General Terms and Conditions (GTC) of Scanmore GmbH
1. Scope
These GTC conclusively regulate the conditions for deliveries and services of Scanmore GmbH and its vicarious agents. They are acknowledged by the client’s order. Deviating agreements can only be made legally in writing. These GTC take precedence over any business conditions of the client or intermediary.
2. Contract Conclusion
Offers from Scanmore GmbH are non-binding. Declarations of acceptance and all orders from the customer require written or telex confirmation to be legally effective. Performance data and other characteristics are only binding if this has been agreed upon.
3. Copyright Provisions
All copyrights and ancillary copyrights of the creator of a work (§§1, 2 Para. 2, 73ff UrhG) belong to the contractor.
In this case, the client acquires a simple, non-exclusive and non-excluding, non-transferable or assignable usage permission for the expressly agreed purpose of use and within the agreed limits. In case of doubt, the scope of use stated in the invoice or in the order/offer is decisive. In any case, the client acquires only as many rights as correspond to the disclosed purpose of the contract (given order). Unless otherwise agreed, the usage permission is only granted for publication on the client’s own company homepage or in the client’s online shop.
The contractor retains the copyrights for self-promotion at its own discretion in any form and publication in any case.
4. Deliveries and Services, Payment Terms
Deliveries and services are provided according to the conditions agreed upon at the conclusion of the contract regarding scope/specification, price, and delivery time. Deliveries and services are generally provided during normal business hours.
The agreed delivery times are subject to the timely completion of preparatory work to be performed by the client (e.g., provision of articles for 360-degree product photos). Scanmore GmbH is entitled to charge for partial services rendered even if the entire order cannot be completed on time due to missing preparatory work by the client. Services are invoiced as follows (deviating conditions apply only after agreement in writing and only if they are stated in writing in the contractor’s order confirmation):
The final invoice will be issued upon delivery of the images. All prices quoted are net, plus the legally applicable value-added tax. The payment deadline stated on the invoice applies. For orders that comprise several units or are provided over an extended period, the contractor is entitled to issue invoices after completion of each individual service.
5. Payment Default, Compensation
In the event of payment default, Scanmore GmbH is entitled to suspend or postpone the provision of deliveries and services. If the client does not comply with a payment request within a reasonable period, Scanmore GmbH is entitled to withdraw from the contract in whole or in part. In the event of default, interest and compound interest at a rate of 5% above the respective bank rate from the due date are agreed upon, without prejudice to claims for higher damages. Reminder fees and costs – including extrajudicial – legal intervention are at the expense of the client. Insofar as delivered works pass into the ownership (including partial ownership) of the client, this only occurs with full payment of the fee including all ancillary costs.
Upon delivery and invoicing, Scanmore GmbH tolerates the use of the invoiced services and the use of the image material by the client as if the invoice had already been settled by the client. However, with payment default of the payment deadline specified in the invoice or non-payment or partial non-payment, this tolerance becomes void on the date of the payment deadline specified in the invoice. From this date, image works / 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 for this. If articles provided by the client for the recordings are still with Scanmore GmbH in the event of payment default, these remain with Scanmore GmbH for possible utilization. In the event of possible utilization, Scanmore GmbH will charge for the time spent and all other costs incurred and add them to the original invoice amount.
Utilization can be carried out by Scanmore GmbH without notice 30 days after payment default. The utilization is carried out by Scanmore GmbH at its own discretion.
If the client continues to use the provided services / image works / 360-degree images despite non-payment, the following compensation claims are agreed upon 30 days after the payment deadline:
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 originally invoiced amount is to be added to the compensation.
If an already placed order is not executed for reasons not attributable to Scanmore GmbH, a cancellation fee of 50% of the agreed fee can be charged. A separate proof of damage is not required here. If Scanmore GmbH has begun processing 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 carrying out the order is exceeded for reasons not attributable to Scanmore GmbH, 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 additionally invoiced.
6. Loss and Damage
In the event of loss or damage to works produced on order (data, data carriers, etc.), the contractor is liable – for whatever legal reason – only in cases of intent and gross negligence. The liability is limited to its own fault and that of its vicarious agents and employees; the contractor is only liable for third parties in cases of intent and gross negligence in selection, provided that the selection of the legal entity was made by the contractor.
Any liability is limited to material costs and free restoration of the work (if and to the extent possible). The client is not entitled to any further claims; in particular, the contractor is not liable for any travel and accommodation expenses, third-party costs (equipment rentals, models, assistants and other personnel, etc.) or for lost profits and consequential damages.
7. Performance and Warranty
The contractor will carefully execute the assigned order. They may also have the order executed in whole or in part by third parties (other scanning service providers). Unless the client gives written instructions, the contractor is free regarding the method of carrying out the order. This applies in particular to the work conception, the selection of models, and the technical means used.
Deviations from previous deliveries do not in themselves constitute a defect. No liability is assumed for defects attributable to incorrect or inaccurate instructions from the client (§ 1168a ABGB). In any case, the contractor is only liable for intent and gross negligence. The client bears the risk for all circumstances that are not within the contractor’s control, such as timely provision of products and props, failure of models, etc.
8. Work Fee
Changes requested by the client during the execution of the work are at their expense. This also applies if changes are requested by third parties after the work has been delivered.
9. Warranty and Liability
Scanmore GmbH bears the statutory warranty for the basic functional suitability and technical usability of its deliveries and services upon delivery within the framework of the agreed service descriptions and these General Terms and Conditions. For third-party products, their liability and warranty conditions apply. If deliveries and services are defective, this must be reported to Scanmore GmbH immediately after becoming known, but no later than 7 days after delivery. Only if the defect cannot be remedied within a reasonable period by repair or replacement delivery is the client entitled to demand a cancellation or reduction of the contract.
Scanmore GmbH is liable within the framework of statutory provisions for damages caused by intent or gross negligence of its employees or vicarious agents. In cases of slight negligence, however, at most to the extent of the contract value. Liability is excluded for damages caused by force majeure – including in the area of vicarious agents and suppliers – or by the client’s behavior contrary to the contract. Scanmore GmbH is not liable for damages that may occur through the use of the Internet via Scanmore GmbH accesses, without Scanmore GmbH having influence on potentially damaging content. The client bears sole responsibility for all works and evaluations created by them.
The client is responsible for obtaining any necessary consent for depicted objects (e.g., works of fine art, patterns and models, trademarks, photo templates, etc.) or persons (e.g., models). The client shall indemnify and hold the contractor harmless in this regard, particularly with respect to claims under §§ 78 UhrG, 1041 ABGB.
10. Usage Rules
When using Scanmore GmbH facilities (scan videos, 3D product presentations, accesses, webspace, server hosting, etc.) and Scanmore GmbH products, clients are obligated to observe all applicable third-party rights (e.g., legal provisions of criminal law and youth protection, personality rights, copyrights, etc.).
Scanmore GmbH reserves the right to use the photos created for and on behalf of the client for its own advertising purposes / presentations.
If the client wishes to use photographic material, 360-degree images, or Flash created by Scanmore GmbH in a way other than on their web address or within the framework specified in the order, this constitutes a new type of use and requires new licensing by Scanmore GmbH. Personal use in emails and PDFs is free.
For more than one customer-related web address, plugin license fees will be charged for all additional addresses, unless otherwise specified in the order.
11. Data Protection
Scanmore GmbH uses the provided customer data only to fulfill contractually agreed services or to save returning visitors from having to provide information again. Scanmore GmbH does not pass on personal data to third parties. The customer is hereby informed in accordance with § 33 of the Federal Data Protection Act that the provided data is processed in machine-readable form for tasks arising from contractual obligations. Insofar as Scanmore GmbH uses third parties to provide the offered services, it is entitled to disclose data relevant to contract fulfillment to this third party. The customer can request the deletion of their data at any time. Scanmore GmbH may use and pass on anonymized data, such as regional customer distribution, object structures, effort structures, number of accesses, etc., for its own purposes at any time. Scanmore GmbH expressly points out that the Internet does not allow absolute data security despite all technical precautions. It is not liable for actions of third parties. In no case is it liable for damages other than those caused by gross negligence or intent. The above limitation of liability does not affect customer claims arising from product liability and in the case of non-attributable physical and health damages and loss of life of the customer. The customer, for their part, is not entitled to obtain data or information not intended for them or third parties through the use of the provided pages and software.
12. Final Provisions
Written Form, Severability Clause, Applicable Law, Place of Performance, Jurisdiction
No side agreements have been made. Changes and additions to this license agreement must be made in writing.
Should one or more contractual provisions be or become partially or completely legally ineffective, this should not affect the legal effectiveness of the remaining provisions.
The contracting parties undertake to replace the partially or completely ineffective clause with one that comes as close as possible to the partially or completely ineffective clause and is effective.
The law of the Federal Republic of Germany applies exclusively. The provisions of the UN Sales Convention 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 do not have a general place of jurisdiction in Germany is the court responsible for our registered office. Scanmore GmbH is also entitled to sue at the customer’s registered office.
Offenbach, January 2, 2013