Offer Conditions for MAZINGXR SOLUTION
from 01.10.2021
1. Definition
"MAZINGXR Solution = MAZINGXR" is the standard software for the visualization of 3D models on websites and in "Augmented Reality" from MAZING GmbH, whose functionalities the user can use as part of the individually agreed service. The term includes updates, but not modifications or add-ons to the software.
"Augmented Reality" is the combination of real images, mostly camera recordings, and virtual images.
"Service" is the access to and use of the functionalities of the software through the provided links according to the provisions of the contract.
"Display Objects" are optimized photorealistic 3D objects considered part of the MAZINGXR Solution and displayed to the user.
“Individual Contract” is the order form or quotation that specifies the Service ordered.
"Initial Term" is the initial Contract Term agreed in an Individual Contract.
"Hosting Fee" means the fee for the right to use the Service from time to time as agreed in an Individual Agreement.
"Maintenance and support services" is the maintenance of the operation for visualization
"Updates" are all new versions, releases, other error corrections and patches that MAZING GmbH makes available as part of the maintenance and support services as part of the services.
“Due diligence” means the use of care that the receiving party uses to protect its own Confidential Information of the same kind, but no less than reasonable care.
"Confidential Information" means information of the other party, including but not limited to information relating to the operation, technical or commercial know-how, specification, invention, process or initiative, plan, product information, pricing information, know- how, drafts, trade secrets, software, documents, data or information which, when communicated by one party to the other party, are a) clearly designated or marked as "confidential" or "proprietary" or similar, b) verbally or visually communicated will be designated as Confidential Information at the time of communication.
"Maintenance = Hosting" are ordered by the user with an individual contract. Maintenance and support services are not provided for third-party applications.
"User" is the contractual partner defined in the individual contract. "Subservices" are those functions that are active in the operating systems on smartphones.
"Service Level Agreement" = SLA describes the availability of the software
2. Subject of the Conditions
MAZINGXR Solution operated by MAZING GmbH provides the user with access and use of the functionalities and content of the MAZINGXR Solution. The service and the hosting fee agreed in this context include the access and use of the functionalities of the MAZINGXR Solution, the maintenance and support services as well as the content presented in the scope agreed in the individual contract.
3. Individual Contract
An individual contract is deemed to have been accepted by the user on the day on which the user signs the respective individual contract in writing or electronically and transmits it to MAZING GmbH, or otherwise declares his consent by confirming an "I accept" field or a similar electronic acceptance method. These conditions apply to additional services such as installation, integration, parameterization, customization of the MAZINGXR Solution to the needs of the user, as well as the development, optimization and management of the display objects.
4. Provision and Validity
4.1 After the user has countersigned the offer, MAZING GmbH will provide the user with access to the MAZINGXR solution by e-mail in accordance with the delivery conditions regulated in the individual contract.
4.2 The Service shall be deemed to have been made available for the first time on the date of User's acceptance of the offer pursuant to Clause 2 and upon fulfillment of the obligations pursuant to Clause 3.
5. Maintenance Hosting Services
5.1 The maintenance services are part of the MAZINGXR Solution and are shown as a hosting fee.
5.2 The operators of MAZINGXR Solution are entitled to update the maintenance services at regular intervals during the contract period and to inform the user of adjustments of their own choice by email. MAZING GmbH ensures that as a result of the update, no reduction in the scope of services or unreasonable changes will occur when viewed reasonably. Any termination rights of the parties remain unaffected.
6. Access to the MAZINGXR Solution
6.1 In relation to the user, MAZING GmbH is entitled to all rights (in particular property rights) to the MAZINGXR Solution and the documentation as well as the further developments. The user is granted a non-exclusive, non-transferable right to access the service and to use it for his own purposes, to the extent defined in the terms of the individual contract and for the duration of the contract period.
6.2 MAZING GmbH grants the user the non-exclusive, non-transferable and worldwide right to access the services defined in Section 2 during the contract period.
7. Use of MAZINGXR Solution
7.1 The right to use MAZINGXR Solution is limited to use for your own purposes. Any further exploitation or use for other companies/organizations is not permitted.
7.2 The right to use MAZINGXR Solution exists only to the extent agreed in each individual contract. There, the parties can agree on restrictions regarding the number of calls or access links. MAZING GmbH is granted the right to integrate technical precautions into the service that make it possible to monitor compliance with the agreed usage restrictions by the user. MAZING GmbH does not disclose any content of the service. Upon written request, the user will be provided with a written report of the determined results.
7.3 The user may review the determined results within thirty (30) days of receipt and may object to the results if necessary. If no objection is raised, it is deemed to have been established that the user has used the service outside of the agreed scope of use. In this case, MAZING GmbH will work with the user to adapt the actual use of the service to the scope defined in the individual contract. If, despite all efforts by MAZING GmbH, no agreement is reached, MAZING GmbH is entitled to assert additional fees based on the current price list or to withhold the provision of the service.
8. Rights of MAZING GmbH
MAZING GmbH is entitled to change the access links on the basis of an electronic adjustment notification, which must be sent at least one (1) month in advance, provided this is reasonable for the user, taking into account his interests.
9. User Rights and Responsibilities
9.1 The user is responsible for the actions and omissions of its users and affiliated companies as for its own actions and omissions and obliges them to use the MAZINGXR Solution in accordance with the contract. Furthermore, the user is prohibited from licensing, selling, leasing, renting or otherwise making MAZINGXR Solution content available to third parties. The user maintains reasonable security standards for the use of MAZINGXR Solution. The user is solely responsible for the provision and maintenance of his network connections and telecommunications connections as well as all problems and delays resulting therefrom. In the event of such access or use, he will inform MAZING GmbH immediately.
9.2 The user ensures that he and his users do not introduce, store, distribute or transmit any virus when using the MAZINGXR Solution. He shall also ensure that no content that is (i) inappropriate content or (ii) infringing, violating copyrights, otherwise unlawful or enabling unlawful or infringing activities is introduced, stored, distributed or transmitted. In the event of a violation of these requirements, MAZING GmbH is entitled to remove content that MAZING GmbH believes is inappropriate content. The right to terminate the individual contract for an important reason, see Section 13.2, remains unaffected.
9.3 The user indemnifies MAZING GmbH from all damage, costs and other expenses resulting from the violation of this clause 9.2 by the user.
9.4 The user is responsible for monitoring the use of the MAZINGXR Solution and is obliged to report irregularities to MAZING GmbH immediately and in writing.
10. Links to Subservices
10.1 MAZINGXR Solution may contain links to web services provided by third parties on external websites that are accessible through the Service and are subject to the terms of use of those third parties. MAZING GmbH only provides technical access to the content of such integrated websites, for the content of which these third-party providers are solely responsible.
11. Service Level Agreement
11.1 MAZINGXR Solution
reasonable efforts included in the SLA
availability during the contract period.
11.2 If the monthly measured availability
(a) less than 2% for two (99) consecutive calendar months; or
(b) is less than 3% in three (95) calendar months within a contract year, the user can terminate the contract with a notice period of 15 days after the occurrence of the non-compliance in writing by notification to MAZING GmbH. The termination will take effect at the end of the calendar month in which MAZING GmbH received the notice of termination. Services that have been paid for up to now will be reimbursed pro rata at the regular end of the contract period.
11.3 Subject to any claims for damages in the event of a violation of the SLA, further claims by the user are excluded in addition to the right to termination.
11.4 Excluded from the SLA are user-specific end devices that do not meet the system requirements according to the individual contract.
12. Use of Data for Development
12.1 MAZING GmbH and its affiliated companies, subcontractors and external service providers may collect, use and pass on quantitative data for the purpose of preparing benchmarking studies, marketing purposes or other business purposes and prepare analyses.
12.2 All data so collected is anonymous and aggregated and will not identify the user and its users or any other third party included in such data. Examples of uses of analytics include: resource and support optimization, performance improvements, product development, data security and integrity verification; internal, data products such as industry trends and developments and anonymous benchmarking.
13. Duration and termination of the individual contract
13.1 The term of an individual contract begins on the day specified in the individual contract, but no later than when the service is provided for the first time (see Section 3 of these conditions). Individual contracts run for the initial term of 12 months, unless otherwise agreed in the individual contract ("initial term). The initial term is then extended by a further 12 months ("Extended contract period"; Extended Contract Term and Initial Contract Term together the "Contract period"), unless one party terminates the respective individual contract in writing with a notice period of 30 (thirty) days to the end of the respective term. Subject to the above provisions and unless otherwise agreed in writing in the individual contract, an individual contract can only be terminated extraordinarily in accordance with the following provisions of this Section 8.
13.2 Irrespective of other claims, each party is entitled to terminate an individual contract in writing with immediate effect in the following cases:
(a) User commits a material breach of contract and, in the event of a remediable breach, is unwilling or unable to remedy the breach within 30 (thirty) days of receipt of the notice, despite written notice; or
(b) Insolvency proceedings (or equivalent proceedings under local law) are instituted against User's assets or the opening of insolvency proceedings is refused for lack of assets.
(c) For clarification, the parties state that a right of termination due to failure to comply with the service uptime only exists under the conditions of Section 6.2 and is not excluded under Section 6.4.
13.3 Upon each termination of an Individual Agreement:
(a) All rights to use the Service under these Terms and the Individual Agreement have ended; and
(b) If the user refrains from using the service, the documentation and all copies thereof and will (i) delete or destroy all relevant items at his own discretion and, at the request of MAZING GmbH, will undertake all economically agreed deletion/destruction surrender or (ii) return to MAZING GmbH. The user is entitled to keep a copy of the documentation for archival purposes.
14. Hosting Fee and Payment Terms
14.1 Hosting fees only apply to individual contracts. The hosting fee is billed annually in advance. Unless otherwise agreed in the individual contract, payments are due without deduction within 30 days of the invoice date. 14.2 When the payment is due, MAZING GmbH can demand default interest in the amount of the applicable statutory default interest rate. If the user is in default of payment, MAZING GmbH can temporarily block access to the service in whole or in part after a reasonable period of grace has expired without success until payment has been made.
14.3 The hosting fees do not include taxes and duties. Insofar as MAZING GmbH has to pay any taxes with regard to the provision of services under an individual contract, these will be invoiced to the user at the applicable amount.
14.4 If the individual contract is not extended within 60 days before the end of the individual contract, MAZING GmbH is entitled to adjust the hosting fee for a further twelve (12) months with effect from the day following the next anniversary of the individual contract coming into force. If MAZING GmbH increases the hosting fee, the increase may correspond to the percentage of the labor cost index of Statistics Austria (Bundesanstalt Statistics Austria) that precedes the increase.
15. Warranty
15.1 The nature and functionality of the services owed to MAZINGXR Solution are finally agreed in the individual contract and the documents referred to there. MAZING GmbH provides maintenance and support services with the customary care and according to the recognized rules of technology. MAZING GmbH does not owe any additional services or features. In particular, MAZING GmbH does not guarantee problems
(a) caused by misapplication;
(b) the goals desired by the user are achieved with the service;
(c) the Service was developed to meet individual user specifications;
(d) the Service experiences problems outside of the system requirements.
(e) MAZING GmbH also provides no guarantee for data loss or unauthorized access that could not have been prevented by appropriate, state-of-the-art security within the framework of the then current security structure of the services.
15.2 MAZING GmbH guarantees that the service will fulfill the specifications agreed in the individual contract and in the documentation during the term of the contract.
15.3 During the term of the contract, MAZING GmbH will remedy defects free of charge within a reasonable period of time, which the user reports in writing or electronically in a comprehensible form. MAZING GmbH can, at its own discretion, meet the obligation to remedy defects by providing a new, defect-free version of the service at its own expense.
15.4 If the replacement or repair of the service or parts thereof is not reasonable, if the remedy of the defect fails or if the error mentioned is not described in the documentation, the user is entitled to either demand a reduction in the hosting fee or the to terminate the individual contract. Compensation for damages or compensation for wasted expenses due to a defect
MAZING GmbH does not provide.
15.5 If the user asserts claims for material defects, this has no effect on further contracts concluded between him and MAZING GmbH.
15.6 To the extent permitted by applicable law, the warranty rights provided are final.
15.7 The parties agree that the ordering of the service by the user is not dependent on future functionalities or features of the services, public announcements made orally or in writing or other statements by MAZING GmbH with regard to future functionalities or features of the service.
16. Liability
16.1 MAZING GmbH is liable for damages and the reimbursement of expenses from or in connection with the respective individual contract, regardless of the legal reason, only in the following cases:
(a) The Contractor shall only be liable to the Client for damage for which it can be proven that it is at fault in the event of gross negligence. This also applies mutatis mutandis to damage caused by third parties called in by the contractor.
(b) Liability for indirect damage - such as lost profits, costs associated with business interruption, loss of data or claims by third parties - is expressly excluded.
(c) Claims for damages become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the person causing the damage.
If the contractor performs the work with the help of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor assigns these claims to the customer. In this case, the client will primarily rely on these third parties.
Insofar as and as long as obligations resulting from force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, power failure, failure of means of transport, failure of telecommunications networks or data lines, changes in the law affecting the services after the conclusion of the contract or other unavailability of products cannot be fulfilled in a timely manner or properly, this does not constitute a breach of contract.
In cases of simple negligence, which do not fall under the provisions of Section 13.1.1, MAZING GmbH is only liable for the violation of so-called cardinal obligations (i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose observance the user regularly relies). and may trust). In these cases, liability for any damage that occurs within the framework of an individual contract is limited to (i) EUR 2.000 per claim and (ii) for all damage that occurs within a calendar year to a total of twice the amount to be paid within this calendar year Remuneration according to the individual contract.
16.2 The objection of contributory negligence (e.g. violation of the user's obligations) remains open. The limitations of liability do not apply to liability under the Product Liability Act. 16.3 The statutory limitation periods apply to all claims against MAZING GmbH for damages or reimbursement of futile expenses in the case of contractual and non-contractual liability.
16.4 MAZING GmbH is not liable for the duration and in the cases in which it is unable to foresee and for which it is not responsible for the fulfillment of its obligations as a result of events beyond the control of MAZING GmbH, in whole or in part be prevented. In particular, this includes the following events: strikes, lockouts or other collective bargaining disputes (regardless of whether they relate to MAZING GmbH employees or third parties), failure of third-party infrastructure services that are not under the control of MAZING GmbH or transport networks, war, riots, accidents , fire, flood and other natural disasters. MAZING GmbH will inform the user immediately about the occurrence of a force majeure event.
16.5 In the event of damage and expenses incurred by the user caused by viruses and for which the user is not responsible, MAZING GmbH is only liable in the event of fault, within the framework of the above provisions and only under the additional condition that the virus is on the part of MAZING GmbH could have been detected and eliminated by appropriate, up-to-date protective mechanisms.
17. confidentiality
17.1 Each party reserves all rights in its Confidential Information.
17.2 Subject to Clause 13, each party undertakes to treat as confidential all confidential information of the other party that was communicated or made accessible to it in connection with an individual contract and to use this only for the implementation of the individual contract. Confidential information may only be reproduced to fulfill the purpose of the contract. Any reproduction of the Confidential Information must bear the appropriate confidentiality notices of the original. With respect to the other party's Confidential Information, each party agrees to (a) maintain it with reasonable care; and (b) to disclose this only to those representatives whose knowledge of the Confidential Information is necessary for the execution of the individual contract and who are obliged to maintain confidentiality at least to the same extent as in these Terms and Conditions. Each party is responsible for compliance by its representatives as for its own actions.
17.3 Each party agrees to notify the other party in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing party of which the receiving party becomes aware.
17.4 The Rules shall not apply to any Confidential Information that the Receiving Party can demonstrate was (a) independently developed by the Receiving Party without use of the Confidential Information; (b) becomes fully known to the receiving party from an authorized source other than the disclosing party;
(c) was or has become public knowledge at the time of notification through no fault of the Receiving Party; (d) was already fully known to the receiving party at the time of notification; (e) is disclosed with the prior written consent of the disclosing party; or (f) is required to be disclosed by law, judicial, administrative or regulatory order or requirement. In such event, to the extent permitted by law, the receiving party will promptly notify the disclosing party of any applicable court order or subpoena to enable it to seek relief or otherwise prevent or limit disclosure.
17.5 The provisions of this clause 1 apply for 3 (three) years after the end of the respective individual contract under which the corresponding confidential information was provided.
18. Feedback
18.1 During the contract period of an individual contract, the user of MAZING GmbH may, on his own initiative or voluntarily at the request of MAZING GmbH, provide information regarding the services, the software, products, services, business or technology plans, in particular comments or suggestions regarding the possible creation, change, adjustment, correction or improvement of the MAZING GmbH solution, products and/or services or, for example, whether MAZING GmbH meets the needs of the user with regard to his IT in terms of development direction. The user provides all feedback on a voluntary basis. In order to ensure that MAZING GmbH has unlimited authorization to use the feedback, the user grants MAZING GmbH a non-exclusive, permanent, irrevocable, worldwide, royalty-free, transferable and freely sublicensable right to use the feedback without restriction in all possible forms of exploitation to use. This includes in particular the right to integrate the feedback into all software, products and services and to reproduce, edit, translate it as part of the software products and services or alone, to customers, partners, distributors and other third parties in any form distribute it, perform it publicly, and allow licensees, customers, and other third parties to do any of these things. The user waives the right to be named.
19. Final Provisions
19.1 For the contractual relationship, unless otherwise agreed, the legal provisions applicable between entrepreneurs apply exclusively according to Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the place of business of the contractor shall apply exclusively. The regulations of the United Nations Convention on Contracts for the International Sale of Goods (UN CISG) do not apply.
19.2 MAZING GmbH is entitled to have the service provided in whole or in part by a suitable subcontractor. MAZING GmbH is liable for subcontractors used by it as for its own actions.
19.3 Should one or more of the above conditions be ineffective, the remaining conditions remain unaffected. In such a case, MAZING GmbH and the user are obliged to replace an ineffective condition with an effective one that comes as close as possible to the economic purpose of the ineffective one.
19.4 The regulations that by their nature continue to apply after the termination of the individual contract continue to apply even after the termination of the individual contract. This applies in particular to numbers 7 to 16.
19.5 In the event of disputes arising from this contract that cannot be settled by mutual agreement, the contracting parties mutually agree to consult registered mediators (ZivMediatG) with a focus on business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of the business mediators or on the content, legal steps will be taken at the earliest one month after the failure of the negotiations.
19.6 In the event that mediation does not take place or is aborted, Austrian law applies to any court proceedings that may have been initiated. All necessary expenses incurred as a result of previous mediation, in particular those for a legal advisor consulted, can be claimed as “pre-trial costs” in court or arbitration proceedings as agreed.
