General terms and conditions of Responsive Acoustics GmbH

Status: 28.2.2020

Section 1
Scope of application, conclusion of contract and general provisions

1. validity of the general terms and conditions

These general terms and conditions of business and delivery apply to all contracts concluded between Responsive Acoustics GmbH and the customer as well as all other agreements made within the scope of the business relationship. The customer's general terms and conditions expressly do not become part of the contract, even if they are not expressly contradicted by Responsive Acoustics GmbH. In the event that the client does not wish to accept the following general terms and conditions of business and delivery, he must notify Responsive Acoustics GmbH in writing beforehand.

2. terms of payment and prices

2.1 Unless otherwise agreed in writing, all invoices of Responsive Acoustics GmbH are payable within fourteen days from the date of invoice. The date of receipt of payment by Responsive Acoustics GmbH is decisive.

2.2 In case of default, Responsive Acoustics GmbH is entitled to withhold further deliveries and services. If the customer is in default of payment, Responsive Acoustics GmbH is entitled to charge interest at a rate of 9 percentage points above the base interest rate applicable at the time.

2.3 All prices are exclusive of the respective statutory value added tax. Responsive Acoustics GmbH is entitled to make partial deliveries if this is reasonable for the contractual partner.

3. delivery and shipping

3.1 All offers are subject to change. Delivery will only be made while stocks last. All delivery dates quoted by Responsive Acoustics GmbH are approximate and may therefore be exceeded by two to three days, unless a delivery date is expressly agreed in writing to be binding. If the purchaser requests changes or additions to the order after the order has been placed, or if other circumstances arise that make it impossible for Responsive Acoustics GmbH to meet the delivery date, although Responsive Acoustics GmbH is not responsible for these circumstances, the delivery date will be postponed by a reasonable period of time. If the non-observance of a binding delivery date is demonstrably due to mobilization, war, riot, strike or lockout, or other circumstances for which Responsive Acoustics GmbH is not responsible according to general legal principles, the delivery period will be extended appropriately. The customer may withdraw from the contract if he sets a reasonable grace period for Responsive Acoustics GmbH. The withdrawal must be made in writing. If it becomes impossible for Responsive Acoustics GmbH to fulfill the contract in whole or in part for the mentioned reasons, Responsive Acoustics GmbH shall be released from its obligation to deliver.

3.2 The costs for shipping and transport insurance are generally to be borne by the customer, whereby the choice of shipping route and method is at the discretion of Responsive Acoustics GmbH.

3.3 The customer is obligated to inspect the goods immediately upon arrival and to immediately notify Responsive Acoustics GmbH in writing of any visible transport damage as well as any damage to the packaging. The same applies to hidden damage from the time the defect becomes apparent. If Responsive Acoustics GmbH loses its claims against the insurance company or the sub-supplier due to the omission of this obligation, the client is liable for all costs resulting from this breach of obligation. The risk is transferred to the customer as soon as the goods leave the factory or the warehouse of Responsive Acoustics GmbH.

4. limitation of liability

4.1 Responsive Acoustics GmbH is liable for intent and gross negligence in accordance with the statutory provisions. In the case of simple negligence, Responsive Acoustics GmbH shall only be liable if an essential contractual obligation (cardinal obligation) is violated or a case of default or impossibility exists. In the case of liability due to simple negligence, this liability is limited to such damages that are foreseeable or typical. Liability for the absence of guaranteed characteristics, for fraudulent intent, for personal injury, defects of title, under the Product Liability Act and the Federal Data Protection Act shall remain unaffected.

4.2 In the event of a claim against Responsive Acoustics GmbH under warranty or liability, contributory negligence on the part of the customer must be taken into account appropriately, especially in the case of insufficient error messages

4.3 The limitations of liability set forth below also apply to vicarious agents of Responsive Acoustics GmbH.

Section 2
Special Provisions for Software Provision

5. subject of the software transfer

5.1 The object of the Software transfer is the non-exclusive temporary transfer of computer programs, user manuals and other accompanying material (collectively: "Software") to the Customer for a fee as specified in the order confirmation.

5.2 Unless expressly agreed otherwise, the Software shall be provided for a limited period of time, geographically limited to the territory of the country in which the license was acquired by the Customer, non-transferable and non-sublicensable.

5.3 Unless otherwise agreed, Responsive Acoustics GmbH delivers the software in the version current at the time of delivery in accordance with the service description in the documentation. The documentation can be provided electronically, it is part of the software. The source code is not delivered to the customer, but remains with Responsive Acoustics GmbH.

5.4 Unless expressly agreed upon in writing with Responsive Acoustics GmbH, the customer is not entitled: i. to edit the software or parts thereof. This also applies to the correction of errors, unless the error correction is carried out on and according to the instructions of Responsive Acoustics GmbH; ii. to make the software publicly available; iii. to grant sub-licenses, to make the software available to third parties or to use it for other purposes. to grant sublicenses, to lend, to rent or to sublease the software.

5.5 The customer is only entitled to make a backup copy and to use a duplicate copy if the legal requirements are met and limited to the legal purpose and scope according to § 69d para. 2 and para. 3 UrhG (German Copyright Act).

5.6 as the legal requirements for this exist and limited to the legal purpose and scope according to § 69e para. 1 UrhG, a decompilation of the software by the customer is permissible; otherwise, reverse engineering and decompiling (disassembling) are not permissible. Prior to decompilation, the customer is obliged to request Responsive Acoustics GmbH in writing to disclose the interface information, stating the legal requirements in the respective case and setting a deadline. After fruitless expiration of the set, reasonable deadline, the customer may decompile the software.

5.7 The Customer shall not be entitled to remove or circumvent existing protective mechanisms of the Software against unauthorized use, unless this is necessary for trouble-free use. Copyright notices, serial numbers and other features serving to identify the software may not be removed or changed.

5.8 The customer is aware that the software may have been developed using third-party software and/or open-source software and components. Rights to third-party software are granted to the customer only to the extent that they are necessary for its use together with the software from Responsive Acoustics GmbH. The customer acknowledges the validity of the license terms of the manufacturer of the third-party software and the open-source software and undertakes vis-à-vis Responsive Acoustics GmbH to observe the license terms of the manufacturer of the third-party software and open-source license terms referred to in the product description or the associated appendix, and indemnifies Responsive Acoustics GmbH against all claims based on a breach of these license terms by the customer, unless the customer, its legal representatives or vicarious agents are not at fault. Upon request of the customer, Responsive Acoustics GmbH will provide the customer with the relevant license terms of the manufacturer of the third-party software and open source license terms prior to the conclusion of the contract. The customer may also request a copy of the open source software on data media against reimbursement of the shipping costs in cases where the respective open source license requires this.

5.9 Services for training, individual implementation or customer-specific adaptation of the software require the conclusion of a separate written contract, to the conclusion of which there is no mutual claim.

6. warranty for software

6.1 Responsive Acoustics GmbH guarantees for the duration of the transfer of use that the software essentially corresponds to the program description in the accompanying written material about its functionality.

6.2 Responsive Acoustics GmbH points out that according to the state of the art it is not possible to create computer software completely free of errors.

6.3 If a defect occurs, the defect and its manifestation must be described in such detail in a written notice of defect that a verification of the defect (e.g. presentation of the error messages) is feasible and the exclusion of an operating error (e.g. indication of the work steps) is possible. If the customer is a merchant, the provisions of § 377 HGB (German Commercial Code) on the duty to inspect and give notice of defects under commercial law shall apply in addition, even if instruction in the operation of the system has not been provided.

6.4 If the notice of defects proves to be justified, the customer shall set Responsive Acoustics GmbH a reasonable deadline for subsequent performance. The customer shall inform Responsive Acoustics GmbH which type of subsequent performance – improvement of the delivered software or delivery of a new, defect-free software – it desires. Responsive Acoustics GmbH is, however, entitled to refuse the chosen supplementary performance if this can only be carried out at disproportionate cost to it and if the other type of supplementary performance would not entail any significant disadvantages for the customer. Responsive Acoustics GmbH may also refuse subsequent performance altogether if it can only be carried out at disproportionate cost to it.

6.5 Responsive Acoustics GmbH is entitled to two attempts within the period set by the customer to carry out subsequent performance for the same or a directly related defect. After the second failed attempt of supplementary performance, the customer may withdraw from the contract or reduce the price. The right of withdrawal or reduction can already be exercised after the first unsuccessful attempt at subsequent performance if a second attempt within the set period is not reasonable for the customer. If the subsequent performance has been refused under the above-mentioned conditions, the customer shall be entitled to the right of reduction or withdrawal immediately.

6.6 Withdrawal due to an insignificant defect shall be excluded.

6.7 If the customer has made a claim against Responsive Acoustics GmbH for warranty and it turns out that either there is no defect or the claimed defect does not obligate Responsive Acoustics GmbH to provide warranty, the customer must compensate Responsive Acoustics GmbH for all expenses incurred by Responsive Acoustics GmbH, provided that the customer is responsible for the claim due to gross negligence or intent.

6.8 No liability is assumed for the software being suitable for the customer's purposes and for it working together with software available at the user.

6.9 The delivery of manuals and documentation beyond the written material / program description delivered with the software and the user guidance and / or online help implemented in the software, or instruction, shall only be owed if this has been expressly agreed in writing between the parties. In the event of such an express agreement, requirements regarding the content, language and scope of a manual and / or documentation to be expressly delivered shall not be made, and the delivery of a quick reference guide shall be sufficient, unless the parties have agreed in writing on further specifications.

6.10. The delivery of an operating manual in English is permissible if the subject matter of the contract has not yet been fully localized for the respective market. The same shall apply if the subject matter of the contract is generally only available in English.

6.11. Unless explicitly agreed otherwise in writing, the Software shall be delivered in the standard license and documentation configuration specified by the manufacturer.

6.12. Any claims for damages shall be subject to the limitations set forth in Section 1 No. 4.

7 Termination of the software transfer

Upon effectiveness of the termination of the software transfer according to clause 22. the software has to be rendered unusable by the customer in case of delivery in incorporeal form and has to be returned to Responsive Acoustics GmbH in case of delivery in corporeal form. The destruction must be confirmed to Responsive Acoustics GmbH in writing upon request. Responsive Acoustics GmbH shall furthermore have the right to suspend the functionality of the software by remote shutdown.

8. data transfer

8.1 The customer grants Responsive Acoustics GmbH the right to use data generated in connection with the use of the software for its own purposes. In particular, Responsive Acoustics GmbH is permitted to pass on the data to third parties.

8.2 Responsive Acoustics GmbH undertakes to comply with the applicable data protection regulations insofar as the data is not purely machine data, but data with a personal reference. The client is obligated, for example by concluding an order processing agreement, to cooperate in ensuring that Responsive Acoustics GmbH processes personal data in a legally compliant manner. It is the sole responsibility of the customer, as the person responsible for data protection, to fulfill the existing obligations to clarify and inform the data subject in accordance with data protection law.

Section 3
Special Provisions for Services

9. subject of the services

9.1 Responsive Acoustics GmbH provides additional services for the customer, if agreed upon in the order confirmation, for a monthly fee, which results from the order confirmation.

9.2 The services include the remote maintenance of the hardware and software as well as the constant updating of the configuration. Any additional scope of services may be agreed upon separately.

10. remote maintenance of hardware and software

10.1 Unless expressly agreed otherwise, remote maintenance of the hardware and software shall be performed at the customer's request by telephone or by means of remote access during our normal business hours, Monday to Friday from 9:00 a.m. to 5:00 p.m. (except on public holidays).

10.2 We shall endeavor to perform our remote maintenance services as uninterruptedly as possible. Nevertheless, due to the peculiarities of the medium Internet and the risks of interruption or termination of the information transmission, downtimes cannot be excluded even with all due care.

10.3 For error analysis, the Customer shall describe the error as precisely as possible. If necessary, further information and documents have to be provided to Responsive Acoustics GmbH completely and in time.

11. update of the configuration

11.1 The constant updating of the configuration includes that the customer is provided at any time (within a reasonable time) by way of software update with the latest version of Responsive Acoustics that is included in its scope of services and that is technically feasible on the hardware in its possession.

11.2 The software updates will be carried out in coordination with the customer primarily outside his business hours by means of remote access. We shall endeavor to carry out the software updates as uninterruptedly as possible. Nevertheless, due to the peculiarities of the medium Internet and the risks of interruption or termination of the information transmission, downtimes cannot be excluded even with all due care.

11.3 The provisions on the transfer of software (Section 5), in particular with regard to the warranty, shall apply accordingly.

Section 4
Special Provisions for the Licensing of Sound Content

12. subject of the license

12.1 In order to enable the full functionality of the hardware and software, Responsive Acoustics GmbH provides the customer with various sound content, in particular so-called soundscapes, sound recordings, sound files and similar works (together: the "Sound Content") in accordance with this section.

12.2 The Sound Content is protected by copyright. The purchase of a license only grants rights of use to the extent described in the order confirmation and herein.

12.3 The subject of the licensing of the Content is the non-exclusive temporary provision of the Content to the Customer for a fee in accordance with the information in the order confirmation. Unless expressly agreed otherwise, the Content shall be provided for a limited period of time, geographically limited to the territory of the country in which the license was acquired by the Customer, non-transferable and non-sublicensable.

12.4 Unless expressly agreed upon in writing with Responsive Acoustics GmbH, the customer is not entitled:

i. to edit the Sound Content or parts thereof;

ii. to copy the Sound Content or make it publicly available;

iii. to play the Sound Content on hardware or software other than that supplied by Responsive Acoustics GmbH;

iv. to grant sublicenses, to use the Sound Content for other purposes, or to use the Sound Content for other purposes. grant sublicenses, lend, rent or sublet the Sound Content.

13. GEMA

13.1 Responsive Acoustics GmbH guarantees that no claims for remuneration from GEMA will arise for the contractual use of the Sound Content.

13.2 Should the customer be held liable by GEMA for the contractual use of the sound content of Responsive Acoustics GmbH, the customer must notify Responsive Acoustics GmbH immediately. Responsive Acoustics GmbH will support the customer to a reasonable extent at its own expense in defending against claims by GEMA.

14. Termination of the Licensing of the Sound Content

Upon effectiveness of the termination of the licensing of the Sound-Content according to clause 22. the Sound-Content has to be rendered unusable by the customer in case of delivery in incorporeal form and has to be returned to Responsive Acoustics GmbH in case of delivery in corporeal form. The destruction must be confirmed to Responsive Acoustics GmbH in writing upon request. Responsive Acoustics GmbH also has the right to suspend the functionality of the Sound Content by remote disconnection. Section 5 Special Provisions for Hardware

15. warranty for hardware

15.1 Responsive Acoustics GmbH warrants that the goods are not defective in any way that would void or diminish the value or the suitability of the goods for their intended use.

15.2 Responsive Acoustics GmbH and the customer agree that explanations and descriptions of both hardware and software contained in the manual and / or in the price list do not constitute a warranty of certain properties.

15.3 The warranty period is twelve months and begins on the day of delivery. The customer must immediately notify Responsive Acoustics GmbH in writing of any defects occurring during the warranty period. If the customer is a merchant, the provisions of § 377 of the German Commercial Code (HGB) regarding the duty to inspect and report defects under commercial law shall apply in addition, even if the customer has not been instructed in the operation of the system.

15.4 The warranty does not include the removal of defects caused by normal wear and tear, external influences or operating errors. The warranty does not apply if the customer modifies devices, elements or additional equipment himself or has them modified by third parties without the consent of Responsive Acoustics GmbH, unless the customer provides full proof that the defects still in question were not caused by such modifications, either in whole or in part, and that the elimination of defects is not made more difficult by the modification.

15.5 If the notice of defect proves to be justified, the client shall set Responsive Acoustics GmbH a reasonable deadline for subsequent performance. The client shall inform Responsive Acoustics GmbH which type of subsequent performance – improvement of the delivered item or delivery of a new, defect-free item – it desires. Responsive Acoustics GmbH is, however, entitled to refuse the chosen supplementary performance if this can only be carried out at disproportionate cost to it and if the other type of supplementary performance would not entail any significant disadvantages for the customer. Responsive Acoustics GmbH may also refuse subsequent performance altogether if it can only be carried out at disproportionate cost to it.

15.6 Responsive Acoustics GmbH is entitled to make two attempts at subsequent performance for the same or directly related defect within the reasonable period set by the customer. After the second failed attempt at subsequent performance, the customer may withdraw from the contract or reduce the purchase price. The right of withdrawal or reduction may already be exercised after the first unsuccessful attempt at subsequent performance if a second attempt within the set period cannot reasonably be expected of the customer. If the subsequent performance has been refused under the above-mentioned conditions, the customer shall be entitled to the right of reduction or rescission immediately.

15.7 Withdrawal due to an insignificant defect shall be excluded.

15.8 If the customer has made a claim against Responsive Acoustics GmbH for warranty and it turns out that either there is no defect or the claimed defect does not obligate Responsive Acoustics GmbH to provide a warranty, the customer must compensate Responsive Acoustics GmbH for all expenses incurred by Responsive Acoustics GmbH, provided the customer is responsible for the claim due to gross negligence or intent.

15.9 The delivery of an operating manual in English is permissible if the subject matter of the contract has not yet been fully localized for the respective market. The same applies if the subject matter of the contract is generally only available in English.

15.10. Unless explicitly agreed otherwise in writing, the Hardware shall be delivered in the respective default and documentation configuration specified by the manufacturer. Section 6 Special Provisions for the Purchase of Hardware

16. retention of title

16.1 Delivered hardware purchased by the client remains the property of Responsive Acoustics GmbH until full payment of the respective purchase price. The customer is obligated to properly insure the items subject to Responsive Acoustics GmbH's retention of title (i.e., theft, fire, water and low-voltage insurance) and to provide Responsive Acoustics GmbH with proof of such insurance upon request. In the event of damage, the client's insurance claim shall be deemed assigned to Responsive Acoustics GmbH. The client is not authorized to dispose of the items subject to retention of title. In the event of seizure or confiscation, the client must immediately inform Responsive Acoustics GmbH in writing and must immediately notify third parties of Responsive Acoustics GmbH's retention of title in an appropriate manner. In the event that the client nevertheless sells the delivery items and Responsive Acoustics GmbH should approve this, the client assigns to Responsive Acoustics GmbH all claims against its purchasers already upon conclusion of the contract. The customer is obligated to provide Responsive Acoustics GmbH with all information necessary to assert these rights and to provide the necessary cooperation.

Section 7
Special Provisions for the Rental of Hardware

17. rental period

17.1 The rental period shall correspond to the contract period in months stated in the order confirmation.

17.2 The rental period shall be automatically extended by twelve months at a time if it is not terminated in writing with six months' notice before the end of the rental period.

17.3 The rental period shall commence upon delivery of the Hardware.

18. default of payment

18.1 If the Customer is in default with at least two rental installments, the Lessor shall be entitled to repossess its Hardware in order to secure its property or to avert damage, even without terminating the contract, without losing the claim to continued payment of the rentals. The Lessor shall, however, be obliged to return the Hardware to the Lessee after payment has been settled in full.

19. Ownership

19.1 In case of renting hardware, Responsive Acoustics GmbH remains the owner of the hardware. Responsive Acoustics GmbH is entitled to inspect the hardware at any time and to check its condition.

19.2 The client may neither sell, pledge, give away, rent or lend the rented hardware, nor assign it as security.

19.3 The Customer shall keep the rented Hardware free from third party rights. Responsive Acoustics GmbH must be notified immediately by the customer of any third party claims to the rented hardware, theft, damage and loss. The client shall bear the costs for measures to prevent access by third parties that were not caused by Responsive Acoustics GmbH.

19.4 Subsequent changes and inscriptions to the rented hardware are only permitted if Responsive Acoustics GmbH has given its prior written consent. However, the customer is obligated to restore the original condition at the end of the contract at his own expense upon request of Responsive Acoustics GmbH, unless Responsive Acoustics GmbH has waived this or the original condition can only be restored with disproportionate effort.

20. tenant obligations

20.1 The Customer shall ensure that rented hardware is handled in accordance with the manufacturer's operating instructions. The rented Hardware shall be handled with care within the scope of the contractual purpose of use.

21. return of the rented hardware

21.1 Upon termination of the rental agreement, the rented hardware shall be returned by the Customer at its own expense and risk without delay and free of any soiling. A joint record of the condition shall be made upon return and signed by both contracting parties or their authorized representatives.

21.2 If rented hardware is not returned on time against the will of Responsive Acoustics GmbH, the customer will be charged 1/30 of the monthly rent agreed upon for the contract period and the costs caused by the withholding as a basic amount for each day of withholding.

21.3 If the Customer does not return the Hardware after expiry of the rental period agreed upon conclusion of the contract despite a reminder and setting of an appropriate deadline, the Customer shall owe the Lessor payment of a lump sum in the amount of one year's rent. The customer reserves the right to prove a lesser damage. However, the corresponding hardware shall remain the property of the lessor. In all other respects, the obligations of the Lessee under this Agreement shall continue to apply mutatis mutandis during this period.

21.4 Lessee's rights of retention with respect to leased Hardware may only be asserted to the extent that they are based on claims that have been finally determined by a court of law or are undisputed and based on the lease agreement.

Section 8
Common Provisions for Sections 2 to 7

22 Remuneration, due date and default

22.1 For the provision of software (Section 2), the use of services, the licensing of sound content (Sections 3 and 4) and the rental of hardware (Section 7) (collectively the "Monthly Services"), a monthly payment (collectively the "Monthly Payments") shall be due, if any, the amount of which is set forth in the Order Confirmation.

22.2 The Monthly Payments shall be due for the respective month in advance on the 3rd working day of each month. In the first month, the monthly payments shall become due upon complete provision of hardware and software and shall be calculated on a pro rata basis according to the remaining days of the month, beginning with the day following the provision of the hardware and software.

23. termination of the monthly services

23.1 The monthly services may be terminated by either party with six (6) weeks' notice to the end of each quarter, but no earlier than the end of the quarter in which the provision of the hardware and software is for the first time anniversary.

23.2 At the end of the rental period pursuant to Section 16, the monthly services and payments associated with the hardware shall also end to that extent without the need for separate notice of termination.

23.3 Each contractual partner may terminate the monthly services without notice for good cause. Responsive Acoustics GmbH may in particular terminate without notice if the customer i. is in arrears with two monthly payments; ii. suspends its payments, allows bills of exchange and checks to be protested for lack of funds, files for insolvency proceedings or such proceedings are opened against its assets or the opening is rejected for lack of assets; iii. has made incorrect statements or concealed facts when concluding the contract and therefore the Lessor cannot reasonably be expected to continue the contract; iv. Responsive Acoustics GmbH asserts its retention of title to the hardware. v. despite a written warning, fails to refrain from serious breaches of the contract or fails to immediately remedy consequences of such breaches of contract that have already occurred.

Section 9
Final Provisions

24. confidentiality

24.1 Responsive Acoustics GmbH and the customer mutually undertake to keep all business and trade secrets of the other party secret for an unlimited period of time and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information received by the other contractual partner as a result of the business relationship may only be used by the latter within the scope of the respective purpose of the contract.

25. miscellaneous

25.1 Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provisions shall be replaced by the provision that comes closest to the intended purpose.

25.2 No ancillary agreements have been made. Supplements to the contract shall only be effective if they are confirmed in writing.

25.3 The customer may only assign his rights arising from a business relationship with Responsive Acoustics GmbH with the written consent of Responsive Acoustics GmbH. The customer may only set off claims against claims of Responsive Acoustics GmbH with counterclaims that have been acknowledged or have become res judicata.

25.4 The place of jurisdiction is, as far as legally permissible, Hamburg. German law shall apply to the exclusion of UN commercial law.