GENERAL TERMS AND CONDITIONS OF FOOTPRINT3D B.V.
General terms and conditions of FootPrint3D B.V., located in Maasbree (KvK number 89891368).
GENERAL PROVISIONS
Article 1 – Applicability.
1.1 In these terms and conditions, “FootPrint3D” refers to the following.” referred to FootPrint3D and all affiliated (legal) persons and corporations, who use these general conditions with the consent of FootPrint3D, and are referred to as “Client” designated (legal) persons and companies to whom an offer is addressed and/or with whom an agreement has been or will be concluded.
1.2 These terms and conditions apply to all advice by, offers from, assignments to and agreements with FootPrint3D. Only FootPrint3D’s written acceptance of deviations from these terms and conditions are valid. The applicability of general terms and conditions of the Client is expressly rejected.
1.3 Nullity or nullification of one or more provisions of these general terms and conditions shall not prevent the applicability of the remaining provisions of these general terms and conditions. FootPrint3D and the Client will consult to replace void or nullified provisions of these terms and conditions with provisions that are as close as possible to the purpose and intent of the void or nullified provisions.
1.4 In these general terms and conditions, the term “goods” shall include, but not be limited to, hardware and/or software and/or materials. “Hardware” means (among other things) foot scanner(s) and 3D printers. “Software” means (inter alia) computer software and/or website application. “Materials” means (among other things) raw materials for the purpose of production.
1.5 The term “services” in these terms and conditions shall include, but not be limited to, the provision of service and/or training and/or subscriptions. “Service” means (among other things): installing sold items (or having them installed) and remedying faults (or having them remedied). “Training” means (among other things): the delivery (or commissioning) of online and physical training courses. “Subscriptions” means (among other things): agreements for the performance of periodic maintenance and/or the supply of materials and/or lease arrangements for hardware.
Article 2 – Offer and agreement
2.1 An offer by FootPrint3D is without obligation and may be revoked, withdrawn or modified by FootPrint3D within 7 (seven) calendar days of FootPrint3D’s knowledge of the acceptance of its offer. Any errors or omissions in an offer (which may or may not be the result of incorrect and/or incomplete data provided by the Client), instructions or advice provided by FootPrint3D in the context of an offer, calculations, budgets, budgets and information not exclusively addressed to the Client – general – do not bind FootPrint3D.
2.2 If an offer has been made by FootPrint3D, a contract between FootPrint3D and the Client will only be formed by FootPrint3D executing an assignment from the Client. Only FootPrint3D’s offer or FootPrint3D’s invoice for the execution of the order, respectively, is deemed to correctly reflect the content of the agreement.
2.3 If no offer has been made by FootPrint3D, a contract is only established by FootPrint3D’s written acceptance or execution of an order. Only FootPrint3D’s written acceptance of the assignment or FootPrint3D’s invoice for the execution of the assignment, respectively, is deemed to correctly reflect the content of the agreement.
2.4 Only modifications and/or additions to the contract accepted in writing by FootPrint3D by the Client can be valid.
2.5 FootPrint3D has the right to unilaterally modify the offer and the contract, including the general terms and conditions, with immediate effect on elements (such as indexed rate changes). If a performance is then provided that differs substantially from the promised performance, the Client is in that case entitled to dissolve the agreement by the date on which the change would take effect.
2.6 The agreement concluded between the parties is entered into for a duration and scope agreed between the parties (per use, for one month or one year). The term of the contract is tacitly renewed each time for the duration of the original agreed period, unless the means of payment (‘tokens’) purchased by the Client from FootPrint3D for the use of the license are depleted and/or no new tokens have been purchased in the last twelve (12) months, or the Client or FootPrint3D terminates the agreement in writing with reasonable notice of 1 week (in the case of a monthly contract) and 1 (one) month (in the case of an annual contract), with any unused tokens then expiring simultaneously. A fixed-term contract cannot be terminated mid-term. FootPrint3D shall never owe any damages due to termination.
2.7 The Client is authorized to change the agreement on an interim basis if there is an upgrade in the number of licenses and/or tokens. Downgrading it is only possible at the time of renewal of an agreement.
2.8 In the event that the Client has not realized the agreed number of items (to be designed) in the month in question, the remainder may still be realized in the following month. In that case, in that new month, the number of items (to be designed) applicable for that particular month will be debited first and then any remaining number of items (not yet used) from the previous month. Any unused numbers older than one month, thus fall thereafter.
2.9 The Client has the right to dissolve the agreement only if agreed in writing or the Client derives this right from mandatory law. If the Client (validly) dissolves the contract, the Client is obliged to simultaneously return items and rights delivered under the contract, simultaneously terminate exercise of rights granted under the contract, and reimburse FootPrint3D for costs incurred by FootPrint3D in connection with the offer, creation and execution of the contract. FootPrint3D’s performance is then not an object of undoing.
2.10 FootPrint3D has the right to unilaterally terminate the contract in whole or in part with immediate effect and/or to suspend in whole or in part the execution from the contract with immediate effect (including non-exhaustively the rendering inoperative of items supplied by FootPrint3D) if one or more of the following events takes place(s):
The Client is required to immediately notify FootPrint3D in writing of the occurrence of (any of) the events referred to in this article. FootPrint3D shall never owe the Client any damages due to the termination of the contract and the suspension of obligations arising from the contract due to the events referred to in this article.
2.11 If the contract is dissolved, the performance already received by the Client in execution of the contract and the Client’s related payment obligations are not subject to an undoing obligation, unless FootPrint3D is in default with respect to that performance. Amounts of money invoiced by FootPrint3D for services performed before or at the time of the dissolution of the contract are immediately due and payable by the Client after the dissolution. FootPrint3D has the right, in the event of termination of the contract other than on the grounds of the Client’s failure to fulfill its obligations, to demand from the Client reasonable compensation for the loss or loss of profit it has suffered. That fee must be paid within 30 days of billing.
Article 3 – Price and payment
3.1 Prices and rates communicated by FootPrint3D are exclusive of sales tax, other government-imposed levies and other sums of money owed to third parties, and exclusive of costs of, among other things, cabling work, removal and disposal of existing equipment, 230 V utilities, licenses and UTP cabling, unless expressly stated otherwise. Prices and rates not disclosed in an offer addressed exclusively to the Client do not bind FootPrint3D. No rights can be derived by others from prices and rates stated in an offer addressed to the Client.
3.2 Invoices from FootPrint3D must be paid in Euros in accordance with the payment terms stated on FootPrint3D’s invoice. If no payment term is specified, the invoice must be paid within 30 calendar days of the invoice date.
3.3 If the Client has not paid sums due within the applicable period, the Client shall immediately be in default and shall owe statutory commercial interest on the outstanding sums. If the Client fails to pay the sums due after the first reminder, the Client shall owe FootPrint3D the amount of FootPrint3D’s actual out-of-court and in-court legal expenses (including unliquidated litigation costs) and court costs to be incurred by FootPrint3D, which costs shall be set at a minimum of 15% of the amount due to FootPrint3D in the principal sum.
3.4 FootPrint3D has the right to apply payments from the Client (despite the Client’s statements to the contrary) first to settle claims not arising from the contract and claims arising from the Client’s failure to perform obligations arising from the contract.
3.5 The Client does not have the right to suspend and/or set off payment obligations to FootPrint3D against FootPrint3D’s obligations to the Client. The Client does not have the right to terminate the contract in whole or in part if FootPrint3D is in default.
3.6 The Client is obliged to provide (additional and/or substitute) security for the satisfaction of FootPrint3D’s claims arising from the contract at FootPrint3D’s first request.
3.7 FootPrint3D has the right to invoice on an advance basis and/or in installments and to suspend the execution of the obligations arising from the contract until payment has been made. FootPrint3D is also entitled to set off claims of the Client – whether due or not – against FootPrint3D’s obligations to the Client.
3.8 Any ‘means of payment’ (tokens) purchased by the Client from FootPrint3D, are not redeemable and cannot be sold back to FootPrint3D.
3.9 The Client is bound to pay for purchased items first, before FootPrint3D is bound to deliver those sold items.
Article 4 – Reservation of ownership and rights.
4.1 Ownership of all goods delivered by FootPrint3D is only transferred to the Client if and after the Client has fulfilled all that she owes to FootPrint3D under any agreement, in respect of goods delivered or yet to be delivered or, under such an agreement, work carried out or to be carried out for the Client, as well as in respect of the claims for failure to comply with such agreements where, in addition to delivery of goods, the carrying out of certain work is also stipulated, including sums of money owed under article 3.3. Among other things, any license shall expire, or any license may be revoked, in case of (partial) non-payment by the Client.
4.2 Until full payment has been made, the Client shall not have power of disposition in respect of rights, which have been delivered or granted under the conditions precedent referred to in this article 4.1 and shall be obliged to inform interested parties – including intended assignees – of such power of disposition.
4.3 FootPrint3D shall have free access to the Client’s premises at all times to retrieve any items delivered under retention of title if necessary.
Article 5 – Intellectual property rights
5.1 All intellectual property rights in respect of all products (such as computer software, databases and documentation) created, provided and/or accessible under and/or in the context of the agreement (which expressly includes the offer), hereinafter referred to as: the“Products“, belong exclusively to FootPrint3D and/or its licensor(s). The Client shall not disclose, reproduce and/or modify the Premises and shall not (otherwise) act as creator and/or right holder thereof. The Client shall not remove or alter indications of intellectual property rights from and of the Deliverables.
5.2 The Proposals and technologies, materials, methods and/or information contained or disclosed therein shall be deemed to contain only confidential information of FootPrint3D and/or its licensor(s), with respect to which the following applies in Article 8.1 (first sentence). The Client shall not remove or alter indications in and/or on the Proposals regarding the confidential nature of information.
5.3 FootPrint3D has the right to take technical measures to protect and/or secure the Premises. The Client shall not circumvent, remove or circumvent technical measures for the protection and/or security of Proposals (or allow them to be circumvented) and shall secure Proposals and have anti-virus software in operation at all times.
5.4 Any rights granted by FootPrint3D to the Client with respect to the Premises include only non-exclusive rights expressly described in the agreement, which shall terminate with immediate effect by use of the Premises in violation of FootPrint3D’s and/or its licensor(s)’ rights, the agreement, these Terms and Conditions and/or applicable law. The Client does not acquire any intellectual property rights through the agreement. Rights granted by FootPrint3D are non-transferable, non-exclusive, non-pledgeable and non-sublicensable.
5.5 If and to the extent that the Premises are provided and/or accessible to the Client, with respect to which intellectual property rights belong to others than FootPrint3D, the terms and conditions applied by the rights holder(s) shall apply with respect to those Premises in lieu of provisions in these General Terms and Conditions that deviate therefrom. The Client accepts the terms and conditions of third parties referred to in this article, which the Client has had the opportunity to learn about by requesting FootPrint3D to provide them to the Client.
5.6 The Client shall indemnify FootPrint3D against third party claims based on the assertion that FootPrint3D is violating third party intellectual property rights by the use of Supplies provided and/or prescribed by the Client, perform all of FootPrint3D’s obligations resulting from those claims as its own, and compensate FootPrint3D for all damages resulting from those claims.
Article 6 – Liability and compensation.
6.1 FootPrint3D’s liabilities and legal obligations for damages are limited by Articles 6.1 to 6.7. Articles 6.1 to 6.7 apply mutatis mutandis to claims based by the Client on wrongful acts of FootPrint3D. FootPrint3D’s auxiliaries have the right to invoke articles 6.1 to 6.7 against the Client.
6.2 FootPrint3D shall only be liable for failures attributable to FootPrint3D due to FootPrint3D’s intent or gross negligence. Shortcomings attributable to FootPrint3D are in any case not considered to be behaviors of (prescribed) auxiliary persons, (incompetent) use of (unsuitable) (prescribed) auxiliary materials, (modifications of) materials and software, shortcomings due to behaviors of other suppliers of the Client, mutilated or lost data or loss of digitally stored information, modification of the items and/or services other than by or on behalf of FootPrint3D, the use of the items and/or services in violation of the applicable terms and conditions, the Client’s failure to perform timely maintenance, external causes, problems with network connections, voltage supplies and failures and shortcomings resulting from non-secure (electronic) transmission of statements and data. FootPrint3D is in no case liable for (consequences of) buying unsuitable items and (incorrect) use of FootPrint3D’s advice and not exclusively addressed to the Client – general – information.
6.3 FootPrint3D’s liability can only arise after the Client has given FootPrint3D proper notice of default by means of a letter sent by registered mail without delay, but no later than fourteen days after the delivery of the goods delivered or after the completion of the work performed, or in the event of a failure not observable at the time of delivery, without delay, but no later than fourteen days after the discovery of the failure, and has given FootPrint3D the opportunity to remedy the failure for a reasonable period of time.
6.4 An obligation of FootPrint3D to pay damages is limited to direct damages up to the amount of the agreed price, excluding sales tax and other government imposed levies, to the extent paid by the Client. If the agreement is primarily a term agreement for a period of more than 1 (one) year, the agreed price shall be set at the total amount of the price agreed for 1 (one) year, excluding sales tax and other government-imposed levies, to the extent paid by the Client. In no event shall the compensation payable by FootPrint3D exceed the sum of money paid under FootPrint3D’s liability insurance policy in connection with the indemnity obligation in question. Under no circumstances shall FootPrint3D be obliged to compensate for intangible and indirect damages, including, but not limited to, consequential damages, business damages, image damages, environmental damages and damages due to loss of time, loss of savings, loss of data or documents and/or loss of financial benefit.
6.5 The Client shall indemnify FootPrint3D against all claims of third parties, such as employees and other auxiliaries, arising out of and/or relating to items delivered and/or services rendered by FootPrint3D under and/or in connection with the contract. Among other things, the Client shall indemnify FootPrint3D against all third party claims based on product liability for items supplied by the Client to third parties, which include items supplied by FootPrint3D to the Client, unless the liability was caused solely by the items supplied by FootPrint3D.
6.6 Any right of claim of the Client and/or third parties against FootPrint3D expires 1 (one) year after delivery of the delivered items, or 1 (one) year after completion of the work performed.
6.7 The Client warrants that data to be processed by FootPrint3D, the processing of the data and the result of that processing are not in violation of applicable law, including the General Data Protection Regulation (hereinafter referred to as “AVG“). FootPrint3D is not liable for any direct or indirect damages, costs and interest, on any account, resulting from acting in violation of the legislation regarding the processing of personal data. The Client shall indemnify FootPrint3D against all claims by third parties based on the assertion that data processed by FootPrint3D, the processing of data and/or the result of such processing violates applicable rights, including, but not limited to, the AVG and/or rights arising therefrom.
Article 7 – Force majeure
7.1 If FootPrint3D is temporarily unable to execute the contract due to force majeure, it is entitled to suspend all or part of the execution of the contract for as long as the force majeure continues. If FootPrint3D is permanently unable to perform the contract due to force majeure, it has the right to terminate all or part of the contract with immediate effect. Force majeure includes failures of (suppliers of) FootPrint3D and/or other auxiliaries, defectiveness of (Client’s prescribed) items and software, governmental measures, network failures, internet failures, improper network voltage and weather conditions.
7.2 If FootPrint3D is temporarily or permanently unable to execute the contract due to force majeure, the Client has no claim against FootPrint3D for execution of the contract, dissolution of the contract and/or damages.
7.3 If FootPrint3D has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfill its obligations, it is entitled to invoice the already delivered or the deliverable part separately and the Client is obliged to pay this invoice as if it were a separate agreement.
Article 8 – Confidential information
8.1 The Client warrants that third parties, by acts and/or omissions of them and/or of their employees and/or other auxiliary persons, do not (can not) take cognizance of information of a confidential nature provided by FootPrint3D – or obtained from FootPrint3D and resulting from the execution of the contract. In any case, information is deemed to be confidential if it is designated as such by FootPrint3D. Software, source, access and identification codes are designated as confidential in any case.
8.2 By violation of the provisions of paragraph 1 of this article, the Client shall be in default by operation of law and shall owe FootPrint3D an immediately due and payable penalty of EUR 100,000 for each violation and of EUR 5,000 for each day that the violation continues, without prejudice to the Client’s obligation to cease and desist from any violation, to compensate FootPrint3D for any damages resulting from any violation and to account for and remit to FootPrint3D any benefits resulting from any violation.
8.3 The Client permits FootPrint3D to collect information (not identifiable personal data) disclosed during or through the contract to improve its Software.
Article 9 – Personal data protection / Data breach notification obligation
9.1 Protection of personal data
9.1.1 FootPrint3D and the Client mutually undertake to act in accordance with personal data protection legislation.
9.1.2 FootPrint3D will not, without Client’s explicit (written) consent or a legal obligation, provide Client’s personal data to third parties or use it for any purpose other than for the agreed purposes. In doing so, FootPrint3D considers the necessity and nature of the agreement entered into with the Client, as well as the purpose for which the personal data was collected or used and the period of time the data is required to be kept for that purpose.
9.1.3 FootPrint3D has taken appropriate technical and organizational measures to secure the Client’s personal data against loss or any form of unlawful processing.
9.1.4 FootPrint3D is entitled to engage third parties in the execution of a distance contract. If this third party is going to process Client’s personal data, FootPrint3D needs Client’s consent. By entering into an agreement with FootPrint3D, the Client agrees to the processing of personal data by any third party contractors.
9.1.5 During the term of the Agreement, the Client shall be free to engage an independent expert to monitor or have an independent expert monitor FootPrint3D’s compliance with the processing of personal data. Client shall bear the costs in such a case.
9.1.6 FootPrint3D processes the Client’s personal data only within the European Economic Area, unless FootPrint3D and the Client have made other written agreements in this regard.
9.2
Duty to report data breaches
9.2.1 In compliance with the Act, FootPrint3D will report any data breach to the Personal Data Authority. Where appropriate, FootPrint3D will inform Client in a timely and complete manner. The Data Breach Notification Policy Rules of the Personal Data Authority provide more information on this.
9.2.2 In determining whether there is a data breach, FootPrint3D (and Client) shall make use of the relevant provisions of the AVG and/or the Data Breach Notification Policy.
9.2.3 All security incidents that cause the protection of personal data to be breached at any time or that expose the personal data to loss or unlawful processing will be considered by FootPrint3D (and Client) to be a ‘data breach’ in any case (e.g. loss of a USB stick or computer, break-in by a hacker, sending an email in which the email addresses are visible to all addressees, a calamity such as fire in a data center or a malware infection).
9.2.4 The data breach notification obligation does not apply if the breach is unlikely to pose a high risk to the rights and freedoms of natural persons.
9.2.5 If Principal has become aware of a data breach, he/she must report it to the Personal Data Authority as soon as possible, where possible within 72 hours. Should this fail, Client must provide an explanation for the delay.
Article 10 – General
10.1 Declarations or conduct with respect to which the Agreement or these General Terms and Conditions require the written form shall also be considered electronic declarations and/or statements.
10.2 The Client’s rights, obligations or claims against FootPrint3D (both contractual and property) are not assignable, except with FootPrint3D’s prior written consent.
10.3 The Client is not permitted, without FootPrint3D’s prior written consent, to use or sell any items (more specifically: the orthotics/leathers designed by the Client through the use of FootPrint3D’s Hardware, Software and Materials) resulting from the Agreement with FootPrint3D to business associates/other parties (but only to consumers).
10.4 Offers from and agreements with FootPrint3D are exclusively governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 does not apply to offers by and contracts with FootPrint3D.
10.5 The absolutely competent court in the district of East Brabant has jurisdiction and is exclusively competent to take cognizance of disputes arising directly or indirectly from the agreement.
DELIVERY OF BUSINESS AND SERVICES
Article 11 – General
11.1 Deadlines communicated by FootPrint3D are determined to the best of FootPrint3D’s knowledge based on data known to FootPrint3D at the conclusion of the contract, do not constitute an essential part of the contract, and are observed by FootPrint3D to the extent possible. FootPrint3D is not in default by the mere exceeding of a deadline and the Client cannot derive from the mere exceeding of a deadline communicated by FootPrint3D the right to dissolve the contract in whole or in part nor to claim damages. Deadlines do not apply if they cannot be met due to circumstances beyond FootPrint3D’s control that occurred after the conclusion of the contract. Deadlines only start when all commercial and technical details have been agreed upon and all necessary data are in possession of FootPrint3D, the agreed (term) payment has been received and the necessary conditions for the execution of the contract have been met.
11.2 The Client is obliged to take delivery of the goods to be delivered and services to be provided within the agreed deadlines or at FootPrint3D’s first request. By violation of the obligations referred to above in this article, the Client shall be immediately in default.
11.3 Services rendered by FootPrint3D, goods delivered and/or work performed to which the Client has not protested in writing within fourteen days of the delivery and/or performance thereof, are deemed to be in compliance with the contract.
11.4 If FootPrint3D delivers goods and/or provides services to the Client supplied by others and/or procured from others, with respect to (the soundness of) those goods and/or services, the terms and conditions of those goods respectively of that service provider shall apply in addition to and with priority to the agreement between FootPrint3D and the Client (including these General Conditions).
Article 12 – Delivery and acceptance of goods (“Hardware”)
12.1 If no other place of delivery has been agreed upon, the (dis)delivery of items (such as “Hardware”) by FootPrint3D takes place at the location of the Client’s business. FootPrint3D has the right to fulfill delivery obligations in parts.
12.2 Transportation and shipping of the items to be delivered by FootPrint3D to the Client shall be at the expense of the Client, unless specifically agreed in writing, applying the rates announced by FootPrint3D.
12.3 The costs of executing changes and/or additions to the contract requested by the Client or accepted by FootPrint3D with the Client’s prior consent shall be borne by the Client.
12.4 Without prejudice to articles 4.1 and 11.2, items to be delivered by FootPrint3D are at the risk of the Client from the moment when (an auxiliary person of) the Client has actual control over these items respectively from the moment of the Client’s failure to take delivery of items to be delivered by FootPrint3D.
12.5 FootPrint3D is under no obligation to accept items returned to FootPrint3D by the Client without its prior written consent. The acceptance of items returned by the Client does not imply FootPrint3D’s recognition of the reason for the return. The agreed fees are payable by the Client until FootPrint3D has credited the Client for these items. If FootPrint3D does not accept returned items, the Client is required to reimburse FootPrint3D for (transportation) costs incurred by FootPrint3D in connection with the returned items. If the Client makes items available to FootPrint3D, the Client guarantees that they meet the specifications necessary for the execution of the agreement.
Article 13 – Warranty, investigation and complaint, statute of limitations
Article 14 – Provision and purchase of services
14.1 Only when agreed in writing will FootPrint3D provide services to the Client.
14.2 If one of the services described in article 1.5 has been agreed upon by FootPrint3D, the Client is obliged, prior to the (completion) delivery of sold items, to make available a place suitable for the services and facilities required for the functioning of the items (such as a workspace with computer, data and telecommunication facilities, gas, water, electricity, light and heating) and facilities (such as sanitary facilities for workmen) and to take all necessary safety and precautionary measures, to maintain and comply with government regulations.
14.3 FootPrint3D endeavors to perform the agreed upon services to the best of its ability and with care according to agreements and procedures accepted in writing by FootPrint3D, but FootPrint3D does not guarantee the achievement of the intended result. Services are provided per half-day period, which includes preparation time and travel time, unless otherwise agreed upon.
14.4 If it is agreed that services will be provided in installments, FootPrint3D has the right to suspend the execution of the following installments until the Client has approved in writing the results of the preceding installments.
14.5 FootPrint3D may take items and/or services out of service temporarily if necessary for maintenance or service purposes.
14.6 If FootPrint3D, at the direction or request of the Client or with the Client’s prior consent, has performed work outside of the content and/or scope of the agreed services (for example, performing updates or modifying the Software), the Client shall owe FootPrint3D an (additional) sum of money to be determined by FootPrint3D based on its rates. FootPrint3D is not required to perform work outside the content and/or scope of the agreed services and may require that a separate agreement be established for that purpose.
14.7 The Client is not entitled to release and/or access databases created by FootPrint3D and/or resulting from FootPrint3D’s services.
14.8 In case service in the form of giving (or having given) a training has been agreed upon, such training must be followed and completed within three (3) months after the invoice date, unless the parties have agreed otherwise in writing.
DEVELOPMENT, USE AND MAINTENANCE OF SOFTWARE
Article 15 – Development of Software
15.1 FootPrint3D is obliged to execute an order to develop Software to the best of its ability and with care, based on data provided in writing by the Client, for the accuracy, completeness and consistency of which the Client vouches, and based on functional specifications established in writing at the conclusion of the contract.
15.2 FootPrint3D has the right, but is not obliged, to examine the accuracy, completeness and consistency of data and functional specifications provided by the Client and has the right to suspend the execution of the agreed assignment until the Client has rectified any imperfections identified by FootPrint3D.
Article 16 – Use of Software
16.1 Without prejudice to the provisions of Article 5, FootPrint3D’s Client has the non-exclusive right under the agreement to use the Software (including but not limited to a ‘Rhino License’) provided and/or accessible to the Client exclusively during the term and subject to the agreement, on the processing units and/or for the connections for which the right of use is granted.
16.2 The Client has neither the right to modify, expand, apply in other Software, sell, rent out, alienate, provide to third parties, use for the benefit of third parties and/or make accessible to third parties (carriers of) the Software and information contained therein, nor the right to establish limited rights on (carriers of) the Software.
16.3 The Client is prohibited from duplicating, modifying, expanding, or applying the Software and associated documentation to other Software with the exception of making a backup for its own use.
16.4 Upon termination of the right of use, the Client is required to surrender to FootPrint3D all carriers of the Software and information contained therein developed, provided and/or accessible under the contract, or at least to remove such Software and information contained therein from carriers belonging to the Client without retaining a copy thereof.
16.5 FootPrint3D does not warrant that the Software and services it provides will function without error or interruption (for example, when using non-current or outdated operating systems, browsers, plug-ins, scripts, other Software, and hardware or due to an outdated or newer version of ‘Rhino’). FootPrint3D endeavors to remedy, within a reasonable period of time, any deficiencies that the Client properly reports, in writing, by registered mail, within fourteen days after the delivery of the delivered goods or after the completion of the performed work, or in the case of a deficiency that was not observable at the time of delivery, without delay but at the latest within fourteen days after the observation of the deficiency if it concerns Software developed by FootPrint3D itself. Restoration may be suspended until a new version of the Software is in use. If Software was developed on behalf of the Client, FootPrint3D will charge the Client for costs of recovery according to usual rates.
16.6 In the event of Client’s additions or comments regarding Software made available to the Client by FootPrint3D, FootPrint3D is free to make or implement any changes or modifications to the Software.
16.7 The Client may use the Software developed by FootPrint3D for a 30-day trial period, without obligation and free of charge. During this trial period, FootPrint3D shall be free to modify the Software on an interim basis or no longer make it available to the Client.
16.8 Apart from or in addition to what has been agreed in article 6 with regard to FootPrint3D’s liabilities and/or legal obligations to indemnify, FootPrint3D is not liable for indirect damage to the Software developed by it or put into use by the Client, or at least the possible liability on the part of FootPrint3D is limited to what has been determined in article 6.2 (first sentence).
16.9 The Software loaned to the Client by FootPrint3D, is developed in the latest version of ‘Rhino’. If Client does not use that latest version, FootPrint3D is not obliged to provide the maintenance and/or support mentioned below in article 18. If the Client has its own ‘Rhino’ license, the Client is not entitled to maintenance and/or support for ‘Rhino’ by FootPrint3D, but is entitled to the maintenance and/or support for other Software by FootPrint3D mentioned below in article 18.
Article 17 – Delivery, installation and acceptance
17.1 FootPrint3D delivers the Software to the Client by providing the Software in accordance with the functional specifications agreed upon in writing and, if agreed upon, by installing the Software. The Client is deemed to have accepted the Software upon delivery or, if installation of the Software by FootPrint3D is agreed upon, upon completion of the installation. Non-acceptance of a particular phase and/or component does not preclude acceptance of another phase and/or component.
17.2 The Client accepts the Software in the condition it is in at the time of delivery, with all visible and invisible defects. An acceptance test is not performed.
17.3 The Software and the related Proceeds are made available to the Client once. Unless otherwise agreed in writing, the Client shall not have a right to deliver or otherwise provide source code and technical documentation of Software developed and/or provided pursuant to and/or under the Agreement.
17.4 In the event that installation of the Software has been agreed, then at FootPrint3D’s first request, the Client will provide access to relevant computer or local network in order to adequately and properly perform the agreed installation work.
17.5 FootPrint3D is not liable in the event that the Client’s operating system is not compatible with the Software developed or commissioned by FootPrint3D, or the Client’s computer in question does not have the minimum specifications, on which FootPrint3D’s Software normally operates and runs.
Article 18 – Software maintenance and support
18.1 Subject to a written agreement to the contrary, FootPrint3D is not obligated to perform maintenance or provide support regarding Software delivered/to be delivered to the Client or release new versions thereof. FootPrint3D is also not obliged after the conclusion of an agreement to develop, provide and/or make accessible (new versions of) Software, to offer or accept an agreement to maintain or support related to that (new versions of) Software.
18.2 The Client grants FootPrint3D all necessary cooperation necessary for the (installation, maintenance and support) work by FootPrint3D. The foregoing shall mean, in any case, that the Client shall provide FootPrint3D with all details of identified errors, make available the source codes and technical documentation of the Software, provide access to the site of the items, and provide the facilities necessary for the items to function such as network facilities. FootPrint3D is entitled to modify and use the aforementioned items/Software in the course of performing maintenance. Client shall then, at FootPrint3D’s first request, temporarily discontinue use of the Software.
18.3 If and to the extent that support relating to the Software has been agreed between FootPrint3D and the Client, FootPrint3D must make efforts to do so free of charge, unless the extent of the support requested by the Client exceeds the bounds of reasonableness and fairness, in which case FootPrint3D is entitled to charge the Client a reasonable fee for this. In the event of support, FootPrint3D will act in accordance with the provisions of Article 9 above (AVG).
18.4 If, after termination or dissolution of the agreement with FootPrint3D, the Client enters into a new agreement with FootPrint3D at any time, then, in addition to a renewed right to use the license, the Client is then (again) entitled to updates.
