Terms of Service

General terms and conditions

1. Scope

1.1 These general terms and conditions apply to all contracts concluded between REALSIM and an entrepreneur (hereinafter referred to as “contractual partner”) in the version valid at the time the contract is concluded. General terms and conditions of the contractual partner do not apply.

2. Delivery

2.1 The delivery of the ordered goods takes place through the provision and collection of the goods by the contractual partner at the headquarters of REALSIM or through delivery.

2.2 The delivery period can be extended in the event of unforeseen circumstances or circumstances independent of the will of the party (force majeure, delayed transport, strikes, official measures, etc.). The delivery period is also extended if the contractual partner does not meet its obligations that are necessary for execution in a timely manner.

2.3 The risk of accidental loss and accidental deterioration of the goods is transferred to the contractual partner when the goods are handed over, but in the case of sales by mail already with our notification of readiness for dispatch and delivery; to the contractual partner.

2.4 If a parcel is obviously damaged during delivery, the contractual partner must insist that this fact be documented in writing by the deliverer. The contractual partner must inform us immediately in writing of any transport damage.

3. Prices

3.1 Prices are to be understood in euros plus statutory sales tax.

3.2 Packaging, transport and shipping costs as well as customs and insurance are at the expense of the contractual partner.

4. Default in payment, collection costs

4.1 If the contractual partner defaults on payment, he has to pay interest on arrears 9.2 percentage points above the base rate annually.

4.2 If the contractual partner defaults on a (partial) payment, REALSIM is entitled to withdraw from the contract by setting a reasonable grace period and, in the event of default, to additionally assert the non-performance damage.

4.3 In the event of default in payment, REALSIM is entitled to demand a lump sum of € 40.00 from the contractual partner as compensation for collection costs. The contractual partner is fully liable for any further damage due to default in payment, in particular the costs of extrajudicial enforcement or recovery measures.

5. Retention of Title

5.1 The goods remain the property of REALSIM until the purchase price and all associated costs and expenses have been paid in full.

6. Warranty

6.1 The warranty period is one year from delivery.

6.2 The contractual partner must always prove that the defect already existed at the time of handover. The presumption of defectiveness according to § 924 ABGB does not apply.

6.3 The contractual partner must immediately notify REALSIM in writing of any defects in the goods. If a complaint is not made in good time, the goods are considered approved. The contractual partner can then no longer assert claims for warranty, compensation for the defect itself or for errors regarding the absence of defects in the item.

6.4 The contractual partner loses his warranty claims if he or unauthorized third parties intervene in the goods or carry out repairs.

6.5 The right of recourse according to § 933b ABGB against REALSIM is excluded.

6.6 Any manufacturer's warranty provisions apply. It should be noted that unauthorized interventions in the goods can void any warranty claims. REALSIM itself does not give any guarantee.

7. Shortening over half

7.1 The right to contest the contract due to shortening by more than half according to § 934 ABGB (laesio enormis) is excluded.

8. Liability

8.1 If REALSIM is responsible for damage in accordance with the statutory provisions, liability is limited to intent and gross negligence. The contractual partner has to prove the existence of gross negligence.

8.2 REALSIM is not liable for indirect indirect damage and lost profit.

8.3 REALSIM's liability is excluded for damage caused by improper handling or storage, overuse, failure to follow operating instructions and installation instructions, incorrect assembly, commissioning, maintenance, servicing by the contractual partner or third parties not authorized by us, or natural wear and tear, provided this event is causal for the damage was. There is also an exclusion of liability for failure to perform necessary maintenance, unless REALSIM has contractually assumed the maintenance obligation.

8.4 REALSIM reserves the right to make non-binding recommendations regarding the use of products. For these products, the manufacturer's information and instructions for use must be observed. REALSIM is not liable for damage resulting from non-compliance with this manufacturer's information and instructions for use as well as the incorrect composition of such products.

8.5 The amount of liability is limited to the maximum amount of liability insurance from REALSIM.

8.6 A possible right of recourse by the contractual partner according to the provisions of the Product Liability Act is excluded.

8.7 Claims for damages are to be asserted in court within 12 months, otherwise forfeiture.

9. Right of set-off and retention

9.1 The contractual partner is not entitled to a right of set-off or retention.

10. Place of performance, place of jurisdiction, choice of law, written form

10.1 The place of performance is the headquarters of REALSIM.

10.2 The place of jurisdiction for disputes arising from or in connection with the contract between the contractual partner and us or with these General Terms and Conditions is exclusively the competent court at the headquarters of REALSIM.

10.3 Austrian law is exclusively applicable to the exclusion of the conflict of laws and reference norms and the provisions of the UN sales law.

10.4 Changes and additions to these General Terms and Conditions must be made in writing; this also applies to ancillary agreements and subsequent changes to the contract, as well as to the departure from the written form requirement.

11. Severability Clause

11.1 Should a provision in these general terms and conditions be or become invalid, the validity of the other provisions remains unaffected. The invalid provision will be replaced by a valid provision that comes closest to the provision to be replaced economically and legally.

ANNEX 4: TERMS AND CONDITIONS

REALSIM

Version: November 2018

1. Scope
2. These terms and conditions apply to all contracts that are concluded between REALSIM and a company (hereinafter referred to as the “contracting party”) and are valid in the version at the time of conclusion of the contract. The terms and conditions belonging to the contracting party are not valid.

1. Delivery
2. The delivery of ordered goods occurs when the goods are made available and collected from the REALSIM office by the contracting party or upon delivery.
3. The delivery period may be extended due to circumstances that are unforeseen or beyond the parties' control (force majeure, transport delay, strikes, statutory measures, etc.). The delivery period may also be extended if the contracting party does not meet its obligations that are required for carrying out this task in a timely manner.
4. The risk of potential loss and deterioration of the goods transfers to the contracting party on delivery, however, we will have already transferred this to the contracting party on sales shipment with the notification that the shipment is ready for dispatch and delivery.
5. If a parcel is visibly damaged on delivery, the contracting party must ensure that this is recorded in writing by the courier. The contracting party must provide immediate notification of transport damage in writing.

1. Prices
2. Prices are given in euros and are subject to the statutory value added tax.
3. Packaging, transport and shipping costs, as well as customs duty and insurance, are the responsibility of the contracting party.

1. Payment delays, operating costs
2. If the contracting party falls behind with payments, it must pay an annual interest on arrears of 9.2 percentage points above the base interest rate.
3. If the contracting party falls behind with a (partial) payment, REALSIM shall be entitled, after having set a suitable grace period, to withdraw from the contract and also claim non-fulfillment damages in the event of delayed payments.
4. In the event of delayed payments, REALSIM is entitled to claim a flat fee of € 40.00 as compensation for operating costs. The contracting party is fully liable for damages for the outstanding delayed payments that exceed this amount, particularly costs for operations or collection measures.

1. Reservation of proprietary rights
2. The goods shall remain the property of REALSIM until payment of the purchase price and all associated costs and charges is complete.

1. Warranty
2. The warranty period lasts for one year from delivery.
3. The contracting party must always provide evidence that any fault was already existing at the time of delivery. Therefore, the assumption of defectiveness pursuant to Article 924 of the Austrian General Civil Code (ABGB) does not apply.
4. The contracting party must immediately notify REALSIM of any defect in the goods in writing. If a notification is not raised in time, the item shall be considered approved. Warranty claims and compensation claims for defects themselves and for errors regarding the item's flawlessness can subsequently no longer be made by the contracting party.
5. The contracting party shall lose its warranty claims if it interferes with or repairs the goods itself, or allows an unauthorized third party to do so.
6. The right to recourse against REALSIM pursuant to Article 933b ABGB is excluded.
7. All of the manufacturer's warranty conditions apply. Please note that unauthorized interference with the goods may terminate any warranty claim. REALSIM itself provides no warranty.

1. Rescission of lesion beyond moiety
2. The right to appeal a contract because of rescission of lesion beyond moiety pursuant to Article 934 ABGB (laesio enormis) is excluded.

1. Liability
2. In this respect, as REALSIM is responsible for damage, pursuant to the statutory provisions, this liability is limited to willful intent and gross negligence. The occurrence of gross negligence must be proven by the contracting party.
3. REALSIM is not liable for consequential indirect damage and loss of profit.
4. REALSIM is not liable for damage caused by improper handling or storage, excessive strain, not following the operating and installation instructions, incorrect installation, commissioning, maintenance and repair by the contracting party or unauthorized third parties or standard wear and tear, insofar as these actions cause the damage. Similarly, the exclusion from liability also applies to failure to undertake necessary maintenance, unless REALSIM has assumed the maintenance obligation in accordance with the contract.
5. REALSIM reserves the right to announce optional recommendations regarding the use of products. The manufacturer's information and instructions for use regarding the respective products must be observed. REALSIM is not liable for damage caused by failure to comply with the manufacturer's information and instructions for use, or for incorrect configuration of such products.
6. The amount of liability is capped at the liability limit of REALSIM's liability insurance.
7. Potential claims of recourse by the contracting party are excluded in accordance with the provisions of the Austrian Product Liability Act.
8. Claims for damages must be lodged in court within 12 months, failing which these will expire.

1. Right to compensation and retention
2. The contracting party is not entitled to a right to compensation and retention.

1. Place of performance, place of jurisdiction, choice of law, written form
2. The place of performance is REALSIM's headquarters.
3. The place of jurisdiction for disputes arising from, or in connection with, the contract between the contracting party and us or concerning these terms and conditions is exclusively the competent court for the REALSIM headquarters.
4. Austrian law is solely applicable to the exclusion of conflict rules and conflicts of law and the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
5. Amendments and additions to these terms and conditions require the written form, which also applies to additional agreements and subsequent amendments to the contract, as well as to the omission of the written form requirement.

1. Severability clause
2. If a provision in these terms and conditions is, or becomes, invalid, this does not affect the validity of the other provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic and legal purpose of the provision being replaced.
   
   

Software licence agreement

1.       Subject of the agreement

1.1    The subject of the present agreement is REALSIM software HOLOPACKAGE pursuant to ANNEXE 1 (hereinafter referred to as “software”) including user documentation pursuant to ANNEXE 2, which is purchased by the contracting party for use in accordance with Section 2 against payment of a one-time charge and annual fees. 

1.2    REALSIM shall carry out the installation of the software onto the contracting party’s system.

1.3    Services other than those named are not part of the agreement and shall be taken on by REALSIM only in the event of a separate commission and payment. This includes, in particular, training, independent further development of software, data security measures, removing malware, etc.

2.       Scope of application

2.1    The contracting party purchases the non-exclusive right to use the software for its company’s purposes simultaneously at a maximum of one (1) workplace within the EEA. The contracting party is entitled to use the software only within the company.

2.2    Transferring, providing or renting the software to third parties are permitted only with express written permission from REALSIM.

2.3    Replicating the software is permitted only insofar as it is necessary for the designated use. However, the contracting party may create back-up copies. These are to be stored securely and labelled clearly as back-up copies. Copies, including back-ups, are to be protected from unauthorised access by third parties. A complete and updated list of the existing copies and their place of storage is to be kept and made available for REALSIM to access upon request.

2.4    The contracting party cannot replicate the user documentation or parts of it, nor issue these to third parties.

2.5    The contracting party is permitted to adapt or change the software only in compulsory cases provided for in law in order to repair faults or enable interoperability with other computer programs. In the event that a need for adaptation or changes arises in this context, the contracting party must immediately inform REALSIM of this in writing and REALSIM shall be commissioned for the adaptation/change on the basis of an appropriate fee. Provided that REALSIM does not accept the job within two weeks under reasonable terms and conditions, the contracting party may carry out the adaptation/change itself or outsource it to a third party.

2.6    The contracting party is not permitted to undertake back translation of object code into source code or reverse engineering and decompilation. Excluded from this are cases in which it is required to enable interoperability or ensure fault repairs, provided that REALSIM refuses to undertake the changes for a suitable fee, despite written notification of an existing need for a modification, in accordance with the previous provision (2.5). Article 40e of the Austrian Copyright Act (UrhG) applies.

2.7    Intellectual property and other industrial property rights to software are respected by the contracting party and remain the property of REALSIM. Copyright notices and test marks belonging to REALSIM on software or copies of software and user documentation cannot be removed, changed, made unrecognisable or otherwise manipulated by the contracting party under any circumstances.

2.8    If the contracting party stops using the software, it must irreversibly destroy all copies, including back-ups, of the software and fully delete the software from its system so that it is beyond retrieval.

2.9    Augmented reality glasses and various other hardware components are required to use the software. The system requirements and REALSIM’s non-binding recommendations are listed in ANNEXE 3. The contracting party states that it expressly agrees for REALSIM to take all measures to ensure smooth operation of the software when installing the software on the recommended system components. It is possible that preinstalled applications may need to be disabled and/or sensors and/or other functionalities of the glasses may need to be deactivated for the software installation. If such measures are required, they will be performed or undertaken temporarily for the duration of the agreement and shall be reversed by REALSIM once it is finished.

3.       Warranty

3.1    REALSIM shall maintain the functional capability and operating state of the software for the duration of this agreement without separate charges and shall repair defects in the software within an appropriate period. In this context, defect refers to any deviation from the usual assumed or expressly agreed software properties.

3.2    If a defect can be repaired through the installation of a new or improved software version, the contracting party is obligated to accept that the repair will be carried out through the installation of this version. The contracting party loses the claim to the repair of any error that could be corrected through this kind of installation if it rejects this approach without substantial reasons.

3.3    If the contracting party interferes with the software by changing or adapting it on its own initiative, it loses all claims to the warranty.

4.       Liability

4.1    Insofar as REALSIM is responsible for damage, pursuant to the statutory provisions, this liability is limited to wilful intent and gross negligence. The occurrence of gross negligence must be proven by the contracting party.

4.2    REALSIM is not liable for consequential indirect damage or loss of profit, particularly if REALSIM has deactivated the functional capability of the software due to delayed payments by the contracting party (Section 6).

4.3    Warranties on the satisfactory quality or suitability for a certain purpose are not given.

4.4    REALSIM is not liable if the software is not available for use or only for limited use due to a slow or faulty internet connection. REALSIM is also not liable for damage caused by unauthorised intervention in or access to the contracting party’s system by third parties.

4.5    REALSIM is not liable for damage caused by non-contractual and/or non-compliant use of the software and violations of the instructions and information given in ANNEXE 2.

4.6    REALSIM states that the software is free from industrial property rights belonging to third parties that would restrict or forbid use of the software as stipulated in the contract. The contracting party shall indemnify REALSIM if the industrial property rights belonging to third parties are violated through actions by the contracting party that go beyond the use stipulated in the contract.

4.7    The amount of liability is capped at the liability limit of liability insurance taken out by REALSIM if required.

4.8    Claims for damages must be lodged in court within 12 months, failing which these will expire.

5.       Models / Concession of Rights

5.1  The customer declares that he is authorized to utilize all models, drawings,        sketches, plans and other documents requested from the contractor, and that he has the necessary rights to grant the contractor the rights of use required for the execution of the contract, including the right to edit. In the event that the contractor is sued by third parties, the customerindemnifies and will secure the contractor from legal liability.

Unless otherwise agreed, the contractor is entitled to use the above-mentioned documents to provide services to other contractual partners.

6.       Duration of the agreement

6.1    This agreement is concluded for an unlimited period. It can be terminated by either party subject to a period of three months to the end of a calendar year through a registered letter. The right to extraordinary termination for justifiable reason remains unaffected.

6.2    After the agreement duration expires, the contracting party is no longer entitled in any way to use the software in any form. The contracting party is obligated to transfer the software, including user documentation, to REALSIM at its own cost or, if this is not possible, to destroy it beyond retrieval.

7.       Cost/payment delay

7.1    The one-time charge is € 3.800,00 EUR subject to VAT (app Glasses) / € 500,00 EUR subject to VAT (software computer) , and is due on delivery of the software. The annual licence fee is € 358, subject to VAT, and is due at the end of the year, which is calculated from the day after delivery of the software, and each year thereafter. The cost must be transferred to REALSIM’s account on time and free of charges.

7.2    If the cost or the annual licence fee is outstanding for more than 14 days, following an appropriate extension by REALSIM, REALSIM is entitled to terminate this agreement, with immediate effect. In this case, REALSIM can also choose to deactivate the functional capability of the software until the outstanding cost is paid in full.

8.       Confidentiality

8.1    The parties undertake to handle all information concerning the other party that is made known to them as part of this contractual relationship in the strictest confidence and to use it exclusively for the purpose of fulfilling this agreement. The parties are responsible for ensuring that their respective employees comply with the relevant statutory provisions.

8.2    The parties undertake to keep the content of this agreement a secret. This also continues to apply after the end of the contract. However, REALSIM is entitled to refer to the collaboration with the contracting party in lists of references.

8.3    The preceding obligations do not apply to information that was already known to this party or the general public at the time of acquiring the knowledge or that became common knowledge to this party at a later date without assistance and without violating this agreement. The obligations also do not apply to authorities or courts, provided that there is no statutory right to refusal to give evidence.

9.       Final provisions

9.1    Amendments and additions to this agreement require the written form. This also applies to the revocation of the written form requirement.

9.2    If a provision in this agreement is, or becomes, invalid, the remaining content in this agreement remains unaffected. The invalid provision shall be replaced by a valid provision that comes as close as possible to the legal and economic purpose of the invalid provision.

9.3    Austrian law is solely applicable to this agreement, to the exclusion of conflict rules and conflicts of law and the provisions of the United Nations Convention on Contracts for the International Sale of Goods. The place of performance is REALSIM’s headquarters. The exclusive place of jurisdiction is the competent court for the REALSIM headquarters.

9.4    The attached ANNEXES 1 to 4 form an integral part of this agreement and are expressly considered as agreed. The REALSIM terms and conditions apply, provided that there are no specific provisions given for this in this agreement. Any terms and conditions belonging to the contracting party are not considered an integral part of the agreement.