1. Scope of application
1.1. These General Terms and Conditions ("GTC") are used by 3D Spark GmbH with its seat in Hamburg ("3D Spark").
1.2. 3D Spark has developed the software "3D Spark" (the "Software") and offers it under a Software-as-a-Service model ("SaaS") and as an On-Premise solution ("On-Premise").
1.3. The offer of 3D Spark for the use of the Software is directed exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) ("Customer"). "Affiliated enterprises" means affiliated enterprises of the Customer within the meaning of §§ 15ff AktG.
1.4. The basis for the legal relationship between 3D Spark and the Customer are exclusively these GTC. General terms and conditions of the Customer are excluded. Counter-confirmations of the Customer with reference to his terms and conditions are hereby contradicted.
2. Subject of the contract, functional description, conclusion of the contract
2.1 The subject of the contract is the temporary provision of the possibility to use the Software, depending on the agreement, via the Internet or "On Premise" for download against payment (each a "Service") and/or free of charge for a test period. Part of the Service as SaaS is the provision of computers and storage media operated by 3D Spark or a subcontractor commissioned by 3D Spark. As part of the On-Premise Service, the Software is made available for download for operation on the Customer's own servers.
2.2 3D Spark only owes the provision of the functions and features of the Software resulting from the service description and the adaptation of the service to the respective state of the art. 3D Spark will continuously expand the Software and the service through patches, updates and upgrades and make improvements if these (i) serve technical progress or (ii) appear necessary to prevent misuse. In addition, 3D Spark may modify the Software and/or the Service if (i) applicable law requires such modifications, (ii) the modifications are beneficial to the Customer, and (iii) the modifications are purely technical or procedural and do not materially affect the Customer. All other changes are subject to section 18 of these GTC.
2.3 Adaptation of the service to the needs of the Customer is not owed. Upgrades such as additional features, add-ons for third-party software or APIs to third-party software may be made available to the Customer by agreement and, if applicable, against separate remuneration.
2.4 Instruction of the Customer in the use of the Software or installation in the case of On-Premise shall not be owed, unless they are the subject of a separate agreement between 3D Spark and the Customer.
2.5 3D Spark sends the Customer access information and instructions that it requires for use in the agreed number of (concurrent) users (e.g. SSO or 2FA logins). The Customer is not permitted to provide this access data to third parties.
2.6 The contract between the Customer and 3D Spark for the use of the software under the validity of these GTC (“Contract”) comes into effect when the Customer registers via the online input mask on https://platform.3dspark.de/ or orders 3D Spark by email and 3D Spark confirms the registration or the offer by email to the Customer again by email.
2.7 3D Spark will perform penetration testing on new versions of the software that differ significantly in functionality from the previous version and provide the result to the Customer for review. 3D Spark will fix the bugs and vulnerabilities discovered during the penetration testing.
3. Provision of the SaaS Software, availability
3.1 The Software is hosted on a server infrastructure licensed by 3D Spark. 3D Spark makes the Software available for use at the router exit of the data centre where the server containing the Software is located (the "Delivery Point"). The Customer is responsible for the internet connection between the Customer and the data centre and the necessary hardware and software (e.g. PC, network connection).
3.2 3D Spark will make daily backups and store them for a period of seven days.
3.3 The Software is offered subject to availability. The average availability of the Software is 98.5 % on a monthly average. The decisive factor is the availability of the Software at the delivery point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to 8 hours per week and are usually carried out between 10:00 p.m. and 4:00 a.m. Central European Time, (ii) periods of unavailability due to mandatory unscheduled maintenance work necessary to eliminate malfunctions, (iii) periods of unavailability due to circumstances beyond the control of 3D Spark, in particular force majeure.
3.4 Requirement for the use of the service by the Customer is a common, state-ofthe-art browser in the current version (the "Windows" operating system and the "Chrome" browser are recommended).4. Use of the Software as On-Premise
4.1 After downloading and installing the Software, the Customer shall operate the Software on servers on the Customer's intranet. The Customer shall bear all costs associated with hosting the Software.
4.2 The Customer bears sole responsibility for data security.
4.3 For updates, maintenance, support and data exchange, an active internet connection must be provided by the Customer.5. Rights of use to the Software from 3D Spark; Contingents
5.1 This section shall apply exclusively to the granting of rights of use to the Software of 3D Spark vis-à-vis the Customer; for the granting of rights of use to third parties, section 6.
5.2 All intellectual property rights in and relating to the Software shall remain with 3D Spark unless expressly granted to the Customer under this Agreement.
5.3 Subject to successful registration for the Software and payment of the agreed fees, 3D Spark grants the Customer the non-exclusive and non-transferable right 3to use the Software for the duration of the Contract to the agreed extent as intended and in accordance with applicable laws. In particular, the Software may only be used by the named registered users in the agreed number of (concurrent) users. In the absence of an express agreement, the granting shall apply only to the country in which the Customer has its place of business. In particular, with regard to the Software the Customer may not
5.3.1 make it available to third parties outside the agreed circle of users for their business activities;
5.3.2 modify, decompile, disassemble, reconstruct or otherwise edit it;
5.3.3 use it to develop a competing software solution or help a third party to do so;
5.3.4 use it to distribute illegal and/or infringing content; and/or
5.3.5 sell, license, rent, transfer or in any other way commercially exploit the software.
5.4 In the event of a breach by the Customer of this section 5, all rights granted hereunder shall automatically revert to 3D Spark. Any further use of the Software by the Customer thereafter shall constitute copyright infringement. Furthermore, 3D Spark reserves the right to delete infringing content as well as content containing viruses or other harmful components and/or to terminate the Services provided hereunder.
5.5 The Customer may only copy the Software to the extent that this is covered by the intended use of the Software according to the respective current service description. In the case of SaaS use, the necessary reproduction includes loading the Software into the working memory on the provider's server, but not the installation, even temporarily, or the storage of the Software on data carriers (such as hard disks or similar) of the hardware used by the Customer.
5.6 After termination of the Contract, the rights of use shall end automatically without any declaration by 3D Spark being required.
5.7 The agreed monthly upload quotas do not expire within a contract year, i.e. unused uploads can be used additionally in the following months of a contract year. After the end of a contract year, unused quotas expire. If the Customer requires more uploads than originally agreed, he can change to a higher quota level as of the next calendar month without this leading to an extension of the Contract. If an advance payment has been agreed, the difference between the higher level and the fee already paid will be charged for the remaining term of the Contract.
5.8 3D Spark may use the name and logo of The Customer as references for promotional and marketing purposes, including but not limited to website listings, case studies, and public relations materials. The Customer retains full ownership of the intellectual property rights of the name and logo. 3D Spark agrees not to alter or modify the name and logo. The consent of The Customer is voluntary and can be revoked at any time by contacting 3D Spark directly.6. Rights of use of third parties (Third Party Software)
6.2 If 3D Spark makes APIs or add-ons available for third party software (see section2.3), this third party software is not covered by the granting of rights according to section 5. The Customer is responsible for obtaining the corresponding rights of use.7. Test period
If 3D Spark and the Customer agree that the Customer will initially use the Software for a test period, the following shall apply:
7.1 The test period runs two (2) weeks from the first provision of the Software, unless otherwise agreed between the parties.
7.2 During the test period, contrary to section 13, 3D Spark shall not be obliged to remedy defects and contrary to section 14, 3D Spark shall only be obliged to indemnify damages if the defect was fraudulently concealed by 3D Spark. For all other respects, 3D Spark's liability during the test period is limited to intent and gross negligence.8. Support services
8.1 Support requests can be sent to support@3DSpark.de.
8.2 Support requests are generally processed on working days (Hamburg) between 8-18h according to the service levels as set forth in Annex A.
8.3 Support requests must be reported in writing with a comprehensible description of the error symptoms, which, if possible, should be substantiated by written records, screenshots or other documentation proving the defects. The reporting of the defect should allow the reproduction of the defect.9. Cooperation and information obligations of the Customer; rights of use to data and analysis data
9.1 The Customer's employees will generate a "User ID" and password themselves within the identity and access management (IAM) provided by 3D Spark for accessing the (use of the) Service, or such "User ID" and password will be provided via identity brokering (e.g. SSO). The "User ID" and password must be kept secret and must not be made accessible to third parties. The Customer alone shall be responsible for choosing which of its accounts will be endowed with certain management rights and that the respective users have internal authority to use them.
9.2 The Customer shall ensure suitable software and hardware equipment in accordance with the information on the website and a sufficient internet connection on his premises and those of his users ("System Requirements"). The operation and maintenance of these technical requirements are the sole responsibility of the Customer.
9.3Insofar as the Customer collects, processes or uses personal data within the scope of the use of the Software, the Customer shall obtain the necessary permission from the respective person concerned. In all other respects, the Customer shall also comply with all data protection and other legal requirements.
9.4 The Customer is solely responsible for any content and data uploaded by it whileusing the Software (the "Content").
9.5 The Customer must ensure that the Content does not infringe the rights of third parties and, in particular, that the Customer or user has obtained permission from a person depicted in the Content or a person who has rights to items depicted in the Content, to use the Content.
9.6 The Customer shall hold 3D Spark harmless from and against any and all claims, litigation, losses, damages, expenses, costs (including court costs and attorneys' fees) and liabilities ("Losses") arising out of or in connection with (i) the Customer's use of the Software in breach of these GTC; (ii) any breach of any term or condition set forth in section 5.3 and this section 9 (iii) any claim that Customer's Content distributed through the Software has caused damage to a third party.
9.7 In the event of an aforementioned assertion of claims by third parties, the Customer shall provide 3D Spark with all information necessary for the examination of the claim and for the defence against such claim. The Customer shall provide the information promptly, truthfully and completely.
9.8 The Customer shall make backup copies of data transmitted to 3D Spark on its own data carriers in order to ensure the reconstruction of the data and information in the event of loss.
9.9 The contents stored by the Customer on the storage space designated for him/her within the scope of SaaS use may be protected by copyright. The Customer hereby grants 3D Spark the right to make the Content stored on the server within the scope of the SaaS use accessible to the Customer via the Internet and, in particular, to reproduce and transmit it for this purpose and to be able to reproduce it for the purpose of data backup.
9.10 The Customer grants 3D Spark the right to analyse any data uploaded by the Customer as part of the Service for the purpose of improving the 3D Spark SaaS Products in compliance with applicable data protection law. Any data that results from such analyses in anonymised form, such as statistical trend analyses, usage statistics or trained neural networks ("Analysis Data") is the property of 3D Spark and will be used to ensure technical progress and to achieve beneficial changes for the Customer. In the context of On-Premise, the Analysis Data is automatically sent to 3D Spark by the Software via the Internet. The Customer acknowledges and recognises that it has no rights to such data. 3D Spark is not able to rebuild any original Customer data by using such Analysis Data.10. Affiliated enterprises
If the parties have agreed on a group licence, the rights and obligations under these GTC also apply to Affiliated enterprises. The Customer is responsible for compliance with the contractual terms of the Affiliated Companies. In particular, 6any act or omission of an Affiliate in relation to these GTC shall be deemed to be an act or omission of the Customer and the Customer shall be liable accordingly.
3D Spark shall be entitled to verify whether the Software is being used in accordance with the provisions of these GTC. For this purpose, 3D Spark may request information from the Customer, in particular about the period and scope of use of the Software, as well as access the Software used at the Customer's premises during normal business hours and with reasonable advance notice ("Audit"). The Audit shall be carried out no more than once a year or if there is reasonable cause to believe that the right of use has been infringed (section 5), at the longest for a period of 5 years after termination of the Contract.
12.1 The Customer shall pay 3D Spark the agreed monthly or annual fee depending on the agreed scope of use (number of (concurrent) users and uploads). Unless otherwise stated, the fees do not include the statutory value added tax.
12.2 The fee shall be payable in advance and in full at the beginning of each Contract Period. The aforementioned fees are payable within ten (10) days of receipt of the relevant invoice from 3D Spark.
12.3 If in the future the Wage Index (as defined below) officially determined by the Federal Statistical Office (Statistisches Bundesamt) increases compared to the index published for the month of the conclusion of the Contract, the fees shall automatically change in the same percentage ratio at the beginning of the next calendar quarter following this point in time. "Wage Index" for the purposes of this section means the index of average gross monthly earnings of full-time employees in Germany for the economic sector of the provision of information technology services (Fachserie 16, Reihe 2.4, Gruppe J 62). If this index is no longer published, the index published by the Federal Statistical Office which most closely reflects the development of average gross monthly earnings in the aforementioned economic sector shall be authoritative.
12.4 3D Spark reserves the right to increase the fees for future Contract Periods beyond the automatic increase in accordance with section 12.3 but not before the end of the second year of the Contract. In this case, 3D Spark is obliged to communicate the increase in writing to the Customer at least eight (8) weeks before it takes effect. In the event that the Customer does not accept the price increase, the Customer shall be entitled to terminate the Contract extraordinarily with a notice period of 14 days to the end of the calendar month.
12.5 All payments due shall be made in euros and, unless otherwise agreed in writing, electronically by bank transfer to the account details provided by 3D Spark.13. Warranty
13.1The Software provided by 3D Spark essentially corresponds to the product description according to this Contract. In the case of update, upgrade and new version deliveries, the claims for defects are limited to the innovations of the update, upgrade or new version deliveries compared to the previous version status.
13.2 In principle, the statutory provisions on warranty in rental agreements apply. The regulations in § 536b BGB (knowledge of the renter of the defect upon conclusion of the contract or acceptance) and in § 536c BGB (defects occurring during the rental period; notification of defects by the lessor) apply. However, the application of § 536a (2) BGB (renter`s right to remedy defects himself) is excluded. The application of § 536a (1) BGB (lessors 's liability for damages) is also excluded insofar as the standard provides for liability without fault.
13.3 In all other respects, the provisions of the law on service contracts (§§ 611 et seq. BGB) shall apply.
13.4 3D Spark does not warrant that the Customer's business expectations associated with the use of the Software will be realised.
13.5 3D Spark does not provide any additional warranty for the Software without express confirmation.
13.6 Any claims for damages shall be subject to the limitations set out in section 14.14. Liability of 3D Spark for damages of the Customer
14.1 In the following cases, 3D Spark shall be liable for damages or reimbursement of futile expenses to an unlimited extent and in accordance with the statutory limitation periods:
14.1.1 in the event of intent and gross negligence on the part of 3D Spark,
14.1.2 in the event of personal injury for which 3D Spark is responsible,
14.1.3 for guarantees from 3D Spark and
14.1.4 in the event of claims under the German Product Liability Act (Produkthaftungsgesetz) against 3D Spark.
14.2 In cases of simple negligence, 3D Spark shall be liable in the event of a breach of material contractual obligations by 3D Spark or one of its legal representatives or agents for the foreseeable damage that was to be prevented by the breached obligation. A material contractual obligation is an obligation the fulfilment of which is a requirement for the proper performance of this contract or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the Customer regularly can rely.
14.3 Without prejudice to sections 14.1 and 14.2 the liability of 3D Spark, its legal representatives and agents is excluded, i.e. in particular for force majeure (incl. strikes, natural disasters, pandemics) and for the simple negligent breach of nonmaterial contractual obligations. Strict liability for initial defects (§ 536a (1) BGB) is excluded.
14.4 3D Spark retains the right to object due to contributory negligence on the part of the Customer (e.g. due to a breach of the Customer's duty to cooperate).15. Confidentiality
15.1 The Customer undertakes to treat all knowledge of confidential information and trade secrets of 3D Spark ("Trade Secrets") obtained in the course of the initiation and performance of this Agreement as confidential for an unlimited period of time and to use them only for the purposes of the performance of this Agreement. 3D 8Spark's Trade Secrets shall include the Services performed under this Agreement.
15.2 The aforementioned obligations do not apply to Trade Secrets that
15.2.1 were already apparent or known to the Customer at the time of their transmission by 3D Spark;
15.2.2 have become apparent after their transmission by 3D Spark through no fault of the Customer;
15.2.3 have been made accessible to the Customer by a third party after their transmission by 3D Spark in a non-illegal manner and without restriction with regard to confidentiality or exploitation;
15.2.4 developed by the Customer independently, without using 3D Spark's Trade Secrets;
15.2.5 required to be disclosed by law, governmental order or court order, provided that Customer promptly notifies 3D Spark and assists 3D Spark in defending such order or order; or
15.2.6 insofar as the Customer is permitted to use or disclose the Trade Secrets on the basis of mandatory statutory provisions or on the basis of this Contract.
The Customer shall be obliged to provide evidence for the above privileges of sections 15.2.1- 15.2.4.
15.3 With each individual, culpable breach of the confidentiality obligations contained in this Contract, the Customer shall forfeit a contractual penalty, the amount of which shall be determined by 3D Spark in each individual case at its reasonable discretion and which, in the event of a dispute, may be reviewed by the competent court. The amount of the contractual penalty in each individual case shall not exceed an amount equal to 4 times the total remuneration payable by the Customer to 3D Spark hereunder. The contractual penalty shall be set off against any other claims for damages that 3D Spark may have as a result of this infringement. Further claims for damages of 3D Spark exceeding the contractual penalty shall remain unaffected.
15.4 In the event of any conflict between this section 15 and any previous confidentiality agreement between the parties, this section 15 shall prevail.16. Data protection and data security
16.1 The Customer shall comply with the applicable data protection provisions when using the Software. In this respect, 3D Spark is not a controller within the meaning of Art. 4 No. 7 GDPR.
16.2 Where necessary, the Customer and 3D Spark shall enter into an agreement which is subject to commissioned processing and technical organisational measures (TOM) in accordance with the template provided by 3D Spark.
16.3 The data uploaded by the Customer within the framework of the use of the Software shall remain the property of the Customer and shall not be passed on to third parties.
16.4 During the term of the Contract up to one month after termination of the Contract, the Customer has the option to export his data (i.e. all data provided by the Customer as well as analysis result) in a common format. Thereafter, the possibility of surrender exists only in individual cases (insofar as the data is still available) and against separate remuneration.
16.5 3D Spark takes appropriate technical and organisational measures to ensure data security. Personal data and business-critical data are stored in a secure environment (protection by means of firewall, password protection, encryptions, etc.).
17. Contract term and termination
17.1 The Contract shall be concluded for a period of 12 months (the "Initial Term") and shall be automatically renewed for further periods of 12 months (the Initial Term and each renewal a "Contract Period") unless the Contract is terminated with eight (8) weeks' notice to the end of the respective Contract Period.
17.2 The right of either party to terminate the Contract without notice for good cause and the right to terminate the Contract in accordance with section 12.4 (special termination in the event of a fee increase) and section 18 (special termination in the event of changes to the GTC).
17.3 The Customer's notice of termination shall be sent by e-mail to service@3DSpark.de
17.4 In the event of termination of the Contract, all rights to use the Software granted to the Customer shall expire immediately and the Customer shall cease to use the Software.
17.5 The Customer can increase the number of (concurrent) users or uploads during the contract term with a lead time of two weeks to the first of a month.18. Changes to the GTC
3D Spark reserves the right to change or amend these GTC. The planned changes or amendments shall be announced to the Customer by e-mail or in writing with a reasonable period of notice before the planned entry into force. If the Customer does not object to the amended GTC in text form (e.g. letter, fax, e-mail) within six (6) weeks after receipt of the e-mail, the amended GTC shall be deemed accepted. In the event of an objection, the original GTC shall continue to apply unchanged; in this case, however, 3D Spark shall be entitled to terminate the Contract within the scope of a special right of termination with a notice period of two months from receipt of the objection to the end of a calendar month. The special right of termination does not apply in the first year of the Contract.19. Notices
Notifications from the Customer shall be sent by email to service@3DSpark.de. Important changes to the Customer data or other circumstances that affect the contractual relationship must be communicated by the Customer to 3D Spark immediately at the above email address.20. Final provisions
20.1 The Customer shall only be permitted to offset claims that are undisputed by 3D Spark or have been legally established.
20.2 The Customer may not assign or transfer any claim under this Agreement without 3D Spark's consent.
20.3 The exclusive place of jurisdiction for all disputes arising from and in connection with this Contract is Hamburg. Place of performance is the registered office of 3D Spark.
20.4 The law of the Federal Republic of Germany shall apply exclusively.
20.5 No oral ancillary agreements have been made.
20.6 Should a provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of §§ 305 ff. BGB (validity of general terms and conditions), an effective provision which comes closest to the economic intentions of the parties shall be deemed to have been agreed in place of the ineffective provision. The same shall apply in the event of a loophole. In the event of an invalid term, the legally permissible term shall apply.Annex A: Service Levels