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End-user license agreement (EULA) of SELMO Technology GmbH

 

 

 

Version 2.00 Status 27.01.2021

By using this software product SELMOstudio you, as a natural or legal person, agree to this agreement. If you do not agree to these EULAs, you may not use the software.

 

  • 1 Validity of the contractual conditions

(1) This End User License Agreement (EULA) is concluded between you – hereinafter also referred to as customer – and SELMO Technology GmbH – hereinafter also referred to as SELMO. Unless otherwise agreed, only these license conditions apply to the licensing or purchase of software and pre-contractual obligations. Express reference is made to the provisions of SELMO Technology GmbH’s General Terms and Conditions (AGB), which are included in this contract and form an essential part of it. The customer confirms that he has taken note of SELMO Technology GmbH’s GTCs. The provisions of the General Terms and Conditions are extended and/or supplemented by the present license conditions of SELMO Technology GmbH concerning the use of software and other software-specific regulations and the rights and obligations associated therewith. Should SELMO Technology GmbH’s General Terms and Conditions of Business deviate from this agreement or be incompatible with it, these license conditions will prevail.

 

(2) SELMO Technology GmbH makes available via the website and the “SELMOstudio” software accessible through it the possibility of modelling PLC programs and, based on this modelling, automatically generating code and creating an executable program from it. The use of both the modelling function and the resulting program generated based on the modelling shall be exclusively based on these license conditions. If you do not agree with these terms and conditions, you may not use the programs created by your model. It is expressly pointed out that the use of the generated programs also incurs the associated costs according to the current cost breakdown.

 

(3) This agreement covers both SELMOstudio and the software generated by SELMOstudio (hereinafter referred to as “generated software”). If the term software is used in general, both are meant.

 

  • 2 Subject matter of the contract

(1) The subject of this agreement is the granting of the rights of use following § 3 depending on the type of license acquired and its scope of functions. By purchasing the software generated by the SELMOstudio you acquire the right to download and implement the generated program and to use it to control the hardware concerned. However, you do not acquire ownership of the generated software itself – it remains the intellectual property of SELMO Technology GmbH. You only acquire the right to use the software as a copyrighted work following the license you have acquired.

(2) The SELMOstudio code-generating software itself may and can only be used under the usage options on the corresponding website. No right of use beyond this is granted.

(3) The customer has checked before the conclusion of the contract that the specification of the software meets his wishes and needs. He is aware of the essential functional features and conditions of the software.

(4) Product descriptions and representations in test programs are performance descriptions, but not guaranteed. A guarantee requires a written declaration by the management of SELMO Technology GmbH. If such a guarantee is given by the management, it is valid for the functionality and the scope of functions of the SELMOstudio, but not for the usability of the customer’s models and the codes and programs created based on these models.

(5) The customer has no claim to the surrender of the SELMOstudio’s source code, but of the program(s) generated by him. Both these programs and their source code are subject to the respectively applicable copyright protection regulations.

(6) SELMO Technology GmbH provides all deliveries and services according to the state of art.

(7) SELMO Technology GmbH reserves all rights not expressly mentioned in these EULAs.

(8) If the Software is in any way marked as “Not for resale” or “Not for resale”, the Software may not be sold or transferred.

(9) If the software is marked as “Company License” or “Corporate License”, the customer is entitled to make the software available to an unlimited number of users within the company. The other restrictions in this paragraph as well as in § 3 apply explicitly also in this case.

(10) SELMOstudio and the generated software are only licensed as a whole product. The licensee is not entitled to separate the components of the respective software.

(11) Military use of the generated software is prohibited.

(12) SELMO has the right to use the data provided by the customer within the scope of the use of the SELMOstudio both for contract fulfillment (code and program generation, pricing, implementation at the customer’s site, etc.) and for further development of the SELMOstudio, to analyze the usage behaviour. Should personal data be collected and evaluated which are not required for the fulfillment of the contract, SELMO Technology GmbH undertakes to use them only in anonymous form following the DSGVO.

 

  • 3 Rights of the customer to the software

(1) SELMOstudio, the generated software, all additional programs, the symbols used, the SELMO logo, written documents, and documentation are protected by law. The copyright, patent rights, trademark rights, and all other performance and industrial property rights to the software and to other objects, which SELMO Technology GmbH provides or makes available to the customer in the course of contract preparation and execution, are the exclusive property of SELMO Technology GmbH. As far as third parties are entitled to such rights, SELMO Technology GmbH has the corresponding exploitation rights.

(2) The customer acquires the software generated by the SELMOstudio to use it permanently for his purposes (simple right of use). The customer is entitled to use the software in the number of licenses purchased. SELMO Technology GmbH hereby grants the customer the rights to the programs necessary for these purposes of use – including the right to copy the programs to main memory and hard disks, as well as the right to correct errors. The customer may make backup copies of the programs required for safe operation. The backup copies must be marked as backup copies. Copyright notices may not be deleted, changed, or suppressed. The customer may use the generated software exclusively for Use control of a modelled automaton.

(3) A user manual and any other documents provided by SELMO Technology GmbH may only be copied for internal purposes.

(4) The customer may not pass on the generated software, especially based on a sale, without the written consent of SELMO Technology GmbH.

(5) All other acts of exploitation, in particular renting, commercial sale, leasing, and distribution in any form, are not permitted without the prior written consent of SELMO Technology GmbH. Customers are liable to SELMO for all damages due to copyright infringements that arise from this.

(6) SELMO Technology GmbH’s subjects of contract, documents, proposals, test programmes, etc., which become accessible to the customer before or after the conclusion of the contract, are considered intellectual property and business and trade secrets of SELMO Technology GmbH and must be kept secret following § 10.

 

  • 4 Contractual obligation and termination of the contract

In case of termination due to a violation of these EULAs, you are obliged to return or destroy all original versions and copies of the generated software and all other components and to notify SELMO Technology GmbH of the destruction in writing. In case of termination of the contract, SELMO Technology GmbH is also entitled to deny access to the SELMOModeler.

 

  • 5 Duties of the customer

 

(1) You are obliged to inspect all delivery items of SELMO Technology GmbH immediately upon delivery under the provisions of company law and to notify SELMO Technology GmbH of any defects detected in writing, giving a precise description of the defect. Each customer will thoroughly test each generated program for usability in a concrete situation before starting operative use. This also applies to programs that the customer has created in the course of subsequent performance and any maintenance or accompanying Consulting contract.

(2) The customer shall take reasonable precautions if the program does not work properly in whole or in part (for example, through data backup, fault diagnosis, regular checking of the results). It is the customer’s responsibility to ensure the operation of the working environment of the program. In particular, the customer must make any necessary adjustments to the systems and hardware used by him, his firewall, virus protection, or similar data protection mechanisms, as well as his network or server. The risk of incompatibility of the software with the customer’s software or hardware does not lie with SELMO Technology GmbH.

(3) The logo and/or the trademarks of SELMO Technology GmbH may not be used or modified by you unless the management of SELMO Technology GmbH has given its prior written consent to such use or modification.

(4) You are not entitled – except to the extent granted by law – to reverse engineer, decompile or disassemble the generated software. Likewise, you are not authorized to reproduce the SELMOstudio and its functionality.

(5) You agree to indemnify and defend SELMO Technology GmbH from all claims of third parties, including reasonable attorney’s fees, which arise or result from the use of this software in violation of the contract.

 

  • 6 Liability for defects, general liability/compensation for damages

(1) The SELMOstudio and the generated software have the agreed-upon quality, are suitable for the contractually stipulated use, otherwise for normal use, and are of the quality customary for software of this type. Not every error that is inevitably inherent in the software constitutes a material defect. Functional impairment of the software resulting from hardware defects, environmental conditions, incorrect operation, incorrect modelling or similar is not a defect. An insignificant reduction in quality shall not be taken into account. SELMO Technology GmbH warrants that the customer’s contractual use of the software does not conflict with any third-party rights. Once again, it is pointed out that the software generated by the SELMOstudio is generated exclusively based on the steps, zones, and their combination chosen by the user, and thus a configuration defined by the user that does not correspond to the actual conditions can lead to non-functional programs. The user is responsible for such defects. They do not release the user from his obligation to bear the costs. SELMO generates usable software for the control task from the model created by the customer.

(2)(a) In the case of defects for which SELMO Technology GmbH is responsible, SELMO Technology GmbH may initially provide subsequent performance. At SELMO Technology GmbH’s discretion, the subsequent performance will be affected by remedying the defect, i.e. also by pointing out possibilities to avoid the effects of the defect, or by delivering a program that does not have the defect. An equivalent new program version or the equivalent previous program version that did not contain the defect shall be accepted by the customer if this is reasonable for him. In case of defects of title, SELMO Technology GmbH warrants that it will provide the customer, at its option, with a legally flawless the generated software or equivalent generated software.

(b) The customer will support SELMO Technology GmbH in the analysis of errors and the elimination of defects by specifically describing any problems that may occur, by informing SELMO Technology GmbH in detail, and by granting SELMO Technology GmbH the time and opportunity required for the elimination of defects. SELMO Technology GmbH may remedy the defect on-site or at its business premises at its discretion. SELMO Technology GmbH may also render services by remote maintenance. The customer has to ensure the necessary technical prerequisites at his own expense and grant SELMO Technology GmbH access to the affected systems after giving appropriate prior notice.

 

(c) SELMO Technology GmbH may charge additional costs if the software has been modified, used outside the specified environment, or incorrectly operated. SELMO Technology GmbH may demand reimbursement of expenses if no defect is found or if an error is reported insufficiently or incorrectly. The burden of proof lies with the customer.

(d) If SELMO Technology GmbH finally refuses subsequent performance or if subsequent performance finally fails or is unreasonable for the customer, the customer may withdraw from the contract in writing or reduce the remuneration appropriately and claim damages following § 7. or demand compensation for expenses.

(e) Unless otherwise regulated above, any further liability of SELMO Technology GmbH within the scope of liability for defects is excluded. In particular, liability for defects shall not apply if the generated software is improperly handled by the customer or used in a defective or incompatible hardware or software environment. The same applies if the customer makes unauthorized changes to the generated software. In particular, SELMO shall not be liable for any damage to or failure of machines or production goods (exclusion of consequential damage caused by defects).

(f) The period of limitation for claims for defects is one year from the statutory start of the limitation period.

 

  • 7 Liability

The following limitations of liability apply to claims for damages by the customer due to liability for defects or other reasons:

(1) SELMO Technology GmbH is only liable for intent and gross negligence under the statutory provisions. This also applies to injury to life, body, or health as well as to claims under guarantees or the Product Liability Act.

(2) Apart from that, SELMO Technology GmbH is only liable for culpable violation of contractual obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely (cardinal obligation) upon. This includes in particular the obligation to provide faultless performance. In this case, SELMO Technology GmbH’s liability shall be limited to the typical contractual foreseeable damage is limited.

(3) Apart from that, the liability of SELMO Technology GmbH is excluded.

(4) Insofar as SELMO Technology GmbH’s liability for damages is excluded or limited, this shall also apply concerning the personal liability for damages of its employees, workers, staff, representatives, and vicarious agents.

(5) SELMO Technology GmbH is free to object to contributory negligence. In particular, the customer is advised that, within the scope of his duty of care, he has to check before using the generated software for the first time whether the installation of the software could lead to particular interference with already installed software, the respective controlled systems or other components used. Furthermore, he must ensure that his systems and data are backed up before the first installation and during operation and must take all reasonable additional security measures in the event of a suspected software error. Also, the customer is obliged to carry out a hardware check (inputs and outputs to the hardware) according to the state of the art. In the case of functional checks, the customer must first check the manual functions with all input parameters. Afterward, he has to check the automatic operation of the software. The function of the PLC (SPS) software is produced by the customer by bringing the PLC (SPS) software generated by SELMO into the hardware. The customer must document the test steps and make this documentation available to SELMO on request. A lack of documentation shall be considered a failure on the part of the customer.

(6) The period of limitation for claims of the customer who is not a consumer is one year from the statutory start of the limitation period.

 

  • 8 Software Updates and Upgrades

SELMO may, at its sole discretion, provide the Customer with updates and upgrades of the software and reserves the right to supply upgrades for a fee. From the moment the update is installed, the Customer may not use the previous version independently of it, disconnect it, and/or transfer it to another party. Unless other terms and conditions are received from SELMO together with an update or upgrade, the terms and conditions of this license agreement will continue to apply. The end-user may refuse to accept updates. When an update or upgrade is released, however, SELMO is no longer obliged to support the previous version.

 

  • 9 Beginning and end of the customer’s rights

(1) The rights according to § 2 and § 3 are only transferred to the customer upon full payment of the purchase price or payment of the respective costs for a selected period of use. Before this, he has only a provisional right of use, only a right under the law of obligations and revocable following Paragraph 2.

(2) SELMO Technology GmbH may revoke the rights according to § 2 and § 3 for good cause or withdrawal from the contract. Good cause is deemed to exist in particular if the customer does not pay the due remuneration or, despite a written warning, continues to violate the obligations defined in § 2 and § 3 of this contract in a not inconsiderable manner, or if an application is made for the opening of insolvency proceedings against the customer’s assets.

(3) If the right of use according to § 3 in conjunction with § 2 does not arise or ends, SELMO Technology GmbH may demand that the customer return any objects provided or provide a written assurance that they have been destroyed, as well as the deletion or destruction of all software or any copies and a written assurance that this has been done. In any case, a condition in accordance with §4 must also be created.

 

  • 10 Special provisions for via license partners Software purchased from SELMO

(1) Licence partners are SELMO’s sales partners who provide services for their customers on their accounts based on an agreement with SELMO. License partners are obliged to bind the present end-user agreement to their customers.

 

(2) Except for the terms of payment agreed between the Customer and the license partner, the present terms take effect between SELMO and the Customer when the software is used. In particular, the Customer undertakes to fulfill the obligations arising from this agreement.

 

(3) Is

  1. a license partner is in default towards SELMO, or
  2. the license agreement between SELMO and the license partner is no longer valid for whatever reason or is in dissolution (termination of the contractual relationship not yet finally determined but in liquidation), or
  3. otherwise, there will be reasons between SELMO and the license partner which will result in the license partner no longer being entitled to collect license fees (e.g. death of the license partner),
  4. and SELMO informs the customer of this, the customer is obliged to make his payments directly to SELMO instead of to the license partner. This service will cause the obligation towards the license partner to expire. Should the customer make payments to the licensee despite having been informed accordingly, the obligation towards SELMO remains unchanged and the customer has to reclaim from the licensee any amounts wrongly paid to the license partner.

 

(4) SELMO embodies the provisions of paragraphs 1 to 3 in the contracts between the license partner and SELMO so that corresponding validity is ensured. SELMO will make the corresponding passages available to those customers who are users via license partners upon request.

 

  • 11 Secrecy, data protection

(1) The contracting parties undertake to treat as confidential all objects (e.g. software, documents, information) which they receive or become aware of from the respective other contracting parties before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, also beyond the end of the contract unless they are publicly known without breach of the obligation of secrecy. The contracting parties shall keep and secure these objects in such a way that a unauthorized access by third parties is excluded.

(2) The customer shall make the contractual objects accessible only to employees and other third parties who require access to perform the official duties granted to them. He shall instruct these persons about the need for secrecy of the objects.

 

(3) The parties have concluded a data processing agreement, which constitutes the legal framework for the processing of personal data in the context of the use of the software provided.

 

  • 12 Applicable law, place of jurisdiction

This contract shall be governed by the law of the Republic of Austria, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international law (in particular the German conflict of laws provisions). The place of jurisdiction for all disputes arising from this contract including its appendices is Graz.

 

  • Section 13 Severability clause

If a provision of this contract should be or become invalid, the validity of the remaining provisions of this contract shall remain unaffected, even if essential provisions are affected. In this case, the parties agree to replace the invalid provision with a legally effective provision that comes closest to the contractually agreed legal and economic intent and ensures the feasibility of the contract in terms of what both parties intended. The same shall apply if the parties have not recognised a gap in the provisions at the time of conclusion of this contract or if such a gap becomes known or occurs at a later date. The parties shall then be obliged to make a written amendment to the contract in the aforementioned sense.

 

Status: 27.01.2021