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General terms and conditions

For Software Licensing and Services of Schaeffler Digital Solutions GmbH

I. Scope and Subject of the Agreement

1. These General Terms and Conditions (hereinafter referred to as "T&C") shall apply for the timely limited provision of our data acquisition and evaluation software, with or without customer-specific program add-ons (hereinafter referred to as "The Software"), and for the provision of maintenance and support services (hereinafter referred to as "The Services").

2. These General Terms and Conditions shall only apply to customers who are entrepreneurs, legal persons under public law or special funds under public law. The customer must be entrepreneur within the meaning of the VAT legislation.

3. Our T&C shall apply exclusively. Any contrary, deviating or supplementary terms and conditions of the customer shall not become part of any contract or agreement, also not in cases where, in awareness of the general terms and conditions of the customer, we accept purchase orders, perform services or refer to letters from the customer which incorporate said general terms and conditions of the customer without reservation. We only recognize general terms and conditions if we expressly consent to their validity.

II. Conclusion of Contracts; Formal Requirements

1. Our offers are free and not binding. All statements regarding availability, prices, specifications, properties and/or features of the Software and the Services on our website or in our marketing information are merely for orientation and not binding. They do not constitute an offer.

2. The prices specified in our quotations shall only apply if the details, data or other information underlying the quotation and provided by and/or agreed with the customer are complete, correct and applicable and remain unchanged.

3. Purchase orders placed by the customer shall be deemed legally binding offers until a contract is concluded. An order receipt confirmation alone does not yet constitute an acceptance of an offer by us. An order shall only be accepted by us if confirmed in writing (order confirmation), by delivery of the Software and/or provision of our Services. Any declarations and notices of legal relevance issued by the customer towards us after conclusion of the contract or agreement (e.g., setting of deadlines, payment reminders, notices of defects) are only effective if performed in writing. The customer agrees to check our order confirmation for correctness immediately. He also agrees to assert claims in respect of any deviations of the order confirmation from the purchase order towards us in writing without delay, but not later than three (3) working days (Monday to Friday) after receipt. Otherwise, the contract shall be concluded with the contents of the order confirmation, including the product specifications to which reference is made in our order confirmation.

4. To satisfy the requirement of the written form within the meaning of these General Terms and Conditions, it shall also be sufficient to transmit an unsigned electronic document, an unsigned e-mail or to use either of the e-sign procedures used by us.

5. The agreement on the provision of the Software and/or the performance of Services concluded by way of purchase order and order confirmation, as well as these General Terms and Conditions representing a part of the agreement reflect all agreements and covenants made between us and the customer. Any agreements or covenants made orally prior to conclusion of the agreement are legally not binding and shall be completely replaced by the agreement unless otherwise expressly agreed in writing by the Parties hereto.

III. Handing Over and Installing the Software

1. The Software is provided to the customer as a (i) program copy for use on-premises, (ii) as download, (iii) preinstalled when appropriate hardware (IPC) is bought at the same time or (iv) as software as a service ("SaaS").

The organizational and technical installation and configuration of the hardware and/or Software and its integration into the operating/system environment of the customer and/or third parties to which the customer sells machine systems (hereinafter referred to as the "End Customer"), notably the establishment of connectivity and/or interoperability of the Software or hardware with the existing IT infrastructure and/or the sensors in the machines is not included in our scope of services and shall be sole responsibility of the customer (installation and configuration). Unless otherwise agreed with us, it is the customer's sole responsibility to ensure that other hardware and software environment required for operation and use of the Software, including, but not limited to any required interfaces, is available and set up ready for operation, and he also ensures that in particular, bug fixes, updates, etc. are implemented by him in the other software within a reasonable time.

Before our Software can be used, it must be technically activated by us; our Software is always assigned to a specific hardware (e.g., industrial PC, virtual machine).

2. The customer will receive the Software in machine code form. He shall have no claim for disclosure of the source code.

IV. Copyrights and Rights to Use the Software

1. The Software, including new program versions and releases (updates and upgrades), is protected by copyright. In the mutual relationship between the Parties hereto, we exclusively reserve all rights herein and in all the other documents and materials provided to us within the framework of conducting the contractual negotiations and performance of the contract or agreement (e.g., documentation). This shall also apply for working results obtained from the Services and from special programming performed by us by order of the customer.

2. We grant the customer the royalty-bearing, non-exclusive, non-sublicensable, non-transferrable right restricted in time to the period specified in our quotation to use the Software according to its intended purpose and subject to the provisions specified in this Section IV., unless otherwise agreed individually. The license period shall commence as of the time when the Software is (i) provided for download, (ii) supplied as a program copy or (iii) as of the time agreed for use via our server or third-party servers.

The right to use the Software in accordance with its intended purpose may only be exercised by sufficiently qualified employees of the customer or End Customer who are trained accordingly in handling of the Software and is allowed exclusively for the purposes of the customer's own business or for the processing of internal business operations or transactions of End Customers in accordance with Section IV.5. below. An appropriate basic instruction for separate remuneration can be ordered with us by the customer. Training in the use of the Software which goes beyond the aforementioned basic instruction can also be ordered by the customer and will also be charged separately.

3. If the Software is supplied as a program copy for on-premise deployment, the customer is entitled to use the program copy within the framework of one license exclusively on one accordingly authenticated IPC or on one machine of the customer which is authorized by us within the framework of use according to the intended purpose (hereinafter commonly referred to as "Authorized Hardware"). The removal of the Software from the Authorized Hardware and its upload to a different hardware ("Hardware Relocation") requires our prior express consent in writing and can only be performed for payment of a processing fee. After such a Hardware Relocation, all licenses for the formerly authorized hardware shall become invalid and shall remain in force for the new authorized hardware after the completed reactivation.

The right to use the Software according to the intended purpose shall be limited to the installation and configuration of the Software within the specified configuration options and its operation on the Authorized Hardware. The customer may copy, load, display, run and save the Software in the object code insofar as necessary for use according to the intended purpose. The customer may create a backup copy of the Software in accordance with the relevant legal regulations. The customer agrees to mark the copy as such.

The customer is not entitled to make modifications to the Software unless it is necessary for its use according to the intended purpose.

  • a) Such a necessity for modification is provided in particular, if (i) a defect must be rectified to be able to use the Software according to its intended purpose and (ii) we fall behind in schedule with rectification of the defect, seriously and finally refused the rectification of the defect towards the customer or if we are not in a position to rectify the defect immediately for other reasons that are beyond our range of responsibility.
  • b) Notwithstanding that, modifications are only permissible if they are (i) absolutely necessary for rectification of compatibility issues in the interaction of the Software with other programs required by the customer and (ii) we are not ready or in a position to rectify them for a reasonable customary remuneration.
  • c) The Software may only be decompiled if the prerequisites and conditions specified in Section 69e (1) of the German Copyright Act ("UrhG") are provided or transferred accordingly.
  • d) The customer may not entrust the aforementioned measures in accordance with this Section IV.3. to third parties who are competitors of us unless he can prove that the risk of disclosure of important corporate or trade secrets of us, especially pertaining to the function and design of the Software product, is excluded.
  • e) Unless otherwise permitted in accordance with mandatory legal regulations and pursuant to the aforementioned provisions, the customer is also not allowed to reverse-engineer or decompile the Software into other code forms. The same shall also apply to the compilation or disassembly of the Software or to other attempts to reconstruct the source code of the Software.

4. The following shall apply if we make available the Software to the customer within the framework of a license for use of the Software according to its intended purpose as software as a service (SaaS): The license for use of the Software according to its intended purpose must only be exercised by separately authorized single users of the customer or by the End Customers. The use of the Software is subject to an access and authorization concept that is to be notified to the customer within reasonable time (process of registration in our systems with user name and password or the like). The Software is to be used exclusively online. It is not allowed to download the Software even if this could be technically possible for the customer; such a case shall be subject to the prohibitions of use applicable for the Software pursuant to this Section IV.

5. The right to use the Software according to its intended purpose which is granted to the customer also includes the right to grant a right to use the Software to End Customers in accordance with the provisions of this Section IV ("Sublicense"). When granting sublicenses, the customer shall not be allowed to grant any further rights of utilization than those as agreed in this Section IV. and acquired by him in the individual case wherein our right to grant further sublicenses to the End Customer shall be excluded, and the customer is also not entitled to use third parties as sub-distributors.

The customer guarantees that the license terms of these T&C are observed by the End Customer and will consequently take all required measures. Within the framework of such measures, the customer agrees in particular, to conclude a reasonable license agreement and to ensure that all appropriate technical requirements and conditions for use of the Software are also provided in the environment of the end customer.

The customer agrees to compensate us for any damage and hold harmless and indemnify us from and against any and all costs and expenses (including, but not limited to the prosecution costs) arising from violation of our rights in the Software by the End Customer or by a breach of legal regulations in distributing the Software by the customer to End Customers.

6. Unless expressly permitted in these T&C or otherwise dictated by mandatory law, the customer is in particular not allowed to use the Software and/or the entirety or elements of the corresponding rights of use or other rights granted to him in accordance with these T&C (including those contained in individual contracts concluded on their basis) to be used by third parties, passed on or made accessible to third parties or rented, lent, sold, sublicensed or otherwise transferred without our prior written consent.

7. Unless otherwise expressly agreed with us, the customer is not allowed to use the Software in order to directly or indirectly compete with us on the market with a business model similar to ours. The customer is not entitled to grant sublicenses to group-internal parent companies, affiliates or subsidiaries (intercompany transfer/transaction). In cases of doubt, the customer is to obtain a prior written approval from us.

8. The copyright notices, brands, trademarks, serial numbers and other features serving the program/software identification must not be removed, destroyed, modified or obliterated. The customer is not entitled to remove or bypass any mechanisms of the Software or parts thereof which protect the Software from unauthorized use.

9. We are entitled to fully or partially revoke the rights granted in accordance with this Section if the customer fails to pay the due license fees either as a whole or in part despite reminder and after expiry of a reasonable period for payment. We expressly reserve the right to assert further claims, notably the claim for damage compensation.

10. Using the Software for purposes other than those as in accordance with its intended purpose and/or in breach of other provisions of this Section IV. constitutes a violation of our rights in the intellectual property and represents a material breach of these T&C. In all other respects, Section XVII.2. shall apply. Our further rights, for whatever legal reason, shall remain unaffected.

11. If we provide a new program version of the Software (including, but not limited to software patches, updates, upgrades, new releases/versions) to the customer within the framework of the warranty or as support services, for example, such a new program version shall similarly be subject to the relevant provisions of these General Terms and Conditions applicable for the Software.

The customer may hand over the new program versions of the Software provided to him to the End Customer only after the new program versions have successfully passed a stress test under real conditions in the environment of the customer. Unless otherwise expressly agreed in writing, the costs for such a test shall be borne by the customer.

12. If we create program add-ons for the Software at the customer's special request (e.g. further functions for use), the customer will be granted a right to use these add-ons pursuant to the right obtained for the use of the Software.

Any and all intellectual property rights in such program add-ons shall be created exclusively to our benefit. As a rights-holder, we are entitled to exploit and use such program add-ons without limitations.

If such a creation of rights to our benefit is not possible for legal reasons, the customer herewith agrees to grant us an irrevocable, exclusive and royalty-free right to use and exploit any and all program add-ons created for the customer without limitations in respect of the time, nature or geographical extent of such use or exploitation. We are entitled without limitations to integrate the program add-ons into the existing software as an inherent program part. The aforementioned granting of rights also includes the right for processing, modification, copying, distribution and exploitation of any kind and the right to transfer rights for use and to grant sublicenses unlimited in time and content. If the customer is a joint author, he herewith waives his share of the exploitation rights in accordance with Section 8 (4) of the German Copyright Law ("UrhG"). Insofar as employees or agents of the customer are joint authors, the customer assures to have acquired any and all rights of use and exploitation from them and to have received a declaration of waiver in accordance with Section 8 (4) of the Copyright Law. The aforementioned granting of rights refers to the object code and source code and all intermediate results and documentation created in connection with the program add-ons, in particular development documentation.

V. Maintenance and Support Services

1. Maintenance and support services for the customer's hardware and software environment (hereinafter referred to as "System Environment") are furnished for the Software provided by us after separate commissioning and order confirmation.

2. The customer is obliged to specify the System Environment in detail and completely, in particular, the deployed hardware and the operating system, before we submit our quotation.

We furnish the Services for the Software exclusively in the System Environment that was specified, described and used as a basis for our quotations. We shall no longer be obliged to furnish the Services if the customer (a) modifies the System Environment (e.g., changes, replaces or upgrades the hardware, modifies and changes the operating system installed or the deployed web browser), thus limiting or disabling the operational functionality of the Software, or (b) if, due to a software update, the System Environment is technically no longer in a condition to ensure the operational functionality of the Software without limitations as initially advised to us (server capacities, etc.). In such a case, the payment obligations of the customer shall also rest.

In such a case, we agree to restore the operational functionality of the Software in the modified System Environment on the basis of a separate agreement and for separate remuneration by way of suitable and reasonable measures of adaptation. In this case, the service agreement concluded between us and the customer shall continue to be valid without changes after restoring the operational functionality. Should we and the customer do not come to an agreement about the restoration of the Software, we and the customer are entitled to terminate the service agreement without prior notice.

We will do not furnish Services if the Software is used under field conditions other than those as specified by us or if the Software was modified by programming activities performed by the customer or by third parties.

3. We are also entitled to entrust subcontractors with the provision of the Services hereto after appropriate information from the customer.

4. We agree to furnish the Services hereto initially for the Software in the software version/release as it is at the commencement of the agreement. Insofar as we supply updates and/or upgrades for the Software, the customer is obliged to install them. The term 'update' within the meaning of this agreement shall refer to updates of the Software within one and the same version number (e.g., within the version designations v1.1., v1.2, etc.) which serve bug fixes and/or provide minor enhancements or improvements. The term 'upgrade' shall refer to updates of the Software across a complete main version number ("Major Release") (version designations v1.0, v2.0, etc.).

5. The contents of the Services result from the Performance Specification "Schaeffler Digital Solutions Maintenance and Support Services" as part of our Quotation. Adaptations of the Performance Specification shall only be binding for us if they are specified in our order confirmation.

6. The Services are performed via remote maintenance ("Remote Access") through access to the customer's system. The access is performed through a connection that is protected against unauthorized access by third parties. The technical details on how the Remote Access is to be performed will be notified to the customer together with our Quotation. The customer agrees to create the technical requirements for the Remote Access at his own expense and to maintain them permanently over the whole term of the service agreement.

Services furnished directly on the site of the customer can be provided in individual cases on the basis of separate commissioning and for separate remuneration and with reimbursement of the costs.

7. Services can only be requested by the customer's employees who have been specified by the customer towards us in writing (via e-mail) immediately after the order confirmation, with specification of the appropriate contact details (telephone numbers, e-mail addresses).

8. Unless otherwise agreed separately, the customer shall have no claim to the following services within the framework of a service agreement: (a) individual modifications and extensions of the Software, (b) Services for third-party software, (c) installation and implementation of the Software on the customer's hardware or System Environment, (d) instructions and trainings of employees of the customer, and (e) rectification of errors arising in or occurring from the customer's sphere of risks, including, but not limited to errors caused by improper or unqualified operation or by modifying the Software, by contamination of Software components with computer viruses or other malicious software, by using unsuitable or faulty data storage devices or hardware, etc.

VI. Reservation of Rights; Secrecy / Confidentiality

1. We reserve any and all copyrights and intellectual property rights in all documents, materials and other items handed over by us to the customer (e.g., offers and quotations, catalogs, price lists, cost estimates, plans, drawings, illustrations, calculations, product descriptions and specifications, samples, models and other documents, materials, data and/or information in physical or electronic form. Except where dictated by mandatory law or specified otherwise in these T&C or in the contract, the customer must neither disclose nor allow access to the aforementioned items or their contents to third parties, nor exploit, utilize or modify them or their contents without our prior consent. The customer agrees to use such items and materials exclusively for the contractually agreed purposes and must return them to us in their entirety at our request and also destroy (or delete) any existing copies (including, but not limited to electronic copies) insofar as they are no longer required by him in his ordinary course of business and in accordance with legal archiving requirements.

2. The customer and we agree to treat the confidential information received from the other Party in the course of performance of the agreement confidentially and to use the same care as with reference to our own trade and business secrets of similar importance, but at least appropriate technical and organizational measures to a reasonable extent to maintain the confidentiality. Confidential information shall include all operational and trade secrets of the Parties hereto, as well as any and all information and data in physical or oral form, including, but not limited to development plans, product development and/or product design plans, information about hardware, databases, software that is currently in use or is going to be manufactured, source codes and algorithms, as well as documents or knowledge exchanged by the Parties hereto in connection with this agreement.

If unauthorized access, unauthorized use, illegal copies, unauthorized disclosure or other illegal activities with reference to the confidential information of the party disclosing the confidential information are noticed within the range of responsibility of the party receiving the confidential information or any of the aforementioned activities become known to the disclosing party, the receiving party agrees to inform the disclosing party via e-mail immediately and will immediately take all reasonable measures and raise the appropriate funds to cure the violation.

The obligation to maintain confidentiality shall not apply to confidential information that:

  • has already been disclosed by the disclosing party in writing towards the receiving party;
  • has already been known to the receiving party prior to its disclosure without violation of the obligations to maintain confidentiality;
  • is or becomes part of the public domain through no act or omission of the receiving party, provided that the confidential information is already deemed part of the public domain, as merely parts thereof are or become part of the public domain;
  • is lawfully divulged, disclosed or made accessible to the receiving party by a third party without obligations to maintain secrecy or confidentiality unless the third party does not violate his own obligations to maintain secrecy or confidentiality according to the knowledge of the receiving party;
  • has been independently developed by the receiving party without use of and reference to the confidential information or pursuant to one of the aforementioned exceptions; or
  • is required to be disclosed in accordance with a binding regulatory or judicial order or mandatory legal regulations provided that the disclosing party was informed of the disclosure in writing.

The party invoking such an exception must prove the existence of the appropriate prerequisites.

The aforementioned obligations in accordance with this Section IV.2 shall survive for a period of 10 (ten) years after completion of the last purchase order concluded between the Parties hereto in accordance with these General Terms and Conditions.

VII. Prices, Invoicing, Reimbursement of Costs

1. The Software and/or Services are provided to the customer at the license and Service fees and at the rates specified in our order confirmation. Details about our rates and prices are part of our Quotation.

Insofar as the Services are charged on the basis of the actually incurred costs, the appropriate activities will be specified with the required times in an activity report at the end of a project or upon completion of a work package and handed over to the customer.

2. All prices are to be understood as net prices plus legally stipulated value-added tax.

The prices are to be paid without deduction, plus statutionarily regulated value-added tax, with exception of the withholding tax that in accordance with the relevant law is to be withhold by the customer from the remuneration to be paid (income tax). The customer and we will support each other in ensuring that the amount of the withholding tax to be withhold by law or by virtue of agreements for avoidance of double taxation is reduced to a minimum (or, ideally, to a complete exemption from the withholding tax). If required by the governing law, the customer will withhold the appropriate taxes and pay to the relevant tax authorities in accordance with the relevant regulations. In this case, the customer agrees to submit the original of the certification confirming the tax withholding (tax certification) to us and support us in reimbursement or setting-off of the withhold taxes in accordance with the governing law.

3. The license and Service fees to be paid by the customer shall be due net without deduction in accordance with the terms of payment specified on the invoice. We are entitled at any time and at our own discretion to request advance payment.

4. The following additional stipulations shall apply for the Services:

In the case of Services subject to an agreed minimum period, we are entitled to verify the agreed net prices once (1x) per agreement year, beginning from the second year of the agreement (example: With commencement date on April 1st of a year, the first agreement year commences on April 1st of that year and ends on March 31 of the following year), and to increase them without specifying grounds by max. 10% with at least 4 weeks prior notice period (via e-mail, letter). The information about the amount of the increase and the resulting new prices due by the customer will be provided via e-mail or letter.

5. Journey and business expenses and, where applicable, overnight expenses incurring in conjunction with or arising from Services that we do not perform at our place of business in Chemnitz are charged separately. Journeys by car are charged in accordance with the quotation, journeys in public means of transport (bus, railway, airplane) and overnight expenses (mid-range price category at the site concerned) are charged on the basis of the actually incurred costs; the business expenses/daily allowance are charged in accordance with the valid maximum tax-free rates. In addition, in the case of journeys with public means of transport and with the overnight expenses, a fixed sum of 15% is added as internal expenses to the appropriate net value of the expenses incurring by the appropriate means of transport and/or by overnight stay.

We are entitled to charge the times of journey of our employees performing the Services at the full hourly rates. The basis for the charging is our place of business in Chemnitz.

6. The customer may only offset outstanding claims against our claims if they are uncontested or recognized by declaratory judgement. He is only entitled to withhold payments insofar as any counterclaims from the appropriate contractual relationship are asserted.

7. In case of delayed payment or if, after a contract or agreement on provision of the Software or Services is entered into, it becomes apparent that our entitlement to payment of the appropriate license or Service fees is jeopardized by the customer's inability to perform, we are entitled to (i) refuse to render the appropriate deliveries and/or services or to request a security from third parties (e.g., bank guarantee from a major German bank) for resumption of the deliveries and/or services, and to revoke the appropriate delivery contract in accordance with the relevant legal regulations (Section 321 of the German Civil Code (BGB)), or (ii) revoke the contract with immediate effect and/or terminate the contract in writing for cause. In the aforementioned cases, we are similarly entitled to change the agreed mode of payment unilaterally to advance payment by way of an appropriate written notification or to demand a security from third parties (e.g., bank guarantee from a major German bank) for the appropriate delivery and/or service. The legal regulations regarding dispensability of setting a period for performance shall remain unaffected.

VIII. Responsibilities of the Customer

1. The customer agrees to support us in furnishing the Services in accordance with the contract/agreement and in accordance with the provisions below by way of appropriate services of collaboration and provision of equipment.

2. Insofar as the obligations of collaboration and provision of equipment do not already result from these T&C, from the appropriate offer, quotation, purchase order and/or order confirmation, we will remind the customer within a reasonable period of the type, extent, times and all the other details of the obligations of collaboration and provision of services to be performed by him and request him to do so. The customer agrees to perform his obligations of collaboration and provision of equipment without delay and free of charge. This shall apply in particular, to any and all information that we require for invoicing of our Services.

The customer is solely responsible for the data acquisition and transmission by way of the Authorized Hardware and agrees to ensure in particular, that the data transmission is performed in the specified data formats and via the specified interfaces. Unless the data hosting is provided by us in accordance with an appropriate contract or agreement, the customer shall also be responsible for saving and backup of the collected data.

3. After an appropriate order, we can furnish fee-based support services in terms of compatibility of the Software. In case of incompatibilities of the Software with the existing software and/or hardware environment, the customer agrees to make acceptable settings / changes in the configuration on all devices involved to rectify the incompatibility.

The customer also agrees to make acceptable settings and/or changes in the configuration in accordance with our instructions to restore the operational functionality of the Software in order to rectify faults and/or errors in his system, notably on the hardware involved, including, but not limited to the operating software.

In all cases, the customer agrees to support us in the troubleshooting. In particular, the customer agrees to grant us sufficient remote access for this purpose to the software installed on the customer's premises. Furthermore, the customer agrees to grant our employees on-site access to the Software during the customer's ordinary office times as necessary. On-site visits shall only take place after we have given our consent and with observance of reasonable safety regulations of the customer; the additional expenditure resulting for us (expenditure of time for personnel, call-out fees, expenses of the journey, including, but not limited to overnight expenses) are to be remunerated by the customer separately after an appropriate information from us.

The customer agrees to allow us to use his rooms, his hardware, software, and telecommunication systems, insofar as necessary and required to render the Services.

4. The customer agrees to take reasonable precautions for the case that the Software does not operate properly, whether in part or as a whole. He agrees to carefully test the Software for its fitness for the purpose intended by him before using it in operation. Furthermore, he agrees to take measures representing the latest state of the art to protect his data and IT infrastructure, including the Software and IPCs which were provided to him, against loss, destruction and unauthorized access by third parties and to ensure the compatibility. The customer agrees to always develop his System Environment technically at his own expense in such a way that the Software can also be operated and applied in its full functionality after it has been updated.

5. Insofar as we grant the customer access to our systems or to third-party systems, the customer agrees to take the appropriate measures required for protection and security of the access data and passwords. In particular, the customer agrees to ensure that the access is only granted to sufficiently qualified, reliable and correspondingly authorized employees. The customer will also take appropriate safety measures against access by unauthorized persons and for protection against misuse.

6. Insofar as we are not hindered from providing our contractually agreed Services by the fact that the customer did not provide his contractually agreed services of collaboration and provision of equipment, we will not be responsible for the resulting defects or deficiencies in the performance. The agreed deadlines will be postponed reasonably. The duration of the extension is to be calculated according to the period of failure to provide the aforementioned services of collaboration and provision of equipment.

7. The customer must no longer use the software beyond the license period. The customer shall delete software installed on his own hardware (including any backup copies) in the current version/release without delay. The customer is expressly not allowed to make and/or retain copies. If the customer has left the software to third parties for use, he must also obligate the appropriate third party by way of contractual obligations to do so. Upon our request, the customer agrees to confirm in writing that he has met the aforementioned obligations and responsibilities to their full extent.

8. In particular, the following obligations to cooperate shall apply in connection with the Services:

The customer agrees to take all reasonable measures required to determine, localize and document faults, errors and bugs in the Software. The customer will furnish the following items to the contractor: System logs, memory dumps, relevant input and output data, intermediate results and test results, and other relevant documents suitable to illustrate the fault, error or bug concerned.

The customer will specify a qualified employee to act as a person responsible for the system and to be available for any and all questions, and for explanation purposes in particular, in conjunction with occurring faults. The customer ensures in particular, that the person responsible for the system or his representative can be reached in case of faults during the service hours and, if emergency service was agreed separately, also outside these times. The customer also ensures that a direct exchange between us and the employee of the customer at which the fault occurred will also be possible within the framework of the fault analysis.

IX. Delivery Time and Times for Provision of the Services; Late Delivery; Force Majeure

1. Delivery times or deadlines not expressly agreed as binding are exclusively non-binding specifications. The commencement of an agreed delivery time shall be regarded as observed as of the time when the Software is provided to the customer or when the Software is ready for operation after commissioning by Schaeffler on the customer's premises.

2. A claim for use of the Software within the framework of an SaaS model shall only be provided within the framework of the current level of technology. The software will be available min. 97% on average per month (except for maintenance work and improvements).

3. Unless expressly excluded, we are entitled to perform partial deliveries and partial services.

4. Cases of force majeure and similar unforeseeable events (e.g. strike, governmental actions or regulations, external events outside the company which lie beyond our control) entitle us to extend the delivery times and times of provision of the Services to a reasonable extent. In such cases, the customer shall have no claim to request damage compensation from us.

5. The time regarded as the time of occurrence of late delivery attributable to us shall be determined in accordance with the relevant legal regulations. In any case, however, a written reminder from the customer to our management is required. If damage arises for the customer due to late delivery attributable to us, he may request compensation for delayed completion. It shall amount to 0.5% of the net price per week of delay, but shall not exceed 5% of the value of the total price for the goods or services which, for the reasons of delay, cannot be used in accordance with the time schedule or stipulated in the contract. The request for compensation for late delivery is to be submitted in writing and shall be binding. If the customer decides on requesting a compensation for late delivery, he shall have no further claims for replacement of the damage incurred by him from the late delivery. In lieu of the compensation for late delivery, the customer may claim the damage actually incurred from the late delivery in accordance with Section XII. below.

X. Export Control

1. The customer agrees to observe the relevant export control and sanctions regulations and legislation of the European Union (EU), United States of America (USA), and other legislations ("Export Control Regulations").

The customer agrees to inform Schaeffler in advance and to make available all information to us which is required for us to observe the export control regulations, in particular if products, technology, software, services or other goods ("Schaeffler Goods") are ordered for use in conjunction with

  • a) a country or territory, a natural or legal person who/which is subject to the restrictions or sanctions of the EU, USA or other relevant export control and sanctions regulations, or
  • b) the construction, development, production or use of military or nuclear goods, chemical or biological weapons, rockets, space vehicle or aircraft applications or the corresponding carrier systems.

2. The customer hereby agrees that:

  • a) We are to be treated as a US citizen within the meaning of the stipulations of the US Department of Treasury’s Office of Foreign Assets Control (OFAC) with reference to Iran (ITSR) and Cuba (CACR), and
  • b) Schaeffler Goods are not - neither directly nor indirectly - to be used in such or another country or territory which is subject to the restrictions or sanctions of the US government without prior consent from the appropriate US governmental authorities, and are not to be delivered, exported, re-exported, sold or otherwise transported there. This shall also apply for supplies and/or services to natural or legal persons indicated on a sanctions list of the US government.
  • c) The performance of the contractual obligations by us is provided with the reservation that it is not in conflict with the appropriate export control regulations. In such cases, we are entitled in particular, to refuse or withhold the performance of our contractual obligations without arising any liability towards the customer.
  • d) The customer agrees to submit to the supplier an end-user undertaking (EUU) form upon request of the supplier from which the end use and end user of the goods to be delivered hereunder result. The wording of the EUU will be provided by the supplier.

XI. Warranty

1. Our warranty for the Software and Services provided to the customer shall be governed in accordance with the relevant legal regulations unless otherwise agreed in these General Terms and Conditions and insofar as no additional provisions are agreed upon herein.

2. We guarantee that the Software licensed by us to the customer has, upon the passing of the risk, the quality agreed between the Parties hereto. Unless otherwise expressly agreed in writing, the quality of the software finally results from the specification of services and product description in our quotation and/or documentation (where provided).

We have no influence on the quality of the data arising and collected during operation of the machines for which the Software is used. Before the data are acquired, they are not checked separately, neither with reference to their content and scope, nor for their quality, completeness, reliability and/or correctness. The Software is merely intended as support or aid and neither intended as a substitute for an independent check or verification, nor replace a critical judgement of the customer whether and which organizational and technical measures are to be taken in respect of the use and operation of the machines, systems, installations, and production processes.

3. The no-fault liability within the meaning of Section 536 a (1) of the German Civil Code (BGB) for defects which already existed in the Software at the time of conclusion of the contract shall be excluded.

4. Claims for defects can only be asserted if the defect is reported in writing within one week after it has been detected for the first time. Defects are to be notified by way of a comprehensible description of the error indications. The notice of defects is intended to facilitate reproduction of the error. The customer's duties stipulated by law to perform an incoming goods inspection and to report defects immediately on receipt of the goods shall remain unaffected.

5. The customer is not entitled to assert claims or rights for defects in case he withheld a considerably high amount of the remuneration because of the defect.

6. Claims for defects both regarding the Software and the Services shall become statute-barred in 12 months, except for intent.

Insofar as we debug or rectify the defects in the Software or parts thereof or replace it within the framework of warranty, the limitation period shall expire with expiry of the limitation period for the originally delivered Software.

In case of minor or insignificant defects in the Software, we can provide either a workaround in lieu of defect rectification or replacement delivery and only finally rectify the defect by way of delivery of a standard update later, but in a timely manner. Minor or insignificant defects are defects that do not or not significantly impair the use of the Software according to its intended purpose.

The customer's right to reduce the remuneration, to rectify the defect himself or to cancel the contract shall be excluded for the period in which the defect is rectified.

If the defect rectification fails several times due to a major or serious defect and if it is not acceptable for the customer to wait longer, he is entitled to reduce the remuneration or to withdraw from the contract. Failure of rectification of the defect exists in particular, if the defect cannot be rectified which is declared by us to the customer in writing or if defect rectification by us is expressly denied without justification.

7. The Parties hereto agree that no liability for defects shall apply if the customer does not fully perform his obligations to cooperate and responsibilities as agreed in the appropriate time schedule unless the customer proves that such circumstances are not the cause for the notified defect.

8. Claims of the customer based on material defects or defects as to the quality of the Software provided to him shall be excluded if

  • a) The software is modified by the customer in a manner which is in conflict with the stipulations and provisions of these T&C unless the customer can prove that the defect would also have occurred without the modification made by him;
  • b) The defect is based on the use of unsuitable formats or insufficient quality of the customer's/End Customer's data;
  • c) The Software is used in an environment that does not meet the system requirements of the Software and whose deployment was not authorized by us;
  • d) The defect is due to an unauthorized action (including, but no limited to faulty inputs) or omission of a required measure or action or the Software was used or operated improperly, notably in a manner other than as recommended by us (e.g., by failure to update the Software by way of new program versions or releases or failure to observe the required configurations or attempts to perform unsupported processes);
  • e) The customer fails to notify a defect immediately which occurred during the term of the agreement and we are therefore not able to rectify this defect.

9. If a third party asserts claims against the customer which are based on the infringement of existing patents, utility models, design patents or copyrights (hereinafter referred to as "Intellectual Property Rights" or "IP Rights") by the Software and if the customer is therefore prohibited to use the Software due to a deliberate or negligent infringement of IP Rights by us or if such a prohibition can already be foreseen from our point of view, we shall be liable towards the customer as follows:

  • a) We will indemnify and hold harmless the customer from and against any claims for compensation imposed on the customer with final and legally binding effect and from the related expenses which can be reimbursed in accordance with the relevant legal regulations and will at our discretion and our own expense (i) obtain a right to use the appropriate software or (ii) replace the appropriate software or parts thereof or modify it such that no IP rights are infringed and the software nevertheless corresponds mainly to the contractually agreed quality. If none of the aforementioned alternatives is possible at technically or economically reasonable conditions, we and/or the customer are/is entitled to terminate the license agreement.
  • b) The customer agrees to support us in all damage mitigation measures to a reasonable extent.
  • c) Our aforementioned obligations shall only exist insofar as (i) the customer informs us in writing of the assertion of such claims comprehensively and without delay, (ii) all judicial and extra-judicial defensive measures and negotiations for settlement are reserved to us or are conducted with us by mutual written agreement, (iii) the customer immediately makes us accessible all desired information to be able to assess the situation or defense the claims and grants us reasonable support.
  • d) If the customer continues to use the Software although a claim based on the infringement of third-party rights has already been asserted against him, our responsibility shall be limited to the status as of prior to the assertion of the rights insofar as there are no other reasons for exclusion.
  • e) All claims on the part of the customer shall be excluded if the infringement of Intellectual Property Rights is caused by specifications of the customer, by applications that could not be foreseen by us or by the fact that the Software is modified by the customer or a by third party commissioned by him or if it is used together with products not delivered or not authorized by us unless such an infringement of IP Rights could have also be caused without such an application, modification or use. The customer agrees to hold harmless and indemnify us from and against all such claims.

10. The provisions of this Section XI shall also apply if the Software is provided by the customer to End Customers within the framework of the use according to its intended purpose and pursuant to the following additions:

  • a) The customer shall be solely responsible towards his end customers for the installation, configuration and maintenance and for the provision of level 1 and level 2 support. This shall include, but not be limited to the initial technical check and analysis of problems, the search for problems occurred in the past, determination and provision of available bug fixes, corrections and workarounds, as well as onsite support by sufficiently qualified and trained employees of the customer where necessary. The customer agrees to document and, upon request, to prove the aforementioned measures, with handing over of the relevant documents.
  • b) If, however, it is revealed in the opinion of the customer that after failure of the aforementioned measures there is a defect in the Software provided to an End Customer, then the customer is entitled to exercise the warranty rights provided to him in accordance with this Section XI.
  • c) Notification of the defect and communication with us in the course of error rectification must always be entrusted to sufficiently qualified employees of the customer with appropriate training in handling of the Software. We are not obliged to receive and process inquiries, complaints or notices of defects from End Customers.
  • d) Insofar as a check performed by us reveals that a defect is present, the provisions of this Section XI shall apply with the proviso that we will supply a new program version/release of the Software to the customer in which the defect is corrected, and that the customer himself takes appropriate measures in the form of level 1 and/or level 2 support (in accordance with our technical and subject-specific recommendations). We are only obliged to take direct measures towards End Customers if the defect rectification requires measures in accordance with level 3 support. The Parties hereto agree that we have no direct responsibility towards the End Customers, that the customer remains primary contact person for the End Customers and we are not obliged to perform visits on the End Customer's premises free of charge.

XII. Liability

1. Unless otherwise results from these T&C, we shall be liable in case of violation of contractual and non-contractual obligations in accordance with the relevant legal regulations.

2. We shall be liable without limitations, irrespective of the legal grounds, for damages and the reimbursement of futile expenditure arising from a material breach of duty which is attributable to intent or gross negligence on our part or on the part of one of our legal representatives or agents.

3. In case of merely simply or slightly negligent breaches of duty by us or one of our legal representatives or agents, and subject to any reduced extent of liability in accordance with legal regulations (e.g., regarding the standard of diligence exercised in our own affairs), we shall only be liable

  • a) - albeit without limitations - for damage from injury to life, body or health / for the reimbursement of futile expenditure;
  • b) for damage / the reimbursement of futile expenditure arising from the violation of material contractual obligations. Material contractual obligations are those obligations whose fulfilment is imperative to actually enable proper performance of the contract and upon which the customer relies and may regularly rely. The amount of liability in such cases is, however, limited to the amount which is typical for such contracts and was foreseeable upon conclusion of the contract.
  • c) in case of loss of data, exclusively for the damage that also occurred if the customer had saved his data in a proper manner and at the intervals that correspond to and are reasonable for the significance of the data; if we also assumed hosting for the customer, the liability shall apply in accordance with the preceding paragraph b) in lieu.
  • d) The limitations of liability resulting from b) and c) shall not apply if we fraudulently concealed a defect, assumed a guarantee for the quality of the Software and/or hardware or if we assumed a risk of procurement. Furthermore, any compulsory legal liability, notably such as arising from the product liability act, shall be unaffected.
  • e) Penalties and liquidated damages to be paid by the customer to third parties in connection with software and/or hardware delivered by us can only be asserted by the customer as damage compensation subject to all further prerequisites if this is expressly agreed with us in writing or the customer notified us of this risk in writing before we concluded the contract with him.
  • f) In case of any damage and loss to be compensated by us, the customer is obliged to notify us in writing without delay or else to enable us to record the situation.

4. Contractual and non-contractual claims for compensation for damage/claims for reimbursement of futile expenditure of the customer which are based on a defect of the Software and/or Services shall become statute-barred in 24 months after provision of the Software or Service unless a longer limitation period is mandatorily specified by law. Both claims for compensation for damage which are raised by the customer in accordance with the product liability act and claims in cases if we fraudulently concealed a defect shall become statute-barred with expiry of the legally stipulated limitation periods.

5. Insofar as our liability in accordance with the aforementioned terms and conditions is excluded or limited, this shall also apply for the liability of our entities, legal representatives, employees, and agents.

XIII. Guarantee

Data, information and details provided in our (offline and online) catalogs, publications, advertising brochures, other general information and/or offers and order confirmations shall at no time be deemed to constitute a guarantee. The granting of a guarantee by us must be performed in writing and expressly be designated as such.

XIV. Data Protection

1. The Parties hereto agree to observe the data privacy regulations applicable to them. The Parties also agree that we will not be granted access to personal data when performing contracts or agreements, neither in the systems of the customer, nor in those of the End Customer. The customer will ensure by taking the appropriate measures that such a possibility of access is excluded. In case of system modifications, the customer will check whether it requires processing of personal data or the possibility of access to such data by us can no longer be excluded.

2. If the customer is obliged in accordance with this agreement to provide us contact details of his employees, he agrees to ensure the appropriate prerequisites in terms of data protection; in particular, he is obliged to document the legal basis for permission to collect personal data of his employees.

3. To ensure the requirements in terms of data protection, the Parties hereto agree to conclude an agreement for order processing in accordance with our template where necessary.

XV. Termination; Legal Consequences

1. Unless otherwise specified in the purchase order and order confirmation, a termination for convenience of the agreed licenses and/or the ordered Services shall be excluded during the specified term of the agreement on provision of the Software or Services.

Any contract on provision of the Software and Services shall automatically end with expiry of the agreed term.

2. The right of both Parties hereto for termination without prior notice on important grounds shall not be affected. An important ground is provided in particular,

  • a) If the customer ceases or threatens to cease his business operations, if insolvency proceedings are applied for or opened or foreclosure is initiated against the customer because of insolvency;
  • b) In case of breach of a material obligation of the contract or agreement and if the violation of the obligation was not cured at all or else not cured within the specified period despite written reminder with specification of a reasonable deadline; no reminder is required if the confidence in further proper performance of the contract or agreement has already been shaken by the first violation of obligations to such an extent that it can no longer be restored (e.g. in case of an intentional or grossly negligent breach of the license terms of these General Terms and Conditions by the customer); this provision shall not apply in the cases mentioned in Section IX. above since this Section contains a specific remedy for such cases.

3. Any termination shall only be effective if performed in writing.

4. For the avoidance of doubt, the Parties hereto agree that the provisions regarding confidentiality and secrecy (Section VI.), the obligations of the customer to delete the Software provided to him and any copies thereof (Section VIII.7), the rights pertaining to the data obtained from the machines (Section XIV.) and the provisions for protection of the Software and property rights in program add-ons (Section IV.) shall survive the termination of this agreement.

XVI. Open Source

The data acquisition and evaluation software comprises open-source components. The appropriate license terms, as well as the required information and hints will be provided either within the framework of providing the Software or by way of accompanying documentation in analog or digital form.

XVII. Final Provisions

1. All contracts and agreements shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Sales Convention.

2. Place of performance and jurisdiction shall be Chemnitz.

3. Any amendments to these General Terms and Conditions discussed between us and the customer shall only be binding if performed in writing. This shall also apply to any waiver of this requirement of written form. Section II. 4. shall not be affected.

4. If any provision of these T&C or part thereof shall to any extent be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the T&C. The Parties hereto already now agree that they will endeavor to find amicably an effective substitute which comes as close as possible to the intended, legal and economic purpose of the provision that became invalid or unenforceable.

Schaeffler Digital Solutions GmbH

Stefan-Heym-Platz 1, 09111 Chemnitz

Version 02_01.04.2022

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