General terms and conditions

1. Scope

1.1 These Terms and Conditions of Service and Cloud Services (hereinafter “ ­Terms ­and Conditions ­/factory360″) apply to all contracts for the provision of cloud services and services concluded between factory360 GmbH, Paul-Engel-Str. 1, D-92729 Weiherhammer (hereinafter „factory360“), and a client (hereinafter „Customer“).

1.2 Deviations and additions to service and cloud services agreements must be made in writing. Section 127 (2) of the German Civil Code (BGB) (telecommunications transmission and correspondence) applies. This also applies to any deliberate waiver of the written form requirement itself in individual cases.

1.3 factory360 is entitled to unilaterally update these Terms and Conditions/factory360, provided that this does not restrict the scope of the customer’s contractual claims and rights. Restrictions are possible if the contractual services remain suitable for the customer’s purposes. In the event of an update to the Terms and Conditions/factory360, factory360 will inform the customer of the changes by email and/or on the website for the Cloud Service.

2. Conclusion of contract

Offers from factory360 are non-binding and subject to change. A contract is only concluded upon written order confirmation from factory360 or upon conclusion of a bilateral written contract (hereinafter referred to jointly as the „Contract“). Section 127 (2) of the German Civil Code (BGB) (telecommunications transmission and correspondence) applies.

3. Subject matter of the contract

3.1 factory360 undertakes to provide the factory360 services described in detail in the offer and order confirmation, including any attachments thereto, or in a written bilateral contract, particularly regarding the type and scope, access, and availability of the Cloud Services. To the extent that the contract does not contain an expressly agreed service description, this shall be conclusively determined from the relevant service descriptions, data sheets, and documentation published by factory360 or its subcontractors or suppliers at the time of conclusion of the contract, as set out in Section 3.3. The customer accepts that the Cloud Services may change during the term of the contract in order to meet the changing requirements of all customers of factory360 or its subcontractors or suppliers, provided that the services do not deviate significantly from any service descriptions agreed upon in the contract to the detriment of the customer. These changes may include functional, procedural, and technical modifications and improvements to the Cloud Services. factory360 may implement such changes to the Cloud Services without prior written notice to the customer. The customer’s special right of termination under Section 8.2 of these ­Terms and Conditions/ factory360 remains unaffected.

3.2 To use the factory360 cloud application, the customer must register at www.f360vision.com.

3.3 If images of persons are taken as part of the data capture and digitization processes carried out by factory360 for the customer, factory360 will endeavor to automatically anonymize such data. The customer shall ensure that it informs the persons affected by the use of the cloud application or the provision of services by factory360 about the processing of their personal data and their rights within the framework of the statutory requirements, in particular by informing them of the creation of images before recording systems or premises for digitization. Upon notification from the customer, factory360 will also anonymize other personal data visible in a digitized environment in the cloud application or, if this is not desired or technically possible, delete the images in question. The contracting parties undertake to conclude a separate agreement for the processing of data on behalf of the customer in accordance with Art. 28 GDPR, provided the statutory requirements are met.

3.4 The computer software provided by factory360 to the customer may contain open source components for which copyright notices are incorporated into the software. This open source software is subject to the respective terms of use of the respective licensors. These include a disclaimer of liability in accordance with their respective applicable law, which is included in Section 6 of these Terms and Conditions/factory360. The granting of a right of use by factory360 to the customer is subject to the limits of the applicable license terms of the licensors of the open source software used.

3.5 If imaging software is required for the use of the data prepared by factory360 on behalf of the customer, such as the viewer software „f360vision“, factory360 will make this available to the customer free of charge for download from a website specified in the individual case in the order, with a simple, temporally and geographically unlimited, non-transferable, and non-sublicensable right of use for the customer’s own purposes. If the customer wishes to make data prepared by factory360 available to third parties so that they can process or use the data, the customer can authorize these third parties to download this imaging software from the relevant factory360 website after the third party has registered. The free, simple, non-transferable right of use of the third party is limited in time, place, and content to the activity of the third party within the scope of its commission by the customer, based on the information provided by the third party during registration on the relevant factory360 website, and expires subject to a condition precedent upon termination of the relevant order by the customer.

3.6 factory360is entitled to engage subcontractors or sub-suppliers. If a mutual confidentiality agreement has been agreed between the customer and factory360, factory360 will enter into an equivalent confidentiality agreement in writing with the subcontractor.

3.7 Subject to the conditions set out in Section 3.6, factory360 uses the hardware and software of the provider NavVis to scan, process, and store data from the contractual machines and buildings in order to provide its services, both its services and its cloud services. For this purpose, NavVis uses the cloud solution from Amazon Web Services (hereinafter referred to as „AWS“), subject to the then-current AWS Terms of Use for Cloud Services. factory360 provides its services to the extent and subject to the proviso that the relevant NavVis service and the relevant cloud services are provided or made available to factory360 by AWS. With regard to the cloud services, the customer acknowledges the then-current AWS Acceptable Use Policy (available at https://aws.amazon.com/aup/ ).

3.8 factory360 transfers to the customer the exclusive, transferable, temporally, geographically and content-wise unlimited rights of use to the data that is collected, created and used by factory360, for example, using the hardware and software of the provider NavVis, including the content created by the user („User Generated Content“) as well as to the customer’s data sets prepared by factory360 on behalf of the customer, including the right to reproduce and process it as well as to use the processing results, subject to the condition precedent of receipt of the full amount of the relevant invoice from factory360 GmbH for the data creation and/or processing, waiving the receipt of a declaration of acceptance for this transfer of rights. factory360 reserves for itself and, if applicable, manufacturers of tools that factory360 uses when fulfilling a customer’s order, a temporally and geographically unlimited, transferable right of use to use this data for the respective research and development of its own products and services or, for example, the products and services of NavVis in accordance with their confidentiality obligations and applicable data protection laws and ­regulations (see, for example, Section IV. 6 of the NavVis Terms of Use at https://www.navvis.com/documents/GTCD.pdf).

3.9 factory360 will provide its own contractual services to the Customer within the limits of this grant of use in clauses 3.4, 3.5 and 3.7 and clause 3.8 above of these Terms and Conditions.

3.10 Factory360 reserves all copyrights and other intellectual property rights, as well as the protection of trade and business secrets pursuant to Section 7 (below), to illustrations, drawings, scanned content within the limits of the rights of use granted to the Customer under Section 3.8 above, calculations, computer programs, data, and databases (hereinafter „factory360 Information“), which the Customer can access, for example, via factory360’s Cloud Services. They may not be made available for inspection, copied, made accessible, or otherwise transferred to third parties by the Customer without the express prior written consent of factory360. The data to which the Customer is granted exclusive rights of use pursuant to Section 3.8 above are excluded from the applicability of this Section 3.10.

3.11 Data and data analyses from or by factory360 to which the customer has access through or via factory360 must be protected by the customer through technical and organizational access regulations in such a way that no unauthorized persons can access them.

4. Terms of payment

4.1 The total or individual prices stated in the contract are without deduction of discounts and plus any applicable VAT in the currently valid version.

4.2 Factory360 invoices must be paid by the customer to one of the bank accounts specified by Factory360 within 14 days of the invoice date. Payment dates specified in the contract are binding and take precedence over the above payment deadline.

5. Warranty, poor performance

5.1 Claims arising from any poor performance of services, a defect in the rental or in a work performance (hereinafter „warranty“) by factory360 can be assigned to different contract types according to the German Civil Code (BGB) and can therefore also be subject to different warranty systems.

The legal consequences of a withdrawal from the contract for possible work or services or a termination of a rental agreement are therefore set out in these Terms and Conditions/factory360 regulated in context.

5.2 Contractual claims arising from the defective performance of a service shall expire 12 months after the respective service has been rendered. This limitation period shall not apply if the cause of the claims is based on intent, malice, or gross negligence, or injury to life, limb, or health, or liability based on product liability.

Should factory360 services be incorrect or incomplete, factory360 undertakes to rectify the errors free of charge or to provide the complete service. If this is not possible because the service is event-related and therefore cannot be remedied, factory360 undertakes to take all necessary organizational and technical measures to prevent a recurrence of the relevant type of error in the service or the omitted service. Should factory360 fail to provide the services properly, repeat, the customer is entitled to terminate this contract. This requires that the customer informs factory360 has previously unsuccessfully requested in writing, threatening to assert legal claims and setting a reasonable deadline in each individual case, to rectify the error or omission that caused the customer’s warning. Termination also includes those service components of the contract that are of a rental and/or work contract nature.

5.3 For rental services, in particular the provision of cloud services, factory360 Eliminate defects or, to the extent reasonable for the customer, offer solutions to circumvent the defect (workaround). Should the accessibility of the cloud application be disrupted or interrupted, factory360 undertakes to remedy the fault within 24 hours of notification of the fault by the customer, excluding Sundays and public holidays at factory360’s place of business .Will factory360 If the customer repeatedly fails to remedy defects in the rental supplies or applications provided for use or the cloud services, or to offer a workaround, the customer is entitled to terminate this contract. Termination also includes the service components of the respective contract that are of a service and/or work contract nature.

5.4 For services rendered under a work contract, the warranty period is 12 months from commissioning. This limitation does not apply if the cause of the claim is based on intent, malice, or gross negligence, or injury to life, limb, or health, or liability based on product liability.

The customer may initially request subsequent performance, which factory360 may provide at its discretion by remedying the defect or providing a defect-free item/software. In the case of software, a workaround is sufficient, provided this does not impair the functionality of the software. If an attempt to remedy the defect fails within a reasonable period of time, factory360 is entitled to make a second attempt within a further reasonable period of time. If the defect cannot be remedied even then and no workaround acceptable to the customer is provided, the customer has the right to withdraw from the contract. Withdrawal from the contract also includes the service components of the contract that are of a rental and/or service contract nature.

5.5 In the event of a defect or poor performance, e.g., in the event of data loss by the customer or a technical security breach by factory360, liability for damages is excluded if the damage was caused by slight or simple negligence. This limitation of liability shall not apply to the extent that the cause of the claim is based on intent, fraudulent intent, or gross negligence, or injury to life, limb, or health, or liability based on product liability.

The amount of liability for damages due to a defect and/or poor performance is limited to a maximum of the contractual remuneration for the service in question per contract year. Excluded are damages caused by intent, fraud, or gross negligence, or injury to life, limb, or health on the part of factory360, or based on liability under product liability.

5.6 The customer undertakes to report any defects or poor performance that may be of interest to factory360 allows to start a targeted troubleshooting. The customer will factory360 provide the information available to him regarding the defect and assist in the rectification of the defect or poor performance free of charge within reasonable limits.

5.7 factory360 may withhold the rectification of errors and omissions as long as the customer does not fulfill his obligations to cooperate.

6. Liability

6.1 factory360, its executive bodies and vicarious agents shall be liable in the event of a culpable breach of contractual obligations, including pre-contractual and ancillary contractual obligations, in the event of unlawful acts and for any other legal reason not specifically regulated in these Terms and Conditions/ factory360, limited to cases of intent, malice and gross negligence.

6.2 In case of impossibility, inability or in case of culpable breach of another contractual obligation, factory360 shall be liable solely excluding cases of slight negligence. Material contractual obligations are those that are mutually binding and whose breach jeopardizes the achievement of the contract’s purpose, whose fulfillment makes the proper execution of the contract possible in the first place, and on whose fulfillment the customer therefore relies and may rely. In cases of gross and simple negligence, factory360’s liability for cases covered by this Section 6.2 is limited to damages that factory360 could have foreseen at the time of conclusion of the contract as a possible consequence of a breach of material contractual obligations, exercising the due care of a prudent businessman.

6.3 The provisions regarding liability for damages in the event of defects /poor performance in Section 5.5 of these Terms and Conditions/ factory360 take precedence over this clause 6.1 and 6.2.

6.4 The limitations of liability under this Section 6 shall not apply in the case of liability under the Product Liability Act and in the case of liability for injury to life, body or health.

6.5 To the extent that computer software contains open source components whose copyright is indicated in the software, the licensors exclude their own liability for the respective open source software as follows:

This software is provided by the copyright holders and contributors „as is,“ and any express or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, are disclaimed. In no event shall the copyright holder or contributors be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or ­services , loss of use, data or profits, or business interruption) regardless of cause and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise), arising in any way out of the use of this software, even if advised of the possibility of such damages.

The views and conclusions contained in the software and documentation are those of the authors and should not be interpreted as reflecting the official policies of the FreeBSD Project, either expressed or implied.

This disclaimer becomes part of the Terms and Conditions/factory360 as a contract for the benefit of third parties.

7. Confidentiality

7.1 factory360information, see section 3.10, and the access options, see section 3.7 of these Terms and Conditions/ factory360 , as well as all factory360 Data and information otherwise provided that do not fall within the scope of Section 3.8 above may not be made accessible to third parties unless it is clearly intended for other persons besides the customer, unless this is necessary for the customer’s intended use of the contractual services. Trade and business secrets within the meaning of this confidentiality agreement also include factory 360 information that does not meet the criteria of the Trade Secrets Act, but is part of the factory 360 information within the meaning of Section 3.10 above. „Third parties“ within the meaning of this section are natural or legal persons who are not officers or employees of the customer, as well as those contractors of the customer who have not agreed in writing to access protection in Section 3.7 and to confidentiality, Section 7 of these Terms and Conditions/ factory 360 . committed to the customer.

7.2 factory360undertakes to the customer not to disclose to third parties any non-anonymized data (personal, machine, and production data) that it obtains during remote services at the customer’s premises. The same applies to the results of data analyses for the customer.

8. Termination of the Cloud Services Contract

8.1 The contract for Cloud Services has the term agreed in the individual contract and is automatically extended by one contract year at a time unless it is terminated by one of the contracting parties by written declaration to the other contracting party, observing a notice period of 90 days to the end of the then current contract year.

8.2 The customer is entitled to a special right of termination for Cloud Services if the Cloud Services are changed to the customer’s detriment in accordance with Section 3.1. The customer may only exercise this special right of termination within three months. The three months begin from the point in time at which the customer becomes aware of, or should have become aware of, the change to the Cloud Service.

8.3 Both parties have the right to terminate the contract without notice for good cause. factory360 may do so, in particular, if the customer repeatedly violates the then-current terms of use for the cloud service despite a written warning.

8.4 In the event of a contract termination, the customer’s access to the Cloud Service expires upon termination of the contract. The customer is entitled to take the content stored for them in the factory360 Cloud with them in a standard format that is described in the respective description of the type and scope of the Cloud Service (see Section 3.1 above), provided that the content was provided by factory360 for the customer and stored in the Cloud as a service, and/or the customer created the content while using their individual Cloud access. Factory360 may invoice the customer for any costs incurred by factory360 in this regard at standard market rates.

8.5 The contractual provisions on warranty, liability, confidentiality as well as applicable law and jurisdiction in clauses 5, 6, 7 above as well as in clauses 9.2, 9.3 and 9.5 of these Terms and Conditions shall apply to claims and rights arising from and in connection with the respective contract beyond termination by performance or expiration of the contract.

9. Miscellaneous

9.1 Should any of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions of the contract. The contracting parties shall mutually agree to replace any invalid provision with one that most closely approximates the economic purpose of the invalid provision. The same shall apply in the event of a gap in the provision.

9.2 The law of the Federal Republic of Germany applies .

9.3 In case of any discrepancy between the German and a foreign language version of these Terms and Conditions / factory360, the German language version shall prevail in case of doubt.

9.4 The place of performance for payment claims of factory360 arising from this contract is the registered office of factory360 , see section 1.1.

9.5 The place of jurisdiction for all legal disputes arising from or in connection with this contract is, at factory360 ’s discretion, the registered office of factory360(see Section 1.1) or another statutory place of jurisdiction, and, in the case of legal proceedings brought by the customer against factory360, the registered office of factory360 (see Section 1.1). This jurisdiction agreement applies only to merchants within the meaning of commercial law.