Terms and Conditions for Software Delivery, Leasing and Maintenance

I.   Validity of these Terms and Conditions

  1. Our services, deliveries and offers are directed exclusively at entrepreneurs as defined in § 14 of the German Civil Code (§ 14 BGB) and are based exclusively on these terms and conditions. They thus apply to all future services as well, even if they are not expressly agreed again. Other conditions shall apply, even if we have not objected to them, only insofar as they conform to these terms and conditions.
  2. Collateral agreements must be in writing.

II.   Offer and Conclusion of Contract

  1. All offers are subject to confirmation and are non-binding.
  2. Contracts are entered into only through the written confirmation of an order or with the beginning of the execution of the order.
  3. Unless explicitly agreed otherwise, prices do not include shipping costs and the legally applicable value added tax.

III.   Software Maintenance

  1. We shall provide, for the duration of the software maintenance agreement, the following services for the latest respective versions of the software products covered under this agreement:
    • Further and ongoing development of program functions, program execution and program presentation, insofar as this is deemed necessary in our opinion.
    • Provision of monitoring data and the latest version of the program. These may also be offered for download. The download costs shall be borne by you.
    • If the new version of the program is not available in the language of your previous version, we shall be entitled to also fulfill our obligations by making the new version of the program available to you in German or English instead.
    • Phone support (at the normal telephone rates) – or email support. Support services are provided by us in German or English only. We shall be entitled to provide our services through third parties.
  2. The correction of defects shall occur upon delivery of a new program version. If the characteristics of the software in the latest version of the program should deviate substantially from the specifications, a defect shall be deemed to be present.

For software packages extended through interfaces intended for this purpose in accordance with our release notes, the maintenance shall apply up to each respective interface. For software products that have been modified beyond the scope referred to in Section 1, the maintenance is excluded.

  1. Defects can be eliminated only if (a) they are reproducible and occur in the latest respective program version provided to you; (b) we receive all the documents and information needed for the removal of defects from you; (c) you are running and using the latest program version and program documentation offered, and your hardware configuration and/or system software are technically up-to-date and correspond to the current state of technology.
  2. We shall be entitled to commission third parties with the provision of contractual services.
  3. If you are in arrears with the payment of a previous delivery or service, we shall be entitled to withhold or discontinue services without any obligation to compensate you for any resulting damages.
  4. The minimum contract period is 24 months from the start of the contract. It shall be extended automatically thereafter for additional periods of 12 months, provided neither Party cancels the agreement in writing with an advance notice period of 3 months prior to expiration. The right to termination for good cause remains unaffected for both parties. In particular, we reserve the right to terminate the agreement without notice if payments are overdue by more than two months or if you do not make the adaptations to your hardware configuration and/or system software that may be required due to the introduction of a new program version. In the event of a failure to pay our invoice, your account will be handed over to our collection agency. Please be aware that this will result in significant additional costs for you.

IV.  Software Lease

  1. To the extent that we offer you certain services (e.g., specific software products) on the basis of a software lease agreement, the terms of the present agreement (especially Section III) shall apply accordingly, unless regulated otherwise in Section IV of this agreement. This applies, in particular, to the leasing of interfaces (e.g., the WSCAD Automation Interface) to extend the WSCAD basic software (e.g., the WSCAD Suite) with additional functions (hereinafter referred to as “modules”).
  2. The minimum contract period is 24 months from the start of the software lease agreement. It shall be extended automatically thereafter for additional periods of 12 months, provided neither Party cancels the software lease agreement in writing with an advance notice period of 3 months prior to expiration. The right to termination for good cause remains unaffected for both parties. In particular, we reserve the right to terminate the agreement without notice if payments are overdue by more than two months or if you do not make the adaptations to your hardware configuration and/or system software that may be required due to the introduction of a new version. A withdrawal from the software lease agreement is not possible.
  3. The software lease fee must be paid in advance on the 20th of each respective previous month for the following calendar month. The software lease fee for the first month must be paid at the start of the agreement. For those who wish to participate in the direct debit scheme, we will debit the software lease fee from your account. To do this, you will need to give us a SEPA mandate. This shall cover all services according to IV. Any further services required due to improper handling, errors in operation or other circumstances beyond our control shall not be deemed covered by this compensation, but shall be charged additionally based on time and effort.
  4. The uninterrupted payment of the software lease fee until the respective time of utilization is a prerequisite for using the services under this Section IV. In the event of non-payment or a late payment of the software lease fees (e.g., the reversal of a SEPA direct debit), we will hand over the claims in question (including any costs, such as fees for chargebacks) to our collection agency. Please be aware that this will result in significant additional costs for you. If you are in arrears with the payment, we shall be additionally entitled to withhold or discontinue services without any obligation to compensate you for any resulting damages.
  5. If you switch to a higher level of any service under this Section IV during the term of the agreement, the remuneration for the software lease shall be adjusted accordingly.
  6. Charges may only be offset against undisputed or legally valid claims.
  7. Leased services (especially modules) can and may only be used during the term of an existing software lease agreement. We grant you, to the extent that this is paid for, the non-exclusive and temporary right to use the respective leased services in the current version for the duration of the software lease agreement. All rights of use not expressly granted remain with the copyright owner. If you have installed any leased services (especially modules) locally on your system, you will need to delete them without leaving any residue upon termination of the software lease agreement. If you are using these services (especially modules) online on our server, we will block your access to these services upon termination of the software lease agreement.

 

Upon a corresponding request on our part, you shall be obliged to return to us any objects (such as disks, dongles, etc.) that were ceded to you as part of the software lease agreement.

  1. In order to use modules, a valid license of the WSCAD basic software with a current software maintenance contract is always required. Upon completion of the software maintenance agreement for the WSCAD basic software, any software lease agreements for the associated modules shall also terminate automatically.
  2. For services under this Section IV, we explicitly disclaim strict liability on our part for initial defects. Otherwise, we will keep these services in working order, maintain them and provide you with appropriate service packs and updates to download during the term of the agreement. We are responsible for ensuring that the services under this Section IV exhibit the features specified in the product description during the term of the agreement. We agree to investigate any problems of the software reported by you and to provide you with instructions to eliminate these problems where possible. For substantive errors of the software, we agree to eliminate the error in one of the following new program releases, insofar as a remedy is possible under the rules in Section III.3. Debugging and troubleshooting requires your participation to a reasonable extent, as and when requested by us. The elimination of faults and damage caused by improper handling on your part, actions of third parties or force majeure is not included in the services covered by the software lease agreement. No further warranty against defects can be offered beyond this time period. In particular, we do not guarantee that the software will meet your requirements and purposes or that it will work together with any other programs and system components you have selected.
  3. As part of the product development, we may provide you with new features as part of the leased services. You shall, however, not be entitled to any claim for specific extensions or additions to the services under this Section IV.

V.   Delivery and Performance Period, Transfer of Risk

  1. If agreed delivery dates are exceeded by more than three weeks, you shall be entitled, for purchased goods, to withdraw from the agreement after a reasonable extension period. Compensation for damages is excluded, unless we have caused the delay intentionally or through gross negligence.
  2. The passing of risk occurs when the goods are handed over to the forwarding agent or freight carrier, but no later than the time they leave the warehouse or factory. This applies even if freight-free delivery has been agreed. All shipments in transit – including any returns – travel at the risk of the purchaser.
  3. In the case of an incorrect order or if you return the goods, we reserve the right to invoice you for a cost-sharing contribution in the amount of 5% per item or at least EUR 75 net.

VI.   Terms of Payment

  1. Deliveries are made against cash on delivery or upon prepayment. In special cases, deliveries may be made upon invoice. All invoices are payable immediately without deduction.
  2. The charges for the software maintenance contract shall be invoiced and be due in advance at the beginning of the specified period or on the specified date. This shall cover all services according to III. Any further services required due to improper handling, errors in operation or other circumstances beyond our control shall not be deemed covered by this compensation, but shall be charged additionally based on time and effort.
  3. We shall be entitled to adjust the amount of the annual maintenance charges. In the event of an increase of more than 5%, you may terminate the software maintenance agreement within 4 weeks after notifying us in writing.
  4. Should you switch to a higher expansion level during the term of the agreement, the charges for the maintenance contract shall be adjusted accordingly.
  5. Charges may only be offset against undisputed or legally valid claims.

VII.    Retention of Title

  1. The purchased goods shall remain our property until the fulfillment of all our claims. Until then, the goods may not be pledged or assigned under a security agreement, and a resale is permitted only by resellers in the ordinary course of business on condition that the reseller, in turn, sells the goods subject to retention of title and already assigns the claim to the purchase price to us.
  2. You shall be entitled to collect the assigned purchase price claims within the normal course of business. The collection authorization may be revoked at any time if you do not properly meet your payment obligations.

VIII.    Warranty

  1. For material and manufacturing defects related to purchased goods, we shall provide a free replacement for up to 12 months from the date of delivery.
  2. No further warranty against defects can be offered beyond this time period. In particular, we do not guarantee that the software will meet your requirements and purposes or that it will work together with any other programs and system components you have selected.
  3. You shall be obliged to notify us in writing about obvious defects in the purchased goods without delay, and no later than within 14 days after receipt of the goods. Otherwise, the goods shall be deemed approved. In the case of a justified complaint, we will take back the defective purchased goods and deliver a replacement instead. Alternatively, we shall also be entitled to remedy the defects.
  4. If we fail to comply with our obligation to deliver a replacement or if the remedial action taken fails even after a set grace period, you shall be entitled, for purchased goods, to withdraw from the contract or to claim a reduction in the price (lowered charges).

IX.   Liability

For damages resulting from injury to life, limb or health, we shall be liable according to the statutory provisions. For other damages, we shall only be liable (subject to the next sentence) for intent and gross negligence. For other damages resulting from the breach of any crucial obligation whose fulfillment is essential to the proper performance of the contract, and on whose compliance you may regularly rely on, we shall also be liable for simple negligence, but this liability shall be limited to the foreseeable damages at the time of the infringement. The above provisions also apply to breaches of obligations by our vicarious agents. Liability under the Product Liability Act remains unaffected by the aforementioned provisions.

You are contractually bound to use the software updates provided by us within the framework of the software maintenance and/or leasing agreement and to back up your data before installing the software and regularly thereafter, especially before you make any changes to the hardware or software environment. Insofar as you are responsible for contributory negligence through the breach of contractual obligations or changes made to the software by you or third parties or for the improper use or incorrect operation of the product, we shall not be deemed liable.

We assume no liability for the selection, installation and use, as well as the intended results of the software. Additional expenses in processing resulting from the fact that the subject of the contract was transferred to a location other than the place of delivery shall be borne by you.

X.     Software Use, Copy Protection

  1. On purchasing software, you will be granted a simple, non-exclusive right of use with the purchase of the software. You are permitted to make copies of the software for backup purposes only. The reproduction of manuals and seminar materials, even in part, is not allowed without our written permission.
  2. The use of the software for commercial training and education requires our written permission.
  3. With the purchase of a license, you acknowledge and fully accept the usage of copy protection and waive all claims aimed at eliminating this copy protection. We would like to point out that any attempt to use a full version of WSCAD without copy protection is illegal. The software must be activated online.
  4. If the license is bound to a dongle (hardware protection device), your license to use the software will fully expire if you lose the dongle. We basically do not replace lost dongles. If the dongle is damaged, we will replace this at your expense, provided you return it to us in its entirety together with the chip, storage chip, circuit board, as well as the upper and lower cover plates with the seals intact.

XI.     Export

  1. You are responsible for compliance with all the legal provisions up to the end user, if applicable.
  2. If shipments are exported as ordered by you without any customs duty, you shall be liable to us for any subsequent claims by the customs administration.

XII.     Applicable Law, Severability

  1. These terms and conditions and the entire legal relationship between you and us shall be governed exclusively by the laws of the Federal Republic of Germany, excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  2. Should one or more provisions in these terms and conditions or any provision within the framework of other agreements be rendered or deemed invalid, this shall not affect the validity of all the remaining provisions. The invalid provision shall then be replaced in this case by a valid provision that reflects the parties’ original intentions as closely as possible.

XIII.      Jurisdiction

  1. The place of performance for all obligations arising from this contract shall be 85232 Bergkirchen, Germany.
  2. The exclusive place of jurisdiction shall be Munich if you are a businessman or have no general place of jurisdiction in the Federal Republic of Germany. We do, however, reserve the right to institute legal proceedings through courts in your jurisdiction as well.

Terms and Conditions for Services and the Performance of Work (esp. Digitization, Seminars)

1. Conclusion of the Contract, Scope of Services

The precise scope of the services and work to be performed shall be specified by WSCAD electronic GmbH (hereinafter “WSCAD”) in their respective offers. All offers are subject to confirmation and are non-binding. A contract enters into force only through a written confirmation by WSCAD or by the execution of an order by WSCAD. Changes in the scope of services (so-called change requests) are only possible in writing, by mutual agreement, and with an appropriate adjustment of the remuneration. In addition, the following applies to the scope of digitization services:

1.1 Digitization involves the conversion of existing plans (schematics or construction plans) on a page by page basis to a WSCAD data format or some other external format in agreement with the customer. The primary objective here is to create plans which are functional and effective with WSCAD and which can then be processed further. This may require deviations from a 1:1 representation in some cases and is not a deficiency in the processing.

1.2 Only those values, texts and information that are visibly entered in the plans are transferred. This is especially true for the automatically generated lists (e.g., material list), whose details are determined from the schematics. The conversion always occurs using the “Professional” version of WSCAD that was current at the time of placing the order or by using the current version of the target system agreed with the client.

1.3 Any functionality that extends beyond this defined scope of services (e.g., creation of terminal charts, material lists, etc.) or which involves a different output format are not included in the scope of digitization, but can be ordered separately.

1.4 The converted files are delivered in WSCAD format on CD or via e-mail or provided as a download on our server. If the supply of output lists (e.g., terminal charts, material lists) has been agreed upon, these shall be created using forms from the WSCAD standard package, unless the use of custom forms has been expressly commissioned.

1.5 The scope of the digitization expressly excludes any engineering and planning services! Within the context of digitization, the planning documents provided by the client are transferred to the target system only to the extent that they are available in the provided templates or can be read from these templates. WSCAD does not check the logical correctness of the planning documents of the client in the context of digitization. The client is solely responsible for the accuracy and completeness of the planning documents.

2. Cooperation Obligations of the Client and Indemnification against Third-Party Claims

2.1 The purchaser shall be obliged to fulfill all cooperation obligations required for the provision of the service. In particular, the purchaser shall provide WSCAD with free of charge access to their computer systems (including any software on it) to the extent necessary and shall designate a contact person who can quickly procure the required information and make decisions.

2.2 To the extent that the purchaser provides any material required for the provision of the contractual services, they shall guarantee to WSCAD that they are entitled to do so and that no third-party rights are infringed as a result. Should any third-party claims be nonetheless asserted, the parties shall notify each other. The purchaser undertakes to indemnify WSCAD from and against any resulting disadvantages (including any legal and court costs involved).

2.3 In addition, the following applies to the obligation to cooperate in the context of digitization:

Before any offer is created, all plans to be digitized must be provided by the client in digital form (pdf, dwg). This also includes, in particular, any custom drawing frames or forms. Only the actually supplied plans are covered by the offer. The plans are treated confidentially and, if an order is placed, archived by WSCAD until the expiry of the warranty period. After the deadline or if no order is placed, the plans will be destroyed or returned upon request.

 

3. Delivery Dates, Transfer Rights

3.1 Delivery dates and deadlines are non-binding, unless designated as such explicitly and in writing by WSCAD. Should any circumstances that could affect the processing time become known during the performance of the contract, the purchaser shall be notified without delay. Any agreed delivery date will be postponed accordingly in such cases. The same applies to delays arising from a breach of the obligation to cooperate by the purchaser. Claims for damages on exceeding the delivery period are excluded.

3.2 To the extent that the contractual services are protected by intellectual property rights, the purchaser shall be granted – unless expressly stated otherwise in the offer – only a simple, non-transferable right of use which, however, shall be subject to the condition precedent that all claims of WSCAD arising from this contractual relationship have been fully satisfied. Furthermore, all copyrights and/or rights of ownership relating to the contractual services shall remain with WSCAD, unless specified otherwise in other provisions.

 

4. Acceptance of Services, Prices and Payment for Services and the Performance of Work, Set-off

4.1 For work performed, the purchaser shall be obliged to formally accept the completed work. The work shall be deemed accepted if the purchaser does not complain in writing that the work is deficient or represents a breach of contract within 14 days after the delivery. The remedy may be denied as long as the purchaser has not fulfilled their payment obligations for the non-deficient part of the performance.

4.2 The agreed price for the performance of work shall be due upon expiration of the aforementioned acceptance period as a net amount, including the statutory value-added tax, and without any deductions. Invoices for services shall be due within 14 days after the invoice as a net amount, including the statutory value-added tax, and without any deductions.

4.3 Unless stipulated otherwise in the purchase offer, all services are billed on a time basis. The daily rate includes 8 hours of service. Any time beyond this period is charged on an hourly basis at 1/8-th of the daily rate. In so far as a contingent of service days (service package) has been agreed in advance, it shall be initially billed on a time basis, and shall be charged in full no later than 90 days after the agreement of the service package – unless stipulated otherwise in the offer. The open quota from the contingent can then be claimed in accordance with these terms and conditions. Travel expenses (e.g., transportation fares and accommodation costs, catering costs and other allowances) are charged at actual cost, and travel times are calculated at 1/2 the hourly rate. The prices for services are determined by the currently valid price list of WSCAD.

4.4 The performance of work is charged on a time and materials basis, unless stipulated otherwise in the offer. The foregoing paragraph shall apply mutatis mutandis. The prices for work performed are determined by the currently valid price list of WSCAD.

4.5 If an estimate of the charges for the performance of work or services is included in an offer, the estimate shall always be deemed non-binding.

 

5. WSCAD Warranty for Work Performed, Liability of WSCAD for Work and Services, Statute of Limitations for Claims of the Purchaser

5.1 WSCAD provides no warranties for services. For work performed, WSCAD provides a warranty period 12 months after acceptance. Defects and/or deficiencies must be reported and documented by the client in writing. WSCAD will rectify these defects and/or deficiencies in the context of a cure within a reasonable time period. Should even a second attempt at a cure fail, the client shall be entitled to reduce the price of the service or withdraw from the contract. As a prerequisite, the defect involved must be a serious defect. Claims for damages are excluded, however, unless a defect has been fraudulently concealed or a warranty has not been complied with. If it turns out that WSCAD has provided services for troubleshooting/repairs without being obligated to do this (for example, because the client cannot prove the defect or attribute it to WSCAD), the purchaser shall reimburse WSCAD for the expenses incurred at the currently valid rates for services or the performance of work.

5.2 For damages resulting from injury to life, limb or health, WSCAD shall be liable according to the statutory provisions. For other damages, WSCAD shall only be liable (subject to the next sentence) for intent and gross negligence. For other damages resulting from the breach of any crucial obligation whose fulfillment is essential to the proper performance of the contract, and on whose compliance the purchaser may regularly rely on, WSCAD shall also be liable for simple negligence, but this liability shall be limited to the foreseeable damages at the time of the infringement. The above provisions also apply to breaches of duty by vicarious agents of WSCAD. Liability under the Product Liability Act and liability for damages resulting from the breach of warranties remain unaffected by the foregoing provisions.

5.3 The purchaser is obliged to use the provided updates, patches and/or service packs for the software and to back up their data before installing the software and periodically thereafter, especially before making any changes to the hardware or software environment. Insofar as the purchaser is guilty of contributory negligence through the breach of contractual or legal obligations or through any changes to the software and/or the subject of the contract or the improper handling or incorrect operation of the software and/or subject of the contract by the purchaser or a third party, WSCAD shall not be deemed liable. WSCAD assumes no responsibility for the selection, installation and use, as well as the intended results of the software and/or the subject of the contract.

5.4 Furthermore, the following applies to digitization:

The client is personally responsible for the acceptance of the planning documents digitized by WSCAD. The planning, design or conversion of a plant based on digitization created by WSCAD is explicitly prohibited until the client has formally checked the digitization for errors and completed the approval and acceptance process.

5.5 Contingents from service packages shall become statute-barred within one year from the date of the agreement of the service package. Any other claims of the purchaser resulting from these Terms and Conditions shall become statute-barred within one year after the provision of the service or acceptance of the work.

 

6. Special Conditions for Standard Training Services of WSCAD (Seminars)

6.1 The fees for a seminar shall be charged to the purchaser about 4 weeks prior to the start of the seminar and shall be due, including the statutory value added tax (MwSt), within 14 days after receipt of the invoice. The seminar fees must be paid before the start of the seminar; otherwise, WSCAD reserves the right to prohibit the participation of the customer in the seminar. Lunch (Mon-Fri), refreshments and seminar handouts are included in the seminar fees.

6.2 Schedule changes, changes in registrations and cancellations must be communicated to WSCAD by the purchaser in writing or via an email to gbs@wscad.com.

6.3 Schedule changes notified up to 14 days before the start of the seminar shall be implemented free of charge. For schedule changes notified at a later date, a processing fee of €100.00 net shall be due and shall be charged to the purchaser by WSCAD in addition to the seminar fees.

6.4 A change in registration, i.e., replacing a registered participant by another person, is free of charge.

6.5 In the case of a cancellation of the seminar by the purchaser – except in the case of termination pursuant to §626 of the German Civil Code (BGB) – the seminar fees shall be calculated as follows:

–               For cancellations up to 14 days prior to the seminar date: 15% of the seminar price

–               For cancellations up to 7 days prior to the seminar date: 20% of the seminar price

–               For cancellations up to 1 day prior to the seminar date: 30% of the seminar price

–               For cancellations on the starting date of the seminar or failure to attend (no-show): 100% of the seminar price

6.6 Should the seminar event be canceled by WSCAD for a compelling reason (e.g., illness of faculty staff, insufficient number of participants, force majeure), this shall be deemed a notice of termination pursuant to §626 Section 2 of the German Civil Code (BGB). In case of such cancellation, the purchaser shall have no claims on the implementation of the seminar date. WSCAD shall, however, refund the already paid participation fees to the purchaser.

6.7 For damage caused as a result of cancellation by WSCAD (e.g., travel and accommodation costs or loss of work), WSCAD shall be liable only pursuant to the above Section 5.2.

6.8 The seminar documents provided by WSCAD are copyright protected and may not be reproduced, copied or distributed without written consent.

 

7. Vicarious Agents of WSCAD

WSCAD shall be entitled to perform any owed work or services through subcontractors or other vicarious agents.

 

8. Set-off / Assignment by the Purchaser

8.1 The purchaser shall be entitled to set-off of debts only with undisputed or legally established counterclaims.

8.2 Without the express permission of WSCAD, the purchaser is not entitled to assign or transfer any rights and obligations under this contract.

 

9. Validity of these Terms and Conditions

In addition, our Terms and Conditions for Software Delivery and Maintenance apply. The present terms and conditions shall take precedence over the general terms and conditions for software delivery and maintenance within the context of the provision of services and work. Other conditions of the purchaser shall apply, even if not explicitly objected to, only insofar as they conform to these terms and conditions. Collateral agreements are only effective if they are confirmed in writing.

 

10. Final Provisions

10.1 The invalidity or ineffectiveness of individual provisions of these Terms and Conditions shall not affect the validity of any of the remaining provisions. In such cases, both parties shall strive to replace the invalid provision by some other valid provision that most closely reflects the original economic and legal intent of the replaced provision.

10.2 Insofar as these terms and conditions do not include any provisions to the contrary, the general legal provisions of the substantive law of the Federal Republic of Germany to the exclusion of the CISG (United Nations Convention on Contracts for International Sale of Goods) shall apply.

10.3 The place of fulfillment is Bergkirchen. The place of jurisdiction for any disputes arising from or in connection with these Terms and Conditions shall be Munich if the client is a merchant or has no general jurisdiction in the territory of the Federal Republic of Germany or is a legal person under public law. WSCAD reserves the right to institute legal proceedings through courts in any other prescribed place of jurisdiction.

 

 

WSCAD GmbH

Company headquarters
Dieselstraße 4
85232 Bergkirchen
Germany
Fon: +49 (0) 8131 / 3627 – 0
Fax: +49 (0) 8131 / 3627 – 50
Amtsgericht München, HRB 90263
UST.-ID.-Nr.: DE 128 251 316
Managing Director: Dr. Axel Zein, Martin Buhl
E-Mail: info@wscad.com Internet: http://www.wscad.com