General Terms and Conditions of Business of PointCab GmbH
Section 1 Area of application
These general terms and conditions of business shall apply to all purchase, rental, and support contracts of PointCab GmbH, registered office Talstrasse 8, 73249 Wernau, (hereinafter referred to as the ‘Licensor’) with natural or legal entities or a sole trader with legal capacity (hereinafter referred to as the ‘Customer’). The Customer confirms that they act in performing their commercial or independent professional activity when concluding the legal transaction. Contradictory general terms and conditions of business of the Customer have no validity, unless the Licensor accepts these or individual stipulations in these terms and conditions in writing.
Section 2 Object of the Contract
- The object of the Contract is the permanent and/or limited-period licensing of the computer program with the designation “PointCab” in the respective current version (hereinafter referred to as “Contract Software”), the provision of support services by the Licensor, and granting the rights of use described in Section 8. These also include special versions such as “PointCab Suite”, “PointCab 3DPro”, “PointCab Plug-ins”, or also “PointCab Apps”.
- The Contract Software is software for the processing of point clouds. In the process, the major information is extracted from point clouds, processed, converted, and presented. The results can subsequently be imported into various CAD systems. The individual features can be found on the website of the Licensor at pointcab-software.com.
- The Contract Software can only be deployed in the hardware and software environment described below. For deployment of the Contract Software, the Customer shall ensure the following system requirements are met:
Supported operating systems:
- Microsoft Windows 7 – 64-bit
- Microsoft Windows 8, 8.1 – 64-bit
- Microsoft Windows 10 – 64-bit
The Contract Software is only available for Windows platforms.
Minimum requirements for computer hardware:
- Intel-compatible CPU, 1.0 GHz processor (Multicore 2.4 GHz recommended)
- 1 GB RAM (16 GB recommended)
- At least 10 GB available hard disk memory space
- The specifications of the Contract Software shall be regarded as service descriptions and not as guarantees. A guarantee shall only be given if it is expressly designated as such and has been confirmed in writing. Configuration services are not an object of this Contract.
- The Licensor does not have to deliver an operating manual. Details and instructions for use of the Contract Software can be found on the website of the Licensor at pointcab-software.com.
Section 3 Contract conclusion
- Contracts shall be concluded by means of agreement by telephone or in writing or oral agreements or by ordering on the website http://shop.pointcab-software.com and acceptance by the Licensor, which can also be confirmed by sending the invoice and/or sending the ordered license file(s).
- The Customer decides whether they shall purchase or rent the Contract Software.
- If the Customer purchases the Contract Software, two contracts are concluded: firstly, the purchase contract for acquisition of the Contract Software; secondly, the simultaneous conclusion of a support contract.
Section 4 Prices and terms of payment
- The prices for the purchase and/or rental of the Contract Software shall be taken from the offer / order acknowledgment, otherwise from the current price list, which can be found on the website of the Licensor at pointcab-software.com. Unless otherwise specified, the prices do not include the statutory amount of sales tax (VAT).
- The respective terms of payment shall be taken from the offer / order acknowledgment; otherwise all charges shall be paid within a set period of two weeks after invoicing.
- All payments of the Customer shall be effected in euros or USD. Any fees for currency conversion will be at the expense of the Customer.
Section 5 Right of retention of the Licensor
- If punctual payment is not effected, the Contract Software and/or access of the Customer to the Contract Software can be disabled by the Licensor.
- On purchase of a dongle license, the dongle shall only be shipped after payment of the entire sum owed. For the period between the order and payment, the user shall be granted the possibility to use an online license on request.
Section 6 Retention of ownership on purchase
The Licensor shall retain ownership of any delivered data media until complete payment of the purchase price. This right of retention refers to all of the accounts payable that have arisen or will arise in the relevant business relationship.
Section 7 Obligations to collaborate on the part of the Customer
- The Customer shall check the correctness, accuracy, and completeness of the processed data and results. This also includes procedures for the registration of point clouds, measurements in the point clouds and the pre-processed results, as well as the import into third-party software.
- Processing of the order and the transfer of all the information required in the context of contract conclusion shall take place using, among other things, email; the tasks are partly automated. The Customer shall therefore ensure that the email address stored by the Licensor is correct, receipt of the emails is technically ensured, and in particular is not prevented by spam filters.
- If required, particularly within the framework of the support to be provided by the Licensor, the Customer shall provide the Licensor with the possibility to access the IT installation of the Customer for the purpose of remote maintenance. In this context, the Customer shall follow the corresponding instructions of the Licensor. Details are regulated by the conditions of the support contract.
- It is the responsibility of the Customer to create proper and adequate data backups and to maintain the software and hardware environment of the Contract Software properly and adequately.
Section 8 Rights of use
- At all times, the granting of rights of use is conditional on complete payment of the purchase price and/or the monthly rent.
- The Licensor shall grant the Customer simple, non-exclusive, and time-restricted (rental) or unrestricted right (purchase) to use the Contract Software. No acquisition of rights beyond this is associated with this granting of rights of use. Insofar as the Contract Software contains open source constituent parts, the regulations of the open source provider shall apply separately. The Licensor, however, confirms that the open source constituent parts do not hamper use by the Customer in line with the Contract.
- The right of use is restricted to the respective purchased version, including updates and adjustments during the contract period.
- The source code shall remain the property of the Licensor. The Customer shall not be entitled to any release or disclosure of source code.
- The purchase or rental of a license entitles the Customer to install and operate the Contract Software. Unless otherwise stipulated in writing between the Licensor and Customer, the rights of use for the Contract Software shall be restricted to use by only one user at any one time. Simultaneous storage or use of the Contract Software on more than only one hardware system is not permitted. The deployment of the entrusted Contract Software within a network or other multi-station computer system is not permitted where this establishes a possibility for simultaneous multiple use of the program.
- In the case of a right of use of the Customer that is not restricted by time, the final transfer of the Contract Software to a third party shall only be permitted under the conditions that the Licensor is immediately notified of the name and address of the third party and that the third party is bound in writing to the Licensor before the transfer by the regulations for use that prevailed on transfer to the Customer. Moreover, the Customer shall transfer all entrusted copies, including any backup copies, to the third party or shall destroy copies they do not transfer.
In the event of transfer of the Contract Software before the third party has been bound by the stipulations regarding use and transfer, the Customer undertakes to pay an appropriate contractual penalty to the Licensor, the amount of which is to be specified in individual cases at the discretion of the Licensor and can be checked for appropriateness by the court of jurisdiction.
- Under no circumstances does the Customer have the right to rent the purchased Contract Software or sub-license it in any other way. In the case of time-restricted rights of use, the Customer shall not be entitled to transfer the rights of use they have been granted to third parties or grant third parties any rights of use.
- The Customer shall be permitted to create a backup copy of the Contract Software exclusively for the purpose of data backup. The Customer undertakes to take suitable precautions to prevent unauthorized access of third parties to the Contract Software as well as the documentation. Other statutory stipulations remain unaffected.
Section 9 Warranty
- Deficiencies in computer programs cannot be completely excluded in line with the state of the art. The Customer shall be aware of this. A deficiency in the program is when
(a) The program does not provide the functionalities specified in the product / service description of the program when deployed in line with this Contract or
(b) It is not suitable for the purpose presupposed by this Contract or
(c) It is not suitable for the usual purpose and does not have the features that are usual in the case of programs of the same type and that the Customer can expect from this type of program.
- There is no deficiency in particular if
(a) One of the above requirements no. 1 (a)-(c) only has a negligible effect on use of the Contract Software;
(b) A malfunction has been caused by non-expert treatment of the Contract Software;
(c) The cause of a malfunction does not lie in the Contract Software, rather has other causes that are not within the sphere of influence of the Licensor (e.g. system crash or similar).
- The Customer shall check the Contract Software for obvious deficiencies immediately on receipt and in the event of deficiencies notify the Licensor immediately; otherwise, a warranty for these deficiencies is excluded. The same applies if such a deficiency becomes apparent later.
- Article 377 of the [German] Commercial Code shall apply to the purchase.
- The Licensor shall remedy any reported and reproducible deficiencies within an appropriate period. There shall be no guarantee for reported errors that are neither reproducible nor can be demonstrated by machine-generated output. In the case of a deficiency in quality, the Licensor shall initially be entitled to provide supplementary performance (rework). Exclusively at the discretion of the Licensor, this can consist of two corrections or replacement deliveries. Within the framework of any replacement delivery, the Customer shall adopt the current version of the Contract Software (updates and, if applicable, upgrades), unless this would lead to unacceptable impairments on the part of the Customer. Within the framework of a correction, the Licensor shall be entitled to provide a provisional improvement until delivery of a corresponding update by explaining to the Customer possibilities and procedures to work around the deficiency or its effects. This does not apply if the workaround is unacceptable to the Customer.
Following the report of a deficiency by the Customer, the Licensor shall immediately start with correction of the deficiency, taking account of the respective situation, in particular the cause, severity, and effects of the deficiency. The report of the deficiency shall be documented in a ticket system. As soon as it is discernible for the Licensor, they shall inform the Customer regarding the possible cause of the deficiency as well as subsequently regarding the respective status of the correction of the deficiency. If correction of the deficiency is not possible within 2 working days after receipt of the deficiency notification (“recovery time”), the Licensor shall notify the Customer immediately. Measurement of compliance with the recovery time shall only take place within the general service time of the service provider. This is Monday to Friday from 9.00 hrs to 17.00 hrs. The recovery time starts with receipt of the proper and adequate deficiency notification. A deficiency notification is proper and adequate when the Customer has adequately complied with their obligations to collaborate in line with Section 12, No.7, with regard to description of the deficiency and its correction.
- The Licensor shall also meet their obligation for correction by providing updates that are free of any deficiency with an automatic installation routine for download on their homepage and offering the Customer telephone support as well as online support via remote maintenance with screen transmission for the solution of any problems that have occurred.
Section 10 Liability
The extent of liability of the Licensor is restricted to the amount of their third-party liability insurance as follows:
EUR 3.0 million for personal injury and damage to property.
EUR 500,000.00 for economic loss.
EUR 250,000.00 in the case of cancellation by the Customer.
EUR 250,000.00 for first-party losses in the event of loss of documents.
EUR 250,000.00 for costs of damage to reputation.
EUR 250,000.00 in the case of fidelity losses.
EUR 250,000.00 for costs in the case of damage to or destruction of a website.
The liability limitation shall not apply in the case of actions performed by the Licensor involving willful intent or gross negligence.
Section 11 Special conditions for rental
- If the Customer rents the Contract Software, the rental contract shall be concluded for a fixed duration of one month or several months. Within this period, notice of termination of the rental contract cannot be given other than for good cause.
At the end of the rental period, the right of the Customer to use the Contract Software shall expire. The Customer must return the entrusted data media with all license keys and documentation. Stored Contract Software or documentation shall be deleted immediately. At the request of the Licensor, the Customer shall submit a declaration regarding the completed deletion.
During the rental period, the Licensor shall provide support. The stipulations of the support contract apply accordingly.
Section 12 Support
On conclusion of a purchase contract, the following support contract takes effect simultaneously:
- On conclusion of a support contract, the support services to be provided by the Licensor refer to the respective version of the Contract Software purchased by the Customer, including updates and upgrades acquired during the contract validity period.
- The Licensor shall provide support exclusively for the Contract Software by making updates and upgrades available at irregular intervals, although there is no entitlement on the part of the Customer to receive such updates and upgrades. The method used for error resolution is at the discretion of the Licensor. If the Licensor offers the Customer new program sections, in particular patches, bug fixes, updates, upgrades, new releases, new versions etc. to avoid or remove errors, the Customer shall adopt these and install them or have them installed on their hardware in accordance with the installation instructions of the Licensor. Support services also include advising the Customer by telephone, remote maintenance, and/or email with regard to questions that arise in the context of using or installing the software. If applicable, support can be provided in the form of videos, tutorials, and step-by-step instructions on the internet presentation www.pointcab-software.com or at other URLs for the problem described by the Customer. On-site support is not a constituent part of the support contract. The Customer can reach the Licensor from Monday to Friday from 09:00 hrs to 17:00 hrs (CET / CEST) with the following contact data: +49-7153/ 929 593 0 or via: email@example.com.
- In the event of major errors in the Contract Software, the Licensor is under obligation to remedy the error(s) in one of the subsequent updates. The requirement for searching and removing errors is the Customer’s compliance with their obligations to collaborate (Section 12, No. 7).
- Deficiencies that do not diminish the running capability and operation of the Contract Software to an appreciable extent shall only be remedied if this is possible with acceptable overhead. This is not the case if re-programming of major parts of the program were to be required.
- The customer care services do not include:
Work outside of support standby, measures to remove malfunctions caused by operating errors, improper handling, technical interventions on the part of the Customer or third parties or external influences for which the Licensor is not responsible;
Services such as training courses, installation, configuration of systems or system components, programming, individual customizing requests, consulting as well as data backups and/or restoration of data;
Errors caused by the operating system or incorrect configuration of the operating system and / or drivers.
- Telephone or other live support services (e.g. live access to the desktop of the Customer) amount to 4 x 45 minutes per license purchased by the Customer related to one year after conclusion of the support contract. Reproducible errors that occur in the Contract Software are not covered by the live support services.
- The Customer has a duty to collaborate to enable and facilitate the required support and maintenance measures. In particular, the Customer must immediately report any error that occurs, explaining it in a generally understandable manner, as well as enable adequate access per remote maintenance to their hardware and the Contract Software. On request and where applicable, the Customer shall provide the Licensor with deficiency reports in writing and other data and logs suitable for analysis of the error.
- Services that are not covered by the support contract shall be provided by the Licensor at the request of the Customer and shall be subject to separate payment. Billing takes place on the basis of the hourly rate of the Licensor that applies at the point in time of service provision. This is currently €85.00 / hour.
- It shall only be possible for the Licensor to involve subcontractors with the prior express consent of the Customer.
- The support contract has a fixed duration of 12 months within which notice of termination of the contract cannot be given other than for good cause. If notice of termination of the support contract is not given by one of the contracting parties within a period of one month before expiration, the support contract shall be extended by another fixed period of 12 months.
- The right to give notice of termination of the support contract for cause remains unaffected by this.
- To be legally enforceable, notice of termination must be given in writing.
- Live support services that the Customer has not used by the time the Contract expires or in the case of contract renewal shall lapse. No compensation shall be provided.
- If the Customer gives proper notice of termination of the support contract and the Customer wishes to conclude a new support contract after this termination, this is only possible under the condition that the Customer pays the charges for support, updates, and maintenance that would have been due in the period between the end of the first support contract and the start of the second support contract.
- For support services, the stipulations of service contract law from the [German] Civil Code shall apply as supplementary stipulations.
Section13 Data protection
- Person-related data shall only be collected if the Customer provides the Licensor with these data, in particular for ordering transactions. The Licensor shall use the data provided by the Customer without separate consent exclusively for the purposes for which the Licensor was provided with the data. Once the tasks for which the Customer provided the Licensor with the data have been completed, the data of the Customer shall be blocked for further use and – after the tax-related and commercial regulations regarding retention periods have elapsed – they shall be deleted unless the Customer has expressly consented to continued use of their data.
- With the purchase or rental, the Licensor declares their express consent that the software shall make contact with the license server at irregular intervals in order to check the validity of the licensing. Here, various data of the Customer and of the computer used, e.g. license ID and MAC ID of the computer, are transferred. The same applies in the case of updates and bug fixing.
Section 14 Miscellaneous
- If the parties are in an ongoing business relationship, all the stipulations of these general terms and conditions of business shall also apply to future contracts.
- Subsidiary arrangements, changes or supplements to this Contract must be made in writing. This also applies to changes or annulment of this clause.
- The Customer shall only be permitted to transfer claims against the Licensor to third parties with the consent in writing of the Licensor.
- Offsetting may only take place with indisputable or legally enforceable claims.
- These stipulations are subject to German law to the exclusion of the “United Nations Convention on Contracts for the International Sale of Goods” dated April 11, 1980 (UN purchasing law).
- The place of performance is the registered office of PointCab GmbH. The exclusive place of jurisdiction is Stuttgart provided each of the parties is a trader or legal entity or legal entity at public law or has no general place of jurisdiction in Germany.
- The Contract Software can be subject to (re-)export restrictions or customs and tax-related restrictions. The Customer shall ensure compliance with all regulations in this regard in the event of resale or other forms of export.
- Both parties shall treat any business and operational matters that become known to them as confidential and treat all information related to compliance with these regulations as strictly confidential, also after expiration of the Contract. The same applies to person-related data that are subject to the regulations of data privacy protection legislation.
- If individual stipulations of these general terms and conditions of business are void, this shall not affect the validity of the other stipulations. The contracting parties shall make every effort to replace the void stipulation with a valid stipulation that comes closest to the commercial purpose of the void stipulation.
Wernau, dated August 18, 2017