Twinsity GmbH, Escheberger Straße 2, 34779 Breuna, registered in the Commercial Register of the Kassel Local Court under HRB 18117 (“Twinsity”) owns and operates an online (B2B) platform (“Platform”), which can be accessed under https://twinsity.cloud . The Platform in particular provides commercial third parties (“Customers”) a collaborative environment to visualize 3D models and manage inspection data of structures. Twinsity offers Customers two ways to use the services offered on the Platform:
- as a subscription or
Any contractual relationship between Twinsity and a Customer (each a “Party” and collectively “Parties”) on the use of the Platform and the services to be provided by Twinsity on the Platform is governed by the following general terms and conditions (“General Terms”), except otherwise agreed.
1. Subject of the General Terms
These General Terms govern the provision of the Services by Twinsity and the use of Platform by the Customers. They apply exclusively. Deviating, supplementary or conflicting terms and conditions shall not be recognized.
2. User Accounts
Twinsity grants Customer access to the Platform via an account (“Account”). Therefore, Twinsity sets up on admin account for Customer and Customer’s admin may appoint one or several of Customer’s employees as users under the Account. The admins may grant users different access and usage rights.
3. Services, Fees and terms of payment
- Twinsity grants Customer access to the Platform for its use and shall provide Customer services offered on the Platform (collectively “Services”).
- Depending on the Service chosen by the Customer, the following rules apply:
- If the Parties have agreed on a fixed Service term (“Fixed Term”), the fees will be due for the entire term. If the Customer chooses the subscription, a monthly or yearly fee is agreed upon. Depending on the type of subscription the amount of the fee varies. Twinsity will issue monthly or yearly invoices to Customer.
- If the Customer choses to use the Platform project related, the payment of a one-time fee is agreed upon.
- If the Customer does not use the services available on the Platform properly, for example by uploading the data files incorrectly, and therefore needs support, Twinsity may charge an additional fee for its support services.
- All fees are net prices plus the statutory value added tax, if any.
- Twinsity will send all invoices via email to the Customer’s contact details indicated by the Customer in its Account.
- All invoices are due within thirty (30) days of receipt of the invoice.
4. Services by Twinsity, Platform changes and subcontracting
- Twinsity will use reasonable efforts to make the Platform available to Customer in a manner suitable for the use of the agreed Services. Twinsity does not assume any further obligations with respect to availability, suitability or functionality.
- Twinsity operates the Platform as a standard service for a large number of Customers and will therefore provide Customer with the standard version.
- Twinsity has the right to make substantial changes to the Platform if, based on Twinsity’s reasonable judgment, changes are necessary to meet legal requirements or to ensure the security of the Platform, of Twinsity, of Twinsity’s affiliates, of Customer or third parties. In this respect, Twinsity shall take into account the legitimate interests of the Customer.
- If the Platform is subject to substantial changes which disadvantage Customer, Twinsity will inform Customer at least two (2) months days in advance. The Customer can either agree to the changes before their planned entry into force or reject the changes. The Customer shall be deemed to have given his consent if he has not indicated his rejection before the planned entry into force of the changes. Twinsity shall specifically draw the Customer’s attention to this consent effect in its notice.
- If the Customer rejects the changes, both Parties have the right to terminate the contract for good cause. Twinsity shall separately inform the Customer of this mutual extraordinary right of termination in its notice.
- If a change to the Platform requires an amendment of the General Terms, Section 13 applies.
- The provision of the platform and the services offered there are to be qualified as services in the legal sense (Dienstleistungen). Twinsity does not owe any success.
- Twinsity is entitled to use any of its affiliates and any other subcontractors for the provision of Services.
5. Use of the Platform
- Customer shall only use the Platform to import, process, assess, analyse, edit, export and deliver data on the number of devices, for the duration and according to the modalities expressly indicated in the specifications set out in the price overview (collectively “Volumes”), such as the maximum GB.
- If Customer by using the Platform exceeds the Volumes, Twinsity may, at its sole discretion, (i) demand Customer to immediately cease such excessive use, (ii) provide Customer an offer with new Volumes and/or (iii) suspend permanently or temporarily Customer’s access to the Platform after prior notice.
- When using the Platform and the Services provided on it, Customer warrants that it will comply with all applicable laws, including product liability, product safety, data protection, tax and export control laws and in particular that it will obtain and maintain all necessary consents, approvals and authorizations at its own expense. Customer shall not and shall ensure that third parties whom Customer allows to use the Platform will not upload to the Platform or otherwise provide Twinsity with any content, including messages, reviews, videos, maps, models, folders, data, text, photographs, images, and data gathered by a drone or device (collectively “Customer Content”), the use of which in accordance with Section 7.2 results in a breach of applicable laws or infringes intellectual property, copyright, business secrets, or other rights of third parties or towards third parties, in particular confidentiality obligations.
- Customer warrants:
- to use the Platform, including the Account and any interfaces provided, exclusively for using the Services,
- not to enter any other information and data apart from that required to use the Services provided on the Platform,
- to refrain from all actions that may jeopardize the security and stability of the Platform, in particular but not exclusively accessing information or data without authorization, interfering with the Platform’s software, infiltrating Twinsity’s data networks or those of its subcontractors and not to pass on any viruses, Trojan horses or other malware, and
- to keep user IDs and passwords and other access data secret, not to pass them on to unauthorized third parties and to protect them from being accessed by third parties by taking appropriate measures that are in line with the latest requirements.
- Customer will notify Twinsity promptly if Customer becomes aware of circumstances and in particular incidents indicating that the requirements set forth in Sections 5.1 to may not be met.
6. Storage Capacity and Data Security
- The storage capacity available to the Customer on the Platform depends on the services agreed on (Preamble).
- Customer shall keep backups of the Customer Content outside of the Platform.
- Twinsity will store Customer Content for three (3) months after the termination of the contract.
7. Intellectual Property
- With the exception of the rights explicitly granted to the Customer, both Parties and their third-party suppliers and licensors remain the holders of all intellectual property rights and copyrights. All rights to the Platform, also covering all future developments, will in particular remain with Twinsity, its third-party suppliers and licensors.
- Customer grants Twinsity and its subcontractors the non-exclusive, transferable and sublicensable right to use any Customer Content, free of charge for the purpose of fulfilling the obligations related to Services offered in the Platform, the operation of the Platform, the fulfilment of legal obligations and official orders by authorities. The right of use granted in sentence 1 is temporally, spatially, and territorially unrestricted.
- Customer shall have the right to use any content and/or materials, programmes and other information which are resulting from the processing of Customer Content on the Platform, including all summaries, transformations and visualisations (collectively “Customer Output”) exclusively on the Platform. Excluded is the publication of Customer Output for advertising purposes of the Customer without referencing to Twinsity including the following website link: https://twinsity.com/.
- For the purpose of improving Twinsity’s services and/or developing and creating new services, including but not exclusively for training artificial intelligence, Customer grants Twinsity and its subcontractors the non-exclusive right to use any Customer Content and Output, free of charge. The rights of use granted in sentence 1 is transferable, sublicensable as well as temporally, contentwise, and territorially unrestricted. Any content and/or materials, programmes and other information which are resulting from the processing of Customer Content and Customer Output Data, including all summaries, transformations and visualisations (“Derived Data Output”) pursuant to this Section 7.4 belong to Twinsity. This includes, in particular, the right to grant subcontractors the right to use the Derived Data Output without any limitation.
- Except as expressly permitted by applicable law (in particular in accordance with the provisions of Section 69d or 69e German Copyright Act [Urheberrechtsgesetz – “UrhG”]), Customer may not, without Twinsity’s prior express written consent, edit, redesign, adapt, translate, reproduce, adapt, publish, decompile, disassemble or reverse engineer the Platform or the any other Services (or any part thereof).
8. Integration of Third-Party Services
- Customer has the option to use services, products and tools of external service providers in connection with the Platform at Customer’s own risk („Third Party Services„).
- Twinsity may object to the use of such Third Party Services if this conflicts with Twinsity’s legitimate interests.
- Unless expressly agreed otherwise, a contractual relationship regarding the use of such Third Party Services shall be established exclusively between Customer and the provider of the Third-Party Service. Twinsity shall not be responsible nor liable in connection with Third Party Services, and in particular not for:
- the proper performance of the Third Party Service,
- the compatibility of the Third Party Service with the Platform,
- the control of the contractual relations between Customer and the provider of the Third Party Service,
- the content or privacy practices of Third Party Services, or
- The use of Third Party Services shall also be governed by the respective general terms and conditions and data protection declarations of the selected Third Party Service (collectively “Third Party Terms”). Customer warrants not to violate the Third Party Terms. Customer indemnifies Twinsity in the event of an actual or alleged violation of the Third Party Terms pursuant to Section 10.
- If Twinsity refers to such Third Party Services, this should not be construed as an endorsement, approval or recommendation by Twinsity of such Third Party Services, unless expressly stated by Twinsity.
9. Liability, force majeure
- Twinsity shall not be liable for ordinary negligence (einfache Fahrlässigkeit) for and in connection with the use of the Platform or Services provided on the Platform, unless there has been a breach of contractual obligations the fulfilment of which makes the proper execution of the Services possible in the first place and on the observance of which Customer regularly relies and may rely (material contractual obligations – Kardinalpflichten). In this case, Twinsity’s liability is limited to the damage or loss which is foreseeable and typical of the contract at the time of entering into the particular business relationship.
- Any claims for damages against Twinsity resulting from or in connection with the particular business relationship expire no later than after one (1) year.
- The limitation and exclusion of liability under Sections 9.1 and 9.2 do not apply (i) to the extent liability cannot be limited or excluded under applicable laws, in particular but not exclusively under the German Product Liability Act (Produkthaftungsgesetz), (ii) in cases of intent or gross negligence, (iii) in cases of damage to health, life and limb, (iv) in cases of fraudulent intent, and (v) in the event of non-compliance with an agreed guarantee.
- If Twinsity provides any Services free of charge, Twinsity shall be liable for damages only if the damage was caused by the use of the Services pursuant to the General Terms and was caused by Twinsity intentionally or through gross negligence (vorsätzlich oder grob fahrlässig).
- None of Twinsity’s obligations under the General Terms constitute warranted characteristics or another type of guarantee. Twinsity excludes any strict liability (verschuldensunabhängige Haftung) for defects already existing at the time of the General Terms becoming part of the business relationship.
- Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any contractual obligations (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of the Party seeking protection under this Section 9.6. Such events, occurrences, or causes for which the Parties are not responsible shall include but not exclusively, acts of God, strikes, lockouts, cyber-attacks, riots, acts of war, terrorism, earthquake, fire or explosions.
- All limitations and exclusions of liability set out in Section 9 also apply to Twinsity’s affiliates, members of the executive board, directors, employees, agents, subcontractors, sub-suppliers and other persons assisting Twinsity.
- Customer shall indemnify Twinsity and Twinsity’s affiliates and subcontractors against all and any claims, damages and costs (including litigation and legal costs) arising from or in connection with an actual or alleged breach by Customer or an affiliate of Customer within the meaning of Section 15 German Stock Corporation Act et seq. (Aktiengesetz – “AktG”) of the General Terms, in particular but not exclusively of the requirements in Sections 5.1 to 5.5.
- In the event of a claim by a third party pursuant to Section 9.1, the Customer shall be obligated to provide the Twinsity immediately, truthfully and completely with all information required for the examination of the claims and a defense.
- Customer’s indemnification obligation pursuant to Section 9.1 does not apply if Twinsity or a third party is responsible for the occurrence of the relevant claims, damage or costs.
11. Responsibility and Representation
Customer shall be responsible for all actions and omissions by employees and third parties acting on its behalf, as well as for third parties who Customer allows to use the Platform and the Services to the same extent as for its own actions or omissions. In particular, Customer is fully responsible for ensuring that third parties who Customer allows to use the Services, such as its affiliates pursuant to Section 15 et seq. AktG, comply in full with all the terms of the General Terms. Customer must obtain a specific written agreement from Twinsity in order to enable third parties, including affiliates, to use the Platform and Services. Furthermore, Customer warrants that all persons it allows to use the Platform have rights of representation in relation to Customer, including the right to make legally relevant declarations, within the context of the rights of access and use granted to them.
12. Deletion and Disabling Access
- Twinsity is entitled to delete Customer Content provided by Customer in connection with the Platform or by third parties who Customer allows to use the Platform and/or to disable access to such content if and to the extent that, based on Twinsity’s reasonable judgement, the Customer Content does not meet the requirements of the General Terms, in particular but not exclusively under Sections 5.1 and 5.5 (lawfulness).
- In addition, Twinsity is entitled to completely or partially disable Customer’s access and/or that of third parties who Customer allows to use the Platform to the Platform and/or to suspend the provision of Services under the General Terms if Customer does not fulfil its payment obligations in Section 3 in part or in full or materially breaches other obligations under the General Terms, or it is necessary to disable the access due to legal requirements. In the event of disabling, the Twinsity shall notify the Customer thereof by e-mail.
13. Conclusion and term of the contract
- The contract between the parties is concluded when the customer has successfully created an account.
- Depending on the model selected by the Customer, the following contract terms shall apply:
- If the Customer chooses the subscription, the minimum term of the contract shall be one (1) year. During this period, termination without good cause is excluded. If the contract is not terminated in writing at least 1 months before the end of the minimum term, the term of the contract is tacitly extended by another year.
- If the Customer choses to use the Platform project related, the contract shall terminate upon expiration of the term.
14. Term and Termination
- During the minimum term in Section 13.2 lit. a), termination is only permitted for cause (Section 14.3). After expiry of the minimum term, the contract may be terminated by either Party not later than the third working day of a month with effect from the end of the next month.
- If the Customer choses to use the Platform project related the contract may be terminated by either Party not later than the third working day of a month with effect from the end of the next month.
- The right of termination for cause in accordance with Section 314 German Civil Code (Bürgerliches Gesetzbuch – “BGB”) remains unaffected. Reasons which entitle Twinsity to terminate for cause include but not exclusively, any circumstances entitling Twinsity to partly or completely disable Customer’s access to the Platform or suspend provision of Services, for example due to compromises of the security and stability of the Platform caused by a breach of an obligation under the General Terms by Customer. The right to claim damages remains unaffected by any notice of termination.
- If Twinsity provides the Services free of charge, either Party may terminate the Services at any time.
15 Changes to the General Terms
- Twinsity is entitled to amend these General Terms at any time, also within the existing contractual relationships, insofar as
- the changes do not alter the essential business features of the contract, in particular the use of the Platform and the Services owed by Twinsity.
- Twinsity shall notify Customer about changes to the General Terms in writing or in text form providing a notice period of at least two (2) months (before the planned effective date of the changes. The Customer may either consent to the changes prior to their planned effective date or reject the changes. The Customer shall be deemed to have given his consent if the Customer has not indicated its rejection prior to the planned effective date of the changes. Twinsity shall specifically draw the Customer’s attention to this effect in its notice.
- If the Customer rejects the changes, both Parties shall have the right to terminate the General Terms for good cause. Twinsity shall point out this mutual extraordinary right of termination to the Customer separately in its notice.
- Any amendments to the General Terms must be made in written form, including via email. This also applies to an amendments of this written form requirement.
- Information on the business relationship and all other information made directly or indirectly accessible to a Party by the other Party in connection with the initiation, conclusion and performance of the Services must be treated confidentially and not be used for any purpose outside the scope of the business relationship. The transfer or disclosure of such information is only permitted to employees, affiliates, subcontractors or advisors and their employees who themselves are subject to confidentiality obligations and usage restrictions at least as strict as the ones agreed in the General Terms and who need this information for the implementation of the business relationship. Customer is in particular prohibited from making the information received (in particular price information) available to competitors or potential competitors of Twinsity. Any further legal restrictions on Customer regarding the disclosure of information, in particular but not exclusively the obligation to strictly comply with antitrust laws in relation to information on Twinsity and prices, remain unaffected.
- The restrictions set out in Section 16.1 do not apply to the extent that the information is already publicly known, is made public by a third party without breaching any confidentiality duty or is subject to a statutory duty or judicial/official order to disclose. Furthermore, Twinsity may disclose the co-operation with Customer publicly, including but not exclusively on Twinsity’s website.
- The non-disclosure agreement according to Section 16 remains in force for three (3) years after the end of the business relationship.
17. Test Versions
- If Twinsity provides Customer with certain functions or other Services in connection with the Platform as a test version free of charge (each a “Test Version”), Twinsity will provide such Test Version “as is”. Twinsity is not obliged to provide specific functions or other requirements, including with regard to availability. Twinsity can provide an updated or modified version or Test Version at any time at its sole discretion, without prior notice and without specifying any reasons.
- Twinsity excludes any warranty or liability for and in connection with use of Test Versions by Customer. Twinsity’s liability for intent and gross negligence and in the case of fraudulent concealment of defects remains unaffected.
- All exclusions and limitations of liability set out in Section 17.2 also apply to Twinsity’s affiliates, members of the executive board, directors, employees, agents, subcontractors, sub-suppliers and other persons assisting Twinsity.
18. Final Provisions
- Where any terms in these General Terms are provided in the German language, the German language shall prevail for the interpretation of the terms.
- Should any provision of the General Terms be or become invalid or unenforceable, the remaining provisions of the General Terms remain unaffected. To replace the invalid or unenforceable provision, the Parties will agree on a valid provision coming as close as possible to the intent and purpose of the invalid or unenforceable provision in legal and commercial terms. The same applies to any omissions in the General Terms.
- The business relationship of the Parties is governed exclusively by the laws of the Federal Republic of Germany, excluding German conflict of law provisions and international and supranational (contractual) legal systems, including but not limited to the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).
- For all disputes arising out of or in connection with the business relationship of the Parties, the courts of the place of registered office of Twinsity shall have exclusive jurisdiction.
- The place of performance for all services by the Parties under or in connection with the General Terms is the place of registered office of Twinsity.