GENERAL TERMS AND CONDITIONS
3mobility solutions GmbH
A. GENERAL TERMS AND CONDITIONS
1 Scope / Definitions
1.1 These General Terms and Conditions of Business (GTC) shall apply exclusively to all business relations, including future ones, between 3mobility solutions GmbH, Schwarzer-Weg 100-107, 40593 Düsseldorf, Germany (hereinafter referred to as “3mobility solutions”) and the Customer, in particular to the sale of software and to commissioned services and/or rental services as well as to the provision of work by 3mobility solutions.
1.2 Other terms and conditions shall not become part of the contract, even if 3mobility solutions does not expressly object to them or has not referred to them again when concluding similar contracts, unless the contracting parties expressly agree otherwise.
1.3 Customers within the meaning of these GTC shall be end customers as well as partners seeking to resell services provided by 3mobility solutions.
2 Subject matter of the contract
2.1 3mobility solutions provides various services: The Customer shall find a current service description in its offer or in the corresponding contract concluded. The exact scope of the service, in particular the functional scope of the flexmobility software, shall be agreed between the parties, if necessary, within the framework of a specification.
2.2 The source code of the software shall not be part of the subject matter of the contract and shall not be provided unless expressly agreed between the parties.
2.3 The Customer shall be responsible for compliance with (re-)export restrictions. This may be particularly relevant for deliveries with regard to the USA and the U.K..
3 Delivery, Performance
3.1 Software shall be delivered in various ways, e.g. via CD-ROM/DVD/USB stick, together with other hardware, online by mail or as download or by other means – depending on the agreement.
3.2 In the absence of an express agreement on the installation service, this shall be carried out by the customer.
3.3 The delivery of goods shall be EXW (Incoterms 2010).
3.4 3mobility solutions shall retain title to delivered hardware and software until receipt of all payments under the contract. Any rights of use granted may be revoked by 3mobility solutions after prior written reminder and notice thereof in the event of unjustified refusal of payment by the customer. The customer may prove that it is entitled to a right of retention in the respective contractual relationship.
3.5 The Customer shall install program releases, error corrections and program environments received from 3mobility solutions, unless this has been expressly agreed as a service for 3mobility solutions.
3.6 If 3mobility solutions provides services commissioned by the customer beyond the scope of the original agreement (consulting, training, support services, etc.), these shall be remunerated separately. Unless otherwise agreed between the parties, time expended shall be remunerated in accordance with the currently valid hourly rate of 3mobility solutions and travel expenses shall be charged on a time and material basis.
3.7 Delivery dates shall require express written agreement in a schedule. Otherwise, the dates stated by 3mobility solutions shall be “approximate dates” and shall only be binding if this has been expressly agreed with the Customer.
3.8 The customer shall be obliged to provide 3mobility solutions with all information and materials necessary for the performance of the contract. Any delay in this transmission by the customer or by third-party companies involved in the project shall also result in a corresponding delay in the delivery date.
3.9 The delivery period shall be interrupted in each case for the duration of any testing of drafts, demos, test versions, programs or parts of programs etc. by the customer. The interruption shall be counted from the day of notification of the customer until the day of receipt of the customer’s statement.
3.10 If, after the order has been placed, the Customer requests changes to the order that affect the duration of performance, 3mobility solutions shall be entitled to extend any bindingly agreed delivery time accordingly at its own discretion and taking into account the interests of the Customer.
3.11 In the event of a delay in delivery, the Customer shall in any case only be entitled to exercise the rights to which it is entitled by law after setting a reasonable grace period of at least two weeks.
3.12 If the customer is in default of acceptance, 3mobility solutions shall be entitled to demand compensation for the damage incurred and any additional expenses. The same shall apply if the customer culpably violates duties to cooperate. Upon the occurrence of default in acceptance or debtor’s delay, the risk of accidental deterioration and accidental loss shall pass to the customer.
4 Terms of payment
4.1 All prices are in EUR and are subject to statutory VAT and any customs duties.
4.2 Payment shall be due in each case on completion of the respective service, unless the Parties have agreed otherwise (e.g. in 3mobility solutions’ offer).
4.3 If monthly invoicing has been agreed between the parties, invoicing shall take place no later than the beginning of the following month in each case.
4.4 The Customer shall raise objections to the invoicing of the Services provided by 3mobility solutions within 2 weeks of receipt of the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. 3mobility solutions shall specifically draw the customer’s attention to the significance of its conduct when sending the invoice.
4.5 Unless otherwise agreed, all remuneration shall be due immediately, but no later than 10 days after invoicing. 3mobility solutions shall be entitled to invoice partial services.
4.6 In the event that the customer is in default of payment to a not inconsiderable extent, 3mobility solutions shall be entitled to block the Services at the customer’s expense. In this case, the customer shall remain obliged to pay the remuneration. If the customer is in default of payment for more than 60 days, 3mobility solutions may terminate the contractual relationship without notice. This shall not affect the assertion of further claims on account of default in payment.
4.7 The customer may only set off counterclaims that are undisputed or have become res judicata. The customer shall only be entitled to rights of retention insofar as they are based on the same legal transaction.
5 Order
5.1 3mobility solutions undertakes to provide further terms and conditions applicable to the contractual relationship upon request in accordance with the respective individual contract.
5.2 If the order is placed via a website of 3mobility solutions or an electronic platform, the following shall apply: The offers presented shall not constitute an offer in the legal sense. By placing an order, the customer bindingly declares its offer to enter into a contract. Input errors can be corrected before sending the order using the usual keyboard and mouse functions. By clicking on the button that concludes the order, the customer submits a binding offer of contract. Upon receipt of the customer’s offer, the contract shall be concluded with respect to the ordered service upon acceptance of the order by 3mobility solutions by means of an expressly declared order confirmation or by commencement of the service or provision of the product.
5.3 If the order is placed by e-mail, fax or telephone, the following shall apply: The catalog of services presented on the website of 3mobility solutions or transmitted in any other form (e.g. e-mail) shall not constitute an offer in the legal sense. By placing an order by e-mail, fax or telephone, the customer makes a binding offer to enter into a contract. The conclusion of the contract with respect to the service ordered shall take place upon acceptance of the order by 3mobility solutions by means of an expressly declared order confirmation or by commencement of the service or provision of the product.
6 Rights of Use
6.1 Unless any other intended use has been agreed, 3mobility solutions shall grant the Customer the non-exclusive, locally unrestricted and permanent right to use the Software/Services for its own purposes in accordance with the contract, i.e. in particular to store and load them permanently or temporarily, to display them and to run them, even to the extent that copies are necessary for this purpose. The Customer shall require a separate right of use for each additional copy or virtualization that is not necessary.
6.2 The terms and conditions set forth in Part B shall apply with priority to the provision of the flexmobility software.
6.3 In the case of rental services provided by 3mobility solutions, the exception to clause 6.1 shall be that only a right limited to the term of the contract shall be granted.
6.4 Any copyright notices, trademarks, other reservations of rights, serial numbers and other features serving to identify the program that may be contained in the software may not be changed or made unrecognizable.
6.5 Insofar as, among other things, open source software is the subject of a delivery/service, 3mobility solutions shall not, as a rule, transfer any rights of use to the same. In this respect, the license provisions of the respective open source software that 3mobility solutions provides shall apply.
6.6 In the event that third-party software is supplied or made available, the license terms provided by 3mobility solutions shall apply in addition.
6.7 The Customer shall be permitted to make a necessary backup copy and to reproduce a reasonable and necessary number of copies within the scope of the usual data backups. Other duplications are not permitted.
6.8 Decompilation within the scope and under the conditions of § 69e UrhG remains permitted. The rights of the customer under §§ 69 d para. 2 and 3 UrhG shall also remain unaffected.
6.9 Duplication or reworking of the application documentation shall not be permitted subject to and in consideration of the Customer’s rights under Sections 69c No. 2, 69 e UrhG (to the extent that the documentation is integrated into the software).
6.10 The Customer shall not be entitled to use drafts, models, sketches and the like. The Customer shall not be granted any rights of use in respect of drafts, models, sketches and similar work by 3mobility solutions that serve to prepare the final project. If the customer wishes to use concepts and ideas from the design phase, a separate agreement shall be required for the granting of rights of use.
6.11 Under no circumstances shall the customer have the right to reproduce, rent or otherwise sublicense the purchased or provided software outside the purpose of the contract, to reproduce it publicly or make it accessible, or to make it available to third parties, whether for a fee or free of charge.
6.12 The Customer is not permitted to allow third parties or affiliated companies to use the Software. With regard to internal use by the customer, the restrictions or license descriptions mentioned in the offer shall apply.
6.13 If the customer uses the purchased software to an extent that exceeds the purchased rights of use in terms of quality (with regard to the permitted use) or quantity (with regard to the number of licenses purchased), the customer shall be obligated, upon 3mobility solutions’ request, to immediately purchase the rights of use necessary for the permitted use. The right of 3mobility solutions to assert the rights to which it is entitled, in particular to damages and injunctive relief, shall remain unaffected thereby. If 3mobility solutions has a reasonable suspicion that a use of the customer violates the terms of use, legal provisions or the rights of third parties, 3mobility solutions shall be entitled to block the respective use or access to the software after having informed the customer in advance and with reference to the suspicion and without this entailing any obligations for 3mobility solutions.
6.14 3mobility solutions may, if required, mandate an independent auditor to have the proper performance of this Agreement audited by the Customer after prior reasonable notice during normal business hours.
6.15 The Customer shall assist in the performance of the audit in a reasonable manner and without remuneration.
6.16 The audit right includes the auditor’s right of access to the business premises and access to the computer systems in which the relevant records/products are kept, provided that (a) the auditors comply with the applicable health and safety rules and general security rules for the business premises and (b) the auditors assume an appropriate confidentiality obligation.
7 Cooperation with partners
7.1 As the manufacturer, 3mobility solutions has the necessary rights to the flexmobility software and distributes the software to customers. 3mobility solutions may agree with partners that they will take over the further distribution of the flexmobility software. The partner then undertakes to market the contract software, if necessary
> with individual adaptations to the requirements of the end customer through customizing in the sense of parameterization (i.e. without interfering with the source code of the software),
> with provision of additional services for the End Customer, for example installation at the End Customer’s premises or training of the End Customer’s users.
7.2 For this purpose, the Partner shall be granted the right to provide its customers with the Contract Software for use on a permanent basis and to adjust it to the respective customer’s requirements. The Partner shall conclude the contracts with its end customers for the permanent provision of the Contract Software in its own name.
7.3 For this purpose, the contractual partners shall agree on separate regulations for determining the partner relationship. The Partner shall act as an independent merchant vis-à-vis both the end customer and 3mobility solutions. The Partner undertakes to comply with the provisions of the flexmobility user agreement from Part B. of these GTC. In particular, the Partner undertakes to comply with the provisions set forth in Part B. Item IV. to its end customer upon conclusion of a contract.
7.4 The Partner shall be obligated to keep separate records of the reproductions made. The Partner shall be obliged to keep separate records of the distribution of the Contract Software. The Partner shall notify 3mobility solutions in writing on a monthly basis of its end customers and prospective purchasers, together with their contact details.
7.5 3mobility solutions shall be entitled to examine the books referred to in Clause 7.4 itself at its own expense at any time with reasonable notice or to have them examined by a third party bound to secrecy (e.g. accountant, expert).
7.6 The Contractor and 3mobility solutions shall support the Partner in remedying any defects that have occurred at an end customer within a reasonable period of time for the customer. To this end, all notifications of defects from all Sales Partners shall be registered and all Sales Partners shall be provided with access to a defect database. In principle, the elimination of real defects is carried out by the delivery of an update or by the provision of a patch or workaround. In consultation and against payment, on-site visits by the manufacturer to the end customer shall also take place.
7.7 Software support contracts shall be concluded between the manufacturer and the end customer. The Partner is obligated to offer the respective end customer a contract for support services. The Partner shall be free to structure the support contract with the end customer, although the support services in the internal relationship between the contractual partners, especially in the case of error correction and updates, must comply with the manufacturer’s support conditions attached in Annex 1. If an end customer is not prepared to conclude a software support contract with the Partner, this shall require consultation with the manufacturer.
7.1 As the manufacturer, 3mobility solutions has the necessary rights to the flexmobility software and distributes the software to customers. 3mobility solutions may agree with partners that they will take over the further distribution of the flexmobility software. The partner then undertakes to market the contract software, if necessary
> with individual adaptations to the requirements of the end customer through customizing in the sense of parameterization (i.e. without interfering with the source code of the software),
> with provision of additional services for the End Customer, for example installation at the End Customer’s premises or training of the End Customer’s users.
7.2 For this purpose, the Partner shall be granted the right to provide its customers with the Contract Software for use on a permanent basis and to adjust it to the respective customer’s requirements. The Partner shall conclude the contracts with its end customers for the permanent provision of the Contract Software in its own name.
7.3 For this purpose, the contractual partners shall agree on separate regulations for determining the partner relationship. The Partner shall act as an independent merchant vis-à-vis both the end customer and 3mobility solutions. The Partner undertakes to comply with the provisions of the flexmobility user agreement from Part B. of these GTC. In particular, the Partner undertakes to comply with the provisions set forth in Part B. Item IV. to its end customer upon conclusion of a contract.
7.4 The Partner shall be obligated to keep separate records of the reproductions made. The Partner shall be obliged to keep separate records of the distribution of the Contract Software. The Partner shall notify 3mobility solutions in writing on a monthly basis of its end customers and prospective purchasers, together with their contact details.
7.5 3mobility solutions shall be entitled to examine the books referred to in Clause 7.4 itself at its own expense at any time with reasonable notice or to have them examined by a third party bound to secrecy (e.g. accountant, expert).
7.6 The Contractor and 3mobility solutions shall support the Partner in remedying any defects that have occurred at an end customer within a reasonable period of time for the customer. To this end, all notifications of defects from all Sales Partners shall be registered and all Sales Partners shall be provided with access to a defect database. In principle, the elimination of real defects is carried out by the delivery of an update or by the provision of a patch or workaround. In consultation and against payment, on-site visits by the manufacturer to the end customer shall also take place.
7.7 Software support contracts shall be concluded between the manufacturer and the end customer. The Partner is obligated to offer the respective end customer a contract for support services. The Partner shall be free to structure the support contract with the end customer, although the support services in the internal relationship between the contractual partners, especially in the case of error correction and updates, must comply with the manufacturer’s support conditions attached in Annex 1. If an end customer is not prepared to conclude a software support contract with the Partner, this shall require consultation with the manufacturer.
8 Cooperation obligations of the customer
8.1 Requests and specifications of the customer which are to be taken into account in the production of the subject matter of the contract and which have been agreed between the parties shall always require at least text form (e.g. e-mail).
8.2 The customer shall inspect the subject matter of the contract immediately after handover, in particular with regard to completeness and functional capability. The customer shall be obliged to duly comply with its duties of inspection and notification of defects pursuant to § 377 of the German Commercial Code (HGB).
8.3 Defects discovered in the course of such inspection shall be notified to 3mobility solutions in text form without delay. The notice of defects shall contain as detailed and specific a description of the defects as possible.
8.4 Defects that could not be detected in the course of the proper inspection described above shall again be notified in text form without undue delay after their discovery. This notice of defects must also contain as detailed and specific a description of the defects as possible.
8.5 The customer shall support 3mobility solutions to a reasonable extent in the performance of the service at its own expense. It shall notify 3mobility solutions in good time of any changes in the operating conditions as well as of any other circumstances essential for the performance of the service.
8.6 The Customer’s obligations to cooperate shall be a primary obligation of the Customer.
8.7 Upon request by 3mobility solutions or to the extent recognizably necessary for it, the customer shall, in particular (a) during the term of the agreement, designate in text form a person in charge who possesses all decision-making powers and authority required for the purposes of the performance of this agreement.
8.8 3mobility solutions shall indicate the readiness for acceptance of work performances, e.g. by handing them over to the Customer.
8.9 The Customer shall inspect and test the Contractual Objects without undue delay after handover to determine whether they are essentially in compliance with the contract within the scope of an acceptance. The customer shall notify 3mobility solutions of any defects without delay.
8.10 If the Contractual Objects essentially comply with the contractual provisions, the customer shall declare acceptance to the extent provided for by law. This declaration shall be made at least in text form by means of a release note.
8.11 If no detailed written notice of not insignificant defects is received within 4 weeks after delivery of the contractual objects, the delivered project results shall be deemed accepted or released.
8.12 The customer shall not be entitled to rights under the warranty for defects for defects that were known to the customer at the time of acceptance, that would have been obvious during a proper initial inspection or that were otherwise negligently not known to the customer or that were not reported by the customer.
9 Change Request
9.1 Both contracting parties shall be entitled to request the other contracting party to discuss and negotiate changes or technical fine specifications by stating important reasons.
9.2 Insofar as the customer requests changes that go beyond the agreed scope, 3mobility solutions shall work on an hourly basis against payment on a time and material basis. 3mobility solutions shall examine the effort involved and whether the desired change is feasible and shall then inform the customer of the changes that are likely to result, in particular with regard to costs and schedule. To the extent possible and necessary, 3mobility solutions shall also examine the extent to which such a change will affect previously realized services and their usability.
9.3 If no agreement is reached on a change request, the Parties shall, unless they agree otherwise, implement the Project accordingly in the version that has been current to date.
9.4 Requests for changes must be made in text form and may also be confirmed by 3mobility solutions by e-mail.
10 Liability for defects
10.1 3mobility solutions warrants that all Services are free from material defects and/or defects of title.
10.2 The aforementioned liability for defects shall not apply to any open source software used, since no rights of use are transferred by 3mobility solutions in this respect either. Any liability of 3mobility solutions for material defects and/or defects of title shall therefore be excluded due to the specific nature of open source software.
10.3 A defect shall exist insofar as the performance (a) does not have the agreed quality, (b) is not suitable for the contractually presumed use or (c) is not suitable for the usual use and does not have the quality that is usual for performance of the same kind and that the customer can expect according to the nature of the performance.
10.4 In the event of a defect, 3mobility solutions shall provide subsequent performance free of charge within a reasonable period of time in accordance with the statutory provisions and subject to the following provisions.
10.5 Subsequent performance may, at the option of 3mobility solutions, be effected either by rectification or by new delivery. If the rights of third parties are infringed, 3mobility solutions may, at its own discretion, remedy the defect by acquiring for the benefit of the customer a right of use sufficient for the purposes of this contract or by modifying the infringing software without affecting its function or only affecting its function in a manner acceptable to the customer or by replacing the infringing software without affecting its function or only affecting its function in a manner acceptable to the customer with software whose use in accordance with the contract does not infringe any property rights or by delivering a new program version whose use in accordance with the contract does not infringe any property rights of third parties.
10.6 3mobility solutions may also remedy defects by instructing the customer to do so by telephone or in writing or electronically.
10.7 In the event of a justified notice of defect, 3mobility solutions shall bear the expenses required for the purpose of subsequent performance.
10.8 Any additional expenses incurred by 3mobility solutions due to the fact that products have been taken by the customer to a place other than the original place of delivery shall be borne by the customer.
10.9 If it turns out that the notice of defect was unjustified, 3mobility solutions shall be entitled to claim compensation for the expenses incurred by it, provided that the customer acted at least negligently.
10.10 If the supplementary performance fails and the customer has set a reasonable deadline that allows for at least two attempts to remedy the defect, the customer may, at its option, withdraw from the contract or reduce the remuneration. Subsequent performance shall not be deemed to have definitively failed after the second unsuccessful attempt at subsequent performance; on the contrary, 3mobility solutions shall be free to choose the number of attempts at subsequent performance during the period set by the customer, insofar as this is reasonable for the customer.
10.11 The right to rescind delivery contracts or contracts for work and services and the right to claim damages in lieu of the entire performance shall exist only in the event of substantial defects.
10.12 If 3mobility solutions has fraudulently concealed a defect or assumed a guarantee for the quality, the statutory provisions on material defects and defects of title and their limitation shall remain unaffected.
10.13 Claims based on a defect (including in the case of documentation) shall become time-barred one year after delivery. Clause 11 shall apply accordingly.
10.14 If 3mobility solutions offers the Customer new program parts, in particular patches, bug fixes, updates, upgrades, new releases, new versions, etc., in order to avoid or eliminate defects, the Customer shall accept these.
10.15 Elimination of defects may also be effected by delivery of a workaround solution.
10.16 The customer shall not be entitled to any claims based on defects if it has modified the products or had them modified by third parties or has used them with products other than those given, unless the customer proves that the material defect already existed at the time of handover or, in the case of rental services, the modifications do not have any effects on the analysis and elimination of the defects that are unreasonable for 3mobility solutions.
10.17 The customer’s rights on account of defects shall remain unaffected, provided that the customer is entitled to make changes, in particular within the scope of exercising the right of self-remedy pursuant to Section 536 a (2) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), and that such changes have been made professionally and documented in a comprehensible manner.
10.18 Termination by the customer in the case of rental services pursuant to Section 543, Subsection 2, Sentence 1, No. 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) due to failure to provide use in accordance with the contract shall only be permissible after 3mobility solutions has been given sufficient opportunity to remedy the defect and such remedy has failed. Clause 10.10 shall apply accordingly.
10.19 Mandatory unlimited liability of 3mobility solutions provided for by law and Clause 10 of this Agreement shall remain unaffected by these provisions under Clause 9.
11 Liability
11.1 Liability shall be excluded for damage to legal assets other than life, limb or health, unless the damage is due to intentional or grossly negligent conduct on the part of 3mobility solutions, its legal representatives or vicarious agents, and the conduct is not a breach of secondary obligations essential to the purpose of the contract.
11.2 Material contractual obligations are those obligations whose fulfillment is essential to the proper performance of the contract and on whose fulfillment the customer may regularly rely (so-called “cardinal obligations”).
11.3 This exclusion of liability – as well as further limitations of liability in these General Terms and Conditions shall not apply insofar as claims under the Product Liability Act are concerned, a defect has been fraudulently concealed or a guarantee of quality has been assumed.
11.4 Insofar as the breach of material contractual obligations is due to simple negligence on the part of 3mobility solutions, legal representatives or executive employees of 3mobility solutions, or if the breach is due to simple or gross negligence on the part of other vicarious agents, the liability of 3mobility solutions shall be limited to the amount of damage that was foreseeable by 3mobility solutions at the time the contract was concluded and was typical for the contract.
11.5 The customer shall be obliged to take reasonable precautions in the event that a program does not work properly in whole or in part, namely by means of a fallback procedure, data backup, fault diagnosis, etc. The customer is obliged to prevent possible data loss and to make regular and proper data backups.
In the event of data loss, 3mobility solutions shall be liable solely to the extent of the restoration costs of the data backup. Clause 11.5 shall not apply if data backup has been agreed as the main service provided by 3mobility solutions.
11.6 The customer shall indemnify 3mobility solutions against all claims, including claims for damages, asserted by third parties against 3mobility solutions on account of an infringement of their rights due to the unauthorized use of 3mobility solutions’ services culpably caused by the customer. The customer shall bear all reasonable costs incurred by 3mobility solutions due to such infringement of third party rights, including the reasonable costs incurred for legal defense. All further rights as well as claims for damages of 3mobility solutions shall remain unaffected. The customer shall notify 3mobility solutions as soon as it becomes aware of the assertion of claims by third parties with regard to the agreed services.
11.7 In the event of justified claims by third parties pursuant to Section 11.6, the customer shall no longer use the services in question.
11.8 The above provisions on limitation of liability shall also apply in favor of the Provider’s suppliers, resellers, partners or their respective branches as well as the Provider’s employees and other vicarious agents.
12 Confidentiality
12.1 The parties mutually undertake to maintain confidentiality during the term of this Agreement and for an unlimited period after termination of this Agreement with respect to all confidential information of the respective other party obtained in the course of the performance of this Agreement.
12.2 This confidentiality provision shall not apply to information which was already known to one party in a legally admissible manner prior to notification by the other party or which is in the public domain.
12.3 If a party is required to disclose the Confidential Information by order of a court, order of a governmental agency or other entity, or by law, the parties shall consult with each other prior to disclosure, to the extent practicable, and only that portion of the Confidential Information that is required to be disclosed shall be disclosed.
13 Remote Maintenance
13.1 In order to be able to quickly solve IT problems remotely, 3mobility solutions offers the use of the Services via its own remote maintenance solution. If remote access is agreed, the Customer shall be responsible for enabling access and shall bear the connection costs. Remote access shall take place regularly within service hours. Customer shall permit unattended, logged reasonable remote access unless otherwise agreed.
13.2 Remote access means that a technician from 3mobility solutions accesses the Customer’s equipment via an Internet connection. For this purpose, remote access software shall be used, with which mouse and keyboard control of the currently logged-in user session is effected. In the process, the screen content is transmitted to the technician’s device. Furthermore, access to the system level such as system registration, file system, services and command line is possible in the background without disturbing the user.
13.3 Remote access is generally subject to a charge and will be invoiced according to the current service price list or the offer or charged against existing agreements such as project contracts, service contracts.
13.4 If it is not possible to solve the problem by remote access because access could not be ensured by the customer, a necessary on-site visit shall take place in an emergency at the discretion of 3mobility solutions within the scope of a separate remuneration settlement.
14 Rights to work results
Only 3mobility solutions shall be entitled to freely dispose of ideas, procedures, concepts and other techniques that arise in the performance of the contractual maintenance and are included in the work results. The same shall apply to know-how and experience gained during the performance of the Maintenance Work under the Contract and the use of its results.
15 Termination of contract
15.1 If insolvency proceedings are instituted against the Customer’s assets or if an application for insolvency is filed with the competent court or if the Customer is threatened with insolvency, 3mobility solutions may, at its option, withdraw from any contracts concluded or discontinue services.
15.2 If a continuing obligation has been agreed between the contracting parties, it may be terminated by either party with three months’ notice to the end of a calendar year, unless otherwise agreed.
15.3 The right of both parties to extraordinary termination for good cause shall remain unaffected.
15.4 Any termination must be in writing.
15.5 Upon termination of the agreement or in the event of an invalid agreement, the customer shall discontinue the use of contractual products within the scope of rental services and shall destroy all licensed products and copies thereof in its possession and confirm this to 3mobility solutions upon request.
16 Final Provisions
16.1 There shall be no verbal collateral agreements. Amendments to and deviations from this Agreement shall be made in writing. This shall also apply to any deviation from the requirement of the written form.
16.2 All claims arising from or in connection with this agreement shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
16.3 The place of performance for all obligations and the exclusive place of jurisdiction for all legal disputes arising from or in connection with this Agreement shall be the registered office of 3mobility solutions.
16.4 In the event of contradictions between the individual contracts concluded (offers) and these GTC or the supplementary contractual provisions under B., the offers shall take precedence.
16.5 The contractual language shall be German. In the event of different language versions, only the German text of these terms and conditions shall be authoritative.
B. Usage agreement for flexmobility software
I. Scope of Application
If the transfer of the flexmobility software has been agreed, the following provisions shall take precedence over any other GTC.
II. differentiation of the contractual software
1. in addition to the flexmobility platform software, the contractual software also includes a client option for publication of the configurations created by the end customer with the flexmobility platform software in the form of an in-house app distribution by the end customer itself. For this, a developer account of the end customer in the respective app store is required in principle and the guidelines of the respective app store must be complied with. Services for the implementation of the publishing solution must be agreed separately and are not covered by this agreement.
2. 3mobility solutions shall provide its own free public flexmobility app in the app stores in addition to the contractual software. This is not part of the contract software. This flexmobility App is subject to its own terms of use and may also be used by the customer for publication in accordance with these own terms. The customer has no right to use this flexmobility App under the contractual relationship concerning the contract software. A maintenance and update service is not offered.
III. granting of rights for partners
1. right to reproduce the contractual software
3mobility solutions grants the Partner the right to make duplicate copies of a master copy provided to it for the purpose of distribution to end customers.
2 Right of Distribution
2.1 3mobility solutions grants the Partner the non-exclusive (non-exclusive) right to distribute, i.e. to sell and market, the duplicate copies of the Contract Software made.
2.2 Distribution by the Partner may only take place by way of sale, i.e. by way of transfer on a permanent basis in return for a one-time fee. A temporary transfer (rental) by the Partner or the granting of the rental right shall not be permitted. Furthermore, the Partner shall not be entitled to offer or make available for use the Contract Software by way of Application Service Providing (ASP). The Partner is entitled to distribute the Contract Software to its end customers as (1) a “stand-alone product” and/or (2) with additional services.
The Partner shall not be entitled to transfer the distribution right in whole or in part to third parties unless 3mobility solutions expressly agrees thereto in writing.
3. transfer to end customers
The Partner shall be entitled to grant its end customers rights of use to the Contract Software on a permanent basis in return for a one-time fee and to provide the end customer with ownership of the copies of the Contract Software created by the Partner.
However, the Partner shall not be entitled to transfer the source code of the Contract Software to the end customers.
The Partner shall conclude a software transfer agreement (“License Agreement”) with each of its end customers on the basis of the transfer of rights applicable in these Terms and Conditions, which shall ensure that the end customers are not granted any rights of use that go beyond those resulting from these Terms and Conditions. The Partner may modify the sample agreement as required. The actual granting of rights and the wording regarding the scope of the granting of rights to the end customer may not, however, exceed the scope described in Part B. However, the actual scope and the wording of the granting of rights to the end customer may not exceed the scope described in Part B. Item IV.
4. right to customize in the sense of parameterization of the Contract Software as well as to modify the Contract Software.
5.1 Distinction between Customizing and Modification
By customizing in the sense of parameterization, the contractual partners understand all adaptations of the contractual software which are possible without programming (i.e. without intervention in the source code), i.e. adaptations of the contractual software by setting parameters which influence the scope and appearance (configuration) on the one hand or the behavior and results (parameterization) of a standard software on the other hand without having to intervene in the source code for this purpose.
The contractual partners understand modification to mean all adjustments to the contractual software that are only possible with programming (i.e. with intervention in the source code).
5.2 Customizing
The Partner shall be entitled to implement individual requirements of the end customer for the contractual software by customizing in the sense of parameterization.
5.3 Development of customer-specific modifications
The Partner shall not be entitled to create customer-specific modifications, i.e. it shall not be entitled to edit, change or further develop the Contract Software for adaptation to individual requirements of an end customer. The Partner is not entitled to make customer-specific modifications available to end customers for their use on a permanent basis.
The Partner shall not be entitled to edit, modify and further develop the Contract Software unless 3mobility solutions expressly agrees thereto in writing in advance. In the event of requests from end customers regarding modifications, the Partner shall inform 3mobility solutions thereof without delay.
5. rights to the source code
The Partner shall not be entitled to edit the source code or/and to transfer edited and/or unedited source code to third parties (including its end customers). Any editing, transfer of the source code or permission to inspect the source code shall only be permitted if 3mobility solutions expressly consents thereto in writing in advance.
6. product names, property rights, copyright notices
The Partner shall distribute the duplicates of the Contract Software created by it exclusively under the protected product name and in the original configuration.
The Partner undertakes to observe and not to remove the property right and copyright notices located on the contractual software (including source code).
7 Internal Use of the Contract Software by the Partner (“Practice, Test, Development and Demo License”)
During the term of this Agreement, the Partner shall be entitled to keep one current copy of the Contract Software for its own use. The right of use granted in this context (so-called “Inhouse License”) is expressly limited to the Partner’s own use for practice and test and demonstration purposes.
IV. End Customer Agreement
1. scope of the granting of rights to end customers
1.1 Simple right of use
End Customer shall receive, in return for the agreed one-time remuneration, a simple (non-exclusive) right to use the licensed copies of the Contract Software on a permanent basis. The use of the Contract Software, for which no special licenses for multiple use are agreed by this contract, is limited to one computer. For this purpose, the end customer may use any available computer that meets the system requirements and for which the right has been granted. If the end customer changes the computer, the contract software must be removed from the computer on which it was previously installed before it is reinstalled on another computer. If multiple use has been expressly agreed with 3mobility solutions separately for Contract Software, multiple use shall only be permitted to the extent that the end customer has acquired the corresponding type or number of licenses and received them from 3mobility solutions in accordance with the separate agreement.
1.2 Backup Copies
The end customer shall be entitled to make any necessary backup copies of the copies of the Contract Software provided in an appropriate number. Copyright and other proprietary notices may not be removed or altered. They shall be included on each backup copy.
1.3 Decompilation to establish interoperability and processing to eliminate errors
The End Customer shall be entitled to decompile the licensed Contract Software within the scope and under the conditions of Section 69 e of the German Copyright Act (UrhG) in order to be able to establish the necessary interoperability with other programs. As a matter of principle, the end customer shall, to the extent reasonable, give 3mobility solutions prior opportunity to provide the information required to establish interoperability. In addition, the end customer shall be entitled to edit the contractual software provided within the scope of Section 69d of the German Copyright Act (UrhG) in order to eliminate a defect.
1.4 Transfer to Third Parties by the End Customer
The End Customer shall be entitled to pass on/sell the licensed copies of the Contract Software to a third party on a one-time basis and by completely relinquishing its own use. In this case, the end customer shall transfer all copies made by him to the purchaser or delete them. Leasing or sublicensing is not permitted.
1.5 Overuse, license management
Any use of the licensed contractual software by the end customer beyond the agreed scope shall be deemed to be an act in breach of contract. In this case, the end customer shall be obliged to notify the Partner of the overuse without delay and to reach an agreement with the Partner on subsequent licensing (with appropriate remuneration) on the basis of the Partner’s valid price lists.
In order to verify overuse, the Partner shall enter into agreements with its respective end customers to conduct regular audits.
A license server is used for license management and auditing. The end customer is obliged to ensure and permit the encrypted connection between its software installation and the license server in its IT infrastructure. This includes, in particular, that the license server requires a connection every three months for the purpose of reconciliation and administration of the licenses.
1.6 Unauthorized use
The End Customer may not use the Contract Software and content/apps created with it in areas of particular risk that require fault-free continuous operation of relevant systems and in which a failure of the software or created content/apps may lead to an immediate danger to life, limb or health or to significant damage to property or the environment (high-risk activities and activities with high availability, in particular the operation of nuclear power plants, weapons systems, air navigation or air communication systems, life-support systems or devices, machine and production processes in the manufacture of pharmaceuticals and foodstuffs).
2. the end customer has the option to create its own apps with its own content using the contract software. App” means the app in connection with the configuration created by the end customer.
The End Customer shall be responsible for ensuring that any content supplied by it and the actual creation of the App are completely free of third-party rights and are also suitable for these uses from a legal perspective and may be made available. 3.
3. the end customer shall indemnify 3mobility solutions against all claims, including claims for damages, asserted by third parties against 3mobility solutions due to an infringement of their rights by the app created by the end customer using the contractual software. The end customer shall bear all reasonable costs incurred by 3mobility solutions due to such infringement of third party rights, including the reasonable costs incurred for legal defense. All further rights as well as claims for damages of 3mobility solutions shall remain unaffected.
4. in principle, any type of app may be created within the framework of the legal system, provided that it does not infringe any third-party rights or applicable law. The end customer shall be liable for corresponding legal information and labeling obligations arising from the publication and use of its app.
5. 3mobility solutions GmbH shall take the following measures if there are indications that an End Customer is violating statutory provisions, third-party rights or these imposed provisions, or that 3mobility solutions has another legitimate interest, in particular to protect other users of the Contract Software from fraudulent activities:
(a) warning of end users
b) Restriction/restriction of use
c) Temporary blocking or prohibition of use
d) Final blocking/prohibition of use
When selecting the measure, 3mobility solutions shall take into account the legitimate interests of the end customer concerned. 6.
6. in particular, the following actions of the end customer are prohibited when using the contract software and the created app:
– if defamatory, false in content, insulting, obscene, offensive, sexually oriented, threatening, harassing or racist material and / or statements are disseminated or any kind of pornography, texts or image material is offered, provided or otherwise made accessible via the App,
– if the app is used to threaten, harass or insult others or to violate the rights (including personal rights) of others or the rights of third parties (trademarks, rights to names, copyrights, data protection, personal rights, etc.), applicable law or the regulations for the protection of minors.
– if interventions occur in the technical design and maintenance of the use of the contractual software.
7. the end customer acknowledges that he is responsible for his own publication of his app created with the contractual software. Consequently, it is the end customer’s responsibility to adapt his app to the conditions and requirements – whether legal or factual – of the respective app store in which he publishes it. 8.
(8) The end customer shall be obliged to inform 3mobility solutions in text form immediately upon becoming aware of any legal infringements that have occurred with the contractual software or a created App. The same shall apply in the event that third parties assert a claim.
With the handover of the contractual software, the current status at the time of handover shall be handed over. Maintenance and update services by 3mobility solutions shall require a separate express agreement.
(10) These agreements and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from these terms and conditions and the place of performance shall be Düsseldorf.
