Terms and Conditions

3mobility solutions GmbH

A. General Terms and Conditions

1 Scope / Definitions

1.1 These terms and conditions apply to all business relationships, including future ones, between 3mobility solutions GmbH, Schwarzer-Weg 100-107, 40593 Düsseldorf (hereinafter referred to as “3mobility solutions” or “Manufacturer”) and the customer, in particular for the sale of software and for commissioned services and/or rental services, as well as for the provision of work services by 3mobility solutions, these General Terms and Conditions (GTC) shall apply exclusively.
1.2 Other terms and conditions shall not form 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 are both end customers and partners who intend to resell 3mobility solutions’ services.

2 Subject matter of the contract

2.1 3mobility solutions provides various services: The customer will find the current service description in their quotation or in the relevant contract. The exact scope of the service, in particular the functional scope of the flexmobility software, shall be agreed between the parties in a specification document where applicable.
2.2 The source code of the software is not part of the subject matter of the contract and will not be provided, unless this is expressly agreed between the contracting parties.
2.3 The customer is responsible for compliance with (re-)export restrictions. This may be particularly relevant for deliveries to the USA and the UK.

3 Delivery, Performance

3.1 Software is delivered in various ways, e.g. via CD-ROM/DVD/USB stick, together with other hardware, online by email or as a download, or by other means – depending on the agreement.
3.2 Unless expressly agreed otherwise, installation shall be carried out by the customer.
3.3 The delivery of goods shall be EXW (Incoterms 2010).
3.4 3mobility solutions reserves title to the delivered hardware and software until all payments under the contract have been received. Any rights of use granted may be revoked by 3mobility solutions following a prior written reminder and notice thereof in the event of an unjustified refusal to pay by the customer. The customer may demonstrate that they are entitled to a right of retention in the relevant contractual relationship.
3.5 The customer shall install any software releases, bug fixes and software environments received from 3mobility solutions, unless this has been expressly agreed as a service to be provided to 3mobility solutions.
3.6 If 3mobility solutions provides services commissioned by the customer beyond the scope of the original agreement (consultancy, training, support services, etc.), these shall be remunerated separately. Unless otherwise agreed between the parties, time spent shall be remunerated at 3mobility solutions’ currently applicable hourly rate and travel expenses shall be charged on a cost basis.
3.7 Delivery dates must be expressly agreed in writing in a schedule. Otherwise, the dates specified by 3mobility solutions are “approximate dates” and are only binding if this has been expressly agreed with the customer.
3.8 The customer is obliged to provide 3mobility solutions with all necessary information and materials for the performance of the contract. Any delay in this provision by the customer or by third-party companies involved in the project shall also result in a corresponding delay to the delivery date.
3.9 The delivery period shall be suspended for the duration of any review of drafts, demos, test versions, programmes or parts of programmes, etc., by the customer. The interruption shall be calculated from the date of notification to the customer until the date of receipt of their response.
3.10 If, after placing the order, the customer requests changes to the order that affect the duration of the service, 3mobility solutions shall be entitled, at its own discretion and taking the customer’s interests into account, to extend any bindingly agreed delivery time accordingly.
3.11 In the event of a delay in delivery, the customer shall in any event only be entitled to exercise the rights to which they are legally entitled 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 claim compensation for the resulting damage and any additional expenses. The same shall apply if the customer culpably breaches its obligations to cooperate. Upon the occurrence of default of acceptance or default by the debtor, 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 exclusive of statutory VAT and any customs duties.
4.2 Payment is due upon completion of the respective service, unless the parties have agreed otherwise (e.g. in the quotation from 3mobility solutions).
4.3 If the parties have agreed on monthly invoicing, the invoice shall be issued no later than the start of the following month.
4.4 The customer must raise any objections to the invoice for services provided by 3mobility solutions within two weeks of receipt of the invoice. Once the aforementioned period has expired, 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 their conduct when sending the invoice.
4.5 Unless otherwise agreed, all payments are due immediately, but no later than 10 days after the invoice is issued. 3mobility solutions is entitled to invoice for partial services.
4.6 In the event of a significant delay in payment by the customer, 3mobility solutions is entitled to suspend services at the customer’s expense. In this case, the customer remains obliged to pay the fees. If the customer is more than 60 days in arrears with payment, 3mobility solutions may terminate the contractual relationship without notice. The right to assert further claims arising from late payment remains unaffected.
4.7 The customer may only set off undisputed or legally established counterclaims. The customer shall only be entitled to rights of retention insofar as they relate to the same legal transaction.

5 Order

5.1 3mobility solutions undertakes to provide, upon request, further terms and conditions applicable to the contractual relationship in accordance with the respective individual contract.
5.2 Where the order is placed via a 3mobility solutions website or an electronic platform, the following applies: The offers displayed do not constitute an offer in the legal sense. By placing the order, the customer makes a binding offer to enter into a contract. Input errors can be corrected using standard keyboard and mouse functions before the order is submitted. By clicking the button that finalises the order, the customer submits a binding offer to enter into a contract. Upon receipt of the customer’s offer, the contract for the ordered service is concluded upon acceptance of the order by 3mobility solutions through an expressly stated order confirmation or through the commencement of the service or provision of the product.
5.3 Where the order is placed via email, fax or telephone, the following applies: The service catalogue displayed on the 3mobility solutions website or transmitted in any other form (e.g. email) does not constitute an offer in the legal sense. By placing an order via email, fax or telephone, the customer makes a binding offer to enter into a contract. The contract for the ordered service is concluded upon acceptance of the order by 3mobility solutions through an expressly stated order confirmation or through the 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 grants the customer, at the time of handover or transfer of a work, the non-exclusive, geographically unrestricted and permanent right to use the software/services in accordance with the contract for their own purposes, i.e. in particular to store and load them permanently or temporarily, to display them and to run them, even where reproductions are necessary for this purpose. The Customer requires a separate licence for any further, non-essential copies or virtualisation.
6.2 The terms and conditions set out in Part B shall take precedence in respect of the provision of the flexmobility software.
6.3 In the case of rental services provided by 3mobility solutions, an exception to clause 6.1 applies, whereby only a right limited to the term of the contract is granted.
6.4 Any copyright notices, trademarks, other legal reservations, serial numbers and other features serving to identify the programme contained in the software may not be altered or obscured.
6.5 Insofar as, inter alia, open-source software forms part of a delivery or service, 3mobility solutions generally does not transfer any rights of use to such software. In this respect, the licence terms of the respective open-source software, which 3mobility solutions supplies in the event of its provision, shall apply.
6.6 In the event of the supply or provision of third-party software, the licence terms supplied by 3mobility solutions shall apply in addition.
6.7 The customer is permitted to make a necessary backup copy and to reproduce the software within the scope of standard data backups in a reasonable and necessary number. Any other reproduction is prohibited.
6.8 Decompilation within the scope and subject to the conditions of Section 69e of the German Copyright Act (UrhG) remains permitted. The Customer’s rights under Sections 69d(2) and (3) of the UrhG also remain unaffected.
6.9 Reproduction or modification of the application documentation is not permitted, subject to and taking into account the Customer’s rights under Sections 69c(2) and 69e of the UrhG (insofar as the documentation is integrated into the software).
6.10 No rights of use shall be granted to the Customer in respect of drafts, models, sketches and similar works produced by 3mobility solutions which serve the development of the final project. Should the Customer wish 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 out or otherwise sub-license the software purchased or made available outside the scope of the contract, to publicly reproduce 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 licence descriptions mentioned in the relevant quotation shall apply.
6.13 If the Customer uses the purchased software to an extent that exceeds the purchased rights of use either qualitatively (with regard to the permitted use) or quantitatively (with regard to the number of licences purchased), the Customer shall be obliged, upon request by 3mobility solutions, to immediately acquire the rights of use necessary for the permitted use. This shall not affect 3mobility solutions’ right to assert the rights to which it is entitled, in particular to claim damages and injunctive relief. If 3mobility solutions has reasonable grounds to suspect that the Customer’s use of the software infringes the Terms of Use, statutory provisions or the rights of third parties, 3mobility solutions may block the relevant use or access to the software after giving prior notice to the Customer and stating the grounds for the suspicion, without this giving rise to any obligations on the part of 3mobility solutions.
6.14 3mobility solutions may, if necessary, appoint an independent auditor to audit the Customer’s proper performance of this Agreement, following reasonable prior notice and during normal business hours.
6.15 The Customer shall provide reasonable assistance with the conduct of the audit without remuneration.
6.16 The right to audit includes the auditor’s right of access to the business premises and to the IT systems in which the relevant records/products are held, provided that (a) the auditors comply with the applicable health and safety regulations and general security rules for the business premises, and (b) the auditors undertake an appropriate confidentiality obligation.

7 Cooperation with Partners

7.1 As the manufacturer, 3mobility solutions holds the necessary rights to the flexmobility software and distributes the software to customers. 3mobility solutions may agree with partners that they will undertake the further distribution of the flexmobility software. The partner then undertakes to market the contractual software, where applicable:
> with individual adaptations to the end customer’s requirements through customisation in the sense of parameterisation (i.e. without modifying the software’s source code),
> by providing additional services to the end customer, such as installation at the end customer’s premises or training for end-user staff.
7.2 To this end, the Partner is granted the right to make the Contract Software available to its customers for permanent use and to adapt 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 contracting parties shall agree on separate provisions governing the partnership. The Partner shall act as an independent trader in dealings with both the end customer and 3mobility solutions. The Partner undertakes to comply with the provisions of the flexmobility licence agreement set out in Part B of these General Terms and Conditions. In particular, the Partner undertakes to pass on the provisions set out in Part B, Section IV to its end customers upon conclusion of a contract.
7.4 The Partner is obliged to keep separate records of the copies produced. The Partner is obliged to keep separate records of the distribution of the contractual software. The Partner shall notify 3mobility solutions in writing on a monthly basis of its end customers and prospective buyers, including their contact details.
7.5 3mobility solutions is entitled, at its own expense and with reasonable notice, to inspect the records referred to in Clause 7.4 itself at any time or to have them inspected by a third party bound by a duty of confidentiality (e.g. an auditor or expert).
7.6 3mobility solutions shall assist the Partner in rectifying any defects that have arisen at an end customer’s premises within a reasonable timeframe for the customer. To this end, all defect reports from all sales partners shall be recorded and all sales partners shall be granted access to a defect database. In principle, genuine defects are rectified by the delivery of an update or by the provision of a patch or workaround. In consultation and subject to payment, the manufacturer may also carry out on-site visits to the end customer.
7.7 Software support contracts are concluded between the manufacturer and the end customer; alternatively, the partner may also conclude the software support contract with the end customer and is then obliged to conclude the contract on behalf of the end customer on the same contractual support terms with regard to the service commitments agreed with the manufacturer. In the case of its own support contract, the Partner shall be liable to ensure that 3mobility solutions does not assume any obligations beyond those set out in the support contract concluded with 3mobility solutions. The Partner is obliged to offer the respective end customer a contract for support services. The Partner is free to draft the support contract with the end customer as they see fit; however, the support services in the internal relationship between the contracting parties, particularly regarding fault rectification and updates, must comply with the manufacturer’s support conditions set out in Annex 1. If an end customer is not prepared to conclude a software support contract with the Partner, this requires consultation with the manufacturer.

8 Customer’s Obligations to Cooperate

8.1 Any requests and specifications from the customer that are to be taken into account in the manufacture of the subject matter of the contract and have been agreed between the parties must always be in writing (e.g. by email).
8.2 The customer shall inspect the subject matter of the contract immediately upon delivery, in particular with regard to completeness and functionality. The customer is obliged to duly fulfil their obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).
8.3 Any defects identified in the course of this inspection must be notified to 3mobility solutions in writing without delay. The notice of defects must contain as detailed and specific a description of the defects as possible.
8.4 Defects which could not be detected during the proper inspection described above must, in turn, be notified in writing immediately upon discovery. This notice of defects must also contain as detailed and specific a description of the defects as possible.
8.5 The Customer shall assist 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 to the operating conditions or other circumstances essential to the provision of the service.
8.6 The Customer’s duty to cooperate constitutes a primary obligation of the Customer.
8.7 Upon request by 3mobility solutions or where the Customer deems it necessary, the Customer shall, in particular (a) during the term of the contract, designate in writing a responsible person who possesses all the decision-making powers and authorisations necessary for the purposes of implementing this agreement.
8.8 3mobility solutions shall indicate its readiness to accept work performance, e.g. by handing it over to the Customer.
8.9 Upon handover, the Customer shall immediately inspect and test the Contractual Items to ascertain whether they are, in all material respects, in accordance with the contract within the context of acceptance. The Customer shall notify 3mobility solutions of any defects without delay.
8.10 If the Contractual Items comply in all material respects with the contractual provisions, the Customer shall declare acceptance, insofar as required by law. This declaration shall be made at least in writing by means of a release note.
8.11 If no detailed written notice of defects of a non-trivial nature is received within 4 weeks of the handover of the contractual items, the delivered project results shall be deemed to have been accepted or released.
8.12 The Customer shall not be entitled to rights under the warranty for defects which were known to the Customer at the time of acceptance, which would have been apparent upon a proper initial inspection, or which the Customer otherwise failed to identify through negligence, or which were not reported by the Customer.

9 Change Request

9.1 Both contracting parties are entitled, upon stating valid reasons, to request the other contracting party to discuss and negotiate changes or technical details.
9.2 Insofar as the Customer requests changes exceeding the agreed scope, 3mobility solutions shall provide services on an hourly basis against remuneration based on time and materials. 3mobility solutions shall assess the resulting effort involved, as well as whether the requested change is feasible, and shall then inform the customer of the changes likely to result, particularly with regard to costs and the schedule. Where possible and necessary, 3mobility solutions shall also assess the extent to which such a change affects services already delivered and their usability.
9.3 If no agreement is reached regarding a request for changes, the parties shall, unless they agree otherwise, implement the project in accordance with the current version to date.
9.4 Requests for changes must be made in writing and may also be confirmed by 3mobility solutions via email.

10 Liability for defects

10.1 3mobility solutions warrants that all services are free from material and/or legal defects.
10.2 The aforementioned liability for defects does not apply to any open-source software used, as 3mobility solutions does not transfer any rights of use in this regard. Liability on the part of 3mobility solutions for material defects and/or defects of title is therefore excluded due to the specific nature of open-source software.
10.3 A defect exists if the service (a) does not possess the agreed quality, (b) is not suitable for the use stipulated in the contract, or (c) is not suitable for normal use and does not possess the quality that is customary for services of the same kind and that the customer can expect given the nature of the service.
10.4 In the event of a defect, 3mobility solutions shall remedy the defect free of charge within a reasonable period in accordance with statutory provisions and subject to the following provisions.
10.5 Remedial performance may, at the discretion of 3mobility solutions, be carried out either by rectification or by replacement. Insofar as the rights of third parties are infringed, 3mobility solutions may, at its own discretion, carry out the rectification by acquiring, for the benefit of the customer, a right of use sufficient for the purposes of this contract, or by modifying the software infringing intellectual property rights without, or only with, effects on its functionality that are acceptable to the customer, or by exchanging the software infringing intellectual property rights without, or with only such effects on its functionality as are acceptable to the Customer, for software whose use in accordance with the contract does not infringe any intellectual property rights, or by delivering a new version of the software, the use of which in accordance with the contract does not infringe any third-party intellectual property rights.
10.6 The rectification of defects by 3mobility solutions may also be effected by providing the Customer with instructions for action by telephone, in writing or electronically.
10.7 In the event of a justified complaint, 3mobility solutions shall bear the costs necessary for the purpose of subsequent performance.
10.8 Any additional costs incurred by 3mobility solutions as a result of the customer having moved products to a location other than the original place of delivery shall be borne by the customer.
10.9 If it transpires that the complaint was unjustified, 3mobility solutions may demand reimbursement of the costs incurred, provided that the customer has acted at least negligently.
10.10 If the subsequent performance fails and the customer has set a reasonable deadline allowing for at least two attempts at rectification, the customer may, at their discretion, withdraw from the contract or reduce the remuneration. Subsequent performance shall not be deemed to have failed definitively after the second unsuccessful attempt at rectification; rather, 3mobility solutions shall be free to determine the number of attempts at subsequent performance within the period set by the customer, provided this is reasonable for the customer.
10.11 The right to withdraw from supply or service contracts and the claim for damages in lieu of the entire performance shall only apply in the event of significant defects.
10.12 If 3mobility solutions has fraudulently concealed a defect or has given a guarantee as to the quality of the goods, the statutory provisions regarding material defects and defects of title and their limitation periods remain unaffected.
10.13 Claims arising from a defect (including in relation to documentation) shall become time-barred one year after delivery. Clause 11 shall apply mutatis mutandis.
10.14 If 3mobility solutions offers the customer new programme components, in particular patches, bug fixes, updates, upgrades, new releases, new versions, etc., to prevent or remedy defects, the customer shall accept these.
10.15 Defects may also be remedied by the provision of a workaround.
10.16 The Customer shall have no claims for defects if they have modified the products or had them modified by third parties, or have used them with products other than those provided, 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 rectification of the defects that are unreasonable for 3mobility solutions.
10.17 The Customer’s rights in respect of defects remain unaffected provided that the Customer is entitled to carry out modifications, in particular in the exercise of the right to remedy the defect themselves pursuant to Section 536a(2) of the German Civil Code (BGB), and these have been carried out professionally and documented in a comprehensible manner.
10.18 Termination by the Customer of rental services pursuant to Section 543(2), first sentence, No. 1 of the German Civil Code (BGB) on the grounds of failure to provide contractual use shall only be permissible if 3mobility solutions has been given sufficient opportunity to remedy the defects and such attempts have failed. Clause 10.10 shall apply mutatis mutandis.
10.19 Mandatory, unlimited liability of 3mobility solutions as provided for by law and Clause 10 of this contract shall remain unaffected by the provisions under Clause 9.

11 Liability

11.1 Liability is excluded for damage to legal interests other than life, limb or health, provided that the damage is not attributable to wilful misconduct or gross negligence on the part of 3mobility solutions, its legal representatives or its vicarious agents, and provided that such conduct does not constitute a breach of ancillary obligations essential to the purpose of the contract.
11.2 Essential contractual obligations are those obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer may regularly rely (so-called “cardinal obligations”).
11.3 This exclusion of liability – as well as other 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 given.
11.4 Insofar as the breach of essential contractual obligations is due to simple negligence on the part of 3mobility solutions, legal representatives or senior executives of 3mobility solutions, or if the breach is due to simple or gross negligence on the part of other vicarious agents, 3mobility solutions’ liability shall be limited to the amount of damage that was foreseeable by 3mobility solutions at the time the contract was concluded and is typical for the contract.
11.5 The Customer is obliged to take reasonable precautions in the event that a programme fails to function properly, either in whole or in part, by means of a fallback procedure, data backup, fault diagnosis, etc. The Customer is obliged to prevent any loss of data and to carry out regular and proper data backups.
In the event of data loss, 3mobility solutions shall be liable solely for the costs of restoring the data backup. Clause 11.5 shall not apply if the data backup was agreed as the main service provided by 3mobility solutions.
11.6 The Customer shall indemnify 3mobility solutions against all claims, including claims for damages, which third parties may assert against 3mobility solutions on the grounds of an infringement of their rights resulting from the Customer’s culpable unauthorised use of 3mobility solutions’ services. The Customer shall bear all reasonable costs incurred by 3mobility solutions as a result of this infringement of third-party rights, including reasonable costs incurred for legal defence. All further rights and claims for damages on the part of 3mobility solutions remain unaffected. The Customer shall notify 3mobility solutions of any claims asserted by third parties in relation to the agreed services as soon as they become aware of them.
11.7 In the event of a justified claim by a third party in accordance with Clause 11.6, the Customer shall cease to use the services in question.
11.8 The above provisions regarding limitation of liability shall also apply in favour 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 regarding all confidential information of the other party obtained in the course of the performance of this Agreement, both during the term of this Agreement and for an unlimited period following its termination.
12.2 This confidentiality provision shall not apply to information which was already known to one party in a legally permissible manner prior to disclosure by the other party or which is in the public domain.
12.3 If a party is required to disclose confidential information by a court order, an order from a public authority or other body, or by law, the parties shall, as far as practicable, consult each other prior to disclosure, and only that part of the confidential information which must be disclosed shall be disclosed.

13 Remote Maintenance

13.1 In order to resolve IT issues remotely and quickly, 3mobility solutions offers the provision of services via its own remote maintenance solution. Where remote access is agreed, the customer is responsible for facilitating access and shall bear the connection costs. Remote access shall generally take place within the service hours. The customer shall permit unsupervised, logged and appropriate remote access, unless otherwise agreed.
13.2 Remote access means that a technician from 3mobility solutions accesses the customer’s devices via an internet connection. This is done using remote access software, which enables mouse and keyboard control of the currently logged-in user session. The screen content is transmitted to the technician’s device. Furthermore, access at the system level, such as the system registry, 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 is invoiced in accordance with the current service price list or the quotation, or offset against existing agreements such as project contracts or service contracts.
13.4 Should it not be possible to resolve an issue via remote access because the customer was unable to provide access, 3mobility solutions may, in an emergency, at its discretion, carry out a necessary on-site visit, which will be invoiced separately.

14 Rights to Work Results

Only 3mobility solutions may freely dispose of ideas, procedures, concepts and other techniques arising from the performance of the contractual maintenance and incorporated into the work results. The same applies to know-how and experience gained during the performance of the contractual maintenance work and the use of its results.

15 Termination of the Contract

15.1 If insolvency proceedings are opened in respect of the Customer’s assets, or in the event that an application for insolvency is filed with the competent court, or if the Customer is at risk of insolvency, 3mobility solutions may, at its discretion, withdraw from any contracts entered into or suspend services.
15.2 Where a continuing contractual relationship has been agreed between the contracting parties, this may be terminated by either party with three months’ notice to the end of a calendar year, provided no other termination provisions have been agreed.
15.3 The right of both parties to terminate the contract extraordinarily for good cause remains unaffected.
15.4 Any notice of termination must be in writing.
15.5 Upon termination of the contract or in the event of an invalid contract, the Customer shall cease using the contractual products within the scope of rental services and shall destroy all licensed products and copies thereof in their possession, and shall confirm this to 3mobility solutions upon request.

16 Final Provisions

16.1 There are no verbal side agreements. Amendments and deviations from this agreement must be in writing. This also applies to any deviation from the requirement for the written form.
16.2 German law applies exclusively to all claims arising from or in connection with this agreement, 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 any legal disputes arising from or in connection with this Agreement shall be the registered office of 3mobility solutions.
16.4 In the event of any conflict between the individual contracts concluded (offers) and these General Terms and Conditions or the supplementary contractual provisions under B., the offers shall take precedence.
16.5 The contract language is German. In the event of different language versions, the German text of these terms and conditions shall be solely authoritative.

B. User Agreement for flexmobility Software

I. Scope

Where the provision of the flexmobility software has been agreed, the following provisions shall take precedence over any other terms and conditions.

II. Classification of the Contract Software

1. In addition to the flexmobility platform software, the contractual software generally also includes a client option for the end customer to publish the configurations created using the flexmobility platform software in the form of an in-house app distributed by the end customer themselves. This generally requires the end customer to have a developer account in the relevant app store, and the guidelines of the relevant app store must be complied with. Services for implementing the publication solution must be agreed separately and are not covered by this agreement. The parties may deviate from the standard flexmobility client solution in supplementary agreements and agree separate terms and conditions.
2. In addition to the Contract Software, 3mobility solutions provides its own free public flexmobility app in the app stores. 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 terms. The Customer has no entitlement to use this flexmobility app arising from the contractual relationship regarding the Contract Software. No maintenance or update services are provided.

III. Grant of Rights to Partners

1. Right to reproduce the contractual software
3mobility solutions grants the Partner the right to create copies from a master copy provided to them for the purpose of distribution to end customers.
2. Right to distribute
2.1 3mobility solutions grants the Partner the non-exclusive right to distribute the copies of the Contract Software created, i.e. to sell and market them.
2.2 Distribution by the Partner may take place exclusively by way of sale, i.e. by way of permanent transfer in return for a one-off payment. Temporary transfer (rental) by the Partner or the granting of the right to rent is not permitted. Furthermore, the Partner is not entitled to offer the Contract Software by way of Application Service Providing (ASP) or to make it available for use. 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 is not entitled to transfer the distribution rights, in whole or in part, to third parties, unless 3mobility solutions expressly agrees in writing.
3. Granting of Rights to End Customers
The Partner is entitled to grant its end customers permanent rights of use to the Contract Software in return for a one-off payment, and to transfer ownership of the copies of the Contract Software created by the Partner to the end customer.
However, the Partner is not entitled to hand over the source code of the Contract Software to the end customers.
The Partner shall conclude a software licence agreement (“Licence Agreement”) with each of its end customers based on the transfers of rights applicable under these Terms and Conditions, ensuring that no further rights of use are granted to the end customers than those arising from these Terms and Conditions. The Partner may modify the model contract as required. However, the actual grant of rights and the wording regarding the scope of the grant of rights to the end customers must not exceed the scope described in Part B, Section IV.

4. Right to customisation in the sense of parameterisation of the Contract Software and to modification of the Contract Software
5.1 Distinction between customisation and modification
By customisation in the sense of parameterisation, the Contracting Parties mean all adjustments to the Contract Software that are possible without programming (i.e. without interfering with the source code), i.e. adjustments to the Contract Software by setting parameters that influence the scope and appearance (configuration) on the one hand, or the behaviour and results (parameterisation) of standard software on the other, without the need to interfere with the source code.
The contracting parties understand ‘modification’ to mean all adjustments to the Contract Software that are only possible through programming (i.e. by accessing the source code).
5.2 Customisation
The Partner is entitled to implement the End Customer’s individual requirements for the Contract Software through customisation in the sense of parameterisation.
5.3 Development of customer-specific modifications
The Partner is not entitled to create customer-specific modifications; that is to say, they are not entitled to edit, alter or further develop the Contract Software to adapt it to the individual requirements of an end customer. They are not entitled to make customer-specific modifications permanently available to end customers for use.
The Partner is not authorised to edit, alter or further develop the Contract Software unless 3mobility solutions expressly agrees to this in writing in advance. The Partner shall inform 3mobility solutions immediately of any enquiries from end customers regarding modifications.
5. Rights to the source code
The Partner is not authorised to edit the source code and/or to transfer it, whether edited or unedited, to third parties (including its end customers). Editing, disclosure of the source code or granting access to the source code is only permitted if 3mobility solutions has expressly agreed to this in writing in advance.
6. Product names, intellectual property rights, copyright notices
The Partner shall distribute any copies of the Contract Software produced by them exclusively under the protected product name and in their original form.
The Partner undertakes to observe the intellectual property and copyright notices appearing on the Contract Software (including the source code) and not to remove them.
7. Internal use of the Contract Software by the Partner (“Training, Test, Development and Demo Licence”)
During the term of this Agreement, the Partner is entitled to retain one current copy of the Contract Software for its own use. The right of use granted in this context (the so-called “In-house Licence”) is expressly limited to the Partner’s own use for training, testing and demonstration purposes.

IV. End-User Agreement

1. Scope of rights granted to end users
1.1 Simple right of use
In return for the agreed one-off fee, the end user receives a simple (non-exclusive) right to use the copies of the Contract Software provided on a permanent basis. Use of the Contract Software, for which no specific licences for multiple use are agreed under this contract, is restricted to a single computer. For this purpose, the End User may use any available computer that meets the system requirements and for which the right has been granted. Should the End User change computers, the Contract Software must be removed from the computer on which it was previously installed before being reinstalled on another computer. Where multiple use of the Contract Software has been expressly agreed separately with 3mobility solutions, such multiple use is permitted only to the extent that the End User has purchased the relevant type or number of licences and received them from 3mobility solutions in accordance with the separate agreement.
1.2 Backup Copies
The end customer is entitled to create a reasonable number of necessary backup copies of the provided copies of the contractual software. Copyright and other proprietary rights notices must not be removed or altered. They must be included on every backup copy.
1.3 Decompilation to ensure interoperability and modification for the purpose of error correction
The End Customer is entitled to decompile the Contract Software provided within the scope and subject to the conditions of Section 69e of the German Copyright Act (UrhG) in order to establish the necessary interoperability with other programmes. In principle, the End Customer shall, insofar as is reasonable, first give 3mobility solutions the opportunity to provide the information necessary to establish such interoperability. The end customer is also entitled to modify the contractual software provided within the scope of Section 69d of the German Copyright Act (UrhG) for the purpose of rectifying an error.
1.4 Transfer to third parties by the end customer
The End Customer is entitled to transfer or sell the provided copies of the Contract Software to a third party on a one-off basis, provided that they cease all personal use of the software. In this case, the End Customer shall hand over all copies made by them to the purchaser or delete them. Rental or sub-licensing is not permitted.
1.5 Excessive Use, Licence Management
Any use of the licensed software by the end customer beyond the agreed scope shall be deemed a breach of contract. In this case, the end customer is obliged to report the excess use immediately and to enter into an agreement with the Partner regarding additional licensing (with appropriate remuneration) based on the Partner’s current price lists.
To verify whether overuse has occurred, the Partner shall enter into agreements with its respective end customers to carry out regular audits.
A licence server is used for licence management and verification. The end customer is obliged to ensure and permit the encrypted connection between their software installation and the licence server within their IT infrastructure. This specifically entails that the licence server requires a connection every three months for the synchronisation and management of licences.
1.6 Unauthorised use
The end customer must not use the contractual software and any content/apps created with it in areas involving particular risk, which require the error-free continuous operation of relevant systems and in which a failure of the software or the content/apps created could lead to an immediate danger to life, physical injury or health, or to significant property damage or environmental damage (high-risk activities and activities requiring high availability, in particular the operation of nuclear power plants, weapon systems, air navigation or air communication systems, life-support systems or devices, machinery and production processes in the manufacture of pharmaceuticals and foodstuffs).

2. The end customer has the option of using the contractual software to create their own apps with their own content. The term “app” refers to the app in connection with the configuration created by the end customer.
The end customer is responsible for ensuring that any content supplied by them, as well as the actual creation of the app, is entirely free from third-party rights and is also legally suitable for these uses and may be made available.
3. The end customer indemnifies 3mobility solutions against all claims, including claims for damages, which third parties may assert against 3mobility solutions on the grounds of 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 as a result of this infringement of third-party rights, including reasonable costs incurred for legal defence. All further rights and claims for damages on the part of 3mobility solutions 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 the rights of third parties or applicable law. The end customer shall be liable for any corresponding legal obligations regarding information and labelling arising from the publication and use of their app.
5. 3mobility solutions GmbH may take the following measures if there are indications that an end customer is infringing statutory provisions, the rights of third parties or these imposed provisions, or that 3mobility solutions has any other legitimate interest, in particular to protect other users of the contractual software from fraudulent activities:
a) Issuing a warning to end customers
b) Restricting or limiting use
c) Temporary suspension or prohibition of use
d) Permanent suspension or prohibition of use
When selecting the measure, 3mobility solutions shall take into account the legitimate interests of the end customer concerned.
6. In particular, the following actions by the end customer when using the contractual software and the created app are prohibited:
– if defamatory, factually incorrect, offensive, obscene, indecent, sexually oriented, threatening, harassing or racist material and/or statements are disseminated, or any form of pornography, text or imagery is offered, made available or otherwise accessed via the app,
– if the app is used to threaten, harass or insult others, or to infringe the rights (including personal rights) of others or the rights of third parties (trademarks, rights to a name, copyright, data protection, personal rights, etc.), applicable law or regulations on the protection of minors;
– if interference occurs with the technical design and maintenance of the use of the Contract Software.
7. The end customer acknowledges that they are responsible for the publication of the app they have created using the contractual software. Consequently, it is the end customer’s responsibility to adapt their app to the terms and conditions – whether legal or factual – of the respective app store in which they publish it.
8. The end customer is obliged to inform 3mobility solutions in writing without delay upon becoming aware of any legal infringements relating to the contractual software or an app created therewith. The same applies should third parties assert any claims.
9. Upon handover of the contractual software, the version current at the time of handover shall be provided. Maintenance and update services provided by 3mobility solutions require a separate express agreement.
10. These agreements and all legal relationships between the parties are 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 is Düsseldorf.