Laubwerk GmbH, August-Bebel-Strasse 27, 14482 Potsdam, (hereinafter referred to as “Vendor”) is a software development company in the field of digital botany and software development to computer graphics. Under www.silva3d.com, Vendor offers the opportunity to download digital products either for free or against remuneration. In addition, support and maintenance services can be offered.
1.1 These Terms and Conditions apply to all contracts concluded between you (hereinafter referred to as “Customer”) and the Vendor with regards to the products and/or services offered by the Vendor through the online store at www.silva3d.com. Terms and Conditions of the Customer will only be part of the Agreement if Vendor expressly gives its prior written consent to their application.
1.2 “Software” means the Silva3D plants, objects and textures, all software files and other computer information, Plant Models, images, graphics, user interfaces, photographs, text, trademarks, logos, and artwork bundled with the Silva3D models, any related written documentation, and any modified versions and copies of the Software, and upgrades, updates and additions to the Software. “Plant Model” means the files, data structure, visual and mathematical representation of a three-dimensional botanic object and the related images, loaded, interpreted, and rendered by the Software. Plant Models come with or can be accessed with the Software. Both the Software and the Plant Models are hereinafter referred to as the “Products”. “Licensed Productions” mean offline rendered animation video, as well as any still images, screen-shots, but which shall not be an interactive or a real-time production such as a video game, training application or interactive simulation.
1.3 The product that is subject matter of the Agreement is specified in the respective product description in the online shop of Vendor. In general, the source code of the Software is not provided under this Agreement.
1.4 As documentation the Vendor provides installation instructions in digital form and an online help platform that allows explanations of the functions to be obtained during the operation of the Software.
1.5 Installation itself does not form part of the contract. The Vendor refers the Customer to the installation notes in the documentation. This applies in particular for the hardware and software environment in which the Products are used.
1.6 Only businesses in the sense of Sec. 13 of the German Civil Code, i.e. a natural or legal entity or a judicable partnership that is acting in the execution of its commercial or independent business activity, can be Customer in the meaning of these Terms and Conditions.
(2) Conclusion of Contract
2.1 In order to purchase a product in Vendor’s online store, a registration of Customer is required.
2.2 Registration is completed after the Customer entered the information requested in the registration form and clicked on the “Purchase“-Button.
2.3 Any and all information provided during the registration process need to be complete and correct. The Customer is obligated to keep the information provided up to date and to inform Vendor immediately of any changes as long as the Customer is registered on the online store.
2.4 The Customer is responsible for keeping his account information (user name, password and any other information Vendor may provide in connection with the Customer’s account) confidential and safe from any other third party’s access.
2.5 The product and service descriptions in the online store of the Vendor do not represent a binding offer of the Vendor but serve only for the purpose of presenting and describing the Products.
2.6 The Customer can submit the offer via the online order form integrated in the online store of the Vendor. By clicking the button “Purchase” on the final page of the order process after the Customer has selected the Products and entered his personal data, the Customer submits a binding order for the Products contained in the shopping cart.
2.7 The Vendor accepts the Customer’s offer by sending a confirmation e-mail to the Customer which contains the acceptance of the Customer’s offer.
2.8 The Products are provided via digital download from the Vendor’s website.
2.9 Customer is responsible for a fully functional hardware and software environment that is also sufficiently dimensioned for download and use of the Product.
(3) Grant of Rights
3.1 Subject to the condition of Customer’s full payment according to Sec. 4 of this Agreement and any other requirements that might be stated in the product specification (of personal or business nature), Vendor grants Customer for the period of time stated in the product specification a non-exclusive, non-transferable, non-sublicensable worldwide right to use the Products to generate, copy, use, and modify Plant Models and the related images only for the internal business purposes to create offline rendered animation videos as well as still images.
3.2 Purchased content is licensed to the customer (or his company) and may be installed on several computers, as long as only the customer (or his company) makes use of the purchased content. Up to ten employees of a company may use the purchased content.
If your company wants to use products of Silva3D for more then ten employees, please contact Silva3D for details. The Products may not be used by third parties customers without valid license of products.
3.3 Customer may copy the Plant Models to any render node in Customer’s computer cluster and may provide the Plant Models to third party computer clusters (render farms) built to render Customer’s computer-generated imagery (CGI).
3.4 Customer may not:
a) publish, copy, separate, distribute, resale, or transfer the Products or Plant Models created with the Products including any modifications, any elements of it or any rendering on a stand-alone basis (i.e., if not integrated into a larger scene, e.g. no “billboards”) to a third party.
b) create an interactive or a real-time production such as a video game, training application or interactive simulation.
c) use the plants, models or textures in an interactive or a real-time production or web service.
d) remove any copyright, trademark or other proprietary notices appearing on the Products or on any copy or adaptation thereof.
3.5 The Vendor reserves the exclusive right to modify the Software or any of its elements, to correct, adapt or make any update or upgrade of it.
4.1 The amount to be paid by the Customer is displayed on the final page of the order process. The displayed prices are final prices and include value added taxes (where applicable).
4.2 The payment methods available are stated in the respective product description.
4.3 If prepayment is agreed, payment is due immediately after the conclusion of the contract.
5.1 The Customer’s rights under this Agreement will automatically terminate if Customer fails to comply with any of the terms and conditions hereof. In such event, Customer must destroy all copies of the Products. Upon request of the Vendor, the Customer must provide evidence of deletion.
6.1 Vendor warrants that the Products will perform substantially in accordance with the specification when used on the recommended operating systems and hardware configuration.
6.2 Non-substantial variation of performance from the accompanying documentation does not establish a warranty right.
6.3 Vendor does not give any warranties for the following:
a) trials, evaluation, pre-release (beta version) and not for resale (NFR) copies of the Products;
b) Vendor and third-party web sites or online services;
c) any Products made available for free by Vendor via web download;
d) Warranties of merchantability and fitness for a particular purpose, regarding the Products or their use and operation alone or in combination with any product.
6.4 If the Software does not perform substantially in accordance with the accompanying documentation, the entire liability of Vendor and its affiliates and assigns and Customer’s exclusive remedy will be limited to either, at Vendor’s discretion, replacement of the Products or refund of the license fee you paid for the Products.
6.5 The statute of limitation for defects in software amounts to one year as of transfer of risk.
6.6 Rights and claims due to defects are fundamentally excluded for used software.
7.1 Vendor shall only be fully liable for intent and gross negligence as well as damages caused by injury to life, body or health.
7.2 In an event of slight negligence, Vendor shall be liable only for breaches of a material contractual obligation (cardinal duty). A „cardinal duty“ in the sense of this provision is an obligation whose fulfillment makes the processing of this Agreement possible in the first place and on the fulfillment of which Customer may therefore generally rely.
7.3 In any of the above-mentioned cases, Vendor shall not be liable for any lack of commercial success, lost profits and indirect damages.
7.4 Liability in accordance with the above clauses shall be limited to the typical, foreseeable damages.
7.5 Except where otherwise stated in this Agreement, Vendor shall not be liable for any loss or damage or any costs, expenses or other claims including without limitation loss of profit, business, revenue, goodwill or anticipated savings, loss of any data or information and/or special or indirect loss or consequential loss or otherwise which arise out of or in connection with this Agreement.
(8) Applicable Law, Court of Jurisdiction
8.1 All legal relationships between the parties shall be construed in accordance with the laws of Germany, under exclusion of all material and procedural legal norms of other jurisdictions.
8.2 The exclusive place of jurisdiction for all disputes arising from this Agreement shall be the place of business of the Vendor. The Vendor is however entitled to invoke the courts at the place of business of the Customer.
End of the Terms of Sale
Last updated: December 1, 2013