General terms and conditions
for the licensing of software and the selling of hardware from Schaeffler Digital Solutions GmbH
1. These General Terms and Conditions for Sales and Licensing (hereinafter briefly referred to as "GTC") apply for making available software for use for a limited time (data acquisition software with/without customer-specific program add-ons and/or data visualization software, hereinafter jointly referred to as the "Software"), as well as for sales of IT hardware (with/without software installed) by us to our customers.
2. These GTC shall only apply to customers who are legal entities under public law or special funds under public law. The customer must be entrepreneur within the meaning of the VAT legislation.
3. Our GTC shall apply exclusively. Any contrary, deviating or supplementary terms and conditions of the customer shall not become part of any contract or agreement, also 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.
4. Our GTC shall only apply in their current version. We will inform the customer of any modifications in advance.
II. Conclusion of contracts, formal requirements
1. Our offers and quotations are free and not binding insofar as not expressly marked as binding. All statements regarding availability, prices, specifications, properties and/or features of the software and/or hardware on our website or in our (electronic) catalogs 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. We only accept purchase orders by way of a declaration in writing (order confirmation) or by delivery of the software and/or hardware. 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 will be concluded with the contents of the order confirmation.
4. To be able to satisfy the requirement of the written form within the meaning of these GTC, it shall also be sufficient to transmit an unsigned electronic document, unsigned e-mail or a telefax.
5. The contract concluded by way of purchase order and order confirmation and these GTC as part of the contract represent the full extent of all covenants made between us and the customer in respect of the subject of the contract. Any agreements or covenants made orally prior to conclusion of the contract are legally not binding and shall be completely replaced by the contract unless otherwise expressly agreed in writing by the Parties hereto.
6. The contract is concluded with the proviso that the contractually agreed services may not be performed or else may only be performed in part in case of late, incorrect or improper deliveries to us from third parties. This shall only apply if such cases are not attributable to us. We agree to inform the customer without delay if the software or hardware offered by us is not available or else only available in part.
III. Subject of the contract, handing over and installation
1. In accordance with the appropriate contract, we provide the customer a program copy of our data acquisition software and/or data visualization software within the framework of a time-limited on-premises license in accordance with Section XIV. below and allow the customer to use our data visualization software on our server or, for separate remuneration, on a server of a third-party service provider (software-as-a-service) and/or we sell hardware (so called I-PCs).
2. Documentation will be provided in the form of a manual upon request. The provision of online documentation via our portal is deemed to be in accordance with the terms and conditions of the contract even if it is compiled wholly or partly in the English language.
3. The data acquisition software will either be provided to the customer for download or is preinstalled on the purchased hardware (I-PC) if the corresponding hardware is also bought from us. Depending on the appropriate contract, the data visualization software is either made available to the customer for download or provided for use via web front-end through a browser.
The organizational and technical installation and configuration of the I-PCs and/or data acquisition software or of the data visualization software and its integration into the operating/system environment of the customer and/or third parties to which the customer sells machine systems (hereinafter briefly 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). It is also the customer's sole responsibility that the hardware and software environment required for the operation and use of the software, including required interfaces, is set up ready for operation and available and that, in particular bug fixes, updates, etc. are always implemented in the other software within a reasonable time.
For software not acquired together with I-PCs and installed by the customer on his own hardware (on-premises licensing), a hardware-specific license key will be created during the processes of installation and commissioning on the site for the purposes of license approval which is to be forwarded to us for verification and authorization. In the case of successful authorization and after return of a specific license key generated by us to the customer, the software for the corresponding hardware will be enabled for use in accordance with the acquired licenses ("Authorized Hardware").
4. A basic software instruction can be provided for the customer where necessary and desired for separate remuneration by individual agreement. Travelling, subsistence and overnight expenses will be charged separately. Any training for use of the software which goes beyond the aforementioned basic instruction can also be ordered by the customer and will be charged separately. Software maintenance services will only be provided on the basis of an agreement that is to be concluded separately.
5. The customer will receive the software in machine code form. He shall have no claim for disclosure of the source code.
IV. Reservation of rights, secrecy/confidentiality
1. We reserve all and any 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 GTC 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 contract confidentially and to use the same care as with reference to our own trade and business secrets of similar importance, but at least reasonable technical and organizational measures to maintain the confidentiality. Confidential Information includes all trade and business secrets of the Parties, as well as all physical or verbal information and data, including, but not limited to development plans, product development and product design plans, information about hardware, data bases, software in use or manufactured, source codes or algorithms and documents or knowledge exchanged between the Parties hereto in conjunction with the contract or agreement and which - insofar as existing in writing or a different form - are marked as confidential or with a similar note.
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 (the "Disclosing Party") are noticed within the range of responsibility of the Party receiving the Confidential Information (the "Receiving Party") 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 GTC.
1. The software is provided to the customer at the license fee specified in the corresponding order confirmation. The hardware is sold at the purchase price specified in the order confirmation.
2. All prices are to be understood as net prices plus legally stipulated value-added tax.
The prices are to be paid net without deduction, with the exception of the withholding tax that is to be withhold by the customer from the remuneration to be paid in accordance with the relevant law (income tax). The customer and we will support us 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 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 fees to be paid by the customer or the purchase price are to be paid immediately net without deductions after receipt of an appropriate invoice unless no other agreements regarding payment were concluded or other terms of payment are specified on the invoice. We are always entitled at our own discretion to request advance payment.
4. The customer may only offset outstanding claims which are uncontested or recognized by declaratory judgment. He is only entitled to withhold payments insofar as counterclaims from the appropriate contractual relationship are asserted.
5. If the customer falls behind schedule with payments or applies for the opening of insolvency proceedings, all open invoices shall become due for payment immediately.
VI. 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 participation and providing services.
2. Insofar as the obligations of participation and providing services not result from these GTC, the appropriate offer, quotation, purchase order and/or order confirmation, we will remind the customer in good time and within a reasonable period of the type, extent, times and all the other details of the obligations of participation and provision of services to be performed by him and request him to do so. The customer agrees to perform his obligations of participation and provision of services without delay and free of charge.
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. In all other respects, the provisions of Clause 5 below shall apply.
3. We agree to provide support services for compatibility purposes for separate remuneration and by individual agreement. In case of incompatibilities of our software and/or I-PCs with the existing software and/or hardware environment, the customer agrees to perform appropriate settings / reasonable changes in the configuration as per our instructions for fault rectification etc. on all devices involved if it is thus possible to restore proper functioning. He agrees to support us in the troubleshooting. In particular, the customer agrees to grant us sufficient remote access for this purpose to the data acquisition software installed on his premises. Furthermore, the customer also agrees to grant on-site access to the data acquisition software for our employees during the customer's ordinary office times as necessary. On-site visits are always to be performed with observance of the appropriate safety regulations of the customer.
4. The customer agrees to take reasonable measures for the case that the software and/or the I-PCs do not operate fully or partially not correctly. He agrees to carefully test the software and I-PCs for its fitness for the intended purpose before using them in operation. Furthermore, he is obliged to take measures representing the latest state of the art to protect his data and IT infrastructure, including the software and I-PCs which were provided to him, against loss, destruction and unauthorized access by third parties.
5. Insofar as we grant the customer access to our or third-party systems (e.g. to be able to make settings for use of the data visualization software provided to him within the framework of a software as a service model, further referred to as "SaaS model"), the customer agrees to take the appropriate measures required for protection and safety 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 the services in accordance with the contract/agreement by the fact that the customer's obligations of participation and providing services were not performed as agreed, we will not be responsible for the resulting defects or deficiencies in the performance. The agreed deadlines will be postponed to a reasonable extent. The duration of the extension is to be calculated according to the period of failure to participate or provide services in compliance with the terms and conditions of the contract or agreement.
7. The customer must no longer use the software beyond the license term. The customer agrees to delete software installed on his own hardware (including any backup copies) without delay. If the customer has left the software for use to third parties, 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.
VII. Delivery and service times
1. We deliver the hardware ex store to the delivery address specified by the customer. All goods are delivered at the expense of the customer. We will provide our data acquisition software on our own servers for download with the beginning of the agreed license time; our data visualization software will either also be provided for download from our servers with the beginning of the agreed license time or will be made available for use at the beginning of the agreed license time on our own or third-party servers.
2. Delivery times or deadlines not expressly agreed as binding are exclusively non-binding specifications. Delivery dates agreed as binding shall be subject to the proviso of correct and timely deliveries to us from our subsuppliers, except where the failure to deliver on the part of our subsuppliers is attributable to us. For observance of the delivery dates and for passing of the risk, the time at which we hand over the hardware to the transporting agency shall be decisive. The beginning of an agreed license time shall be deemed observed if at that time the software is provided by us on the Internet for download or use.
3. We reserve the right to specify the concrete delivery date within a concrete delivery week if agreed so. If the shipping of hardware is delayed at request or through fault of the customer, we will store the deliverables at the customer's risk and expense.
4. A claim for use of the data visualization software within the framework of an SaaS model shall only be provided within the framework of the current level of technology. The data visualization software will be available min. 97% on average per month (except for maintenance work and improvements). It may occur due to required maintenance or improvement works that the data visualization software or individual functions thereof are temporarily not available. We always take into account the reasonable interests of the customer, in particular by way of timely advance information. We are entitled to make use of the data visualization software conditional on the compliance with certain security precautions. The use of the data visualization software within the SaaS model is subject to an access and authorization concept (process of registration in our systems with user name and password or the like) noticed to the customer in good time. To be able to use the data visualization software within the framework of the SaaS model, a web browser must be provided to the customer which is to be acquired and deployed solely by the customer.
5. 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 to a reasonable extent. In such cases, the customer shall have no claim to request damage compensation from us.
6. Unless otherwise expressly excluded, we are entitled to perform partial deliveries and partial services.
7. The time deemed to be as the time of occurrence of late delivery attributable to us is 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. 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 cannot be used in accordance with the time schedule or stipulated in the contract for the reasons of delay. 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 X. below.
VIII. Export control
1. The customer agrees to observe the relevant export control and sanctions regulations and legislation of the Federal Republic of Germany (FRG), European Union (EU), United States of America (USA) and other legislations ("Export Control Regulations").
The customer agrees to inform us 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 FRG, 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 especially entitled to refuse or withhold the performance of our contractual obligations without arising liability towards the customer.
d) The customer will 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 result. The wording of the EUU will be provided by the supplier.
1. Unless otherwise or additionally specified in these GTC, our warranty shall be in accordance with the appropriate legal regulations.
2. We guarantee that the software and/or I-PCs acquired by the customer provide mainly the agreed properties upon passing of the risk. Unless otherwise expressly agreed in writing, the properties of the software and/or I-PCs finally result from the specification of services and product description in our offer and/or documentation (where provided). Any representations whatsoever as part of statements in public (notably advertisement) or statements issued by our employees shall not be part of the contractually agreed properties unless or insofar there is an express written confirmation from the Schaeffler management.
We have no influence on the properties of the data arising and collected during operation of the machines for which the software is used. The content and scope, as well as the quality, completeness, reliability and/or integrity of the appropriate data will not be verified prior to the data acquisition or visualization. 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 for defects within the meaning of Section 536 a, Para. 1 of the German Civil Code (BGB) which already existed at the time of conclusion of the contract shall be excluded.
4. Claims for defects can only be asserted if the defect is reported 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 legal obligations of the customer to make a complaint in respect of a defect immediately on receipt of the goods shall not be affected.
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. The customer's right to assert claims for compensation in accordance with Section X hereto shall not be affected.
6. Claims of the customer based on defects become time-barred after 12 months, except for cases of deliberate action. Insofar as we debug or rectify the defects in the software or parts thereof or replace within the framework of warranty, the limitation period shall expire with expiry of the limitation period for the originally delivered software.
Post-fulfilment within the meaning of Section 439, Para. 1 of the German Civil Code (BGB) is to be performed at our discretion either by rectification of the defect or delivery of hardware free from defects.
In case of minor or slight 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. Slight or minor defects are defects that do not or not significantly impair the use of the software according to its intended purpose. While the defect is being rectified, the customer's right to reduce the remuneration, to rectify the defect himself or to cancel the contract shall be excluded.
If the defect rectification fails several times due to a major or serious defect and if it 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 integration of the software and hardware into the existing technical and organizational environment of the customer, primarily the IT infrastructure, shall be the sole responsibility of the customer. It is also the customer's responsibility to ensure that the required hardware and software environment is provided on his or his end customer's premises, ensuring full operational performance of the software and hardware. We expressly refer to Section III, Subsection 3. The Parties hereto agree that no liability for defects shall apply if the customer does not fully perform his obligations and responsibilities as agreed in the appropriate time schedule unless the customer proves that such circumstances are not the cause for the notified defect. Expenses that arose from the removal of defective items or from the installation of repaired, rectified or fault-free items in accordance with Section 439, Para. 3, p. 1 of the German Civil Code (BGB) and can be reimbursed within the framework of the warranty ("reimbursable expenses") shall include exclusively any incurred postage or shipping charges for such items and expenses for the basic configuration insofar as they are not borne by us in accordance with the contract (notwithstanding Section III, 3); the term 'reimbursable expenses' does not refer to expenses for installation, customized configuration and data migration.
8. Claims of the customer based on material defects or defects as to quality shall be excluded if
a) The software and/or I-PCs is/are modified by the customer in a manner which is in conflict with the stipulations and provisions of these GTC 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 and/or I-PCs is/are used in an environment which does not meet the system requirements of the software and/or I-PCs, and their use in such an environment 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 and/or I-PCs was/were 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 contract and we are therefore not able to rectify this defect.
9. If a third party asserts any 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 an infringement of IP Rights deliberately or negligently 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 to 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 such that no IP rights are infringed and the software is nevertheless mainly in accordance with the contractually agreed properties. If no of the aforementioned alternatives at technically or economically reasonable conditions is possible, 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 from the customer, applications that could not be foreseen by us or by the fact that the software is modified by the customer or a third party commissioned by him or 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 IX hereto shall also apply when the software is provided by the customer to the end customer within the framework of use according to the intended purpose (Section XIV. 2.3) in accordance with 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 limited to the initial technical check and analysis of problems, 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 the aforementioned measures and to furnish proof upon request with handing over the appropriate 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, the customer is entitled to exercise the warranty rights provided to him in accordance with this Section IX.
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 IX shall apply with the proviso that we will supply the customer with a new version of the software which rectifies the defect and that the customer is himself to take measures in the form of level 1 and/or level 2 support (in accordance with our professional recommendations). We are only obliged to take direct measures towards our end customer 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 customer, that the customer remains primary contact person for the end customer and we are not obliged to perform visits on the end-customer's premises free of charge.
1. Unless otherwise results from these GTC, 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 - irrespective of the legal grounds - without limitations for damages and the reimbursement of futile expenses arising from a material breach of duty attributable to intent or gross negligence on our part or on the part of one of our legal representatives or agents. We shall be liable - for any legal reason whatsoever - without limitations for compensation for damage and replacement of wasted expenditure which are based on a material breach of duty with intent or gross negligence by us or one of our legal representatives or agents.
3. In case of merely slight or minor 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 be liable only
a) - albeit without limitations - for damages/the reimbursement of futile expenses arising from personal injury, damage to health or death;
b) for damages/the reimbursement of futile expenses 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 would have 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 have 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 insofar as we fraudulently concealed a defect, assumed a guarantee for the properties of the software or hardware or 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 our recording of the situation.
4. Contractual and non-contractual claims for damage compensation/for replacement of wasted expenditure which incurred by the customer and are based on a defect in the software or hardware shall become time-barred 24 months after delivery of the software or hardware or its provision for download if no longer limitation periods are stipulated by law. Claims for compensation asserted by the customer in accordance with the Product Liability Act and pursuant to the cases outlined in Section X. 2 and Section X. 3. a) and if we fraudulently concealed a defect shall become time-barred exclusively with expiry of the legal 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.
1. The assumption of guarantees by us must be confirmed expressly and designated as such.
2. 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 deemed to constitute a guarantee.
XII. Reservation of title in the delivered hardware
1. We reserve the title in the sold hardware until we have received all payments due in accordance with the sales contract.
2. If the customer is in default with his payments, we are entitled to take back the hardware provided to him until the outstanding amounts have been paid and if the non-performance of the contractual obligations that caused the delay is not unproportionally low. The taking back does not include a declaration of withdrawal from the contract or agreement.
XIII. Rights to use generated machine data; data privacy
1. The Parties hereto agree that all data from machines which are acquired via the data acquisition software will also be provided to us for use insofar as we have access to these data (saving of the data on servers in our hosting). We are expressly permitted to use and/or have the data used worldwide free of charge and without limitations and to pass on and/or transfer such data to affiliated companies. In particular, we are permitted to save, transfer, print, visualize, analyze or use the data for simulations, merge with other data and to use all results, insights and knowledge obtained from the use of the data without limitations. The customer agrees to bind his end customer to this right of use granted to us.
2. 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 neither in the systems of the customer, nor in those of the end customer when performing contracts or agreements. 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. In such a case, the Parties hereto will conclude an agreement for data processing by order in accordance with a contract template provided by us.
3. It is the customer's sole responsibility to ensure that the software provided to him is used in accordance with the appropriate legal regulations and the relevant contract or agreement and he must also ensure that the prerequisites for reliability of use are provided. This shall also include observance of all relevant legal regulations, including the export control regulations (Section VIII.). The customer agrees to obtain all permits and approvals as far as necessary at his own expense. Furthermore, the customer agrees to ensure that no third-party rights or other legal regulations are violated by the data collections to be performed. The customer agrees to obtain the permits, consents and approvals from any third parties concerned (e.g. end customers, machinery and plant manufacturers or employees) as far as necessary.
XIV. Copyrights and rights of utilization
1. The software 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 (e.g. documentation).
2. Subject to the provisions specified below, we grant the customer a royalty-bearing, non-exclusive, non-transferrable and subject to the terms and conditions specified below in this Section XIV non-sublicensable right to use the software in accordance with its intended purpose for a period limited to 5 years insofar as no individual deviating period is agreed. The license period shall begin either as of the time when the software is provided for download or as of the time agreed for use via our or third-party servers.
The right to use the software in accordance with its use according to the 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 XIV. 2.3 hereof.
2.1 Data acquisition software
a) The customer is entitled to use the program copy of our data acquisition software provided or made available to him within the framework of a license exclusively on an accordingly authenticated I-PC or on an authorized customer hardware (Section III.3.) within the framework of the use according to the intended purpose (hereinafter collectively referred to as "Authorized Hardware"). The Authorized Hardware can be linked to a limited number of data sources (so-called Control Devices) precisely specified in the contract which can be inserted into objects of different kind (so-called assets, e.g. machines or other objects) and connected there with sensors integrated into the object to be able to acquire data from the sensors and to convert into portable information. The customer is entitled to use the software to acquire different data formats and save on storage media. The removal of the data acquisition software from the Authorized Software 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 a hardware relocation, the licenses for the formerly Authorized Hardware shall be null and void and continue to apply for the new Authorized Hardware without changes.
b) If the data acquisition software is provided to the customer together with an I-PC acquired by him, the term of the license for use of the data acquisition software shall nevertheless be limited in time and determined by the term specified in the order confirmation.
c) The right to use the data acquisition software according to the intended purpose shall be limited to the installation and configuration of the data acquisition software within the specified configuration options and its operation on the Authorized Hardware. The customer may copy, load, display, run and save the data acquisition software in the object code insofar as necessary for Use According to the Intended Purpose. The customer may create a backup copy of the data acquisition software in accordance with the relevant legal regulations. The customer agrees to mark the copy as such.
d) The customer is not entitled to make modifications to the data acquisition software unless it is necessary for its use according to the intended purpose.
- Such a necessity of 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.
- 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.
e) The data acquisition software may only be decompiled if the prerequisites and conditions in accordance with Section 69e, Para. 1 of the German Copyright Act are met. The information obtained in this way must not be used or transmitted in a manner other than as governed by Section 69e, Para. 2 of the Copyright Act.
f) The customer may not entrust the aforementioned measures in accordance with this Section XIV.2.1. to third parties who are competitors of us unless he can prove that the risk of disclosure of important corporate or trade secrets by us, especially pertaining to the function and design of the software product, is excluded.
g) Unless otherwise permitted in accordance with mandatory legal regulations and the aforementioned provisions, the customer is 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 other attempts to reconstruct the source code of the software.
2.2 Data visualization software
a) The following shall apply if we provide the data visualization software to the customer within the framework of a license for use according to the intended purpose via a web front-end through a browser:
The software will not be provided as a program copy (SaaS). The license for use of the data visualization software according to its intended purpose must only be exercised by separately authorized single users of the customer or end customer. The use of the software is subject to an access and authorization concept that is to be notified to the customer in a timely manner (process of registration in our systems with user name and password, etc.). The data visualization software must be used exclusively online. It must not be downloaded even if this should be technically possible for the customer; such a case shall be subject to the prohibitions of use applicable for the data acquisition software (Section XIV. 2.1).
b) If the data visualization software is provided or made available in accordance with an on-premises license, the provisions of Section XIV. 2.1 above shall apply accordingly, with the exception of lit. a), Clauses 2 and 3, and lit. b). The customer is entitled to represent data acquired within the framework of use of the software according to its intended purpose by means of visualization.
2.3 Provision of the software to the end customer
a) 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 appropriate software to end customers in accordance with the provisions of this Section XIV. 2.3 ("Sublicense“). When granting sublicenses, the customer must not grant any further rights of use that go beyond the rights agreed with him in accordance with Section XIV. 2.1 or Section XIV. 2.2 and acquired by him in each individual case where the right to grant further sublicenses by the end customer is excluded and the customer is not entitled to use third parties as subcontracting sales partners.
a) The following shall apply if we provide the data visualization software to the customer within the framework of a license for use according to the intended purpose via a web front-end through a browser:
b) The customer is not allowed to use the software to compete with us directly or indirectly 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 agreement/business). In cases of doubt, the customer is to obtain a prior written approval from us.
c) The customer guarantees that the license terms of these GTC are observed by the end customer and will take all reasonable 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 and the I-PCs (where appropriate) are also provided in the environment of the end customer.
d) The customer agrees to compensate us for any damage and hold harmless and indemnify us from and against all and any costs and expenses (including, but not limited to attorneys' fees) arising from violation of our rights in the software and/or I-PCs by the end customer or by violation of legal regulations when the customer sells the software to his end customers.
3. Further rights of use or other than those granted pursuant to Section XIV. 2 can conclusively not be granted and are subject to a separate agreement in writing. Unless expressly permitted in these GTC or otherwise dictated by mandatory law, the customer is in particular not permitted to allow the software and/or the entirety or elements of the corresponding rights of use or other rights granted to him in accordance with these GTC (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.
4. 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.
5. We are entitled to fully or partially withdraw 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.
6. Using the software outside the use according to its intended purpose and/or in breach of other provisions of this Section XIV. constitutes a violation of our rights in the intellectual property and represents a material breach of these GTC. In all other respects, Section XV.2. shall apply. Our further rights, for whatever legal reason, shall remain unaffected.
7. Insofar as we decide to supply a new software version (e.g. patches, updates, upgrades, new software releases/versions) to the customer without a corresponding obligation to do so on our part in accordance with these GTC and aside from any warranty case, all provisions pertaining to the software which are contained in these GTC shall apply accordingly to use of the new software version.
The customer may hand over the new program versions of the data acquisition software provided to him to the end customer only after the new program releases 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.
8. If we create add-ons for the data acquisition software by order of the customer (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 data acquisition software.
All and any intellectual property rights in such add-ons shall be created exclusively to our benefit. As a rights-holder, we are entitled to exploit and use such 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 all and any 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, Para. 4 of the German Copyright Law. Insofar as employees or agents of the customer are joint authors, the customer assures to have acquired all and any rights of use and exploitation from them and to have received a declaration of waiver in accordance with Section 8, Para. 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.
XV. Termination, legal consequences
1. Unless otherwise specified in the purchase order or order confirmation, the agreed licenses cannot be terminated for convenience.
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 or not cured within the specified period despite written reminder with specification of a reasonable deadline; no reminder is required if confidence in further proper performance of the contract or agreement has already been shaken to such an extent by the first violation of obligations that it can no longer be restored (e.g. in case of a breach of these license terms of the GTC with intent or gross negligence); 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 IV.), the obligations of the customer to delete the software provided to him and any copies thereof (Section VI.7), the rights pertaining to the data obtained from the machines (Section XIII.) and the provisions for protection of the software and property rights in program add-ons (Section XIV.) shall survive the termination of this agreement.
XVI. Open source
The data acquisition and data visualization software comprises open-source components. The corresponding license terms, as well as the required information and notes 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 GTC discussed between us and the customer shall only be binding if performed in writing. This requirement of the written form can only be waived by way of a written agreement. Section I. 4. shall not be affected.
4. If any provision of these GTC 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 GTC. 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