid provision. This will also be applied in the case of a missing part to this agreement.
