General Terms and Conditions of RED CAD Solutions AG
As of March 2021
1. Scope and validity
1.1 These General Terms and Conditions (hereinafter referred to as ‘GTC’) govern the licensing of software from RED CAD Solutions AG, Grüttstrasse 96, CH-4562 Biberist (hereinafter referred to as ‘Licensor’) to Licensees and the associated rights and obligations of the parties.
1.2 These GTC apply for an indefinite period and thus also to all subsequent services, unless otherwise agreed in writing between the parties. nbsp;
1.3 These General Terms and Conditions are an integral part of all offers and contracts between the Licensor and the Licensee (hereinafter referred to as ‘Parties’) concerning the licensing of software, including all updates and upgrades, provided to the Licensee by the Licensor (hereinafter referred to as ‘Software’) and related services.& nbsp;
2. Conclusion of the contract
2.1 A contract between the parties shall only come into effect upon the Issuer's issuance of a written order confirmation, delivery of the ordered Software or delivery of an invoice to the Licensee. Until these points in time or until the Licensor rejects the order, the Licensee remains bound to the order.
2.2 All information provided by the Licensor outside of contractual relationships, namely in brochures and other publications, is non-binding unless expressly stated otherwise in writing by the Licensor.
3. Granting of the licence
3.1 The Licensor grants the Licensee the worldwide and non-exclusive right to use the software provided and the associated documentation for the duration of the relevant contract and under the terms and conditions of these GTC. The permitted scope of use of the software is set out in these GTC and any other contractual documents. Unless otherwise explicitly agreed in writing between the parties, the Licensee is entitled to use the software in accordance with the licence key.
3.2 The Licensee is prohibited from copying, decompiling or otherwise modifying, renting or lending the software. Furthermore, the licensee has no right to use the software as part of an application service providing solution.
3.3 The licence granted to the licensee may not be transferred to third parties or used by third parties. Accordingly, the licence also does not apply to any subsidiaries or sister companies or the parent company of the Licensee.
3.4 The sublicensing of the software to third parties by the Licensee is not permitted.
4. Delivery of the software and updates
4.1 Delivery dates and delivery periods are only binding if they are confirmed in writing by the Licensor.
4.2 The Licensor shall provide the Licensee with updates for the delivered software from time to time during the term of the contract. The Licensee acknowledges that regular updates are necessary to ensure that the software continues to run properly. The updates are subject to a charge unless a service or rental agreement is in place.
4.3 If required, the Licensor shall provide support and online training in connection with the software and updates. Support refers to assistance by telephone and remote maintenance (hotline). The costs for these services (hotline, on-site support, training and individual support) will be charged unless a service or rental agreement exists.
4.4 The Licensor is not obliged to provide any maintenance services for the software unless a separate agreement for upgrades/updates has been concluded with the Licensee.
5. Licence fee
5.1 The contractually agreed licence fee and any other fees owed are in Swiss francs or euros, excluding value added tax, packaging, shipping, any duties (including customs) and ancillary services, unless otherwise agreed in writing. nbsp;
5.2 The Licensor's invoices for services and deliveries arising from all contractual relationships shall be paid net without discount within ten days of the invoice date.
5.3 The Licensor shall be entitled to demand advance payments or other security from the Licensee at its own discretion. nbsp;
5.4 Failure to meet the payment deadline shall automatically result in default of payment and entitle the Licensor to 8% interest per annum on arrears and a processing fee of EUR 30.
6. Rights to the software
6.1 The licensee acknowledges and agrees that the software and all elements of the software, such as texts and images, are protected by copyright and/or trademark law and may only be used for purposes permitted under these GTC. In particular, the software and individual elements thereof may not be distributed, copied, transmitted, modified or used in any other way for commercial purposes.
6.2 If the Licensee becomes aware of a copyright infringement, they must notify the Licensor immediately.
7. Disclaimer of warranty and limitation of liability
7.1 The delivered software has been developed in accordance with recognised programming standards. The functionality of the software has been tested prior to delivery and complies with the agreed programme specifications. Further warranties, in particular with regard to superior rights of third parties, are excluded.
7.2 The licensee undertakes to check the delivered software within a maximum period of five working days after receipt of the software and to report any defects in writing and in detail. If, after expiry of the inspection and complaint period, defects arise which were not apparent during the ordinary acceptance of the programme, the Licensee must notify the Licensor in writing and in detail within five working days of their discovery, otherwise the software shall also be deemed to have been approved with regard to these defects.
7. 3 The Licensor shall remedy defects within the meaning of the preceding paragraph free of charge for a period of six months after delivery of the software, provided that the Licensee has reported them in accordance with Section 7.2. After this period, any warranty is excluded.
7.4 If the Licensor is unwilling or unable to remedy the defects and also cannot provide a replacement, it may terminate the contract with the Licensee regarding the software with immediate effect and must refund the fees paid by the Licensee. If the defects relate to software for which no payment has been made (e.g. updates), the licensee shall not be entitled to a refund of fees.
7.5 The rights of the licensee in the event of defective software are conclusively regulated in this Section 7. Any rights of the licensee beyond the option of rectification of defects or replacement delivery by the licensor, in particular any kind of compensation, are excluded. Likewise, any liability of the licensor in connection with the software is excluded.
8. Indemnification
The Licensee shall indemnify the Licensor against all claims, including legal defence costs and court costs, asserted against the Licensor by third parties due to a breach of the Licensee's obligations under the provisions of the Licence Agreement.
9. Term and termination
9.1 The agreement between the parties concerning the software shall enter into force upon its signing or payment of the licence fee and shall be valid for a term of eight years, unless otherwise agreed in writing.
9.2 Either party may terminate the agreement concerning the software with immediate effect for good cause for which the other party is responsible. Important reasons include, in particular, a breach of these General Terms and Conditions by the Licensee or the fruitless seizure, insolvency, moratorium or bankruptcy of the other party.& nbsp;
9.3 Upon termination or dissolution of the contract relating to the software, the licensee is no longer authorised to use the software and must delete the software from all its systems, etc., unless the software has been purchased. The Licensor shall not reimburse the Licensee for any fees paid to the Licensor under any circumstances.
10. Amendment of the licence agreement
10.1 The Licensor is entitled to amend these GTC, including licence fees, at its discretion. The changes shall be notified to the licensee in writing.
10.2 The licensee must confirm the changes in writing within ten days of receiving the relevant notification from the licensor. Failure to confirm within this period entitles the licensor to terminate the agreement with the licensee regarding the software with immediate effect. The consequences of termination are set out in particular in section 9 above.
10.3 With the 3.19.0.0 upgrade, existing network licences will be converted to flexible licences.
11. Confidentiality and data export
11.1 The licensee is obliged to keep all information, documents and items obtained from the licensor confidential, subject to the contractual or statutory exercise of rights and obligations. This applies in particular to quotations, invoices and letter and e-mail correspondence. The licensee is obliged to ensure that its organs, employees and third parties involved also comply with these obligations.
11.2 The licensee acknowledges that the export of its data is only possible to a limited extent, both during the term of the licence agreement and thereafter. Detailed information on data export will be provided to the licensee upon request.
12. Final provisions
12.1 Any additions, amendments or termination of the contract relating to the software and the GTC must be made in writing. This also applies in particular to this written form clause.
12.2 For the purposes of these General Terms and Conditions, written form also includes faxes, clicking on a checkbox and emails, provided that receipt has been confirmed by the Licensor.& nbsp;
12.3 Should one or more of the provisions of these General Terms and Conditions be or become void or ineffective, this shall not affect the remaining provisions of the General Terms and Conditions. In the event of the invalidity or ineffectiveness of a clause, it shall be replaced by a clause that comes closest to the economic purpose of the invalid provision.& nbsp;
12.4 These GTC and the contract relating to the software are subject to Swiss substantive law, excluding conflict of law rules and international agreements (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980).& nbsp;
12.5 The parties shall endeavour to settle any disputes, differences of opinion or claims arising from or in connection with these GTC and the contract relating to the software out of court. If the parties are unable to do so, the ordinary courts at the licensor's place of business shall have exclusive jurisdiction.
12.6 The original GTC are written in German. The General Terms and Conditions are carefully translated into other languages. If the translation differs from the German General Terms and Conditions, the German General Terms and Conditions shall apply.