General Terms and Conditions ("GTC") of
the SEP AG for Transfer and maintenance of standard software
Except as otherwise agreed, in any contractual relationship in which SEP AG (herein “SEP”) provides or supports SEP Software to another company or public-law entity or special fund (herein: “Licensee”), only these GTC and the provisions of SEP’s List of Prices and Conditions SEP Software and Support in the version valid at the time the contract is concluded (Pricelist) apply.They apply to pre-contractual relations accordingly. The following terms and conditions of these GTC relative to “SEP Software” apply to SEP provided Third Party Software accordingly, except as otherwise stated in the Software agreement or the pricelist.
For third-party software that distributes SEP, the following provisions shall apply mutatis mutandis to September software, unless stated otherwise in the contract or in the Software price list. Please refer to the license terms in the original text of the third-party software ("third_party_licenses": ansidecl; GPL_license.txt; bf_copyright.txt; buffStr matas_licence.txt; consStr matas_licence.txt; dupStr; matas_licence.txt; getopt_copyright.txt; LL matas_licence.txt; LL listsort_license.txt; md5_copyright.txt; strcasecmp_copyright.txt; strGM matas_licence.txt; strsep_copyright.txt ; tokenStr matas_licence.txt; Java sources: apache_license.txt; getopt parser GPL_license.txt; jasper LGPL_license.txt; jide_license.txt; restlet cddl_license.txt, LGPL_license.txt, LGPL_2.1_license.txt, epl_license.txt; vijava_license.txt).
1. DEFINITIONS.
1.1 “Add-on” means any software developed by Licensee or by a third party on Licensee’s behalf communicating with the Software via SEP APIs that adds or supplements new and independent functionality to SEP Software, but does not constitute a Modification (as defined in section 1.8).
1.2 API” means SEP’s application programming interfaces, as well as other SEP code that allow other software products to communicate with or call on SEP Software provided under the Software Agreement.
1.3 "Working days" means the days of the week from Monday to Friday (08:00 until 18:00 clock CET) except public holidays in Bavaria and the 24 and 31 December.
1.4 “Third Party Software” means (i) any and all standard software products (as well as relevant documentation) and content licensed to Licensee under the Software Agreement, all as developed for or by companies other than SEP or its affiliated companies and that do not constitute SEP Software (as defined in section 1.9); (ii) any new versions (especially without being limited to releases, updates, patches, corrections) thereof made available pursuant to the Software Agreement and (iii) any complete or partial copies of any of the foregoing.
1.5 “Business Partner” means a legal entity that requires access to the SEP Software in connection with Licensee’s internal business operations, such as customers, distributors and/or suppliers of Licensee.
1.6 “IP Rights” (“Intellectual Property Rights”) means without limitation any patents and other rights to inventions, copyrights, trademarks, trade names and service marks and any other intangible property rights and all related rights of use or commercialization.
1.7 "Modification" means any reworking of SEP Software developed by Licensee or by a third party on Licensee’s behalf within the meaning of the German Copyright Act (UrhG) section 69c Nr.2, e. g. changes to the delivered source code or metadata.
1.8 “SEP Support” means the support provided for SEP Software under the applicable support or rental agreement.
1.9 "SEP Software" means (i) any and all standard software products (as well as relevant documentation) all as developed by or for SEP or any of its affiliated companies; (ii) any new versions (especially without being limited to releases, updates, patches, corrections) thereof made available pursuant to the Soft-ware Agreement and (iii) any complete or partial copies of any of the foregoing.
1.10 “Software Agreement” means the agreements on the license and support of standard software that reference to these GTC, Pricelist and – where applicable – further schedules.
1.11 “Affiliate” means any legal entity that is affiliated with another company within the meaning of the German Stock Corporation Act (AktG), section 15.
1.12 "Confidential Information" means all information which SEP or Licensee protect against unrestricted disclosure to others, or that are deemed confidential according to the circumstances of their disclosure or their content. In any case, the following information is considered to be Confidential Information of SEP: the SEP Software, programs tools, data and other material, that SEP provides to Licensee before or on the basis of the Software Agreement.
2. DELIVERY, MATTER TO BE DELIVERED, LICENSE GRANT, IP RIGHTS.
2.1 Delivery, Matter to be Delivered .
SEP will deliver the SEP Software in accordance with the product description in the Documentation and with the Pricelist. The product description in the documentation conclusively defines the functional qualities of the SEP Software delivered by SEP. SEP does not owe any duty with regard to any further quality. In particular, Licensee can imply no such duty from any other published SEP description or advertisement for the SEP Software except to the extent SEP has expressly confirmed that other quality in writing. Guarantees are effective only if expressly confirmed in writing by SEP’s management.
Unless otherwise agreed, Licensee will be provided with one (1) copy of the relevant version of the SEP Software that current at the time of shipment, within one month after conclusion of the Software Agreement.
SEP will deliver, at its election, by supplying to Licensee the SEP Software on disc or other
data media to the agreed delivery address (Physical Shipment) or by making it available for download through the SEP download center (http://www.sep.de (Electronic Delivery). For the purpose of ascertaining whether delivery is timely, delivery of a Physical Shipment is deemed effected at the time SEP passes the discs or other data media to the forwarding agent, and an Electronic Delivery is deemed effected at the time SEP makes the SEP Software available for down-load and informs Licensee accordingly, and risk passes at the time of such physical shipment or electronic delivery.
2.2 SEP’s Rights; Licensee’s Licensed Use.
As between Licensee and SEP, all rights in the SEP Software – especially without being limited to all copyright and other IP Rights – shall be the sole and exclusive property of SEP or their licensors, including without limitation SEP Software created to address a requirement of or in collaboration with Licensee. Licensee’s only rights in respect of the SEP Software are the following nonexclusive rights. Sentences 1 and 2 apply likewise to all other SEP Software, goods, works and information provided to Licensee pre-contractually or in performance of contract, including without limitation those provided in performance of warranty or support.
2.2.1 Licensee may use the SEP Software only to the extent contractually agreed. The license is limited to the SEP Software specifically identified in the Software Agreement, even if it is also technically possible for Licensee to access other Software components. Where Licensee purchases the SEP Software, its license is perpetual; where Licensee rents the SEP Software, the license term is contractually agreed. Licensee’s right to develop and use Modifications and Licensee’s use of the SEP Software to develop Add-Ons as well as the use of the SEP Software together with Add-Ons is stipulated in section 2.3.Licensee enjoys only those rights in Third Party Software that are necessary to use it in association with the SEP Software. In particular, these rights do not include the right to pass it on to others or to develop Modifications or Add-Ons.
2.2.2 Licensee may use the SEP Software only to run Licensee’s and its Affiliates’ internal business operations. Licensee is granted the right to copy the SEP Software only for the purposes of such licensed use. All other rights, notably the right to distribute the SEP Software, including without limitation the rights of rental, translation,elaboration and arrangement, and the right to make the SEP Software available to the public are retained exclusively by SEP. Licensee may not use the SEP Software to provide business process outsourcing or, service bureau applications other than to its Affiliates or use the SEP Software to provide trainings to any person who is not Licensee’s employee or the employee of a Licensee Affiliate. The related terms and detail in the Pricelist also apply. Use of the SEP Software may occur by way of an interface delivered with or as a part of the SEP Software, a Licensee or third-party interface, or another intermediary system. Licensee must hold the required licenses as stated in the PRICELIST for any individuals that use the SEP Software (directly or indirectly). Business Partners may use the SEP Software only through screen access and solely in conjunction with Licensee’s use and may not use the SEP Software to run any of Business Partners’ business operations. On test systems the sole purpose of Licensee’s use of the SEP Software must be to ascertain the SEP Software’s properties and assess its suitability for Licensee’s business. Notably, Licensee must not create Modifications or Add-Ons (section 2.3), decompile (section 2.2.5) the SEP Software or use it or prepare to use it for live operation. Unless expressly provided otherwise in writing between the parties and in deviation of the preceding provisions of this section. Licensee may not use the SEP Software to run the internal business operations of a Licensee Affiliate with a separate agreement for SEP Software licenses and/or support services with SEP or an SEP Affiliate. Such Licensee Affiliate shall not receive any support services under the Software Agreement. The aforementioned provisions apply even if such separate agreement has expired or will be terminated.
2.2.3 The Software may only be copied temporarily or permanently in whole or in part on information technology devices (e.g. hard disks or central processing units) which must be located at Licensee’s facilities and are in Licensee’s direct possession. Where SEP has agreed in writing, the information technology devices may also be located in the facilities of a Licensee Affiliate and be in the Affiliate’s direct possession. Where Licensee wishes to outsource the SEP Software, that is to say run the SEP Software or have the SEP Software run for running Licensee’s internal business operations on information technology devices that are located at the facilities and in direct possession of a third party, Licensee must first obtain the agreement of SEP in writing, which agreement SEP is ready to give provided that is proper business interests are upheld, notably that the third party respects the agreed conditions concerning the license for the SEP Software.
2.2.4 Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the SEP Software. Backup copies on transportable discs or other data media must be marked as backup copies and bear the same copyright and authorship notice as the original discs or other data media. Licensee must not change or remove SEP’s copyright and authorship notices.
2.2.5 Prior to decompiling the SEP Software, Licensee must give written notice requiring SEP within a reasonable period of time to provide the information and documentation necessary to produce interoperability. Licensee is entitled to decompile the SEP Software to the extent permitted in the German Copy-right and Related Intellectual Property Rights Act (UrhG) section 69e only after SEP has failed to comply with such notice within the limited time period. Before involving a third party (e. g. pursuant to the UrhG section 69e 1) No.1 or (2) No.2), Licensee must obtain for SEP’s direct benefit the third party’s written undertaking to comply with the provisions in this section 2.
2.2.6 If, for example by way of defect remedy or SEP Support, Licensee receives new copies of the SEP Software that replace previously provided SEP Software, Licensee has only the right to use the last copy of the SEP Software obtained. Licensee’s license to use with regard to the previous copy of the SEP Software ends when Licensee implements the new SEP Software on productive systems. Licensee is however permitted for a period of one months to use the new SEP Software copy on a test system while also still using the previous SEP Software copy live. Section 5 governs the replaced SEP Software copy.
2.3 Modifications / Add-Ons
2.3.1 Except as otherwise agreed and except as expressly required by law or expressly permitted in this section 2.3, Licensee is not entitled to create, use, or make available to any third party any Modification of SEP Software. Except as otherwise agreed and except as expressly required by law or expressly permitted in this section 2.3, Licensee is not entitled to use any software tool or API that is contained in SEP Software or is otherwise obtained from SEP to make any Add-On or to use any software tool or API so contained or obtained with any Add-On.
2.3.2. SEP points out that even a minor Modification to SEP Software may lead to possibly unpredictable and significant faults in the running of SEP Software and other programs and in communications between SEP Software and other programs. Faults may also arise because a Modification is not compatible with later versions of SEP Software. Neither SEP nor any Affiliate of SEP is under any duty to eliminate any fault arising in connection with a Modification, and nor is either otherwise answerable in respect of any such fault. Notably, SEP is entitled to change SEP Software, APIs, or both, without care for the compatibility of any Modification that Licensee uses with any later version of SEP Software. The foregoing provisions in this section 2.3.2 apply accordingly to the use of SEP Software together with Add-Ons.
2.3.3. Provided that the provisions in this section 2.3.3 are fulfilled and Licensee gives the covenant required in section 2.3.5, sentence 1, SEP grants to Licensee the right to make and use Modifications to SEP Software that SEP delivers to Licensee.
(a) Modifications may only be made in relation to SEP Software delivered in source code to Licensee by SEP.
(b) Before making or using Modifications, Licensee must comply with the registration procedure as currently set out by SEP at http://www.sep.de or www.sepsoftware.com.
(c) Modifications must not enable the bypassing or circumventing of any of the restrictions set forth in the Software Agreement or in any other agreement between Licensee and SEP.
(d) Modifications must not provide Licensee with access to the SEP Software to which Licensee is not licensed.
(e) Modifications must not permit any mass data extraction from SEP Software to any non SEP software, including use, modification saving, or other processing of data in the non-SEP software.
(f) Modifications must not impair, degrade, or reduce the performance or security of SEP Software.
(g) Modifications must not render or provide any information concerning SEP software license terms, SEP Software, or any other information related to SEP products.
(h) Modifications must be used only together with SEP Software and only in accordance with the license to use SEP Software granted in section 2.2.
2.4. Passing SEP Software on
2.4.1 Licensee may pass on to one third party all of the SEP Software it has acquired by purchase (including any additional SEP Software obtained by way of warranty or support) as one unit only, and provided that Licensee entirely ceases and desists from its own use. Any temporary passing on of the use of the SEP Software in part or in whole or passing on of the use of the SEP Software to multiple third parties constitutes a breach. The restrictions in sentences 1 and 2 in this section also apply to reorganizations and successors, e. g. in the meaning of the German Reorganization Act (Umwandlungsgesetz).
2.4.2 In every case, SEP’s written consent is required to pass on the SEP Software. SEP will grant such consent provided Licensee produces the new user’s undertaking in writing to comply with the agreed conditions concerning the license for the SEP Software for SEP’s direct benefit and provided Licensee undertakes to SEP in writing that it has passed all of the original SEP Software on to the third party and deleted all copies that it made. SEP reserves the right to decline such consent if the new user’s use of the SEP Software prejudices SEP’s rightful interests.
2.4.3 Licensee may not pass on to a third party any SEP Software that Licensee licensed by any means other than under a purchase contract.
2.4.4 If Licensee is a leasing company and the contract specifies that the SEP Software was licensed to be leased, SEP will give its permission to lease and to change the lessee if the leasing company names the lessee in writing, and if, in the case of a change of lessee, the previous lessee and the new lessee submit undertakings to SEP in accordance with section 2.4.2 and there is no just reason to withhold consent (for example, absence of permission from a third-party licensor). SEP is entitled to supply the SEP Software (notably SEP Software provided by way of warranty or support) directly to the lessee. The leasing company is entitled to assign to its lessee rights arising out of warranty liability. If there is a change of lessee, SEP reserves the right to charge the leasing company an upgrade fee of up to 50% of the support fee for the expired part of the term of the lease.
3. VERIFICATION / ADDITIONAL LICENSES.
3.1 Licensee must inform SEP in advance about any use of the SEP Software outside the contractually permitted use in writing. It requires its own contract with SEP with regard to the additional license required (“Additional License”). The Additional License is subject to the provisions of the PRICELIST in force at the time of the execution of the Additional License.
3.2 SEP shall be permitted to audit (at least once annually and in accordance with SEP standard procedures, which include onsite and/or remote audit) the usage of the SEP Software. Licensee shall cooperate reasonably in the conduct of such audits. Reasonable costs of SEP’s audit shall be paid by Licensee if the audit results indicate usage in breach of the Software Agreement.
3.3 In the event that an audit or other instance reveals that Licensee has used the SEP Software in excess of the contractual agreements, SEP and Licensee will execute an Additional License. Section 3.1 sentences 2 and 3 apply likewise. SEP reserves all rights to claim damages.
4. PRICE / TAXES / PAYMENT / RETENTION OF RIGHTS.
4.1 Fees.
4.1.1 Licensee shall pay to SEP license fees for the Software and fees for SEP Support on the terms in Software Agreement. Fees for SEP Software delivery include costs of delivery and packaging for physical shipment. In cases of electronic delivery, SEP makes the SEP Software available for download from a network at its own cost.
Licensee is responsible for the cost of downloading the SEP Software. No cash discount is granted.
4.1.2 SEP may require full or part payment in advance if there is no prior business relationship with Licensee, if delivery is to be made outside Germany, if Licensee’s registered office is outside Germany or if there are and grounds to doubt that Licensee will render payment punctually.
4.1.3 Licensee may offset only claims or claim rights of retention that are uncontested or have been finally determined by the court. Subject to the provisions of the German Commercial Code (HGB), section 354a, Licensee cannot assign its claims to a third party.
4.1.4 SEP retains all rights in and title to the SEP Software, especially versions of the SEP Software that have been provided under the support agreement, until full satisfaction of its claims under the Software Agreement. Licensee must immediately notify SEP in writing if any third party gains access to the SEP Software in which SEP retains title or rights and must also inform the third party of SEP’s rights.
4.1.5 Invoicing; Due Date
(a) Payments are due 14 calendar days from the date of the invoice. Any fees not paid when due shall accrue interest at the applicable statutory interest rate.
(b) Under Software purchase contracts, the invoice shall be presented after delivery of the Software.
(c) Under SEP Support contracts, the duty to pay shall begin with Effective Date of the SEP Support contract. The fee will be billed quarterly in advance.
(d) Payment terms for rental contracts shall be included in the relevant rental contract. Except as provided otherwise, the fee will be billed yearly in advance and the duty to pay shall start with the execution of the rental contract.
4.1.6 By giving Licensee a written two months’ notice effective from January 01 of the following calendar year, SEP is entitled to amend the remuneration for support and / or rental at its discretion subject to the following guidelines:
(a) The change applied to the fee must not be greater than the change in the index at (b) below (“discretionary applicable change”). For the first fee adjustment under the contract, the discretionary applicable change is the change from the index published at the date of the execution of the contract to the index that has most recently been published when the fee adjustment notice is given. If the fee has already been adjusted in the past, the discretionary applicable change is the change from the index that had been most recently published when the previous fee adjustment notice was given to the index that has most recently been published when the new fee adjustment notice is given.
(b) The index used to determine the discretionary applicable change is the index of mean monthly salaries of fulltime employees in Germany in the information technology services sector. If publication of that index is discontinued, the applicable index for determination of the discretionary applicable change will be the index published by the Federal Statistics Office that most closely reflects changes in the mean monthly salaries of the sector named above.
(c) The fee adjustment is deemed to be agreed by the parties unless Licensee, by giving notice within two weeks from receipt of the fee adjustment, terminates the support or rental contract with effect from the end of the calendar year (extraordinary termination right). SEP will draw attention to this in the fee adjustment notice. The provisions in section 10.6, sentences 3 to 5 apply accordingly.
4.2 Taxes. All fees are subject to applicable statutory value-added tax (VAT) except where the transaction is exempt.
5. END OF LICENSE.
Upon any termination of the license hereunder (e. g. by rescission, end of agreed license term or termination), Licensee shall immediately cease use of all SEP Software and Confidential Information. Within one (1) month after any termination of the license, Licensee shall irretrievably destroy or upon SEP’s request deliver to SEP all copies of the SEP Software and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period. Licensee must certify to SEP in writing that it and its Affiliates have satisfied the obligations under this section 5.
6. DUTY TO COLLABORATE, DUTY TO INSPECT AND GIVE NOTICE OF DEFECTS.
6.1 Licensee undertakes that it knows the essential functional characteristics of the SEP Software and its technical requirements (e. g. with regard to the database, operating system, hardware and data media). Licensee bears the risk that the SEP Software does not meet its wishes and requirements. In case of doubt Licensee should consult employees of SEP or third-party experts before concluding any contract. Furthermore, SEP supplies notes on the technical prerequisites for the SEP Software and any changes thereto on its online information platform.
6.2 Licensee must provide the operating environment (herein: IT systems) necessary for the SEP Software, in accordance with SEP’s guidance where given. It is the responsibility of Licensee to secure proper operation of the IT systems by entering into maintenance contracts with third parties if necessary. In particular, Licensee must comply with the specifications in the Documentation and the notes on SEP’s online information platform.
6.3 Free of charge, Licensee must provide all collaboration that SEP requires in connection with performance of the contract, including, for example, human resources, workspace, IT systems, data, and telecommunications facilities. Customer must grant SEP direct and remote access to the SEP Software and the IT systems.
6.4 Licensee must nominate in writing a contact for SEP, with an address and e mail address at which the contact can be reached. The contact must be in a position to make necessary decisions for Licensee or ensure that they are made without delay. Licensee’s contact must maintain effective cooperation with SEP’s contact.
6.5 Before commencing live operation with the SEP Software, Licensee must test it thoroughly for freedom from defects and for suitability in the situation.
6.6 Licensee must take appropriate precautions against the possibility that the SEP Software or any part thereof does not function properly (e. g. by performing data backups, error diagnosis and regular results monitoring). Except where otherwise expressly indicated in writing in individual cases, SEP employees are always entitled to act on the assumption that all data with which they come into contact is backed up.
6.7 Licensee must inspect all goods, works, and services delivered or provided by SEP and give notice of all defects pursuant to the German Commercial Code (HGB), section 377. The notice must be in written form and contain a detailed description of the problem. Notice of a defect is effective only if given by the contact (section 6.4) or the certified SEP Support Center.
6.8 Licensee bears all consequences and costs resulting from breach of its duties.
7. DEFECTS AS TO QUALITY, DEFECTS IN TITLE, OTHER FAULTS.
7.1. SEP warrants the agreed qualities of the SEP Software (section 2.1) in accordance with the law governing the sale of goods and warrants that the grant to Licensee of the agreed rights (section 2) does not infringe any third-party right.
7.2. To discharge its liability for shown quality defects, SEP will remedy the defects either by providing to Licensee a new software version that is free of defects or, at its election, by eliminating the defects. SEP may also eliminate a defect by indicating to Licensee a reasonable way to avoid the effect of the defect. To discharge its liability for shown defects in title, SEP will remedy the defects either by procuring for Licensee the legaly incontestable right under license to use the delivered SEP Software or, at SEP’s election, providing equivalent replacement or altered SEP Software. Licensee must accept a new software version that is functionally compliant unless it would be unreasonable to require Licensee to do so.
7.3. If Licensee sets a reasonable limited additional time period for SEP to remedy the defect and SEP finally fails to do so in that time, Licensee has the right to rescind the contract or reduce the remuneration. The requirements in sections 11.1 and 11.5 must be met with regard to fixing a reasonable limited additional time period. Subject to the exclusions and limitations in section 8. SEP undertakes to compensate for loss or wasted anticipatory expenditure caused by a defect.
7.4. The time bar for claims under sections 7.1 to 7.3 comes into effect one year after delivery of the SEP Software. This also applies to rights arising out of rescission or reduction of remuneration under section 7.3, sentence 1. The reduction in the time before the time bar comes into effect does not apply in cases of SEP’s intent or gross negligence, of fraudulent concealment of a defect, of personal injury, or of defect in title to which the German Civil Code (BGB), section 438 (1) No.1 (a) applies.
7.5. The time bar for claims for defects in works or services to eliminate or avoid a defect provided in discharge of defect liability also comes into effect at the time specified in section 7.4. However, the time before the bar comes into effect is tolled while, with Licensee’s consent, SEP is checking the existence of a defect or is remedying a defect, until SEP informs Licensee of the results of its check, gives notice that the remedy is complete, or refuses to remedy the defect. The time bar comes into effect no earlier than three months after the end of the toll.
7.6. If SEP provides defect identification or elimination works or services without being under obligation to do so, SEP is entitled to remuneration under section 11.7. This applies in particular to any reported quality defect that is not reproducible or not imputable to SEP or in cases where the SEP Software is not used in compliance with its documentation. Without prejudice to the generality of the foregoing, SEP is entitled to remuneration for additional work it does to eliminate any defect that arises out of Customer’s failure to properly discharge its duty to collaborate, inappropriate operation of the SEP Software, or failure to take the SEP services that SEP recommends.
7.7 If a third party claims that the exercise of the license granted under the contract infringes its rights, Licensee must fully inform SEP in writing without delay. If Licensee ceases to use the SEP Software to mitigate loss or for other just reason, Licensee must notify the third party that such cessation does not imply any recognition of the claimed infringement. Licensee will conduct the dispute with the third party both in court and out of court only in consultation and agreement with SEP or authorize SEP to assume sole conduct of the dispute.
7.8 If SEP fails to properly perform any of its duties herein that is not within the ambit of defect liability, or is otherwise in breach, Licensee must give written notice of the failure or breach to SEP and fix a limited additional time period during which SEP has the opportunity to properly perform its duty or otherwise rectify the situation. Section 11.1 applies. SEP will compensate for loss or wasted anticipatory expenditure subject to the exclusions and limitations in section 8.
8. LIABILITY
8.1 SEP’s liability in contract, tort, and otherwise for loss including but not limited to wasted anticipatory expenditure is subject to the following provisions:
(a) In cases of intent, SEP’s liability extends to the full loss; in cases of gross negligence, SEP’s liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care; in cases of absence of a guaranteed quality, SEP’s liability is limited to the amount of foreseeable loss that would have been prevented by the presence of the guaranteed quality.
(b) In other cases: SEP is not liable except for breach of a major obligation (Kardinalpflicht) and only up to the limits in the following subsection. A breach of a major obligation in the meaning of this section 8.1 (b) is assumed where the duty itself is a necessary prerequisite for the contractual performance, or where the breach of the relevant duty jeopardizes the purpose of the contract and where Licensee could legitimately rely upon its fulfillment. Liability in cases under section 8.1 (b) in this section is limited to € 300,000 per incident and limited in total to € 600,000 for all claims arising out of the contract.
8.2 Contributory fault (e. g. breach of section 6 duties) and contributory negligence may be claimed. The limits of liability in section 8.1 do not apply to personal injury liability or liability under the German Product Liability Act (Produkthaftungsgesetz).
8.3 For all claims against SEP in contract, tort, or otherwise for loss or wasted anticipatory expenditure the time bar comes into effect after a period of one year. That period begins at the point in time specified in the German Civil Code (BGB), section 199 (1). The foregoing provisions in this section notwithstanding, the time bar comes into effect not later than five years after the claim arises. The provisions in sentences 1 to 3 in this section do not apply to liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. The provisions in this section do not affect the other time bar for claims arising out of defects as to quality and defects in title (sections 7.4 and 7.5).
9.1. Use of Confidential Information. Both parties undertake forever to treat as confidential all of the other party’s Confidential Information acquired before and in connection with contract performance and to use such Confidential Information only in connection with contract performance. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of the Software Agreement. Any reproduction of any Confidential Information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party: (a) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its individuals whose access is necessary to enable it to perform the contract. As used herein “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. On Licensee’s side, this includes the careful safeguarding of the Confidential Information and the prevention of infringement.
9.2 Exceptions. Section 9.1 above shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without a contractual breach by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
Unless where agreed otherwise, section 9.1 also does not apply to knowledge related to Licensee’s idea’s, concepts, know-how, methods, processes or technologies that remain in the Unaided Memory of an SEP deployed person, subject to any IP Rights of Licensee. “Unaided Memory” shall mean knowledge that the relevant person retains in its memory without reference to the documents or other tangible information obtained from Licensee, or copies transcripts thereof and only when the person has not intentionally learned the Confidential Information by heart with the aim of remembering it, using it later, or revealing it.
9.3 Confidential Terms and Conditions; Publicity. Licensee shall treat as confidential the terms and conditions of the Software Agreement, in particular the pricing contained therein. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other. However SEP may use Licensee's name in customer listings (reference listings) or to analyze details from the contract (e. g. to forecast demand), as well as – subject to mutual agreement – as part of SEP's other marketing efforts.
9.4 Data Protection. Comprehensive Data Protection obligations of the parties pertaining to possible commissioned data processing are set forth in the Commissioned Data Processing Schedule attached to these GTC.
10.1 Under rental contracts, SEP Support is part of the rental service offered and can only be ended by terminating the rental contract. In respect of SEP Software that is acquired under a purchase contract, SEP provides SEP Support on the basis of a discrete support contract.
10.2. SEP Support services for the contractually agreed support model are provided as specified in the Pricelist valid from time to time.
10.3 SEP may adapt the scope of the SEP Support services to reflect the continuing development of the SEP Software and technical advances. In the event that a change may negatively affect the justified interests of Licensee, SEP will inform Licensee in writing or by electronic means, at least three (3) months before the change is scheduled to take effect, drawing attention to the termination option as described below and to the consequences of non-termination. In this case, Licensee is entitled to early termination of the SEP Support contract / the rental contract as may be applicable, with effect from the time the change takes effect by giving two months’ prior notice (extraordinary termination right). Section 10.6 sentences 3 to 5 apply accordingly. In the event Licensee does not opt for early termination, the support contract will be continued with the changed scope of services.
10.4. SEP provides SEP Support for the most recent SEP Software currently being shipped and – where applicable – for older SEP Software according to the SEP Software Lifecycle and in accordance with the SEP release strategy posted on SEP’s online information platform. SEP’s provision of SEP Support for Third Party Software can require the use of support services provided by the vendor in question. If the vendor does not provide the support services required by SEP, SEP has the right to give reasonable notice of at least three months effective at the end of a calendar quarter of extraordinary and partial termination on the contractual relationship for maintenance for the Third Party Software concerned.
10.5. The provisions in section 7 apply analogously to defects as to quality and defects in title in the SEP Software delivered in performance of support duties. The right to terminate the support or rental contract for just cause replaces the right to rescind the contract. Any right to reduction of remuneration applies to remuneration under the support or rental contract. For rental contracts, the no-fault liability as provided in the German Civil Code (BGB) section 536a (a) for defects that existed at the time of contract execution is excluded.
10.6. The initial term of SEP Support agreement is the remainder of the current calendar year and the next full calendar year (except in cases where the support agreement starts on January 1st of a respective calendar year, in which case the initial term will run until December 31st of the respective calendar year) (“Initial Term”). Thereupon the SEP Support agreement is automatically extended from calendar year to calendar year (“Extension”). So far as SEP offers SEP Support for it, all of Licensee's SEP Software must be covered by the support. Licensee must always have all of its installations of the SEP Software for which SEP offers SEP Support (including respective subsequent additionally licensed SEP Software) fully covered by SEP Support or terminate the SEP Support completely. This provision also includes SEP Software provided to Licensee by third parties, for which SEP offers SEP Support. For any additional SEP Software license contracts Licensee shall extend the SEP Support on the basis of discrete support contracts with SEP.
10.7 Either party can effect regular termination of the SEP Support agreement by giving three (3) months’ written notice that takes effect at the end of a calendar year, subject however, to the Initial Term. Either party can effect regular termination of a rental contract by giving three (3) months’ written notice that takes effect at the end of a calendar quarter, subject however, to the Initial Term. Sections 10.6 sentences 3 to 5 apply accordingly to rental contracts. Extraordinary termination rights and the right to termination for just cause remain unaffected.
10.8 Notice of termination for just cause is effective only if given in written form. The provisions in section 11.1 concerning notices setting limited extra time also apply. SEP reserves the right to terminate for just cause where Licensee is repeatedly or seriously in breach of major contractual obligations (e. g. those in sections 2, 6 and 9). Such termination is without prejudice to SEP’s entitlement to remuneration outstanding at the time of termination, and SEP is entitled to claim liquidated damages due immediately in the amount of 60 % of the remuneration that would otherwise have become due up to the earliest time at which Licensee could have effected termination with regular notice. Licensee retains the right to show that SEP's actual loss is less.
10.9. If Licensee does not order the SEP Support from immediately after delivery of the SEP Software, but orders it later, then to obtain the current SEP Software release it must pay all past support fees that it would have had to pay had it agreed to take SEP Support from the time of delivery of the Software. Additionally, SEP may claim a reactivation fee; upon request, SEP will state its amount. Such payment falls due immediately and in full. These provisions also apply if Licensee takes up the SEP Support again after a termination. The options to switch an SEP Support model are detailed in the PRICELIST valid from time to time.
10.10 These GTC can be changed with regard to SEP Support and rental agreements, provided that the change does not have any impact on the content of the SEP Support or rental agreement that is material for the equivalency of services and remuneration between the parties and provided that such change is reasonably acceptable for Licensee. SEP will inform Licensee about the change of the GTC in writing. If, in this case, Licensee does not expressly disagree in writing within 4 weeks after receipt of the change notice, the change will be deemed to be effected as is the changed GTC version is the basis for existing SEP Support or rental agreements between SEP and Licensee from that point in time. SEP will draw attention to this consequence in the change notice.
11.1 Except in emergencies, a limited time fixed by Licensee pursuant to the law or contract must not be less than 10 working days. Failure to comply with any fixed time limit entitles Licensee to be released from the contract (e. g. by rescission, termination, or claim for damages in lieu of performance) or to a price reduction for breach only if this was threatened in writing in the notice fixing the limited time as a consequence of failure to comply with that time limit. After a limited time fixed in accordance with sentence 2 expires, SEP is entitled to give notice to Licensee requiring that any rights arising out of the expiration be exercised within two weeks of receipt of the notice.
11.2 SEP has four weeks to accept offers made by Licensee. SEP’s offers are nonbinding unless otherwise agreed in writing. In cases of conflict, the contract terms and details that apply are those in SEP’s offer or confirmation.
11.3 The SEP Software is subject to the export control laws of various countries, including without limit the laws of the United States and Germany. Licensee agrees that it will not submit the SEP Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of SEP, and will not export the SEP Software to countries, persons or entities prohibited by such laws. Licensee shall also be responsible for complying with all applicable legal regulations of the country where Licensee is registered, and any foreign countries with respect to the use of the SEP Software by Licensee and its Affiliates.
11.4 German law applies exclusively to all claims in contract, in tort or otherwise, and the UN sales laws convention is excluded. If Licensee is a merchant within the meaning of the German Commercial Code (HGB), section 1, or a public-law juristic person or special fund, the sole place of jurisdiction for all differences arising out of or in connection with the Software Agreement shall be Munich.
11.5 The conclusion of contract, any subsequent amendment or addition and contractually relevant declarations as well as declarations directly require written form. The foregoing provision also applies to any waiver of the written form requirement. Where in this section 11.5 or elsewhere in these GTC written form is required, that requirement can also be met by facsimile transmission, exchange of letters. Except in that respect, however, the provisions in the German Civil Code (BGB), sections 127 (2) and (3) do not apply.
11.6 No conditions that are conflicting with or amending the Software Agreement – notably Licensee’s general terms and conditions – form any part of the contract, even where SEP has performed a contract without expressly rejecting such provisions.
11.7 A separate agreement is required for any other goods, works and services that are not expressly described in the purchase, rental, leasing or SEP Support agreements. Unless otherwise agreed, such goods, works and services are provided subject to SEP’s General Terms and Conditions for Consulting and Services and SEP is entitled to remuneration for them in accordance with the relevant SEP list of prices and conditions. Influencing a legal relationship, especially without being limited to termination notices, reminders or notices to set time limits
Valid: 22. Aug. 2014