The products to be purchased and the services to be rendered by the Contract Partner in accordance with the order form are subject to the following General Terms and Conditions (hereinafter “GTC”) of Ocean Maps GmbH (hereinafter the “Company”).
The GTC comprise part of any order form submitted to the Company and govern the business relationship between the Company and the Contract Partner, on the one hand in connection with the transfer and granting of the right to use the “SCUBA DIVING BY OCEAN MAPS” software (hereinafter the “Software”) developed by the Company as well as the marketing services to be rendered for the software by the Contract Partner in return (hereinafter “Cooperation Partnership”), and on the other in connection with the rendering of agency services for the sale of the software to final customers (hereinafter “Sales Partnership”). Part 1 of the GTC (“Cooperation”) applies solely to the Cooperation Partnership; Part 2 of the GTC (“Public presentations”) applies to Contract Partners who intend to use the software as described therein; Part 3 of the GTC (“Sales”) applies solely to the Sales Partnership. The remaining provisions of these GTC, especially Part 4, apply to both Sales and Cooperation Partnerships.
The version applicable at the time the contract is concluded shall be the definitive version. By placing an order, the Contract Partner expressly acknowledges the validity of these GTC. Deviations from the GTC shall apply only if they have been agreed by the Contracting Parties in writing. The general terms and conditions of the Contract Partner shall not apply even if the Company does not explicitly reject them. Acts in performance by the Company shall not represent any approval of the general terms and conditions of the Contract Partner.
The Company is only prepared to conclude contracts in accordance with these GTC, which shall also apply to further business with the Contract Partner without the need for further reference. The application of deviating conditions requires an express written agreement. Should individual conditions be modified in writing, all unmodified conditions shall remaining binding on both parties. Modifications shall apply only to the company for which they have been agreed. Verbal agreements shall only be binding upon the Company once they have been confirmed by the Company in writing.
(1) Pursuant to point 1 (2) to (4) and point 2, the Contract Partner is authorised to use the software for its own purposes, limited to the regional dive spots allocated to it according to the order form, and in particular for presentations to individual customers on a computer and other activities commonly undertaken within the scope of the ordinary course of business of a dive base, at the location specified on the order form and on the servers installed at that location (hereinafter the “Cooperation”). In return, the Contract Partner undertakes to purchase the services of the Company and to use the software pursuant to point 3 of these GTC.
(2) The Contract Partner has the right to activate the software in a server version for office access as well as for individual users who are located at the location during normal dive base operations for the Contract Partner and who act on behalf of the Contract Partner.
(3) There are two ways for the software to be activated for the Contract Partner for the corresponding number of dive sites indicated on the order form: either the Contract Partner creates the accounts required for the respective users via the website of the Company itself and sends the Company a list of the number and names of the respective users, or the Contract Partner sends the Company the data required to register the individual users by completing the relevant fields on the order form. The Contract Partner shall additionally be provided with a licence key which determines the number of licences needed by the Contract Partner for server and client software. If the required number of licences changes, the licence key will be adjusted accordingly. The Contractor is solely responsible for the software being used by the users as intended, both in accordance with this Contract and within the scope of the normal activities of the Contract Partner.
(4) The Contract Partner and the users specified by the Contract Partner are featured and made visible on the website of the Company.
(5) Each time the software is used, the Contract Partner must clearly identify such use with the name of the Company and make active reference to the fact that the software is a product owned by the Company. The Company’s logo must also always be clearly displayed.
(1) Upon concluding the contract, the Contract Partner shall be granted the non-exclusive limited right to use the software free of charge for the duration of the contractual relationship and for the purposes defined in these GTC. The software may only be used in the form provided by the Company and never in a modified, translated, edited or redesigned form. The Contract Partner is not entitled to obtain, use or inspect the software’s source code or development documentation.
(2) The Contract Partner may use the software only for the purposes of its business activity in the area of the scope of use described in point 1 regarding the rendering of the services it offers.
(3) The Contract Partner shall not itself, or through a third party, modify, decode or decompile the object code or manufacture/attempt to manufacture the source code through reverse engineering or in any other way, with the exception of instances in which this is necessary for creating interoperability or for ensuring debugging the troubleshooting pursuant to Art. 40d Austrian Copyright Act. Prior to decompiling the software, the Contract Partner shall write to the Company in good time requesting the Company to provide the information and documentation necessary for creating interoperability. The Contract Partner is authorised to decompile the software in the sense mentioned above only if the request to do so remains unsuccessful, despite the setting of a grace period in writing.
(4) The Contract Partner is not authorised to sell, hire out or transfer the software or make it accessible to third parties in any other way unless agreed otherwise in accordance with the provisions of Part 2 of these GTC. Furthermore, the Contract Partner is not authorised to grant third parties rights of use, permissions to use, sub-licences or other rights of use over the software. The duplication, dissemination and making available of the software are also prohibited unless expressly permitted.
(5) The Contract Partner is not permitted to develop or program upgrades or enhancements of the software without the consent of the Company. The Contract Partner is also not permitted to emulate the software for the development and manufacture of its own product, or to develop a similar computer program or another similar technical application on the basis of the software, or to use the software in any way whatsoever as a template or suggestion for the development of similar computer programs, apps or other technical solutions.
(6) The Contract Partner is required to prevent the unlawful use of the software and any other unauthorised access to the software by customers, business partners or other third parties by taking suitable technical, organisational or structural precautions and technical protective measures. To this end, the Contract Partner shall, inter alia, require the users of the software pursuant to point 1 (3) to use the software only in the manner deemed necessary in accordance with the scope of use pursuant to point 1 of these GTC and to ensure that the software is also used as intended by the users with due regard for the rights of the Company.
(1) Within the scope of the Cooperation, both the Contract Partner and the Company have the right to publicise the Cooperation in all media. Information expressly identified as confidential is excluded from publication.
(2) The Contract Partner undertakes to use the documents, texts, logos and materials made available by the Company for the purpose of advertising the Cooperation and the services of the Company. However, in doing so, no publications which could harm the Company shall be actively released in the media. The materials made available by the Company for publication shall be transmitted by email or placed on the Company’s website for downloading. The marketing materials shall be clearly identified as such. The use of other materials or materials created by the Contract Partner is not permitted, unless permission has been granted by the Company. Such permission must be given in writing. The Contract Partner is responsible for bearing the costs of the respective media, advertisements, etc. Exceptions must be agreed with the Company in writing.
(3) The Contract Partner can be presented on the websites and software of the Company. The content and layout shall be specified by the Company. The Company is not required to use or make public the information, texts, logos or other documents provided by the Contract Partner.
(4) The Contract Partner assures the Company that the contents created or made available by it, such as texts, graphics, concepts, photographs and the like, shall not infringe any third-party rights, in particular trademarks, copyright or other rights of utilisation, or statutory provisions, such as, in particular, the E-Commerce Act, and shall indemnify and hold the Company entirely harmless in this respect.
(5) If the Contract Partner has its own website, it shall undertake to make the Cooperation clearly visible on its homepage and to use the information and documents specified by the Company for this purpose.
(6) If the Contract Partner has its own newsletter, it shall undertake to announce and promote the Cooperation therein. The contents of the newsletter shall be developed in conjunction with the Company. The information and documents provided by the Company shall be used by the Contract Partner for this purpose.
(7) The Contract Partner undertakes to clearly affix or lay out the posters, flyers, vouchers and stickers provided by the Company for the purpose to or on its business premises. In addition, the provided documents shall also be affixed to or laid out on the boats used by the Contract Partner for the purpose of identifying the Cooperation.
(8) The Contract Partner shall use only the documents provided by the Company.
The software provided by the Company within the scope of the Cooperation and the maps it contains may only be used in the form specified by the Company for the purposes defined in these GTC. The duplication, dissemination, transmission, public playback or other provision of the maps in whole or a significant part thereof, regardless of whether in analogue or digital form, is prohibited unless agreed otherwise in accordance with the provisions of Part 2 of these GTC.
Within the scope of the Cooperation, the Contract Partner undertakes to send the Company written feedback on the market situation and market development at the end of each calendar month. In particular, feedback should be sent on the use of the software and map materials, especially on their usefulness for operations in dive bases, so that the Company is in a position to make improvements and optimisations. If the Contract Partner has also concluded a distribution agreement, it shall additionally report on sales activities in its business and in respect of the use of software and map materials, including their usability by customers.
(1) As the software is provided free of charge, the Company precludes any warranty where legally permitted, including but not limited to any liability for the assurance of conformity to market conditions, fitness for a specific purpose and the presence of specific functions. With regard to the software, no warranty is made with respect to infringements, ownership, or freedom from third-party intervention. The full risk regarding the quality and performance of the software rests with the Contract Partner. The Contract Partner is solely responsible for ensuring that the software meets specific needs and requirements. The Company does not accept any responsibility for the choice of software or the results that can be achieved with the software or the objects used in conjunction with it.
(2) The Company does not provide any warranty for faults, disruption or damage caused by improper installation, failure to follow the installation instructions, improper use, infection with computer viruses, use of unsuitable organisational material and data carriers, or abnormal operating conditions.
(3) In particular, the Company does not provide any warranty for a certain level of marketability, adequacy or fitness of the software for a specific purpose. Whether or not the software is suitable for customer-specific applications is therefore solely the responsibility of the dive base. The virtual underwater maps provided within the scope of the software’s agreed scope of performance have been developed on the basis of a state-of-the-art underwater mapping method. Underwater regions are constantly changing due to a wide range of factors. The Company does not provide any warranty that the underwater regions and maps shown in the software correspond to the actual conditions in the area.
(4) Claims brought under the Product Liability Act are precluded where legally permitted.
(1) The Contract Partner is authorised to make use of the software pursuant to point 8 of this Part 2 of the GTC only at the dive spot specified on the order form and only with the equipment and locations specified therein in return for payment of a licence fee.
(2) To this end, the Contract Partner shall specify the number of screens and other receiving devices required for a calendar year on the order form, including a description of these devices and their locations.
(3) Before the start of and during each dive briefing (hereinafter referred to as “Briefing”), the Contract Partner must make active reference to the fact that the software is a product owned by the Company. The Company’s logo must also always be clearly displayed throughout the Briefing.
(1) Upon concluding a contract, the Contract Partner shall receive the paid, non-exclusive, limited right to public playback and public performance of the software, including the screenshots and in particular the digital maps displayed when running the software, for the purposes defined in these GTC and for the duration of the contractual relationship; the content covered by this licence is limited to Briefings which the Cooperation Partner holds within the scope of its usual business activity as well as locally on boats and in other presentation rooms in which the devices described on the order form are set up and which lie within the dive spot allocated to the Cooperation Partner.
(2) For use pursuant to paragraph (1) of this provision, the Cooperation Partner shall pay a licence fee. The amount of the licence fee to be paid in advance for a calendar year depends on the number of screens and other receiving devices via which the software and the digital maps are to be used for the Briefings. This number must be specified in the order form. The annual licence fee per screen is stipulated on the order form regardless of whether and how many Briefings are organised each year.
(3) The licence fee (plus statutory VAT) for the current calendar year shall be paid within 14 days of contract conclusion, and for subsequent years by not later than 10 January of the respective calendar year, in each case following delivery of an invoice by the Company.
(4) The Company reserves the right to adjust the licence fee at any time and, in particular, to increase it. Such changes to the licence fee shall take effect from the calendar year following the adjustment and shall not, therefore, have any effect on the current calendar year. Once the adjustment comes into effect, use of the software pursuant to Part 2 is permitted only following payment of the adjusted licence fee.
(1) Moreover, the provisions of Part 1 of the GTC on use of the software by the Contract Partner within the scope of the Cooperation shall additionally apply, insofar as these do not contradict provisions of Part 2 of these GTC.
(1) The Contact Partner is authorised to facilitate licence agreements between the Company and a customer with respect to the software, to the extent it has specified one of the referral models on the order form pursuant to Point 11 of the GTC. However, the Contract Partner is not authorised to conclude contracts on behalf of and/or on account of the Company. The Contract Partner shall therefore only take the opportunity to facilitate the conclusion of a contract for the software between the Company and the customer, but not to conclude any contracts.
(2) The Contract Partner undertakes to actively market the software to its customers. To this end, it must make reference to the Company and the software on its own website and, amongst other things, place a link that leads directly to the section of the Company’s website where the app can be purchased.
(3) The Contract Partner also undertakes to increase the level of awareness of the Company and its services, to endeavour to secure new customers for the services, to advise these customers, and to take the opportunity to facilitate the conclusion of contracts between customers and the Company. The Contract Partner shall execute this obligation in consideration of any general instructions of the Company and with the due care of a prudent entrepreneur.
(1) There are two referral models for the facilitation services of the Contract Partner pursuant to Point 10, each of which is remunerated in a different way:
(i) The Contract Partner can order a certain number of voucher codes, for which a deposit of €1.00 per voucher code shall be paid. The Contract Partner sends one of these voucher codes to an interested customer, who can register on the Company’s website using the licence key contained in the voucher code and subsequently download the software. For each voucher code activated by a customer in this way, the Contract Partner shall receive a credit of €1.50. In the first calendar year after the contract commences, the Contract Partner shall receive a commission in the amount of 15% of the net sales value for each purchase made via this licence key, with both the licence fee to be paid by the customer for the use of the software as well as for the download of individual maps to be considered as net sales.
(ii) The Contract Partner can order a specific number of prepaid voucher cards for the prices indicated on the order form. The Contract Partner is authorised to resell these prepaid voucher cards for its own account and in its own name to customers for sales prices which the Contract Partner is free to set at its discretion. The Company shall separately give the Contract Partner non-binding, recommended sales prices, which are based on normal market conditions; the Company may adjust these prices at any time in compliance with a notification period of 30 days. In this case, the remuneration shall be included in the margin and the Contract Partner shall not be due any commission or other participation in the turnover.
(2) The commissions can be set off by the Company against the fee for the purchases of prepaid voucher cards or other fees to be paid by the Contract Partner for services rendered by the Company.
(1) The Company also offers analogue maps and map sections. When ordering analogue maps, the specific name of the map, the required quantity and the size must be specified on the order form. The prices for analogue maps are based, where available, on the prices indicated on the order form, failing which they are to be requested from the Company.
(2) The Contract Partner is only authorised to resell the analogue maps and map sections to customers. All others rights of disposal over the maps and map sections, however, remain with the Company. The Contract Partner is therefore in particular not authorised to duplicate, edit, publicly perform or make the maps or map sections available to the public, and specifically not to publish them in print or online media.
(3) The Contract Partner is free to set the sales prices at its discretion. The Company shall separately give the Contract Partner non-binding, recommended sales prices, which are based on normal market conditions; the Company may adjust these prices at any time in compliance with a notification period of 30 days.
(1) Once an order form has been accepted by the Company, the Contract Partner shall pay the entire costs shown on the form in full, unless specified otherwise below. All payments that become due under this contract shall be in euro exclusive of VAT, unless specified otherwise on the order form.
(2) In the event of late payment, the Company shall be entitled to charge statutory late interest on the unpaid outstanding amount from the due date. The Company is also authorised to charge the reminder and collection fees necessary for the expedient enforcement and collection of the claim in accordance with the applicable schedule of fees of the debt collection agency or the applicable lawyers’ fees. The assertion of further damages is not excluded.
(3) The Contract Partner is in principle not authorised to withhold or offset payments by virtue of counterclaims or claims under warranty, unless expressly agreed otherwise on a case-by-case basis.
(1) All information, documents, correspondence, disclosures and data that are provided or transferred between the contract parties and their authorised representatives of other persons (auditors, legal professionals, management consultants or financial advisers), whether in writing, verbally or by means of electronic data transfer, or are made accessible by other means (“confidential information”), shall be dealt with by both parties in the strictest of confidence and kept secret.
(2) The validity of this duty of confidentiality shall survive the termination of the contractual relationship indefinitely.
(1) The Contract Partner is prohibited from duplicating, modifying or using the maps in their entirety or individual elements thereof in a context other than that specified by the Company in these GTC and undertakes to ensure that this prohibition is also not violated when using the software in its business.
(2) For each breach of this condition or any other improper use of the maps or the software, a penalty in the amount of €30,000 (thirty thousand) will become due for payment to the Company without proof of any damages and regardless of the culpability of the Contract Party. This shall not affect the Company’s right to demand compensation of damages caused over and above the breach.
(1) The contractual relationship begins on the day on which the order is confirmed by the Company and is concluded for a fixed term of 2 years. Thereafter, the contractual relationship shall automatically be extended by 1 further year at the end of each term unless it is terminated by either of the parties in writing in compliance with a period of notice of 2 months before the end of the contract.
(2) Both contractual parties are authorised to terminate the contractual relationship prematurely with immediate effect for an important reason. The Company is authorised to terminate the contract for good cause, in particular in the event of conduct in breach of the contract on the part of the Contract Partner, if the Contract Partner behaves in way that is detrimental to the reputation of the Company or the software, or if the Contract Partner has a poor reputation.
(3) All materials provided by the Company must be returned to the Company without delay at the end of the contract. In the case of prepaid voucher cards and analogue maps that were purchased by the Contract Partner, the Company shall reimburse the purchase price in full upon their return. Any further use of the software, maps or other materials of the Company or copies thereof is prohibited after the end of the contract.
(1) The contract concluded with the Contract Partner shall not restrict the Company from exploiting the software without restriction or, in particular, from assigning licences to any parties it sees fit. In particular, the Contract Partner agrees that the Company will also enter into additional cooperation agreements of any kind and therefore also with providers of competing services and products. The Company will in no way be restricted in its business activities by the contractual relationship.
(1) The Company’s liability to the Contract Partner for damage or other detriments arising from or in connection with these GTC, in particular for deliveries and services in accordance with Part 1, Part 2 and Part 3 of the GTC, is precluded, regardless of the reason.
(2) The Company shall be liable to the Contract Partner for damages caused by gross negligence or wilful conduct. The Company is not liable to the Contract Partner for lost profit, compensation for indirect damage or consequential damages arising from or in connection with the contractual relationship.
(1) Changes and additions to these GTC must be made in writing; this also applies to any change of the written form requirement itself.
(2) The Contract Partner undertakes to notify the Company without delay of any intended change to the conditions of use of the software according to the order form (e.g. in the event of an increase in the number of terminal devices that are used for the Briefings). Use of the software in accordance with the changed conditions is permitted only with acceptance of the changes by the Company and payment by the Contract Partner of any licence fee applicable to this change. Until such time, the software shall be used only in accordance with the order form completed upon conclusion of the contract.
(3) The Company is entitled to correct obvious mistakes (typing and calculation errors) found in offers, quotations, delivery notes, invoices, etc. at any time.
(4) If individual provisions of these GTC are or become completely or partially invalid or unenforceable, or if these GTC contain unintentional omissions, this shall not affect the validity of the remaining provisions of these GTC. The unenforceable provision shall be replaced with an enforceable provision which the parties would have agreed in consideration of the purpose of these GTC if they had been aware of the unenforceable or missing provision at the time these GTC were concluded.
(5) These GTC, together with the order form, form the entire agreement between the parties and supersede all previous verbal or written agreements or arrangements between the parties regarding the object of this agreement. They may only be changed by means of a written document signed by both parties. The preceding also applies to any waiver of the written form requirement.
(6) This contractual relationship is subject to Austria law under the express exclusion of any conflict of laws rules.
(7) In the event of legal disputes arising from the present contractual relationship, in particular over the validity of these GTC, the contractual parties agree that sole responsibility shall rest with the competent court in the city of Salzburg without recourse to any other ordinary court of jurisdiction.