TWINSITY GENERAL TERMS AND CONDITIONS
Twinsity GmbH, Escheberger Straße 2, 34779 Breuna, registered in the Commercial Register of the Kassel Local Court under HRB 18117 (“Twinsity”) owns and operates an online (B2B) platform (“Platform”).
The Platform in particular provides commercial third parties (“Customers”) a collaborative environment to visualize 3D models and manage inspection data of structures.
Any agreement between Twinsity and a Customer (each a “Party” and collectively “Parties”) on the use of the Platform or any other services to be provided by Twinsity is governed by the following general terms and conditions (“General Terms”), except otherwise agreed.
1. User Accounts
Twinsity grants Customer access to the Platform via an account (“Account”). There-fore, Twinsity sets up on admin account for Customer and Customer’s admin may appoint one or several of Customer’s employees as users under the Account. The admins may grant users different access and usage rights.
2. Services and Fees
2.1 Twinsity grants Customer access to the Platform for its use as part of the agreed services and shall provide Customer with the other agreed services (collectively “Services”). The details of the Services are outlined in the Offer.
2.2 Customer shall pay Twinsity the agreed fees for the provision of the Platform and the other agreed Services as follows:
(a) If the Parties have agreed on a fixed Service term (“Fixed Term”), the fees will be due for the entire term.
(b) If the Parties agree on an indefinite Service term (“Indefinite Term”), Twinsity will issue monthly invoices to Customer for each of the following months.
(c) All fees are net prices plus the statutory value added tax, if any.
(d) Twinsity will send all invoices via email to the Customer’s contact details indicated by the Customer.
(e) All invoices are due within fourteen (14) days of receipt of the invoice.
3. Services by Twinsity
3.1 Twinsity will use reasonable efforts to make the Platform available to Customer in a manner suitable for the use of the agreed Services. Twinsity does not assume any further obligations with respect to availability, suitability or functionality, unless specifically agreed otherwise in the Offer.
3.2 Twinsity operates the Platform as a standard service for a large number of Customers and will therefore provide Customer with the standard version. If the Platform is subject to substantial changes which disadvantage Customer, Twinsity will inform Customer at least thirty (30) days in advance. Twinsity shall not be obliged to provide information on such changes if, based on Twinsity’s reasonable judgment, changes are necessary to meet legal requirements or to ensure the security of the Platform, of Twinsity, of Twinsity’s affiliates, of Customer or third parties. If a change to the Platform requires an amendment of the General Terms, Section 13 applies. The provisions in this Section 3.2 do not apply if the Parties have expressly agreed on the provision of specific functionalities or content.
3.3 Unless explicitly agreed otherwise, Twinsity will provide all Services to Customer as services (Dienstleistungen).
3.4 Twinsity is entitled to use any of its affiliates and any other subcontractors for the provision of Services.
4. Use of the Platform
4.1 Customer shall only use the Platform to import, process, assess, analyse, edit, ex-port and deliver data on the number of devices, for the duration and according to the modalities expressly indicated in the specifications set out in the Offer (collectively “Volumes”), such as the maximum GB.
4.2 If Customer by using the Platform exceeds the Volumes, Twinsity may, at its sole discretion, (i) demand Customer to immediately cease such excessive use, (ii) provide Customer an offer with new Volumes and/or (iii) suspend permanently or temporarily Customer’s access to the Platform.
4.3 When using the Platform and any other Services, Customer warrants that it will comply with all applicable laws, including product liability, product safety, data protection, tax and export control laws and in particular that it will obtain and maintain all necessary consents, approvals and authorizations at its own expense. In particular, Customer warrants that it will comply with the applicable data protection/privacy laws in the cases referred to in this Section 4.3. If the applicable law is the General Data Protection Regulation (GDPR), Customer will especially adhere to the principles of lawfulness, fair processing, transparency and grant the data subjects’ rights under Chapter 3 of the GDPR.
4.4 Customer shall not upload or otherwise process any personal data pursuant to Art. 4 No. 1 GDPR in connection with the Platform, except as necessary for the use of the Account.
4.5 Customer shall not and shall ensure that third parties whom Customer allows to use the Platform will not upload to the Platform or otherwise provide Twinsity with any content, including messages, reviews, videos, maps, models, folders, data, text, photographs, images, and data gathered by a drone or device (collectively “Customer Content”), the use of which in accordance with Section 6.2 results in a breach of applicable laws or infringes intellectual property, copyright, business secrets, or other rights of third parties or towards third parties, in particular confidentiality obligations.
4.6 Customer warrants:
(a) to use the Platform, including the Account and any interfaces provided, exclusively for using the Services,
(b) not to enter any other information and data apart from that required to use the Services,
(c) to refrain from all actions that may jeopardize the security and stability of the Platform, in particular but not exclusively accessing information or data with-out authorization, interfering with the Platform’s software, infiltrating Twinsity’s data networks or those of its subcontractors and not to pass on any vi-ruses, Trojan horses or other malware, and
(d) to keep user IDs and passwords and other access data secret, not to pass them on to unauthorized third parties and to protect them from being accessed by third parties by taking appropriate measures that are in line with the latest requirements.
4.7 Customer will notify Twinsity promptly if Customer becomes aware of circumstances and in particular incidents indicating that the requirements set forth in Sections 4.1 to 4.6 may not be met.
5. Data Security and Privacy Information
5.1 In the Offer, the Parties will agree on a maximum storage capacity on the Platform for Customer to use.
5.2 Customer shall keep backups of the Customer Content outside of the Platform.
5.3 Twinsity will store Customer Content for three (3) months after the termination of the service term.
5.4 The protection of the personal data is very important for Twinsity. Insofar as Twinsity collects or otherwise processes personal data of Customer or its users, this is done exclusively for Twinsity’s own purposes. Customer can obtain further information on the processing of personal data here: https://twinsity.com/en/privacy.
6. Intellectual Property
6.1 With the exception of the rights explicitly granted to the Customer, both Parties and their third-party suppliers and licensors remain the holders of all intellectual property rights and copyrights. All rights to the Platform, also covering all future developments, will in particular remain with Twinsity, its third-party suppliers and licensors.
6.2 Customer grants Twinsity and its subcontractors the non-exclusive, transferable and sublicensable right to use any Customer Content, free of charge for the purpose of fulfilling the obligations related to Services, the operation of the Platform, the fulfilment of legal obligations and official orders by authorities.
6.3 Customer shall have the right to use any content and/or materials, programmes and other information which are resulting from the processing of Customer Content on the Platform, including all summaries, transformations and visualisations (collectively “Customer Output”) exclusively on the Platform. In particular, Customer may not reproduce or publish the Customer Output without Twinsity’s prior express written consent.
6.4 For the purpose of improving Twinsity’s services and/or developing and creating new services, including, without limitation, by training artificial intelligence, (i) Customer grants Twinsity and its subcontractors the non-exclusive, transferable and sublicensable right to use any Customer Content, free of charge and (ii) Twinsity shall have the right to use Customer Output. Any content and/or materials, pro-grammes and other information which are resulting from the processing of Customer Content and Customer Output Data, including all summaries, transformations and visualisations (“Derived Data Output”) pursuant to this Section 6.4 belong to Twinsity. This includes, in particular, the right to grant third parties the right to use the Derived Data Output.
6.5 Except as expressly permitted by applicable law (in particular in accordance with the provisions of Section 69d or 69e German Copyright Act (Urheberrechtsgesetz – “UrhG”), Customer may not, without Twinsity’s prior express written consent, edit, redesign, adapt, translate, reproduce, adapt, publish, decompile, disassemble or re-verse engineer the Platform or the any other Services (or any part thereof).
7. Integration of Third-Party Services
7.1 Customer has the option to use services, products and tools of external service providers in connection with the Platform at Customer’s own risk („Third Party Services„).
7.2 Twinsity may object to the use of such Third Party Services if this conflicts with Twinsity’s legitimate interests.
7.3 Unless expressly agreed otherwise, a contractual relationship regarding the use of such Third Party Services shall be established exclusively between Customer and the provider of the Third-Party Service. Twinsity shall not be responsible nor liable in connection with Third Party Services, and in particular not for:
(a) the proper performance of the Third Party Service,
(b) the compatibility of the Third Party Service with the Platform,
(c) the control of the contractual relations between Customer and the provider of the Third Party Service,
(d) the content or privacy practices of Third Party Services, or
7.4 The use of Third Party Services shall also be governed by the respective general terms and conditions and data protection declarations of the selected Third Party Service (collectively “Third Party Terms”). Customer warrants not to violate the Third Party Terms. Customer indemnifies Twinsity in the event of an actual or alleged violation of the Third Party Terms pursuant to Section 9.
7.5 If Twinsity refers to such Third Party Services, this should not be construed as an endorsement, approval or recommendation by Twinsity of such Third Party Services, unless expressly stated by Twinsity.
8.1 Twinsity shall not be liable for ordinary negligence for and in connection with the use of the Platform or other Services, unless there has been a breach of contractual obligations the fulfilment of which makes the proper execution of the Services possible in the first place and on the observance of which Customer regularly relies and may rely (material contractual obligations – Kardinalpflichten). In this case, Twinsity’s liability is limited to the damage or loss which is foreseeable and typical of the contract at the time of entering into the particular business relationship.
8.2 Any claims for damages against Twinsity resulting from or in connection with the particular business relationship expire no later than after one (1) year.
8.3 The limitation and exclusion of liability under Sections 8.1 and 8.2 do not apply (i) to the extent liability cannot be limited or excluded under applicable laws, in particular but not exclusively under the German Product Liability Act (Produkthaftungsgesetz), (ii) in cases of intent or gross negligence, (iii) in cases of damage to health, life and limb, (iv) in cases of fraudulent intent, and (v) in the event of non-compliance with an agreed guarantee.
8.4 If Twinsity provides any Services free of charge, Twinsity shall be liable for damages only if the damage was caused by the use of the Services pursuant to the General Terms and was caused by Twinsity intentionally or through gross negligence.
8.5 None of Twinsity’s obligations under the General Terms constitute warranted characteristics or another type of guarantee. Twinsity excludes any strict liability for defects already existing at the time of the General Terms becoming part of the business relationship.
8.6 Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to per-form all or any part of the General Terms (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of the Party seeking protection under this Section 8.6. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, cyber-attacks, riots, acts of war, terrorism, earthquake, fire or explosions.
8.7 All limitations and exclusions of liability set out in Section 8 also apply to Twinsity’s affiliates, members of the executive board, directors, employees, agents, subcontractors, sub-suppliers and other persons assisting Twinsity.
9.1 Customer shall indemnify Twinsity and Twinsity’s affiliates and subcontractors against all and any claims, damages and costs (including litigation and legal costs) arising from or in connection with an actual or alleged breach by Customer or an affiliate of Customer within the meaning of Section 15 German Stock Corporation Act et seq. (Aktiengesetz – “AktG”) of the General Terms, in particular but not exclusively of the requirements in Sections 4.1 to 4.6.
9.2 Customer’s indemnification obligation pursuant to Section 9.1 does not apply if Twinsity or a third party is responsible for the occurrence of the relevant claims, damage or costs.
10. Responsibility and Representation
Customer shall be responsible for all actions and omissions by employees and third parties acting on its behalf, as well as for third parties who Customer allows to use the Services to the same extent as for its own actions or omissions. In particular, Customer is fully responsible for ensuring that third parties who Customer allows to use the Services, such as its affiliates pursuant to Section 15 et seq. AktG, comply in full with all the terms of the General Terms; Customer must obtain a specific agreement from Twinsity in order to enable third parties, including affiliates, to use the Services. Furthermore, Customer warrants that all persons it allows to use the Platform have rights of representation in relation to Customer, including the right to make legally relevant declarations, within the context of the rights of access and use granted to them.
11. Deletion and Disabling Access
11.1 Twinsity is entitled to delete Customer Content provided by Customer in connection with the Platform or by third parties who Customer allows to use the Platform and/or to disable access to such content if and to the extent that, based on Twinsi-ty’s reasonable judgement, the Customer Content does not meet the requirements of the General Terms, in particular but not exclusively under Sections 4.1 and 4.6 (lawfulness).
11.2 In addition, Twinsity is entitled to completely or partially disable Customer’s access and/or that of third parties who Customer allows to use the Platform to the Plat-form and/or to suspend the provision of Services under the General Terms if Customer does not fulfill its payment obligations as specified in the Offer in part or in full or materially breaches other obligations under the General Terms, or it is necessary to disable the access due to legal requirements.
12. Term and Termination
12.1 The term of the Services is stated in the Offer and may be a Fixed Term or an In-definite Term.
12.2 Where a Fixed Term is agreed, the Services automatically terminate upon expiry of the Fixed Term; ordinary termination by the Parties is excluded. The Parties may agree on an extension of the Fixed Term. Therefore, Twinsity must provide Customer a new offer and Customer may agree to such offer by confirming the new offer via email.
12.3 Where an Indefinite Term is agreed, unless expressly set forth otherwise in the Offer, either Party may terminate the Services upon 1 month notice to the other Party.
12.4 The right of termination for cause in accordance with Section 314 German Civil Code (Bürgerliches Gesetzbuch – “BGB”) remains unaffected. Reasons which entitle Twinsity to terminate for cause include, without limitation, any circumstances entitling Twinsity to partly or completely disable Customer’s access to the Platform or suspend provision of Services, for example due to compromises of the security and stability of the Platform caused by a breach of an obligation under the General Terms by Customer. The right to claim damages remains unaffected by any notice of termination.
12.5 If Twinsity provides the Services free of charge, either Party may terminate the Services at any time.
13. Changes to the Standard Contract Terms and Conditions
13.1 Twinsity is entitled to amend these General Terms at any time. Amendments may depend in particular but not exclusively on adjustments to reflect applicable law or to implement changes in order to develop the contractually agreed Services. Twinsity will notify Customer about changes to the General Terms in writing or in text form providing a notice period of at least thirty (30) days before their effective date. The amended General Terms will become effective unless Customer objects to them in writing or text form within the notice period referred to above. Twinsity will specifically point out these consequences to Customer in the notification. If Customer objects to the contractual amendment within the agreed timeframe, Twinsity is entitled to terminate the business relationship no earlier than the effective date of the amendment if Twinsity cannot be reasonably expected to continue the business relationship. Other rights of the Parties to terminate remain unaffected.
13.2 Any amendments to the General Terms must be made in written form, including via email. This also applies to an amendments of this written form requirement.
14.1 Information on the business relationship and all other information made directly or indirectly accessible to a Party by the other Party in connection with the initiation, conclusion and performance of the Services must be treated confidentially and not be used for any purpose outside the scope of the business relationship. The transfer or disclosure of such information is only permitted to employees, affiliates, subcontractors or advisors and their employees who themselves are subject to confidentiality obligations and usage restrictions at least as strict as the ones agreed in the General Terms and who need this information for the implementation of the busi-ness relationship. Customer is in particular prohibited from making the information received (in particular price information) available to competitors or potential competitors of Twinsity. Any further legal restrictions on Customer regarding the disclosure of information, in particular but not exclusively the obligation to strictly comply with antitrust laws in relation to information on Twinsity and prices, remain unaffected.
14.2 The restrictions set out in Section 14.1 do not apply to the extent that the information is already publicly known, is made public by a third party without breaching any confidentiality duty or is subject to a statutory duty or judicial/official order to disclose. Furthermore, Twinsity may disclose the co-operation with Customer pub-licly, including but not exclusively on Twinsity’s website.
14.3 The non-disclosure agreement according to Section 14 remains in force for three (3) years after the end of the business relationship.
15. Test Versions
15.1 If Twinsity provides Customer with certain functions or other Services in connection with the Platform as a test version free of charge (each a “Test Version”), Twinsity will provide such Test Version “as is”. Twinsity is not obliged to provide specific functions or other requirements, including with regard to availability. Twinsity can provide an updated or modified version or Test Version at any time at its sole discretion, without prior notice and without specifying any reasons.
15.2 Twinsity excludes any warranty or liability for and in connection with use of Test Versions by Customer. Twinsity’s liability for intent and gross negligence and in the case of fraudulent concealment of defects remains unaffected.
15.3 All exclusions and limitations of liability set out in Section 15.2 also apply to Twinsity’s affiliates, members of the executive board, directors, employees, agents, sub-contractors, sub-suppliers and other persons assisting Twinsity.
16. Final Provisions
16.1 Where any terms in these General Terms are provided in the German language, the German language shall prevail for the interpretation of the terms.
16.2 Should any provision of the General Terms be or become invalid or unenforceable, the remaining provisions of the General Terms remain unaffected. To replace the invalid or unenforceable provision, the Parties will agree on a valid provision com-ing as close as possible to the intent and purpose of the invalid or unenforceable provision in legal and commercial terms. The same applies to any omissions in the General Terms.
16.3 The business relationship of the Parties is governed exclusively by the laws of the Federal Republic of Germany, excluding German conflict of law provisions and international and supranational (contractual) legal systems, including but not limited to the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).
16.4 For all disputes arising out of or in connection with the business relationship of the Parties, the courts of the place of registered office of Twinsity shall have exclusive jurisdiction. The place of performance for all services by the Parties under or in connection with the General Terms is the place of registered office of Twinsity.