Allgemeine Geschäftsbedingungen (AGB)
1. Subject matter of the terms and conditions
(1) The General Terms and Conditions of AVANTO VR Solutions GmbH, Otto-Lilienthal-Straße 16a, 28199 Bremen (hereinafter referred to as “AVANTO”) govern the use of the AVANTO products Feelestate and Pano-Live based on the contract to be concluded with the customer together with all attachments. Conflicting terms and conditions of the customer shall not become part of the contract even if AVANTO has not expressly objected to these terms and conditions.
(2) AVANTO provides its services only for companies. Entrepreneurs are natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity.
2. Subject matter of the contract
(1) With the AVANTO products, the customer is initially provided with the necessary infrastructure for the services ordered in the framework agreement, e.g. for the storage, processing or display of panoramic images or the use of training software.
(2) This contract also covers the server-side use of software to manage and control panoramic images. The software runs exclusively on the server. The programming and the software remain the exclusive property of AVANTO. The customer may use these for a fee and exclusively in accordance with the services ordered in the framework agreement on the websites and servers operated by AVANTO.
3. Services of AVANTO
(1) AVANTO provides the customer with digital data and/or storage space for digital data on its servers to a contractually defined extent. The capacities can be extended in coordination with AVANTO (subject to availability). AVANTO software is installed on these servers. In this context, the customer then receives the right to use the AVANTO software. AVANTO provides the customer with the technical possibility to access the service described in §2 para. 2 via the WorldWideWeb. AVANTO is responsible for the proper operation of the service – i.e. not WorldWideWeb.
(2) In order to enable the customer to manage his accounts, he receives access to a so-called AVANTO software frontend, on which the customer can upload and manage or retrieve data. Furthermore, the customer will be provided with a username and password for logging in to the AVANTO website.
(3) AVANTO is entitled to interrupt the operation of the platform for maintenance and update work or to rectify faults. As far as technically possible, AVANTO will carry out such work outside the normal hours of use, preferably at night or in the early morning hours (Central European Time).
(4) The accessibility of the website is 99.8% annual on average. However, this does not include times when accessibility is interrupted due to technical or other problems beyond AVANTO’s control (e.g. force majeure, fault of third parties, server-side manipulation by third parties due to disruptive attacks, failure of the API interfaces to the markets, maintenance services previously notified to the customer in good time, etc.). Also excluded are interruptions that occur within the first 4 weeks after the start of the contractual relationship and thus fall under the initial commissioning.
4. Obligations of the customer
(1) If there are disruptions in the use of the platform in accordance with § 3 para. 1 of this contracts, the customer shall inform AVANTO immediately by e-mail (info@avanto-vr.com) or fax.
(2) The customer is obliged to handle the access data in accordance with § 3 para. 2 of this contracts with care, not to pass them on and to prevent misuse of the access data by third parties. Unauthorized third parties do not include persons who use the access with the knowledge and will of the customer. In the event of unauthorized use of access data, the customer is obliged to inform AVANTO immediately and have the access blocked.
(3) The customer assures AVANTO that he will always provide AVANTO with all information required for the successful provision of his service in text form in a timely manner and that no
campaigns or content are stored or posted on the Internet whose provision, publication or use violates applicable law or the rights of third parties (name and trademark law, data protection law or other legal provisions, etc.).
(4) The customer undertakes to indemnify AVANTO against claims of third parties of any kind resulting from the illegality of content that the customer has stored on the contractual campaigns. The indemnification also includes the obligation to fully indemnify AVANTO from reasonable legal defense costs (e.g. court and attorney’s fees).
(5) The customer uses all services exclusively as intended. The customer is prohibited from manipulating the software, particularly from using mechanisms or other scripts in connection with the software that could interfere with the functioning of AVANTO’s services. The customer may not take any measures that could result in an unreasonable or excessive load on AVANTO’s system. Use of the services together with third-party software is prohibited. The prerequisite for such measures is always that AVANTO has given its prior written consent.
(6) Data must be uploaded by the customer in the format defined on the platform. The customer is therefore obliged to back up data accordingly. AVANTO is entitled not to process information and data entered by the customer if this data causes or may cause errors in data processing or if it has not been entered in the required format. The customer is responsible for checking such processes and deriving the necessary measures from them.
(7) The customer shall inform AVANTO immediately if:
- the opening of insolvency proceedings has been applied for by the customer or must be applied for within the next 14 days,
- the opening of insolvency proceedings has been applied for by a third party,
- the customer has suspended or must suspend payments (in whole or in part) due to payment difficulties,
- measures have been taken against the customer in connection with payment difficulties to satisfy third-party creditor claims, or
- The customer has agreed to agreements to satisfy third-party creditor claims in connection with the payment difficulties.
(8) If the customer violates his obligations under this contract, AVANTO is entitled, after prior warning, to block the customer’s access and withhold services under this contract. In the event of serious breaches of duty, e.g. default of payment, manipulation of services, posting of illegal content, etc., AVANTO is entitled to block access immediately.
5. Remuneration
(1) The customer undertakes to pay the remuneration specified in the contract.
(2) AVANTO will invoice the customer for the contractually owed remuneration. The amount resulting from the actual sales volume is due 7 days after invoicing. In the event of default of payment, the statutory provisions shall apply. Agreements to the contrary are only possible with our consent.
6. Rights of use
(1) AVANTO transfers to the customer a simple, non-transferable right of use limited to the term of the contract for the purposes described in § 2 para. 2. This entitles the customer – for his own purposes – to use the service on the websites operated by AVANTO. Any changes within the scope of simple use are prohibited.
(2) The customer is entitled to transfer the contractual services to a third party (e.g. an advertising customer) in part or in full, for a fee or free of charge, taking into account § 4 and within the scope of the right of use granted in § 6 para. 1, or to create corresponding accounts with AVANTO for this third party. In such cases, the customer remains the contractual partner and debtor of AVANTO’s remuneration claims. There is no direct contractual relationship with the third party.
(3) The customer remains the owner of all rights, particularly all copyrights, to the information and data collected by him for the services. He authorizes AVANTO to use the information and data within the scope of its services, including the right to reproduce information and data within the scope of the services and to transmit them to third parties.
7. Warranty
(1) AVANTO only warrants the usability of the platform as described in § 3. The customer is aware that software cannot be created completely error-free. Therefore, freedom from errors of the software is only guaranteed to the extent customary in the market and industry.
(2) AVANTO does not guarantee that the software will achieve a certain performance success, particularly regarding the number of conversions, volume of traffic, reach or goals.
(3) AVANTO has no influence on distortions caused by ad blockers, cookies that have been deleted in the meantime or errors/abuse by third parties. An error-free function of the software in connection with networks that have not been approved in writing by the provider cannot be guaranteed.
(4) The software provided by AVANTO only supports the customer to the agreed extent in an automated and software-supported manner in achieving his goals.
8. Liability
(1) AVANTO shall be liable in the event of intent or gross negligence for all damages caused by AVANTO and its legal representatives or vicarious agents in connection with the provision of the contractual services, as well as for damages resulting from injury to life, body or health for which AVANTO, its legal representatives or vicarious agents are responsible.
(2) Otherwise, AVANTO shall not be liable, particularly in cases of slight negligence, unless a material contractual obligation has been breached. Essential contractual obligations are abstractly defined as those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the user regularly relies and may rely. In such cases, liability shall be limited to compensation for foreseeable, typically occurring damage.
(3) Insofar as AVANTO’s liability is excluded or limited in accordance with the aforementioned provisions, this shall also apply to AVANTO’s vicarious agents.
(4) Under no circumstances shall AVANTO be liable for damages resulting from loss of performance and delays in performance due to unforeseeable events for which AVANTO, its legal representatives or its vicarious agents are not responsible (force majeure). Events of force majeure include in particular war, riots, forces of nature, fire, sabotage attacks by third parties (such as computer viruses), power failures, official orders, lawful internal industrial action and the failure or limitation of performance of communication networks and gateways of other operators.
(5) Liability under the Product Liability Act remains unaffected.
9 Term of the contract
(1) The term and termination options are set out in the framework agreement.
(2) Any termination must be in writing.
(3) Both parties are entitled to terminate the framework agreement at any time without notice for good cause. Good cause shall be deemed to exist if:
- the customer is more than 10 working days in arrears with payments due after receipt of the payment reminder or warning;
- the customer violates material provisions of these GTC (§ 4) or other legal provisions and has not remedied the situation within a reasonable period of time despite a warning. A warning is not required if this does not promise success or if the breach is so serious that the provider cannot reasonably be expected to adhere to the contract.
(4) In the event of ordinary termination, AVANTO undertakes to provide the customer with all contract and customer data stored with him (also regarding the customer’s accounts) as well as all access until the end of the term.
(5) After termination and, if applicable, expiry of the notice period, AVANTO will block the terminated service for the customer and delete the customer data stored in the respective service. Upon termination of the contract, the customer loses his authorization to use the respective service and ceases to use it. The customer is responsible for a timely backup of his data and has no claim to the return of the data collected by him after termination of the contract.
10. Competition and advertising
(1) Both parties agree to treat the technical and commercial details of their cooperation as confidential.
(2) Both parties are permitted, until revoked by one party, to report in a general manner in general customer information, brochures, presentations etc. that a service relationship exists between the parties or, in the case of agencies, with their end customers. The parties shall provide company logos for reference purposes upon request.
11. Data protection
(1) Compliance with data protection regulations is of particular importance to AVANTO. The following regulations apply in addition to the data protection regulations.
(2) Some products and services record and analyze the behavior of the customer’s users across media channels. This data is collected and used by AVANTO exclusively in anonymized form.
(3) AVANTO will not pass on any personal data from the customer’s inventory, of any kind whatsoever, to third parties or use it for its own purposes. Furthermore, only customer data relevant for smooth technical operation will be stored on the server and stored in accordance with standard market security standards – encrypted as far as possible. Regarding both parties’ obligations, reference is made to the Federal Data Protection Act. AVANTO is entitled to use data generated during the use of the services by the user, such as collected tracking / tag information and statistics, in an anonymized manner.
(4) Outside of login and account management, the collection, processing or use of personal data by means of the services by the customer is prohibited. Insofar as personal data is nevertheless collected, processed or used by the customer within the scope of the services, this constitutes commissioned data processing by AVANTO in accordance with § 11 BDSG and the customer will independently observe compliance with the necessary legal obligations or commission AVANTO accordingly (for a fee). The customer alone is responsible for checking the legal admissibility, in particular the admissibility under data protection law, of the use of counting pixels, tracking codes and the setting of cookies as well as the legally compliant use of the AVANTO software in the specific individual case (in particular with regard to customer data, the country of origin of customers and the country in which the provider’s services are to be effective or used in accordance with the customer’s specifications).
(5) Should AVANTO be held liable for violations of data protection regulations or the personal rights of third parties by the customer or should the customer suffer other damages as a result, the customer shall indemnify and hold AVANTO harmless from all conceivable claims, including the reasonable costs of legal defense, insofar as the customer is responsible for the violation/damages.
12. information about further offers from AVANTO
(1) AVANTO will also use the customer’s e-mail address, which is mandatory for the execution of the contract, to inform the customer occasionally about current developments and new services or products at AVANTO.
(2) The customer can object to this use of the e-mail address at any time by sending an e-mail to AVANTO at info@avanto-vr.com. The customer will be informed of this possibility of objection again in every advertising e-mail from AVANTO.
13. Final provisions
(1) This contract shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction is Bremen.
(2) Only undisputed or legally established counterclaims may be offset against AVANTO’s claims or a right of retention may be asserted.
(3) If AVANTO intends to change the General Terms and Conditions, AVANTO will inform the customer accordingly. If the customer does not object in due form or time, the amended terms and conditions shall enter into force two (2) calendar weeks after receipt of the notification at the beginning of a new calendar week. The objection is only in due form and time if the objection is made in text form and is received by AVANTO within two weeks of receipt of the notification. AVANTO will inform the customer of the possibility of an objection, its form and deadline and the legal consequences of an objection not made in due form or time.
(4) Should individual provisions of this contract be invalid or lose their validity due to a circumstance occurring at a later date, the validity of the remainder of the contract shall remain unaffected. The invalid contractual provisions shall be replaced by a provision that comes closest to what the contracting parties would have wanted if they had considered the point in question. The same applies to loopholes in this contract.
