§ 1. Scope of applicaton
(1) The following terms and conditions (T&Cs) apply for all business relationships between Lightshape GmbH & Co. KG (hereinafter referred to as “the supplier“) with its clients or buyers (hereinafter referred to as “customers”). The T&Cs only apply when the customer is a company (art. 14 BGB [Buergerliches Gesetzbuch – German Civil Code]), a legal entity under public law or a separate estate under public law.
(2) The T&Cs apply in particular to contracts relating to the manufacture of works and/or the sale of software (hereafter referred to as “work”) without taking into account whether the supplier manufactures the work themselves or purchases it from a third party (articles 433, 633, 651 BGB). The T&Cs are also valid in their respective version as a framework agreement for future contracts relating to the manufacture and/or sale of works with the same customers without the supplier having to specifically refer to them in every individual case; regarding changes to these T&Cs the supplier will immediately inform the customer.
(3) The T&Cs apply exclusively. Deviating, conflicting or supplementary terms and conditions from the customer only become part of the contract to the extent that the supplier expressly agrees to them. This approval requirement applies in every case, for example also in cases where the supplier, aware of the customer’s T&Cs, carries out the contract without reservation.
(4) Verbal arrangements or agreements reached before conclusion of the contract are fully included in the contract. Verbal subsidiary agreements do not apply.
(5) Individual agreements specifically made with the customer (including subsidiary agreements, amendments and changes) always have priority over these T&Cs. For the content of agreements of this kind a written contract or, as the case may be, a written confirmation from the supplier are decisive. With the exception of directors or authorised representatives, employees of the supplier are not entitled to reach verbal agreements which diverge from the contract or these T&Cs.
(6) Any legally-significant declarations and notifications that have to be given by the customer to the supplier after conclusion of the contract (i.e. the setting of deadlines, notification of defects, declarations of cancellation or reduction) are required to be in written form in order to be effective.
(7) The written form is considered to be postal letter, fax or e-mail.
(8) References to the validity of statutory provisions are only for the purposes of clarification. Even without such clarification statutory provisions apply provided that they are not directly amended or expressly excluded in these T&Cs.
(9) For individual agreements which diverge from these T&Cs and which require interpretation, these T&Cs are to be taken into account in the interpretation thereof.
§ 2. Conclusion of contract
(1) Offers from the supplier are subject to alteration and non-binding. This is also true when the customer is provided with catalogues/samples, technical documentation (i.e. drawings, plans, computations, calculations, references to DIN standards, other references), other product descriptions or documents – including in an electronic form – for which the supplier reserves rights of ownership and copyright.
(2) Although the documents belonging to the offer from the supplier are executed as exactly as possible, they are only approximations, provided that they are not expressly described as binding.
(3) The supplier can accept orders up to 14 days after receiving them. An effective contract only comes about with the written confirmation of the order received by the supplier or the issuing of an invoice for it, or at the very latest with the supply of the work to the customer.
§ 3. Contractual object, cancellation of an order
(1) The supplier provides in particular services in the area of visualisation and animation, in particular the graphic or animated representation of all sorts of things or their operation. The representation is based on data/materials provided by the customer. The overall impression of the work to be created is elementary. The elaboration of detailed design solutions is basically not part of the contractually-obligated service. The supplier does not test the technical feasibility of the work to be produced or whether this is in accordance with the rules of the technology.
(2) The contractual object and the scope of the contract relating to the service to be provided result from the order confirmation from the supplier in conjunction with these terms and conditions.
(3) Along with the order itself, the project list, including any enclosures and performance specifications contained in it, forms the basis for the job. The list is considered to be part of the order and the customer is obliged to provide it to the supplier. If the project requires more than 10 man-days, the customer has to schedule a timeline in consultation with the supplier.
(4) All work documents, electronic data and recordings (i.e. textures, maps, graphics, images, 3D models, setups, source data, scripts, source codes) which are made or used by the supplier to produce the work remain the property of the supplier. With the payment of the agreed fee the supplier undertakes to provide the agreed service; this, however, does not include intermediate steps on the way to reaching this end result such as sketches, drafts, production data, etc. Should the customer wish that files and data be made available, this has to be agreed in writing and remunerated separately.The supplier is not obliged to hand over procedure documentation provided that this hasn’t been agreed. Arrangements diverging from this can only be made in relation to materials for which the supplier holds the rights.
(5) Every amendment and/or addition to the order and/or parts thereof has to be in writing.
(6) In the case of the cancellation or withdrawal of orders, jobs and such by the customer, the supplier will be reimbursed for all costs resulting from this, paid for services rendered up until that point and freed from all liabilities toward third parties.
§ 4. Fees, default of payment, security
(1) The basic fee for the services of the supplier will be negotiated individually in each case and offered not including statutory sales tax. This is also true for the creation of a cost estimate or an offer by the supplier. In general, project management costs are 20 percent of the total net invoice amount (number of hours and any external costs). Anything deviating from this must be expressly agreed.
(2) Subject to an agreement which says differently, the fee for the order agreed between the parties emerges after the order confirmation from the supplier. Unless these items are explicitly stated, this fee does not contain any transport/delivery and packaging costs, insurance, customs duties, etc.
(3) The prices stated in the cost estimate and/or in the order confirmation by the supplier are valid subject to the contract data on which they are based remaining unchanged. Additional services not mentioned in the order confirmation or in a binding offer by the supplier are to be remunerated separately.
(4) Unless already listed, all prices contained in offers and orders and the amounts due based on these are subject to the addition of statutory valueadded tax to the respective applicable level.
(5) The fee is due to be transferred without deduction to the account provided by the supplier within 30 days of invoicing and delivery or, as the case may be, acceptance of the work.
(6) Corresponding to the respective performance levels, the supplier is entitled to invoice for services already provided. The supplier is also entitled to issue an appropriate advance invoice prior to the commencement of the job. Deviating agreements can be reached on an individual basis.
(7) With the expiry of the payment term (paragraph 5) the customer falls into arrears. During the period of arrears, interest is added to the fee at the relevant statutory interest rate on arrears. The right to pursue further compensation for the delay remains reserved. The entitlement to commercial interest on arrears (art. 353 HGB [Handelsgesetzbuch – German Commercial Code]) remains unaffected.
(8) In the case of an order value of EUR 50,000 or more, the supplier can require the customer to provide an unconditional, unlimited and directly enforceable surety bond from a European bank or the presentation of a payment guarantee as security for the fee.
(9) If after conclusion of the contract it becomes apparent that receipt of the fee is endangered by a lack of means on the part of the customer (for example by the request to begin insolvency proceedings), the supplier is entitled to withdraw from the contract (art. 321 BGB) subject to the legal provisions for the refusal of service and, where appropriate, the setting of a deadline. In the case of contracts relating to the production of non-fungible items (custom builds), the supplier can immediately withdraw; the statutory regulations relating to the dispensability of setting a deadline remain unaffected.
§ 5. Right of retention
(1) The customer only maintains right of set-off or retention in so far as his entitlement is legally established or undisputed. A counterclaim from the customer is only to be taken into account when particular conditions of the payment demands of the supplier seem malicious; the payment demands of the supplier are particularly to be considered as malicious if and when the customer has set off with an undisputed or legally established claim.
(2) In the case of defects in the delivery, the opposing rights of the customer according to art. 10 para. 3 sentence 2 of these T&Cs remain unaffected.
(3) A right or retention according to art. 369 HGB at the expense of the supplier is excluded.
§ 6. Additional costs, additional expenses, modification requests
(1) Travel on the part of the supplier or his agents to meetings with the customer or on behalf of the customer are subject to a kilometre allowance cost of EUR 0.35 per kilometre. Additional travel expenses (flights (economy), train (1st class), overnight stays, etc.) are to be refunded by the customer upon receipts being presented. In cases where the hotel costs exceed €100 per night, special approval is required from the customer.
(2) Unforeseeable extra expenses must be agreed upon by both parties and if necessary paid for additionally in line with art. 4 para. 1. Should the supplier and the customer be unable to reach an agreement on the amount to be paid additionally, the supplier is entitled to cancel the order in line with art. 3 para. 6 of these T&Cs.
(3) When the wishes of the customer change over the course of the ongoing contractual relationship, thus resulting in additional expenses for the supplier, the supplier is allowed to adjust the fee during the relationship to reflect this. This is to be documented in writing and particularly applies in cases where the material to be supplied by the customer as per art. 9 are not of the quality that the supplier could expect for the order (i.e. the resolution of the textures).
(4) In cases where for the performance of particular jobs external costs are incurred and these are disbursed in advance by the supplier, these costs are contained in the invoice for the fee from the supplier. Such external costs have an effect on the project management costs.
§ 7. Delivery of the work, Retention of title
(1) When not agreed otherwise, the work or data is supplied in electronic/digital form to the e-mail address provided by the customer for this purpose or by FTP to a server named by the customer. The delivery is considered to be completed when the supplier does not receive a response from the e-mail server that the delivery e-mail could not be delivered or was refused, or, as the case may be, when the data is saved fully without an error message to the server named by the customer. The customer should immediately check whether all data according to the order has been properly received, and in the case of an error in the delivery immediately inform the supplier.
(2) The delivery/performance dates and delivery/performance deadlines set by the supplier are non-binding, as long as there is no written agreement expressly stating otherwise.
(3) The supplier can – without affecting his rights in the case of default by the customer – demand an extension to delivery and performance deadlines or the moving of delivery and performance dates to reflect the period in which the customer does not meet his contractual obligations to the supplier. The supplier does not bear liability for failures to follow the agreed timetable resulting from circumstances for which the customer is responsible.
(4) The supplier does not bear liability or responsibility in cases where delivery is impossible or delayed as a result of force majeure or other factors which were unforeseeable at the time of the contract being concluded. These other factors include but are not limited to interruptions of operations, strikes or lawful lockouts, war, a lack of staff, energy or raw materials, disruptions to telecommunications and or power supply, government actions, or missing, incorrect or delayed deliveries by the customer or other provider. If such events make delivery or performance of the service significantly more difficult or impossible for the supplier, and the hindrance is not just of a temporary nature, the supplier is entitled to withdraw from the contract. In the case of temporary hindrances, the delivery or service deadlines are extended or the delivery or service dates are rescheduled to reflect the duration of the hindrance plus an appropriate restarting period. If as a result of the delay acceptance of the delivery or service cannot be reasonably expected of the customer, they can immediately withdraw from the contract with the supplier stating his reasons in writing. In this case, the customer is obliged to remunerate the supplier to the contractually agreed level for services already provided.
(5) Should the supplier fall behind schedule with a delivery or service or should a delivery or service not be possible for whatever reason, the liability of the supplier for damages is limited according to art. 11 of these terms and conditions.
(6) The supplier is entitled to provide partial deliveries and partial services provided that this is not unreasonable to the customer.
(7) All works provided by the supplier remain the property of the supplier up to the complete settlement of all claims made by the supplier resulting from the contractual relationship and any other claims which the supplier has on the customer on whatever legal grounds now or in future (including all current account balance claims).
§ 8. Acceptance
(1) In so far as an acceptance has to take place, the work is considered to be accepted once the delivery is completed and the supplier has requested the customer to accept, referring to the acceptance of delivery duties contained in art. 8 para. 1, and 12 days have passed since the delivery, or in cases where the customer has began to use the work six days have passed since the delivery. The work is also considered accepted when the customer has refrained from accepting within this time frame for a reason other than a defect which has been reported to the supplier and which makes the work unusable or significantly impairs it in some way. This is also true for interim acceptances.
(2) The work is considered to be accepted regardless of whether or not the customer has acknowledged receipt.
§ 9. Customer obligations, responsibility for customer documents, usage rights
(1) The customer has to promptly provide the supplier with all the data and documentation necessary for the performance of the contract free of charge. Acts of cooperation are at the cost of the customer.
(2) When the customer gives the supplier data, documents, samples and/or templates for use or further processing, they ensure that in doing so they have the right to do so.
(3) Regarding previously mentioned documents, samples and/or templates and the work results coming from these, the supplier is not liable for their legal legitimacy. The is also true for provisions of the UrhG [Gesetz ueber Urheberrecht und verwandte Schutzrechte – German Act on Copyright and Related Rights], the MarkenG [Gesetz ueber den Schutz von Marken und sonstigen Kennzeichen – German Act on the Protection of Trademarks and Other Signs], the UWG [Gesetz gegen den unlauteren Wettbewerb – German Act against Unfair Competition Act], the TelemedienG [Telemediengesetz – German Telemedia Act], as well as the BGB [Bürgerliches Gesetzbuch – German Civil Code] and the BGB-InfoVO [Informationsverordnung – Duty to Supply Information Ordinance] and penal provisions. In this respect, the supplier expressly states that he does not carry out any assessment of legal legitimacy. The customer releases the supplier in this respect from possible claims by third parties. This is also true in cases where the customer uses work results other than how has been agreed.
(4) Unless otherwise agreed, the customer gives the supplier complete and unlimited rights of use for the data and documents which form the basis of the visualisation insofar as their use by the supplier is necessary for the visualisation. This also includes the commercial use thereof.
§ 10. Defects
(1) Claims for defects by the buyer assume that he has fulfilled the statutory requirement to inspect and give notice of defects (articles 377, 381 HGB. Should a defect be discovered upon inspection or at a later stage, the supplier should be immediately notified in writing. The notification is considered to be immediate when it happens within 10 days, whereby the time limit is considered to have been observed with the notification having been dispatched within this time period. Independent of this requirement to inspect and give notice of defects, the buyer should provide written notification of obvious defects within 12 days of delivery of the work, whereby the time limit in this case is also considered to have been observed with the notification having been dispatched within this period. If the customer fails to properly inspect and/or give notice of defects, the supplier is not liable for the unreported defects.
(2) Should the defect in the work results be based on the quality of the materials provided by the customer as part of his duty to cooperate according to art. 9, this is not a case of warranty but is rather covered by art. 6 para. 3.
(3) The supplier is entitled to make the remedying of the defect due conditional upon the buyer paying the fee owed. However, the customer is entitled to keep back part of the fee appropriate to the level of the defect.
(4) The expenses incurred for inspection and supplementary performance, in particular transport, infrastructure, labour and material costs, are covered by the supplier when a defect is found to be actually present. Should it turn out that a request for remedy of a defect by the customer is unjustified, the supplier can request that the resulting costs be covered by the customer
(5) If the remedying fails or an appropriate deadline for the remedying set by the customer passes without success or can be dispensed with according to the statutory provisions, the customer can withdraw from the contract or reduce the fee. In the case of an insignificant defect there is no right of withdrawal. The supplier has three attempts to properly remedy the defect, unless extraordinary circumstances with the customer justify fewer attempts.
(6) Entitlements on the part of the customer to compensation or reimbursement for unsuccessful expenditures only exist according to art. 11 of these T&Cs and are otherwise excluded.
§ 11 Other Liability
(1) In so far as nothing different is contained in these T&Cs or any subsequent provisions, the supplier is liable for breach of obligations according to the relevant statutory provisions.
(2) The supplier is liable to pay damages – regardless of the legal reason – in cases of intentional and gross negligence. In the case of simple negligence the supplier is only liable for a) damage from the loss of life, bodily injury or injury to health, b) damage from the breach of an essential contractual obligation (an obligation whose fulfilment makes the proper execution of the agreement possible at all and on whose observance the contractual partner regularly relies and may rely, a so-called cardinal obligation); in this case, however, the liability of the supplier is limited to compensation for foreseeable, typically-occurring damages.
(3) The supplier is liable to the customer for damage to provided documents, samples and/or templates caused through the fault of the supplier or his agents, but only to the amount of their respective material value.
(4) The liability limits resulting from para. 2 do not apply in cases where the supplier has maliciously concealed a defect or has provided a guarantee for the quality of the goods/work.
(5) In so far as the liability of the supplier is excluded or limited, the same is true for their staff, employees, workers, representatives and agents.(6) In the case of a breach of duty which does not consist of a defect, the customer can only withdraw or cancel when the supplier can be held responsible for the breach of duty. A free right of cancellation for the customer (in particular according to articles 651, 649 BGB) is excluded. Otherwise the statutory requirements and legal consequences are valid.
§ 12 Statute of Limitation
(1) Claims for defects lapse 12 months after delivery of the work or the acceptance thereof, except when the defect was maliciously concealed or a guarantee for the characteristics of the object applies.
(2) The above mentioned period of limitation for the contract for work and purchase rights also applies to claims for damages from the customer based on a defect in the work, except where the application of the regular statutory limitation (articles 195, 199 BGB) would lead in individual cases to a shorter limitation period. Otherwise, for claims for damages by the customer according to art. 11 the statutory limitation applies.
§ 13 Copyright, Utilisation rights to the work
(1) All work results and works by the supplier, in particular all spoken and written information, designs, computer programmes, scripts, codes, music, photography, including work created in a manner similar to photography, film as well as scientific and technical presentations such as drawings, plans, maps, sketches, tables and three-dimensional renditions are personal intellectual creations whether as a draft or a final version and are protected on the supplier’s behalf by the UrhG [Gesetz ueber Urheberrecht und verwandte Schutzrechte – German Act on Copyright and Related Rights]. All pieces of work produced by the supplier are considered personal intellectual creations protected by the Copyright Act, the provisions of which are considered valid when the threshold of originality (under German law Schoepfungshoehe or “level of creation”) required according to § 2 of the Act is not reached.
(2) The customer assures the supplier to only use the work results and works within the framework of the contractually agreed use.
(3) Upon receipt of payment of the fee in full, the supplier gives the customer the right to use a work result and/or work from the supplier in the particular agreed manner. Every other or further use, processing and/or sale requires prior written consent from the supplier. This is particularly true when the work results of the supplier are to be used as a template for other works and/or changes are to be made to the work results. In this case, the supplier has the right to demand an appropriate fee for his consenting to a use beyond what had been agreed. However, different arrangements can be agreed upon.
(4) The acquisition of usage rights to work results or works which are only partly completed is excluded, cf. Art. 3 para. 4.
(5) Regardless of the aforementioned provisions, the supplier reserves the right to use the work results and work created by him as references for selfpromotion.
(6) In so far as rights of use are granted, these are to be regulated in an individual agreement.
§ 14 Non-disclosure
(1) The customer is required to treat all commercial and technical details which become known to him through his relationship with the supplier as trade secrets.
(2) Unless explicitly stipulated or marked as secret, the information provided to the supplier is not considered sensitive. In so far as third parties are engaged by the supplier for reasons of service provision, the supplier is entitled to make customer information accessible to these third parties when this is required for purpose of the contract.
(3) This nondisclosure obligation continues to apply after the execution of the contract and remains in force as long as the know-how and other secret information is not generally known and the relevant patents or other industrial property rights apply.
§ 15 Applicable law and place of jurisdiction
(1) For these general terms and conditions and all legal relationships between the supplier and the customer the law of the Federal Republic of Germany applies excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods. Requirements and effects of the reservation of title according to art. 7 para. 6 are subject to the law of the respective place of the subject matter, provided that under that law the favouring of German law would not be permissible or valid.
(2) The registered place of business of the supplier in 70565 Stuttgart, Germany is the sole place of jurisdiction for all disputes, including international ones, arising directly or indirectly from the contractual relationship. However, the supplier is also entitled to file suit at the customer’s general place of
State of the T&Cs: 12.07.2017