General terms and conditions
for the supply and licensing of software
Status: November 01, 2019
Section 1 Scope of validity of the general terms and conditions
1.

These general terms and conditions for the supply and licensing ofsoftware (hereinafter "T&C for software") are valid for the supply andlicensing of standard software (hereinafter "software") by SCHULER
Consulting GmbH (hereinafter "Contractor") to customers incommercial business transactions.

2.

If, in addition to the supply of software, the provision of services, suchas development, adaptation and integration services are agreed, forthese latter services, in addition to these T&C for software, the generalterms and conditions of the Contractor for the provision of services(hereinafter "T&C for services") apply. The continued provision ofmaintenance and support services for software by the Contractor
when commissioned accordingly by the customer is based on a
separate contract.

3.

These T&C for software in their respective current version also apply
for all future contracts regarding the supply and licensing of software
between the Contractor and the customer, even if there is no further
explicit reference thereto.

4.

The properties and functions of the software, the type and scope ofthe licenses purchased, and the amount of the remuneration result
from the specific individual contract, in particular from the offer fromthe Contractor, from the product description for the software, and/orfrom the price list of the Contractor. In the event of conflicts, thecustomer-specific regulations in the individual contract take priority
over these T&C for software. General terms and conditions of thecustomer do not apply even if the Contractor delivers software
without expressly contradicting these general terms and conditions.

5.

6.

7.

Unless otherwise agreed, for any external programs or other thirdparty products (e.g., databases) designated expressly in the individual
contract as third-party products (this applies, for example, for the
AutoCAD software from the manufacturer Autodesk) that theContractor delivers to the customer either as a separate product or as
an OEM version integrated in their own standard software, thecontract and license conditions of the respective manufacturer or
supplier apply. In particular, these may contain regulations on the
granting of the rights of use and on the warranty and liability thatdeviate from these T&C for software. The Contractor states explicitlythat it has no influence on the business and licensing policies of the
manufacturers and cannot prevent, for example, that, as a result ofchanges to the license models for the third-party products or due tosupport ending for certain version statuses, the customer may haveto pay costs for a required upgrade, for example. At the time thecontract is concluded, the Contractor shall draw the customer's
attention to the contract and license conditions for third-party
products. If the contract and license conditions for the third-party
products have gaps, the regulations of these T&C for software apply
in addition in this respect.
For open source software that the Contractor supplies to thecustomer, the respectively applicable open source license conditions
take priority. The license conditions in these T&C for software also
apply accordingly. When requested to do so, the Contractor shallmake the applicable open source license conditions available to thecustomer free of charge. Within the scope of its responsibility, thecustomer shall ensure compliance with the open source license
conditions applicable to the open source software.
In particular, the Contractor uses software from the manufacturer
Autodesk as a third-party product, and primarily the product
AutoCAD. If the Contractor supplies AutoCAD to the customer in its
own name and on its own account as an OEM version, the customer
undertakes to use AutoCAD only in conjunction with the software it
has purchased and, in addition, to comply with all license conditionsof Autodesk. If AutoCAD is not included within the agreed scope ofdelivery for the customer, the customer undertakes to agree a valid

license contract with the manufacturer or a supplier that authorizes
them to use the currently valid version of AutoCAD (together with thesoftware from the Contractor). If the customer licenses AutoCAD orother third-party software or open source software itself by, forexample, downloading it from the manufacturer's website, theContractor is not the contracting party in this case; the Contractor also
accepts no consulting liability toward the customer, e.g., with regard
to licensing issues. In this case, the contract and license conditions
applicable to the third-party product apply exclusively to thecontractual relationship between the customer and the manufacturer
or supplier.
Section 2 Offers, delivery deadlines, scope of delivery, customer
responsibility
1.

Offers from the Contractor are without obligation and non-binding
unless the offer is declared as binding in writing. In this case, the offerfrom the Contractor is valid for two (2) weeks unless otherwise
indicated. On its part, the customer remains bound for four (4) weeks
to declarations given on the agreement of contracts.

2.

Delivery schedules and deadlines are approximate and non-binding
unless they are expressly designated as binding in the offer from theContractor. Compliance with the agreed delivery schedules anddeadlines requires the timely receipt of all required documents andinformation as well as the timely supply of the required provisions andcooperation by the customer.

3.

Events outside the control of a contracting party, such as force
majeure, strikes, lockouts, non-delivery or delay in the delivery of
supplies from third parties despite congruent covering transactions
being agreed, that make the delivery or performance significantly
more difficult or temporarily impossible, authorize the affected
contracting party to extend the fulfillment of its obligations by the
duration of the impediment plus an appropriate restart time. The
contracting parties shall inform each other of the occurrence and theend of such circumstances without delay.

4.

Unless otherwise agreed, on delivery, the customer shall receive thecurrently valid version of the software. The customer has no claim to
the supply of the source code of the software; the only exceptions tothis are such open source programs whose license conditions
expressly allow for the supply of the source code. Together with thesoftware, the customer shall receive an integrated electronic user
manual in German and English.

5.

Unless the contracting parties agree otherwise, the customer is
responsible for the installation and integration of the software in its
existing system environment, for meeting the system prerequisites,
for the smooth interaction between software and hardware, as well as
for the interaction between the software delivered and other software
applications of the customer. The provision of services above andbeyond the delivery and licensing of the software, such as thecommissioning of the software, the adjustment of the software to theparticular needs of the customer, the creation of interfaces to existing
programs of the customer, and other implementation and integration
services require the conclusion of a separate agreement.
Section 3 Rights of use of the software1.

In the relationship with the customer, the Contractor or its licensors
are exclusively entitled to all copyrights and industrial property rights
to the software (including all new versions). The customer receives
only the simple rights of use to the software described in this Section
3.

2.

Unless otherwise regulated in an individual contract, for the softwaredelivered, the Contractor grants the customer, conditional oncomplete payment of the agreed remuneration, the non-exclusive
right, unlimited in time and location, to use this software for theagreed purposes or for the commercial purposes of the customer as
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General terms and conditions
for the supply and licensing of software
Status: November 01, 2019
stipulated by both contracting parties. For a temporary supply ofsoftware, the applicable special rules in Section 10 of these T&C forsoftware take priority.
3.

4.

5.

6.

7.

The customer may save and operate the software on the type andnumber of systems contractually agreed, as well as for the agreed
type and number of licensed units (e.g., authorized users,
workstations). The type and scope of the rights of use granted andthe range of content of the licenses (e.g., the agreed purposes of use)are stipulated in detail in the individual contract. The rights of use
granted refer solely to a use of the software in the object code. Within
the scope of the contractual use, the customer is authorized to copy
the software and to make the required backup copies, which must belabeled as such. On installation of a new version of the software
supplied to the customer, for example within the scope of
supplementary performance or maintenance, the rights of use for theprevious program version become null and void.
The sublicensing, leasing and other forms of supply, limited in time,of the software to third parties, the use of the software in SaaS,
outsourcing, or data processing center operation, or any other use of
the software by or for third parties either in return for remuneration
or free of charge requires the prior written consent of the Contractor.
Companies associated with the customer under company law are also
deemed to be third parties.
The customer is not authorized to translate, edit or reconfigure thesoftware beyond the legally permissible statutory scope. Decompilingof the software to establish the interoperability of the software withother programs is permitted only within the enforceable limits of theapplicable law and if the Contractor, despite a written request by thecustomer, does not voluntarily provide the required information anddocuments within an appropriate period.
If the customer receives software for test purposes, the rights of useof the customer are limited to such actions that serve to establish thestatus of the software and its suitability for the operation andindustrial purposes of the customer. Usage actions beyond this, inparticular productive operation, are equally as impermissible as thecreation of copies (including backup copies), the editing of thesoftware and the decompiling of the software. In addition, the rights
of use covered in this Section 3 also apply to test licenses. On
expiration of the agreed test period, the customer must delete thesoftware from its systems completely and irretrievably and confirm
the deletion to the Contractor in writing when requested to do so.
Without the prior written consent of the Contractor, the customer
shall not use the software (directly or indirectly) in the context of thedevelopment, production, control, storage or use of nuclear, militaryor medicinal products, nor in any other areas of use in which any
malfunction of the software can lead to grave danger to life and limbof the users or of third parties.

8.

Any use of the software beyond the regulations in this Section 3
and/or the license conditions in the individual contract requires theprior written consent of the Contractor. If the software is used without
this consent, the Contractor shall invoice the customer for
remuneration covering this further use in accordance with its
respectively valid price list (including retrospectively). Claims tocompensation remain reserved. The customer is obliged to notify theContractor in advance of any change that affects its rights of use.

9.

The Contractor is authorized to check compliance with the agreed andproper use of the software by the customer at its own cost, including
on site at the business premises of the customer. The Contractor canalso engage a third party that is obliged to maintain confidentiality toperform this check. The customer shall generally be notified of thecheck at least one week in advance and the check shall take place
during the usual operating hours of the customer in a way that does
not unreasonably impede the business activities of the customer. The

Contractor undertakes to keep any information obtained during thecheck that does not relate to the software secret. If such a check
determines that the customer has violated or exceeded the rights ofuse granted to it under the terms of the contract, the customer isobliged to obtain the corresponding additional licenses. Further
rights of the Contractor, including to compensation, remain
unaffected.
10. The customer may only supply software purchased for permanent use
to a third party by finally relinquishing its own usage. Transfer of thesoftware requires the prior written consent of the Contractor. The
Contractor shall grant its consent if the customer submits a written
declaration from the third party in which the third party undertakes
to the Contractor to comply with the license conditions agreed for thesoftware and if the customer assures the Contractor in writing that,within the scope of the onward sale, the customer has supplied all
original copies of the software to the third party and has deleted all
copies that it has made itself.
Section 4 Remuneration and terms of payment
1.

The amount and due date of the license remuneration results fromthe individual contract and, in addition, from the price list of theContractor that was valid at the time the individual contract wasagreed.

2.

Unless otherwise agreed, all prices are understood to be in euro, plus
the applicable legal sales or added value tax, where this tax is due.
Any further taxes, duties and other charges due shall be borne by thecustomer. Payments must be made by the customer without delay
and without deduction on receipt of the invoice.

3.

The customer is only authorized to offset amounts that are
undisputed or legally binding. The customer is authorized to exercise
the right to withhold payment only to the extent that its counterclaim
is undisputed or legally binding and is based on the same contractual
relationship.
Section 5 Warranty

1.

The customer shall inform the Contractor, in an understandable formin writing or via email, of any defects in the software immediately
upon delivery or, in the event of any hidden defects, immediately on
discovery of such defects. The customer shall take all reasonably
acceptable required measures to determine, limit and document
defects. This can include the creation of a defect report, system logs
and memory extracts, the provision of the input and output data
affected, of interim results and test results, and other information anddocuments suitable for illustrating the defect. If there are any further
legal requirements to provide notice of defects immediately onreceipt of goods, these remain unaffected.

2.

The Contractor guarantees that the software has the properties andfunctions described in the product description, and no rights of third
parties obstruct the contractual use of the software. Claims by thecustomer can only be asserted for defects that can be reproduced orthat can be described by the customer such that they can be verified.
Functional impairments that arise, for example, from improper use of
the software by the customer, from the system environment of thecustomer, or from other circumstances resulting from the risk area ofthe customer do not represent defects. It is also a prerequisite of thewarranty that the customer shall comply with the system prerequisites
and usage conditions stipulated by the Contractor and shall notchange the software or use it in violation of the terms of the contract(e.g., with a different database/database version, a different operating
system/a different operating system version, or in a different system
environment) unless the customer can demonstrate that the defect isindependent of any such use.

3.

The customer is aware that, with regard to software supplied for test
and demonstration purposes, the software may be prototypes, Beta
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General terms and conditions
for the supply and licensing of software
Status: November 01, 2019
versions or similar, for which stability and freedom from defects have
not yet been tested for all usage purposes completely under
productive usage conditions—therefore, in this regard, there can be
no warranty claims against the Contractor (unless the Contractor has
intentionally concealed a defect).
4.

Insofar as there was a defect in the software supplied at the time ofthe passing of the risk, the Contractor guarantees improvement
which, as chosen by the Contractor, shall take the form of a re-delivery
of software with no defects (e.g., as part of a subsequent update) or
elimination of the defect within an acceptable time. Defects may also
be eliminated by the Contractor initially demonstrating reasonableoptions for avoiding or circumventing the effects of the defect to thecustomer (workaround).

5.

If the improvement fails definitively (at least two (2) improvementattempts for each defect) or is finally refused by the Contractor, thecustomer can reduce the remuneration. More than two (2)improvement attempts may be acceptable for the customer due tothe complexity of the software. The Contractor is liable for damages
due to defects within the scope of the limits defined in Section 7.

6.

If the Contractor provides services relating to finding and/or
eliminating defects without being legally obliged to do so, theContractor can demand compensation from the customer based on
the effort involved in accordance with the Contractor's currently valid
price list. This applies in particular if a defect reported by the customer
cannot be verified or cannot be attributed to the Contractor. There isno entitlement to compensation if there is no fault on the part of thecustomer, in particular because the customer was unable to detectthat there was no defect in the software.

7.

The statute of limitations for warranty claims by the customer fromthis Section 5 is one (1) year from delivery of the software.

8.

In the event of defects in third-party products delivered with thesoftware and identified as such in the individual contract (see Section
1, paragraph 5), the Contractor shall, at its own discretion, assert its
warranty claims against the manufacturer or sub-supplier on behalfof the customer or, as far as legally possible, assign the rights to thecustomer for the customer to assert them. The warranty rights of thecustomer result from the conditions of the manufacturer or subsupplier. These warranty rights against the Contractor apply
exclusively to the extent that the Contractor asserts the warranty
rights against the manufacturer/sub-supplier in accordance with theconditions of the manufacturer/sub-supplier. There are no further
warranty rights against the Contractor with regard to third-party
products.
Section 6 Infringements of industrial property rights

1.

The Contractor guarantees that the software supplied to the customer
is free of any industrial property rights of third parties and theContractor indemnifies the customer against claims by third parties
for infringements of industrial property rights in accordance with theprovisions set out below.

2.

If third parties assert claims against the customer for the infringementof their industrial property rights by the software, the customer shallinform the Contractor of such claims in writing and in full without
delay. The Contractor is authorized, but not obliged, to conduct the
dispute with the third party alone in judicial and extra-judicial
proceedings. If the Contractor exercises this entitlement, thecustomer shall support the Contractor in its legal defense to an
appropriate extent without remuneration. The customer shall not
acknowledge the claims of the third party on its own behalf.

3.

If, on the transfer of risk, the software has a defect of title, theContractor shall supply the customer with a legally unobjectionablemeans of using the software within the scope of supplementary
performance. Alternatively, the Contractor can replace the softwarewith equivalent software. If a violation of the industrial property rights
of a third party and/or a legal dispute regarding the claims of the third
party can be eliminated or avoided by the customer using a more upto-date version of the software provided free of charge by theContractor, the customer is obliged to accept and use this up-to-dateversion of the software within the scope of their duty to avert,
minimize or mitigate loss.
4.

The statute of limitations for warranty claims by the customer fromthis Section 6 is one (1) year from delivery of the software.

5.

Within the scope of the liability limitations in Section 7, the Contractor
shall indemnify the customer against any damages arising from theinfringement of the industrial property rights insofar as thesedamages result from a defect of title in the software used inaccordance with the contract by the customer that can be attributed
to the Contractor and were determined to be legally binding or wereacknowledged by the Contractor. In addition, for claims by thecustomer due to defects in title, the regulations for material defects
in Section 5 apply accordingly.

6.

In particular, the Contractor is not liable if claims by a third party foralleged infringements of industrial property rights are due to the factthat the customer has changed the software or used it in violation of
the usage conditions agreed in the contract or for purposes otherthan those contractually agreed.
Section 7 Liability

1.

If the Contractor supplies software to the customer without any
remuneration being due, for example during a test phase free ofcharge, the Contractor is only liable in this regard for intentional andgrossly negligent breaches of duty. Furthermore, if the Contractor
supplies software to the customer as a prototype or Beta version forevaluation purposes, the Contractor is not liable for damages thatarise from unauthorized productive use of the software by thecustomer.

2.

In addition, the Contractor is only liable to the customer for damages
that can be attributed to culpable breach of contract by theContractor to the following extent, irrespective of the legal basis:a.

In the event of injury to persons as well as intentional damage
and damage caused by gross negligence, the full amount;b. In all other cases, to the amount limited by the license
remuneration paid by the customer, whereby the liability forindirect damages and consequential damages (e.g., due to a lossof production or operational standstill), as well as the liability forlost profit and other financial loss is excluded.
3.

The customer must take all required and reasonable measures toprevent or limit damage; in particular, the customer must ensure thatits programs and data are backed up regularly. The Contractor is only
liable for the recovery of data within the limits of Section 7, paragraph2 insofar as the customer has ensured that the data held in electronic
form can be reproduced at any time with a reasonable effort.

4.

The aforementioned limitations of liability also apply to the benefit of
the legal representatives, auxiliary persons and employees of theContractor.

5.

Mandatory legal liability elements, e.g., from product liability law,remain unaffected by the aforementioned regulations.

6.

The statute of limitations for claims by the customer for compensation
for damages is one (1) year. The statute of limitations for claims
against the Contractor remains unaffected if there is a statutory legal
regulation that conflicts with a reduction in the statute of limitations.

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General terms and conditions
for the supply and licensing of software
Status: November 01, 2019
Section 8 Rights to (machine) data
1.

2.

3.

If operational (machine) data, e.g., regarding technical systemstatuses, is created, collected or processed in any other way by thecustomer using the software delivered by the Contractor, thecustomer shall grant the Contractor all rights to the data transmitted
by the customer or accessible to the Contractor and required to fulfill
the contract, in particular, the rights to save and process such data.
Furthermore, the customer shall grant the Contractor the right,
unlimited in time, location and content, free of charge, to evaluate the(machine) data for its own business purposes, in particular analysis,
optimization and benchmarking purposes, and for these purposes, tomerge this (machine) data with other data, to copy and to process it,
and to distribute it in any form. In particular, the Contractor shall use
such data to improve the quality of its services for all customers.

Section 10 Special rules for the temporary supply and licensing ofsoftware (supply agreements)
1.

If the contracting parties agree a temporary use of the software by
the customer, the following special rules apply and take priority forthis use before the remaining provisions of these T&C for software.

2.

In the event of significant defects in the software supplied, after failureof supplementary performance or repair, the customer has the rightto extraordinary termination of the contract insofar as the customer
cannot reasonably be expected to adhere to the contract due to thedefect. In addition, Sections 5 and 6 apply accordingly for liability due
to defects in goods or title of the software.

3.

Unless otherwise agreed, the contracting parties can terminate suchsupply agreements with a notice period of three (3) months at the endof a calendar year, for the first time on expiration of the contractuallyagreed and binding minimum contract term. If no other duration isexpressly agreed in the individual contract, a binding minimum termof one (1) year applies. The right of both contracting parties toextraordinary termination of the contractual relationship for goodcause remains unaffected. There is good cause that authorizes theContractor to extraordinary termination of the contract without noticein particular if bankruptcy or administration proceedings are initiatedagainst the customer, or if the customer is more than two (2) months
in arrears with a not insignificant part of the agreed remuneration.
Any termination must be given in writing to be effective.

4.

The rights of the customer to use the software cease automatically ontermination of the supply agreement. The customer is obliged to
finally and completely delete all copies of the software from allservers, workstations, computers, machines and devices, and to return
all data carriers, documentation and other materials supplied. In theevent of a corresponding request by the Contractor, the customer
shall confirm the final and complete deletion of the software in
writing.

The Contractor shall ensure that the customer and its employees arenot (even indirectly) identifiable for third parties and that any
operational and business secrets of the customer do not reach third
parties (e.g., through anonymization or aggregation of the data). Alldata shall be saved and backed up such that third parties have noaccess to the data. In this respect, the contracting parties can agree
additional security measures in the individual contract.
Section 9 Confidentiality and data protection

1.

2.

The contracting parties undertake to keep all operating and businesssecrets of the respective other party entrusted to them, madeaccessible to them or that have otherwise become known to them, as
well as any other recognizable, confidential operational facts secret,to use such confidential information only for the purpose intended in
the individual contract and, furthermore, not to disclose suchinformation to third parties. The confidential information of theContractor includes, in particular, the software in all forms ofexpression together with the documentation. The contracting parties
shall grant only those (sworn to secrecy) employees andsubcontractors access to the confidential information who needknowledge of such information for the purposes of the individual
contract.
The obligation to maintain confidentiality does not apply for
confidential information that was known to the recipient beforehandwith no obligation to maintain confidentiality or that is or will become
known generally without the recipient being responsible for this, orthat the recipient receives legally from a third party with no obligation
to confidentiality or that has been verifiably developed by therecipient independently.

3.

The contracting parties undertake to store all business objects, datacarriers and documents made available to them by the respective
other contracting party securely so that they cannot be accessed bythird parties and to hand them over to the other contracting party
when requested to do so.

4.

To the extent that the Contractor processes personal data belonging
to the customer, the Contractor shall, in writing, oblige the employees
entrusted with processing this data to handle the data confidentiallyand to comply with the applicable data protection regulations before
they commence their work. If the customer grants the Contractor
access to its personal data, the customer shall ensure that the relevant
legal requirements for transfer to and processing by the Contractor(and, where applicable, its subcontractors) are fulfilled.

5.

If the customer agrees to be named as a reference customer, theContractor may include the name of the customer in a reference list
for its own marketing purposes and in this context, may also use thecustomer's company symbols, brands and logos in printed
publications and online, in particular on the Contractor's website.

Section 11 Final provisions
1.

An assignment or transfer of contractual rights and obligations tothird parties—included associated companies of the customer—by
the customer requires the prior written consent of the Contractor.

2.

All changes and additions to the contract, as well as any declarations
relevant to the contract, must be made in writing to be effective (a fax
is sufficient, an email is not sufficient). The written form requirement
can itself only be canceled in writing.

3.

These T&C for software and the contract are subject exclusively to
Swiss law, with the exclusion of conflicting standards in international
private law and the exclusion of the United Nations' Convention on
Contracts for the International Sale of Goods (CISG). The place ofjurisdiction for all disputes arising in connection with the contract is
Zurich, Switzerland. The Contractor also has the right to start legal
proceedings at any other court of law that may have jurisdiction undernational or international law.

4.

The software or the export of the software may be subject to national
and international export control law regulations, in particular thosecontained in legislation in Switzerland, the European Union and theUnited States of America. The customer undertakes not to export thesoftware to countries or natural or legal persons for which there is aban on exports according to the applicable export legislation. In theevent of an onward sale or other export, the customer is responsible
for compliance with any export requirements (e.g., obtaining official
permits) and must bear the associated costs. The customer shallindemnify the Contractor against all costs and damages connected to
culpable violation by the customer of export control regulations.

5.

If individual provisions of these T&C for software or the individual
contract are or become ineffective, or if the contract contains a

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General terms and conditions
for the supply and licensing of software
Status: November 01, 2019loophole, the effectiveness of the remaining provisions remains
unaffected. In place of the provision that is ineffective or missing, aneffective provision that is as close as possible to the businessintentions of the contracting parties at the time the contract wasagreed is considered valid.

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