§1 Contractual basis
§1.1 Purchase and use of the software
By downloading, installing and using the D3D-PuttSimulator software, hereinafter referred to as d3d software, and purchasing and activating the software license by entering the license key, the buyer agrees to the terms of the following license agreement. D3D-PuttSimulator may be acquired and used only in agreement with the terms of this license agreement.
§1.2 Acquisition and use of the hardware
D3D-PuttSimulator is a software for the “MixedReality world”. Therefore, in addition to a computer and an image output device, other hardware components, in particular a USB camera, are required to make full use of the software’s capabilities. All products are available on the market. The hardware components are not part of the scope of supply of D3Dputtlabor GmbH (short: D3D). D3D limits itself to recommendations of products, which it has tested itself during software development and uses in its own laboratory. The responsibility for the procurement of the hardware lies with the user himself. On request of the user D3D takes over the procurement of the hardware and the dispatch to the user as service achievement against a distribution lump sum.
§1.3 Transfer of rights and obligations
D3D can transfer all rights and obligations from this contract to third parties at any time. However, the licensee may not transfer the rights granted to him by the license to third parties or grant them further rights of use without the prior written consent of D3D.
§2 Subject matter of performance
This license agreement, refers to the D3D PuttSimulator from D3D. Software” in the sense of this contract is the software program and all associated documents and files, which are contained in the scope of supply. For the transfer of the software to the customer the following contract conditions apply exclusively. Other contractual conditions do not become part of the contract, even if D3D does not expressly contradict them.
The licensor is entitled to grant rights of use and administration of the D3D PuttSimulator to third parties. The licensee acquires from the licensor a license for the unlimited use of the D3D-PuttSimulator with update authorization for 1 year. The license is valid for the private use of the D3D-PuttSimulator on one computer. A proforma invoice is issued for the license ordered by the licensee. If this is not paid within 10 days, the license will be withdrawn. It is not allowed to transfer the license to a third party. The licensee is entitled to participate in the support (by email, telephone, remote maintenance).
§2.3 Delivery and installation
The D3D-PuttSimulator is distributed exclusively via the website of the licensor by download. The licensee is fully responsible for the installation and the functionality of the computer operated by him. Installation services are not owed by the licensor.
The documentation for the D3D-PuttSimulator is provided to the licensee as an online manual in German language. The licensee has no right to receive the documentation in paper form.
The licensor can, at his own discretion, provide free updates to adapt the D3D-PuttSimulator to new hardware products, to eliminate uncontrolled events, and new resources. The licensee has no claim to this. The warranty obligation of the licensor remains unaffected. New versions of the D3D-PuttSimulator will be made available by the licensor at his own discretion according to the conditions found on the current website.
§2.5 Maintenance and support
In addition to the updates at the discretion of the licensor according to 2.4, the following update licenses are offered:
- D3D – service license: license limited to 1 year with all new releases and improvements of the D3D-PuttSimulator
- D3D – course license: license for playing on an additional course
By purchasing a service license the licensee is entitled to delivery of all released improvements of the D3D-PuttSimulator for a period of 1 year.
The D3D course license refers to the 3D model of a golf course, the purchase of which allows playing on this course for an unlimited period of time.
§2.6 Consent to transfer the license data to a license server
The activation of the D3D-PuttSimulator is done by encrypted transmission and verification of the license key (see 1.1) to a license server. The processing of the information on the license server is automated. The licensee agrees to this transmission (also in time intervals) according to §4 BDSG.
§3 Exclusion and limitation of liability
The Licensor excludes liability for slight errors and mistakes in the Software, unless they are due to negligent breach of duty or are in conflict with the law. The same applies to breaches of duty by the Licensor’s vicarious agents or representatives. If the Licensor negligently breaches a material contractual obligation, its liability to pay compensation shall be limited to the foreseeable damage typical of the contract. The Licensor shall not be liable for damage caused by disruption of operations, in particular as a result of force majeure (e.g. fire and natural events) and as a result of other events for which the Licensor is not responsible. Liability for loss of data shall be limited to the typical effort of recovery that would have occurred if backup copies had been made on a daily basis. A strict liability of the licensor according to §536a Abs. 1 Var. 1 BGB due to defects already existing at the time of the conclusion of the contract is excluded. The above provisions on limitation of liability shall apply to all contractual and non-contractual claims for damages against the Licensor, irrespective of their legal basis, and accordingly to the Licensor’s liability for compensation for futile applications.
§4.1 Slight errors
The software products of D3D have been created with the greatest care. The licensor guarantees the usability and the characteristics of the software in the sense of the performance description. The licensor points out that nevertheless potential, untested application conditions can lead to errors and unexpected program aborts. An insignificant reduction in usability is therefore disregarded and will be included in the list of obligations for the next update version.
The guarantee is fulfilled by D3D by rework after notice of defect by the licensee. The licensor has thereby a discretion for the importance of the defect in comparison to the slight defect according to 4.1. Obvious defects of the D3D PuttSimulator are to be announced to the licensor by the licensee within 14 days from activation and hidden defects immediately after their discovery. Program defects must be communicated in writing and described so specifically that the defective program sequence can be reproduced. Warranty claims and claims for support require proper program installation and system adjustment.
§4.3 Loss of data
Due to the multitude of data and operating constellations as well as operating errors occurring in practice, data loss cannot be completely ruled out. The Licensee must therefore ensure that any lost data can be easily reconstructed by means of complete data backups, which are carried out on a regular basis. In particular, the Licensee has the obligation to defend against viruses in accordance with the current state of the art.
§5 Property rights
The Licensor shall be entitled to the copyright as well as the resulting property rights, rights of use and exploitation rights to all copyrightable materials provided to the Licensee in the course of licensing. A granting of rights takes place exclusively under the form set out in §2.2 or §2.5. The D3D-PuttSimulator and its licensing is protected by various technical solutions. It is forbidden to circumvent them. Furthermore, the licensee is prohibited to modify, reverse engineer, decompile or create derivative software of the D3D-PuttSimulator. However, this does not apply to the external libraries listed and used in §5.1. Unauthorized reproduction or distribution of the D3D-PuttSimulator will be prosecuted and may result in fines and claims for damages.
§5.2 Use of external libraries
The D3D-PuttSimulator uses the following software libraries under LGPLv2.1
– Qt project
– VTK (The Visualization Toolkit)
§6 General provisions
§6.1 Choice of law and jurisdiction
The business relations and the entire legal relations between the Licensor and the Licensee shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Verbal agreements as well as deviating terms and conditions of the Licensee shall require the written confirmation of both contracting parties in order to be effective. The place of jurisdiction shall be the Licensor’s place of business.
§6.2 Severability clause
Should individual provisions of this Agreement be invalid or unenforceable or become invalid or unenforceable after conclusion of the Agreement, the validity of the remaining provisions of the Agreement shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effect comes as close as possible to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.