General Business Terms and Conditions of BIMm Solutions GmbH
Section 1 Area of application
These general business terms and conditions (hereinafter also referred to as 'Terms') shall apply to all purchase, rental, subscription, and support contracts of BIMm Solutions GmbH, registered office Hauptstr.2, 89567 Sontheim, Germany, (hereinafter referred to as the 'Licensor') with natural or legal entities or partnerships with legal capacity (for example, general partnerships, limited partnerships, limited partnerships with a limited liability company as sole general partner), (hereinafter referred to as the 'Customer'). The Customer confirms that it acts in the course of their commercial enterprise or self-employed profession when entering into the legal transaction. Any terms and conditions of the Customer that contradict these terms shall not be valid unless the Licensor accepts such terms or individual provisions thereof in writing.
Section 2 Object of the Contract
- The object of the Contract is the permanent or limited-period licensing of the computer program with the designation "BIMmTool" in the respective current version (hereinafter referred to as "Contract Software"), the provision of support services by the Licensor, and granting the rights of use described in Section 8. These also include particular versions such as “BIMmTool Connect”, “BIMmTool Pro”, and other software integrations and modules like IVION from NavVis.
- The Contract Software is software for importing and evaluating point clouds in the Archicad BIM modeling system. Essential information is extracted from point clouds, processed, converted, and presented in an integrated point cloud viewer. The Contract Software facilitates the user in creating a digital building model from point clouds. The Licensor introduces the software’s performance features and functionalities (performance descriptions) on its website www.bimm-solutions.com.
- The Contract Software requires the hardware and software environment described below. For the deployment of
the Contract Software, the Customer shall ensure the following system configuration:
- Supported operating systems:
- Windows 10,11 (64-Bit)
- macOS 12 Monterey, 11 Big Sur, 10.15 Catalina, 10.14 Mojave
- Minimum requirements for computer hardware:
- Processor: 64-bit processor with four or more cores
- 16 GB RAM
- At least 50 GB of available hard disk space
Section 3 Contract conclusion
- Contracts shall be concluded through agreement by telephone, in writing, by email or by oral agreement, or via a binding order placed by the Customer via the online shop and accepted by the Licensor. A contract enters into force by taking an order, sending an invoice, or electronically sending of the ordered license file(s).
- The Customer decides whether to purchase or lease the Contract Software. Software leasing offers the Customer a choice between different subscription periods.
- Upon conclusion of the software purchase agreement (regulating the purchase of the Contract Software) or the lease contract (regulating the use), an agreement regarding the provision of support for the Contract Software (support contract) is simultaneously concluded.
Section 4 Prices and terms of payment
- The Licensor shall invoice the license and maintenance prices of the Contract Software based on the offer the Customer signed and returned, or otherwise the current price list, published on the Licensor’s website www.bimm-soutions.com. Unless otherwise specified, the prices do not include the statutory amount of any sales tax (VAT) applicable at the time of invoice.
- The invoiced fee shall be paid in full within 2 (two) weeks after receipt of the invoice, unless the offer contains provisions indicating otherwise. In the event of default, the statutory provisions shall apply.
- The Customer shall make all payments in Euros. The Customer shall bear any currency exchange fees and bank transaction costs.
Section 5 Right of retention of the Licensor
- In the event of delay in payment, the Licensor may disable the Contract Software or the Customer's access to the Contract Software until the settlement of the open invoice.
Section 6 Reservation of title on purchase / Reservation of granting of rights
- The Licensor shall retain ownership of any delivered data or media until complete payment of the purchase price. This reservation covers all payment claims that have arisen or will arise in the relevant business relationship.
- Until the purchase price has been paid in full, the Customer is only granted a limited right of use as per Section 8 No. 2
Section 7 Obligations to collaborate on the part of the Customer
- The Customer shall check the correctness, accuracy, and completeness of the data and results processed in the context of the use of the Contract Software. This also includes procedures for registering point clouds, measurements in the point clouds, the pre-processed results, and the import from third-party software.
- The processing of the order and the transfer of all the information required in the context of the conclusion of the Contract shall take place via email, among others; the tasks are partly automated. The Customer shall therefore ensure that the email address provided to the Licensor is correct, the receipt of the emails is guaranteed (in terms of technical arrangements) and, in particular, is not prevented by spam filters.
- If required, particularly within the context of the support provided by the Licensor, the Customer shall enable the Licensor to access the IT systems of the Customer through remote maintenance free of charge. In this context, the Customer shall follow the corresponding instructions of the Licensor. The conditions of the support contract regulate details (Section 12).
- The Customer shall be responsible for performing regular backups according to the state of technology and maintaining software and hardware environments for the Contract Software in a proper and compliant manner.
Section 8 Rights of use
- The granting of use rights under the purchase agreement is always conditional upon the purchase price paid in full. In the case of a lease contract, the use rights are subject to the initial condition of the lease payment.
- In the case of a lease contract, the Licensor shall grant the Customer a simple, non-transferable use right (limited to the intended use) subject to the provisions of Section 11. In the case of a purchase agreement, the Customer acquires a simple, transferable use right (limited to the intended use). No acquisition of rights beyond this is associated with this granting of use rights. Insofar as the Contract Software contains open-source constituent parts, the terms and conditions of the open-source provider shall apply separately. The Licensor, however, shall confirm that the open-source constituent parts do not hamper use by the Customer in line with the Contract.
- The right of use is restricted to the respective purchased version, including updates and adjustments during the contract period.
- The source code shall remain the property of the Licensor. The Customer shall not be entitled to any release or disclosure of the source code.
- The grant of a permanent use right in the event of a purchase or of a time-limited use right in the event of a lease shall entitle the Customer to install and operate the Contract Software. Unless otherwise stipulated in writing between the Licensor and Customer, the use rights for the Contract Software instance shall be restricted to the use by only one user at any one time. It is not permitted to deploy the supplied Contract Software on a network or other multi-host computer system in locations where this establishes a possibility of the multiple simultaneous use of the Contract Software.
- In any instance where the Customer transfers the Contract Service in breach of the Terms, the Licensor may require a penalty from the Customer. The Licensor will specify the penalty amount by each case individually; the court of competent jurisdiction may review the appropriateness of the penalty. In the event of a continuous breach, each second week or part of a second week constitutes a separate infringement. The claims to which the Licensor is entitled under this Contract and the assertion of claims of performance or damages shall not be affected through the agreement of the penalty and its assertion. The provisions of §§ 340 par. 1, sent. 2, 341 par. 3, 343 German Civil Code (BGB) shall be excluded. The Licensor shall set off any paid penalty amounts in full against any claim for damages.
- Under no circumstances shall the Customer have the right to lease the purchased Contract Software or sub-license it in any other way. In the case of time-limited use rights (rental and subscription licenses), the Customer may not transfer the obtained use rights to third parties or grant third parties any use rights; the provisions of Section 11 shall continue to apply.
- The Customer shall take suitable precautions to prevent unauthorized access of third parties to the Contract Software and the documentation. Other statutory stipulations shall remain unaffected.
Section 9 Warranty
- The warranty period (period for the correction of defects) shall run for 1 (one) year from delivery or the date of start of use. The statutory periods of limitation shall apply if notification of a defect is withheld with fraudulent intent, for injuries to life, body, or health, for defects in title, and claims under the German Product Liability Act (ProdHaftG) as well as for guarantees.
- According to the present state of technology, quality defects in computer programs cannot be excluded entirely. The Customer shall take note of this. The Contract Software qualifies defective if:
- The Contract Software does not provide the functionalities specified in its product/performance description when deployed in line with this Contract, or
- it is not suitable for the purpose contemplated by this Contract, or
- it is not suitable for everyday use and does not have the customary properties of software of the same type and those that the Customer can expect from this type of software.
- There is no defect in quality in particular if:
- A malfunction has been caused by improper treatment of the Contract Software;
- the cause of a malfunction does not lie in the Contract Software but rather has other causes that are not within the sphere of the Licensor’s influence (e.g., system crash, incompatibility with third-party software, or similar).
- A defect in title is present if the Customer has not acquired the rights necessary for the contractual use of the Contract Software.
- The Customer shall check the Contract Software for obvious defects immediately on receipt and notify the Licensor immediately in the event of an error; otherwise, a warranty for these defects becomes void. The same shall apply if such a defect becomes apparent later.
- § 377 of the German Commercial Code (HGB) shall apply in the event of a purchase.
- The Licensor shall remedy any reported and reproducible defects within an appropriate period. There shall be no guarantee for reported defects in quality that are neither reproducible nor can be demonstrated by machine-generated output. In the case of a defect in quality, the Licensor has the initial right to cure. At the sole discretion of the Licensor, this may involve two attempts to correct the defect or delivery of replacements.
- In the context of any replacement delivery and if required, the Customer shall adopt the current version of the Contract Software (updates and, if applicable, upgrades), unless this would lead to problems for the Customer that are not reasonably acceptable. In connection with correcting a defect, the Licensor has the right to supply a provisional solution until a proper update, explaining to the Customer ways and workarounds to fix the quality defect or its effects. It shall not apply if the workaround is not reasonably acceptable for the Customer.
- Licensor can also correct defects through remote data transfer (remote access).
- Following the report of a defect by the Customer, the Licensor shall start fixing the defect without undue delay, considering the specific situation, particularly the cause, severity, and effects of the defect. The report of the defect shall be documented in a ticket system. As soon as it is discernible for the Licensor, it shall inform the Customer of the possible cause of the defect and the respective status of the correction of the defect subsequently. If the defect correction is not possible within 2 (two) working days after receipt of the defect notification (“recovery time”), the Licensor shall notify the Customer without undue delay. The measurement of compliance with the recovery time shall only take place within the general service time of the Licensor: Monday to Friday from 9.00 a.m. to 5 p.m. (excluding holidays in Baden-Württemberg). The recovery time starts with the receipt of an accurate defect report. A defect report is adequate if the Customer has duly complied with its obligations to cooperate according to Section 12, No.7, concerning the quality defect description and its correction.
- The Licensor may also fulfill its obligation to repair by providing error-free updates for download on its website with an automatic installation routine and by offering the Customer phone and online support with remote control to solve any occurring problems.
- If the defect persists despite two attempts at a cure, if the Licensor is unwilling or unable to correct the defect or deliver a replacement within a reasonable period, or if the remedy fails for other reasons, the Customer shall be entitled, if a defect is essential and depending on which contractual services are defective, to withdraw from the purchase contract, to terminate the lease contract or support contract or to demand a corresponding reduction in the remuneration paid ( mitigation ). The declaration of withdrawal or termination of the purchase or lease contract shall also apply to the related support contract. However, the termination of the support contract shall not affect the purchase or lease contract. Minor defects do not entitle the Customer to terminate or withdraw from the contract.
- The cure of copyright defects shall be at the Licensor's discretion, either (i) by providing the Customer with a legally proper way to use the Contract Software, (ii) by modifying the Contract Software which infringes the industrial property rights without any effects on its function or only with effects on its function which are acceptable for the Customer, (iii) by replacing the infringing Contract Software with a Contract Software whose contractual use does not infringe on any industrial property right, without any effect on the software’s functions or only with the effects which are acceptable for the Customer, or (iv) the Licensor may deliver a new program version whose contractual use does not infringe on any third-party rights.
- The Customer shall inform the Licensor without undue delay should any third parties assert industrial property rights against the Customer; the minimum form requirement for such modification shall be text form. The Licensor shall, at its option, defend against claims or satisfy them. The Customer shall not accept claims of third parties on its own. The Licensor shall indemnify the Customer against all reasonable legal costs and losses associated with the defense against claims to the extent that the Licensor is answerable for the defect in title, and the Customer’s misconduct did not cause these costs.
Section 10 Liability
- Where the Customer claims damages or the reimbursement of expenses due to intent or gross negligence on the part of the Licensor, or where the Customer asserts claims for culpable injury to life, body, or health or under the Product Liability Law, the Licensor shall be liable by the law. The Licensor shall also have unrestricted liability if the notification of a defect in quality is fraudulently withheld, if a procurement or production risk is assumed according to § 276 BGB or, if (by way of exception) the Licensor gives a written guarantee with respect to characteristics or durability within the meaning of § 443 BGB.
- In the event of a breach of the essential contractual obligations, the Licensor’s liability shall be limited in its amount to the loss amount typically foreseeable. Such liability shall, however, not exceed the amount of the purchase price of the software.
- In other regards, liability for further damage or lost profits, additional labor costs incurred by the Customer, loss of use, or revenue losses caused by slight negligence shall be excluded.
- The Licensor shall not be liable for the loss of recorded data to the extent that it exceeds the loss which would have arisen if the Customer had duly carried a data backup in line with professional standards. Should the Licensor be responsible for backing up data under any agreements, the preceding sentence shall not apply.
- Any further liability of the Licensor for damages or the reimbursement of expenses shall be precluded regardless of the legal nature of the claim raised.
- Where the Licensor’s liability is excluded or limited based on the above, same liability exclusions and limitations apply to the Licensor’s legal representing bodies of the Licensor, any vicarious agents of the Licensor engaged by the Licensor in the performance of its contractual, or persons otherwise appointed by the Licensor in a capacity related to its business activities, in particular, the Licensor’s employees.
Section 11 Special terms applicable for a time-limited use right - subscription or lease
- Should the Customer acquire the time-limited right to use the Contract Software under a lease contract, the Contract shall be entered into for a fixed term. The Contract shall not be subject to ordinary termination during this time. The right to extraordinary termination of the Contract shall remain unaffected.
- The Licensor shall provide support during the lease period. The provisions of the support contracts shall apply as a supplement.
- In the event of the time-limited use right – subscription or lease – special prices apply for the contractual use, depending on regions and countries. The special prices only apply if the Customer is headquartered in the relevant region or country (right of use with limited territorial validity). The Customer expressly agrees to use the Software only in the relevant region or country where the corresponding preferential pricing applies, according to the lease contract terms.
- The Customer agrees that the Licensor may verify the geographical location of the use anytime in the context of license verification. Upon discovering a violation, the Licensor may disable the use of the software for the duration of the territorial use restriction violation. The Licensor may terminate the lease contract without notice in the event of a repeated infringement. The Customer may not use technical measures such as VPN tunnels that prevent or circumvent the license use verification.
- Each contracting party may terminate the lease contract with 3 (three) months’ notice to the end of the contract period. It shall not affect the right to terminate without notice for a good cause, and the case of no. 4 sent. 3. If neither contracting party gives notice of termination to the lease contract within the three-month notice period before expiration, the lease contract shall be extended, by another fixed period of 12 (twelve) months according to the current pricelist of the one-year-subscription term.
- To be legally valid, any termination must be made in writing (email).
- At the end of the contract period or upon termination, the Customer loses the right to use the Contract Software. The Customer shall return any data carriers provided with all license keys and documentation and delete any stored Contract Software files or documentation without undue delay. On the request of the Licensor, the Customer shall submit a declaration about the completed deletion.
Section 12 Support
On conclusion of a purchase or lease contract, the following support contract takes effect simultaneously:
- The Licensor’s support services refer to the version of the Contract Software purchased by the Customer, including updates and upgrades released during the contract period.
- The Licensor shall provide support exclusively for the Contract Software by releasing and making updates and upgrades available at irregular intervals, and in case of quality defects. The Customer shall not be entitled to impose any demands for updates and upgrades. The method used for correcting defects shall be at the reasonable discretion of the Licensor.
- The Licensor offers delivers Customer new program components, notably bug fixes, updates, upgrades, new releases, new versions, etc. to avoid or remove quality defects. The Customer shall adopt these and install them on their hardware following the Licensor’s installation instructions.
- Support services also include advising the Customer by phone, remote maintenance or email regarding questions that arise in the context of using or installing the software. If applicable, support can be provided by referring to videos, tutorials, and step-by-step instructions on the internet presentation www.bimm-solutions.com or at other URLs addressing the problem described by the Customer. On-site support is not part of the support contract. The Customer can reach the Licensor from Monday to Friday from 09:00 a.m. to 5 p.m. (CET / CEST) on the following contact channels: phone: +49-7325/ 92 92 42 or via mail: firstname.lastname@example.org.
- In the event of significant defects in the Contract Software, the Licensor shall be obliged to remedy the defect with a subsequent update. The identification and correction of defects are subject to the Customer's compliance with its cooperation obligations (Section 12, No. 7).
- Defects that do not significantly reduce the ability of the Contract Software to run or operate shall only be fixed if this is possible with acceptable effort. Reprogramming substantial parts of the program is not considered a bug fix.
- The customer support services do not include:
- Work outside of support hours, measures to remove problems caused by user errors, improper handling, technical interventions on the part of the Customer or third parties, or external influences for which the Licensor is not responsible;
- Services such as training courses, installations, the configuration of systems or system components, programming, individual customizing requests, consulting as well as data backups and/or restoration of data;
- defects caused by the operating system or incorrect configuration of the operating system or drivers.
- Phone or other live support services (e.g., live remote access to the Customer’s computer) amount to a max of 8x15 minutes per BIMmTool license purchased by the Customer for 1 (one) year following the conclusion of the support contract. Reproducible defects in the Contract Software do not fall under the live support services.
- The Customer must collaborate to enable and facilitate the necessary support and maintenance measures. In particular, the Customer must immediately report any occurring error, explaining it in a generally understandable manner and enabling adequate access per remote maintenance to its hardware and the Contract Software. On request and where applicable, the Customer shall provide the Licensor defect reports in writing and other data and logs suitable for the defect analysis.
- Services outside the scope of the support contract shall be provided by the Licensor on the Customer’s request and shall require separate payment. Billing is based on the Licensor’s hourly rate valid when the service occurs.
- The support contract has a fixed duration of 12 (twelve) months within which ordinary termination of the contract shall not be possible. If neither contracting party gives notice of termination of the support contract within 2 (two) months before expiration, the support contract shall be extended by another fixed period of 12 (twelve) months.
- The right to give notice of termination of the support contract for good cause shall not be affected by this.
- To be legally valid, a notice of termination must be given in text form (email).
- Live support services that the Customer has not used by the time the support contract expires or in the case of contract renewal shall lapse. There shall be no compensation.
- If the Customer gives proper notice of termination of the support contract and it wishes to conclude a new support contract after this termination, this shall only be possible under the condition that the Customer pays the charges for support, updates, and maintenance that would have been due in the period between the end of the first support contract and the start of the second support contract.
Section 13 Data protection
- Licensor shall process personal data according to the provisions of the data privacy statement published on the Licensor’s website.
- With the purchase or rental, the Customer declares its express consent that the Contract Software shall contact the license server at irregular intervals to verify the validity of the license. In this process, various data of the Customer and of the computer used, e.g., license ID and MAC Address of the computer, are transferred. The same shall apply in the case of updates and bug fixing.
Section 14 Miscellaneous
- If the parties are in an ongoing business relationship, all the stipulations of these Terms shall also apply to future contracts.
- Subsidiary arrangements, changes, or supplements to this Contract must be made in writing. It shall also apply to changes or cancellations of this clause.
- The Customer may only to transfer claims against the Licensor to third parties with the Licensor’s written consent.
- The Customer may only perform a set-off if its counter-claims are uncontested, confirmed by final judgment or accepted by the Licensor. Counter-claims of the Customer from the same contractual relationship shall also be exempted from the prohibition of set-off.
- These stipulations are subject to German law, excluding the “United Nations Convention on Contracts for the International Sale of Goods” dated April 11, 1980 (UN Sales Convention).
- The place of performance shall be the registered office of BIMm Solutions GmbH. The exclusive place of jurisdiction shall be Ulm, provided each of the parties is a trader, a legal entity or a legal entity at public law or has no general jurisdiction in Germany.
- The Contract Software can be subject to (re-)export restrictions or customs and tax-related restrictions. The Customer shall ensure compliance with all regulations in this regard in the event of resale or other forms of export.
- Both parties shall treat any business and operational matters that become known to them as confidential and treat all information related to compliance with these regulations as strictly confidential, also after the expiration of the Contract. The same applies to personal data subject to data privacy protection regulations.
- If individual provisions of these general terms and conditions of business are invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall make every effort to replace the invalid stipulation with a valid provision closest to the invalid provision’s commercial purpose.
Updated: Sontheim, June 1, 2022