The provision of services by ADVITEC Informatik GmbH, Schweizer Straße 3a, D-01069 Dresden, shall take place as defined in the following regulations.
1. General definitions
3. Contract components
4. Software licensing
4.1. Purchasing and activating the software
4.5. Start of the contract, term, termination
4.6. Payment term
4.7. Client’s duty to cooperate
5. In-house seminars, open seminars, webinars
5.1. Event locations, scope of service
5.3. Seminar fees, payment terms
5.4. Cancellation, withdrawal, rebooking
5.5. Seminar content
5.6. Property rights and copyrights
8. Force majeure
9. Reservation of title
10. Confidentiality and data protection
11. Place of jurisdiction, applicable law
12. Severability clause
1. General definitions
In the following General Terms and Conditions (“GTCs”), ADVITEC Informatik GmbH, Schweizer Straße 3 a, D-01069 Dresden, is described by the term “ADVITEC.”
2.1 The present General Terms and Conditions (“GTCs”) apply to all business relations between the Client and ADVITEC with regard to the licensing of software and the provision of support services or training, where the Client is a business customer.
2.2 Business customers in the sense of these GTCs are all entrepreneurs (§ 14 BGB [German Civil Code]), legal entities under public law, and special funds under public law. An entrepreneur is any natural or legal entity or any partnership with legal capacity that concludes the contract in order to exercise a commercial or independent professional activity.
2.3 Any deviating, conflicting or supplementary general terms and conditions of the Client shall only become a component of the contract if and to the extent that ADVITEC has explicitly agreed to their validity. This agreement requirement applies in every case, for instance even if ADVITEC accepts deliveries from the Client unconditionally in the knowledge of the Client’s general terms and conditions.
2.4 Specific agreements concluded with the Client in individual cases (including ancillary agreements, supplements and amendments) shall always take precedence over these General Terms and Conditions. The content of such agreements shall be defined by a contract concluded in text form and/or confirmation from ADVITEC in text form.
2.5 The respective version of the GTCs shall also apply as a framework agreement for future contracts with you regarding software licensing or the provision of support services or training; ADVITEC is not required to make further reference to these in each individual case. The latest applicable version of the GTCs can be found under www.ADVITEC.de/AGB.
2.6 ADVITEC reserves the right to make amendments or additions to the GTCs at any time as long as these do not discriminate against you in bad faith. Any amendments or additions to the GTCs shall be disclosed by way of a notification in text form. The amendments or additions to the GTCs shall be considered approved if the Client does not object to them in text form within two weeks of the notification. If the Client objects to the amendment or addition, ADVITEC can end the contract on the licensing of software and the provision of support services or training by way of proper termination.
3. Conclusion of contract / contract components
3.1 The presentation of goods and other services in catalogs, company brochures or the website(s) of ADVITEC does not represent an offer to conclude a contract. Only an order from the Client with ADVITEC represents a legal offer to conclude a contract, regardless of the communication channel used to submit the Client’s order.
3.2 Neither acceptance of the Client’s order request nor an order confirmation issued by ADVITEC represents an acceptance of the Client’s offer. ADVITEC exclusively accepts offers by shipping the ordered goods or providing the services unless ADVITEC explicitly declares its acceptance elsewhere.
3.3 The Client shall be bound to its submitted offers for a period of 14 days after submitting the offer. After that, the Client has the right to step back from the offer. In this case, the Client must notify ADVITEC of this. For partial shipments, ADVITEC shall only accept the offer with regard to the goods that are actually sent. However, if a partial shipment is unreasonable for the Client, the Client has the right to withdraw from the contract if ADVITEC cannot provide the rest of the partial shipment in a timely manner.
3.4 The list of software to be delivered and/or maintained, as provided to ADVITEC by the Client upon conclusion of contract; the description of services; the price list; and ADVITEC’s EULA for use of the software, each in the applicable version, are significant components of the contract.
4. Software licensing
4.1 Purchasing and activating the software
4.1.1 The software shall be provided by ADVITEC to the Client for download under the URL https://www.advisim3d.de/download. Alternatively, the Client shall receive an email from ADVITEC with a link to a server that provides the trial version of the software as a download. Where the software is provided to the Client electronically, in the form of a download link, the Client is responsible for retrieving it. After receiving the download link, the Client is solely responsible for deciding whether and when to download the software.
4.1.2 For the duration of the 30-day test phase, the software can be used free of charge without any functional restrictions. After that, it is technically only possible to continue using the software if the Client unlocks it with a license key purchased from ADVITEC. This key is provided to the Client by email once the licensing fee has been paid. As a rule, license key requests are processed within 1 business day (Mon-Fri) after the order is received.
4.2.1 Trial license
Before purchasing a full license, the Client has the option to install and use the software free of charge for trial purposes. The installation and use of a trial version is limited to a 30-day period after the license is sent to the Client (trial phase). After the end of the trial phase, the software can no longer be used unless a valid license key is entered.
With the exception of this time limit, the scope of the usage right for the trial license corresponds to that of the license in the subscription model as per Point 4.2.2.
In the subscription model, the Client has access to the agreed number of software licenses for a period of one year (as of when the license key is issued), in exchange for the subscription fee agreed between the Parties. In addition, the Client’s software shall be updated free of charge each time a new version becomes available. Subscription licenses are available for simultaneous users from 1 and up. The Client shall obtain a multi-user license without an explicit agreement between the Parties.
4.3.1 If the Client has chosen a subscription or a free license (e.g. a trial license), the Client shall be granted usage rights for the period of the underlying agreement and/or the duration of the trial phase. The material and geographic scope of these usage rights is defined in the respective EULA of the Client in each case.
4.3.2 During the contractual term of a subscription license, in addition to receiving usage rights for the software, the Client shall be provided with free technical support for the software in the form of free telephone support and updates.
The telephone support services include technical support for questions about features as well as help with any problems while installing or activating the software product.
In the event of a breach of duties from the EULA or the subscription agreement, ADVITEC reserves the right to suspend support services.
The free technical support explicitly excludes personal support services (consulting) regarding the software as well as research consulting. Unless otherwise established below, these services shall be invoiced on the basis of an hourly rate agreed between the Parties for work performed by ADVITEC (subject to travel and maintenance costs as well as mileage and reimbursement of costs/expenses), according to the amount of time spent.
Subscribers shall receive program updates (bug fixes) for the purchased program version free of charge. Where updates are available, these can be downloaded from the ADVITEC website. ADVITEC is entitled to create software updates at its own discretion.
ADVITEC shall provide free technical support exclusively for the use of the current version of the software at the time when the contract was concluded, including free updates as well as the version of the software immediately preceding the current version at the time when the contract was concluded. Free support is not provided for older versions. In this regard, reference is made to the software’s integrated help feature and tutorials for the software.
All property rights and copyrights regarding the software, the printed accompanying materials and all copies of the software product shall remain with ADVITEC or its suppliers.
The Client is not entitled to reproduce the printed materials that accompany the software.
4.5 Start of the contract, term, termination
4.5.1 The subscription begins when the license key is sent to the Client by ADVITEC and is initially concluded for a term of 1 year.
The subscription shall be automatically renewed for an additional year unless one of the Parties terminates it with 1 month’s notice to the end of the Agreement.
4.5.2 ADVITEC’s right to extraordinary termination for good cause is not affected hereby. In particular, good cause exists if
1. the Client violates its duties from the EULA,
2. the Client condones a violation of the EULA by third parties, or
3. the Client has filed for insolvency.
4.5.3 In the event of extraordinary termination of the subscription, the Client shall not be reimbursed in full or in part for the paid licensing fees.
4.5.4 In the event that the subscription is terminated or comes to an end, the Client agrees to destroy all copies of the software as a whole, in parts or in conjunction with other software.
4.6. Payment conditions
4.6.1 The annual licensing fee specified at the time of the order shall be invoiced to the Client as a one-time amount, subject to applicable taxes such as VAT or GST.
4.6.2 ADVITEC is entitled to adjust the licensing fee annually for the Client’s chosen subscription version. ADVITEC shall inform the Client about any fee changes 2 months before the end of the Agreement term. For each fee change, the Client shall have an extraordinary termination right until the end of the Agreement term.
If the subscription is renewed, ADVITEC shall bill the Client for the applicable licensing fees at the time of renewal. These can be reviewed on the ADVITEC website under www.advisim3d.de.
4.6.3 Until the annual licensing fee is paid in full, ADVITEC is entitled to prohibit use of the software.
4.7. Cooperation duties of the Client
4.7.1 The Client shall ensure that all necessary cooperation duties of the Client or its vicarious agents are performed in a timely manner, within the necessary scope and free of charge for ADVITEC. The Client’s cooperation duties and its duties to provide material are significant duties of the Client.
4.7.2 ADVITEC shall attempt to schedule the Client’s cooperation duties in advance of concluding the Agreement. If this is not possible, ADVITEC shall ask the Client to perform the necessary cooperation duties with appropriate advance notice.
4.7.3 The Client shall provide ADVITEC’s employees with all necessary support for their work at the Client’s premises. In particular, the Client shall make available all necessary information, documents, adequate infrastructure, personnel and hardware, and shall also provide the necessary organizational support. This also includes timely provision of data collection capacity, computer time, data connections and any data needed to fulfill the order, within the necessary scope. Any further duties and obligations of the Client shall be established separately in the order.
4.7.4 Data carriers provided by the Client must be materially and technically fault-free. If this is not the case, the Client shall compensate ADVITEC for all damages resulting from the use of this data carrier and shall indemnify ADVITEC from all third-party claims. Proper data backups before and during the provision of services by ADVITEC are the responsibility of the Client. The Client shall retain copies of all provided documents and data carriers, which ADVITEC can access at any time free of charge.
4.7.5 ADVITEC can request further appropriate cooperation duties from the Client if these are necessary in order for ADVITEC to provide the services.
4.7.6. If the Client fails to fulfill its cooperation duties in a timely manner despite a deadline or a timely request from ADVITEC, ADVITEC shall be released from its duties for the duration of the Client’s delay. All deadlines shall automatically be extended by the length of the Client’s delay, plus an appropriate restart time. ADVITEC’s further rights resulting from the Client’s delay shall remain unaffected.
4.7.7 The ADVITEC employees shall be assigned a contact partner who is consistently available and authorized to issue instructions for the services to be performed on site at the Client’s premises, and who is responsible, competent and empowered to deal with all issues relating to the fulfillment of the order. In the event of a change in contact partner or longer-term unavailability of the contact partner with authority to issue instructions, ADVITEC shall be notified without delay of the name of a successor and/or substitute.
5. In-house seminars, open seminars, webinars
5.1 Event locations, scope of service
5.1.1 “In-house seminars” in the sense of these GTCs are training events organized by ADVITEC in facilities provided by the Client for this purpose.
Organizing the seminar, including seminar equipment (projectors, etc.), invitations and refreshments for participants, is the Client’s responsibility. ADVITEC shall provide the speakers and seminar materials.
5.1.2 “Open seminars” are training events organized by ADVITEC that take place in ADVITEC’s training rooms or facilities rented by ADVITEC at various locations in Germany.
Responsibilities include booking the meeting rooms and technical equipment, seminar refreshments, seminar materials, seminar equipment, participation certificates and, if offered, 3 months of access to a free phone hotline on the seminar topic.
The participants are given a link to access the virtual seminar room, where they can watch and listen to the ADVITEC speaker’s presentation. Depending on the particular event, participants can ask questions and download informational materials and documentation. Whether the participants actively take advantage of these options or choose to passively attend the event is at their discretion.
Participants can register in writing, by fax, or online via the ADVITEC website.
The participant’s registration does not represent a conclusion of contract. ADVITEC shall send the participant a binding confirmation message with the seminar time and training location no later than 14 calendar days before the start of the seminar.
The number of participants in the seminars is limited for technical and didactic reasons. Therefore registrations shall be accepted in the order they are received.
5.3 Seminar fees, payment conditions
5.3.1 Open seminars and webinars
The fees for open seminars and webinars are published by ADVITEC on the company’s website. All prices are per person and are subject to statutory value added tax.
At least 14 days before the seminar, the Client shall receive an invoice, payable immediately in full with reference to the invoice number.
Seminar participation requires timely receipt of payment.
5.3.2 In-house seminars
ADVITEC will be happy to create a customized quote for in-house seminars.
For in-house seminars, invoicing occurs after the end of the seminar. Seminar fees are payable in full within 4 weeks after receipt of the invoice.
5.4 Cancellation, withdrawal, rebooking
5.4.1 Cancellation by ADVITEC
ADVITEC reserves the right to cancel seminars for reasons that are beyond its control, e.g. a failure to reach the necessary number of seminar participants or unavailability of the speaker at short notice.
In the event of a cancellation by ADVITEC, ADVITEC shall notify the Client of this without delay and attempt to rebook the Client for a different seminar date if the Client agrees to this.
Otherwise, any seminar fees already paid shall be fully refunded. Any further claims by the Client, particularly damage compensation claims of all kinds, are hereby excluded except in cases of intentional or grossly negligent behavior by employees or other vicarious agents of ADVITEC.
5.4.2 Withdrawal by the Client
If the Client is forced to withdraw from the booked event, the Client must inform ADVITEC of this without delay in text form (by mail, fax or email).
In the case of withdrawal, the following fees shall apply:
up to 42 days before the start of the event
between 15 and 41 days before the start of the event
50 percent of the seminar registration fee, plus VAT
withdrawal within 14 days before the start of the event and the previously issued invoice:
100 percent of the seminar registration fee, plus VAT
5.4.3 Rebooking / replacement participants
If an in-house seminar cannot take place on the agreed date for reasons that are the Client’s responsibility, the Client can rebook the seminar for a different date in coordination with ADVITEC.
Rebooking must take place within the same calendar year and can only be done once. Invoices shall be issued on the originally confirmed date and are payable upon receipt according to the payment conditions.
For open seminars, there is the option of naming a replacement participant at any time, which would avoid potential withdrawal fees and additional costs.
5.5 Seminar content
The content and execution of each seminar are based on the respective seminar program, which is a component of this Agreement in this regard. ADVITEC is entitled to modify individual pieces of seminar content for technical reasons without the participants’ permission, as long as this does not affect the main point of the scheduled seminar.
Seminar events are prepared and executed carefully and conscientiously by ADVITEC. ADVITEC is not responsible for ensuring that the seminar materials or the execution of the seminars/workshops are up to date, accurate and complete.
5.6 Property rights and copyrights
ADVITEC explicitly reserves copyrights to all materials, results, calculations, etc., created by ADVITEC or the speaker. Seminar materials and parts thereof shall not be reproduced or made public unless permission is granted in text form by ADVITEC.
6.1 ADVITEC shall be liable for defects in its services as defined by the statutory provisions, unless otherwise established below.
6.2 If ADVITEC delivers hardware or software to the Client in the context of its support services, ADVITEC shall warrant that the goods and services fulfill the performance characteristics established in the Agreement and correspond to the scope of service.
6.3 The Client shall submit any claims for defects in the support services provided by ADVITEC without delay, in text form. Where reasonable, the Client shall take all necessary measures to identify, limit and document the defects. In the case of a defect claim, the Client shall provide ADVITEC with all available information and shall support the defect rectification.
6.4 As soon as the defect notification is received, ADVITEC shall review and analyze the described defect and provide supplementary performance within a reasonable period. Supplementary performance shall be provided through ADVITEC’s choice of new production or defect rectification or – additionally, in the case of software – by offering options (workarounds) to avoid the effects of the defect. In the last case, the Client shall use the workaround until the next debugged software version is delivered. Hardware products installed in the course of supplementary performance do not need to be new, but must always offer the same functionality and suitability as like-new hardware.
6.5 If the reported defects are not caused by ADVITEC, the Client shall compensate ADVITEC for the time expenditure and costs incurred (particularly including travel costs) at the applicable and/or appropriate rates in each case.
6.6 If supplementary performance definitively fails after several attempts despite an appropriate limitation period established in writing, the Client shall have the right to reduce the compensation appropriately or cancel the Agreement. If only individual parts of ADVITEC’s goods and services are affected and the remainder of the goods and services can reasonably be used, the cancellation right shall be limited to the defective portion of the goods and services in each case.
6.7 The above warranty shall not apply in the case of an insignificant deviation from the agreed characteristic or an insignificant impairment of usefulness, or in the case of a fault resulting from improper or unsuitable maintenance, installation, repairs or calibration by the Client or an unauthorized third party, or from hardware or software, connections or materials provided by the Client or third parties. In addition, the above warranty shall not apply if the Client has modified the goods and services without permission from ADVITEC or used them counter to the operating instructions and/or the contractual requirements. In this regard, the Client is entitled to demonstrate and provide proof that the modifications and/or usage counter to the operating instructions and/or contractual requirements are not related to the fault. In addition, ADVITEC’s responsibility for defects shall not apply if the Client uses the software in an environment other than the intended hardware or software environment. In this regard, the Client is entitled to demonstrate and provide proof that the fault is not related to the Client’s use of the software in an environment other than the intended hardware or software environment.
6.8 The Client does not have any other or further warranty rights. In particular, ADVITEC does not warrant that the equipment subject to maintenance will function without disruptions or faults.
6.9 Unless otherwise agreed, the limitation period for claims arising from the warranty shall be twelve (12) months, beginning upon acceptance and/or handover. If ADVITEC’s scope of service includes the installation of software or hardware, its responsibility for defects shall begin at the time of installation. This also applies to the provision of spare parts and repair services that take place after the end of the original warranty period. Free repair services or the replacement of hardware components shall only constitute acknowledgement of a defect where ADVITEC explicitly confirms this in text form.
7.1 Unless otherwise established by these GTC, including the provisions below, ADVITEC shall be liable for breaches of contractual and non-contractual duties according to the relevant statutory regulations.
7.2 ADVITEC shall be liable for damage compensation – regardless of legal grounds – in the case of intent or gross negligence. In the case of simple negligence, ADVITEC shall only be liable:
a. for damages arising from a loss of life, bodily injury or damage to health,
b. for damages arising from the breach of a significant contractual duty (a duty that must be fulfilled in order for the Agreement to be properly executed, and which the other Party regularly expects and can expect to be fulfilled); however, in this case ADVITEC’s liability is limited to compensation for the foreseeable typically occurring damage and, for financial damage, to the net compensation agreed upon in each case.
7.3 Any contributory negligence by the Client shall be offset against the amount of any damage compensation claim.
7.4 The liability limitations defined in Point 7.2 shall not apply where ADVITEC has maliciously concealed a defect or assumed a guarantee for the condition of the goods. The same applies to claims by the Client as per the Product Liability Act.
7.5 Further liability for damage compensation beyond what is defined in Points 7.1 through 7.4 – regardless of the legal nature of the asserted claim – is hereby excluded. In particular, this applies to damage compensation claims arising from fault at the time when the Agreement was concluded, from other breaches of duty or from tortious claims for compensation of material damage as per § 823 BGB.
7.6 Where compensation claims against ADVITEC are excluded, this also applies with regard to its employees, representatives and vicarious agents’ personal liability for compensation.
7.7 The above liability provisions are not associated with any change in the burden of proof to the Client’s disadvantage.
8. Force majeure
8.1 Where ADVITEC is prevented by force majeure from fulfilling its contractual duties, ADVITEC shall be released from its duty to perform for the duration of the impairment as well as an appropriate restart time, without any obligation to compensate the Client. The same shall apply if the fulfillment of ADVITEC’s duties is unreasonably complicated or rendered temporarily impossible by unforeseeable circumstances for which ADVITEC is not responsible, particularly labor disputes, power shortages or significant operational disruptions.
8.2 ADVITEC is entitled to withdraw from the Agreement in full or in part if such a hindrance lasts more than four months and ADVITEC consequently no longer has an interest in fulfillment of the Agreement. At the Client’s request, ADVITEC shall declare at the end of this period whether it plans to exercise its withdrawal right or will accept the goods within an appropriate period.
9. Reservation of title
9.1 Until all current and future claims by ADVITEC from the ongoing business relationship with the Client (secured claims) are paid in full, ADVITEC reserves ownership of the goods it has delivered.
9.2 The goods subject to reservation of title cannot be pledged to third parties or transferred by way of security until the secured claims have been paid in full. The Client shall inform ADVITEC without delay, in writing, if and to what extent a third party accesses the goods belonging to the supplier.
9.3 In the event of behavior by the Client that is contrary to the Agreement, particularly non-payment of the owed service fees, ADVITEC is entitled to withdraw from the Agreement as per the statutory provisions and to request the return of the goods on the basis of the reservation of title and the withdrawal. If the Client fails to pay the owed service fee, ADVITEC shall only assert these rights if it has first set an appropriate payment deadline for the Client or if such a deadline is not required by law.
9.4 The Client is entitled to resell and/or process the goods subject to reservation of title in the ordinary course of business. In this case, the following provisions also apply.
- The reservation of title also applies to the full value of any products resulting from processing, mixing or combining the delivered goods; here, ADVITEC is considered the manufacturer. If a third party’s ownership rights are retained during processing, mixing or combination with its goods, ADVITEC shall obtain co-ownership according to the invoice values of the processed, mixed or combined goods. For the rest, the resulting product is subject to the same rules that apply to the goods subject to reservation of title.
- The Client hereby assigns to the supplier in advance, by way of security, any claims against third parties that result from the resale of the goods or products, either as a whole or in the amount of any co-ownership share held by ADVITEC as per the previous paragraph. The supplier hereby accepts the assignment. The Client’s duties named in Point 11.2 also apply with regard to the assigned claims.
- The Client remains authorized to collect the claim in addition to ADVITEC. ADVITEC hereby agrees not to collect the claim as long as the Client fulfills its payment obligations toward ADVITEC, is not in default with payments, has not filed an application to initiate insolvency proceedings, and there is no other lack of financial capacity. If this is the case, however, the supplier can request that the Client notify it of any assigned claims and their debtors, provide all of the necessary information for collection, produce the associated documentation, and inform the debtors (third parties) of the assignment.
- If the realizable value of the securities exceeds ADVITEC’s claims by more than 10%, ADVITEC shall release the Client’s choice of securities at the Client’s request.
10. Confidentiality and data protection
10.1 The Parties hereby agree to keep confidential all information and documentation they have provided to one another and/or obtained in conjunction with the execution of the Agreement, and to take appropriate measures in the sense of § 2(1) lt. b GeschGehG [law on the protection of trade secrets] in order to prevent third parties from obtaining and exploiting these. Employees of the Parties, where they are not already required to do so by their employment contracts, shall be obligated to observe confidentiality and non-exploitation to the extent that they come in contact with the contractual services. This also applies correspondingly for both Parties’ suppliers. The same applies to their exploitation.
10.2 The duty to maintain confidentiality and not to exploit the information disclosed by both Parties and/or obtained in the course of executing the Agreement shall not apply where this information
- was demonstrably known to the informed Party before the disclosure or
- was known or generally available to the public before the disclosure or
- becomes known or is made generally available to the public after the disclosure, without any involvement or fault of the informed Party or
- significantly corresponds to information that was disclosed or made available to the informed Party at any point by an authorized third party.
10.3 The confidentiality obligation shall not apply if there is a duty to disclose the confidential information on the basis of a court order, official instructions or a law.
10.4 The confidentiality obligation shall continue to apply even after the end of the Agreement.
10.5 The Parties hereby agree to comply with the provisions of data privacy laws and those of the European General Data Protection Regulation, in the current version of each. The Parties shall obligate their employees, suppliers and other persons coming in contact with the contractual services to observe corresponding duties.
11. Place of jurisdiction, applicable law
11.1 The place of fulfillment and place of jurisdiction for all disputes arising between the Parties on the basis of the contractual relationship (including disputes relating to bills of exchange and checks) is Dresden, as long as the Client is an entrepreneur, a legal entity under public law or a special fund under public law or the Client does not have a general place of jurisdiction in the Federal Republic of Germany or has moved its place of jurisdiction to another country.
11.2 ADVITEC is also entitled to bring legal suits to the court responsible for the Client’s registered office.
11.3 All contractual and other legal relationships between the Parties are exclusively subject to German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12. Severability clause
If any provision of these GTCs or any provision of other agreements should be or become invalid, this shall not affect the validity of the remaining provisions or agreements.
Dresden, September 2020