Legal
General Terms and Conditions of Business and Licensing
as of May 2025
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A.
Scope of Application, Conclusion of Contract
1.
Contracting Party, Subject of Regulation
1.1
These General Terms and Conditions of Business and Licensing (“GTC”) shall apply to all existing and future contracts for the time-limited use and support of software products (software rental or software subscription), as well as for consulting, training, and other services between SIMCON kunststofftechnische Software GmbH, Schumanstrasse 18a, 52146 Wuerselen, Germany, or a company affiliated with it under company law (“SIMCON”) on the one hand and users of software products or services of SIMCON on the other hand (“Customer”).
1.2
For software packages ordered by the Customer from SIMCON, including the modules selected for each user account (seat) (“License Agreement”), including any hardlocks, necessary files, test examples, and associated user documentation (hereinafter collectively referred to as “Software”), the terms of use and support in accordance with Part B of these GTC (“License Conditions”) shall apply. For consulting, training, and other services ordered by the Customer from SIMCON (“Service Agreement”), the provisions of Part C of these GTC (“Service Conditions”) shall apply. In addition, both the License Conditions and the Service Conditions are subject to the general provisions in Part D of these GTC (“General Terms and Conditions”).
1.3
The present GTC do not regulate the adaptation and further development of the Software by SIMCON. Such services shall be provided on the basis of separately concluded contracts. In this respect, these GTC shall only apply in a supplementary manner.
1.4
These GTC are written in German and English (International), American English, and French—available on SIMCON's homepage. In the event of contradictions between the language versions, the German version will prevail.
1.5
General terms and conditions of the Customer are hereby rejected. They will not be recognized even if SIMCON does not expressly object to them again before or upon the conclusion of a contract.
2.
Conclusion of Contract
2.1
Offers from SIMCON do not constitute binding contractual offers but merely an invitation to the Customer to submit an offer, to which SIMCON is bound for a maximum of 30 days.
2.2
The License Agreement and/or the Service Agreement shall only take effect through our written order confirmation and not merely upon the Customer's order. The order confirmation may also occur implicitly through the delivery of the ordered Software, making the Software available for download, providing the commissioned service, or issuing an invoice.
2.3
If the Customer objects to the inclusion of these GTC in the License or Service Agreement, particularly if they do not accept the validity of the License Conditions when loading the Software into the RAM of their computer for the first time, SIMCON is entitled to withdraw from or terminate the License or Service Agreement.
B.
License Conditions
3.
Scope
3.1
The subject matter of the License Conditions is the granting of rights of use (“License”) to the Software for the term of the contract and the support services to be provided by SIMCON.
3.2
The License is granted subject to full payment of the agreed license fee. Until the license fee has been paid, the Customer shall only be provided with a temporary license for the Software; the provisions of clause 6.3 shall apply.
4.
Rights of Use, User-Related Accounts
4.1
SIMCON shall provide the Customer with the Software for a limited period of time, limited to the term of validity of the respective License (clause 5), at SIMCON's discretion on a data carrier or via download, in the number of Licenses ordered by the Customer, and shall grant the Customer a limited, nonexclusive, nontransferable and nonsublicensable License to use the Software in its business for its own purposes and as described in the License Agreement and in the manual. The Licenses granted are person-related (account- or seat-based) and may vary in terms of scope of use (in particular with regard to the Software packages and modules ordered by the Customer) and term per seat.
4.2
Permitted use includes the installation of the Software by the licensed user (seat), loading it into the working memory of the relevant computer, and use by the user in accordance with the contract within the meaning of clause 4.1 on the account set up for the user during installation. Without the express permission of SIMCON, the use of the Software via remote access to the workstation on which the Software is installed is not permitted. Use by unlicensed users is not allowed.
4.3
The Customer is entitled to request SIMCON to transfer the License to another user no more than once a month. In this case, the account set up for the previous user will be deleted by SIMCON, and a new account will be set up for the new user.
4.4
If, during the term of the License Agreement (clause 5.2), the Customer wishes to modify the flexible add-on modules of the Software ordered by him, SIMCON shall configure this accordingly in exchange for an additional monthly fee for the seat in question.
4.5
If special Software protection (hard lock) has been supplied, it must be installed on the relevant hardware in accordance with the instructions. The Software protection may not be passed on to third parties.
4.6
The Software provided by SIMCON (program, hard lock, manual, and any further documentation) is protected by copyright. All rights to the Software and other documents provided in connection with the execution and performance of the contract are vested exclusively in SIMCON with respect to the contracting parties.
4.7
The Software contains components and modules whose rights are held by third-party manufacturers, some of which are open-source software. The Customer was informed of this in the product description prior to the conclusion of the License Agreement and had the opportunity to review the corresponding list of affected components and the license terms of the open-source software.
4.8
Under no circumstances shall the Customer be entitled to rent out the Software or license it to third parties in any other way, reproduce it publicly in a wired or wireless manner or make it accessible to third parties, or make it available to third parties in return for payment or free of charge.
4.9
The Customer has no right to be provided with the source code of the Software.
4.10
If the Customer uses the Software to an extent that exceeds the acquired rights of use qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of acquired licenses), SIMCON shall be entitled to demand from the Customer the subsequent payment of the license fees that would have had to be paid by the Customer if they had acquired corresponding licenses for this additional use. Furthermore, the Customer shall pay a contractual penalty for each case of infringement to be determined by SIMCON at its reasonable discretion and to be reviewed by the competent court in case of dispute. The assertion of further claims and rights, in particular for damages, injunctive relief, rescission, or termination, shall remain unaffected.
4.11
The installation of the Software will normally be carried out by the Customer. If the installation of the Software by SIMCON is requested by the Customer, the costs incurred will be invoiced to the Customer at the applicable rate (SIMCON's standard daily rate plus travel and expenses) unless otherwise agreed.
4.12
If, upon purchasing a License in accordance with clause 4.1 (“New License”), the Customer already holds an unlimited License (“Old License”) granted under a licensing system valid until April 30, 2025, the rights of use granted to the Customer up to that point shall be suspended for the term of the License Agreement (clause 5.2) and replaced by the New License; any existing maintenance contract with regard to the Old License shall be terminated. The entry into force of the New License in accordance with clause 5.1 is subject to the condition precedent that the Customer returns any dongle provided to it under the Old License to SIMCON, who shall store this dongle for the Customer free of charge for the term of the New License; otherwise (if no hardware dongle was provided), a software dongle has been deactivated. The Customer is not permitted to resell the Old License to third parties during this period. Upon termination of the New License, the suspension of the rights of use under the Old License shall also end, and the Customer shall be entitled to demand the return of the dongle stored for it or the reestablishment of a software dongle. SIMCON shall not provide any maintenance with regard to the Old License.
5.
Term of the License
5.1
The License shall commence either on the date specified in the License Agreement or, if the Parties have not agreed otherwise, upon delivery of the Software to the Customer.
5.2
The term of the License is at least 1 month (the “Contract Period”) and is extended automatically for each additional Contract Period at the list prices valid at the time unless one of the Parties terminates the License Agreement at least 1 week before the end of the Contract Period. The Parties may also agree on Contract Periods of 1 year or longer, which, if no notice of termination is given, shall also be extended by the respective Contract Period, whereby the notice period in such cases shall be 3 months.
5.3
Both contracting parties may terminate the License Agreement without notice for good cause, in particular if the other contracting party fails to fulfil its obligations arising from the License Agreement, including these General Terms and Conditions, or acts in contravention thereof and a grace period of 30 days set in writing has expired without result.
5.4
Any notice of termination must be made in writing to be effective, whereby transmission by email satisfies the written form requirement.
5.5
In the event of termination or other termination of the License Agreement, the Customer shall cease using the Software, delete the accounts set up and delete or destroy all copies of the Software in its possession, including all license keys, and return any dongles to SIMCON's place of business upon request. Clause 4.12 remains unaffected.
6.
License Fee
6.1
The amount of the license fee payable by the Customer for the temporary License and support services is specified in the order confirmation. The license fee is generally payable annually in advance; if the Contract Period is only 1 month, the license fee shall be paid monthly in advance.
6.2
The license fee relates to use by one (1) user on the account to be set up for that user.
6.3
The License is provisionally granted for a period of 21 days until the agreed license fee payable in advance in accordance with clause 6.1 has been paid to SIMCON. Upon payment, the Software will be activated and the License will be converted into a license limited to the term of the License Agreement. The License shall expire provisionally if the Customer fails to pay the agreed license fee after 21 days; it shall expire definitively if SIMCON declares termination or if the License Agreement ends for any reason whatsoever. Upon provisional or definitive expiry of the License, the Customer shall no longer be entitled to use the Software.
6.4
If the agreed Contract Period exceeds one year, SIMCON shall be entitled during the term of the Contract to adjust the license fee at the end of each contract year for the following period at its reasonable discretion (Section 315 of the German Civil Code (BGB)) in line with changes in the factors relevant to the price calculation. Adjustments shall be made in particular to reflect changes in wage or material costs or changes in economic or legal conditions; price increases customary in the industry shall also be taken into account. Increases in one cost category may only be used to justify a price increase to the extent that they are not offset by any decreases in costs in other areas.
6.5
SIMCON shall inform the Customer of price adjustments in accordance with clause 6.4 in writing at least six (6) weeks before they come into effect. The adjusted prices shall apply for the first time to contract years that commence on or after the effective date of a price adjustment. A price increase shall be deemed agreed if the Customer does not terminate the License Agreement within a period of 30 days from receipt of the notification by the end of the current contract year. The Customer shall be informed of this again separately in the notification.
6.6
Sections 6.4 and 6.5 shall not apply to adjustments of SIMCON's general price list which is incorporated into the Contract by extending the term of the License Agreement for a further Contract Period commencing at the start of the new Contract Period, unless the Customer terminates the License Agreement within a period of 30 days after the start of the new Contract Period.
7.
Obligations of the Customer, Restrictions of Use, Self-Responsibility With Regard to the Results of the Software
7.1
The Customer undertakes to use the Software exclusively for the purposes specified in the Contract. Without the express prior consent of SIMCON, the Customer is not entitled to use the Software or data obtained from the Software in any way that aims to reproduce, replicate or circumvent the central functionalities of the Software or that creates a similar or competing application, or to use it for training or developing replacement or surrogate models based on machine learning.
7.2
The Customer undertakes to take all reasonable safety measures before using the Software in order to minimize or repair any resulting damage to the data and components of the Software otherwise used by the Customer in the event that the Software does not function properly. In addition, the Customer shall protect its systems and data stock against viruses and other forms of malware or ransomware by means of security measures that correspond to the state of the art.
7.3
The Customer shall ensure that the results to be achieved by the Software are not used by him without prior testing and plausibility checks. To this end, the Customer shall thoroughly test the Software for its usability for the purpose intended by it, in particular with regard to the specific components concerned in each case, before it uses it operationally. Furthermore, he shall regularly back up his data in accordance with the state of the art. He shall ensure that the current data from data files held in machine-readable form can be reproduced with reasonable effort.
7.4
All techniques, algorithms and procedures contained in the Software as well as all documents received by the Customer shall be treated confidentially and may only be made accessible to third parties to the extent that this is absolutely necessary for the use of the Software by the Customer. The Customer shall take reasonable measures to protect the Software from unauthorized access by third parties.
7.5
Outside the regulatory scope of § 69 e German Copyright Law, the Customer is not entitled to reverse engineer, decompile, disassemble or otherwise attempt to capture the source program of the Software. It is not permitted to edit, adapt or extend the Software or the documentation in any way, to modify it for use on other systems or to translate it into other languages, unless this is expressly permitted under applicable law.
7.6
The Customer must not sell, give away, lend, sublet, lease or otherwise exploit the Software to third parties. Use of the Software for private purposes is excluded.
7.7
The Customer is not entitled to remove or circumvent the existing protective mechanisms of the Software against unauthorised use.
8.
No Warranty for Material Data
8.1
A material database is also supplied with the Software. This database contains information about materials for which an injection molding process can be simulated with this Software. The information about the materials and their properties, even if they are marked in the respective data set as comparable with another material (reference materials), are only exemplary and therefore nonbinding and represent neither quality specifications nor assurances or guarantees with regard to the materials used by the Customer to which the simulation of the Software is to refer.
8.2
Prior to each simulation using the materials mentioned, the Customer must have the manufacturer responsible for this conscientiously check the validity and correctness of the information stored in the material database. Notwithstanding this, it is expressly pointed out that the results from simulations with information laid down via reference materials have a wider confidence interval than results calculated with original data.
8.3
Any use of the results of the simulation by the Customer shall be entirely at the Customer’s own risk if the Customer
•
operates the Software incorrectly,
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implements or uses incorrect material data,
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when using the simulation results, does not take into account the fact that simulated results can regularly show major deviations from real-world results at the current state of the art in simulation technology, which can vary with regard to the processing process, material, component and development stage, as well as the form in which the real-world configuration is represented in the Software,
•
uses data of reference materials which are approved in principle by SIMCON, but for which no or not all necessary material data are available at the Customer,
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uses Simulation results if and to the extent that this was not prudent ex ante from a professional engineer's point of view of.
9.
Subject of the Support Services
9.1
SIMCON shall provide the following services during the term of the License Agreement: (i) troubleshooting (clause 9.2), (ii) provision of at least one Software update per support contract year (clause 9.3), (iii) user support (clause 9.4):
9.2
Troubleshooting
9.2.1
The elimination of errors owed by SIMCON includes the elimination of malfunctions of the Software which impair the functionality of the Software as described by SIMCON and promised within the scope of the License Conditions agreed for the Software.
9.2.2
The elimination of errors can be carried out at the sole discretion of SIMCON by providing an update or service patch, by a modified implementation of the Software at the Customer or by other "work around" solutions that are reasonable for the Customer. SIMCON does not guarantee that an error will be eliminated at all or within a certain period of time.
9.2.3
The Customer must support SIMCON in a reasonable manner in the error handling, in particular by reproducibly specifying the specific error and, if necessary, by enabling remote access to the Software. If the Customer does not fulfil these obligations to cooperate, SIMCON is not responsible for a delayed or unfeasible error handling.
9.2.4
If an error is due to unauthorized changes made to the Software by the Customer, SIMCON is entitled to refuse to rectify the error or to charge the Customer for the costs in-curred in rectifying the error. The same applies if it turns out that an error was not actually present.
9.2.5
The extension of the Software by additional functionalities, in particular by significant additional calculation options and other functions, is not owed. Adaptations or further developments requested by the Customer shall only be carried out on the basis of a separate software development order.
9.3
Software Updates
9.3.1
SIMCON shall provide the Customer with approved Software updates at least once a year without a separate license fee by data carrier or by way of download. The installation and implementation of the updates shall be carried out by the Customer in accordance with the instructions provided.
9.3.2
The License Conditions applicable to the Software remain unchanged for the Software updates.
9.3.3
The version replaced by a Software update must be removed from the Customer's software system and deleted; originally provided data carriers of the replaced version must be returned to SIMCON.
9.4
User Support
9.4.1
SIMCON offers the Customer a telephone service (hotline) and e-mail service for advice and support for the Software. This includes requests for material data and the assessment of calculation results generated by the Customer using the Software.
9.4.2
The service hours are on working days from Monday to Friday from 9.00 to 17.00 CET, but not on national and regional public holidays in North Rhine-Westphalia.
9.4.3
The telephone service is only provided to contact persons on the Customer's side who have successfully participated in a SIMCON training course for the Software.
C.
Service Conditions
10.
Scope, subject matter
10.1
The Service Conditions apply to all contracts between SIMCON and the Customer, which have consulting services, training or other services of SIMCON as their subject matter.
10.2
Consulting services include, in particular, the examination of the Customer's CAD data on the basis of the Customer's project requirements and the subsequent simulation of an injection molding process as well as the preparation of a report with recommendations for action to be taken by the Customer. Training services refer to the instruction of the Customer's employees in the use of the Software. Other services may extend to individual project inquiries or the commissioning of programming work. The concrete scope of the consulting services owed results from the Service Agreement (see clause A.2.1).
10.3
Unless expressly agreed otherwise (see in this regard the following clause 10.4 as well as 15), the performance obligations described in the Service Agreement shall be pure services. The advice shall be provided to the best of SIMCON's knowledge and exclusively on the basis of the information which the Customer brings to SIMCON's attention and makes available. No occurrence of a certain success shall be owed without express promise. Furthermore, without express promise no legal guarantee or other assurance is given with regard to the fulfilment of a purpose pursued by the Customer with the service of SIMCON. In particular, SIMCON cannot give any guarantee for the occurrence of a technical or economic success intended by the Customer, even if this success has been formulated by the Customer in advance as an objective, since the occurrence of this success also depends on further circumstances which may lie outside the sphere of influence as well as the assessment competence of SIMCON.
10.4
If a concretely defined performance result is promised on the part of SIMCON, SIMCON shall only be obligated to provide the corresponding services to the extent that these are recorded in writing in the Service Agreement upon conclusion of the contract. The same shall apply to any performance deadlines promised by SIMCON. Subsequent changes of the scope of services shall also require the written consent of both contracting parties in order to be effective, whereby additional expenses incurred by SIMCON in comparison with the original scope of services shall be adequately remunerated. The promise of a certain property or suitability of the delivery/service for a certain purpose as well as the assumption of a guarantee shall only be binding if this is confirmed in writing by SIMCON.
10.5
Within the framework provided by the Service Agreement, SIMCON shall perform the tasks assigned to it on its own responsibility. Subject to concrete duties or specifications agreed upon in writing, the Customer shall have no authority to issue instructions and shall not be entitled to technical and organizational specifications. However, SIMCON shall always endeavor to take into account requests of the Customer.
11.
Cooperation of the Customer; Necessary Information; Secrecy
11.1
The Customer shall designate a technically competent contact person who shall provide SIMCON with the necessary information and documents at short notice, designate interlocutors and make decisions or be able to bring about such decisions, and who shall furthermore be authorized to receive the consulting services to be rendered by SIMCON.
11.2
The Customer shall ensure that SIMCON is provided with all information, documents or other resources necessary for the performance of its activities in a timely manner and that it is informed of all necessary processes and circumstances. This shall also apply to documents, processes and circumstances which only become known during SIMCON's activity. SIMCON undertakes to properly store all business and operational documents made available to it and in particular to ensure that unauthorized third parties cannot inspect them. The documents made available shall be returned to the Customer upon request. The obligation of confidential treatment shall not apply to ideas, models, concepts, methods, techniques and other significant know-how as well as to information which was already known to SIMCON at the time of notification by the Customer or which becomes known later without connection with the contractual relationship.
11.3
In order for SIMCON to meet binding deadlines and dates, it shall rely on the support of the Customer. Therefore, the Customer undertakes to support the activities of SIMCON required for the performance of services to the best of its ability and to provide all required cooperation services completely and in due time. Insofar as relevant for the object of the services to be rendered by SIMCON as defined in the Service Agreement, the Customer shall in particular
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Inform SIMCON immediately about changes of the infrastructure,
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provide additionally required infrastructure, including in particular remote access, network connections, power supply, workstations, etc.,
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ensure that, should the service provision take place on the Customer's premises, access to the premises, the network and all other related components is guaranteed at all times, and to provide a workstation appropriate for the deployment
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as well as, if log-in accounts (registrations) should be necessary for the activities, set them up in advance and inform SIMCON about them.
11.4
If the Customer does not fulfil his duties to cooperate or does not fulfil them induce time and if delays or additional expenses arise as a result, any agreed performance dead-lines shall be extended and SIMCON shall be entitled to demand an adjustment of the remuneration.
12.
Personal
12.1
Subject to a more specific provision in the Service Agreement, SIMCON shall exclusively use employees who are qualified to provide the agreed service for the performance of its contractual obligations.
12.2
SIMCON is entitled to use subcontractors.
13.
Remuneration
13.1
As far as the contracting parties do not make an explicit agreement on the amount of remuneration in the Service Agreement, the general rates of remuneration of SIMCON shall apply, plus statutory value added tax, if applicable, as well as travel expenses.
14.
Cancellation
14.1
Unless otherwise stipulated in a Service Agreement, both contracting parties may terminate the Service Agreement with a notice period of 2 weeks to the end of the month. In case of a service result to be rendered by SIMCON in the sense of clause 10.4 the statutory provisions shall apply exclusively to the termination on the part of the contractual partners.
14.2
The right of both contracting parties to terminate the Service Agreement extraordinarily in accordance with the statutory provisions shall remain unaffected.
14.3
Declarations of termination must be in writing to be effective.
15.
Special Provisions in the Case of Work Performance Within the Meaning of Clause 10.4
15.1
For any work performances or performance results promised by SIMCON within the meaning of clause 10.4 the following provisions of clauses 15.2 to 15.3 apply.
15.2
The acceptance of the work performed and delivered by SIMCON shall take place within 1 week after handover at the latest. If SIMCON does not assert any defects preventing acceptance within this period, the work shall be deemed accepted. In case the Customer is in delay with the acceptance the remuneration shall become due immediately.
15.3
Upon acceptance and full payment of the services rendered by SIMCON, the nonexclusive rights of use required for the purpose of use determined according to the Service Agreement shall pass to the Customer. Further rights of use, in particular to duplication, processing, and distribution against payment as well as publication shall not be transferred to the Customer without express written agreement, provided that no legal exhaustion has occurred with regard to the copyrights concerned.
16.
Special Provisions for Training Courses
16.1
Training offers of SIMCON are subject to change, non-binding and are subject to availability. The training agreement shall only be concluded upon order confirmation by SIMCON.
16.2
The Customer agrees that the personal data, in particular e-mail addresses of the persons participating in a training ("participants"), communicated when providing the booking data, may be stored and used by SIMCON for the purpose of communication with the participants within the framework of the contractual relationship, with the con-sent of the participants. The Customer shall ensure that this data agreement is admissible under data protection law.
16.3
Unless otherwise agreed, the training fee shall be paid in advance upon receipt of the invoice immediately and without deduction.
16.4
In the case of on-site training, the Customer shall be responsible for the required infrastructure. In particular, the Customer shall provide premises of sufficient size as well as workstation computers in the required number and with the required performance, and shall ensure the proper installation of the Software to be trained. SIMCON shall separately communicate which concrete infrastructure including peripheral devices and room equipment is required.
16.5
Unless expressly agreed otherwise, travel expenses shall be invoiced separately by SIMCON.
16.6
The documents and presentation of the trainings are confidential information. They are intended solely for the personal use of the participants and may not be reproduced, distributed, published, made publicly available, translated or otherwise processed or used for purposes other than personal use without the prior written consent of SIMCON.
D.
General Conditions
17.
Terms of Payment and Invoicing
17.1
The prices do not include the statutory value added tax. SIMCON shall show this separately in the invoice in the respective statutory amount on the day of invoicing.
17.2
All invoices are due for payment immediately upon issuance without deduction. The Customer shall be in default no later than on the 8th day after the invoice date, unless the Customer proves that it has not received the invoice. If German law applies, default interest shall be governed by Section 288 of the German Civil Code (BGB) and SIMCON shall be entitled to charge a flatrate reminder fee of EUR 40. In all other cases, SIMCON shall be entitled to charge default interest at a rate of one and a half percent (1.5%) per month (or the maximum amount permitted under applicable law, if lower) until payment is received. The Customer shall also bear the collection costs, including reasonable legal fees.
17.3
Payments may also be made by the Customer by issuing a written direct debit authorisation or by credit card.
17.4
The Customer is only entitled to set-off or to assert rights of retention, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, acknowledged by SIMCON or are undisputed. The Customer shall not be entitled to exercise a right of retention against claims of SIMCON due to another claim not arising from the underlying licenselicense or Service Agreement.
18.
Delivery and Performance Time
18.1
Information on delivery periods that have not been expressly agreed in writing are exclusively non-binding information.
18.2
Unless otherwise agreed, the delivery time for a software license shall not exceed license 14 days after receipt of the order.
18.3
For the service, the delivery time specified in the offer or order confirmation shall apply after receipt of the order. With regard to the service, the delivery time shall not begin until all technical questions necessary for processing have been clarified and SIMCON has received all necessary data.
18.4
If the Customer is in default of acceptance, SIMCON shall be entitled to demand compensation for the damage incurred and any additional expenses. The same shall apply if the Customer culpably violates his duties to cooperate. With default of acceptance or debtor's delay the risk of accidental deterioration and accidental loss shall pass to the Customer.
19.
Warranty
19.1
The Customer is obliged to check the Software for obvious defects immediately upon receipt and to notify SIMCON in writing of any defects in the Software immediately upon discovery. In the case of material defects, this shall be done with a description of the time of occurrence of the defects and the detailed circumstances.
19.2
SIMCON warrants that the Software delivered according to the order confirmation complies with the agreed quality and that its use does not conflict with any rights of third parties, whereby the freedom from defects of title is limited to the country of destination agreed upon by the contracting parties in which the Software is to be used and without an agreed country of destination this warranty applies to the country in which the Customer has its place of business.
19.3
Unless and to the extent not otherwise agreed in writing, the condition of the Software shall be exclusively the error-free functioning of the Software on the basis of the test examples listed in the documentation supplied.
19.4
SIMCON shall not assume any warranty for functional impairments of the Software attributable to the sphere of the Customer, in particular in case of malfunctions of computer networks. Furthermore, SIMCON is not liable for defects, impairments or damage to the Software itself or to the Customer's IT system caused or for which third parties are responsible (e.g. through cyber attacks on the Customer's infrastructure or data, in par-ticular through malware or ransomware), unless SIMCON could have prevented such interventions by third parties through reasonable and foreseeable measures on the Software.
19.5
In case of material defects and defects of title SIMCON shall first provide warranty by subsequent performance. In case of material defects, SIMCON shall, at its option, provide the Customer with a new Software version free of defects or shall eliminate the defect and adapt the application documentation accordingly; elimination of defects shall also be deemed to have taken place if SIMCON shows the Customer reasonable possibilities to avoid the effects of the defect. In case of defects of title SIMCON shall at its option provide the Customer with a legally flawless possibility of use of the delivered Software or a replaced or modified equivalent software.
19.6
SIMCON shall be entitled to make the supplementary performance dependent on the fact that the Customer has paid the remuneration due to SIMCON. However, the Customer shall be entitled to retain a part of the remuneration which is reasonable in relation to the defect.
19.7
The Customer shall be obliged to accept a new Software version within the scope of SIMCON's obligation of subsequent performance if the contractual scope of functions is maintained. The rights of the Customer to subsequent performance shall remain unaffected.
19.8
If the subsequent performance fails, the Customer shall be entitled to set a reasonable grace period for the rectification of defects. In doing so, the Customer shall expressly point out in writing that he reserves the right to withdraw from the contract and/or demand compensation in the event of renewed failure. If the rectification of the defect also fails within the grace period, if the reasonable period to be set by the Customer for the rectification of the defect has expired unsuccessfully or if it is dispensable according to the statutory provisions, the Customer may withdraw from the contract or reduce the agreed remuneration, if the Customer has notified SIMCON in writing in advance. In the case of an insignificant defect, however, there is no right of withdrawal. SIMCON shall pay compensation for damages or reimbursement of futile expenses within the scope of the limits according to clause 20 resp. 21 of these GTC. After expiry of the period of grace SIMCON may demand that the Customer exercises his rights resulting from the expiry of the period of grace within two weeks after receipt of the demand; after expiry of the period of grace the right of choice shall pass to SIMCON.
19.9
If SIMCON renders services in troubleshooting or fault elimination without being obligated to do so, it shall be entitled to demand the reasonably necessary and reasonable remuneration for this in accordance with its usual rates, insofar as the expenditure was caused by the Customer. This shall apply in particular if the defect claimed by the Customer cannot be proven or cannot be attributed to SIMCON. Likewise, the Customer shall reimburse SIMCON for any necessary and reasonable additional expenses incurred as a result of the Customer's breach of his duties to cooperate.
19.10
If third parties claim rights to the delivered Software that prevent the Customer from the contractually granted use, the Customer shall immediately inform SIMCON thereof in writing and comprehensively, namely by handing over documents of the third party addressed to the Customer in this regard. SIMCON shall be entitled to defend the alleged claims out of court and in court against the third party on its own and the Customer shall authorize SIMCON to take appropriate steps for this purpose in its own name. If the Customer is directly claimed against by the third party, he shall coordinate with SIMCON in detail with regard to the extrajudicial and judicial defense of the alleged claims, namely the Customer shall not make any declarations to the detriment of SIMCON such as an acknowledgement or a settlement without prior consent of SIMCON. In case of justified claims of third parties, SIMCON shall be obliged to defend the claims at its own expense and to indemnify the Customer against all reasonable costs and damages associated with the defense of the claim, unless these are based on conduct of the Customer in breach of duty.
19.11
The Customer may derive rights from other breaches of duty on the part of SIMCON only if he has notified SIMCON thereof in writing and has granted SIMCON a reasonable period of grace for remedy, which has expired unsuccessfully. This shall not apply insofar as a remedy cannot be considered due to the nature of the breach of duty. For damages or reimbursement of futile expenses, the limits set out in clause 2021 of these General Terms and Conditions shall apply.
19.12
Liability for damages regardless of fault for defects that already existed at the time of conclusion of the contract is excluded.
20.
Liability (If US Law Applies)
20.1
Subject to the provisions of 20.2, SIMCON excludes (i) liability for indirect or consequential damages, damage or loss of data, loss of profit, business interruption and punitive damages, (ii) all statutory warranties to the extent permitted by law; otherwise, any liability on the part of SIMCON shall be limited to a maximum amount of EUR 50,000.00 or one annual license fee, whichever is lower.
20.2
SIMCON does not exclude or limit its liability for: (a) fraudulent misrepresentation, (b) intentional breach of duty, (c) damage resulting from negligent injury to life, limb or health of a person, or (d) any other damage for which liability cannot be excluded by law.
20.3
The Customer is obliged to take appropriate precautions to minimise the damage.
21.
Liability (If German Law Applies)
21.1
If German law applies to the contract, the following provisions shall replace the provisions set out in clause 20 above in their entirety and shall apply instead: SIMCON's liability shall be determined in accordance with the statutory provisions, however, in accordance with the provisions set forth in the following clauses 21.2 to 21.6 to and limitations regulated in the following clauses.
21.2
SIMCON's liability shall be unlimited in accordance with the statutory provisions in cases of (i) intent or gross negligence, (ii) at least negligently caused injury to life, body or health, (iii) fraudulent conduct, (iv) statutory mandatory liability (e.g. under the Product Liability Act) or (v) in case of liability for the absence of guaranteed characteristics.
21.3
In other cases than those mentioned in clause 21.2, SIMCON shall be liable in the event of a breach of an essential contractual obligation (obligation, the fulfilment which enables the proper performance of the contract in the first place and on the observance of which the Customer regularly relies and may rely) to the amount of the foreseeable, typically occurring damage. In the case of defect-related claims for damages, liability in this case shall be limited to the contractually agreed and paid remuneration. In all other cases, the liability in this case shall be limited to € 100,000 per case of damage, in total to a maximum of € 250,000 from one contract; beyond this, insofar as SIMCON is insured against the damage incurred, within the scope of the insurance coverage and subject to the condition precedent of the payment of the insurance compensation.
21.4
SIMCON shall be liable for the loss of data and programs and their recovery only insofar as this loss could not have been avoided by reasonable precautionary measures of the Customer, in particular by regular making of backup copies of all data and programs.
21.5
Any liability for the usability or usability of the Software provided by SIMCON or of a work to be created or result to be delivered by SIMCON shall be excluded or limited, if and to the extent that the occurrence of the damage could have been avoided if the Customer had first performed a reasonable test in a suitable test environment.
21.6
In other than the numbers shown in clauses 21.2 to 21.5 the liability of SIMCON shall be excluded. This shall also apply to any liability of SIMCON for employees, workers, legal representatives and vicarious agents or any other person acting on behalf of SIMCON as well as any liability of these persons themselves.
22.
Limitation
22.1
Subject to the following clause 22.2 any warranty claims of the Customer shall become statute-barred after expiry of one year from delivery or provision (and notification of the Customer thereof) of the Software; the same period shall apply to claims of the Customer against SIMCON arising from other breaches of duty.
22.2
Claims for damages by the Customer pursuant to clause 20 resp. 21 as well as claims resulting from defects of title on the basis of which a third party may demand the surrender or deletion of the Software from the Customer shall become statute barred exclusively in accordance with the statutory provisions.
23.
Audit Law
23.1
SIMCON has a legitimate interest in the prevention of software piracy and shall therefore be entitled to verify the proper use of the Software, in particular whether the Customer uses the Software qualitatively and quantitatively within the scope of the licenses acquiredlicense by him ("Audit"). For this purpose the Customer shall provide SIMCON with information, grant access to relevant documents and records as well as allow an inspection of the hardware and software environment used. SIMCON shall be entitled to conduct the Audit on the Customer's premises during the Customer's usual business hours or to have it conducted by third parties bound to secrecy. SIMCON shall ensure that the business operations are disturbed as little as possible by the activity on site.
23.2
Each contracting party shall bear the costs of the audit incurred by it. This shall not affect claims of SIMCON due to a violation of the License Agreement licenseor the licenselicense conditions by the Customer determined in the course of the audit. If the violation leads to SIMCON having a claim for additional licenselicense fees or claims for damages exceeding a value of 2,5 % of the licenselicense fees paid by the Customer (in case of time-limited licenseslicense (software rental) of the licenselicense fees paid per year by the Customer), the Customer shall also bear the reasonable costs of the audit.
23.3
If the Customer, within the scope of the concluded license or Service Agreement, has reserved an audit right on his part with regard to the business operations of SIMCON license, clause 23.2 shall apply accordingly.
24.
Compliance: Extraordinary Right of Cancellation and Termination
24.1
Customer warrants in general and especially during the term of the LicenseLicense Agreement as well as the Service Agreement that it will comply with all applicable laws, ordinances and regulations, including (but not limited to) all anti-corruption laws.
24.2
The contracting parties confirm that they have not committed and/or will not commit any prohibited acts, either directly or indirectly, in connection with the conclusion as well as the execution of the contracts concluded between them and will not do so in the future. Prohibited acts include promising, offering or granting as well as requesting or accepting an improper advantage or benefit in order to influence actions in an improper manner.
24.3
The Customer warrants that he will not use the Software for purposes that violate applicable laws.
24.4
If SIMCON ascertains that the Customer repeatedly and despite prior warning violates the obligations pursuant to clauses 24.1 to 24.3 SIMCON shall be entitled to immediate extraordinary termination of the contractual relationship existing with the Customer.
25.
Reference
25.1
The Customer shall grant SIMCON free of charge the right to indicate the Customer as a reference without limitation in time and space. For this purpose, SIMCON shall be granted the right to use the Customer's logo or trademark as a reference, in particular on SIMCON's homepage, for an unlimited period of time and territory. In this respect SIMCON shall coordinate with the Customer.
25.2
If SIMCON uses the logo or trademark of the Customer, SIMCON shall safeguard the Customer's interest in the integrity of the marks.
25.3
The foregoing rights shall not apply if the Customer expressly objects to such use no later than at the time of its declaration of intent to conclude the contract.
26.
Other Provisions
26.1
The License Agreementslicense and/or Service Agreements concluded between the contracting parties, including these GTC, constitute the final, exclusive and comprehensive agreements with regard to the contractual relationships and take precedence over all previous and concurrent agreements between the contracting parties.
26.2
Amendments and supplements to the licenselicense or Service Agreement must be made in writing. This also applies to the amendment or cancellation of this clause.
26.3
Insofar as the written form is required in these GTC for declarations or agreements, electronic documents in text form also fulfil the written form requirement.
26.4
Place of performance and place of jurisdiction shall be the registered office of SIMCON. However, SIMCON shall also be entitled to sue the Customer at the latter's place of business or branch office.
26.5
The relations between the contracting parties shall be governed exclusively by the national law applicable at the registered office of the contracting SIMCON entity. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. SIMCON does not participate in dispute resolution proceedings before a consumer dispute resolution body.