Download GTC supplement licensing of software
GENERAL TERMS AND CONDITIONS FOR THE DELIVERY OF GOODS AND SERVICES OF
ENDRESS+HAUSER COMPANIES1IN SWITZERLAND (“GTC”)
All deliveries of goods and products (jointly “Goods”) and contractual services (“Services”) of Endress+Hauser companies2in Switzerland shall be governed solely by these GTC unless differing conditions are agreed upon in writing.
In addition to these GTC, special terms may ap-ply if agreed upon in writing (as e.g. special terms for software or special services).
We may amend these GTC at any time with effect for the future. The valid issue of the GTC is always published on our homepage (see: www.true-dyne.com).
The customer’s terms and conditions of business are valid only to the extent that we confirm them in writing.
Notifications by fax or e-mail qualify as written form under these GTC.
Our offers remain revocable and are not binding. The customer remains bound to his orders of Goods or Services for 15 days, calculated from the date of the order’s arrival at our place of business.
Contracts covered by these GTC do not come into force until we confirm the order in writing.
Technical data, illustrations, drawings, weights and dimensions accompanying the offer are not binding except we have confirmed this in writing.
We reserve the right to make technical changes.
Unless a delivery deadline is agreed upon in writ-ing (“Agreed Upon Delivery Deadline”), delivery deadlines and dates, as well as delivery delays we report, are only estimates without legal force. Correspondingly, with the reservation of Force Majeure according to Section 12 below, delays in delivery do not result in any rights to cancel the contract or to claim any other right to alter the le-gal relationship or to claim damages or penalties.
The Agreed Upon Delivery Deadline begins, at the earliest, when the order confirmation is sent, but not before all details concerning the execution of the contract are clear and all documents and au-thorizations to be supplied by the customer, as well as any agreed upon advanced payment have been received. An Agreed Upon Delivery Deadline is fulfilled when the Goods or Services are offered or delivered in time (see Section 4).
A customer’s modification request is only valid if accepted by us in writing. In any case it extends the delivery deadline until we have evaluated its feasibility and for the period of time necessary to manage the amended instructions.
TrueDyne Sensors AG is a subsidiary of Endress+Hauser Flowtec AG and therefore belongs to the Endress+Hauser Group.
These terms and conditions are not applicable to any transactions between affiliated companies of the Endress+Hauser Group.
3.2 DELAYED DELIVERY
If we are in default of delivery under an Agreed Upon Delivery Deadline, our liability is limited to a maximum of 0.5% of the contract value of the delayed Goods or Services per completed week of delay. Our maximum liability in such cases is 5% of the contract value of the delayed Goods or Ser-vices. We shall be considered in default of delivery only after the written notification by the cus-tomer.
If an Agreed Upon Delivery Deadline cannot be met for reasons that are not our fault, we have the right to store the Goods at the customer’s risk and expense. After the fruitless expiration of a rea-sonable grace period we may withdraw from the contract and if the customer is liable for the delay claim for indemnification.
The customer is in default of acceptance if, for no valid reason, he does not accept, or refuses, or prevents, or in any other way obstructs the deliv-ery of Goods or Services. In such cases we are at our own discretion entitled to either withdraw from the contract or to deliver again at customer’s expense. The right to indemnification for dam-ages is reserved.
3.3 PARTIAL DELIVERIES
We have the right to make reasonable partial de-liveries.
As a rule, delivery takes place based on the terms of delivery agreed upon and defined in the order confirmation (particularly INCOTERM).
Unless specific terms and conditions of delivery have been agreed and confirmed by us, the cus-tomer assumes risk and the delivery takes place as soon as we have turned the Goods over to the carrier, or, should shipment be delayed for rea-sons that are not our fault, as soon as we have no-tified the customer that the Goods are ready to ship.
Unless other terms have been agreed upon in writing, prices are understood to be valid from our distributing warehouse, and in particular include neither packaging, transport costs, insurance, spare and wear parts, nor the applicable value added tax. We are entitled to reasonable price in-creases if the material and labor costs on which the calculation is based, significantly increased since our order confirmation.
Unless other terms have been agreed upon in writing, our invoices have to be paid within 30 days after the date of the invoice. If no payment is made by the end of this payment period (value date of the full invoice amount cred-ited to our account), the customer is automatically in default of payment. Default of payment has the following consequences:
• The customer must pay the legal default in-terest but at least LIBOR plus 5 percent p.a. In addition, the customer must reimburse us for all expenses associated with the default of payment, e.g., expenses for notification and legal expenses.
• We may require payment in advance or secu-rities before further performance. This term also applies when there is no default of pay-ment, but when justified doubt in the cus-tomer’s ability to pay exists.
• Upon written notice we may withdraw from the concerned as well as from all not-yet-per-formed individual transactions and claim in-demnification.
• All not-yet-due invoices for deliveries from which we have not withdrawn become due immediately, even when the default of pay-ment does not apply to other contracts with the customer.
The customer must not set off any amounts due for payment to us unless accepted by us in writing.
The Goods remain our property until the price and all costs associated with the delivery have been paid in full.
We are authorized and empowered to register re-tention of title with the competent agency in the applicable location at any time. Upon request, the customer must assist in the registration process.
The customer must ensure that the delivered Goods are maintained and appropriately insured for the duration of the retention of title period.
8.1 SUBJECT AND PERIOD
We warrant that on delivery and for a period of 12 months after delivery (“Warranty Period”)
• the Goods are free from substantial defects in design, material and workmanship; and
• the Services have been carried out in a profes-sional manner consistent with general ac-cepted industry standards.
We do not warrant the fitness of our Goods or Ser-vices for a specific application or purpose.
8.2 INSPECTION, NOTIFICATION OF DEFECTS AND ACCEPTANCE OF THE GOODS AND SERVICES
It is the customer’s duty to inspect the delivered Goods or Services for substantial defects, com-pleteness and correctness immediately after de-livery. The customer must immediately notify us in writing and in details of any obvious defects, but not later than 8 days after delivery. The cus-tomer must notify us of hidden defects in writing and in detail immediately after their discovery, but within the Warranty Period. Any failure to give notice in due time and due form results in an approval of the Goods or Services.
With the approval of the Goods or Services or with the expiration of the Warranty Period all of the customer’s warranty rights expire.
The terms of this Section apply also to all other customer complaints, as e.g. incorrect or delayed delivery, quantity variance, and all other com-plaints about Goods or Services provided by us.
8.3 WARRANTY OF GOODS
Any warranty and liability for defects is subject to the customer having fully complied with his con-tractual obligations and the requirements of Sec-tion 8.2.
We are responsible only for those defects that al-ready existed at the time at which the customer assumed risk.
At our request, the customer must return at his own expense the rejected Goods in the original or equivalent packaging for testing of the claimed defect (for decontamination see Section 14 be-low). Should the complaint be justified, we reim-burse the customer for the shipping and transpor-tation expenses.
We may replace or repair defective Goods or re-fund the price at our option. Any price reduction and redhibitory action, as well as any claims for direct and indirect damages are excluded to the extent allowed by applicable law.
This Section applies to each delivery of defective Goods irrespective of the legal basis of a possible claim.
8.4 SERVICE WARRANTY
Any warranty and liability for Services is subject to the customer having fully complied with his contractual obligations and the requirements of Section 8.2 as well as to the customer’s full co-op-eration with us in all matters relating to Services as particularly but not limited to providing the necessary access to premises and facilities, providing the relevant information and materials and obtaining and maintaining all necessary li-censes and permissions.
We provide Services in accordance with the ser-vice specifications agreed upon with the cus-tomer. We are entitled to subcontract these Ser-vices to third parties (subcontractors).
For Internet-based Services, the continuous avail-ability of such Services and any data involved may not be guaranteed.
This Section applies to each delivery of Services ir-respective of the legal basis of a possible claim.
Any liability is subject to the customer having properly fulfilled his obligations under Section 8.2.
As a rule, our liability is limited to the value of the Goods or Services from which the claim arises. Any liability for indirect and consequential dam-ages is excluded. Also, liability for our auxiliary persons and subcontractors as well as in cases of Force Majeure (see Section 12) is excluded.
In the event of loss or damage of customer’s data or programs, our liability is limited to the typical costs and efforts of recovery, which are necessary if appropriate and regularly backups had been made by the customer.
In cases of gross negligence and willful miscon-duct our liability is determined in accordance with the applicable law.
Should the customer withdraw from the contract without good reason or, for his part, not fulfill the contract, we may demand 25% of the value of the order as contractual damages. We reserve the right to demand compensation for damages ex-ceeding this amount.
10.1 ANTI-BRIBERY AND ANTI-CORRUPTION
We comply with all applicable laws and regula-tions relating to anti-bribery and anti-corruption.
Customer shall comply with such laws and regu-lations as well and undertake all necessary ac-tions to do so.
10.2 IMPORT AND EXPORT CONTROL REGULATIONS
We comply with all applicable laws and regula-tions relating to import and export control.
Customer shall comply with such laws and regu-lations as well and undertake all necessary ac-tions to do so.
Customer shall indemnify and hold us harmless against all damages, costs and expenses arising from any violation, alleged violation, or failure to comply with above mentioned laws and regula-tions by customer or any person for whom cus-tomer may be responsible.
We fully comply with the applicable regulations in the field of data privacy. The customer is aware of and agrees with the automated transfer, use, storage and evaluation of personal data in the course of the contractually agreed purpose.
If required for reasons concerning data privacy rights, the customer will upon our request sign an appropriate, written declaration of consent for the organizational and technical protective measures under the terms of the applicable data privacy laws. At any rate, we shall only use the transferred personal data in order to fulfill our contractual obligations as well as anonymously for evaluations and quality assurance measures.
Events that are beyond our reasonable control in-cluding but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regula-tion or direction, difficulties in obtaining authori-zations, in particular import and export licenses, accident, breakdown of plant or machinery, en-ergy shortage, fire, flood, storm or default of sup-pliers or subcontractors that prevent delivery of the Goods or Services at the agreed upon date (“Force Majeure”), extend the delivery deadlines for the duration of the Force Majeure and its im-pact. The customer will be notified of this delay in delivery.
After having notified the customer of the reason for the delay, we may at any time withdraw from the contract.
Should delivery be delayed for at least 3 months past the original delivery date and the customer can in good faith not be expected to take delivery, the customer may withdraw from the contract.
The customer shall resell the Goods only together with the original documentation.
We and/or our licensor retain all proprietary and intellectual property rights to documents, draw-ings, models, cost estimates, electronical data, and similar items (“Documents”) we provide the customer in connection with the delivery of Goods or Services. These Documents must not be made available to third parties unless such permission is evident based on the particular purpose of the contract between us and the customer.
We may only accept returned Goods if our decon-tamination instructions are strictly complied with. In default of such compliance we reserve the right to resend the Goods at the customer’s ex-pense.
Should individual provisions of these GTC be com-pletely or partially invalid, the remaining condi-tions remain valid.
The place of fulfillment for deliveries is our dis-tributing warehouse, for payments the place of business of the contracting Endress+Hauser com-pany.
Swiss law applies. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
Exclusive place of jurisdiction is the registered place of business of the contracting En-dress+Hauser company. However, we reserve the right to sue at the customer’s place of busi-ness.
2 These terms and conditions are not applicable to any transactions between affiliated companies of the Endress+Hauser Group.
GENERAL CONDITIONS FOR THE LICENSING OF SOFTWARE
SUPPLEMENT TO AND MODIFICATION OF THE “GENERAL TERMS AND CONDITIONS OF DELIVERY AND SERVICES OF ENDRESS+HAUSER COMPANIES IN SWITZERLAND” (“GTC”)
1.1 These General Conditions for the Licensing of Software (hereinafter “Conditions”)supplement our General Terms and Conditions of Delivery and Services (hereinafter “GTC”) for the purpose of licensing software (hereinafter “Software”) for a definite or indefinite period of time, provided as a single item or as part of Endress+Hauser devices (hereinafter “Hard-ware”).
1.2 To the extent that Software to which we possess only a derived right of use (external software) is licensed to the customer, the rights of use agreed upon between us and our licensor are additionally valid and – if it is to our advantage – have priority over the rights of use in these Conditions. Should we provide the customer with open source software, the rights applying to such software are additionally valid and – if it is to our advantage – have priority over the rights of use in these Conditions. The customer will be informed about those rights of use applying to the external or open source software, or such divergent rights of use will be published on-line.
1.3 For the purpose of these Conditions, firmware shall not be considered as “Software”.
1.4 Insofar as these Conditions contain no provision, the GTC apply.
1.5 These Conditions do not compel us to update or maintain the Software. These services require a separate agreement.
2.1. We will deliver one copy of the Software as binary code on a data carrier or on-line to the customer.
2.2 A separate written agreement is required for the provision of documentation. Should documentation also be provided, the term “Software” in these Conditions also includes the documentation. In those cases in which we supply the Software on a data carrier, we still have the right to provide only an on-line version of the documentation.
2.3 The customer must install the Software himself, test that the Software functions correctly, and inform us without delay of any defects found.
2.4 Should a license key be necessary to use the Software, it will be supplied to the customer in binary form. The license key is specific to the customer and may be used for the purpose of using the licensed Software solely by the customer. Transfer of the license key to third parties is allowed only under the conditions specified in Clause 3.5.
3.1 The customer is granted the simple, non-exclusive right to use the Software (“single-user license”). In particular, but not exclusively, this right of use includes neither copyrights (e.g., copying, distribution, modification and adaptation) nor the right to transfer the right of use, nor the right to grant sublicenses, except for divergent provisions in these Conditions or a separate agreement between us and the customer. The right of use is limited to the period of time agreed upon in the principal contract. Should there be no such provision in the principal contract, there is no time limit on the right of use.
3.2 The customer may use the software only with the Hardware specified in the contract documents; should no Hardware be mentioned in the contract documents, only with the Hardware delivered with and belonging to the Software. Use of the Software with another device requires our explicit written consent. In case the Software is used with a device more powerful than the one with which the Software was delivered we are entitled to appropriate additional recompense. This condition does not apply to those cases in which, and for the time during which, the customer, because of a defect in the original device, temporarily uses the Software on a replacement device to the extent agreed upon. The proof of defect rests with the customer.
3.3 Unless the customer has obtained a Multiple-User License in accordance with Clause 3.6, the customer may use the licensed Software only on one computer or device at one time for each license obtained, even if more than one device is mentioned in the contract documents (“single-user license”). Should a device provide more than one work station at which the Software can be used independently, a single-Release of December 2012 © Endress+Hauser user license covers the use at only one work station.
3.4 The customer may copy the Software only once and exclusively for archival purposes (“backup copy”). Otherwise, the customer may copy the Software only for use with a Multiple-User License according to Clause 3.6. Transfer, rental, or leasing of the Software to third parties is not permitted, except for Clause 3.5.1.
3.5 Should the rights of use be granted for an unlimited time period, the following conditions apply:
3.5.1 In the event of an important reason the customer is granted the revocable right to transfer his rights of use to a third party under the following conditions: The Software may not be resold for commercial purposes. However, the customer may transfer the rights of use of the Software to a third party only together with the device that was purchased from us together with the Software (“Bundle”). Should the rights of use be transferred to a third party, the customer must ensure that the third party is not granted rights of use more extensive than those granted to the customer in this contract, and ensure that the third party must fulfill at least the obligations concerning the Software in the existing contract. Should the rights of use be transferred to a third party, the customer may retain no copies (including backup copies) of the Software.
3.5.2 The customer must not grant sublicenses.
3.5.3 Should the customer transfer the Softwareto a third party according to Clause 3.5.1, the customer is responsible for the observation of any applicable export regulations and must indemnify us from obligations in this regard.
3.6. In order to use the Software on more than one device or at more than one work station simultaneously, the customer must always have a separately-agreed-upon right to use. Even though no copying of the Software occurs , the same condition applies to the use of the Software in networks. In the previously mentioned cases (hereinafter referred to as “Multiple-User License(s)”), the provisions in Clauses 3.6.1 and 3.6.2 apply additionally and have priority over those in Clauses 3.1 to 3.5.
3.6.1 Our express written confirmation of the number of copies the customer may make of the licensed Software and of the number of the devices upon, and/or work stations at, which the Software may be used is required for a Multiple- User License. For Multiple-User Licenses, Clause
3.5.1 Sentence 2 is valid.
3.6.2 The customer must observe the conditions concerning copying the Software that we send him with the Multiple-User License. The customer must keep written records concerning the location of all copies and show them to us upon request.
3.7. Should the customer be provided with Software that can be used independently of any particular Hardware or device, e.g., on a computer or a personal computer, (hereinafter “standalone Software”), the provisions in Clauses 3.7.1 and 3.7.2 apply additionally and have priority over those in Clauses 3.1 to 3.6.
3.7.1 Clause 3.2 does not apply.
3.7.2. Clause 3.5.1, Sentence 2 does not apply to standalone Software.
Clause 6. of the GTC is supplemented as follows:
When Software is transferred via electronic means of communication, the customer assumes risk as soon as the Software leaves our sphere of influence (e.g., when downloading).
Should we offer an “evaluation” license the following provisions apply:
5.1. An evaluation license always requires an express written agreement.
5.2 The customer obtains a simple, non-exclusive right to test the goods (Hardware and Software) free of charge for the agreed-upon period of time; without an express agreement, for 90 days from the date of delivery. Within this period of time the customer may test the Software for functional capability before making a decision about purchasing the Software. The functional capability of the evaluation version of the Software can be limited when compared to that of the full version. Clause 3.4 shall apply accordingly.
5.3. The customer uses the Software solely at his own risk. During the evaluation period, we assume no warranty, neither for material defects nor for defects in title and are – as far as legally possible – not liable for possible damages.
5.4. After the evaluation period has expired, the right of use expires automatically. The Software may no longer be used without a license key. Installed Software must be completely deleted. The customer may not keep any copies (including back-up copies) of the Software.
5.5. In order to continue to use the Software after the evaluation period has expired, the customer must legally purchase it. He will then be provided with a license key specific for his Release of December 2012 © Endress+Hauser installation in binary form. With this license key, the Software can be activated as agreed upon in the license obtained. With the delivery of this key, the customer assumes risk. With the assumption of risk, Clauses 6. and 7. apply.
6.1. Clauses 9. and 10. of the GTC are supplemented as follows:
6.1.1 The statutory period of limitation for claims due to material defects is 12 months. The period of limitation begins at the time the customer assumes risk.
6.1.2 Defects are only those deviations from specification that are reproducible and are proven by the customer. Problems due to the customer’s hard- and software environment, improper operation, faulty data from external sources, disturbances in computer networks, or other causes arising from the customer’s area of responsibility are not defects.
6.1.3. Notice of defects must be given without delay and in writing. E-mail or fax also fulfill this requirement. The customer must describe the defect and the corresponding data processing environment as exactly as possible.
6.1.4 In particular, should the customer, without our permission, change the Software himself or have a third party change the Software for him, claims due to defects do not exist unless the customer can prove that the defect was not caused by this change. Unless we have expressly assured so in writing, we assume no liability for the compatibility of the licensed Software with the customer’s data processing environment.
6.1.5 Should the Software contain a defect, we have the choices of, within a reasonable period of time, delivering replacement software, correcting the defect, or making available a workaround providing equivalent functional capability.
6.1.6 Should rectification be unsuccessful before a reasonable deadline set by the customer expires, the customer may, without endangering any claims for damages, after a second reasonable deadline has expired without remedy, withdraw from the contract in its entirety or reduce the remuneration. The right to rescind the contract does not apply when the defect is minor.
7.1 To the extent of our knowledge, the Software violates no third party intellectual property rights. However, we assume no liability for the Software being free of third party industrial property rights or copyrights (hereinafter “intellectual property rights”). Should the use of the Software violate third party intellectual property rights, we have the choice between, to the extent that the customer can be reasonably expected to accept such measures, changing the Software so that it no longer violates these intellectual property rights, or of obtaining permission for the customer to use the Software according to these Conditions without restrictions and without further expense.
7.2. Notices concerning ownership of intellectual property or other rights on the data carrier, in the Software, or in the documentation may not be removed.
The customer must take reasonable precautions against the partial or complete malfunction of the Software. Before the customer uses the Software operationally, he must thoroughly test the suitability of the Software for the purpose for which he intends to use it. In addition, he must save his data on appropriate data carriers according to the current state of the art. He must ensure that current data can be restored with acceptable effort from data stored in machine-readable form.
2 These terms and conditions are not applicable to any transactions between affiliated companies of the Endress+Hauser Group.