ONLY THE GERMAN VERSION IS LEGALLY BINDING. This English translation is for not binding information only.
Subject is the use of the cloud edition of the Software products WiCAM Calculation, WiCAM NC Converter and WiCAM CAD Converter hereafter “Web applications” by WICAM GmbH, Reetzstraße 46c, 76327 Pfinztal-Söllingen / Germany („WICAM“) which is offered as „Software as a Service“ by AXOOM GmbH, Vincenz-Prießnitz-Str. 1, 76131 Karlsruhe („AXOOM“). For other editions of ‘Web applications’ –especially the „on premise“ editions, which are installed at the site of the customer- other terms and agreements may apply. WiCAM provides “Web applications” as web-based software (“Software”). WiCAM Calculations calculates prices for CNC laser-cut parts in various quantities by nesting them on different panel formats and the estimation of production time and material rates. WiCAM NC Converter converts nc texts for a particular machine into another format, readable by other models or machines from a different brand. WiCAM CAD Converter converts graphic files into alternative graphics format.
1 Contract object and conclusion of contract
1. These ToU apply to the utilization of the Software of WICAM by Customer. Customer’s terms and conditions only become part of the contract if explicitly agreed upon in written form.
2. Use of the Software is only offered to entrepreneurs according to Sec. 14 German Civil Code (“BGB”). An entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
3. Regarding contract conclusion, the terms and conditions of the AXOOM business platform „AXOOM Store“ do apply.
2 Services of WICAM
1. WICAM provides the Software on the AXOOM business platform „AXOOM Store“ limited in time to the duration of the contract exclusively for retrieval by Customer via internet (“Software-as-a-Service”). AXOOM is responsible for operation and
maintenance in terms of hosting of the application. Place of transfer of services is the exit of the router of the data centre. Customer has to ensure autonomously to be able to receive the services. In particular, the provision of necessary hard- and software by WICAM is not part of this contract. Customer has no right to claim access to source code of the Software provided by WICAM. Customer shall be solely responsible for the use and configuration of the online-platform.
2. The exact scope of the Software provided by WICAM arises from the respective current description of services, which can be accessed under www.’Webapplications’.de.
3. AXOOM is responsible for availability in terms of hosting the Software and for backups of Software and stored data from the Customers. It is not obliged to individually review correctness or completeness of the backup nor is such a review performed.
4. WICAM is not responsible for limited availability of the Software due to limitation of the hosting by AXOOM. Excluding restrictions imposed by limited hosting, the Software is 99% available on annual average. This excludes necessary scheduled maintenance work and disturbances which are not within the scope of influence of WICAM, including but not limited to force majeure. WICAM will inform Customer
about scheduled maintenance work in time if possible and in written form (email shall be deemed sufficient) addressed to the contact person communicated to WICAM. Nevertheless, WICAM has the right to carry out maintenance work without prior notice if necessary, especially if this is required for data protection and operational safety reasons.
5. WICAM provides Customer with a documentation of the Software as well as information on its use in German and/or English language in electronic form online on demand. Customer is not entitled to edit or distribute the documentation or the information on its use or to make any of it publicly available.
6. WICAM is entitled to assign sub-contractors as agents for the provision of the services at its own discretion.
7. WICAM is entitled but not obliged to increase and develop the Software’s scope of functions. WICAM reserves the right to offer add-ons and upgrades only subject to additional charge. If Customer books a fee-based add-on or upgrade with a respective additional agreement to this contract, these ToU shall apply accordingly
to the additional agreement. If WICAM offers increased or additional functions for free after conclusion of contract, these functions are considered as voluntary services of WICAM.
8. WICAM may change the scope of functions of the Software at any time to a level reasonable for Customer. Change is reasonable if it is required due to an important reason – e.g. as of disturbances in provision of services by sub-contractors or for security reasons – and the characteristics within the service description substantially
remain unaffected, as well as the major obligations of WICAM. If changes do not solely regard add-ons or unsubstantial elements of the services WICAM is obliged to provide, WICAM will inform Customer about the changes at least four (4) weeks in advance via e-mail.
9. WICAM is entitled to disable Customer’s access to the Software if
a) there are indications that Customer’s access data was or is misused or the access data was or is made available to an unauthorized third party or if access data is used by more than one natural person;
b) there are indications that a third party gains access to the Software provided to Customer in any other way;
c) disabling access is
necessary for technical reasons;
d) WICAM is legally, judicially or officially obliged to
disable Customer’s access;
e) Customer is in default with the agreed payment for more than two weeks;
f) Customer used wrong or invalid contact data and a communication between WICAM and Customer is no longer possible;
provided wrong payment data and Customer’s regular fulfilment of contractual obligations is not guaranteed. WICAM shall inform Customer about disabling access at least one business day before coming into force in written or textual form, as long as the announcement is reasonable considering both parties’ interests and the
purpose of disabling.
3 Customer obligations
1. Customer is obliged to keep access data safe and may only disclose this data to authorized employees. Customer undertakes to obligate its employees to confidential handling of access data and immediately inform WICAM if there are any indications that access data became known to a third party.
2. Customer is obliged to backup its data regularly and adequately to the risk, as far as it is technically possible.
3. Customer grants WICAM a simple, spatially and temporally unlimited right to use all content which it transfers to the server of WICAM by using the Software, to the extent that WICAM may use the content as far as it is necessary for fulfilment of the
contract with Customer, including but not limited to the right to reproduce content and to grant access to third parties according to Customer’s settings. WICAM is entitled to grant sublicenses to its agents, as far as it is necessary for fulfilment of the contract. Apart from that, the right to use is non-transferable. WICAM is entitled, to hold back content beyond the duration of the contract as long as it is technically or legally necessary. In particular, WICAM is entitled to keep backup copies of Customer generated content and to save information necessary for bookkeeping, documentation or billing purposes temporarily or permanently.
4. Customer guarantees to comply with all applicable legal provisions when using the Software, especially regarding copyright and data protection law. Customer shall indemnify WICAM from any third party claims which a third party should make against WICAM with regard to Customer’s use of the Software. WICAM will inform Customer immediately about third party claims and will provide information and
documents necessary for defense upon request. Additionally, WICAM will either leave defense to Customer or carry out defense in consultation with Customer. WICAM will not acknowledge or agree or not agree upon facts that have not yet been proven regarding any third party claims without prior consultation with Customer. These provisions apply respectively to contractual penalties as well as
official or judicial administrative fines, as far as Customer is responsible.
1. In this regard, the payment terms, prices and other conditions of AXOOM business platform „AXOOM Store“ do apply.
1. WICAM is liable for defects when providing the Software exclusivelyaccording to the following provisions.
2. Defects are substantial deviations of the scope of functions of the Software contractually agreed upon.
3. If the services WICAM is obliged to fulfil under this agreement are faulty, WICAM will improve or re-provide the services within a reasonable period and upon written com-plaint by Customer. When using third party software, which WICAM licensed for the use by Customer, correction of faults is limited to procurement and installation of generally available updates, upgrades or patches. Improvement includes provision of instructions with which Customer is able to work around defects in a reasonable way in order to use the Software as agreed upon.
4. If provision of services without defects is not possible even within the reasonable period of time set up by Customer due to reasons WICAM is to be held responsible for, Customer may reduce the agreed upon remuneration by a reasonable amount. The right of reduction is limited to the amount of the monthly price regarding the defective part of service.
5. If reduction according to Section 5.4 reaches the maximum amount established in Section 5.4 in two consecutive months or in two months of a quarter, Customer may terminate the contract without prior notice.
6. Customer will inform WICAM about potentially appearing defects immediately in written form or via e-mail to the contact person WICAM named in the contract form. Additionally, Customer will support WICAM with repair of defects free of charge and will provide all information and documents necessary for analysis and remedy of
7. More detailed and other claims and rights of Customer due to defects as in this number do not exist, as long as WICAM is not further liable according to further binding legal regulations. Section 6 of this contract remains unaffected.
6 Damages and Liability
1. In case of personal injury or death to persons as well as for deliberate and gross negligent actions, WICAM has unlimited liability.
2. WICAM shall be liable for slight negligent action only in cases of a breach of a duty essential to the purposes of this agreement (“wesentliche Vertragspflicht”). Duties are considered essential if necessary for the due execution of the agreement so Customer can regularly expect proper observation.
3. In the events of Section 6.2, WICAM’s liability for any lack of commercial results, indirect damages and loss of profits is excluded.
4. Liability according to Section 6.2 shall be limited to typical and foreseeable damages at the time of conclusion of contract.
5. Liability for loss of data in the event of Section 6.2 shall be limited to typical recovery costs which arise if backup copies are regularly made in appropriate relation to the risk of such loss.
6. Limitations of liability shall also apply to employees, sub-contractors and agents of WICAM.
7. If using data, generated by the ‘Web applications’ for offers or production the customer must check the results by own quality assurance methods in regard to the original data / files. WiCAM is not liable for consequential damages arising from the use of data generated by the ‘Web applications’ data / files.
8. A potential liability of WICAM for any guarantees or claims based on Product Liability Law remains unaffected.
9. Further liability of WICAM is excluded.
7 Duration and termination
1. In regard of duration and termination, the conditions of AXOOM business platform „AXOOM Store“ do apply.
2. Additionally, WICAM is entitled to terminate the contract without notice if Customer is in default with agreed-upon payment for more than six (6) weeks and if WICAM informed Customer of intended termination in written form (email shall be deemed sufficient) at least two (2) weeks before the termination is supposed to come into force.
3. WICAM reserves the right to limit or discontinue functionality of the Software for other reasons than named in Section 2.7 and Section 2.8 under the prerequisites of Section 8.
4. Termination for good cause remains unaffected for both parties.
5. WICAM is entitled but not obliged to save data for security reasons for a period of four (4) weeks beyond termination of contract in order to protect Customer from inadvertent loss of data. Additionally, WICAM is entitled to keep data beyond duration of contract if WICAM is legally or officially obliged, especially under commercial or tax law.
8 Amendments to these ToU
1. These ToU between Customer and WICAM can be amended by respective separate agreements as follows: WICAM communicates the amended conditions before intended effectiveness in written form (email shall be deemed sufficient) and highlights the regulations to be amended as well as the date of the intended entry into force. Besides, WICAM will grant Customer a reasonable, at least two (2) month
period for declaring approval or objection with the amended TOU for further use of services. If WICAM does not receive any declaration of Customer within this period, which begins with receipt of the written announcement, the amended terms are considered agreed upon. WICAM will inform Customer separately about the legal consequences at the beginning of the period, including the right to object, the period
to object and the relevance of remaining silent.
9 Final provisions
1. Amendments and additional agreements to this contract need to be in written form. This also includes this written form clause.
2. Customer’s right to exercise set-offs against claims of WICAM are limited to counter-claims, which are undisputed or affirmed by a legally binding adjudication or those which are part of a reciprocal agreement (“synallagmatic relation”) towards the respective claim.
3. Language of contract is German. Translations to other languages only serve comprehensibility and are not legally binding.
4. The agreement is governed by the law of the Federal Republic of Germany with exclusion of the Convention on the International Sale of Goods (UN sales law).
5. Exclusive venue for any and all disputes with regard to this contract is Freiburg im Breisgau, provided the parties of the contract are merchants or Customer has no place of general jurisdiction in Germany or in another member state of the European Union or its permanent or habitual residence is transferred abroad after entry into force of these TOU or permanent or habitual residence is not known at the time the
action is filed.
10 Data Protection
1. The PROVIDER shall solely use personal data to process the Client’s order and support services. The PROVIDER shall not forward the personal data, including the Client’s name, address or e-mail address, to third parties without the Client’s expressed consent, which can be withdrawn at any time. This shall exclude our service partners, who need to receive the data to process the order and perform the
service (e.g. subcontractors commissioned to perform the hosting or to process the payments). In these cases, however, the scope of the data provided shall be kept to the necessary minimum.
11 Place of Fulfilment and Place of Jurisdiction
1. German Federal law shall exclusively apply. The application of the UN Convention on the International Sale of Goods (CISG) is excluded.
2. The place of fulfilment is the registered office of the PROVIDER
3. In so far as is legally permissible, the place of jurisdiction for all legal disputes between the parties shall be the registered office of the PROVIDER.
4. The client shall only be entitled to transfer rights and obligations to a third party following written authorization from the PROVIDER.
12 Final Provisions; Severability Clause
1. These General Terms and Conditions together with the individual agreements entered into between the parties form the overall contractual agreement. In the event of any conflicts between these General Terms and Conditions and the provisions of an individual agreement, the provisions of the individual agreement shall take precedence.
2. Any General Terms and Conditions of the client that contradict these provisions shall be invalid. Their validity is expressly excluded by the contracting parties.
3. Should one or more provisions of these Terms and Conditions be or become ineffective or void, this shall not affect the effectiveness or validity of the remaining provisions.
4. In addition, are lower rank to the provisions of this AGREEMENT our terms and conditions apply, which are available on www.wicam.com/docs/agb.pdf.