GENERAL TERMS AND CONDITIONS

1. General
These Terms and Conditions shall apply to all deliveries and services including future deliveries and services. Any deviating provisions and amendments, in particular purchaser's contradicting Terms and Conditions, shall be excluded unless SEMA has agreed to them in writing.

2. Prices
Our prices shall include neither shipping and transport insurance costs, statutory VAT nor, for foreign business transactions, customs duties or applicable taxes.

3. Delivery Time, Delivery Processing
Any delivery dates and/or deadline shall be subject to change without notice unless we have confirmed them in writing in each individual case. Otherwise purchaser shall not be entitled to any claims in the event of delayed delivery.

Purchaser is obligated to accept the merchandise by the agreed-upon delivery deadline, or within a reasonable period of time. If purchaser should be in default in taking delivery, SEMA shall be entitled to withdraw from the contract, and to claim indemnification for any costs incurred (for example, expenses, freight charges, damage, wear and tear and/or depreciation).
In the event of force majeure, SEMA shall be entitled either to postpone their services for the duration of the disturbance or to withdraw, in whole or in part, from the contract.
Events of force majeure shall be deemed to be in particular strikes, lock-outs and/or other unforeseeable disturbances. As soon as we have knowledge about the repercussions of such an event, we shall inform purchaser thereof and either declare our intention to withdraw from the contract or else inform purchaser of the new deadline by which we expect to be able to deliver the merchandise. This shall in particular apply to the receipt of goods delivered to SEMA which SEMA requires for the performance of its obligations hereunder.
We reserve the right to make partial deliveries of any deliveries agreed upon and undertake to make subsequent deliveries within a reasonable period of time. The purchaser shall be billed only for that which they have received.

4. Transfer of Risk, Liability
The risk shall pass to purchaser as soon as the merchandise has left our premises or as soon as we have delivered the merchandise. In the event of return, purchaser shall bear the risk as well as any costs that may thereby be incurred. Purchaser shall be liable to SEMA for the entire merchandise delivered to purchaser until full payment has been made. Any damage, wear and tear and/or depreciation shall be at the purchaser's expense.

5. Payment
Our invoices shall be due and payable net without deductions upon mutual agreement, but in no event later than 30 days. Should our payment terms be exceeded, we shall be entitled without notice to claim interest on overdue accounts in the amount of 5% above the then applicable discount rate.

6. Warranty
In the event of defective goods a complaint must be filed by purchaser within one week or, in the case of hidden defects, within six months from receipt of the merchandise. If a complaint is filed in due time and if such complaint is justified, we shall, at our choice, either rectify the defect or deliver merchandise free of defect. In any event, the precondition therefor shall be compliance with the manufacturer's terms. For the rectification of defects the purchaser must send the merchandise in question to SEMA; any transport charges thus incurred shall be borne by purchaser. For equipment purchased from subcontractors, any warranty shall be limited to the producer's warranty terms.

Regarding software we do not warrant that such software is free from interruption and/or defect or that any functions incorporated therein may be operated in any and all combinations selected by purchaser or that those functions fulfill purchaser's requirements. In the event of software defects which would impair contractual use to any significant degree we shall rectify the defect, to the extent that we are capable of doing so, either by installing a different software version or by providing advice as to how the defect can be removed and/or its effects can be avoided, depending on the nature of such defect.
We do not warrant for software which was not delivered by us or for software which was changed by purchaser or third parties.
The purchaser agrees to grant SEMA the time and opportunity that is necessary, at SEMA's discretion, to remedy any potential defects. If purchaser fails to do so, we will be released from any warranty obligations.
In the event that no remedy can be provided for a defect attributable to SEMA either by rectifying the defect and/or delivering spare parts, purchaser may demand a reduction of the purchase price. Any claims in excess of the above shall be excluded.

7. Liability
Unless provided for in the above Terms and Conditions, all liability of SEMA, including liability for consequential or direct damage, shall be excluded.

8. Maintenance
Only the maintenance agreement offered by SEMA includes telephone support for our customers as well as continuous updates of the program, i.e. free delivery of the latest program version. Travel expenses, training and costs for new program parts shall not be included. The maintenance agreement shall apply only to software manufactured by SEMA. No maintenance service shall be carried out for software or hardware not manufactured by SEMA.

9. Collateral Agreements
Any promises, undertakings and agreements, including agreements by telephone, telegraph or teletype, which conflict with one or several provisions of the General Terms and Conditions or go beyond such General Terms and Conditions and any amendments, in particular amendments of payment terms, require SEMA's express written confirmation in order to become valid. This shall apply in particular to any and all oral collaterals. This shall also apply to any amendments to or exclusion of our General Terms and Conditions.

Purchaser's general purchasing terms and conditions shall not apply in so far as they conflict with SEMA's General Terms and Conditions which, in case of doubt, shall always prevail. Any unilateral amendments to the Terms and Conditions hereunder by the purchaser shall be inadmissible and not binding for SEMA.

10. Program Changes
Customer-specific program changes can be made only after written agreement and on the basis of written specifications signed by both parties. Any program changes at purchaser's request shall be billed separately.

11. Retention of Title, Return of Merchandise
SEMA retains title to any merchandise delivered until purchaser has settled any and all amounts payable. In the event that delivered merchandise to which we retain title has been joined and/or amalgamated with products not belonging to SEMA, SEMA will become co-owner of the resulting product. The resulting product shall be deemed to be subject to SEMA's retention of title.

The purchaser shall have no right to re-sell the delivered merchandise and/or the product resulting from joining/amalgamating to third parties.
In the event of merchandise being returned due to SEMA because of our retention of title to such merchandise, or of merchandise being returned for other reasons agreed upon, purchaser shall be liable for the risk and any costs arising from such return.

12. Copyright
It is not permitted to copy software or to pass it on to third parties and/or to make such software available to third parties in any other form. The licensee shall be made liable for any non-compliance. In such a case we shall demand from the licensee ten times the program's list price as compensation. Irrespective thereof, any reproduction of the delivered software shall be prosecuted.

13. Export Permits
The merchandise delivered by SEMA shall be subject to the export control regulations of the Federal Republic of Germany. In the event of non-compliance with the applicable export regulations the purchaser shall be liable when re-selling the merchandise.

14. Miscellaneous
Place of performance and venue shall be Kempten. The laws of the Federal Republic of Germany shall apply. If any provisions of the contract including these General Terms and Conditions should be or become null and void, invalid, voidable and/or should supplements be or become necessary, this shall not affect the validity of the other provisions. In this case such other provisions shall be construed, replaced and/or supplemented in a way to come as close as possible to the intended economic purpose by legally valid provisions.

     

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GTC SEMA GmbH | 129 KB
Last revised: January, 2016

 

 

 

Software End-User License Agreement (EULA)

General

All intellectual property rights to the “SEMA Experience” software (“Software”) are owned by SEMA GmbH (“SEMA”) and its suppliers. SEMA only permits you to copy, download, install and use the Software under the terms and conditions of this license (“License”). The Software can and must only be used in combination with a software protection key. The requirements for using the Software are documented in the SEMA product information (e.g. packaging, included documentation).

The terms and conditions for the use of SEMA’s Software / Hardware by you, the end user (herinafter “Licensee”) are set out hereinbelow. By installing the Software on your computer, you agree with the terms and conditions of this license agreement (“License Agreement”). Therefore, please read the following text carefully and completely. If you do not agree to the terms and conditions of this License, do not install the Software.

1. Definitions

  1. “Software“ comprises (I) software files and other computer information by SEMA and third parties, (II) accompanying written documentation (manual) and (III) all modified versions and copies provided by SEMA in the form of updates, upgrades, patches and enhancements, unless governed by a separate agreement.
  2. The Software and all authorized copies of this Software made by you are the intellectual property of SEMA and its suppliers. The structure, organization and code of the Software are valuable trade secrets of SEMA and its suppliers. The Software is legally protected, in particular by the copyright of the Federal Republic of Germany (“Urheberrecht”) and the copyright laws of other countries and international treaties.

2. Licensing

  1. SEMA grants you a non-exclusive license to use the Software in accordance with the terms and restrictions of this License Agreement. Hiring, lending or sub-licensing of the Software is prohibited.
  2. The Software may only be used on one computer at a time, using the protection key (except for server keys for a stipulated number of client licenses).
  3. Teachers/instructors and students of educational institutions can purchase a special software license for educational purposes which must not be used for commercial purposes. Software licensed for educational institutions may be installed on a server and any number of computer workstations within the institution as well as once for each teacher/instructor and student on his or her home computer for educational purposes of/for the institution. The granting of such a special license for teachers/instructors and students, the educational institution and the maximum number of permitted installations is indicated on the Software medium (CD/DVD) and/or the invoice provided as a supplement to this License Agreement. Please retain the media and documents as a proof of license.
  4. The licensed Software may not be used over a network (except under a special server license) where it could be used by multiple devices at the same time.
  5. You may create a backup copy of the Software provided it is made solely for archival purposes.
  6. Except as set out above, this License Agreement does not grant you any rights of use of the Software. All rights not expressly granted under this Agreement are reserved by SEMA and its suppliers.

3. Software Activation

  1. As a protection against unlawful copying, SEMA might use compulsory Software activation and compulsory use of a software protection key. Unless you agree to the terms and conditions of this License, the Software will not work.

4. Support, Upgrades and Updates after Product Registration

  1. Support will only be provided for the current version and for one year after release of a new version for the previous version. SEMA may change the scope of support (hotline, forums on the website, etc.), upgrades and updates at any time and provide separate terms and conditions for special and multiple licenses, and partly or completely terminate support. For Software licensed to educational institutions, support services may be governed by different terms, for example a limited number of people who can access normal product support.
  2. In case you indicate an address outside the EU, your data may be transmitted to third parties in countries where the level of data protection is not equivalent to that of the EU.

5. License Module (Key)

  1. For many products, SEMA uses a device for software protection, e.g. hardware connected via the USB interface of a computer (“Key”). The Key saves the license information permanently, thus regulating access to the Software. Where a Key is required to use the Software, the Key must be physically connected to the computer via an interface.
  2. To activate updates or upgrades of the Software, the computer connected with the Key must also have an internet connection to SEMA’s server. If the product was delivered with a Key, license information may already be stored on the Key or will have to be activated via SEMA’s licensing server.
  3. The re-installation of the Software on the same or a different computer is only permitted if the installed Software can no longer be used (e.g. after de-installation).

6. Damage and Loss of Key

  1. In case of a defect of or damage to the Key, SEMA or a third party authorized by SEMA, will check the Key and in case of a valid claim replace the Key and the included licenses for a service fee, provided it is a SEMA license. Any further claims against SEMA shall be excluded.
  2. SEMA accepts no liability or obligation for theft or loss of the Key. SEMA reserves the right to disable the licenses stored on the Key upon notice of a registered user about the loss of the Key. Replacement of the license stored on the Key is not possible.

7. Software Modification

  1. Modification of the Software is permitted only to the extent it is in accordance with its intended function. Unless permitted by law, you may not decompile, disassemble or reverse engineer the Software or attempt in any other way to derive the source code. Furthermore, you may not modify the Software’s binary code to by-pass the activation function or the use of the license module (Key).

8. Unbundling

  1. The Software normally contains a large number of different files that, in their combination, guarantee the full functionality of the Software. The Software may only be used as a whole, which does not mean that you have to use or install all Software components. You may, however, not re-combine components of the Software to create a modified version of the Software or a derivative product. Any changes to the combination of the Software for distribution, transfer or re-sale is prohibited.
  2. In addition, you may not license the Key separately; all rights of use always remain attached to the Software, in particular the original Software medium (e.g. DVD).

9. Transfer of Rights

  1. You may transfer all your rights to use the Software to another person, provided that (a) you transfer (i) this agreement and (ii) the software or hardware supplied or packaged with or pre-installed on the Software, including all copies, upgrades, updates, backup copies and previous versions that enabled you to perform an upgrade or update to the Software, (b) you do not retain any upgrades, updates, back-up copies and previous versions of the Software, and (c) the party receiving the Software accepts the terms and conditions of this Agreement and any other agreements based on which you obtained a valid Software license.
  2. After the transfer of rights, a return of the product because of non-acceptance of the terms and conditions of this License or the product activation is excluded.

10. Upgrades and Updates

  1. To be able to use an upgrade or update of the Software, you require a valid license for the previous or inferior version of the Software and a valid Maintenance Contract. When transferring such a previous or inferior version of the Software to a third party, your right to upgrade or update the Software will expire.
  2. The purchase of an upgrade or update alone does not entitle you to use the Software.
  3. After installation of an upgrade or update the right to support for the previous or inferior version of the Software expires.

11. Online Services

  1. When you use SEMA online services, certain non-personal data may be collected to improve SEMA’s products and services, to correct errors, to provide services to Software users, Software updates and dynamic contents, product support and to improve the communication between SEMA and Software users.
  2. Non-personal data may comprise demographic data, including postal codes, as well as other automatically transmitted data relating to your computer, your hardware, software, platform, operating system, browser information, event data and connections.
  3. Additional information may be gathered, such as the use of features, the time you spend using the Software as well as other data regarding your account settings, online profiles or purchases. Such data is used for statistical purposes and improvement of our products. SEMA may combine these technical data with license-related data.

12. Online Updates

  1. In the SEMA programs, automatic online updates can be activated. SEMA always tests new updates intensively, but does not accept any liability that new updates work under all conditions on all different computer systems customers might have. SEMA does not accept any liability for any follow-up problems or production down-times. It is the user’s duty to decide whether or not to use the update. The user acknowledges and explicitly agrees to accept the entire risk as to satisfactory quality, performance, accuracy and effort in connection with the activation of the online updates. Neither oral statements nor written information provided by SEMA employees or representatives create any warranty.

13. Rights in Case of Defects

  1. If SEMA sold the Software directly to you as end user, SEMA warrants that the Software essentially performs the functions as described in the accompanying documentation, provided it is used in compliance with the minimum requirements for the operating system and computer hardware. Minor deviations from the features described in the documentation do not give rise to a warranty claim. Any other documents and statements are insignificant for the quality of the product.
  2. If the user is a consumer within the European Union (EU), the statutory warranty for defects applies. If the user is an entrepreneur/a company, SEMA will either remedy the defect or supply a product free of defects, at SEMA’s choice within one year.

14. Limitation of Liability

  1. SEMA shall be liable for claims for damages or reimbursement of futile expenses raised by users subject to the following provisions:
  2. SEMA shall be liable for willful misconducts and gross negligence of its legal representatives, officers or other vicarious agents as well as for personal injury, quality warranty, manufacturer’s warranty and product liability under the German Product Liability Act. In the event of damage or loss caused by gross negligence of any other vicarious agents, liability shall be limited to damage or loss typically to be expected under the Agreement. Any other liability shall be excluded.
  3. SEMA shall be liable for damage or loss arising from negligence only in the event of breach of a material contractual obligation, the compliance with which is essential for achieving the objective of the Agreement. In this case the limitation of liability set out in section 14.2, sentences 2 and 3, shall apply. In case of trial versions of the Software any liability for damage or loss caused by negligence shall be excluded.
  4. Liability for data loss shall be limited to the typical recovery costs that would have been incurred if regular and risk-adequate backup had been performed.
  5. SEMA’s limitation of liability shall also apply to the personal liability of its employees whose services are directly used by the user.

15. Third Party Rights

  1. Should legal proceedings be taken against you for infringement of third-party rights in connection with the use of the Software, you should inform SEMA immediately in writing. SEMA can help you in your defense, provided you support SEMA adequately.

16. Miscellaneous

  1. This License Agreement constitutes the entire agreement between the parties concerning the subject matter of the Agreement. There are no oral promises, conditions or other agreements.
  2. Any amendments, modifications or alterations to this Agreement must be in writing; this shall also apply to a waiver of the written form requirement.
  3. If one or several provisions of this Agreement should be or become invalid, in whole or in part, this shall not affect the validity of the other provisions. An invalid provision is deemed replaced through a new, valid provision that comes as close as possible to the economic purpose intended by the parties. The same shall apply to any gaps or omissions in the Agreement.
  4. This agreement shall be subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
  5. Exclusive venue for litigation arising out of or in connection with this Agreement shall be Kempten (Germany), provided you are a businessman as defined in the German Commercial Code (HGB). SEMA will also have the right to bring action against the end user at his place of jurisdiction.