Terms & Conditions

Terms of Service HMK GmbH

1. Scope of application

Unless otherwise agreed, the following General Terms and Conditions apply to the business relationship between HMK GmbH, Delaware Avenue 23-25, 66953 Pirmasens (hereinafter referred to as HMK) and the customer. General terms and conditions of the customer shall not apply to the contractual relationship, even if HMK does not expressly object to this.

These General Terms and Conditions contain in particular provisions for the licensing of know-how and corresponding training (Item 3), for the licensing of standard software (Item 4), for individual software developments (Item 5), for the provision of scanning facilities (No. 6), for the provision of three-dimensional scanning by HMK (point 7), for VR services, ie Virtual reality (point 8) and for the distribution of goods by the customer via HMK's onlineshop (point 9).

Insofar as the respective contracts contain deviating regulations from these GTC, the individual contracts shall take precedence.

2. Conclusion

Unless otherwise agreed, a contract is concluded on the basis of a written offer from HMK and acceptance by the customer.

3. Special provisions on Know-How Licenses and related training

3.1 Contract

(1) HMK (3D shoe design in the past) has many years of experience in the area described in the contract. HMK's technical and constructive and procedural skills are largely operational and should be made available to the customer as contractually compliant know-how.

The know-how is described for identification in the service description. The details will be derived from the material provided or made available as part of the training specified in clause 3.3, which is also expressly part of the contract (hereinafter "know how").

(2) In addition, HMK is the sole owner of various IP applications. These protect parts of the know-how pursuant to para. 1.1.

(3) The know-how referred to in paragraphs 1 and 2 as well as the contract protection rights are collectively referred to below as "contract rights".

"Contractual products" in the sense of this agreement are all products in which the know-how is used, in particular moldings, soles and shank blanks. A use of the Know Hows exists even if this is only partly used, if this use covers secret components. Contractual products are also those products in which at least one claim of a contract protection right is used literally or in an equivalent form or in an indirect manner.

3.2 Services of HMK, especially license

(1) HMK grants the customer a non-exclusive license to contract for the production (exclusively by the customer), the use and possibly the distribution of contract products, unless otherwise agreed time-limited for a period of five years from the contract -drawing.

(2) HMK reserves the right at any time to continue to use the contract rights for any purpose and in any arbitrary form, including itself, but also including the right to grant further licenses to third parties.

(3) The customer is not entitled to transfer rights under this license agreement to third parties and / or to legally or economically linked companies. In particular, he is not entitled to grant third licenses to the contract rights (sub-licenses). Third parties are non-affiliated companies of the customer i.S.d. § 15 AktG, insofar as these affiliated companies are in the same way obliged to maintain secrecy in accordance with the provisions of this contract.

All this does not prevent the customer from passing on the finished contract products (bars or corresponding 3D file, i.st. STL file) created using the contract rights.

(4) HMK intends to make available to the customer further developments / additions ("further developments") to the contract rights during the term of this contract. Statements on the content and dates of making available such further developments can not be made because they are new developments or further developments. Developments can be purchased by the customer against payment. Insofar as this happens, the further developments become part of the know-how and are automatically also part of the contract without additional express inclusion. 3.1, para. 1. They are to be kept secret in the same way in particular.

(5) HMK offers support for the contract rights without any additional compensation, the scope of which is defined in detail by HMK. At present (Monday through Friday, excluding public holidays at the headquarters of HMK) a supportive consultation is possible in the period from 08:00 to 10:00, especially by telephone or if necessary by remote access (TeamViewer). The advice can only be used by persons trained by HMK. The customer must provide the technical requirements for a remote access at his own expense. HMK points out that it is not itself is not the provider of the software "TeamViewer" and their security can not guarantee.

(6) For the meaningful use of contract rights, the use of commercially available software offered by third parties is required. Some steps in the use of the contract rights have been made by HMK using a customized standard software, the software "3DforShoes" (hereinafter "3DforShoes"). This software is not mandatory, but to the knowledge of HMK can also be replaced by a similar standard software, which, however, would also have to be adjusted accordingly. The customer must - if he does not immediately desire a different software solution instead of "3DforShoes" - from "3DforShoes" the number of licenses required for him at the provider fee. The acquisition of "3DforShoes" is not the subject of this agreement. In addition to 3DforShoes, additional standard software is required.

The contract rights are also exploited by using another software development program from HMK with the working title ("MatchMe"), cf. Para. 4.

3.3 Training / Transfer Know How

(1) Once HMK trains the agreed number of persons to be designated by the customer with appropriate prior knowledge in the course of a training in the premises of HMK. As part of the training, materials are handed over to the customer or made accessible by password protection, becoming part of the contract in accordance with clause 3.1, paragraph 1.

The customer confirms the completion of the training as well as the receipt of the materials or the accessibility password in writing.

(2) If the customer wishes further training and support measures, the parties will make a separate agreement on this.

(3) HMK is entitled, subject to other agreements, to carry out the training together with employees of different customers. The additional professional exchange also between the employees of different customers is basically in the interest of the customer. From HMK's point of view, it is nevertheless in the customer's best interest to once again expressly inform their own employees of the confidentiality of any new developments in the customer's company and to maintain compliance with the relevant confidentiality.

3.4 Quality Agreement

(1) When using the know-how, the customer will strictly adhere to the minimum standards set by HMK (in particular with regard to the employee's expertise and the efficiency of the EDP). Only in this way can it be ensured that the contract products also have the desired quality.

(2) HMK may terminate the license agreement for good cause if the customer deviates from the minimum standards and violations of the minimum standards continue after a period of 60 days, despite a written warning to comply with the minimum standards.

3.5 Stock of contract rights

(1) HMK will endeavor to maintain contract rights and protect them as know-how. This also includes maintaining the intellectual property rights at its own expense after grant. HMK will conduct its ongoing grant proceedings properly and at its own expense.

(2) The customer is aware that for the protection of the know-how its strict confidentiality is indispensable. He will therefore not do or tolerate in his sphere of influence, which could jeopardize the existence and secrecy of the know-how. Excluded from this are only those actions that are expressly permitted under this contract (including its annexes).

(3) HMK will defend the contract protection rights at its own expense against attacks by third parties, in particular against appeals, actions for annulment and cancellation requests. To the extent required by the circumstances of the nullity procedure, HMK shall be entitled to grant the invalidator a simple license to the relevant contract protection right at HMK's discretion and legal and economic conditions. If, in the dispute with the third party, the need to limit a contract protection right arises, HMK is entitled to do so.

(4) The contracting parties shall inform each other immediately in writing of any breach of contract law that becomes known to them. There is no obligation on HMK to act against infringements by third parties.

(5) HMK is entitled to terminate the license agreement for good cause if the customer attacks the validity of a contract protection right himself or by a third party. The same applies if the customer attacks the secret or essential character of the transferred know-how.

In the event of termination by HMK without notice pursuant to this paragraph, Customer shall also be required to pay a penalty equal to four times the compensation for a five-year (or, if no longer offered, permanent) right of use of the whole in connection with the property right, HMK customers can pay for licensing know-how in accordance with HMK's current price list. It is refuted that the entire know-how offered by HMK is related to intellectual property rights. HMK reserves the right to claim compensation beyond this due to this paragraph, whereby a contractual penalty would be counted.

3.6 Commitments by HMK / Restriction of Commitments

(1) HMK declares that it is not aware that know-how is encumbered with rights of third parties. Also, HMK is not aware that the know-how would be dependent on intellectual property rights of third parties.

(2) HMK assures that the materials provided or made available to the customer are the result of extensive development work. However, HMK can not assume any warranty regarding the correctness and completeness of the submitted technical data and calculations. in particular, since the diversity of all technical executions in, for example, inguinal, soles, and shaft development in the shoe industry can not be completely covered. It is a new, creative technology that expects further improvements, developments and refinements. The customer had the opportunity to convince himself of the performance of the contract rights comprehensively. Nevertheless, HMK can not accept liability for the technical feasibility and technical or commercial suitability of the contract rights. Also HMK does not guarantee a protection capacity of the contract protection rights. Likewise, neither a certain scope of protection nor a certain economic value, including readiness for manufacturing, are guaranteed. HMK also assumes no liability for the case if the contractual protection rights or the know-how should interfere with the rights of third parties. Moreover, HMK accepts no liability for the fact that similar know-how - irrespective of the know-how under contract here - can also be available from third parties. In particular, the customer is aware that the contract rights do not contain any data on any certification or similar. possibly required studies included.

(3) The parties agree that HMK, without prejudice to its obligations under clause 3.5 and the assurance in clause. 3.6, para. 1 can not guarantee that the know-how remains confidential or that the contractual protection rights are valid for the entire duration of the contract. If the know-how becomes obvious in a different way than through a behavior of HMK, this does not affect the continuance of the contract and does not constitute an important reason for an extraordinary termination. A possible omission of a contract protection right is not relevant for the existence of the contract, because Although the customer acquires license rights to the contract protection law, these are not remunerated separately.

(4) HMK has developed the contract rights for Germany and Germany. HMK can not make a commitment as to whether the contract rights in other countries may be used without restriction.

3.7 Liability

(1) The customer is aware that HMK provides the training according to 3.3 of this contract as a contractual service. HMK can not guarantee the success of the training. With regard to the implementation of the training, HMK is otherwise liable in accordance with the statutory provisions.

(2) For the rest, in particular with regard to the contractual rights, HMK accepts no liability for other material defects and defects of title, unless otherwise stated in section 3.6.

3.8 Confidentiality

(1) The customer may not use any information relating to the know-how under this agreement (including own, possibly self-produced documents containing the know-how or any parts thereof) for purposes other than the execution of the license, without the written consent of HMK use, especially not in the use of competing technologies. The customer is entitled to use the subject of the contract also using other software.

He will only prepare the number of copies of the information necessary for the production of the contract products, mark them clearly visible as confidential and record the number of copies and their recipients in writing and inform HMK thereof upon request.

Furthermore, the parties undertake to protect the data stored in their data processing systems by means of state-of-the-art technical measures in order to prevent third-party access from outside as well as unauthorized use of the data by otherwise authorized employees.

The parties acknowledge that all information provided under this License Agreement, including copies thereof, constitutes trade secrets and is the property of the transferring party.

In addition, each party will treat all information, data, information and other facts that are demonstrably confidential as received under this license agreement strictly confidential and will not disclose them to third parties. The Parties will use this information only for the purposes provided for in this Agreement. The obligation, including the obligation to maintain secrecy after the end of the contract, is also mandatory for the employees, contractors and suppliers involved in the manufacture and distribution of the contract products. A transfer to third parties will only be made to the extent that this is necessary for the implementation and commercial use of the know-how.

(2) The secrecy obligations according to the above statements also extend beyond the term of this license agreement, as long as secret information has not become apparent.

(3) The above obligations do not apply to any copies of protective rights provided by the customer. Furthermore, they do not apply to information, as far as it can be proven, in whole or in part

the receiving Party were already known at the time of their transmission or
at the time of the communication were already publicly known or
become known after notification without the participation of the receiving party; or
the party received by a third party who is not subject to any direct or indirect secrecy obligation to the other party, or
were independently developed by the receiving party.
which must be published in accordance with the law, official order or court decision, provided that the publishing party informs the contract partner immediately about this and supports him in the defense against such decrees or decisions
insofar as the contractual partner is permitted to use or pass on the trade secrets on the basis of mandatory statutory provisions or on the basis of this contract.
Proof must be provided by the party relying on this exemption.

(4) In the event of termination of this license agreement, the customer will destroy all secret information, including all copies (electronic or otherwise) of documents containing such information, or give HMK and confirm the completeness of the destruction or transfer in writing. In the same way, the customer will reclaim any copies that have been transferred from his sphere to third parties. Excluded from the obligation under this paragraph are only those documents which, due to mandatory legal provisions, must be kept by the customer or a third party or which have been withdrawn from the customer's access because they have become part of official documents.

(5) If the confidentiality obligation is violated by the customer, the customer shall be entitled to a contractual penalty in the amount of threefold remuneration for a five-year (or if this is no longer offered, permanent) right of use of the know-how offered by HMK customers for licensing. speaking the then current price list of HMK to pay. The assertion of further claims for damages by HMK based on this paragraph remains reserved, whereby the contractual penalty would be counted.

3.9 Contract term / termination

(1) This contract is valid from the time of signing and is indefinite.

(2) The contract can be terminated by HMK only for good cause.

If HMK is allowed to terminate for cause, HMK may choose to discontinue support, access to new updates, and / or educational materials. Any current payment obligations remain unaffected, and this does not constitute a right of termination for the customer.

(3) The customer may terminate the contract at any time with a notice period of three months, but for the first time after five years.

4. Special conditions for the licensing of standard software

4.1 Contract

(1) The customer acquires from HMK as far as agreed a software in the offer / contract described version (hereafter "software"). If agreed, HMK will provide an application documentation for the contractual version of the software (software and possibly the application documentation hereinafter also "subject of the contract").

(2) The source code of the software is not part of the subject matter of the contract.

(3) For the quality of the delivered software, the existing specification is definitive. A further condition of the software does not owe HMK. In particular, the customer can not derive such an obligation from other representations of the software in public statements or in advertising, unless HMK has expressly confirmed in writing the condition beyond that. In particular, the customer was given the opportunity to get to know the software under real-life circumstances in a live test. The software was developed for use in Germany. HMK can not make a commitment as to whether the software may be used in other countries. The customer confirms that the software is in accordance with the contract.

4.2 Scope of the rights of use / support

(1) HMK grants the customer a simple, i.d.R. limited period of use of the subject of the contract for single and possibly multi-user use, but only for the agreed between the parties destination country in which the subject of the contract should be used. Without express agreement, the right of use is granted exclusively for the country in which the customer has its place of business. This right of use may at the same time be exercised only by a maximum of the number of natural persons agreed between the parties. In the case of multiple use, para. 9 para. 2.

(2) If the software is related to a know-how license in accordance with section 3, the customer may only use the object of the contract in connection with the HMK know-how provided in a separate agreement and not use it for third parties. Incidentally, he may only use the software for the purpose of processing his internal business transactions and those of companies that are in the same business with him. of § 15 AktG ("Group companies"). In particular, (i) a data center operation for third parties or (ii) the temporary provision of the Software (eg as an Application Service Providing) for non-Group companies or (iii) the use of the software to train individuals who are not employees of the customer or its affiliated companies are only permitted with the prior written consent of HMK. Commercial re-letting is generally prohibited.

(3) Duplication of the software is only permitted to the extent that this is necessary for the contractual use. The customer may make backup copies of the software to the necessary extent according to the rules of the technology. Backup copies on removable media are to be marked as such and provided with the copyright notice of the original data carrier.

(4) The customer is to changes, extensions and other revisions of the software i.S. of § 69c No. 2 UrhG only to the extent that the law permits such an indispensable. Before the customer eliminates errors himself or through third parties, he first allows HMK to attempt to correct the error. The customer is not entitled to such processing rights own exploitation and exploitation rights - beyond the rights of use granted under this contract.

(5) The customer is only entitled to decompile the software within the limits of § 69e UrhG and only if HMK has not provided the necessary data and / or information after a written request with a reasonable deadline to ensure interoperability with other hardware and software make.

(6) If HMK transfers to the customer in the context of repair or maintenance supplements (eg Pat-ches, additions to the user manual) or a new edition of the subject of the contract (eg update, upgrade), the former contracted objects ("legacy software") replaced, they are subject to the provisions this agreement.

HMK intends to offer the Customer further developments / additions to the subject matter during the term of this Agreement. Statements on the content and timing of making such updates available can not be made because they are new developments or further developments. The customer can purchase the updates for a fee. If the customer refers to such an update, the customer's authority under this contract shall lapse without HMK's explicit request for return in respect of the legacy software as soon as the customer uses the new software productively. However, HMK grants the customer a three-month transitional phase during which both versions of the contractual items may be used side by side. The right of the customer to pass on the subject matter of the contract (no matter which version) to third parties according to para. 4.5, para. 1 remains unaffected.

(7) Reproduction or alteration of the application documentation is - subject to para. 4.2 para. 4 (as far as the documentation is integrated in the software) - not permitted.

(8) HMK offers support for the software without additional compensation. The details HMK may at its discretion. Currently, supportive advice is available by phone or remote access ("TeamViewer") from 8:00 am to 10:00 am (Mondays to Fridays, except on public holidays at the headquarters of HMK). The customer must provide the technical requirements for a remote access at his own expense. HMK points out that it is not not itself provider of the software "TeamViewer" and can take over for their security is no guarantee.

4.3 Installation requirements / training

(1) For the installation of the software, the minimum requirements specified in the description of the software, in particular with regard to the hardware and software environment, must be available to the customer.

(2) If agreed, a training of the persons to be named by the customer with appropriate prior knowledge usually takes place in premises of HMK.

4.4 Protection of the software

(1) Unless the customer is explicitly granted rights under this contract, all rights to the subject matter of the contract (and all copies made by the customer) - in particular the copyright, the rights to or inventions as well as technical property rights - are exclusive to HMK. This also applies to processing of the contractual items by HMK. The property of the customer to the respective data media of such copies remains unaffected.

(2) The customer will carefully store the provided contractual item in order to avoid misuse. He will make the contractual object (whether unchanged or reworked) accessible to third parties only with the prior written consent of HMK. Third parties are not the employees of the customer and other persons who stay with the customer for the contractual use of the contractual objects. Para. 4.5 remains untouched.

(3) The customer is not permitted to modify or remove copyright notices, license plates and / or control numbers or marks from HMK. If the customer modifies or processes the subject matter of the contract, these notes and marks shall be included in the amended version of the subject matter of the contract.

(4) The customer keeps a record of the copies of the subject matter of the contract and their whereabouts made by him according to the contract and gives HMK information and insight on request.

(5) If the customer gives storage media or other hardware on which the subject of the contract is stored (in whole or in part, unchanged or reworked), (i) to third parties, without any disclosure pursuant to para. 4.5 or (ii) if he gives direct possession, he shall ensure that the stored object of the contract is completely and permanently deleted beforehand.

4.5 Transfer

(1) The customer may only transfer the object of the contract to a third party in a uniform manner and under the complete and final abandonment of his own use of the subject matter of the contract. The temporary or partial transfer of use to third parties is prohibited, regardless of whether the subject of the contract is left in physical or intangible form. The same applies to gratuitous release.

(2) The transfer of the subject matter requires the written consent of HMK. The latter grants consent if (i) the customer assures HMK in writing that it has forwarded all original copies of the contractual items to the third party and has deleted all self-made copies, and (ii) the third party agrees in writing to HMK with the usage and service policies agreed here Terms of submission explained.

4. 6 Cooperation and information obligations of the customer

(1) The customer has informed himself about the essential functional features of the software and bears the sole risk of whether it meets his wishes and needs; He asked for advice before concluding a contract with HMK or expert third parties, in particular during the live test.

(2) The establishment of a functional and adequately dimensioned hardware and software environment for the contractual objects is the sole responsibility of the customer.

(3) The customer thoroughly tests the software after its delivery, but before its use as part of a commercial use for its own protection, for its usability in the existing hardware and software configuration. This also applies to software that he receives as part of any warranty and care.

(4) The customer observes the instructions given by HMK for the installation and operation of the software. He will also take into account any information given by HMK later.

(5) The customer grants HMK access to the subject matter of the contract at their request for troubleshooting.

(6) HMK or a third party nominated by HMK is entitled to check whether the contractual objects are used in accordance with the provisions of this contract. For this purpose, he may request information from the customer, in particular about the period and scope of use of the subject matter of the contract, and inspect the books and documents as well as the hardware and software of the customer. HMK or a third party designated by HMK is to be granted access to the customer's business premises during normal business hours.

(7) The customer shall take reasonable precautions in the event that the software does not work in whole or in part properly (for example, by daily data backup, fault diagnosis, regular review of the data processing results).

4. 7 Delivery and service time

(1) Unless otherwise agreed, the software will be delivered in the agreed or otherwise in the version presented in the live test.

(2) HMK will provide the delivery (after training according to separate agreement) by giving the customer one (1) program copy of the software at the option of HMK either by way of download or on machine-readable data carrier.

(3) For the adherence to delivery dates and the transfer of risk, the time is decisive for physical dispatch, in which HMK hands over the software to the transporter. If the software or the documentation is damaged or destroyed after passing of risk, HMK will provide a replacement for copying and shipping costs. Sentences 1 and 2 shall apply mutatis mutandis to deliveries within the framework of supplementary performance.

4. 8 Inspection and Rejection

In relation to all deliveries and services of HMK, the customer undertakes to investigate and to give notice of defects in accordance with § 377 HGB.

4. 9 Defects in title and title, other malfunctions, statute of limitations

(1) HMK warrants according to the rules of the purchase right for the agreed condition of the contract objects acc. Para. 4.1 para. 3 and that the use of the contractual objects in the contractual scope by the customer does not conflict with the rights of third parties. However, the guarantee of the freedom of the subject-matter of the rights of third parties only applies to the destination country agreed between the parties in which the objects of the contract are to be used. Without express agreement, the warranty applies to the country in which HMK has its registered office.

(2) HMK initially warrants for material defects by supplementary performance. To this end, he leaves the customer at his option a new, flawless software release or eliminates the defect; Remedying a defect also applies if HMK shows the customer reasonable possibilities to avoid the effects of the defect.

In case of legal defects, HMK initially warrants supplementary performance. At his discretion, he provides the customer with a legally flawless possibility of using the contract objects supplied or exchanged or modified equivalent contractual objects.

HMK is entitled to make the subsequent performance dependent on the customer having paid at least a reasonable portion of the remuneration.

(3) The customer is obliged to take over a new software version if the contractual scope of functions is retained. The rights of the customer acc. § 439 BGB remain unaffected.

(4) If the supplementary performance fails, the customer is entitled to set a reasonable grace period for remedying the defect. He must expressly and in writing point out that he reserves the right to rescind the contract and / or demand damages in the event of another failure.

Compensation or reimbursement of futile expenses due to a defect HMK makes in the context of the. 9 defined limits. HMK can after expiry of a gem. Sentence 1, the customer must exercise his rights resulting from the expiry of the deadline within two weeks of receipt of the request. After the deadline, the right to vote is transferred to HMK.

(5) If HMK provides troubleshooting services without being required to do so, HMK may demand compensation in accordance with its usual rates. This applies in particular if a defect can not be proven or is not attributable to HMK. Compensation is also the extra work on the part of HMK, which arises from the fact that the customer according to his obligations. Para. 4.6 has not complied properly.

(6) If third parties claim that the customer is prevented from exercising the usage rights granted to him by contract, the customer shall inform HMK immediately in writing and comprehensively. He hereby authorizes HMK to bring actions against third parties in and out of court alone. If the acquirer is sued, he agrees with HMK and takes action, especially acknowledgments and comparisons, only with his consent.

HMK is obliged to defend the claims at its own expense and to indemnify the customer from all costs and damages associated with the defense of claims, insofar as these are not based on its unlawful conduct.

(7) The customer can only derive rights from other breaches of duty by HMK if he has reported them to HMK in writing and granted him a grace period to remedy the situation. This does not apply if a remedy does not apply according to the nature of the breach of duty. For damages or reimbursement of expenses in vain the limits set out in clause 8 apply.

(8) The limitation period for all warranty claims is one year and begins with the delivery or provision (and notification of the customer thereof) of the subject matter of the contract; the same period applies to other claims of any kind to HMK.

In case of intent or gross negligence on the part of HMK, in case of fraudulent concealment of the defect, in case of personal injury or legal defects i.S. § 438 para. 1 no. 1a BGB and in the case of guarantees (§ 444 BGB), the statutory limitation periods apply, as well as in the case of claims under the Product Liability Act.

4. 10 End of the right of use of the contractual objects

In all cases of the termination of his right of use (for example, by rescission, subsequent delivery), the customer immediately surrenders all deliveries of the contractual items and deletes all copies, unless he is legally obliged to retain them for a longer period. Para. 4.2, para. 6 remains unaffected. He insures the completion in writing to HMK.

5. Special provisions for individual software developments

5.1 Contract

(1) The subject of the contract is the development of individual software (including individual modules, components or an individual adaptation of software as well as any parameterization within the scope of given setting possibilities of an existing software or a customizing) on the basis of individual specifications of the customer, which are circumscribed in a specification drawn up by the customer and agreed in a jointly agreed specification sheet (hereinafter referred to as "software development"). Software development may be exclusive or non-exclusive for the customer, as agreed.

(2) The subject of the contract may also be any movable items, such as data carriers for software development or descriptions / instructions / application documentation.

5. 2 Participation of the customer

(1) The software is created according to the special requirements of the customer of HMK. The customer provides a dedicated project team for the support of the required work in a temporally and qualitatively appropriate extent. This duty is primary duty.

(2) The customer will continue to adequately describe the requirements for software development within the framework of a specification, on the basis of which HMK will develop the specification sheet that defines the specification of services.

(3) The customer ensures that the environment in terms of hardware and software, in which the software development is used later, corresponds to the descriptions in the specifications or specifications. He is aware that a different environment can lead to malfunctions and that software development is aimed at the agreed environment.

(4) The software development may refer to third party software that is not from HMK. In this case, the customer will ensure that the change of the software does not violate the license conditions of the owner of the rights to the third-party software. He will independently obtain all necessary rights and prove these to HMK on request. This too is a primary duty.

Should a third party claim against HMK for breach of its rights in or in connection with the Third Party Software, Customer will indemnify HMK from all claims, including the costs of reasonable legal defense. The Customer will continue to support HMK in defending against such claims by providing all necessary information and documentation. An indemnification of any costs or damages of HMK in the context of an agreement with the third takes place only to the extent that the customer has agreed to the agreement in advance.

(5) In addition, there are other obligations to cooperate, i.a. in the context of project management and acceptance.

5. 3 Changes to the subject of the contract (change requests)

(1) The customer is entitled to demand reasonable changes to the software development until acceptance. HMK will accept such changes as far as they are reasonable. The compensation and any deadlines for the implementation of the software development will be adjusted accordingly.

The changes to be made and the related extension of deadlines will be set out in an amending protocol, which will become part of the contract.

(2) The customer is aware that the consideration of such change requests with respect to their implementability and the effects of their implementation also requires time, which must be borne by the customer, subject to a different agreement.

5. 4 Rights transfer

(1) With the full payment of the partial amounts due up to and including acceptance, the customer acquires ownership of all movables owed under the contract. The free use of delivered goods before acceptance is permitted.

(2) The customer acquires the simple, non-exclusive, unlimited right to use the software development in the object code in the defined scope in the entire group of companies in a non-exclusive development with the full payment of the (eventually) due for acceptance partial amounts. In addition, the rules of §§ 69 aff apply. UrhG in the sense of acquiring a one-time license in the long term. The free use for test purposes is also allowed before acceptance. The source code is not the subject of the transfer of rights.

Customer may use the Software only for the purpose of processing its internal business transactions and those of such entities as have i.S. of § 15 AktG ("Group companies"). In particular, (i) data center operations for third parties or (ii) the temporary provision of the Software (for example, as Application Service Providing) for non-Group companies are only permitted with the prior written consent of HMK. Commercial leasing is generally prohibited.

Duplication of the software development is only permitted to the extent that this is necessary for the contractual use. The customer may make backup copies according to the rules of technology by the software development to the necessary extent. Backup copies on mobile data carriers are to be marked as such and provided with the copyright notice of the original data carrier.

If HMK provides the Customer with any enhancements (such as patches, additions to the Operator's Manual) or a re-release of the Software Development (such as update, upgrade) that supersedes the previously-released software development, HMK shall be subject to the terms of this Agreement.

(3) In the event of an exclusive development agreement, the customer acquires, with the full payment of the partial amounts due up to and including the acceptance of all the purchased software, in particular the comprehensive, exclusive use of all known types of use. In particular, the copying, modification, editing and distribution in on- and offline media extending, indefinite right to use in object and source code. The free use for test purposes is also allowed before acceptance. The customer is aware that an exclusive transfer of rights with regard to customizing / parameterization is not possible and that he only acquires non-exclusive rights pursuant to para. 2 in this respect.

(4) If the customer sells the software in whole or in part, relocated by a local move or a conversion, he will show this to HMK. Insofar as the customer wishes to be assisted in the local relocation by HMK, this is possible for a fee.

5.5 Project Management

(1) The customer will nominate a project manager and his deputy as well as an "escalation manager" at the latest upon conclusion of the contract (project team). If one of the aforementioned persons is prevented in the foreseeable, inappropriately long time or leaves the company, a substitute person must be appointed in good time.

(2) The Project Managers and their Deputies are authorized to receive all declarations relating to this Agreement. They prepare the necessary decisions of their companies quickly and, if they do not have the right to represent themselves, ensure that the decision is made swiftly. The "escalation manager" is entitled to sole representation and is to make upcoming decisions himself.

(3) The parties agree that, on the basis of a specification drawn up by the customer, which must accurately reflect the customer's requirement, a functional specification of HMK is drawn up and jointly released. This contains a description of the desired software development as well as regulations regarding time requirements and development milestones.

(4) If necessary, the parties will agree on a more detailed project management procedure.

5. 6 Passage of risk

The risk of accidental destruction of the work passes to the customer with the acceptance. However, the customer ensures before this time for technical and organizational measures for a security of the asset (custody).

5.7 Decrease

(1) Prior to acceptance, the customer is only obliged to confirm the receipt of goods and work or services. Any acknowledgments of receipt do not concern the proper fulfillment of the contract, in particular they do not constitute acceptance.

(2) HMK may request confirmation from the customer regarding the specifications, if HMK has handed over the complete specification. The customer has the obligation to check and confirm the completeness and correctness of the specifications (in particular the complete and correct presentation of the requirements from the specifications). This confirmation constitutes an interim acceptance, but does not replace the later acceptance of the software development.

(3) Acceptance of the software development: HMK can demand the acceptance from the customer, if HMK has handed over the software development.

(4) Unless otherwise agreed, the software development test is carried out in the customer's real system or (if agreed) in a suitable test environment.

(5) The date of acceptance of the acceptance protocol by the customer shall be deemed to be the acceptance date. The acceptance may not be unfairly refused.

5. 8 Remuneration

(1) Unless otherwise agreed, HMK will charge for time. The customer is aware that time is required in particular for the preparation of the specifications, for the project management, for the examination of any change requests and belongs to the provision of services.

(2) If any complaints of the customer turn out to be unjustified, because there is no lack of software development and this would have been objectively recognizable for the customer and / or the malfunction had a cause for which the customer was responsible, HMK will be charged for the audit towards the customer according to the then applicable, general hourly rate of HMK.

(3) For the rest, para. 10 of these terms and conditions.

5.9 Claims for defects

(1) HMK warrants that software development at the time of acceptance will not be liable for any errors that may cause the value or fitness for the normal and pre-established use of this Agreement to diminish or significantly diminish.

(2) Claims for defects expire within 12 months of acceptance. The deadline is suspended if the customer indicates a defect within this period.

(3) During the course of the deadline, HMK will eliminate legitimate defects by double subsequent performance, either by repair or replacement. For minor errors, HMK may optionally provide a workaround and eliminate the defect with delivery of the next update. The right of the customer to cancel the contract or to reduce the remuneration is excluded during this time. If the rectification fails several times and the customer is not able to wait any longer, the customer can withdraw from the contract or reduce the remuneration.

(4) For the rest, para. 9th

6. Special provisions for the provision of scanning facilities

6.1 Vertragsgegenstand

(1) HMK provides the customer with an industrial scanner (hardware and software) in suitable premises (hereinafter referred to as "technical devices") for a fee. The use of the technical devices as well as the possibility of taking the files generated by the software with the results of the scanning process in commercially available format on a suitable data medium to be provided by the customer is due to this.

(2) The parties will agree on time frames for the transfer of use. The customer owes the agreed remuneration even if he does not use the time window for the temporary use.

6. .2 duties of HMK

(1) In addition to the transfer of use, HMK will provide supervisors who will instruct and advise on the proper use of the technical equipment. They are able to assist a user with a good technical background in the operation of the technical devices.

(2) The use of the technical devices is not done by HMK, but only by the customer.

6. 3 obligations of the customer

(1) The customer must handle the technical equipment carefully. In particular, any improper handling should be avoided. He shall be responsible in the same way for any violations of employees or third parties who use the technical equipment for the customer.

(2) The customer will strictly follow instructions from HMK employees.

(3) Before any commercial use of the files generated by the technical devices during use, the customer will check them for accuracy and correctness.

6. 4 Statute of limitations

(1) The limitation period for all warranty claims against HMK is one year and begins with the making available of the technical devices.

7. Special provisions for HMK scanning services

7.1 Vertragsgegenstand

As far as agreed, HMK can provide scanning services (especially for shoes) to customers, i. Create three-dimensional digital images.

The customer is aware that there are technical limitations, in particular with black scan objects or with open scan objects that can not be displayed correctly at the moment.

7. 2 Participation of the customer

The customer will provide HMK with suitable objects in a timely manner for digitization in accordance with the agreements made. The objects remain - for any remedy of defects - until the acceptance of the respective service at HMK and are then returned to the cost and risk of the customer to this.

7. 3 Rights transfer

With the full payment of the agreed remuneration, the customer acquires ownership of the files generated by HMK, which are transmitted on a data carrier or online from HMK to the customer. Regardless, HMK retains its own simple, perpetual, transferable right to use all of the generated files.

7. 4 Decrease

Upon request, the customer will confirm receipt of the files generated by HMK and accept them within three days. The acceptance may not be unfairly refused. Insofar as defects are claimed, the date of acceptance is the day on which a defect-free file is delivered. Use of a delivered file in the productive operation of the customer is considered as acceptance.

7. 5 Warranty

(1) Claims against HMK for defects expire within 12 months of acceptance. The deadline is suspended if the customer indicates a defect within this period.

(2) During the course of the period, HMK will eliminate legitimate defects by double subsequent performance, either by repair or replacement. If the rework fails several times and the customer is not satisfied with further waiting, the customer can withdraw from the contract or reduce the remuneration. In addition, the customer may claim damages in lieu of performance or reimbursement of the expenses in vain within the scope of the statutory provisions. In that regard, para. 9th

8. Special provisions for VR services

8.1 Contract

(1) The customer acquires from HMK, as far as agreed, software that enables the creation of a virtual reality, in the scope described in the offer / contract and the properties finally recorded therein (hereinafter referred to as "VR service" or "subject of the contract") ).

(2) Section 4.1 (2) and (3) apply accordingly to the VR services.

8.2 Scope of Use Rights / Support / Installation Requirements / Training

(1) HMK grants the customer a simple, i.d.R. limited right of use of the VR service, but only for the country of destination agreed between the parties in which the subject matter of the contract is to be used. Without express agreement, the right of use is granted exclusively for the country in which the customer has his place of business. At the same time, this right of use may only be exercised by a maximum of the number of natural persons agreed between the parties. In the case of multiple use, para. 9 para. 2.

(2) The customer may use the VR service (unless otherwise agreed) only for the purpose of processing his internal business transactions. In particular, (i) data center operations for third parties or (ii) the temporary provision of the Software (eg as Application Service Providing) to other companies or (iii) the use of the Software to train individuals who are not employees of the Company Customers are only allowed with the prior written consent of HMK. Commercial re-letting is generally prohibited.

(3) The numbers 4.2 paragraphs 3 to 8 and 4.3 apply accordingly for the VR services.

8. 3 Protection of the software and other components of the VR service / transfer / cooperation and information obligations of the customer

(1) Unless the customer is explicitly granted rights under this contract, all rights to the VR service (and all copies made by the customer) - in particular the copyright, the rights to or inventions as well as technical property rights - are exclusive to HMK. This also applies to processing of services by HMK. The property of the customer to the respective data carriers of such copies as well as to any hardware which is the property of the customer remains unaffected.

(2) The numbers 4.4 paragraphs 2 to 5, 4.5 and 4.6 apply accordingly for the VR services.

8. 4 Delivery and Service time

(1) Unless otherwise stated, the service will be delivered in the agreed or otherwise in the version presented in the live test.

(2) HMK effects the delivery (if necessary after training according to separate agreement) by giving the customer one (1) program copy of the software at the choice of HMK either in the way of the down-load or on a machine-readable data carrier.

8. 5 Inspection and Rejection

In relation to all deliveries and services of HMK, the customer undertakes to investigate and to give notice of defects in accordance with § 377 HGB.

8. 6 Defects in title and title, other malfunctions, limitation period

(1) HMK is obliged to remedy defects in the provided services.

(2) The rectification of defects shall be made at the discretion of HMK by free repair or replacement.

(3) A termination of the customer acc. Section 543 (2) sentence 1 no. 1 BGB (German Civil Code) for non-granting of contractual use is only permitted if HMK has been given sufficient opportunity to rectify the defect and this has failed. Failure to remedy the defect can only be assumed if it is impossible, if it is refused by HMK or if it is unreasonably delayed, if there are reasonable doubts regarding the prospects of success or if there is an unacceptable cause for the customer for other reasons.

(4) The rights of the customer due to defects are excluded, unless HMK makes or allows changes to the leased object without the consent of HMK, unless the customer proves that the changes were contractually permissible and that there are no unreasonable effects on the analysis and eliminate the defects. The rights of the customer due to defects remain unaffected, provided that the customer to make changes, especially in the exercise of the right of self-destruction gem. § 536 a Abs. 2 BGB is justified and this expertly executed and documented comprehensible.

(5) The customer is obliged to take over a new software version if the contractual scope of functions is retained. The warranty rights of the customer remain unaffected

(6) If HMK provides troubleshooting services without being required to do so, HMK may claim compensation in accordance with its usual rates. This applies in particular if a defect can not be proven or is not attributable to HMK. Compensation is also the extra work on the part of HMK, which arises from the fact that the customer according to his obligations. Para. 4.6 i.V. Para. 7.3 para. 2 has not been duly complied with.

(7) If third parties claim that the customer is prevented from exercising the usage rights granted to him by contract, the customer shall inform HMK immediately in writing and comprehensively. He hereby authorizes HMK to bring actions against third parties in and out of court alone. If the acquirer is sued, he agrees with HMK and takes action, especially acknowledgments and comparisons, only with his consent.

(8) The customer can only derive rights from other breaches of duty by HMK if he has reported them to HMK in writing and granted him a grace period to remedy the situation. This does not apply if a remedy does not apply according to the nature of the breach of duty. For damages or reimbursement of futile expenses, the provisions of para. 9 defined limits.

In the case of intent or gross negligence on the part of HMK, fraudulent concealment of the defect, personal injury or defects of title (in the sense of § 438 Abs. 1 No. 1a BGB) as well as guarantees (in particular in accordance with § 444 BGB) the statutory limitation periods shall apply for claims according to the product liability law.

In all cases of the termination of his right of use (for example, by rescission, subsequent delivery), the customer immediately surrenders all deliveries of the contractual items and deletes all copies, unless he is legally obliged to retain them for a longer period. Para. 4.2 para. 6 i.V.m. Para. 7.2 para. 3 remains unaffected. He insures the completion in writing to HMK.

9. Special provisions for contractual partners (suppliers) of the online shop

HMK offers companies (hereinafter referred to as "customers") the opportunity to make their own products or services available to a wider circle of end customers via the HMK online shop. These can be digital products (for example digitized materials) or physical products.

9.1 Contract

(1) The customer transfers to HMK the right to offer and sell worldwide the products of the customer specified in the main contract of a separate plant via the HMK online shop.

Insofar as HMK also undertakes the digitization of materials or other products for the customer in order to later dispose of these digital products as agreed, HMK's provision of services in the context of digitization shall be subject to clause 7 of these GTC.

(2) HMK acts as a free and independent entrepreneur acting on its own behalf and for its own account. Within the scope of this contract, HMK is free to determine its activities and business hours and is responsible for the required operating resources, in particular the online shop. HMK is not authorized to represent the customer legally.

(3) HMK is entitled to act as "dealer" of the customer during the term of the contract.

9.2 Contract Products

(1) Contractual products are the products listed in the main contract or a separate annex.

(2) HMK will distribute the contract products exclusively under the agreed name.

(3) The customer is entitled, with regard to its exempted general distribution policy, to change or withdraw from the program individual contract products, provided this does not significantly change the overall stock. Individual orders already placed remain unaffected by such changes in any case.

9.3 Payments / Remuneration

The remuneration is regulated in the main contract.

9.4 Rights and obligations of HMK

(1) HMK will promote the online shop and thus the contract products offered there to an appropriate extent. The customer can co-agree with HMK on concrete individual advertising measures. There is no obligation to market the contract products through the online shop.

(2) HMK will tailor the presentation of the contract products to the customer's specifications. HMK will promptly adjust the information in the online shop in the event of short-term customer change requests.

9.5 Rights and obligations of the customer

(1) The customer will immediately deliver product samples ordered via the online shop to the customers named by HMK. He can not refuse extradition.

If delivery problems with regard to individual products are foreseeable for the customer, HMK will inform him in good time in advance so that HMK can provide the products in the online shop with regard to the delivery time.

(2) The customer shall provide HMK with complete and accurate information regarding the product identification and product description so that HMK can fulfill any information obligations in the online shop.

If it should be foreseeable for the customer that any individual details could be wrong or ambiguous, he will inform HMK immediately.

9.6 Quality, warranty, product liability, statute of limitations

(1) The customer supplies the contract products and all related product information in compliance with the legal provisions that apply in the European Economic Area, in particular with regard to the safety and labeling of products. He will point out in advance any restrictions on the marketability of individual countries in this area.

Likewise, the customer will inform HMK, provided that he has specific indications that individual products in other countries outside the EEA could not be fully or not fully market able.The customer will inform HMK as soon as possible as soon as he becomes aware of any changes regarding relevant legal provisions.

(2) The parties shall inform each other without delay of any known product errors and risks in the use of the contractual products.

(3) Should contractual products prove to be defective or not in accordance with the contract during the warranty period, the statutory provisions shall apply in the relationship between the contracting parties.

9.7 Contract duration, termination

The contract duration and termination rules are regulated in the main contract.

10. Liability of HMK

(1) If there is a contractual or non-contractual liability of HMK, HMK shall indemnify and reimburse useless expenses only in accordance with the following limits:

a) in case of intent in full, as well as in the absence of a condition, for which HMK has taken over a guarantee;

b) in case of gross negligence only in the amount of the foreseeable damage that should be prevented by the breach of duty;

c) in other cases: only for breach of a material contractual obligation, if the purpose of the contract is jeopardized, but only in the amount of the foreseeable damage. The liability is limited to 100 000, - € per claim, in total to a maximum of 200 000, - € from this contract;

d) moreover, insofar as HMK is insured against the damage incurred, as part of the insurance cover and on suspensive condition of the insurance payment.

(2) The liability limits acc. Paragraph 1 does not apply to liability for personal injury and liability under the Product Liability Act.

(3) HMK is free to object to contributory negligence.

(4) For the limitation period of claims that are not warranty claims, the respective individual provisions in paragraphs 3 to 7 shall apply mutatis mutandis, with the proviso that for claims according to para. 1a) and (b) and para. 2 the statutory limitation period applies. The limitation period acc. Sentence 1 begins with the time specified in § 199 para. 1 BGB. It enters into force no later than the expiry of the maximum periods specified in Section 199 (3) and (4) BGB.

11. Payments

(1) The payments to be made by the customer to HMK result from the relevant agreement.

(2) The payment according to numbers 4 to 8 are - unless otherwise agreed - due and payable with invoicing, but not before delivery of the contractual items or their provision for retrieval in the network and information of the customer about the provision.

The customer is only entitled to use the software, which goes beyond the rights of use granted in this contract, with the prior written consent of HMK. In the case of multiple use without consent (especially when using a larger number of users at the same time than agreed), HMK is entitled to charge the amount accrued for the further use according to Art. to charge the price list of HMK valid at that time, as far as the customer does not prove a substantially lower damage of HMK. Further non-contractual claims for damages remain unaffected.

(3) Insofar as a one-off license fee or training costs have been agreed, these are due immediately upon signature of the contract and delivery of a proper invoice. The customer is aware that the transfer or making available of materials or the execution of training will only take place as agreed if the one-time license fee and / or training costs have been received by HMK at the latest 8 days before the agreed start of training. In the event of late receipt, HMK will seek a timely new training appointment.

If monthly payments have been agreed to HMK, they are to be paid by direct debit without deduction of discount for the first month, for the first time in the month following the date of signing the contract, however, at the earliest on receipt of a proper invoice from HMK. No additional reminder is required to file for arrears.

Already paid license fees for know-how / training (Item 3) can not be reclaimed even in the event of premature termination or termination of the contract or disclosure of the know-how.

(4) The customer may only offset undisputed, legally enforceable claims, as far as it is not based on the same contractual relationship.

If the customer has not made the payments agreed in this contract by the latest calendar day after the latest due date for the respective payment, and the credit note arrives at HMK's agreed account so that he can have the appropriate amount , the customer owes default interest for the amount not paid in the amount of 8 percentage points above the respective base interest rate of the European Central Bank, without the need for a reminder. The proof of a higher damage caused by delay remains reserved to HMK.

(5) All prices are exclusive of the applicable statutory sales tax in Germany. Incidentally, any direct taxes levied in the customer's country for the payments to be made to HMK are to be borne by the customer.

(6) Travel costs as well as any accommodation and subsistence costs of the participants in the training shall be borne by the customer.

12. Force majeure

(1) As long as HMK (i) waits for Customer's cooperation or information, or (ii) by strikes or lockouts in third party operations or in the operation of HMK (in the latter case, however, only if the labor dispute is lawful), official intervention, legal prohibitions or other unfortunate circumstances are impeded in its performance ("force majeure"), delivery and service periods shall be deemed to have been extended by the duration of the disability and by an appropriate start-up period after the end of the disability ("downtime") and it is permanent downtime no breach of duty. HMK will notify the customer of such impediments and their expected duration without delay. If the force majeure continues uninterruptedly for more than three months, both parties have an immediate right to withdraw from the contract.

13. Final Provisions

(1) Insofar as employees of HMK provide warranties prior to the conclusion of the contract, these are only valid if they have been confirmed in writing by HMK's management.

(2) The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is Mannheim. If HMK complains, it is also entitled to choose the place of jurisdiction at the customer's registered office. The right of both parties to seek interim relief from the courts having jurisdiction pursuant to the statutory provisions remains unaffected.

(3) The place of performance as well as the place of subsequent performance shall be the registered office of HMK.

(4) German law applies exclusively, excluding the provisions of international private law and the UN Sales Convention (CISG).

(5) The conclusion of the contract as well as subsequent amendments and additions to the contract must be made in writing in order to be effective. This also applies to the amendment of this clause. Oral side agreements are not met.

(6) Should a provision of this contract be or become ineffective, contain an inadmissible time limit or a gap, the legal validity of the remaining provisions shall remain unaffected hereof. Insofar as the ineffectiveness does not result from a violation of §§ 305 ff. BGB (validity of general terms and conditions), an effective provision shall be deemed agreed in place of the ineffective provision that comes closest to the economic intention of the parties. The same applies to the case of a gap. In the case of an inadmissible period, the legally permissible extent applies.

(7) If this agreement is issued in several languages, the German language version shall prevail.