1.1 The following General Terms and Conditions (hereinafter “the Terms and Conditions”) have exclusive application. The Terms and Conditions shall form an integral part of all agreements between HOLOGATE GmbH (hereinafter “HOLOGATE”) and the person who or the legal entity (such person or legal entity hereinafter “Customer”) to whom HOLOGATE sells hardware or other products or licenses rights in and to software. HOLOGATE and the Customer are hereinafter jointly referred to as “Parties”.
1.2 Standard business conditions furnished by the Customer that are contrary or deviate from the Terms and Conditions set forth herein will not be recognized unless HOLOGATE expressly consents to their application in writing. The Terms and Conditions also apply where HOLOGATE performs its obligation vis-à-vis the Customer in the knowledge of and without objecting to standard business conditions that are contrary or deviate from the Terms and Conditions.
1.3 The Terms and Conditions set forth hereinafter apply exclusively in relation to merchants, legal entities of the public law and public trusts.
1.4 Upon agreement to these Terms and Conditions, these Terms and Conditions may supersede terms and conditions previously in place. It is understood that all existing and future agreements between the Parties are subject to these Terms and Conditions upon their agreement by the Customer.
- Documentation, Confidentiality
2.1 All documentation like sketch plans, instructions, specifications and other material provided for by HOLOGATE as well as all information included therein regarding the application and maintenance of the subject-matter remain the exclusive property of HOLOGATE irrespective of their delivery to the Customer.
2.2 Such documentation and materials are confidential and the Customer shall not reproduce, make available to third-parties or exploit on behalf of third-parties this documentation or material without prior written consent notified by HOLOGATE. This does not apply to the communication thereof to the Customer’s employees which are required or allowed to use such documents in performance of their obligations under their employment contract.
2.3 The Customer shall enforce the aforementioned obligations in a suitable and reasonable manner vis-à-vis his employees.
- Conditions of payment, prohibition of set-offs
3.1 Payments become due and payable within 7 days from being invoiced.
3.2 For the use of third party games which are made available to the Customer, Licensee shall be able to purchase credits via Paypal beforehand (“HOLOCOINS”). The HOLOCOINS can then be used up for plays of third party games in accordance with the current price list issued for a particular territory and updated by HOLOGATE from time to time. A game is deemed played and the relevant amount of HOLOCOINS is deducted from the balance if 80% of the game is played. No playing of a third party game is possible if the Licensee’s balance has insufficient HOLOCOINS.
3.3 In the event the Customer is late in the settlement of any portion of the payment, such unpaid portion shall be subject to interest at the rate of 1.5 % per month, however without prejudice to any other remedies at HOLOGATE’s disposal in the event of such default. In case of default HOLOGATE is further entitled to withhold the performance of any of its services; if periodical payments have been agreed, HOLOGATE is entitled to suspend the services if the Customer is in default.
3.4 The Customer is not entitled to set-off his claims unless these are either not contentious or they have been confirmed by a non-appealable decision in a court of law.
3.5 If after the formation of the contract the financial conditions of the Customer substantially deteriorate or if HOLOGATE learns of circumstances which are likely to endanger the enforcement of the claim to render payment, HOLOGATE is entitled to retain performance of its obligations under the contract until the Customer performs its obligations or provides HOLOGATE with sufficient security for the outstanding amount.
3.6 HOLOGATE may fix a reasonable grace period during which the Customer may elect to perform his obligations under the contract under condition concurrent in return for performance rendered by HOLOGATE or to provide HOLOGATE with sufficient security. If the Customer fails to do any of the above prior to the expiry of this term, HOLOGATE is entitled to repudiate the contract without prejudice to the recovery of further damages.
- Transfer of risk, cost, and insurance
4.1 The point of transfer is pursuant to EXW Dachau (INCOTERMS 2020).
4.2 If the Customer is in default of accepting the goods or if the Customer returns the goods without reasonable grounds to do so, HOLOGATE is entitled to recover damages if the Customer fails to accept the goods before expiry of a reasonable grace period notified to the Customer. HOLOGATE may claim 20 % of the net contract value unless HOLOGATE proves the damage to exceed this amount or the Customer proves that the damage is lower than this amount or that HOLOGATE has incurred no damage.
4.3 In case of warranty shipments, which replace or substitute items that are still part of the warranty provided by HOLOGATE and have been identified as such by the respective staff, shipping of aforementioned items will be carried out DAP (INCOTERMS 2020).
- Force majeure, contractual obstacles
5.1 In case of force majeure, HOLOGATE is entitled to postpone delivery for the full duration of such condition. If HOLOGATE is impeded from rendering performance due to force majeure for a period in excess of six months, HOLOGATE is discharged from the obligation to deliver. Force majeure signifies all circumstances which HOLOGATE is not responsible for and which render performance by HOLOGATE impossible or impose on HOLOGATE undue hardship, e.g. strike, lock-out, civil war, acts of terrorism, civil unrest, natural disasters, import or export sanctions, shortage of energy or resources and delayed supply for which HOLOGATE is not responsible. If HOLOGATE is discharged from the obligation to deliver, the Customer is entitled to repudiate the contract.
5.2 If delivery is, at the Customer’s request, postponed until after the agreed time of delivery, the Customer shall be charged all additional costs for storage for the time thereafter; i.e. if storage occurs at HOLOGATE’s place of business an additional charge of 0,5 % for each beginning week during which the goods are stored. The Customer is entitled to prove that HOLOGATE has incurred less or no expenses for the storage.
- Customer’s remedies in case of delivery of non-conforming goods
6.1 The Customer shall immediately after receipt duly inspect the goods delivered in order to assess that these are in conformity with the terms of the contract. The Customer shall without undue delay notify HOLOGATE if the goods are either incomplete or have any defects (with the exception of hidden defects which shall be notified without undue delay following their detection). If the Customer fails to comply with these terms, the Customer is presumed to have accepted the goods with the consequence that the Customer is precluded from invoking the remedies specified in para. 6.2 and 6.4.
6.2 If the goods prove to be defective, the Customer may demand specific performance, i.e. he may elect between the defect to be cured and a new tender of conforming goods.
6.3 Before entering into specific performance, HOLOGATE may require the Customer to pay a reasonable part of the contract price taking the defectiveness of the delivered goods into consideration. HOLOGATE may refuse to specifically perform the obligation in accordance with the manner chosen by the Customer if such performance can only be accomplished at an unreasonable expense.
6.4 If specific performance fails to produce conforming goods twice, if HOLOGATE refuses to render specific performance or if HOLOGATE fails to specifically perform within a reasonable grace period notified by the Customer, the Customer is entitled to reduce the contract price or to repudiate from the contract and to claim compensation for futile expenses or for damages in lieu of performance. The Customer is precluded from repudiating the contract and from claiming damages in lieu of performance where the defect of the goods is merely unsubstantial.
6.5 The Customer is not entitled to invoke any remedies for defects which have been caused by e.g. an improper or inappropriate application, handling, inspection, maintenance, modification, damaging, assembly or manufacturing of the goods or by providing an unsuitable infrastructure or infringement of any other contractual provision or specification by the Customer or a third party or breach of any statutory obligation.
6.6 The Customer has no remedies in view of defects of products in development or prototypes as well as for regular wear-and-tear. This in particular applies to VR headsets, VR headset leather covers, VIVE controllers, VR Blaster Controller, HTC Vive Audio Strap and all cables to the system, mechanic parts or keyback zippers, carabines, carpets, vests, PCs if not regularly maintained and cleaned, unless the Customer can establish that any defect already existed upon delivery of such item.
6.7 The Customer’s claims lapse by operation of the statute of limitation after one year since delivery of the goods.
7.1 HOLOGATE is liable without limitation for deliberate acts and acts committed with gross negligence.
7.2 With the exception of injuries to life, body and sanity, HOLOGATE is liable for acts committed with slight negligence only insofar as principal obligations under the contract are infringed. Liability is restricted to the typical and foreseeable damage, not exceeding 5 % of the Customer’s annual turnover.
7.3 Liability for indirect and unforeseeable damages, for standstill of production and recovery for loss of use, loss of data, lost profits, failure of effecting retrenchments for savings purposes as well as expenses incurred for development, supplementary labor or product recall as well as pure economic loss due to third-party claims are excluded in the event of slight negligence.
7.4 Further liability in excess of what is specified herein is excluded regardless of the legal nature of the claim asserted.
7.5 Limitations and exemptions of liability pursuant to para. 7.2, 7.3 and 7.4 do not apply to liability provided by law (e.g. on the basis of the Product Liability Act) or to liability assumed by the representation of a guarantee as to quality.
7.6 Insofar as liability of HOLOGATE is excluded or restricted pursuant to para. 7.2, 7.3 and 7.4, these exclusions and restrictions apply to the personal liability of any employee, representative, officer and vicarious agent.
8 Intellectual Property
8.1 If a third-party asserts claims against the Customer for the infringement of an intellectual property right with regard to the goods that are delivered by HOLOGATE and are used by the Customer in a contractually appropriate manner, HOLOGATE’s liability is subject to the following provisions.
8.2 HOLOGATE will, at its discretion and at its own expense, either acquire the necessary licenses for the goods, design the goods in a non-infringing manner, substitute the goods with an alternative non-infringing product of equal efficiency or withdraw the goods in return for the reimbursement of the contract price.
8.3 Liability of HOLOGATE can only be established if the Customer immediately notifies HOLOGATE in writing of the claims asserted by the third party, if the Customer refuses to recognize the infringement and if all measures of defense against the third party are reserved for the benefit of HOLOGATE. If the Customer desists from using the goods in order to mitigate damages or for any equally important reason, the Customer shall inform the third party that no recognition of the infringement of the intellectual property right in question shall be inferred from such desistance.
8.4 Liability of HOLOGATE is excluded either if the Customer is responsible for the infringement of the intellectual property right, if the infringement is the result of the Customer providing HOLOGATE with individual specifications, if infringement arises from an application of the product not foreseeable by HOLOGATE or from adaptations of the goods individually requested by the Customer, or from alterations of the goods or combinations thereof with other products not delivered by HOLOGATE or with other devices. In these events the Customer shall hold HOLOGATE free and harmless from any and all third-party claims that ensue from such infringement.
8.5 The sale of the goods and/or the license of the rights to the Customer does not entail the acquisition from HOLOGATE of any license to use the industrial property and copyright in combinations of the goods with other devices.
8.6 Further claims of the Customer are, notwithstanding para. 6 and 7, excluded.
- Final provisions
9.1 The business relations between the Parties shall be governed and construed in accordance with the law of the Federal Republic of Germany.
9.2 The exclusive place of performance for all obligations of delivery and payment by the Customer shall be HOLOGATE’s principal administrative seat of business.
9.3 The exclusive venue for all disputes arising from the business relations is Munich, Germany.
9.4 Any amendments to or modifications of the contract and its collateral agreements shall be made in writing to be legally effective. The same applies to the derogation of this paragraph.
9.5 In the event any of the aforementioned provisions is or becomes ineffective, the validity of the remaining provisions per se remains unaffected. The parties shall replace any invalid provision and mutually agree on new stipulations which are apt to attain the desired economic goal in view of the factual, legal and economic interests concerned. The same shall apply to any possible omissions in the Terms and Conditions.