General TERMS AND CONDITIONS FOR THE provision of SEND2SCAN Services (“GTC”)
The present GTC form an agreement for the provision of services between Send2Scan, Hohenzollernring 87, 22763 Hamburg / Germany (“S2S”) and you as the customer (hereinafter the “Customer”), as defined in a Specific Order.
Certain capitalized terms, if not otherwise defined, shall have the meanings set forth below in this Section 1.
- “Eligible Product”. Each product which is inline with the limitations set forth in these GTC shall be deemed an Eligible Product.
- “S2S Deliverable” means the outcome of S2S services as defined in Section 3 hereof.
- “Specific Order” means an order for a defined service, including specifics such as the amount, price and delivery details, executed by the Customer.
- “Term” shall mean the period that these GTC remain in force and effect in accordance with Section 10.
- “Territory” shall mean the territory specified in the applicable Specific Order. If a Specific Order does not specify the territory then it shall be deemed to be worldwide.
Customer acknowledges and understands that in the absence of a Specific Order, these General Terms and Conditions do not impose any obligation upon either Party. In the event of a conflict between these GTC and any Specific Order, the conflicting terms of the Specific Order shall prevail as the special agreement.
3. Description of S2S Services
S2S offers the creation of high quality 360° product images (S2S Deliverable) for the inclusion in the Customer’s own e-commerce websites (online shops). Subject to the transit conditions, set forth hereinbelow, the Customer may send or otherwise transport each Eligible Product to be digitalized to the designated S2S address at the Customer’s sole and exclusive risk and cost. S2S will henceforth digitalize the Eligible Product by taking a series of high resolution images of the Eligible Product.
These images are then post processed for color calibration, metadata insertion and background adjustments. Finally the images are uploaded to a CDN (content delivery network) for integration with the Customer’s e-commerce website.
Upon completion of the aforementioned service, the Eligible Product will be sent or transported back to the Customer as set forth in the transit conditions below.
Subject to the Specific Order and payment of additional fees, S2S may additionally provide royalty free ‘print’ resolution images, which the Customer may use for its own business purposes, excluding any resale or other hand-over to a third party.
4. Transit provisions
Any transport (“transit”) of a tangible or intangible product between the Customer and S2S as well as between S2S and the Customer shall be at the Customer’s sole and exclusive option, risk, responsibility and cost.
S2S assumes no responsibility for any product in transit. The customer is solely responsible for any and all shipping, insurance Or Transport of an item and all related cost in both transit directions (S2s – Customer / Customer – S2S).
The Customer may decide to either send a product by courier or transport a product directly to the S2S service address. If sent by courier, the shipment to S2S must already contain a completed and fully paid-up waybill for transferring of the product back to the Customer after S2S’s services provision.
Each shipment must contain the product(s) to be digitalized as well as an inventory list of all products contained in such shipment. (Each shipment must contain an inventory list. One inventory list for more than one shipment will not be accepted). In the event no inventory list may be contained in a shipment or in the event of any discrepancy between the contents of a shipment and the contained inventory list, the Specific Order relating to the shipped product will be on hold until S2S will either be provided with a (correct) inventory list or the discrepancy between the shipment and the inventory list will be solved.
The products shipped to S2S will be properly insured while being under S2S’s direct control at the S2S premises. The risk of loss, damage or theft will pass to S2S upon actual receipt of the product by S2SS and will immediately turn back to the Customer upon S2S handing over the product to the courier or the Customer as the case may be.
5. Product Limitations / Eligible Products
A product must conform the limitations contained in this article in order to be classified as an Eligible Product for S2S services. An Eligible Product must be in or below the following fixed measures of width, length and height:
- L:35cm x W:30cm x H:30cm, or
- L:14″ x W:12″ x H:12″
The maximum weight of an item that can be scanned is 40kg.
Products not in conformity with these measures are not considered Eligible Products and will not be accepted by S2S.
Furthermore, S2S will not accept defamatory, racist, humiliating or improper products as well as living objects as Eligible Products, whereas it shall be in S2S’s sole and exclusive discretion to classify a product as “improper”.
Finally, products with equally-looking sides or globular products may not be accepted by S2S due to the fact that experience has shown that the result of a related digitalization will not meet S2S’s highest quality standards.
S2S will return these non-eligible products in accordance with the transit provisions contained in these GTC.
6. LICENSE and Intellectual Property rights
- License Grant. Subject to any contradicting license terms and restrictions set forth in a Specific Order, Customer will be furnished with a perpetual, limited, non-exclusive, non-transferable and non-sublicense-able license to display, show and use the S2S Deliverables (outlined in Section 3) as product images on its own or its’ subsidiaries’ e-commerce websites (online shops) for its’ own business purposes only. In this regard, “subsidiary” shall mean any related Group company who is provably either controlling, being controlled by or being under common control with the Customer.
Any resale, sublicense or transfer of the S2S Deliverable to any unrelated 3rd party is prohibited.
Customer shall not use the S2S Deliverables for any purposes beyond the scope of the licenses granted in the present GTC and the applicable Specific Order.
- Intellectual Property Rights. Customer acknowledges that S2S owns all right, title, and interest, including all patent, copyright, trademark, moral rights, and all other types of intellectual property (“Intellectual Property”) in and to the S2S Deliverable. S2S expressly reserves all rights not expressly granted to Customer in these GTC or a Specific Order. Furthermore, unless set forth to the contrary in any Specific Order hereto, S2S reserves the right to display, offer, license, resell or distribute the S2S Deliverable created under any Specific Order to any other S2S customer or offer the S2S Deliverable for licensing in an image catalogue.
- Compliance with Laws. Customer shall ensure that its use of the S2S Deliverable complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the Customer or its’ business are subject to. S2S shall have no responsibility for the Customer’s use of the S2S Deliverable nor shall S2S be responsible for any legal evaluation of the intended use of the S2S Deliverable by the Customer.
- Proprietary Notices / Right of Lien. S2S reserves the right to put water marks to any S2S Deliverable until such deliverable will completely be paid by the Customer.
Additionally, S2S reserves the right of lien on the Eligible Product until the S2S Deliverable will completely be paid by the Customer.
7. Acceptance of S2S Deliverables.
Starting at the date the Customer has been provided with a link to the S2S Deliverable, the Customer will have 3 calendar days to report any deficiency in the S2S Deliverable to S2S in writing (email, fax, postal mail). In the absence of a written deficiency report, the S2S Deliverable shall be deemed accepted “as is” by the Customer. The same shall apply at the moment, the S2S Deliverable will be used on the Customer’s or a related company’s website.
In the event the Customer will report a deficiency in the S2S Deliverable within the given timeframe, S2S will inspect the deliverable in relation to the corresponding order and will, at its’ sole and exclusive option, re-do the S2S Deliverable or resend the original S2S Deliverable to the Customer for re-evaluation.
8. FEES AND PAYMENTS
- Fees Payable. Customer agrees to pay the amounts specified in a Specific Order. If no payment terms are specified in the Specific Order, fees and other charges shall be due and payable by the Customer within fourteen (14) days of the date of S2S’s invoice.
- Transit Expenses. Customer shall bear any and all expenses incurred for the transport of products to and from S2S.
- Late Charges. S2S reserves the right to charge and the Customer agrees to pay, a late charge equal to the lesser of (a) 8 percent on top of the then-actual base rate of the ECB, per annum or (b) the maximum allowed by the applicable law, on any amount that is not paid on time and is not the subject of a good faith dispute.
- Taxes. All amounts payable under these GTC or a Specific Order shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (collectively “Taxes”). Customer shall be responsible for payment of all Taxes resulting from these GTC. In the event that such Taxes are imposed and Customer is required to deduct such amounts from the fees payable hereunder, the Parties agree that the original amount invoiced by S2S will be increased by the amount of such Taxes such that Customer pays S2S the amount of fees originally invoiced.
- Representations and Warranties. Each Party represents and warrants to the other that the execution and performance of the services under these GTC does not and shall not violate any other contract, obligation or instrument and that it has the legal power and authority to enter into these GTC and each applicable Specific Order. S2S warrants that the services will be performed in a workman-like manner and that the S2S Deliverable will be created and designed in accordance to industry standards.
In return, the Customer warrants that it has the authority and necessary rights to order the S2S services in relation to the product provided to S2S.
- No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THESE GTC (INCLUDING IN A SPECIFIC ORDER), S2S DELIVERABLES ARE PROVIDED “AS IS” AND S2S EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT OR QUALITY (UPON ACCEPTANCE), AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN.
10. LIMITATION OF LIABILITY
- LIMITATIONS. EITHER PARTY’S CUMULATIVE LIABILITY TOWARDS THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE GTC SHALL BE A MAXIMUM OF THE FEES PAID TO S2S BY THE CUSTOMER UNDER THESE GTC OR THE SPECIFIC ORDER AT ISSUE OR, IF HIGHER, THE MINIMUM LIABILITY GIVEN BY THE APPLICABLE LAW.
IN NO EVENT SHALL S2S BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF S2S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer shall indemnify, hold harmless, and, at S2S’s option, defend S2S from and against all costs, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer Indemnity Responsibilities or Customer’s breach of the GTC.
12. TERM AND TERMINATION
- Term. These GTC shall automatically become effective upon the Signature Date (the “Effective Date”) of the first Specific Order hereto and shall continue to be in force and effect for as long as S2S will provide services to the Customer under any Specific Order hereto or, if longer, as long as the Customer uses the S2S Deliverable. Notwithstanding the foregoing, the terms and conditions of these GTC, which by their nature survive the completion of the S2S services or a cessation of the use of the S2S Deliverable by the Customer shall remain in full force and effect in perpetuity.
- Termination of a Specific Order. Either Party may terminate any Specific Order upon written notice if the other Party breaches a material term of these GTC or the applicable Specific Order and thereafter (I.) in the case of a breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (II.) has failed to cure any other breach within thirty (30) days after receiving written notice thereof.
In addition to each Party’s rights under Section 12(q) and 12(r), each Party may terminate any particular Specific Order at any time, provided that the present GTC shall remain in full force and effect in accordance with their respective terms. In the event of a termination of a Specific Order prior to the delivery of the S2S Deliverable, S2S reserves the right to charge the Customer for any service or part thereof, already performed by S2S prior to the date of termination. Section 6(i) shall apply accordingly.
- Applicable Law. These GTC shall be governed by and construed in accordance with the laws of Germany, without giving effect to conflict of law rules. The Parties agree that any and all causes of action between the parties arising from or in relation to these GTC shall be brought exclusively in the courts of Hamburg / Germany. The prevailing party in any action under these GTC shall be entitled to recover reasonable attorneys’ fees and related costs.
- Force Majeure. S2S shall be excused from any delays in the performance of its obligations under these GTC if such a delay results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond S2S’s reasonable control. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
- Independent Contractors. Customer and S2S acknowledge and agree that the relationship arising from the GTC does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing under the GTC or Specific Order.
- Amendment. No amendment to these GTC or any Specific Order shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
- Waiver. No waiver under these GTC shall be binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
- Severability. If any provision, or portion thereof, of the GTC is held unenforceable or invalid by a court of competent jurisdiction over the Parties, the enforceability of the remaining provisions ( or parts thereof) shall not be affected and the unenforceable or invalid provision or portion shall be replaced by a legal provision, reflecting the Parties’ original intent as good as legally possible.
- Headings. The headings in these GTC are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation hereof.
- Publicity. Either Party shall be entitled to include the other Party’s name and logo in any related presentation, marketing materials, customer lists or online shop.
- Entire Agreement. The present GTC (including all Specific Orders) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof.