3D-Tool – General Terms and Conditions for Commercial Transactions
The following terms and conditions shall only apply to commercial transactions. The terms and conditions for agreements with consumers are regulated and published separately.
GTC for consumers
1. Parts of the Agreement
1.1. By mutual consent, the following terms shall form an integral part of all agreements concluded with the 3D-Tool GmbH & Co. KG after April 16th 2018.
1.2. The terms and conditions of the customer, if any, shall not become an integral part of the agreement. Any standardized reference to such terms is expressly repudiated.
2.1. Software: 3D-Tool and its components as well as the accompanying documentation. 3D Tool GmbH & Co KG is not obligated to provide the source code as part of its obligations.
2.2. License: The rights of use to the Software granted to the customer.
3.1. All specified prices are net prices and do not include any statutory taxes or duties.
3.2. If a value-added tax free delivery or service is feasible, the customer is obligated to provide the necessary proof. If the delivery or service is provided without the value-added tax by mistake, the customer shall exempt 3D-Tool GmbH & Co. KG from the tax obligation and bear all extra expenses.
4. Conclusion of Contract
4.1. Orders can be made via E-Mail, fax or mail to 3D-Tool GmbH & Co. KG as well as via the online shop of the 3D-Tool GmbH & Co. KG. An order is a binding offer to 3D-Tool GmbH & Co. KG towards the conclusion of a sales agreement. However, the contract shall not be concluded until 3D Tool GmbH & Co KG has confirmed the order or delivered the ordered goods.
4.2. The automatically generated confirmation of receipt of an order in the online shop of the 3D Tool GmbH & Co KG does not constitute the conclusion of an agreement. It is merely a confirmation that the order was received.
4.3. When ordering in the online shop the goods intended to be ordered are stored in the “Shopping cart”. The accordant button in the navigation bar enables the customer to edit the contents of the shopping cart at any time. By using the button “Go to Checkout” the customer is taken to the ordering form to enter the invoice address, the delivery address, to select the mode of payment and, in case of payment by credit card, to enter the credit card details. Before finally sending the order the customer will be able to verify all details, to make changes or to cancel the order.
4.4. When ordering in the online shop, the text of the contract (General terms and conditions and order data)is stored by 3D-Tool GmbH & Co KG but this storage is only temporary respectively not accessible by the customer. But the customer is able to print the terms and conditions of business and the order data by using the print function of his browser. Additionally the customer will receive an automatically generated confirmation of receipt after sending the order which contains the terms and conditions of business and the order data in text form.
4.5. If licenses are ordered by mistake, the licenses can only be canceled or changed within a time limit of five (5) days after conclusion of the agreement, if the licenses have not been used to activate the Software. 3D Tool GmbH & Co. KG is to be given written notice of an incorrect order.
4.6. In the event that Licenses shall be ordered on behalf of a third party such order shall only be permitted upon disclosure of the representation itself and the person being represented. The License Certificate will in such case directly be issued on the person being represented. The representative will not be granted any License himself. This Section 4.6 is without prejudice to the other stipulations of these terms and conditions of business or the EULA.
5. Rights of Use
5.1. The type and scope of the rights of use granted to a customer are defined in the End User License Agreement (EULA) of the Software.
5.2. The rights of use for an unlimited period of time to the Software shall be granted to the customer only upon complete and unconditional payment of the sales price. The use of the Software is tolerated until the rights are granted for an unlimited period of time and until then can be revoked at any time.
6. Payment Conditions
6.1. Customers that have their place of business in Germany can pay on account, or with credit card.
6.2. Customers that do not have their place of business in Germany pay with credit card.
6.3. 3D-Tool reserves the right to request advance payment in individual cases.
6.4. The right of retention may not be exerted unless that right is based on this contractual relationship.
6.5. The customer only has the right to set off claims that are recognized as legally binding or claims that the 3D-Tools GmbH & Co. KG has not disputed.
6.6. If the customer is entitled to a refund due to an overpayment, a double payment, or for other errors for which the customer is responsible, only the actually received sum paid to the account of 3D-Tools GmbH & Co. KG less any incurred charges and any reimbursement costs which may arise, shall be refunded.
7. Delivery and Services
7.1. Unless otherwise agreed upon, the Software shall be delivered in the version current upon conclusion of the agreement and in accordance with the current performance specification.
7.2. If only licenses are ordered, the 3D-Tool GmbH & Co KG shall provide the appropriate version of the Software for the license for download on its website.
7.3. The 3D-Tool GmbH & Co. KG will ensure the availability of the download for thirty (30) days from the date of the delivery note.
7.4. To use the Software with the License, the Software must be activated after installation. The License Certificates required to activate the Software will be sent to the customer via e-mail or via regular mail.
7.5. The customer shall be responsible for an adequate backup of the provided Software and License Certificates.
7.6. In case of physical shipment, the point in time in which 3D-Tool GmbH & Co. KG delivers the ordered goods to the shipping agent shall be decisive for observance of delivery dates and the transfer of risks.
7.7. Should the 3D-Tool GmbH & Co. KG not be able to fulfill its obligations due to unforeseeable, extraordinary circumstances that 3D-Tools GmbH & Co. KG cannot prohibit, despite due diligence, the delivery period shall be prolonged for a reasonable period of time, not to exceed a maximum time period of eight weeks.
7.8. If the delivery, or the provision of services, should become impossible for the reasons listed above the 3D-Tool GmbH & Co. KG shall be exempted from the duties to perform its obligations.
8. Inspection Obligation and Obligation to Give Notice of Defects
The customer is obligated to immediately inspect all delivered goods and services performed by 3D-Tools GmbH & Co. KG in the course of the execution of the agreement for defects and must give 3D-Tools GmbH & Co. KG notice of any defects without delay. If the customer fails to comply, he shall forfeit his warranty claims for such defects, which would have been discovered in the course of an immediate examination.
9.1. A defect is given if the Software has essential errors, which thereby have a crucial impact on the functionality of the Software, particularly for those functions listed in the performance specification while taking into account the hardware and software requirements as well as the functionality limitations also listed in the performance specification.
9.2. In case the Software is defective, the 3D-Tool GmbH & Co. KG first and foremost provides warranty by supplementary performance within an appropriate period of time. 3D Tool GmbH & Co KG shall thereby provide the customer with new Software free of defects or repair the defect at its own choice. As far as reasonable for the customer, the defect can also be eliminated using other solutions, which circumvent the defect (workarounds).
9.3. The right of the customer to rescind the agreement or to assert damages claims due to Software defects, which only marginally limit the usability of the Software, is excluded.
9.4. The statute of limitations for all warranty claims and other claims against 3D-Tools GmbH & Co. KG is twelve (12) months. This time period shall begin upon delivery, or provision of the contractual goods. The same terms shall apply to damage claims arising out of defects, as well as to claims for the compensation of fruitless expenditures. This statute of limitations shall not be applicable to willfully or gross negligently induced defects, which thereby lead to damages claims, defects that are maliciously kept secret, or in the case of injury to life, limb or health, in the event that a guarantee is breached, or to claims based on the Product Liability Act of the Federal Republic of Germany. In these cases the statute of limitation in accordance with the provisions of the law shall apply.
10. Liability – Limitations and Statute of Limitations
10.1. The following limitations of liability and the restriction of the statute of limitation shall not be applicable to damages to life, limb and/or health and/or to damages resulting from the breach of a guarantee and/or to damages that are caused by willful misconduct or gross negligence. The provisions of law shall apply to these cases. The same applies to the liability in accordance with the Product Liability Act of the Federal Republic of Germany.
10.2. The 3D-Tool GmbH & Co. KG shall not be liable for damages due to the loss of data and the non-usability of the Software that are incurred exclusively due to the fact that the customer failed to make an appropriate security back-up of the Software and the data processed with the Software. 3D-Tool GmbH & Co. KG’s liability for damages in such a case is limited to the costs that would have been incurred if the customer had appropriately made a security back-up.
10.3. The liability of 3D-Tool GmbH & Co. KG for negligently caused damages shall be limited to the foreseeable damage typical of the respective contractual relationship.
10.4. The liability for negligently induced damages that are incurred due to the delayed performance shall be limited to
15 % of the sales price.
10.5. Damages claims that are not based on a defect in the Software shall become statute barred twelve (12) months upon discovery thereof, or 12 months after that point of time in which the damages could have been discovered with due diligence.
11. Export Restrictions and Regulations
11.1. The customer acknowledges and agrees that the Software is subject to the export control laws and regulations of the United States and the United Kingdom. Notwithstanding any other obligation pursuant to this Section 11, the customer is obliged to independently monitor and comply with the obligations and requirements arising out of said export control laws and regulations.
11.2. The Software may not be exported, re-exported, or transferred to end users engaged in activities related to weapons of mass destruction except as authorized by the export laws and regulations of the United States. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
11.3. Should further export control laws or regulations for the transnational delivery or performance for the country of the customer exist, the customer shall independently initiate and carry through the necessary procedures, obtain the necessary permits and shall – if so required – provide the permits to 3D-Tool GmbH & Co. KG.
11.4. If further costs for customs, fees, taxes or duties are payable in the course of a transnational delivery or performance, the customer shall carry these costs. The customer shall be liable for and shall bear all taxes and dues incurring in his country also if the 3D-Tool GmbH & Co. KG is debtor of such taxes and dues.
12.1. All agreements with the 3D-Tool GmbH & Co. KG are construed under and shall be governed by the laws of the Federal Republic of Germany to the exclusion of the regulations of Private International Law.
12.2. The contractual language is German or English, depending on the language used for concluding the contract. If the contract is concluded via the online shop of 3D-Tool GmbH & Co. KG the only language available for concluding the contract is English.
12.3. The place of jurisdiction is the place of business of the 3D-Tool GmbH & Co. KG. However, the 3D-Tool GmbH & Co KG also has the right to file an action against the customer at the latter’s place of business.
12.4. If an individual stipulation of this agreement should be invalid or not executable or become invalid or not executable upon conclusion of the agreement, the validity of the remaining agreement shall not be affected.