This End User License Agreement ("EULA" or "Agreement") shall apply to all iVP - intelligent Virtual Platform Software versions, including all add-on programs and the content accessible via the Software (esp. 3D models; hereinafter collectively referred to as "Software") provided by iXtenda GmbH, Friedrich - Olbricht - Damm 62, 13627 Berlin, Germany ("iXtenda"), to you ("Customer"). Please read this Agreement carefully before installing or using the Software. By using the Software, you accept this Agreement. If you do not agree to this Agreement, you may not use the Software.  

 

General Provisions 

Subject matter of the Agreement; Scope of application 

Subject matter of this Agreement is the provision of Software by iXtenda to the Customer against payment.  

These General Provisions (I.) shall apply to all types of Software licensed by the Customer from iXtenda. In addition, the following provisions shall apply - depending on the type of Software provided: 

II. Special Provisions for installable Software (On Premise) 

III. Special Provisions for Cloud Services 

In the event of combined services (e. g. combined services of installed Software with Cloud Services), the provisions of the respective component shall apply.  

Other contractual conditions or conflicting terms and conditions shall not become part of this Agreement unless iXtenda have expressly confirmed their validity in writing. 

The Customer shall be the exclusive contractual partner of iXtenda. If the Customer is entitled to provide the Software to selected persons (e. g. employees, service providers), the use of the Software shall be exclusively be determined by this Agreement between iXtenda and the Customer.  

If the Software contains Open Source Software modules, the provisions of the respective Open Source Software License shall apply with priority to these modules. This applies in particular to the granting of rights of use and to the provisions of warranty and liability. 

The offer of iXtenda is exclusively directed to entrepreneurs at Customers who are entrepreneurs (Unternehmer) within the meaning of § 14 (1) of the German Civil Code (BGB), i. e. natural or legal persons or partnerships with legal capacity who, when concluding the Agreement, are acting in the exercise of their commercial or independent professional activity. 

 

Remuneration and billing 

The remuneration to be paid by the Customer is specified in the respective license certificate. All prices shown are exclusive of the applicable statutory value-added tax (VAT). 

All invoices shall be paid without deduction no later than 30 calendar days after the invoice date, unless expressly agreed otherwise. 

iXtenda shall be entitled to adjust its prices for continuously provided services (e.g. the amount of remuneration under the Subscription Model) annually to a reasonable extent, unless the prices have already been agreed for a specific period. When assessing a price adjustment, iXtenda may in particular take into account its own higher personnel, energy and other costs of operation as well as macroeconomic developments (e.g. inflation rate). iXtenda must inform the Customer in text form with a notice period of at least one month before the price adjustment shall take effect. If the Customer continues to use the Software/services after the price adjustment has come into effect, the Customer shall be deemed to have given his consent to the price adjustment. If the Customer objects to the price adjustment, the price adjustment shall not come into force. The objection shall at the same time be deemed to be a termination of the Agreement with a notice period of three months. Until the termination comes into effect, the old prices shall continue to apply. iXtenda shall inform the Customer of the consequences of continued use and objection when announcing the price adjustment.  

The Customer may be entitled to claim rights to retain only to the extent such rights are based on the same transaction. The Customer shall be entitled to offset insofar as the Customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. 

 

Obligations of the Customer 

The Customer shall be obliged to check all items delivered by iXtenda immediately upon provision in accordance with the provisions of the German Commercial Code (§ 377 HGB) and to inform iXtenda in writing of any defects detected, giving a detailed description of the defect.  

The Customer shall be obliged to check before the conclusion of this Agreement whether the specification of the Software corresponds to its requirements and needs. The Customer is aware of the essential functional features of the Software.  

Each Customer shall test the Software´s usability for the intended purposes before commencing operational use. This shall also apply to Software delivered to the Customer as part of cure performances by iXtenda. 

The Customer shall be responsible for creating the technical conditions necessary in the Customer's area of responsibility (in particular end devices, network and software configuration). iXtenda shall not owe any advice in this regard or support regarding the installation of the Software, unless this has been expressly agreed.  

The Customer shall always use the Software provided by iXtenda in the latest version made available. iXtenda shall be entitled to cancel support of older Software versions and to require the Customer to switch to a new Software version, even if iXtenda has accepted the use of an older version in the past. iXtenda shall notify the Customer of the discontinuation in advance in text form ("End-Of-Life Announcement"). If the Customer cannot reasonably be expected to use the latest Software version, the parties shall examine the possibility of a change to a version that involves an effort that is reasonable for both parties. If the parties are unable to agree on a solution within one month after receipt of the End-Of-Life announcement, each party shall be entitled to terminate the respective Software license extraordinarily with a notice period of three months. iXtenda shall not assume any warranty or liability for old Software versions. Unless a new license agreement is sent to the Customer by iXtenda together with the new version, the terms and conditions of this Agreement shall continue to apply. 

The Customer shall immediately report to iXtenda any malfunctions, damages or errors in the Software with a description that is as specific as possible. The Customer is obliged to monitor the Software in this respect and to subject processing results to a plausibility check. 

The Software of iXtenda may only be used within the scope of the applicable laws. In particular, the rights of third parties (e.g. personal rights or intellectual property rights) may not be infringed. The Customer shall be solely responsible for the lawful use of the Software and its use for specific purposes. In particular, iXtenda is not obliged to examine as to whether the purposes pursued by the Customer with the use of the Software are in accordance with law, e.g. with regard to aspects of planning and building law, data protection law or labor law. Should the Customer become aware of any illegal, abusive, non-contractual or other unauthorized use of the Software, the Customer shall be obliged to report this to iXtenda without delay. iXtenda is entitled to take suitable precautions to prevent unauthorized use of the Software. The Customer shall indemnify iXtenda against all potential claims raised against iXtenda by third parties due to a violation of the applicable national law committed by the Customer when using the Software. 

"iVP - intelligent Virtual Platform" is a registered trademark of iXtenda. The logo and/or trademarks of iXtenda may not be used or modified by the Customer unless iXtenda has given its prior written consent to such use or modification. 

The reverse translation of the provided object code of the Software into other code forms (decompilation) as well as other types of reverse engineering of the various stages of development of the Software are only permissible under the conditions of § 69e of the German Act on Copyright and Related Rights (UrhG). This also includes the extraction of individual parts of the Software including individual 3D models that can be accessed via the Software. If the Customer requires knowledge of parts of the source code in order to establish the interoperability of IT systems in accordance with §69e UrhG, the Customer shall be obliged to inform iXtenta in writing iXtenda and the Customer shall try to seek an amicable solution in advance in order to provide the Customer with the necessary information, without decompiling the Software. 

The Customer shall be responsible for having a backup of his data according to the respective state of the art available, unless the backup of data is explicitly part of the services owed by iXtenda according to the product description. iXtenda shall only be liable for damages resulting from data loss that would have occurred even in case of a proper backup. 

If the Software is subject to export and/or import control restrictions, Customer shall comply with such restrictions. 

 

Maintenance, Support 

iXtenda may, at its sole discretion, provide the Customer with updates and fixes of the Software and reserves the right to charge a fee for new versions of the Software (e.g. Upgrades). Statutory claims to remedy of defects and maintenance of use shall remain unaffected. 

iXtenda offers a Customer support for the Software. iXtenda assists the Customer when problems and malfunctions occur. iXtenda shall process support requests within a reasonable period of time. 

Any change to the support services or any extension of the support services requires a separate agreement.  

The support is available to the Customer from Monday to Thursday from 08:00 to 16:30, Friday from 8:00 to 15:00. Legal holidays in Berlin are excluded. 

 

Warranty 

The Software shall have the agreed quality, be suitable for use intend under this Agreement and have a quality that is usual in Software of the same kind. Not every defect which is inherent in the Software shall constitute a material defect. In particular, a functional impairment of the Software resulting from hardware defects, environmental conditions, incorrect operation or similar circumstances in the Customer's area of responsibility is not a defect. 

Information on the quality of the Software in the product descriptions are to be understood as specification of the services and not as a guarantee. A guarantee requires an express written declaration by iXtenda.  

In the event of defects, iXtenda may initially provide cure. As cure, iXtenda may at its choice, remedy the defect, e. g. by showing workarounds that avoid the effects of the defect, or by delivering a Software that is free of defects. In the event of legal defects (defects in title), iXtenda shall, at its choice, create the perquisites to use the Software legally or to use an equivalent Software. 

The Customer shall support iXtenda in the analysis of errors and the remedy of defects by specifically describing the defects that occur, providing iXtenda with comprehensive information and granting the time and opportunity required for the remedy of defects. iXtenda may, at its choice, remedy the defects on Customer site or at its business premises. iXtenda may also provide services by remote maintenance.  

If defect claimed by the Customer cannot be assigned to iXtenda after appropriate investigation (so-called “pseudo-defect”), iXtenda may demand compensation from the Customer for the additional costs incurred for verification and remedy of defects, unless the Customer could not have detected the pseudo-defect even by exercising due care. A pseudo-defect shall especially occur if the Software has been modified by the Customer, used improperly, used beyond the required hardware environment or operated incorrectly or if an error is reported inadequately/incorrectly. The burden of proof lies with the Customer.  

If iXtenda finally refuses cure or if such cure finally fails or is unreasonable for the Customer, the Customer may revoke the Agreement or reasonably reduce the remuneration and claim damages or reimbursement of expenses in accordance with Section 6 of this Agreement. 

The limitation period for claims due to defects shall be one year from the statutory commencement of the limitation period. 

 

Liability 

The following limitations of liability shall apply to the Customer's claims for damages based on liability for defects or for other reasons: 

iXtenda shall be liable without limitation for damage caused intentionally and by gross negligence. The same applies to injury to life, body or health, as well as to claims arising from written guarantees or the German Product Liability Act (ProdHaftG). 

Apart from that, iXtenda shall only be liable in case of violation of an obligation which is an essential prerequisite for orderly performance of the Agreement and on the due performance of which the Customer can reasonably rely (so-called „key obligations“). In this case, iXtenda's liability shall be limited to damages which iXtenda could have reasonably foreseen based on the situation known upon conclusion of the Agreement. 

The parties agree that the foreseeable damage typical for this type of contract arising from breaches of duty under this Agreement shall amount to a maximum of EUR 10,000. 

In all other respects, iXtenda's liability is excluded. In particular, no-fault liability for defects existing at the time of the conclusion of the contract is excluded for services provided by iXtenda under this Agreement.  

Insofar as the liability of iXtenda's is excluded or limited in accordance with these provisions, this shall also apply with regard to the liability of the organs and vicarious agents, in particular employees. 

iXtenda shall be free to raise the objection of contributory negligence.  

The limitation period for claims of the Customer shall be one year from the statutory commencement of the limitation period. 

 

Secrecy 

The parties undertake to keep secret all business and trade secrets or other confidential information which they receive or become aware of from the respective other contracting party during the performance of the Agreement. This shall also include information obtained by the Customer in the course of exercising its right under § 69e UrhG. The confidential information and documents embodying such information may not be made accessible to third parties not involved in the performance of the Agreement. The parties shall store and secure the information and documents in such a way that misuse by third parties is excluded, but at least with the diligence of a prudent businessman.  

Information and documents which are generally known and accessible at the time of disclosure or which were already known to the receiving party at the time of disclosure or which were later legitimately made accessible to it by third parties are not covered by the obligation to maintain secrecy. 

 

Data Protection 

All personal data provided by the Customer will be processed by iXtenda exclusively in accordance with the applicable legal provisions of data protection law. More detailed information can be found in the privacy policy.  

Insofar as iXtenda is provided with personal data within the scope of the provision of services for which the Customer is the controller within the meaning of Art. 4 No. 7 GDPR, iXtenda shall process such data as a processor bound by instructions. In this case, the parties shall conclude a corresponding agreement in accordance with Art. 28 GDPR (“DPA”). 

 

Amendment of this Agreement  

iXtenda reserves the right to change the Provisions of this Agreement for ongoing services (e.g. software lease and cloud services) at any time with effect within the existing contractual relationships. The Customer will be informed of such changes by e-mail at least 30 calendar days before the planned entry into force of the changes.   

If the Customer does not object within 30 days of receipt of the notification and continues to use the services even after the expiry of the objection period, the changes shall be deemed to have been agreed with effect from the expiry of the period. In the event of an objection, the Agreement shall be continued under the previous conditions. In the event of an objection, iXtenda reserves the right to terminate the Agreement at the next possible point in time. In the notification of change, the Customer will be informed of his right to object and of the consequences. The Customer is obliged to regularly check the mail-box of his deposited e-mail address with regard to such notifications. 

 

Other 

German law shall apply to the exclusion of German private international law and the UN Convention on Contracts for the International Sale of Goods.  

If the Customer is a merchant, the exclusive place of jurisdiction shall be the registered office of iXtenda. iXtenda shall, however, also be entitled to file suit at the Customer's place of business. 

iXtenda shall be entitled to have the services to be provided under this Agreement or essential parts thereof performed by carefully selected subcontractors. iXtenda shall safeguard the Customer's legitimate interests and comply with statutory requirements when deploying and selecting the subcontractor. 

iXtenda shall be entitled to transfer the contractual relationship to a third party in connection with a possible sale of a service component (e.g. a software product). The third party shall thereby become the exclusive contractual partner of the Customer with all rights and obligations arising from the contractual relationship. The Customer shall be obliged to make the necessary legal declarations for the transfer, unless the transfer of the contractual relationship to the third party is unreasonable for the Customer; in this case, the parties shall each be entitled to terminate the Agreement without notice.  

If any provision of this Agreement is or becomes invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties are obligated to cooperate in the creation of provisions through which a result that comes as close as possible to the invalid provision in economic terms is achieved in a legally effective manner. The foregoing shall apply mutatis mutandis to the filling of any gaps in the contract. 

This Agreement is executed in the German and English languages. In the event of any inconsistencies, the German version shall prevail. 

 

Special provisions for installable Software (On-Premise) 

Scope  

These special provisions for installable Software (II.) shall apply to all Software iXtenda delivers to the Customer for installation in the Customer's own networks and on the Customer's own computers (“On-Premise”).  

iXtenda shall provide the Customer with the Software in machine-readable form. The Software as well as the technical requirements are described in the respective product description and, in addition, in the documentation provided. 

The Customer has no right to be provided with the source code of the Software.  

Customization, installation, training, introduction and proper use of the Software must be ordered separately. 

 

Provision of the Software 

iXtenda provides the Customer with installable Software including documentation via download.  

iXtenda reserves the right to provide updates and new releases or to impose a time limit on the use of the Software provided. The Customer shall not have a claim to the retention of certain versions or releases. 

 

License to use the Software  

The Customer does not acquire any ownership rights to the Software. All rights to the Software and all relevant rights to patents, copyrights, trade secrets or other industrial property rights to the Software shall remain with iXtenda.  

iXtenda grants the Customer a non-exclusive, non-transferable, non-sublicensable 

in the event of a provision of Software for an unlimited period of time against a one-time fee ("Software Purchase", Section II. 4.1), a perpetual right, 

in the event of a time-limited provision of the Software against continuous remuneration (software lease, "Subscription", Section II. 4.2) a right limited in time to the agreed term of the license 

to use the Software for its own business purposes to the extent defined in the respective license certificate (e.g. named user or company license). 

The license type applicable to the Software is specified in the respective license certificate. If no license type is expressly agreed in the license certificate, a Named User license is granted. The following license types are offered: 

"Named User License" means that access to the Software is limited to those persons within Customer's organization who have been named by Customer and for whom licenses have been effectively purchased in accordance with this Agreement. It must be excluded that several individuals share the access as one named user. 

"Enterprise License" means that Customer is entitled to use the Software on multiple devices or simultaneously on multiple workstations within its enterprise. If the Enterprise License does not explicitly specify the number of devices or workstations, such use is permitted without limitation in number. However, this shall not include the use on devices and workstations of companies affiliated pursuant to §§ 15 et seqq. of German Stock Corporation Act (AktG) ("Affiliated Companies") of the Customer.  

The use of the Software for military purposes, purposes of the arms industry or firearms production is prohibited. 

The granting of rights is subject to the condition precedent of full payment of the remuneration due.  

All other activities of use and exploitation, in particular commercial rental, reselling (unless expressly regulated separately by written "reseller agreement/contractual dealer agreement"), leasing and distribution in tangible or digital form, shall not be permitted without the prior written consent of iXtenda. Customer shall be liable for all damages arising from copyright infringements. 

The Customer may make a backup copy of the Software necessary for the secure operation of the Software. The backup copy must be marked as "backup copy" and must receive a visible copyright notice from iXtenda. 

After the end of the Agreement, the Customer must immediately, without separate request, completely end the use, delete the Software and provide evidence of the deletion upon request. If the termination does not take place, an appropriate remuneration for the further use of the Software shall become due. 

 

Term of the license 

In the event of Software Purchase, the license is granted in perpetuity, i.e. without a time limit. In this case, the right to ordinary termination of the license is excluded for both parties.  

In the event of a Subscription, the license is granted for the minimum term specified in the license certificate. Unless otherwise provided in the license certificate, the minimum term shall be 12 months. Unless it is terminated by one of the parties at the respective end of the term with a notice period of three months, the license term shall be automatically extended by further 12 months. The right of each party to extraordinary termination for good cause shall remain unaffected. Termination must be in writing in order to be effective. 

 

Transfer of the Software 

The Customer may not transfer the Software to which he has been granted perpetual rights of use (Software Purchase) without the written consent of iXtenda. iXtenda must only agree to the transfer of the Software to a third party if 

the Customer completely abandons the use of the Software; 

the Customer ensures that it has deleted all copies of the Software, unless it is legally obliged to retain them for a longer period, and 

the third party declares in writing its agreement with the provisions of this Agreement.  

Any costs and expenses incurred by iXtenda for the transfer of the license shall be borne by the Customer.  

In the case of a Software Subscription, the Customer shall not be entitled to transfer or provide the Software to third parties, in particular to sell or rent it, without iXtenda's prior written consent. 

 

Special provisions for Cloud Services 

Scope 

These special provisions for Cloud Services (III.) shall apply if iXtenda operates a Software or other service in a cloud for the Customer and the Customer uses it remotely (hereinafter "Cloud Service"). Cloud Services include, in particular, the provision and operation of Software on servers of iXtenda (Software as a Service) as well as the storage and processing of data in the cloud. 

iXtenda provides the Customer with the Cloud Services. The features of the Cloud Services as well as the technical requirements can be found in the respective product description and, in addition, in the documentation provided.  

The Customer has no claim to the provision of the source code of Software operated in the cloud.  

Customer-specific customization, installation, training, implementation services are only owed if this has been expressly agreed. 

 

Cloud Services availability 

The transition point for the Cloud Services is the respective router exit to the Internet of the data centers used by iXtenda. iXtenda shall only owe the transmission of the data in the communication networks of its Cloud Services up to the transition point to the Internet. iXtenda shall not be responsible for the connection of the Customer to the Internet and the connection of the Customer to the aforementioned transition point via the Internet, the maintenance of the network connection as well as the procurement and provision of the hardware and software environment required on the Customer side.  

iXtenda endeavors to ensure that the usability of the Cloud Services is as uninterrupted as possible. The weekly operating time is 24/7. Except as otherwise agreed, iXtenda warrants an average availability of the Cloud Services of 96.5% per annum.  

Technical malfunctions (such as power supply interruptions, hardware and software errors, technical problems in the data lines, data loss in radio transmissions) may cause temporary restrictions or interruptions. In the following cases, downtimes are not taken into account when determining availability:  

The outage was caused by services, software or hardware provided by Customer or third parties, or missing or disrupted network or cellular connectivity at Customer's chosen location; 

The outage was caused by planned maintenance works announced with reasonable notice; 

The disruption was caused in culpable breach of this Agreement or by the misuse of the Cloud Services. In particular misuse occurs when iXtenda had previously instructed the Customer to change the use of the Cloud Services on the basis of legitimate interests and the Customer did not change the use as instructed; 

It is a pre-release, beta or trial version of the Cloud Services; 

In the case of services provided free of charge, unless the failure was caused maliciously by iXtenda.  

iXtenda reserves the right to supplement the Cloud Services with updates and new releases or to impose a limit on the use of the versions provided. The Customer has no right to retain certain versions or releases. 

Insofar as the Customer is given the option to store files and documents in the cloud, which he can access in connection with the use of the Cloud Services, iXtenda shall only be obliged to provide storage space. iXtenda shall not be subject to any duty of care with regard to the data transmitted and processed by the Customer. The Customer shall be responsible for compliance with relevant statutory retention periods. 

 

Registration and responsibility for access data 

In the event that an online registration is required for the use of the Cloud Services, the Customer must provide all information requested on the electronic registration form completely and correctly. If certain registration data changes subsequently, it must be updated by the Customer without delay. 

The access data including the password must be kept secret by the Customer and must not be made accessible to unauthorized third parties under any circumstances. It is also the Customer's responsibility to ensure that its access to the Cloud Services is used exclusively by persons authorized by the Customer. If it is feared that unauthorized third parties have gained or will gain knowledge of the access data, iXtenda must be informed immediately. 

The Customer is fully responsible for any use and/or other activity carried out under his access data. 

 

License to use the Cloud Services 

iXtenda grants the Customer a non-exclusive, non-transferable and non-sublicensable right to use the Cloud Services for the agreed term. The Customer is entitled to use the Cloud Services in its own company for its own business purposes. Insofar as the Cloud Service is offered as a combination with On-Premise Software, the restrictions defined for the On Premise Software shall also apply unless expressly agreed otherwise. 

Cloud services are offered in the license models described in Section 3.3.  

Sections II.3.4 to II.3.6 shall apply accordingly. 

If iXtenda processes data of the Customer within the provision of the Cloud Services, the Customer hereby grants iXtenda the non-exclusive right to use the data for the purpose of fulfilling the Agreement for the agreed term. Additional agreements under data protection law remain unaffected. 

 

Duration of the license 

The license is granted for the minimum term specified in the license certificate. Unless otherwise agreed in the license certificate, the minimum term shall be 12 months. The license term shall be automatically extended by further 12 month unless it is terminated by one of the parties at the respective end of the term with a notice period of three months.  

The right of each party to termination for good cause shall remain unaffected. Termination must be in writing in order to be effective. 

 

Blocking access  

If the use of the Cloud Services by the Customer violates iXtenda's legitimate interests, iXtenda shall be entitled to instruct the Customer to change the use of the Cloud Services. 

iXtenda may block the Customer's access to the Cloud Services as a whole or to individual sub-areas at its own discretion, either temporarily or permanently, if there are concrete indications that the Customer is violating or has violated this Agreement and/or applicable law, or if iXtenda has another justified interest in blocking access. When deciding on a blocking, the legitimate interests of the Customer will be taken into account appropriately.  

If the Customer repeatedly violates this Agreement or applicable laws despite being notified, iXtenda reserves the right to permanently block access.  

Furthermore, the following activities are prohibited when using the Cloud Services: 

the processing and distribution of illegal, defamatory, harassing or infringing content and computer programs;  

the distribution of viruses, Trojans and other malicious files; 

any action that is likely to impair the smooth operation of the Cloud Services, in particular to place an excessive load on the IT systems. 

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EULA iXtenda GmbH, as of December 2022