General Terms & Conditions
GENERAL TERMS AND CONDITIONS OF OPTIMISED SYSTEMS TECHNOLOGIES AG FOR A STANDARD LICENSE AND SUPPORT OF ITS VEGA SUITE OF SOFTWARE. ("GTC")
These general terms and conditions apply to all offers, tenders, legal relationships, and contracts from, or with Optimised Systems Technologies AG, Switzerland (hereinafter OST) where products and/or services are supplied. Any specific contracts made with you, that are recorded in a written and signed contract, will prevail over these GTC. In any contractual relationship, except as otherwise agreed, in which OST provides and/or supports OST Software to another company or public-law entity (hereinafter “Licensee”), only these GTC apply.
If a problem arises that is not explicitly described in these GTC, we will work together with you to find an acceptable solution for both parties. The same will be done when a provision in these GTC proves to be invalid or void. Other provisions will remain in full force and effect.
1.1. “Add-On” means any development that adds new and independent functionality, but is not a Modification (defined below), and that uses APIs.
1.2. “API” means application programming interfaces or other code that allow other software products to communicate with or call on VEGA Software
1.3. “Affiliate” means any legal entity that is affiliated with another company holding an equity stake and voting rights of more than 50% of more
1.4. “Business Partner” means a natural or judicial person that requires access to OST Software in connection with Licensee’s internal business operations.
1.5. “Confidential Information” means all information which OST or Licensee protect against unrestricted disclosure to others, or that are deemed confidential according to the circumstances of their disclosure or their content, including the Software Agreement. In any case, the following information is considered to be Confidential Information of OST: information regarding OST research and development, product offerings, pricing and availability of OST products and OST Software, programs, OST VEGA Source Code tools, data and other material, that OST provides to Licensee before or on the basis of the Software Licence Agreement.
1.6. “Connected Company” means any company that OST has a contractual working agreement with to develop or support any of OST’S products or services or where OST has a shareholding of the company.
1.7. “Contractual” means provided to Licensee in performance of the Software Licence Agreement.
1.8. “Documentation” means OST’s technical or functional documentation pertaining to the VEGA Software which is delivered or made available to Licensee with the VEGA Software.
1.9. “IP Rights” (“Intellectual Property Rights”) means without limitation any patents and other rights to inventions, copyrights, trademarks, trade names and design marks and any other intangible property rights and all related rights of use or commercialization.
1.10. “Modification” means any development that (i) changes the delivered source code or metadata; or (ii) uses APIs but does not add new and independent functionality and only customizes, enhances, or changes existing functionality of the VEGA Software. For clarification: customizing, parametrization, retraining with new data sets of the contractual OST Software is not considered a Modification but allowed within the contractually agreed use.
1.11. OST Software” means any and all (i) standard software products (as well as relevant documentation) all as developed by or for OST or any of its Connected Companies; (ii) new versions (especially without being limited to releases, updates, patches, corrections) thereof and (iii) complete or partial copies of any of the foregoing.
1.12. “OST Support Services” means agreed OST Support provided for OST VEGA Software including by agents of affiliates of OST.
1.13. “Software Licence Agreement” means a contract between OST and Licensee for licenses and/or support for OST Software and/or Third-Party Software that references these GTC.
1.14. “Third Party Software” means any and all (i) standard software products (as well as relevant documentation) and content all as developed for or by companies other than OST or its affiliated companies and that do not constitute OST VEGA Software (as defined in section 1.10); (ii) new versions (especially without being limited to releases, updates, patches, corrections) thereof and (iii) complete or partial copies of any of the foregoing.
1.15. “VEGA Software” means the predictive maintenance software developed by OST where the specifications will be defined contractually in the Software Licence Agreement.
1.16. “Working Days” means weekdays from Monday to Friday (8 a.m. to 6 p.m. CET) except statutory holidays in Switzerland and December 24 and 31.
2. DELIVERY, MATTER TO BE DELIVERED, LICENSE GRANT, IP RIGHTS
2.1. Delivery, Matter to be Delivered:
OST will deliver the VEGA Software in accordance with the product description documentation in the Software Licence Contract that shall be agreed between OST and the Licensee. The product description in the documentation will conclusively define the functional qualities of the VEGA Software. OST does not owe any duty with regard to any further quality. Guarantees are effective only if expressly confirmed in writing by OST’s management. Unless otherwise agreed, Licensee will be provided with one (1) copy of the relevant version of the VEGA Software current at the time of shipment, within one month after conclusion of the Software Licence Agreement.
2.2. OST’S Rights; Licensee’s Licenced Use:
As between Licensee and OST, all rights in OST VEGA Software – especially without being limited to all copyright and other IP Rights – shall be the sole and exclusive property of OST, including without limitation OST Software created to address a requirement of, or in collaboration with, Licensee. Licensee’s only rights in respect of VEGA Software are the following nonexclusive rights.
2.2.1 Licensee may use the VEGA Software only in the contractually defined scope. Where Licensee obtains the VEGA Software usage rights as paid up license, its license is term based as contractually agreed.
2.2.2 Licensee enjoys only those rights in Contractual Third-Party Software that are necessary to use it in association with the VEGA Software. Details of the license grant for any Third-Party Software will be set out in the Software Licence Agreement between OST and Licensee.
2.2.3 Licensee may use the VEGA Software only to run on Licensee’s internal operations. All other rights, notably the right to distribute the VEGA Software, including without limitation the rights of rental, translation, elaboration and arrangement, and the right to make VEGA Software available to the public are retained exclusively by OST.
2.2.4 Licensee must hold the required licenses as agreed for any individuals that use the VEGA Software (directly or indirectly).
2.2.5 Where the VEGA Software is provided for test purposes, the sole purpose of Licensee’s use of it must be to ascertain its properties and assess its suitability for Licensee’s business. Notably, Licensee must not create Modifications or Add- Ons, decompile the VEGA Software or use it for live operation.
2.2.6 All proprietary data of Licensee shall remain the property of Licensee.
2.3 The VEGA Software may only be copied temporarily or permanently in whole or in part on information technology devices (e. g. hard disks or central processing units) which must be located at Licensee’s or its Affiliates’ facilities or are in Licensee’s or its Affiliates’ direct possession. All other uses must be agreed in writing with OST.
2.4 Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the VEGA Software. Backup copies on transportable discs or other data media must be marked as backup copies and bear the same copyright and authorship notice as the original discs or other data media, unless this would be technically infeasible. Licensee must not change or remove OST’s copyright and authorship notices.
3. MODIFICATIONS / ADD-ONS
3.2 Except as otherwise agreed and except as expressly required by law, or expressly permitted in this section, Licensee is not entitled to create, use, or make available to any third party any Modification or Add-On to VEGA Software. Modifications may only be made in relation to VEGA Software source code by OST.
3.3 These Modifications and Add-Ons must be used only together with the VEGA Software and only in accordance with the license to use the VEGA Software granted in the Software License Agreement.
3.4 OST retains the right to develop its own Modifications or Add-ons but is not entitled to copy Licensee’s software code. Modifications or Add-Ons must not (and subject to other limitations set forth herein): enable the bypassing or circumventing of any of the restrictions set forth in the Software Licence Agreement and/or provide Licensee with access to the VEGA Software in excess of Licensee’s use rights duly obtained nor render or provide any information concerning the VEGA Software. Licensee covenants not to assert against OST or any OST Connected Company any rights in any (i) Modifications or Add- Ons, or (ii) other functionality of the VEGA Software accessed by such Modifications or Add-Ons.
4. AUDIT / ADDITIONAL LICENCE
4.1 Licensee must give OST prior written notice of any use of the VEGA Software outside the contractually permitted use. It requires its own contract with OST with regard to the additional license required (“Additional License”). The Additional License is subject to the provisions of the Software Licence Agreement in force at the time of the execution of the Additional License.
4.2 OST is permitted to audit the usage of the VEGA Software in accordance with a procedure to be agreed in the Software Licence Agreement.
5. PRICE / TAXES / PAYMENT / RETENTION OF RIGHTS
5.1.1 Licensee shall pay to OST license fees for the VEGA Software and fees for OST VEGA Support on the terms in the Software Licence Agreement. Fees for the VEGA Software delivery include costs of delivery and packaging for Physical Shipment.
5.1.2 OST may require full or part payment in advance if there is no prior business relationship with Licensee, if delivery is to be made abroad, if Licensee’s registered office is outside Switzerland or if there are any grounds to doubt that Licensee will render payment punctually.
5.1.3 OST retains all rights in the VEGA Software. Licensee must immediately notify OST in writing if any third-party gains access to the VEGA Software in which OST retains title or rights and must also inform the third party of OST’s rights.
5.1.4 Invoicing; Due Date
Payments are due 30 calendar days from the date of the invoice. Any fees not paid when due shall accrue interest at the applicable statutory interest rate. Payment terms for the term-based license contract shall be included in the Software Licence Agreement contract. Except as provided otherwise, the fee will be billed quarterly in advance and the duty to pay shall start with theexecution of the term-based license contract.
5.2 Taxes. All fees are subject to applicable statutory value added tax (VAT).
6. TERMINATION OF LICENSE
6.1 Upon any termination of the license hereunder (e. g. by rescission, end of agreed license term or termination), Licensee shall immediately cease use of all VEGA Software and Confidential Information.
6.2 Within one (1) month after any termination of the license, Licensee shall irretrievably destroy or upon OST’s request deliver to OST all copies of VEGA Software and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period.
6.3 Licensee must certify to OST in writing that it and its Affiliates have satisfied the obligations under this section 5.
7. DUTY TO COLLABORATE, DUTY TO INSPECT AND GIVE NOTICE OF DEFECTS
7.1 Licensee undertakes that it knows the essential functional characteristics of the VEGA Software and its technical requirements (e. g. with regard to the database, operating system, hardware and data media). Licensee bears the risk that the VEGA Software does not meet its wishes and requirements. In case of doubt Licensee should consult employees of OST or third-party experts before concluding any contract.
7.2 Licensee must provide the operating environment (herein: “IT systems”) necessary for the VEGA Software, in accordance with OST’s guidance where given. It is the responsibility of Licensee to secure proper operation of the IT systems by entering into maintenance contracts with third parties if necessary.
7.3 Free of charge, Licensee must provide all collaboration that OST requires in connection with performance of the contract, including, for example, human resources, workspace, IT systems, data, and telecommunications facilities.
7.4 Licensee must nominate in writing a contact for OST, with an address and email address at which the contact can be reached. The contact must be in a position to make necessary decisions for Licensee or ensure that they are made without delay. Licensee’s contact must maintain effective cooperation with OST’s contact.
7.5 Before commencing live operation with the VEGA Software, Licensee must test it thoroughly for freedom from defects.
7.6 Licensee must take appropriate precautions against the possibility that the VEGA Software or any part thereof does not function properly (e. g. by performing data backups, error diagnosis and regular results monitoring). Except where otherwise expressly indicated in writing in individual cases, OST employees are always entitled to act on the assumption that all data with which they come into contact is backed up.
7.7 Licensee must inspect all goods, works, and services delivered or provided by OST and give notice of all defects. The notice must be in written form and contain a detailed description of the problem.
7.8 Licensee bears all consequences and costs resulting from breach of its duties.
8. DEFECTS AS TO QUALITY, DEFECTS IN TITLE, OTHER FAULTS
8.1 OST does not guarantee that the VEGA Software is free of all errors and functions without interruption but shall make efforts to fix them within a reasonable term if Licensee has provided a detailed, written description of the defects concerned.
8.2 When there are grounds for doing so, OST may postpone the fixing of defects until a new version of the software is put into operation. OST is entitled to install temporary solutions, program bypasses or problem avoiding limitations in the software.
8.3 OST is never obliged to recover data that has been corrupted or lost, but will provide assistance to the extent reasonable and possible.
8.4 OST may charge for the costs of fixing in accordance with its usual rates if such work is required as a result of user errors or improper use on the part of the Licensee, or as a result of causes that cannot be attributed to the Licensee.
8.5 The obligation to fix errors shall cease to apply if Licensee makes changes in the software or has such changes made without OST’s written permission.
9.1 OST shall be liable to Licensee for loss incurred in connection with the Software Licence Agreement only upon proof of OST’s intent or gross negligence, irrespective of the legal grounds and shall be limited to CHF 200,000. This limitation does not apply to liability for wilfully caused personal injury.
9.2 To the extent permitted by law, OST excludes liability for indirect and consequential loss such as loss of profit, unachieved savings, interruptions to business, third-party claims, or loss of data. Contributory fault (e. g. breach of section 6 duties) and contributory negligence may be claimed.
10.1 Use of Confidential Information. Both parties undertake forever to protect the other party’s Confidential Information acquired before and in connection with contract performance, as confidential to the same extent they protect their own Confidential Information, and not less than a reasonable standard of care. Confidential Information of the other party may only be shared with or disclosed to third parties who are under obligations of confidentiality substantially similar to those herein and only to the extent this is necessary to enable the receiving party to exercise its rights or perform its obligations under the Software Licence Agreement. Any reproduction of any Confidential Information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original, as far as this is technically feasible.
10.2 Exceptions. Section 10.1 above shall not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
(b) is generally available to the public without a contractual breach by the receiving party or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information;
(c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions; or
(d) the disclosing party agrees in writing is free of such restrictions.
11. DATA PROTECTION
OST and Licensee must comply with the provisions of the law of data protection. Where OST is granted access (e. g. for remote support) to hardware and software that Licensee uses, it is not the intention that OST processes or uses personal data for business purposes. Rather, transfer of personal data will only take place in exceptional circumstances as an incidental effect of OST performing its contractual duties. OST must treat this personal data in accordance with legal requirements and other applicable protection legislation.
12. PROHIBITION OF BRIBERY AND CORRUPTION
OST AG POLICY ON CORRUPTION AND BRIBERY
Corruption and bribery is prohibited.
It is never acceptable to authorise, offer, promise, give, solicit or accept any bribe, kickback, or other benefit or advantage, whether cash or other inducement, to or from any person or company, wherever they are situated, and irrespective of whether they are a public official, public body, private person, or company in order to gain any commercial, contractual or regulatory advantage for OST in a way which is illegal or undue or to gain any personal advantage, pecuniary or otherwise, for the individual or anyone connected with the individual.
PROHIBITIONS ON ADVANTAGES
It is prohibited to offer or grant an advantage to a government official or a private sector person to persuade that official or person to help the company to obtain undue or illegal benefits. Improper advantage can be widely defined, including anything of value. For example, it is not allowed to offer an advantage to a government official or a private person to illegally or unduly obtain a service or goods; to purchase a government official’s or private sector person’s property or services at inflated prices; to offer benefits (travel expenses, gifts, scholarships, employment etc.) to a family member of a government official or a private sector person to influence a decision.
Such an advantage to government officials or private sector persons is prohibited even if the benefits flow to another party and not to the party granting the advantage;the business is not with the government or the private sector entity;the granting of the advantage does not result in the award of the business or service expected;the government official or the private sector person initially suggested or requested the granting of the advantage.
HOSPITALITY AND PAYMENT OF BONA FIDE BUSINESS EXPENSES
The offering of gifts of any value and the solicitation of gifts or hospitality is prohibited.
Offering or accepting of hospitality is allowed but caution should be taken in offering or accepting hospitality that could be perceived as inappropriate or create a position of obligation on the part of the recipient. The practice of giving hospitality varies between cultures and countries. Practices that may be normal and acceptable in one country may not be in another. In any case, local laws shall be followed and local customs shall be understood and respected, to the extent consistent with applicable laws and this Conduct. Hospitability (offered or received) shall be proportionate and appropriate and shall not be capable of misinterpretation if publicly disclosed. Particular restraint shall be exercised with government employees and officials to avoid any impression of exerting improper influence on official decisions. Corrupt actions can best be defined by analysing intent. If the action is intended to influence normal decision-making, such that the giver gains special advantage, this constitutes corruption, but an action involving a third party openly to promote good relations or mark significant occasions is considered generally appropriate, provided it meets the following requirements: it is not made with the objective of influencing anyone to obtain or retain business or a business advantage, or to reward the provision or retention of business or a business advantage, or in explicit or implicit exchange for favors or benefits; it complies with local law and practice (e.g. most countries impose restrictions on what government officials or employees may receive and such local rules, including internal rules of government agencies, must be identified and followed);c.it is reasonable and proportionate in all circumstances from both an international and local perspective; it does not have a significant value; it is not in cash; it is given openly, not secretly; and it is properly recorded and accounted for, including the reason for the expenditure.
CONTRIBUTIONS TO POLITICAL PARTIES, ORGANISATIONS OR INDIVIDUALS
Direct or indirect contributions to political organisations or individuals as a way of obtaining illegal or undue advantage are prohibited.
SPONSORSHIPS, DONATIONS, CONTRIBUTIONS TO CHARITY OR SOCIAL PROJECTS
Any monetary and other contributions to charities, social projects and funds, including schools, educational funds and infrastructure projects, must be handled in accordance with OST applicable Corporate Sponsorship & Donations Guidelines and approved by the Board of Directors of OST.
It may happen that OST – either directly or by retaining third parties -engages in policy debate on subjects of legitimate concern to its business, customers and end users and the communities in which it operates. Any act of attempting to influence policy decisions made by government officials shall be considered as lobbying. Any OST officer, employee or Associated Third Party who lobbies on behalf of OST must comply with all requirements of applicable laws and regulations relating to that activity. This shall include any registration and reporting obligations where applicable. All principles and rules of the present Policy must be followed in the course of any lobbying activity by any OST Representative or Associated Third Party. This entails in particular that lobbying should not take place in any way that can be construed as being corrupt or for an illegal purpose, or to improperly influence any decision by means of payment or other coercive means. In addition, lobbyists shall respect ethical values, such as transparency and integrity, when conducting lobbying activities. Lobbying activity involves the presentation of arguments to influence a policy decision which may or may not provide OST with business opportunities at a later stage. As such there is no direct business objective when making a decision to engage a lobbyist. All lobbyists shall avoid any specific business development or sales and marketing activities when engaging in discussions and presentations with government officials. Prudence must be exercised in providing funds to governments or other institutions/agencies for any perceived business benefit. Any financial support proposed should be justified with a satisfactory rationale and made in accordance with the present Conduct and the Anti-Bribery and Anti-Corruption Guideline, as well as the Corporate Sponsorship and Donations guidelines by OST.
13. SUPPORT AND TERM BASED LICENSE: ADDITIONAL PROVISIONS
13.1 OST Support Services for the contractually agreed support model are provided as specified in the Software Licence Agreement and are tailored to Licensee’s needs.
13.2 OST may adapt the scope of the OST Support Services to reflect the continuing development of the VEGA Software and technical advances. In the event that a change may negatively affect the justified interests of Licensee, OST will inform Licensee in writing or by electronic means, at least three (3) months before the change is scheduled to take effect, drawing attention to the termination option as described below and to the consequences of non-termination. In this case, Licensee is entitled to early termination of the OST Support Services within the Software Licence Agreement as may be applicable, with effect from the time the change takes effect by giving two months’ prior notice (extraordinary termination right).
13.3 Subject to the Life Cycle of the VEGA Software and in accordance with the OST release strategy, OST provides support for the most recent VEGA Software currently being shipped and – where applicable – for older VEGA Software.
13.4 Licensee can effect regular termination of the OST Support Services by giving three (3) months’ written notice that takes effect at the end of a calendar year, subject however, to the Initial Term. Either party can effect regular termination of a term based license contract by giving three (6) months’ written notice that takes effect at the end of a calendar quarter, subject however, to the Initial Term.
13.5 Notice of termination for just cause is effective only if given in written form. OST reserves the right to terminate for just cause where Licensee is repeatedly or seriously in breach of major contractual obligations, as well as in case of insolvency, bankruptcy and composition proceedings, and all similar occurrences. Such termination is without prejudice to OST’s entitlement to remuneration outstanding at the time of termination, and OST is entitled to claim liquidated damages due immediately in the amount of 60% of the remuneration that would otherwise have become due up to the earliest time at which Licensee could have effected termination with regular notice. Licensee retains the right to show that OST’s actual loss is less.
13.6 These GTC can be changed with regard to OST Support Services and term-based license agreements, provided that the change does not have any impact on the content of the OST Support Services or term- based license agreement that is material for the equivalency of services and remuneration between the parties and provided that such change is reasonably acceptable for Licensee. OST will inform about the change of the GTC in writing. If, in this case, Licensee does not expressly disagree in writing within 4 weeks after receipt of the change notice, the change will be deemed to be effected as is the changed OST version is the basis for existing OST Support Services or term based license agreements between OST and Licensee from that point in time. OST will draw attention to this consequence in the change notice.
14. FINAL PROVISIONS
14.1 Swiss law applies exclusively to all claims in contract, in tort or otherwise, and the UN sales laws convention as well as the rules of conflict of laws are excluded. The sole place of jurisdiction for all differences arising out of or in connection with the Software Agreement shall be 6330 Cham, Canton of Zug, Switzerland.
14.2 Amendments or additions and contractually relevant declarations as well as declarations directly influencing a legal relationship, especially without being limited to termination notices, reminders or notices to set time limits, require written form. The foregoing provision also applies to any waiver of the written form requirement. The written form requirement can also be met by exchange of letters or (except in the case of termination notices) with an electronically transmitted signature (facsimile transmission or other agreed form of contract conclusion provided by or on behalf of OST).
14.3 No conditions that are conflicting with or amending the Software Licence Agreement, notably Licensee’s general terms and conditions, form any part of the contract, even where OST has performed a contract without expressly rejecting such provisions.
14.4 A separate agreement is required for any other goods, works and services that are not expressly
described in the term-based Software License Agreement or for OST Support Services. Unless otherwise agreed, such goods, works and services are provided subject to a consulting agreement and OST is entitled to remuneration for them in accordance with the relevant OST’s list of prices and conditions.
Optimised Systems Technologies AG
6330 Cham, Switzerland.
Boulevard de Pérolles 7 , 3rd Floor,
CH 1700, Fribourg, Switzerland.
+41 41 743 0728
+41 41 743 0729
Optimised System Technologies (Portugal) Lda.
Rua Dr. A Candido 10-2.andar,
1050-076 Lisboa, Portugal
Giani Maria Philipp