Offer conditions for MAZINGXR SOLUTION
From 01.10.2021
1. Definition
“MAZINGXR Solution = MAZINGXR” is the standard software for the visualisation of 3D models on websites and in “Augmented Reality” from MAZING GmbH, the functionalities of which the user can use as part of the individually contractually agreed service. The term includes updates, but no modifications or add-ons to the software.
“Augmented reality is the combination of real images, usually camera shots, and virtual images.
“Service” is the access to and use of the functionalities of the software through the links provided in accordance with the provisions of the contract.
“Display objects” are optimised photorealistic 3D objects that are considered part of the MAZINGXR solution and are displayed to the user.
“Individual contract” is the order form or the offer in which the ordered service is specified.
“Initial term” is the initial contract term agreed in an individual contract.
“Hosting fee” is the fee agreed in an individual contract for the authorisation to use the service on a temporary basis.
“Maintenance and support services” means the maintenance of operations for visualisation
“Updates” are all new versions, releases, other bug fixes and patches that MAZING GmbH makes available as part of the maintenance and support services.
“Due care” means the exercise of the care that the receiving party also exercises in protecting its own confidential information of the same kind, but at least reasonable care.
“Confidential Information” means information of the other Party including, but not limited to, information relating to operations, technical or commercial know-how, specifications, inventions, processes or initiatives, plans, product information, pricing information, know-how, designs, trade secrets, software, documents, data or information which, when communicated by one Party to the other Party, is a) clearly labelled or marked as “confidential” or “proprietary” or similar, b) communicated orally or visually, is designated as Confidential Information at the time of communication.
“Maintenance service = hosting”, which the user orders 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 activated by 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 to and use of the functionalities and content of MAZINGXR Solution. The service and the hosting fee agreed in this context include access to and use of the functionalities of the MAZINGXR Solution, the maintenance and support services as well as the content presented, each to the extent agreed in the individual contract.
3. Individual contract
An individual contract shall be deemed accepted by the user on the day on which the user signs the respective individual contract in writing or electronically and sends 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, parameterisation, adaptation of the MAZINGXR Solution to the user’s requirements, as well as the development, optimisation and management of the display objects.
4. Provision and validity
4.1 After countersignature of the offer by the User, MAZING GmbH shall provide the User with access to the MAZINGXR Solution by e-mail in accordance with the terms of delivery regulated in the individual contract.
4.2 The Service shall be deemed to have been provided for the first time on the date of acceptance of the offer pursuant to Section 2 by the User and upon fulfilment of the obligations pursuant to Section 3.
5. Maintenance hosting services
5.1 The maintenance services are part of the MAZINGXR Solution and are recognised as a hosting fee.
5.2 The operators of MAZINGXR Solution are authorised to update the maintenance services at regular intervals during the term of the contract and to inform the user of any adjustments by e-mail at their own discretion. MAZING GmbH shall ensure that no reduction in the scope of services or unreasonable change occurs as a result of the update. Any cancellation rights of the parties remain unaffected.
6. Access to the MAZINGXR Solution
6.1 MAZING GmbH is entitled to all rights (in particular industrial property rights) to the MAZINGXR Solution and the documentation as well as the further developments in relation to the User. The user is granted a non-exclusive, non-transferable right to access the service and to use it for its own purposes, to the extent defined in the terms of the individual contract and for the duration of the contract term.
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 term of the contract.
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/organisations is not permitted.
7.2 The right to use MAZINGXR Solution exists only to the extent agreed in the individual contract. In particular, the parties may agree restrictions with regard to 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 the user’s compliance with the agreed usage restrictions. MAZING GmbH will not disclose any content of the service. Upon written request, the user will be provided with a written report on the results obtained.
7.3 The User may review the results obtained within thirty (30) days of receipt and object to the results if necessary. If no objection is made, it shall be deemed that the User has used the Service outside the agreed scope of use. In this case, MAZING GmbH will co-operate with the User in adjusting the actual use of the Service to the scope defined in the individual contract. If, despite MAZING GmbH’s best efforts, no agreement is reached, MAZING GmbH shall be entitled to claim additional fees based on the current price list or to withhold the provision of the service.
8. Rights of MAZING GmbH
MAZING GmbH is authorised to change the access links on the basis of an electronic adjustment notification, which must be sent at least one (1) month in advance, insofar as this is reasonable for the user, taking into account his interests.
9 Rights and obligations of the user
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 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 shall maintain appropriate security standards for the use of MAZINGXR Solution. The User shall be solely responsible for providing and maintaining its network connections and telecommunication links and any problems and delays arising therefrom. In the event of such access or use, the user shall inform MAZING GmbH immediately.
9.2 The User shall ensure that he and his Users do not introduce, store, distribute or transmit any viruses in the course of using the MAZINGXR Solution. The User shall further ensure that no content that (i) is inappropriate content or (ii) infringes rights, violates copyrights, is otherwise unlawful or enables unlawful or infringing activities is introduced, stored, distributed or transmitted. In the event of a breach of these requirements, MAZING GmbH shall be entitled to remove content which MAZING GmbH assumes in its own judgement to be inappropriate content. The right to terminate the individual contract for good cause, see clause 13.2, remains unaffected.
9.3 The User shall indemnify MAZING GmbH against all damages, costs and other expenses resulting from the breach of this Section 9.2 by the User.
9.4 The user is responsible for monitoring the use of the MAZINGXR Solution and is obliged to report any irregularities to MAZING GmbH immediately and in writing.
10. Links to subservices
10.1 MAZINGXR Solution may contain links to web services offered by third-party providers on external websites that can be accessed via the Service and are subject to the terms of use of these third-party providers. MAZING GmbH only provides technical access to the content of such linked websites, for the content of which these third-party providers are solely responsible.
11. Service level agreement
11.1 MAZINGXR Solution
Reasonable endeavours as set out in the SLA
Availability during the term of the contract.
11.2 If the monthly measured availability
(a) Achieves less than 99% for two (2) Consecutive calendar months; or
(b) Is less than 95% in three (3) calendar months within a contract year, the user may terminate the contract by giving 15 days’ written notice to MAZING GmbH following the occurrence of non-compliance. Cancellation shall take effect at the end of the calendar month in which MAZING GmbH receives the notice of cancellation. Services paid for to date shall be refunded on a pro rata basis at the regular end of the contract term.
11.3 Subject to any claims for damages, in the event of a breach of the SLA, in addition to the right of cancellation, further claims by the user are excluded.
11.4 Excluded from the SLA are user-specific end devices that do not fulfil 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 may 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 parties included in such data. Examples of the use of analytics include: resource and support optimisation, performance improvements, product development, verification of data security and integrity; internal data products such as industry trends and developments and anonymous benchmarking.
13 Term and termination of the individual contract
13.1 Die Laufzeit eines Einzelvertrages beginnt am im Einzelvertrag jeweils festgelegten Tag, spätestens jedoch mit der erstmaligen Bereitstellung des Service (s. Ziffer 3 dieser Bedingungen). Einzelverträge laufen jeweils für die Initiale Laufzeit von 12 Monaten, sofern im Einzelvertrag keine abweichende Regelung getroffen wurde („Initiale Laufzeit). Die Initiale Laufzeit verlängert sich danach jeweils um weitere 12 Monate („Verlängerte Vertragslaufzeit“; Verlängerte Vertragslaufzeit und Initiale Vertragslaufzeit gemeinsam die „Vertragslaufzeit“), wenn nicht eine Partei den jeweiligen Einzelvertrag unter Einhaltung einer Frist von 30 (dreißig) Tagen zum Ende der jeweiligen Laufzeit schriftlich kündigt. Vorbehaltlich der vorstehenden Regelungen und soweit dies nicht abweichend schriftlich im Einzelvertrag vereinbart ist, kann ein Einzelvertrag nur außerordentlich gemäß den nachfolgenden Regelungen dieser Ziffer 8 gekündigt werden.
13.2 Without prejudice to other claims, each party shall be entitled to terminate an individual contract extraordinarily in writing with immediate effect in the following cases:
(a) The User commits a material breach of this Agreement and, in the case of a remediable breach, is unwilling or unable to remedy the breach within 30 (thirty) days of receipt of the written warning; or
(b) Insolvency proceedings (or equivalent proceedings under local law) are opened against the user’s assets or the opening of insolvency proceedings is refused for lack of assets.
(c) For the avoidance of doubt, the parties agree that a right of cancellation due to failure to comply with the Service Uptime only exists under the conditions of clause 6.2 and is not excluded under clause 6.4.
13.3 On each termination of an individual contract:
(a) all rights to use the Service under these Terms and the Individual Agreement are terminated; and
(b) The User shall refrain from any use of the Service, the Documentation and all copies thereof and shall, at its own discretion, (i) delete or destroy all such items and, at MAZING GmbH’s request, provide a declaration of the deletion/destruction undertaken in accordance with the commercial agreement or (ii) return them to MAZING GmbH. The user is entitled to retain a copy of the documentation for archiving purposes.
14 Hosting fee and terms of payment
14.1 Hosting fees are only charged for individual contracts. The hosting fee is invoiced annually in advance. Unless otherwise agreed in the individual contract, payments are due within 30 days of the invoice date without deduction. 14.2 Upon maturity, MAZING GmbH may charge interest on arrears at the statutory default interest rate applicable at the time. If the user is in default of payment, MAZING GmbH may temporarily block access to the service in whole or in part until payment has been made after the fruitless expiry of a reasonable grace period.
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 shall be invoiced to the user additionally at the applicable rate.
14.4 Unless the individual contract is 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 effective date of the individual contract. If MAZING GmbH increases the hosting fee, the increase may correspond to the percentage of the labour cost index of Statistics Austria (Bundesanstalt Statistik Österreich) that precedes the increase.
15. Warranty
15.1 The quality and functionality of the services owed by MAZINGXR Solution are conclusively agreed in the individual contract and the documents referred to therein. MAZING GmbH shall provide maintenance and support services with the care customary in the trade and in accordance with the recognised rules of technology. MAZING GmbH does not owe any additional services or performance features. In particular, MAZING GmbH provides no warranty for problems,
(a) Caused by incorrect use;
(b) The objectives pursued by the user are achieved with the service;
(c) The service was developed to fulfil the user’s individual requirements;
(d) The service has problems outside the system requirements.
(e) MAZING GmbH also accepts no liability for any loss of data or unauthorised 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 warrants that the service fulfils 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 shall remedy defects free of charge within a reasonable period of time, which the user notifies in writing or electronically in a comprehensible form. MAZING GmbH may, at its own discretion, fulfil its obligation to rectify 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 unreasonable, if the rectification of the defect fails or if the said defect is not described in the documentation, the user is entitled to demand either a reduction in the hosting fee or cancellation of the individual contract in the case of defects that are not merely insignificant. Compensation for damages or reimbursement of futile expenses due to a defect
Does not provide MAZING GmbH.
15.5 If the user asserts claims for material defects, this shall have no influence on further contracts concluded between the user and MAZING GmbH.
15.6 To the extent permitted by applicable law, the warranty rights provided are exhaustive.
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, verbal or written public announcements or other statements made by MAZING GmbH with regard to future functionalities or features of the Service.
16. Liability
16.1 MAZING GmbH shall only be liable for damages and the reimbursement of expenses arising from or in connection with the respective individual contract, regardless of the legal grounds, in the following cases:
(a) The Contractor shall only be liable to the Client for damage for which it is demonstrably responsible in the event of gross negligence. This shall also apply mutatis mutandis to damage attributable to third parties engaged by the Contractor.
(b) Liability for indirect damages – such as loss of profit, costs associated with business interruption, loss of data or third-party claims – is expressly excluded.
(c) Claims for damages shall become statute-barred in accordance with the statutory provisions, but at the latest one year after knowledge of the damage and the damaging party.
If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client. In this case, the Client shall give priority to these third parties.
Insofar and as long as obligations cannot be fulfilled on time or properly due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of the power supply, failure of means of transport, failure of telecommunications networks or data lines, changes in the law affecting the services after conclusion of the contract or other non-availability of products, this shall not constitute a breach of contract.
In cases of simple negligence that do not fall under the provisions of clause 13.1.1, MAZING GmbH shall only be liable for the breach of so-called cardinal obligations (i.e. obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the user regularly relies and may rely). In these cases, the liability for any damages arising within the scope of an individual contract is limited (i) per claim to EUR 2,000 and (ii) for all damages incurred within a calendar year to a total of twice the remuneration to be paid within this calendar year in accordance with the individual contract.
16.2 The defence of contributory negligence (e.g. breach of the user’s obligations) remains unaffected. The limitations of liability do not apply to liability under the Product Liability Act. 16.3 The statutory limitation periods shall 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 shall not be liable for the duration of and in cases in which it is prevented from fulfilling its obligations in whole or in part due to events that are beyond the control of MAZING GmbH and which it could not foresee and for which it is not at fault. This includes in particular the following events: strikes, lockouts or other collective labour disputes (whether relating 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, floods and other natural disasters. MAZING GmbH shall inform the user immediately of the occurrence of a force majeure event.
16.5 In the event of damages and expenses incurred by the User that were caused by viruses and for which the User is not responsible, MAZING GmbH shall only be liable in the event of fault, within the scope of the above provisions and only under the further condition that the virus could have been detected and eliminated by MAZING GmbH using appropriate, up-to-date protection mechanisms.
17. Confidentiality
17.1 Each party reserves all rights to its confidential information.
17.2 Subject to clause 13, each party undertakes to treat as confidential all Confidential Information of the other party that is disclosed or becomes accessible to it prior to the conclusion of or in connection with an individual contract and to use it only for the performance of the individual contract. Confidential information may only be reproduced to fulfil the purpose of the contract. Any reproduction of the Confidential Information must bear the corresponding confidentiality notices of the original. With respect to the Confidential Information of the other party, each party undertakes (a) to keep it with reasonable care; and (b) to disclose it only to such representatives whose knowledge of the Confidential Information is necessary for the performance of the Individual Agreement and who are bound to confidentiality at least to the same extent as in these Terms. Each party shall be responsible for compliance with the provisions by its representatives as for its own actions.
17.3 Each party undertakes to notify the other party in writing of any actual or suspected misuse, unlawful use or unauthorised disclosure of Confidential Information of the disclosing party of which the receiving party becomes aware.
17.4 The provisions shall not apply to Confidential Information which the receiving party can prove (a) was developed independently by the receiving party without using the Confidential Information; (b) is disclosed to the receiving party without restriction by a source authorised to do so (other than the disclosing party);
(c) Was already publicly known or became publicly known through no fault of the receiving party at the time of disclosure; (d) was already fully known to the receiving party at the time of disclosure; (e) is disclosed with the prior written consent of the disclosing party; or (f) is required to be disclosed by law or by a court, governmental or regulatory order or requirement. In such case, the receiving party shall, to the extent permitted by law, promptly notify the disclosing party of the relevant court order or requirement to enable the disclosing party to seek relief or otherwise prevent or limit disclosure.
17.5 The provisions of this Section 1 shall apply for 3 (three) years after termination of the respective individual contract under which the corresponding confidential information was provided.
18. Feedback
18.1 During the term of an individual contract, the User may provide MAZING GmbH with information relating to the Services, the software, products, services, business or technology plans, in particular comments or suggestions relating to the possible creation, modification, adaptation, correction or improvement of the MAZING GmbH Solution, products and/or services or, for example, whether MAZING GmbH fulfils the User’s IT needs in the direction of development, on its own initiative or voluntarily at the request of MAZING GmbH. The user provides all feedback on a voluntary basis. In order to ensure that MAZING GmbH has unlimited authorisation to use the feedback, the user grants MAZING GmbH a non-exclusive, permanent, non-revocable, worldwide, royalty-free, transferable and freely sub-licensable right to use the feedback without restriction in all possible forms of exploitation. This includes in particular the right to integrate the Feedback into all software, products and services and to reproduce, edit, translate, distribute to customers, partners, distributors and other third parties in any form, to reproduce publicly and to allow all of these actions to be carried out by licencees, customers and other third parties as part of the software products and services or alone. The user waives the right to
19 Final provisions
19.1 Unless otherwise agreed, the contractual relationship shall be governed exclusively by the statutory provisions applicable between entrepreneurs in accordance with Austrian law, even if the order is carried out abroad. Any disputes shall be subject exclusively to the local jurisdiction of the court with subject-matter jurisdiction for the Contractor’s place of business. The provisions of the UN Convention on Contracts for the International Sale of Goods (UN CISG) shall not apply.
19.2 MAZING GmbH is authorised to have the service provided in whole or in part by a suitable subcontractor. MAZING GmbH shall be liable for the subcontractors it employs as for its own actions.
19.3 Should one or more of the above conditions be invalid, the remaining conditions shall remain unaffected. In such a case, MAZING GmbH and the user are obliged to replace an ineffective condition with an effective one that comes closest to the economic purpose of the ineffective one.
19.4 The provisions which by their nature continue to apply after the termination of the individual contract shall continue to apply after the termination of the individual contract. This applies in particular to clauses 7 to 16.
19.5 In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties agree by mutual consent to call in registered mediators (ZivMediatG) specialising in commercial mediation from the list of the Ministry of Justice to settle the conflict out of court. If no agreement can be reached on the choice of commercial mediators or on the content of the dispute, legal action will be initiated at the earliest one month after the failure of the negotiations.
19.6 In the event that mediation does not take place or is cancelled, Austrian law shall apply in any court proceedings initiated. All necessary expenses incurred as a result of prior mediation, in particular also those for a legal advisor called in, can be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.
