Terms and Conditions

Terms and Conditions

1. Agreement

The terms and conditions (“Terms”) shall apply between SECUDE AG solutions (Vendor) and Customer (Customer) and shall govern the licensing of Secude HaloCORE and HaloCAD to which the Terms are attached (this proposal, the “Proposal” and this software, including updates, upgrades, bug fixes etc., “Software“), the purchase of related support and maintenance and/or other services (such as training) and the use of SECUDE HALOCORE® and SECUDE HALOCAD® as well as the provision of the aforementioned services. Capitalized terms have the meanings set forth herein.

2. Subject Matter

  • Customer acquires Software from Vendor as well as the related product description in the language specified therein and will receive services from Vendor (collectively the “Subject Matter(s)”) under the Terms agreed in this contract (including the Proposal and the other contractual documents, such as Software documentation, the “Contract”). The source code of the Software is not part of the Contract. Under a separate Agreement for the provision of Implementation and Consulting Services (“Implementation and Consulting Agreement”), Vendor and Customer agree the terms and conditions on which Vendor will implement the Software for the Customer. These Terms & Conditions do not apply to the subject matter of the Implementation and Consulting Agreement.
  • For the quality of the Software supplied by Vendor, the service description valid at the time of shipment of the contractual items and available to the Customer prior to the conclusion of the Contract is definitive, which is also described once more in the product performance description. The Vendor does not owe any further condition of the Software. In particular, the Customer cannot derive such an obligation from other representations of the Software in public statements or in the advertisement of the Vendor and / or the Manufacturer, as well as their employees or partners, unless the Vendor has the additional quality expressly confirmed in writing.
  • Insofar as employees of the Vendor provide warranties prior to the conclusion of the Contract, these are only valid if confirmed by the Vendor in writing
  • 3. Software License

    Subject to payment of all applicable fees, Secude grants to Customer a term-limited, non-exclusive, Worldwide, non-transferable, non-assignable, irrevocable, non-terminable right to install and use the software, in accordance with and limited by the Entitlement. The license term, as specified in the Entitlement, begins on the date that the Software is made available for download. Customer may install the Software and use the number of copies of the Software as described in the Entitlement.

  • This license is not sub-licensable to third parties who use the software for customer’s purposes (e.g. Outsourcing provider) and to affiliates of customer, unless explicitly agreed otherwise in writing. no further usage restriction (such as number of named users or number of outputs) apply.
  • Customer acknowledges Secude’s claim that software contains its trade secrets and shall treat it as such. Customer will not attempt to disassemble, decompile, reverse-engineer or otherwise endeavour to discover or disclose the source code or the methods and concepts embodied in the Software. Except as expressly allowed under this Agreement, Customer shall not use, copy, modify, transcribe, store, translate, sell, lease, transfer or distribute any of the Software in whole or in part. Customer shall not remove or destroy any copyright, patent, trademark or other proprietary mark or notice on any Software and shall reproduce any such marks on any copies that Customer makes hereunder.
  • Customer doesnot employ or authorize a Secude Competitor to use or view the Offering or Documentation, or to provide management, hosting, or support for an Offering; (ii) alter, publicly display, translate, create derivative works of or otherwise modify an Offering; (iii) sublicense, distribute or otherwise transfer an Offering to any third party (except as expressly provided in a written statement)..
  • 4. Prices and Payments

    The price for Products purchased, subscribed and/or licensed hereunder shall be that provided in Secude’s quotation, or, if no quotation is valid and existing, then the price listed in Secude’s standard price list. Prices shall be memorialized in an accepted Order, and shall be exclusive of taxes and shipping charges, which shall be added to the invoice as separate line items.

  • Customer shall pay for Products ordered under this Agreement within thirty (30) days from the date of invoice, which shall be issued on the date that the Software component of the Order is made available for download. Payment of other charges invoiced separately shall be made within thirty (30) days of invoice date.
  • All fees exclude delivery charges, value added tax (if applicable) and any other taxes or import charges at the Customer’s destination.
  • Vendor may adjust the running fees for Maintenance and Support Services every twelve (12) months by a percentage that equals the increase of the index “German Consumer Price Index” in the previous twelve (12) months’ period. Vendor will inform Customer about any such increase at a reasonable time in advance.
  • 5. Warranty

  • Vendor warrants that the Software meets the functionalities, performance and other parameters agreed in the Contract and, if the Contract is silent, which Customer, acting reasonably, may expect to be part of the Software and that the Software and its operation and use is free of any defects and free of third-party rights. In the case of a breach of this warranty, in addition to the contractual rights agreed herein, the statutory rights for the purchase of goods apply.
  • Vendor warrants that it will perform all services state of the art and in accordance with applicable industry standards.
  • Exclusive Warranty: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  • 6. Limitation of Liability

    In no event shall Secude be liable for any damages resulting from loss of use, data, profit, or business, or for any special, exemplary, punitive, indirect, incidental, special or consequential damages including lost profits and revenues, whether arising in an action of contract, tort or other legal theory. Secude’s liability for damages for any cause whatsoever, and regardless of the form of action (in contract or tort), shall be limited, per damage causing event, to the fees payable by customer in the last twelve (12) months prior to the damage causing event. Stated in the particular order for the product(s) that caused the damages or are the subject matter of the cause of action.

    7. Indemnification

    Vendor will, at first request, indemnify and hold Customer (for the purposes of this Section, the term Customer includes Customer’s affiliates, representatives, employees, managers etc.) harmless from and against claims (including attorney’s fees) that a third party raises against Customer as a consequence of Customer’s use of the Software and services from Vendor (e.g. arguing that the use of the Software infringes the third-party intellectual property rights). This obligation shall not apply to the extent that the claim is raised as a direct result of Customer’s breach of the Contract or Customer’ unauthorized modification of the Software. Section 8 does not apply.

    8. Confidential Information

    ”Confidential Information“ is, subject to Section 9.2, any information obtained from or made accessible by a party which is either marked as confidential or is, by its nature, to be reasonably considered confidential, including technical and commercial know-how and data, production processes or parameters, business strategies, designs, drawings, specifications, plans, reports, notes, analyses, photographs and samples, irrespective of its form and medium in which it is contained, as well as personal data that is connected to or relates to the purposes of the Subject Matter.

    Confidential Information shall not include such information that

  • is or subsequently becomes publicly available without the breach of any obligation of confidentiality;
  • was lawfully made available to the receiving party without an obligation of confidentiality by a third party who has not derived it directly or indirectly in breach of a duty of confidentiality;
  • has been independently developed by the receiving party without infringing a duty of confidentiality; or
  • became known to the receiving party through legally accessible sources prior to the disclosure of such information hereunder.
  • Either party will keep confidential the Confidential Information that it has received from the other party and will apply at least the same level of care as it applies to its own Confidential Information.
  • The receiving party may disclose Confidential Information to
  • its employees and affiliates who need to know such information for the purposes of the Subject Matter and who, in respect of the Confidential Information, are bound by obligations of confidentiality and non-use no less stringent than contained herein; or
  • external consultants (and their employees) working on behalf of the Customer or its affiliates to the extent to which their involvement requires access to the Confidential Information and to the extent that they are bound by terms of secrecy and non-use no less stringent than the terms contained herein.
  • At termination or expiration of the Contract, the receiving party will either destroy or, upon request return all Confidential Information it has received from the disclosing party within thirty (30) days and confirm full return or deletion in writing. To the extent that Confidential Information is stored in back-ups, the receiving party will keep such back-ups confidential until the back-up is destroyed. Should the receiving party use a back-up that contains Confidential Information from the disclosing party, it will delete this Confidential Information immediately when it starts using the back-up.
  • The obligations under this Section 9. continue to apply for a period of two (2) years after termination of the business relationship.
  • The parties have concluded a separate non-disclosure Agreement attached in Annex 6 of the Implementation and Consulting Agreement which will apply to this Agreement, except as expressly stated otherwise or in the event of any inconsistency, in which case the provisions of this Agreement will prevail.
  • 9. Intellectual Property

    All right, title and interest, including, but not limited to, all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets and know-how), throughout the world (“IPR”) in and to SECUDE Solutions and all derivative works, modifications, and improvements, are retained by SECUDE and are our confidential information.

  • Except for the rights granted to Customer hereunder, Vendor retains all ownership and intellectual property rights to the Software and anything provided to the Customer under these Terms.
  • Customer acknowledges that Customer does not own any copyright, trade mark and any other intellectual property rights related to the Software. Furthermore, Customer agrees not to remove any notice of Vendor’s proprietary rights.
  • Customer (or any third party engaged by Customer) will not decompile or reverse engineer or attempt to decompile or reverse engineer any part of the Software. Furthermore, Customer will not attempt to decipher the protective device/program, and Customer acknowledges that any such attempted act may corrupt or damage the Software. Any mandatory rights of Customer to do any of the foregoing remain unaffected.
  • 10. Force Marjourie

    Secude shall not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond Secude’s reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

    11. Data Privacy

    Both contracting parties undertake to comply with applicable data protection regulations, in particular the General Data Protection Regulation. Vendor will not process any personal data for Customer or Customer’s affiliates and Vendor guarantees that it will not have actual or potential access to personal data of Customer or Customer’s affiliates (other than the business contacts for performing the Contract). In the event the Vendor also acts as a processor for and processes personal data on its behalf, the Parties shall enter into a separate data processing agreement.

    12. Term and Termination

    These legal terms shall remain in full force and effect while customer is using Secude software and services. We may terminate immediately upon notice and without liability if the use is fraudulent, you breach your use rights, continued use would subject us to legal, regulatory, or third-party liability.

  • Purchased software is not terminable.
  • Maintenance and Support Services may be terminated.
  • Subscribed software and services may be terminated.
  • Either party’s right to terminate for cause remains unaffected.
  • 13. Maintenance and Support and Other Services

  • Vendor shall support the Customer regarding the usage of the Software on the operating system described in the Contract and respond to questions on the functionality of the Software, error analysis and debugging as well as the provisioning of updates with programming corrections (“Maintenance and Support Services”).
  • Maintenance and Support Services will start and be invoiced accordingly six (6) months after the Contract has been signed by both parties and will end after a minimum maintenance Contract duration of three (3) years. Following this initial term, Maintenance and Support Services automatically renew at the agreed rates and terms for subsequent one (1) year periods, unless Customer provides Vendor with notice of its intent not to renew thirty (30) or more days before expiration of the then-current period. Vendor recognizes Customer’s upfront investment and may terminate the Maintenance and Support Services no earlier than after expiration of the fifth (5th) Contract year (i.e. the second renewal term).
  • If requested by the Customer, Vendor may supply, against additional fees, training or other agreed services of all or any part of the Software, which are not generally included in the Maintenance and Support Services.
  • 14. Fees and Payments

  • Customer shall pay the licence and maintenance fees as outlined in the Proposal.
  • Customer is not obliged to pay an invoice if Customer disputes the correctness of the invoice in good faith. In this case, Customer will inform Vendor and the parties will discuss a correction of the invoice (if it turns out that the invoice is actually incorrect) in good faith.
  • All fees exclude delivery charges, value added tax (if applicable) and any other taxes or import charges at the Customer’s destination.
  • Vendor may adjust the running fees for Maintenance and Support Services every thirty-six (36) months by a percentage that equals the increase of the index “German Consumer Price Index” in the previous thirty-six (36) months’ period. Vendor will inform Customer about any such increase at a reasonable time in advance.
  • 15. Warranties

  • Vendor warrants that the Software meets the functionalities, performance and other parameters agreed in the Contract and, if the Contract is silent, which Customer, acting reasonably, may expect to be part of the Software and that the Software and its operation and use is free of any defects and free of third-party rights. In the case of a breach of this warranty, in addition to the contractual rights agreed herein, the statutory rights for the purchase of goods apply.
  • Vendor warrants that it will perform all services state of the art and in accordance with applicable industry standards.
  • 16. Dispute Resolution

    Any controversy between the parties to this Agreement involving the construction or application of this Agreement, shall on written request of either party served on the other, be submitted first to mediation for a minimum period of thirty days, and then, if still unresolved to binding arbitration. Said mediation and arbitration shall comply with and be administered by the Commercial Arbitration Rules unless the Parties stipulate otherwise and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The attorneys’ fees and costs of arbitration shall be borne by the losing party, unless the Parties stipulate otherwise, or in such proportions, as the arbitrator shall decide. Notwithstanding the foregoing, either party may, at any time, apply to any court of competent jurisdiction to obtain interim relief to prevent irreparable harm to such party or to preserve the status quo pending further resolution.

    17. Final Provisions

  • The Contract governs the Subject Matter exclusively, there are no oral or other written agreements, other than the Implementation and Consulting Agreement, that relate to the Subject Matter.
  • Changes or additions to the Contract are only effective if they have been agreed in writing. This also applies to a change of this written form clause. For the written form it is sufficient that a party prints a document, signs it and sends a scan of the signed copy back to the other party electronically.
  • The Contract, including the license, shall be governed by German law except for its conflict of laws-rules. The parties explicitly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  • The exclusive place of jurisdiction for all disputes arising out of and in connection with the Contract is the place of business of the Customer.
  • 18. Severability Clause

  • Should any present or future provision of the Contract be or become wholly or partially invalid / unenforceable or should a gap in this Contract or its supplements prove to be inapplicable, this shall not affect the validity and enforceability of the remaining provisions.
  • In place of the void provision or to fill the gap, the effective and enforceable provision is to be agreed, which comes closest to the legal and economic, what the parties would have wanted or according to the purpose of the Contract and its possible later additions if they had considered this point when concluding the Contract.
  • If the nullity of a provision is based on a measure of performance or time specified therein (time limit or deadline), the provision shall be consistent with a legally permissible measure closest to the original one.
  • 19. General

    Customer may not assign this Agreement or any of its rights hereunder without the prior written consent of SECUDE, which consent SECUDE may reasonably withhold. Any attempt to assign any of the rights, duties or obligations under this Agreement without such consent shall be void. Any waiver of rights under this Agreement must be in writing, signed by the party waiving such rights. The waiver or failure of either party to exercise in any respect any right provided for herein on one instance shall not be deemed a waiver on any future occasion or of any further right hereunder. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals and all previous negotiations and agreements, written or oral, between the parties with respect to the subject matter hereof.

    20. Severability Clause

  • Should any present or future provision of the Contract be or become wholly or partially invalid / unenforceable or should a gap in this Contract or its supplements prove to be inapplicable, this shall not affect the validity and enforceability of the remaining provisions.
  • In place of the void provision or to fill the gap, the effective and enforceable provision is to be agreed, which comes closest to the legal and economic, what the parties would have wanted or according to the purpose of the Contract and its possible later additions if they had considered this point when concluding the Contract. If the nullity of a provision is based on a measure of performance or time specified therein (time limit or deadline), the provision shall be consistent with a legally permissible measure closest to the original one.