General Terms and Conditions (GTC) of Scanmore GmbH
1. scope of application
These General Terms and Conditions conclusively regulate the conditions for deliveries and services of Scanmore GmbH and its vicarious agents. They are recognized by the customer’s order. Deviating agreements can only be made legally effective in writing. These GTC take precedence over any terms and conditions of the customer or the intermediary.
2. conclusion of contract
Offers made by Scanmore GmbH are non-binding. Declarations of acceptance and all orders of the customer require written or telex confirmation to be legally effective. Performance data and other characteristics are only binding if this has been agreed.
3. copyright provisions
The contractor is entitled to all copyrights and ancillary copyrights of the producer of a work (§§1, 2 para. 2, 73ff UrhG).
In this case, the client acquires a simple, non-exclusive and non-exclusive, non-transferable or assignable license for the expressly agreed purpose and within the agreed limits. In case of doubt, the scope of use stated in the invoice or in the order/offer shall be decisive. In any case, the client shall only acquire as many rights as correspond to the disclosed purpose of the contract (order placed). In the absence of any other agreement, permission for use shall only be deemed to have been granted for publication on the client’s own company website or in the client’s Internet store.
The Contractor shall in any case retain the copyrights for self-promotion in any form and publication at its own discretion.
4. deliveries and services, terms of payment
Deliveries and services shall be provided in accordance with the conditions agreed upon conclusion of the contract with regard to scope/specification, price and delivery time. Deliveries and services shall generally be provided during normal business hours.
The agreed delivery times are subject to the proviso that preparatory work to be carried out by the client (e.g. provision of items for 360 degree product photos or 3D scans) is completed on time. Scanmore GmbH is entitled to charge for partial services rendered even if the entire order cannot be completed on time due to a lack of preparatory work by the customer. Services will be invoiced as follows (deviating conditions are only valid in written form after consultation and only if they are mentioned in writing in the order confirmation of the contractor):
The final invoice will be issued upon delivery of the images / data. All prices quoted are net, plus VAT at the statutory rate. The payment deadline stated in the invoice shall apply. In the case of orders comprising several units or which are provided over a longer period of time, the contractor is entitled to issue an invoice after completion of each individual service.
5. default of payment, damages
In case of default of payment, Scanmore GmbH is entitled to suspend or postpone the provision of deliveries and services. If the customer does not comply with a request for payment within a reasonable period of time, Scanmore GmbH is entitled to withdraw from the contract in whole or in part. In the event of default, interest and compound interest in the amount of 5% above the respective bank rate from the due date shall be deemed agreed, irrespective of any claims for damages in excess thereof. Reminder fees and the costs of legal intervention – including out-of-court – shall be borne by the client. Insofar as delivered works become the property of the client (including partial ownership), this shall only take place upon full payment of the fee including all ancillary costs.
With delivery and invoicing, Scanmore GmbH tolerates the use of the invoiced services and the use of the image material by the customer as if the invoice had already been settled by the customer. However, in the event of late payment of the payment deadline stated in the invoice or non-payment or partial non-payment, this tolerance becomes null and void on the date of the payment deadline stated in the invoice. From this date onwards, images / 360 degree images and other services provided by Scanmore GmbH may no longer be used in any way. A prior written reminder of the outstanding items is not required. If the items provided by the customer for the recordings are still with Scanmore GmbH in case of default of payment, they remain with Scanmore GmbH for possible utilization. In case of a possible utilization, Scanmore GmbH will invoice the time spent as well as all other costs incurred and add them to the original invoice amount.
A realization can take place without notice by Scanmore GmbH 30 days after default of payment. The realization is carried out by Scanmore GmbH at its own discretion.
If the client continues to use the services / artwork / 360 degree images provided despite non-payment, the following claims for damages shall be deemed agreed 30 days after the due date for payment:
For each 360 degree image: 10 times the agreed net price . For each photo / 2D image: 10 times the agreed net price
For each 3D Flash animation or full 3D representation: 10 times the agreed net price
The amount originally invoiced shall be added to the compensation.
If an order that has already been placed cannot be carried out for reasons for which Scanmore GmbH is not responsible, a cancellation fee of 50% of the agreed fee may be charged. A separate proof of damage is not required. If Scanmore GmbH has started working on an order and it is not completed through no fault of Scanmore GmbH, Scanmore GmbH will charge the full fee. If the time scheduled for the execution of the order is exceeded for reasons for which Scanmore GmbH is not responsible, this may result in a subsequent increase in the fee. Postponements, especially due to late or incorrect provision of products to be photographed, can be invoiced additionally.
6. loss and damage
In the event of loss of or damage to works produced on commission (data, data carriers, etc.), the Contractor shall only be liable – irrespective of the legal title – in the event of intent and gross negligence. Liability shall be limited to its own fault and that of its vicarious agents and employees; the Contractor shall only be liable for third parties in the event of intent and gross negligence in the selection, provided that the selection of the legal entity was made by the Contractor.
Any liability is limited to the material costs and the free restoration of the work (if and insofar as this is possible). The Client shall not be entitled to any further claims; in particular, the Contractor shall not be liable for any travel and accommodation expenses or for third-party costs (equipment rental, models, assistants and other personnel, etc.) or for loss of profit and consequential damage.
7. performance and warranty
The Contractor shall carry out the order carefully. It may also have the order executed in whole or in part by third parties (other scanning service providers). If the client does not give any written instructions, the contractor is free to decide how the order is to be carried out. This applies in particular to the conception of the work, the selection of the models and the technical means used.
Deviations from previous deliveries shall not constitute a defect as such. No liability shall be accepted for defects attributable to incorrect or inaccurate instructions from the Client (§ 1168a ABGB). In any case, the Contractor shall only be liable for intent and gross negligence. The Client shall bear the risk for all circumstances that are not attributable to the Contractor, such as the timely provision of products and props, failure of models, etc..
8. wages
Any changes requested by the client in the course of carrying out the work shall be at the client’s expense. This shall also apply if changes are requested by third parties after delivery of the work.
9 Warranty and liability
Scanmore GmbH provides the statutory warranty for the basic functional suitability and technical usability of its deliveries and services upon delivery within the scope of the agreed service descriptions and these General Terms and Conditions. The liability and warranty conditions of third parties apply to their products. If deliveries and services are defective, Scanmore GmbH must be notified immediately after becoming aware of this, but no later than 7 days after delivery. Only if the defect cannot be remedied within a reasonable period of time by repair or replacement delivery, the customer is entitled to demand rescission or reduction of the contract.
Scanmore GmbH is liable within the scope of the statutory provisions for damages caused by intent or gross negligence on the part of its employees or vicarious agents. In cases of slight negligence, however, liability is limited to the value of the contract. Excluded is the liability for damages caused by force majeure – also in the area of vicarious agents and suppliers – or by behavior of the customer contrary to the contract. Scanmore GmbH is not liable for damages that may occur through the use of the Internet via Scanmore GmbH access points without Scanmore GmbH having any influence on potentially damaging content. The customer bears the sole responsibility for all works and evaluations created by him.
The client shall be responsible for obtaining any necessary consent for objects (e.g. works of fine art, samples and models, brands, photo templates, etc.) or persons (e.g. models) depicted. The Client shall indemnify and hold the Contractor harmless in this respect, in particular with regard to claims under §§ 78 UhrG, 1041 ABGB.
10. rules of use
When using Scanmore GmbH facilities (scan videos, 3-D product presentations, access, web space, server hosting, etc.) and Scanmore GmbH products, customers are obliged to observe all applicable third-party rights (e.g. statutory provisions of criminal law and protection of minors, protection of personality, copyrights, etc.).
Scanmore GmbH reserves the right to use the photos taken at and for the customer for its own advertising purposes / presentations.
If the customer wants to use photo material, 360 degree images or Flash created by Scanmore GmbH in a different way than on his web address or in the frame specified in the order, this is a new type of use and requires new licensing by Scanmore GmbH. The own use in mails and PDF is free.
If there is more than one customer-related web address, plug-in license fees will be charged for all additional addresses, unless otherwise agreed in the order.
11. data protection
Scanmore GmbH uses the data provided by the customer only to fulfill the contractually agreed services or to save returning visitors from having to provide information again. Scanmore GmbH does not pass on any personal data to third parties. The customer is hereby informed in accordance with § 33 of the Federal Data Protection Act that the data provided will be processed in machine-readable form and for tasks arising from the contractual tasks. If Scanmore GmbH uses third parties to provide the services offered, it is entitled to disclose the data relevant to the fulfillment of the contract to this third party. The customer can request the deletion of his data at any time. Scanmore GmbH may at any time use anonymized data, such as regional customer distribution, object structures, effort structures, number of accesses, etc. for its own purposes and also pass them on. Scanmore GmbH expressly points out that the Internet does not allow absolute data security despite all technical precautions. It is not liable for the actions of third parties. Under no circumstances is it liable for damages other than those caused by gross negligence or willful misconduct. The above limitation of liability does not apply to claims of the customer arising from product liability and in the event of unjustifiable physical injury and damage to health and loss of life of the customer. For his part, the customer is not entitled to obtain data or information not intended for him or third parties through the use of the pages and software provided.
12. final provisions
Written form, severability clause, applicable law, place of performance, place of jurisdiction
No ancillary agreements have been made. Amendments and supplements to this license agreement must be made in writing.
Should one or more contractual provisions be or become partially or completely legally invalid, this shall not affect the legal validity of the remaining provisions.
The contracting parties undertake to replace the partially or completely invalid clause with a clause that comes as close as possible to the partially or completely invalid clause and is effective.
The law of the Federal Republic of Germany shall apply exclusively. The provisions of the UN Convention on Contracts for the International Sale of Goods are excluded.
The place of performance and payment is the registered office of Scanmore GmbH.
The exclusive place of jurisdiction for contracts with merchants, legal entities under public law, special funds under public law or customers who have no general place of jurisdiction in Germany is the court responsible for our registered office. Scanmore GmbH is also entitled to take legal action at the customer’s place of business.
Offenbach, 2.1.2013