SMLOUVA O ZAJIŠTĚNÍ PRÁVA K DOČASNÉMU UŽÍVÁNÍ SOFTWARU
SMLOUVA O ZAJIŠTĚNÍ PRÁVA K DOČASNÉMU UŽÍVÁNÍ SOFTWARU
POSKYTNUTÍ SOFTWARE
Xxxxx XXX: 15461/2021/00; UID: 0000159026 Číslo AV ENGINEERING, a.s.: 2210000319
Kterou podle platných právních předpisů uzavřely níže uvedeného dne, měsíce a roku na základě vzájemného konsenzu a za následujících podmínek tyto smluvní strany
Vysoké učení technické v Brně
Sídlem: Antonínská 548/1, 601 90 Brno
IČ: 00216305
DIČ: CZ00216305
Bankovní spojení:
VVŠ do obchodního rejstříku nezapsaná, zřízena dle zák. 111/98 Sb. Zastoupené:
na straně jedné a dále v textu pouze jako „Objednatel“
a
AV ENGINEERING, a.s.
Sídlem: Kvítková 668, 760 01 Zlín
IČ: 48908142
DIČ: CZ48908142
Bankovní spojení:
V obchodním rejstříku v oddílu B, vložka 1065 vedená u Krajského soudu v Brně Jednající (zastoupena):
na straně druhé a dále v textu pouze jako „Dodavatel“
Pro případ, že dojde ke změně kteréhokoli ze shora uvedených údajů, je smluvní strana, u které daná změna nastala, povinna informovat o ní druhou smluvní stranu, a to průkazným způsobem (formou doporučeného dopisu) a bez zbytečného odkladu. V případě, že z důvodu nedodržení nebo porušení této povinnosti dojde ke škodě, zavazuje se strana, která škodu způsobila, tuto nahradit v plné výši.
1.1 Předmětem této Smlouvy je:
Článek 1 Předmět smlouvy
Zajištění práva k dočasnému užívání softwaru Creo University Plus Campus Pack (500 kusů licencí) + PLMS Term nejpozději do 30 dnů od uzavření smlouvy.
Práva jsou blíže specifikována v Technickém popisu, který předložil Dodavatel ve své nabídce a který je nedílnou součástí této smlouvy jako její příloha č. 1.
Podmínky poskytnutí práva (Licenční ujednání), které předložil Dodavatel ve své nabídce, jsou nedílnou součástí této smlouvy.
1.2 Dodavatel se touto Smlouvou zavazuje:
a) dodat Objednateli předmět smlouvy dle odst. 1.1
b) poskytovat po dobu trvání této smlouvy Objednateli veškerou nezbytnou součinnost nutnou pro řádné užívání software dle předchozího odstavce,
a Objednatel se zavazuje zaplatit cenu ve výši dle čl. 2 a způsobem dle čl. 3 této Smlouvy.
Článek 2
Cena předmětu smlouvy
2.1 Objednatel se zavazuje Xxxxxxxxxx zaplatit:
Celková cena bez DPH: | 150 558,00 Kč |
Výše DPH v % 21: | 31 617,18 Kč |
Celková cena vč. DPH: | 182 175,18 Kč |
2.2 Smluvní strany se dohodly, že cena předmětu smlouvy může být zvýšena pouze v případě, dojde-li během plnění smlouvy ke změně rozsahu poskytovaných práv a/nebo poskytnutí dalších služeb na základě výslovného předchozího požadavku Objednatele. Pokud dojde k této změně, pak musí být řešena postupem dle zákona č. 134/2016 Sb., o zadávání veřejných zakázek, ve znění pozdějších předpisů a následným uzavřením písemného, číslovaného a oběma smluvními stranami podepsaného dodatku ke smlouvě.
Článek 3 Platební podmínky
3.1 Objednatel je povinen zaplatit Dodavateli cenu ve výši dohodnuté v čl. 2 Smlouvy na základě jím vystaveného a Objednateli prokazatelně doručeného daňového dokladu.
3.2 Splatnost daňového dokladu je stanovena dohodou smluvních stran na 30 dnů.
3.4 V případě, že daňový doklad nebude obsahovat výše uvedené náležitosti, bude Objednatelem vrácen k opravení bez proplacení. V takovém případě lhůta splatnosti počíná běžet znovu ode dne doručení opraveného či nově vyhotoveného daňového dokladu.
Článek 4 Doba trvání
4.1 Práva dle čl. 1 jsou poskytována jako časově omezená, a to na 3 roky od udělení užívacího práva.
4.2 Smlouva může být ukončena dohodou smluvních stran nebo odstoupením od Smlouvy z důvodu podstatného porušení smluvních povinností nebo z důvodů uvedených v zákoně.
Článek 5
Ustanovení společná a závěrečná
5.1 Dodavatel prohlašuje, že je seznámen s povinnostmi stanovenými § 219 zákona č. 134/2016 Sb., ve znění pozdějších předpisů a zavazuje se poskytnout Objednateli potřebnou součinnost.
5.2 Nevynutitelnost a/nebo neplatnost a/nebo neúčinnost kteréhokoli ujednání této Smlouvy neovlivní vynutitelnost a/nebo platnost a/nebo účinnost jejích ostatních ujednání. V případě, že by jakékoli ujednání této Smlouvy mělo pozbýt platnosti a/nebo účinnosti, zavazují se tímto smluvní strany zahájit jednání
a v co možná nejkratším termínu se dohodnout na přijatelném způsobu provedení záměrů obsažených
v takovém ujednání této Smlouvy, jež platnosti a/nebo účinnosti a/nebo vynutitelnosti pozbyla.
5.3 Smlouva je vyhotovena ve čtyřech stejnopisech, z nichž každý má platnost originálu a každá smluvní strana obdrží po dvou z nich, není-li Smlouva uzavřena elektronicky, a to tak, že každá smluvní strana připojí svůj elektronický podpis.
5.4 Tato Smlouva nabývá platnosti okamžikem jejího podpisu oběma smluvními stranami a účinnosti od data jejího zveřejnění v registru smluv.
5.5 Smluvní strany tímto prohlašují, že se s obsahem této Smlouvy řádně seznámily, že tato Smlouva je projevem jejich vážné, svobodné a určité vůle prosté omylu, není uzavřena v tísni a/nebo za nápadně nevýhodných podmínek, na důkaz čehož připojují své níže uvedené podpisy.
5.6 Smluvní strany podpisem této smlouvy potvrzují, že jsou si vědomy, že se na smlouvu vztahuje povinnost jejího uveřejnění dle zákona č. 340/2015 Sb. o registru smluv, v platném znění. Uveřejnění smlouvy zajišťuje Objednatel.
V Brně, dne 13.9.2021 Ve Zlíně, dne 14.9.2021
Za Objednatele Za Dodavatele
………………………………………….………………….. …………………………………………………………………… I I
Quotation for Subscription Licenses and Cloud/SaaS Services
Customer Information
Quote Number | 2210000319 | Quote Date: 16.08.2021 | |
Customer Legal Name | Vysoke uceni technicke v Brne | Quote Expiration Date: 15.09.2021 | |
Customer Number | 16817 | ||
Street Address | Antoninska 548/1 | ||
City/State/Province | Brno | Zip: 601 90 | Country: Czech Republic |
Contact Name | I | Contact Phone: | |
Contact email | Contact Fax: | ||
Email for eLearning | |||
PTC Reseller Information
Partner Legal Name | AV ENGINEERING, a.s. | Partner Phone: | |
Street Address | Xxxxxxxx 000 | ||
City/State/Province | Zlin | Zip: 760 01 | Country: Czech Republic |
Sales Rep Name | Sales Rep Phone: | ||
Sales Rep email | |||
Order Information
Order Type | New | Renewal | Expansion of Existing Order (original Quote # | ) |
Country of Installation | Czech Republic | |||
Shipping Terms | Electronic Shipment | |||
Payment Terms | ||||
Initial Term | |
Start Date | (Note: If PTC makes the Licensed Products and/or Cloud Services available to Customer after such date, the Start Date will be when Customer is able to access the Licensed Products and Cloud Services) |
Initial Term | 36 Months |
Committed Subscription License Details (leave blank if Customer is not purchasing) | ||||||||
Item Description | Part # | License Basis | Support Tier | Quantity | Billing Period | Price Per Unit | Fee Per Billing Period | Total Contract Value |
University Plus Campus Pack + PLMS - Subscription | SPN-4112- FN- | Concurrent User | GOLD | 1 | 12 months | 1 970 € | 1 970 € | 5 910 € |
Total Annual Committed Subscription License Fees | 1 970 € | |||||||
Total Committed Subscription License Fees | 5 910 € | |||||||
Committed Cloud Service Details (leave blank if Customer is not purchasing) | ||||||
Item Description | Part # | Quantity | Billing Period | Price Per Unit | Fee Per Billing Period | Total Contract Value |
Total Annual Committed Cloud Services Fees (not including overage fees) | ||||||
Total Committed Cloud Services Fees | ||||||
Governing Terms: Customer hereby agrees that the items included in this order are subject to the terms and conditions of the applicable documents posted on xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxx-xxxxxxxxxx. The applicable documents are:
• the “On Premise License Agreement and Related Documents” for perpetual and subscription software licenses,
• the “Cloud/SaaS Terms and Related Documents” for Cloud and SaaS Services (except for Onshape products, which are instead subject to the terms and conditions set forth in the “Terms of Use” document posted on xxxxx://xxx.xxxxxxx.xxx/xxxxx), and
• the “Support Documents and Success Plans” for Support Services and Success Plans,
• “Instructor Led Training Terms and Conditions” for instructor-led training, etc.
Customer acknowledges it has read those documents and xxxxxx agrees to be bound by them. Any licensing basis acronyms in the table above are explained in the PTC Licensing Basis Table document posted at xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxx-xxxxxxxxxx, which document also contains licensing basis information and usage restrictions applicable to this order. In the event of a conflict between this Quote and the applicable agreement(s), the terms and conditions of this Quote will prevail. Other than the line items that serve to order the products and services described above, in no event shall any terms of a purchase order or other documents issued by Customer modify or become part of this Agreement.
Renewals: The items ordered in this Quote shall automatically renew at the end of each term without the need for additional paperwork unless Customer, the PTC reseller or PTC notifies each other party in writing of non-renewal prior to the renewal date. For subscriptions that are three months long, the renewal period will be additional three-month periods. For all other subscriptions, the renewal period will be the same length of the as the length of the initial term (but not less than 12 months). The fee for each renewal period may be increased and, in such event, Customer shall be informed (email sufficient) of the fee increase approximately sixty days or more prior to the renewal date.
Remix: At each anniversary of the subscription commencement date during the term of the subscription, Customer may, by giving PTC written notice at least 60 days prior to such anniversary date, change its subscription license mix by exchanging subscription licenses included in this Quote for other subscription licenses that (a) are currently sold by PTC, and (b) that are from the same Product Grouping, on a dollar-for- dollar basis (based on the then-current list prices of the products being exchanged). Product Groupings mean the following groupings of PTC products: Internet of Things products, Service Lifecycle Management products, PLM/ALM products, Vuforia products, and CAD products (but PTC’s Onshape products are not eligible for exchange, and PTC’s Creo products that are, or that have embedded technology from Ansys are also not included and are not eligible for exchange). Thus, for example, Creo CAD products could be exchanged for other Creo products or for Mathcad products, but not for Windchill PLM products. Such exchange rights are subject to the following conditions:
(i) no refunds or credits will be issued as a result of any exchange;
(ii) the products to be obtained via exchange must be commercially available from PTC as of the date hereof and also still be commercially available from PTC at the time of the proposed exchange;
(iii) for packages and items purchased as part of special offerings, the entirety of the package/special offering items may be exchanged, but not part(s) of such packages/special offerings;
(iv) where a package is being remixed, the remix credit must be allocated to its component Product Groupings consistent with how PTC allocates the revenue for that package);
(v) no exchange rights will be available for products that were included at no charge as part of any special promotional program or any bundled product item,
(vi) exchange is not allowed to or from eLearning products and/or customer success offerings;
(vii) exchange rights may not be exercised to exchange subscription licenses to or from hosted or SaaS items; and
(viii) if exchange rights are exercised with respect to products for which PTC is providing cloud (or hosting) services for Customer, PTC will not be obligated to provide cloud/hosting services for the new products unless PTC provides cloud/hosting services for such products generally, and the fees for PTC’s cloud/hosting services may be increased by PTC depending on PTCs fees for providing cloud/hosting services for such changed products. Subscription licenses cannot be remixed with Cloud/SaaS products.
Upgrades/Amendments: Where the table of Licensed Products above includes items with negative quantities, that signifies that such Licensed Products are being upgraded or removed from Customer’s license entitlement. In such case, Customer may no longer use such Licensed Products.
Overage: For Cloud/SaaS services (but not including Onshape services), each month PTC will monitor Customer’s usage, data storage and other parameters, as specified in the PTC Cloud and SaaS Offering Specific Provisions set forth at xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxx-xxxxxxxxxx/xxxxx-xxxxx. Customer hereby agrees to pay fees for overages. Overage fees will be invoiced and due monthly in arrears.
Forfeiture of Existing Perpetual Licenses: Customer hereby irrevocably relinquishes all rights, licenses and interests in all commercial software products previously purchased by Customer from the software vendor listed below (the “Discontinued Software”) as detailed in the table below, and Customer hereby agrees to de- install and discontinue use of all such Discontinued Software.
Software Vendor | Item Description | Part # | Reference # | Quantity |
Personal Data: All personal data received, or collected by PTC or the PTC Reseller identified above in connection with the performance of its obligations will be processed in accordance with the Data Processing Terms and Conditions available at xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxxxxx and PTC’s privacy policy xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxxxxx/xxxxxxx.
By signing below, Customer hereby orders from the PTC Reseller identified above the products and services set forth above.
Name:
Position / Title:
Date:
Příloha č. 1
Software and Services
Technická specifikace 2210000319
Zajištění práva k dočasnému užívánísoftwaru
Cena/1 licence/ Počet 12 měsíců
Celková cena/ 36 měsíců
1. SPN-4112-FN
University Plus Campus Pack + PLMS - Term 50 186,00 CZK 1× 150 558,00 CZK
RESUME 22100 | 00319 | Cena | ||
Zajištění práva k | dočasnému | užívání | softwaru | 150 558,00 CZK |
CENA CELKEM | 150 558,00 CZK |
Ceny jsou uvedeny bez DPH
PTC Creo University Plus Academic Campus Pack
Základní charakteristika:
• Školní multilicence (500 licencí) určená výhradně školám pro výuku studentů
• Síťová multi-licence s licenčním serverem – jednotlivé počítače se připojují do sítě
• Platnost licence je 3 roky
• Součástí je technická podpora dodavatele a aktualizace software
• Data vytvořené ve školních licencích se nedají otevřít v komerčních licencích a naopak
Součástí jsou následující moduly:
2D kreslení | ||
PTC Creo Layout | rychlá tvorba detailního 2D koncepčního návrhu | |
PTC Creo Sketch | rychlá tvorba a editace 2D skic, (volně stažitelný modul) | |
3D modelování | ||
PTC Creo Parametric | komplexní 3D CAD/CAM/CAE parametrický modelář | |
PTC Creo Flexible Modeling Extension | flexibilní modelovaní importované geometrie | |
PTC Creo Advanced Framework Extension | automatizované konstruovaní ocelových a hliníkových konstrukcí | |
PTC Creo Advanced Assembly Extension | pokročilé řízení sestav | |
PTC Creo Interactive Surface Design Extension | konstrukce tvarově složitých ploch | |
PTC Creo Piping & Cabling Extension | 3D návrh potrubních tras a kabelových svazků | |
PTC Creo Advanced Rendering Extension | pokročilé foto-renderování | |
PTC Creo Manikin Extension | ergonomie prostředí, práce s digitální postavou člověka | |
PTC Creo Legacy Migration Extension | Propojení existujících 2D dat s 3D daty | |
PTC Creo ECAD-MCAD Collaboration Extension | spolupráce mezi elektrickým a mechanickým návrhem | |
PTC Creo Direct | komplexní 3D CAD direktivní modelář | |
Simulace | ||
PTC Creo Advanced Simulation Extension | pevnostní dynamické analýzy MKP, analýzy přestupu tepla | |
PTC Creo Simulate (Simulation Extension) | pevnostní statické analýzy Metodou konečných prvků (MKP) | |
PTC Creo Manikin Analysis Extension | ergonomická a lidská faktorová analýza | |
PTC Creo Tolerance Analysis Extension | analýza tolerancí s využitím technologie CETOL | |
PTC Creo Behavioral Modeling Extension | optimalizace konstrukce | |
PTC Creo Mechanism Dynamics Extension | analýzy mechanismů | |
PTC Creo Plastic Advisor Extension | simulace plnění vstřikovací formy taveninou | |
PTC Creo Spark Analysis Extension | základní elektrotechnické analýzy | |
Výroba | ||
PTC Creo Complete Machining Extension | 3-5 osé frézovaní, 2-4 osé soustružení, 2-4 osé drátové řezání | |
PTC Creo NC Sheetmetal Extension | tvorba NC programů pro řezačky a vypalovačky | |
PTC Creo Computer-aided Verification Extension | digitální kontrola opracovaných dílů | |
PTC Creo Expert Moldbase Extension | komplexní konstrukce forem a jejich komponentů | |
PTC Creo Progressive Die Extension | konstrukce postupových střižných nástrojů | |
PTC Creo Complete Mold Design Extension | návrh tvarových částí forem | |
Vizualizace | ||
PTC Creo View | vizualizace Creo dat | |
PTC Creo Illustrate | tvorba 3D návodů a animací | |
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2.2. Designated Country/Servers. Except in the case of Global or Restricted Global Licenses, Customer may only install and operate Licensed Products on the applicable Designated Server situated in the applicable Designated Country. Customer may, from time to time, change the Designated Server and/or the Designated Country in which Customer seeks to install or operate a Licensed Product, provided that in each case (i) Customer shall give prior written notice to PTC of any such change, and (ii) upon moving the Licensed Products to a different Designated Country, Customer shall pay the associated Uplift Fees.
2.3. Additional Restrictions on Use. Customer shall not permit any persons who are not Permitted Users to access or use the Licensed Products. As a condition of the grant of license set forth in Section 2.1, Customer shall not and shall not permit any third party(ies) to:
(i) modify or create any derivative work of any part of the Licensed Products;
(ii) rent, lease, or loan the Licensed Products;
(iii) use the Licensed Products, or permit them to be used, for third-party training, to deliver software implementation or consulting services to any third parties, or for commercial time-sharing or service bureau use;
(iv) disassemble, decompile or reverse engineer the Licensed Products or the file format of the Licensed Products, or otherwise attempt to gain access to the source code or file format of the Licensed Products, except as expressly permitted in Schedule A, if applicable;
(v) sell, license, sublicense, loan, assign, or otherwise transfer (whether by sale, exchange, gift, operation of law, or otherwise) to any third party the Licensed Products, any copy thereof, or any License or other rights thereto, in whole or in part, without in each case obtaining PTC’s prior written consent, except to the extent that any of the foregoing are explicitly authorized in the Quote and/or the Licensing Basis Document;
(vi) alter, remove, or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices on or in any copies of the Licensed Products; and
(vii) copy or otherwise reproduce the Licensed Products in whole or in part, except (a) as may be required for their installation into computer memory for the purpose of executing the Licensed Products in accordance with this Section 2, and/or (b) to make a reasonable number of copies solely for back-up purposes (provided that any such permitted copies shall be the property of PTC and Customer shall reproduce thereon all PTC copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices contained in the original copy of the Licensed Product obtained from PTC).
2.4. Restriction on Installation Location. Except for “Global” licenses (as specified in the product name), all of PTC’s products are restricted such that they may only be installed in the Designated Country. Where Customer desires to change the country of installation, Customer is required to notify PTC and, where the list prices for such licenses are higher in the proposed new country of installation, uplift fees are required based on the difference.
2.5. Restrictions on User Location (Concurrent User Products). Except for “Global” and “Restricted Global” licenses, PTC products that are licensed on a Concurrent User basis may only be used by persons physically located in the country where the products are installed, and
all of the software components shipped as part of that product (for example, client code and license server) may only be installed in the Designated Country. However, where a person who is normally located in that country is traveling abroad, that person can check out the license for a limited period of time (for most products two weeks), during which time period such license is not available on Customer’s network. Users who are not employees of the Customer may use PTC products licensed on a Concurrent User basis only while physically located at a Customer site. THE RESTRICTIONS IN THIS PARAGRAPH APPLY ONLY TO CONCURRENT USER PRODUCTS, NOT TO PTC PRODUCTS THAT ARE LICENSED ON A DIFFERENT BASIS THAN CONCURRENT USER.
2.6. Global/Restricted Global Licenses. A “Global” License allows the Customer to install, operate and use such Licensed Product at any of the Customer’s site(s) throughout the world, notwithstanding any restrictions in the License Agreement in relation to limiting use of Licensed Products to the country of installation, but subject to compliance with all applicable export laws and regulations. A “Restricted Global” License allows the Customer to install, operate and use such Licensed Product at any of the Customer’s site(s) located in the Designated Country and/or in any Permitted Country, notwithstanding any restrictions in the License Agreement in relation to limiting use of Licensed Products to the country of installation. “Permitted Countries” means China, India, Russia, the Czech Republic, Poland, Hungary, Malaysia, South Africa, Israel, Mexico, Brazil, Argentina, and Romania.
2.7. Third Party Components and Bundled Third Party Products. Certain of the Licensed Products may contain embedded third party software components for which additional terms apply. The current additional terms are set forth on the Schedule of Third Party Terms available on the Licensing Documents Webpage.
2.8. Additional Restriction(s). Additional product-specific provision(s) and terms applicable to third party components included in or with the Licensed Products may apply to particular Licensed Products, as specified in the Licensing Basis Document, which is hereby incorporated by reference.
3. Support
3.1. Support Services Plan; Levels of Support Services. Upon PTC’s acceptance of Customer’s order for a subscription License or for Support Services in respect of the Licensed Products, PTC and/or its authorized subcontractors shall provide Support Services in accordance with these terms for a time period of twelve (12) months or for such other period specified in Customer’s order accepted by PTC (a “Support Services Plan”). The current levels of Support Services offered and Support terms are available at xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxx- agreements/support-documents.
3.2. If Customer at any time discontinues Support Services for perpetual licenses, Customer will not be entitled to reactivate Support Services. In such case, Customer may either use the Licensed Products without Support Services or purchase new subscription licenses.
3.3. If Customer elects Support Services for a particular Licensed Product, all of Customer’s licenses of such Licensed Product must be on Support Services (i.e., partial Support orders or partial renewals are not permitted).
4. Compliance
4.1. License Usage Assessments. To confirm Customer’s compliance with the terms and conditions of this Agreement, Customer agrees that PTC and PTC’s authorized agents may perform usage assessments with respect to Customer’s use of the Licensed Products. Customer agrees to provide PTC access to Customer’s facilities and computer systems, and cooperation from Customer’s employees and consultants, as reasonably requested by PTC in order to perform such assessments, all during normal business hours, and after reasonable prior notice from PTC.
4.2. Reports. Upon written request from PTC, Customer agrees to provide to PTC an installation and/or usage report with respect to the Licensed Products (and in the case of Registered User Products, as specified in the Licensing Basis Document, such report shall include a list of all individuals for whom Customer has issued a password or other unique identifier to enable such individual to use the Registered User Product). Each such report shall be certified by an authorized representative of Customer as to its accuracy within ten (10) business days after receipt of PTC’s written request. For any period in which Customer’s use of the Licensed Products exceeds the number and/or the scope of the Licenses in effect during such period for such Licensed Products, Customer agrees to pay for any such excess usage, including applicable license and Support Services fees, and without limiting any other rights or remedies to which it is entitled, failure to pay shall be grounds for termination in accordance with Section 9.1 hereof.
5. Intellectual Property
PTC and its licensors are the sole owners of the Licensed Products and of any copies of the Licensed Products, and of all copyright, trade secret, patent, trademark and other intellectual or industrial property rights in and to the Licensed Products. All copies of the Licensed Products, in whatever form provided by PTC or made by Customer, shall remain the property of PTC, and such copies shall be deemed to be on loan to Customer during the License Term. Customer acknowledges that the License granted hereunder does not provide Customer with title to or ownership of the Licensed Products or any copies thereof, but only a right of limited use consistent with the exp ress terms and conditions of this Agreement. Customer shall have no rights to the source code for the Licensed Products and Customer agrees that only PTC shall have the right to maintain, enhance, or otherwise modify the Licensed Products.
6. Warranty; Disclaimer of Warranties
See Schedule A for a modified version of this Section 6 for Licensed Products licensed and used in Germany, Austria or Switzerland.
6.1. Warranty. PTC warrants to Customer that PTC is authorized to grant the License(s). PTC further warrants that the Licensed Products will be free from Errors during the Warranty Period. “Warranty Period” means: (a) for perpetual software licenses, the ninety day period commencing on the date PTC makes the Licensed Product available to Customer or Customer’s designee, and (b) for subscription licenses, the term of the subscription. PTC shall have no warranty obligations hereunder with respect to any (i) Errors attributable to any modifications or customizations of the Licensed Products, (ii) Licensed Products that are provided by PTC free of charge to Customer, and/or (iii) Bundled Third Party Products (as defined in the Schedule of Third Party Terms). PTC’s issuance of a New Release will not re-start a Warranty Period that has expired.
6.2. Sole Remedy. PTC’s and its licensors’ entire liability and Customer’s exclusive remedy for any breach by PTC of the warranty given in the second sentence of Section 6.1 above shall be, at PTC’s sole discretion, either to (a) replace the Licensed Product(s) that contains the Error, or (b) use diligent efforts to repair the Error. PTC’s obligations set forth in the preceding sentence shall apply only if notice of the Error is received by PTC within the Warranty Period and Customer supplies such additional information regarding the Error as PTC reasonably requests. If PTC does not replace the applicable Licensed Product(s) and/or does not repair the Error (either by providing a bug fix, a workaround or otherwise) within a reasonable time after PTC receives written notice of the Error and associated information from Customer, upon return of such Licensed Product(s) and any copies thereof, PTC will provide a refund of: the perpetual license fees paid by Customer for the Licensed Product(s) that contains the Error, and (ii) the prepaid subscription fees for the remainder of the subscription term for the Licensed Product(s) that contains the Error, in each case upon return of such Licensed Product(s) and any copies thereof.
6.3. No Additional Warranties. No third party, including any employee, partner, distributor (including any Reseller) or agent of PTC or any of its Resellers or sales agents is authorized to give any representations, warranties or covenants greater or different than those contained in this Agreement with respect to any Licensed Products or Support Services, except as specifically set forth in a written agreement signed on behalf of Customer by an authorized officer and on behalf of PTC by its legal counsel.
6.4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6, PTC DISCLAIMS (AND CUSTOMER WAIVES) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND/OR ANY WARRANTY THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RETURN ON INVESTMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RESULTS OBTAINED FROM USING THE LICENSED PRODUCTS, INCLUDING THE ADEQUACY OF INDEPENDENT TESTING OF RELIABILITY, SECURITY AND ACCURACY OF ANY ITEM DESIGNED USING LICENSED PRODUCTS. PTC DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE LICENSED PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO CUSTOMER’S DATA, COMPUTERS OR NETWORKS. WITHOUT LIMITING THE FOREGOING, PTC WILL HAVE NO LIABILITY ARISING FROM ANY SECURITY INCIDENT OR DATA LOSS THAT WOULD HAVE BEEN PREVENTED IF CUSTOMER HAD IMPLEMENTED A SECURITY SOLUTIONS, DEVICES OR FEATURES (INCLUDING “PATCHES,” FIXES AND UPDATES) FOR THE LICENSED PRODUCTS PROVIDED OR MADE AVAILABLE BY PTC TO CUSTOMER.
7. Indemnification; Infringement
7.1. PTC’s Obligation to Indemnify Customer. PTC, at its own expense, will defend any action brought against Customer based on a claim that any Licensed Product infringes a United States, European Union or Japanese patent, copyright or trademark and, at its option, will settle any such action or will pay any final judgment awarded against Customer, provided that: (a) PTC shall be notified promptly in writing by Customer of any notice of any such claim; (b) PTC shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise and shall bear the costs of the same (save where one or more of the exclusions in Section 7.3 applies); and
(c) Customer shall cooperate fully at PTC’s expense with PTC in the defense, settlement or compromise of such claim. This Section states PTC’s sole and exclusive liability, and Customer’s sole remedy, for any and all claims relating to infringement of any intellectual property right.
7.2. PTC’s Right to Act to Prevent a Claim. If a claim described in Section 7.1 hereof occurs or, in PTC’s opinion, may occur, Customer shall permit PTC, at PTC’s option and expense to: (a) procure for Customer the right to continue using the Licensed Product; (b) modify the Licensed Product so that it becomes non-infringing without materially impairing its functionality; or (c) terminate the applicable Licenses, accept return of the applicable Licensed Products and grant Customer a credit thereon. For Licenses purchased with a perpetual License Term, such credit shall be equal to the license fees paid by Customer for such Licensed Product depreciated on a straight-line, five year basis. For Licenses purchased on a term license or subscription basis, such credit shall be equal to the prepaid license or subscription fees for the remainder of the License Term.
7.3. Exclusions from PTC’s Obligation to Indemnify Customer. PTC shall have no liability to Customer under Section 7.1 hereof or otherwise to the extent that any infringement or claim thereof is based upon: (a) use of the Licensed Product in combination with equipment or software not supplied hereunder where the Licensed Product itself would not be infringing; (b) use of other than a current release of the Licensed Product(s) provided to Customer; or (c) modification of the Licensed Product by anyone other than PTC or its employees or agents.
8. Limitation of Liability
See Schedule A for a modified version of this Section 8 for Licensed Products licensed and used in Germany, Austria or Switzerland.
8.1. The warranty and indemnification provisions of Sections 6 and 7 hereof state the entire liability of PTC, its subsidiaries and affiliates, and each of their respective directors, officers, employees or agents, with respect to the Licensed Products and Support Services, including
(without limitation) any liability for breach of warranty, or for infringement or alleged infringement of patent, copyrights, trademarks, trade secrets and other intellectual or proprietary rights by the Licensed Products, or their use.
8.2. EXCEPT FOR PTC’S INDEMNIFICATION OBLIGATIONS IDENTIFIED IN SECTION 7.1 ABOVE AND EXCEPT FOR CLAIMS FOR DEATH OR PERSONAL INJURY, THE MAXIMUM LIABILITY OF PTC AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS AND LICENSORS ARISING OUT OF, OR RELATING TO, THE CREATION, LICENSE, FUNCTIONING, USE OR SUPPLY OF THE LICENSED PRODUCTS OR THE PROVISION OF SUPPORT SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, SHALL NOT, (I) FOR LICENSES PURCHASED ON A PERPETUAL BASIS, EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED PRODUCTS OR SUPPORT SERVICES THAT GAVE RISE TO THE CLAIM, AND (II) FOR LICENSES PURCHASED ON A TERM OR SUBSCRIPTION BASIS, EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO DAMAGES FOR THE LICENSED PRODUCTS OR SUPPORT SERVICES THAT GAVE RISE TO THECLAIM.
8.3. IN NO EVENT SHALL PTC AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS AND LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR: (A) ANY LOSS OF PROFIT, LOSS OF USE DAMAGES, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF REPUTATION OR LOSS OF ANTICIPATED SAVINGS; (B) ANY LOSS OR INACCURACY OF DATA OR BUSINESS INFORMATION OR FAILURE OR INADEQUACY OF ANY SECURITY SYSTEM OR FEATURE; AND (C) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED; IN EACH CASE EVEN IF PTC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4. Nothing in this Section 8 will excuse or limit Customer’s obligation to pay the applicable fee(s) for all authorized or unauthorized use of the Licensed Products.
8.5. Customer agrees not to bring any suit or action against PTC, and/or its subsidiaries and affiliates, PTC’s licensors and/or any of their respective directors, officers, employees or agents for any reason whatsoever more than one year after the cause of action arises.
9. Term and Termination of Licenses or Support Services
9.1. Events Causing Termination. This Agreement and all Licenses and the provision of Support Services will terminate thirty (30) days after written notice from PTC specifying a breach of this Agreement, including failure to make any payment due to either PTC or a Reseller in connection with the Licensed Products in a timely manner, if that breach is not, within that thirty (30) day period, remedied to PTC’s reasonable satisfaction.
9.2. Effects of Expiration or Termination. Upon expiration of a given License Term and/or any expiration or termination of this Agreement, Customer shall promptly pay all sums owed by Customer, return to PTC the original copies of all Licensed Products for which the License Term has expired or has been terminated, destroy and/or delete all copies and backup copies thereof from Customer’s computer libraries, storage facilities and/or hosting facilities.
9.3. Survival. Sections 1.2, and 3 through 10 shall survive expiration or termination of this Agreement.
10. General
10.1. Governing Law and Jurisdiction. Unless otherwise stated in the PTC Affiliate List document available at xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxx-xxxxxxxxxx/xxx-xxxxxxxxxx, all disputes arising under, out of, or in any way connected with this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without referen ce to conflict of laws principles (and specifically excluding the Uniform Computer Information Transactions Act). The parties hereby expressly disclaim the application of the U.N. Convention for the International Sale of Goods. All disputes arising under, out of, or in any way connected with this Agreement shall be litigated exclusively in the state or federal courts situated in the Commonwealth of Massachusetts, and in no other court or jurisdiction. Notwithstanding the foregoing or anything to the contrary, PTC shall have the right to bring a claim in any court of competent jurisdiction to enforce any intellectual property rights and/or protect any confidential information. Customer stipulates that the state and federal courts situated in the Commonwealth of Massachusetts shall have personal jurisdiction over its person, and Customer hereby irrevocably (i) submits to the personal jurisdiction of said courts and (ii) consents to the service of process, pleadings, and notices in connection with any and all actions initiated in said courts. The parties agree that a final judgment in any such action or proceeding shall be conclusive and binding and may be enforced in any other jurisdiction. Each party waives its right to trial by jury in connection with any dispute arising out of this Agreement.
10.2. Notices. Any notice or communication required or permitted under this Agreement shall be in writing. Any notice provided under this section shall be deemed to have been received: (a) if given by mail, five (5) business days after posting; (b) if given by express courier service, the second business day following dispatch; or (c) if given by fax, upon receipt thereof by the recipient’s fax machine.
10.3. Assignment, Waiver, Modification. Customer may not assign, transfer, delegate or sublicense any of Customer’s rights or obligations hereunder (including without limitation by operation of law or by sale of Customer assets, whether directly or by merger, and a change in control of Customer shall be deemed to be an “assignment” for purposes of the foregoing) without PTC’s prior written consent, and any such attempted delegation, assignment, transfer or sublicense shall be void and a breach of this Agreement. No waiver, consent, modification, amendment or change of the terms of this Agreement shall be binding unless in writing and signed by PTC and Customer. PTC reserves the right to charge a transfer fee for any proposed assignment, transfer or sublicense of this Agreement or any Licenses purchased hereunder.
10.4. Compliance with Laws.
(i) Each party shall be responsible for its own compliance with applicable laws, regulations and other legal requirements relating to the conduct of its business and this Agreement. Further, Customer represents and warrants that it will use the Licensed Products, as well as related technology and services, in full compliance with applicable laws and regulations.
(ii) Customer hereby warrants and represents that neither Customer nor any of Customer’s directors, officers or affiliates are listed on the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List, the U.S. State Department’s Nonproliferation Sanctions List, the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or the Sectoral Sanctions Identifications (SSI) List (collectively, the “Restricted Party Lists”). Customer acknowledges and agrees that the Licensed Products and related technical data and services are subject to the export control laws and regulations of the United States and any country in which the Licensed Products or related technical data or services are developed, received, downloaded, used, or performed. Further, Customer understands and acknowledges that the release of software or technology to a non-U.S. person within the United States or elsewhere abroad is deemed to be an export to the non-U.S. person’s home country or countries, and that the transfer of the Licensed Products or related technology to Customer’s employees, affiliates, or any third party, may require a license from the United States Government and possibly other applicable authorities. Customer shall be solely responsible for determining whether Customer’s use or transfer of the Licensed Products or related technology or services requires an export license or approval from U.S. or other authorities, and for securing all required authorizations.
10.5. Severability. The unenforceability or invalidity of any provision shall not affect the validity of the remaining provisions, and such provisions determined to be invalid shall be deemed severed from this Agreement and replaced with terms which as closely as possible approximate the intent of such invalid provisions.
10.6. Entire Agreement. This Agreement is the complete and exclusive statement of the contract between PTC and Customer with respect to the subject matter hereof. No waiver, consent, modification, amendment or change of this Agreement shall be binding unless in writing and signed or otherwise expressly acknowledged by PTC and Customer.
10.7. Third Party Beneficiaries. It is agreed by the parties to this Agreement that PTC’s third party licensors are intended beneficiaries of this Agreement and have the right to rely upon and directly enforce its terms with respect to the products of such licensors.
10.8. Processing Personal Data: All personal data received, or collected by PTC in connection with the performance of its obligations will be processed in accordance with the Data Processing Terms and Conditions available at xxxxx://xxx.xxx.xxx/xx/xxxxx-xxxxxxxxxx and PTC’s privacy policy available at xxxxx://xxx.xxx.xxx/xx/xxxxxxxxx/xxxxxxxx. Customer acknowledges that, PTC is part of a global company with global operations, and that personal data may be processed outside Customer’s country. All such transfers of personal data shall be in accordance with applicable data privacy laws. Customer certifies that it has obtained any personal data provided to PTC in accordance with applicable data protection laws.
10.9. Marketing. Customer agrees that while this Agreement is in effect, PTC shall be authorized to identify Customer as a customer/end-user of PTC software and services (as applicable) in public relations and marketing materials.
10.10. Government Licensees. If Customer is a United States Governmental entity, Customer agrees that the Licensed Products are “commercial computer software” under the applicable federal acquisition regulations and are provided with the commercial license rights and restrictions described elsewhere herein. If Customer is acquiring the Licensed Product(s) under a United States government contract, Customer agrees that Customer will include all necessary and applicable restricted rights legends on the Licensed Products to protect PTC’s proprietary rights under the FAR or other similar regulations of other federal agencies. Customer agrees to always include such legends whenever the Licensed Products are, or are deemed to be, a deliverable under a government contract.
Schedule A – Specific Provisions for Austria, Germany and Switzerland
For Licensed Products licensed and used in Austria, Germany or Switzerland, the following provisions shall apply. The following provisions shall have no applicability to any Licensed Products or Services purchased outside of Austria, Germany or Switzerland. References to sections below are references to the applicable sections in the body of the Agreement.
• Section 2.3 (iv) above shall not apply to the extent that (i) the processes Customer undertakes are required to achieve information necessary to achieve interoperability of an independently created computer program with other software programs, (ii) the further requirements of Section 69e of the German Copyright Act are fulfilled and (iii) PTC, upon Customer’s written request, has not made available the information required for this within a reasonable period.
• Sections 6.1 (Warranty), 6.2 (Sole Remedy), 6.3 (No Additional Warranties) and 6.4 (Disclaimer of Warranties) are hereby replaced by the following provisions:
6. Warranty; Disclaimer of Warranties
Sections 6.1 to 6.6 apply to warranty claims with regard to perpetual licenses; for warranty claims with regard to subscription licenses Section 6.7 applies.
6.1 Warranty Period, Restarts and Investigation Duty. The limitation period for warranty claims shall be twelve (12) months from delivery. Any replacement of the Licensed Product(s) and/or repair of Errors will not restart the warranty period. The pre-requisite for the Customer’s warranty claims (Mängelansprüche) is that: (i) the Customer inspects the Licensed Products according to Section 377 German Commercial Code, (ii) the defect is an Error as defined in this Agreement, (iii) the Error already existed at the time of delivery and (iv) the Customer effects a proper notification of the Error. Customer shall provide notifications of Errors to PTC in writing and Customer shall provide specific details of the Error as deemed reasonable under the specific circumstances. Customer shall notify PTC of obvious Errors in writing within one week of delivery and of latent Errors within one week of discovery of such Error. The periods specified are preclusion periods.
6.2 Remedies. In the event of an Error, PTC in its sole discretion may: (a) replace the Licensed Product(s) or (b) repair the Error, provided that notice of the Error is received by PTC within the periods set forth in Section 6.1 and Customer provides such additional information regarding the Error as PTC may reasonably request. If the repair (either by providing a bug fix, a workaround or otherwise) or replacement is not successful (after at least two repair attempts for the same Error by PTC within a reasonable period of time), Customer shall be entitled, at Customer’s choice, to either: (i) rescission of the affected order so that PTC provides a refund of the license fees paid by Customer for the applicable Licensed Product(s) containing the Error upon return of such Licensed Product(s) and any copies made thereof or (ii) a reasonable reduction in the purchase price. Replacements or repairs shall be made without acknowledgement of a legal obligation and shall not suspend the limitation period for warranty claims related to the Licensed Products.
6.3 Warranty Exceptions. PTC shall have no warranty obligations hereunder with respect to any (i) New Releases, (ii) Errors attributable to any modifications or customizations of the Licensed Products, (iii) Licensed Products that are provided by PTC free of charge to Customer, and/or (iv) Bundled Third Party Products (as defined in the Schedule of Third Party Terms).
6.4 No Additional Warranties. No employee, partner, distributor (including any Reseller) or agent of PTC or any of its resellers or sales agents is authorized to give representations, warranties or covenants greater or different than those contained in this Agreement, except as specifically set forth in a written agreement signed on behalf of Customer by an authorized officer and on behalf of PTC by its legal counsel or Corporate Controller. Apart from claims for damages based on Errors that are subject to the limitation of liability as set forth in Section 8, the obligations provided for in this Section 6.1 to 6.6 shall be PTC’s exclusive liability in case of warranty claims.
6.5 Customer Responsibility. The Licensed Products are intended to be used by trained professionals and are not a substitute for the exercise by Customer of professional judgement, testing, safety and utility in their use. Customer is solely responsible for any results which were obtained by using the Licensed Products, including the adequacy of independent testing of reliability and accuracy of any item designed using Licensed Products.
6.6 Qualities (Beschaffenheit), Guarantees. Qualities of the Licensed Products stated in publications of PTC or its sales representatives, in particular in advertising, in drawings, brochures or other documents, including presentations in the Internet, or on packaging and labeling of the Licensed Products, or which fall under trade usages, shall only be deemed to be covered by the contractual quality of the Licensed Products if such qualities are expressly contained in an offer or an order confirmation in writing. Guarantees, in particular guarantees as to quality, shall be binding on PTC only to the extent to which they (i) are contained in an offer or an order confirmation in writing, (ii) are expressly designated as “guarantee” or “guarantee as to condition” (Beschaffenheitsgarantie), and (iii) expressly stipulate the obligations for PTC resulting from such guarantee.
6.7. Warranty claims with regard to subscription licenses
6.7.1 PTC will provide and maintain the subscription licenses in a suitable condition for the contractual use (“fitness for contractual use”). The maintenance of the subscription licenses’ fitness for contractual use will be provided by way of Support Services in accordance with the terms and conditions for Support Services as set out under xxxx://xxxxxxx.xxx.xxx/xxxxxxx/xxxxxxxx/xxxxxxx-xxxxxxxx/, such Support Services being included with the purchase of subscription licenses without additional fee. The obligation to maintain the Licensed Products does not include adjustments to changes in operating conditions or the IT environment, in particular to changes in hardware or operating systems or to new file formats.
6.7.2 In the event of an Error as defined in Schedule B affecting a Licensed Product’s fitness for contractual use, PTC at its sole discretion may (a) replace the Licensed Product(s) that contains the Error or (b) repair the Error, provided that the notice of the Error is received by PTC promptly after discovery of such Error by Customer and Customer provides such additional information regarding the Error as PTC reasonably requests. If the repair (either by providing a bug fix, a workaround or otherwise) or replacement fails finally (after at least two attempts for the same Error from the side of PTC within reasonable periods of time), Customer shall be entitled, at Customer's choice, to (a) a termination of the Licensed Product(s) containing the Error so that PTC provides a refund of the prepaid subscription fees for the remainder of the subscription term for the Licensed Product(s) containing the Error upon return of such Licensed Product(s) and any copies made thereof or (b) a reasonable reduction in the subscription fee of the respective Licensed Product(s). Replacements or repairs shall be made without acknowledgement of a legal obligation and shall not suspend the limitation period for warranty claims related to the Licensed Products.
6.7.3 PTC's liability for damages without fault (verschuldensunabhängige Haftung) for defects that existed upon PTC’s acceptance of an order is excluded.
6.7.4 The Customer's right to terminate for deprivation of use in accordance with section 543 para. (2) sentence 1 no. 1 BGB (German Civil Code) shall be excluded, unless the repair or replacement is deemed to have finally failed.
6.7.5 The provisions set out in in Sections 6.3, 6.4 sentence 1, 6.5 and 6.6 apply.
6.7.6 Apart from claims for damages based on Errors that are subject to the limitation of liability as set forth in Section 8, the obligations provided for in this Section 6.7 shall be PTC’s exclusive liability in case of warranty claims.
• Section 8 is hereby replaced by the following provisions:
8. Limitation of Liability
8.1 Liability Categories. PTC shall be liable for damages, regardless of the legal grounds, only if: (i) PTC breaches a material contractual obligation (cardinal obligation) culpably (i.e., at least negligently), or (ii) the damage has been caused by gross negligence or wilfull intent on the part of PTC or (iii) PTC has assumed a guarantee.
8.2 Predictability. PTC’s liability shall be limited to the typical, foreseeable damage: (i) if PTC breaches material contractual obligations (cardinal obligations) with slight negligence, or (ii) if employees or agents of PTC who are not officers or executive staff have breached other obligations by gross negligence, or (iii) if PTC has assumed a guarantee, unless such guarantee is expressly designated as guarantee as to condition (Beschaffenheitsgarantie).
8.3 Maximum Amount. In the cases of Section 8.2 (i) and (ii), PTC’s liability shall be limited to a maximum amount of EURO 1,000,000 or, in case of purely financial losses, to a maximum amount of EURO 100,000.
8.4 Indirect Damages. In the cases of Section 8.2, PTC shall not be liable for indirect damages, consequential damages or loss of profit.
8.5 Further Limitation of Liability. PTC will have no liability arising from any security incident or data loss that would have been prevented if Customer had implemented a security solution, devices or features (including “Patches”, “Fixes” and Updates) for the Licensed Products provided or made available by PTC to Customer.
8.6 Liability Period. Customer’s claims for damages against PTC and/or PTC’s affiliates, regardless of the legal grounds, shall expire at the latest one year from the time the Customer gains knowledge of the damage or, irrespective of this knowledge, at the latest two years after the damaging event. For claims based on Errors of the Licensed Product(s), the warranty limitation period pursuant to Section 6.1 shall apply.
8.7 Mandatory Liability. PTC’s liability pursuant to the German Product Liability Act (Produkthaftungsgesetz), for injury of life, body and health, for fraudulent concealment of a defect or for the assumption of a guarantee as to condition (Beschaffenheitsgarantie) remains unaffected.
8.8 Employees. Sections 8.1 to 8.7 shall also apply in the case of any claims for damages of Customer against employees or agents of PTC and/or PTC’s affiliates.
8.9 Contributory Negligence. In the event of a guarantee or liability claim against PTC any contributory fault of Customer must be taken into account accordingly, particularly in the event of inadequate fault notification or inadequate data securing. It constitutes inadequate data securing if the client, among others, does not, by way of appropriate state of the art security measures, take precautions against external influences, e.g. computer viruses and other phenomena which could put individual data or an entire data stock at risk.
Schedule B - Definitions
“Designated Country” - the country of purchase unless otherwise specified in writing on the order documentation at the time of purchase.
“Designated Server” - the computer server located in the Designated Country that has one unique instance of the applicable installed Licensed Product application.
“Documentation” - the applicable Licensed Product user manuals provided or made available by electronic means by PTC as part of the Licensed Product.
“Error” - a failure of the Licensed Product to conform substantially to the applicable Documentation, provided that Customer informs PTC of such failure in writing.
“License” - the non-exclusive, non-transferable right, without any right to sub-license, to install and use a Licensed Product (in object code form).
“License Term” - the time period during which the License for the applicable Licensed Products shall be in effect as specified in the part name of the Licensed Product or in the applicable Quote. In the absence of a stated license term, the License Term shall be perpetual, except
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that the License Term for evaluation Licenses shall be no longer than thirty days. The License Term of a “subscription” License is as specified in the Quote and/or the invoice.
“Licensed Products” - the computer software products identified in the applicable Quote and Documentation provided with such computer software products.
“Licensing Basis Document” - the “Licensing Basis” document located at the Licensing Documents Webpage, which specifies the licensing basis of PTC’s different products and states certain additional product-specific terms and conditions.
“Licensing Documents Webpage” - xxxxx://xxx.xxx.xxx/xx/xxxxx-xxxxxxxxxx
“New Release” - a modified or enhanced version of a Licensed Product that is designated by PTC as a new release of that product and that PTC makes generally available to its Support Services customers.
“Permitted User” - an individual who is authorized by Customer to use the Licensed Products, such use to be solely in accordance with the terms and conditions of this Agreement. Permitted Users are limited to Customer’s employees, consultants, subcontractors, suppliers, business partners and customers who (i) are not competitors of PTC or employed by competitors of PTC and (ii) are directly involved in the utilization of the Licensed Products solely in support of Customer’s internal business purposes.
“Quote” - the product schedule, quote, or other written agreement provided to, or signed by, Customer in connection with the purchase of the applicable Licensed Products and/or Support Services.
“Reseller” - a third-party appointed and authorized by PTC to resell or distribute any Licensed Products and/or Support Services to Customer.
“Support Services” - the provision of New Releases and, depending on the level of Support Services ordered, may also include telephone support, web-based support tools, and correction of Errors.
“Uplift Fee” - a fee based upon the difference between the License fee applicable to installation of the applicable Licensed Product in the original Designated Country and the License fee applicable to the installation of such Licensed Product in the Designated Country to which Customer wishes to move that Licensed Product.