Unless otherwise agreed, in all contractual relationships in which SEP AG (hereinafter referred to as “SEP”) provides other companies, legal entities, legal persons under public law or special funds under public law (hereinafter referred to as “the Customer”) with
SEP Software (either as a Subscription or Purchase License),
provides care / maintenance services, or
provides Professional services,
these General Terms and Conditions (“GTC”) shall apply exclusively and, in addition, the Price List which was valid at the time of conclusion of the particular Agreement. As a general rule, agreements are concluded by offer and confirmation of offer, or by mutual signature of a contractual document. These GTC shall apply mutatis mutandis to pre-contractual relationships.
End Customers who install or use the SEP Software agree to the License and Usage Conditions in these GTC. End Customers who do not agree to them are not authorized to install or use the SEP Software. Any use shall require that a License Agreement covering such use exists or that the particular End Customer is entitled to use the Software on another legal basis.
For Third-Party Software that SEP co-distributes, the following provisions regarding SEP Software shall apply mutatis mutandis, unless otherwise stipulated in the Software Agreement or in the Price List. Please comply with the License Conditions in the original text of the Third Party Software (see subdirectory “third_party_licenses”).
1.1 “Add-On” means any Software created by the Customer / End Customer or a third party for the Customer that communicates with the SEP Software via APIs, adds or supplements functionality in relation to SEP Software and is not a Modification (see definition in clause 1.10).
1.2 “API” means SEP Application Programming Interface(s) provided under the Software Agreement and other SEP code that allows other Software Products to communicate with or call up the SEP Software.
1.3 “Working Days” means the days of the week from Monday to Friday (8:00 am to 6:00 pm CET), excluding Bavarian public holidays and December 24 and 31.
1.4 “Documentation” means all written and electronic materials used to describe, instruct, utilize and maintain the Software provided. This includes, in particular, user manuals, installation instructions, technical specifications, user guides, FAQ documents, system requirements and maintenance guides.
1.5 “Third Party Software” means (i) all standard Software Products and related Documentation and content to which the Customer / End Customer acquires rights of use under the Software Agreement, but which have been developed for or by companies other than SEP or its Affiliates and which do not constitute SEP Software (see definition in clause 1.12); (ii) all new versions (in particular releases, updates, patches, corrections) of such Third Party Software made available to the Customer / End Customer in performance of the Software Agreement; and (iii) all full or partial copies thereof.
1.6 “End Customer” means a company or user that uses the SEP Software for its internal processes. The End Customer shall receive access to the SEP Software from SEP itself or from an Intermediary.
1.7 “Business Partner” means a company that requires access to the SEP Software in connection with the Customer’s internal business transactions, e.g. customers, distributors and / or suppliers of the Customer / End Customer.
1.8 “IP Rights” (or “Intellectual Property Rights”) means, without limitation, all patents and other rights to inventions, copyrights, trademarks, designs and other intellectual property rights and all related rights of exploitation and use.
1.9 “Purchase License” means the perpetual right to non-exclusive use of the SEP Software for a one-off fee. The Purchase License entitles the Licensee or Managed Service Provider (MSP) to install the SEP Software on a local server (on premises) and to use it for an unlimited period of time in accordance with the agreed terms and conditions. Unless expressly agreed otherwise, the Purchase License only includes care / maintenance for the first twelve months after purchase.
1.10 “Modification” means any Modification of the SEP Software made by the Customer / End Customer or a third party for the Customer / End Customer within the meaning of § 69c No. 2 of the German Copyright Act (“UrhG”), such as changes to the delivered source code or delivered metadata.
1.11 “Care / maintenance” means ongoing measures to update the SEP Software in order to improve its performance, security and compatibility and to keep it state of the art, as agreed in the relevant care / maintenance agreement or subscription agreement, including support services.
1.12 “SEP Software” means (i) all Standard Software Products and related Documentation developed for or by SEP or its Affiliates; (ii) all new versions (in particular releases, updates, patches, corrections) of such SEP Software made available to the Customer / End Customer in the performance of the Software Agreement; and (iii) all complete versions of SEP Software made available to the Customer / End Customer in the performance of the Software Agreement, and (iii) all complete or partial copies thereof.
1.13 “Software Agreement” means the Agreements on the provision and, if applicable, Maintenance of Standard Software, which refer to these GTC, the Price List and any other Agreements. Software Agreement is the generic term for subscription agreement, Purchase License Agreement and care / maintenance agreement.
1.14 “Subscription” means the right to use the SEP Software on a rental basis, i.e. in return for recurring license fees. The Customer / End Customer or Managed Service Provider (MSP) is authorized to install the SEP Software on a server. The SEP Software is installed and used in such a way that it can be operated as Software-as-a-Service (SaaS).
1.15 “Affiliated Companies” means companies that are affiliated with another company within the meaning of § 15 of the German Stock Corporation Act (“AktG”).
1.16 “Confidential Information” means all information that SEP or the Customer / End Customer protects from unrestricted disclosure to third parties, or that is considered confidential due to the circumstances of its disclosure or content. In any event, the following information shall be deemed Confidential Information of SEP: all SEP Software (including the source code), programs, tools, data or other materials provided by SEP to the Customer / End Customer pre-contractually or on the basis of the Software Agreement.
1.17 “Middleman” means any natural or legal person acting as a commercial actor who purchases the SEP Software or SEP services for redistribution to other Intermediaries or End Customers. This includes resellers, distributors and Managed Service Providers (MSPs). The term “Customer” also includes Intermediaries, but only those who have a direct contractual relationship with SEP. Intermediaries are responsible for the distribution of the SEP Software in accordance with these GTC.
2.1 Delivery; deliverable. SEP shall deliver the SEP Software in accordance with the product description and the Price List. The online product description in the Documentation is conclusively authoritative with regard to the quality of the functionality of the SEP Software. SEP is not obliged to deliver the SEP Software in any other quality. In particular, the Customer / End Customer may not derive any such obligation from other representations of the SEP Software in public statements or in SEP advertising, unless SEP has expressly confirmed the additional quality in writing. Guarantees require the express written confirmation by SEP management. Unless otherwise agreed, the Customer / End Customer will be supplied with one (1) copy of the respective SEP Software in the version current at the time of delivery no later than one month after the conclusion of the Software Agreement. Delivery shall be effected, at SEP’s choice, either by SEP sending the SEP Software to the Customer / End Customer on DVD or other data carriers to the agreed delivery address (physical delivery) or by SEP making the SEP Software available for download in the download center (www.sep.de) (electronic delivery). In the case of physical delivery, the time at which SEP hands over the data carrier(s) to the hauler shall be decisive for compliance with delivery dates and the transfer of risk; in the case of electronic delivery, the time at which the SEP Software is made available for download and the license key is available to the Customer / End Customer shall be decisive. The SEP Software shall be made available to the Customer / End Customer as a compiled, ready-to-use version.
2.2 Rights of SEP, authority of the Customer / End Customer. All rights in the SEP Software – in particular copyright and other IP Rights – are vested exclusively in SEP or its licensors in relation to the Customer / End Customer, even to the extent that the SEP Software has been developed as a result of the Customer’s / End Customer’s specifications or co-operation. The Customer / End Customer has only the following, non-exclusive authority in the SEP Software. Sentences 1 and 2 above shall apply mutatis mutandis to all other SEP Software, items, work results and information provided to the Customer / End Customer in the context of contract initiation and performance, including subsequent performance and as part of Maintenance.
2.2.1 The Customer / End Customer may use the SEP Software only to the extent contractually specified. The usage authority is limited to the SEP Software specified in the Software Agreement, even if the Customer / End Customer has technical access to other Software components. The Customer / End Customer receives the right of use for an unlimited period in the case of a Purchase License type of agreement and for the contractually agreed duration in the case of a subscription agreement type. Paragraph 2.3 shall apply to the creation and use of Modifications or the use of the SEP Software to create Add-Ons and the use of the SEP Software together with Add-Ons. The Customer / End Customer shall only receive the rights to Third-Party Software that are necessary for its use in combination with the SEP Software.
2.2.2 Unless otherwise agreed, the Customer / End Customer may use the SEP Software only for the purpose of carrying out its internal business processes and those of its companies in which the Customer / End Customer holds a majority interest. Rights to reproduce the SEP Software are only granted to this extent. All other rights, in particular the right to distribute, and including the right to lease, translate, adapt, arrange and make publicly available the SEP Software, shall remain exclusively with SEP. The operation of data centers for companies other than its Affiliates or the use of the SEP Software for the training of persons who are not employees of the Customer / End Customer or its Affiliates is not permitted. Further details are set out in the Price List. The SEP Software may be used via an interface supplied with the SEP Software, or as part of the SEP Software, via an interface provided by the Customer / End Customer or a third party provider, or via another intermediary system. In particular, the Customer / End Customer must have the necessary rights of use for all persons who use the SEP Software (directly and / or indirectly), as defined in more detail in the Price List. Business partners are only permitted to use the SEP Software through screen access and only in connection with the use by the Customer / End Customer and are prohibited from using the SEP Software to process their own business transactions.
2.2.3 All data processing devices (e.g. hard discs and processors) on which the SEP Software is copied in whole or in part, temporarily or permanently, shall be located on the Customer’s / End Customer’s premises, and shall be in his direct possession. Subject to SEP’s written consent, the data processing devices referred to in sentence 1 may also be located on the premises of an Affiliated Company of the Customer / End Customer and be in his direct possession. If the Customer / End Customer wishes to operate or have operated the SEP Software for the processing of his internal business transactions on data processing devices located on the premises and in the direct possession of a third company (outsourcing), this is only possible on the basis of a written agreement with SEP, which SEP is prepared to conclude while safeguarding its legitimate operational interests – in particular, compliance with the contractual provisions on the granting of the right to use the SEP Software by the third company.
2.2.4 The Customer / End Customer must operate the data backup processes in accordance with the current rules of technology and make the backup copies of the SEP Software necessary to this end. A backup copy on a movable data carrier must be labeled as such and marked with the copyright notice of the original data carrier or, if no such notice exists, with a reference to SEP. The Customer / End Customer may not alter or remove SEP’s copyright notices.
2.2.5 Before decompiling the SEP Software, the Customer / End Customer shall request SEP in writing, setting a reasonable deadline, to provide the information and documentation necessary to establish interoperability. The Customer / End Customer is only entitled to decompile the Software within the limits of § 69e Act on Copyright and Related Rights (“UrhG”) after the deadline has expired to no effect. Before involving third parties (e.g. pursuant to § 69e (1) no. 1, (2) no. 2 Act on Copyright and Related Rights (“UrhG”), the Customer / End Customer shall provide SEP with a written declaration from the third party that the latter undertakes directly to SEP to comply with the provisions contained in clause 2.
2.2.6 Should the Customer / End Customer receive from SEP further copies of the SEP Software (e.g. in the course of rectification or Maintenance) which replace a previously provided SEP Software, the right of use granted to the Customer / End Customer exists exclusively in relation to the last copy of the SEP Software received. The right of use in respect of the previously provided copy of the SEP Software expires as soon as the Customer implements the Replacement Software for use on productive systems. However, the Customer may use the new copy of the SEP Software for testing purposes alongside the old copy of the SEP Software in productive use for one month. The provisions of paragraph 5 apply to the replaced copy of the SEP Software.
2.3 Modifications / Add-Ons
2.3.1 Unless otherwise agreed, the Customer / End Customer is not authorized to create or use modifications to the SEP Software or to make them available to third parties, unless it is expressly permitted to do so by mandatory law or under this clause 2.3. Furthermore, unless otherwise agreed, the Customer / End Customer is not authorized to use software tools or APIs included in the SEP Software or otherwise obtained from SEP to create Add-Ons or together with Add-Ons, unless is expressly permitted to do so by mandatory law or under this paragraph 2.3.
2.3.2 SEP points out that any Modification of the SEP Software may lead to unforeseeable and significant disruptions in the operation of the SEP Software, other programs or communications between the SEP Software and other programs. Disruptions may also occur if Modifications are not compatible with later versions of the SEP Software. Neither SEP nor any of SEP’s Affiliates shall be obliged to remedy any malfunctions arising in connection with Modifications or otherwise be responsible for such malfunctions. In particular, SEP shall be entitled to modify the SEP Software, including the APIs, at any time without ensuring that modifications used by the Customer / End Customer are compatible with later versions of the SEP Software. The foregoing provisions of this paragraph 2.3.2 shall apply mutatis mutandis to the use of the SEP Software together with Add-Ons.
2.3.3 Subject to compliance with the provisions of this paragraph 2.3.3, SEP grants the Customer / End Customer the right to create and use Modifications to the SEP Software supplied to it by SEP:
(a) Modifications may only be created in relation to the SEP Software supplied to the Customer / End Customer by SEP in source code.
(b) The Customer / End Customer shall notify SEP in writing before creating or using Modifications.
(c) Modifications must not be capable of circumventing the restrictions set out in the Software Agreement or in any other Agreement between the Customer / End Customer and SEP.
(d) Modifications must not enable access to the SEP Software for which the Customer has not acquired rights of use.
(e) Modifications must not permit bulk data or metadata extraction from the SEP Software to non-SEP Software, including the use, storage of changes or other data processing in the non-SEP Software.
(f) Modifications must not impair, degrade or reduce the performance or security of the SEP Software.
(g) Modifications may not disclose or make available information about the SEP Software’s license terms, the Software itself or any other information relating to SEP products.
(h) Modifications may only be used together with the SEP and only in accordance with the right to use the SEP Software granted in clause 2.2.
§ 69d Act on Copyright and Related Rights (“UrhG”) remains unaffected.
2.4 Transfer
2.4.1 The Customer / End Customer may only entrust a third party with SEP Software that it has acquired as a Purchase License (including SEP Software obtained through any subsequent purchases or as part of Maintenance) in a uniform manner and with the complete and final relinquishment of its own use of the SEP Software. The restrictions in sentence 1 also apply to corporate reorganizations and legal successions, e.g. under the German Reorganization Act (Umwandlungsgesetz).
2.4.2 The Customer / End Customer is only entitled to transfer the SEP Software that it has acquired as a Purchase License to a third party in accordance with the following rules:
The transfer to the third party shall be by sale in perpetuity and without any right of return or repurchase option.
The third party shall make the following written declaration to SEP:
“We wish to acquire the software [exact name] from [Customer’s company and address]. We have received a copy of the documents showing the rights of use and obligations of the previous purchaser of the software. We undertake to you to comply with these rules of use. This shall apply in particular with regard to the General Terms and Conditions of SEP AG agreed at that time for the transfer and maintenance of standard software.
Our right of use shall commence at the earliest when the previous purchaser has notified you in writing that it has deleted the software, as far as possible and reasonable, and that he no longer has the right to use the software when our right of use commences.
We undertake to comply with the same rules in the event of a sale of the software by us as those incumbent on our legal predecessor vis-à-vis you in this respect.”
The Customer / End Customer must ensure that the third party may not use the Software until the Customer / End Customer has carried out the software deletion process and SEP has received the declaration signed by the third party in accordance with (b).
The right to resell relates to the status of the SEP Software as it is available to the Customer at the time of transferred to the third party.
2.4.3 The Customer / End Customer may not pass on to third parties any SEP Software which it has not acquired as a Purchase License.
2.4.4 If the Customer / End Customer is a leasing company and the agreement states that the SEP Software was acquired for the purpose of subleasing, SEP will give its consent to the leasing and to a change of Lessee if the leasing company has specified the Lessee in writing, if, in the event of a change of Lessee, the old Lessee and the new Lessee have made the declarations to SEP in accordance with clause 2.4.2, and if there are no important reasons (e.g. lack of consent from third-party licensors) to the contrary. SEP may deliver the SEP Software (even if it is provided as part of subsequent performance or care / maintenance) directly to the Lessee. The leasing company may assign claims arising from liability for defects to the Lessee. SEP reserves the right to demand an upgrade fee of up to 50% of the remuneration for Maintenance for the expired leasing period from the leasing company in the event of a change of Lessee.
2.5 The Customer shall ensure by appropriate contractual agreements that all subsequent Intermediaries and End Customers accept and comply with the license and usage provisions in these GTC in the same way as if they had purchased the Software from SEP as a “Customer” subject to these GTC.
3.1 SEP must be notified in writing in advance of any use of the SEP Software that goes beyond the contractual agreements. It requires a separate Agreement with SEP on the additional scope of use (additional purchase). Additional purchases will be made on the basis of the Price List in force at the time of the purchase.
3.2 SEP is entitled to review the use of the SEP Software (no more than once a year and in accordance with SEP standard procedures, including on-site and / or remote surveys). The Customer / End Customer shall reasonably cooperate with SEP in carrying out such measurements. The reasonable costs of the measurement by SEP shall be borne by the Customer / End Customer if the results of the measurement show a use not in accordance with the Agreement.
3.3 If, in the course of a measurement or other procedure, it becomes apparent that the use of the SEP Software by the Customer / End Customer exceeds the contractual agreements, an Agreement with SEP for the additional purchase shall be concluded based on the currently applicable Price List. Clause 3.1 sentences 2 and 3 shall apply mutatis mutandis. The right to claim damages is reserved.
4.1 Remuneration
4.1.1 The Customer / End Customer shall pay SEP remuneration for the provision and Maintenance of the SEP Software in accordance with the Software Agreement. The prices for Software deliveries include transportation, packaging and transport insurance in the case of physical delivery. In the case of electronic delivery, SEP will make the SEP Software available on the internet at its own expense. The costs of retrieval shall be borne by the Customer. No discount will be granted.
4.1.2 SEP may demand payment on account or full payment in advance if there is no existing business relationship with the Customer / End Customer yet, if delivery is to be made abroad or the Customer / End Customer s domiciled abroad, or if there are reasons to doubt the Customer’s ability to pay on time.
4.1.3 The Customer / End Customer may only offset undisputed or legally established claims and may only base a right of retention on undisputed or legally established claims. He may not assign his claims to third parties, without prejudice to the provisions of § 354a of the German Commercial Code (“HGB”).
4.1.4 SEP reserves all rights to the SEP Software, in particular to versions made available under a subscription agreement, a Purchase License Agreement and / or a maintenance agreement, until full settlement of its claims under the Software Agreement. In the event of access by third parties to SEP Software, the Customer / End Customer must notify SEP in writing without delay and inform the third party of SEP’s rights.
4.1.5 Invoicing and due date
(a) Payments are due 14 calendar days after the invoice date. On the due date, SEP may charge interest on arrears at the applicable statutory default interest rate.
(b) In the case of Purchase Licenses, the invoice will be issued after delivery of the SEP Software.
(c) In the case of subscription and care / maintenance agreements, the payment obligation commences at the start of the Agreement. Payment is due in advance for the respective period ordered.
4.1.6 SEP may, at its discretion, change the remuneration for Maintenance and Subscription once per calendar year by giving two months’ notice in writing to the Customer / End Customer, subject to the following principles:
(a) The index of average gross monthly earnings of full-time employees in Germany for the economic sector provision of information technology services shall be used as the basis for determining the scope of change in the following year. If this index is no longer published, the index published by the Federal Statistical Office which most closely reflects the development of average gross monthly earnings in the aforementioned economic sector shall be used to determine the scope of change.
(b) If the Customer / End Customer does not terminate the care / maintenance and subscription agreement with effect by the end of the calendar year within two weeks of receipt of the Notice of Adjustment (special right of termination), the new remuneration is deemed to have been agreed. SEP will point this out in the Notice of Adjustment. The provisions in paragraph 10.6 sentences 3 to 5 shall apply mutatis mutandis.
4.2 Taxes. All prices are exclusive of the applicable statutory sales tax, unless the turnover would be exempt from sales tax.
In all cases of termination of its right of use (e.g. by rescission, expiry of the agreed agreement term or termination), the Customer / End Customer is obliged to immediately cease using the SEP Software and the Confidential Information.
Within one month of the end of the right of use, the Customer / End Customer shall destroy all copies of the SEP Software in any irrecoverable form or – at SEP's request – return all copies of the SEP Software to SEP, unless their retention for a longer period is required by law, in which case they shall be returned or destroyed at the end of that period. The Customer / End Customer must provide SEP with a written assurance that it and all its Affiliates have complied with the obligations set out in this clause 5.
The Customer shall ensure by appropriate contractual agreements that the End Customer complies with the obligations under this clause 5 and, in particular, ceases to use the SEP Software after the end of the license period.
6.1 The Customer / End Customer must inform himself about the essential functional features of the SEP Software and its technical requirements (e.g. with regard to database, operating system, hardware and data carriers). He shall bear the risk as to whether the SEP Software meets his wishes and circumstances. In case of doubt, he may seek advice from SEP employees or expert third parties before concluding the Agreement. In addition, SEP provides information on the technical conditions of use of the SEP Software and any changes thereto on SEP’s online information platform.
6.2 The Customer / End Customer shall ensure that the working environment of the SEP Software (hereinafter: “IT Systems”) is in accordance with SEP’s specifications, where applicable. It is the Customer’s responsibility to ensure the proper operation of the necessary IT Systems, if required through maintenance agreements with SEP or third parties. In particular, the Customer / End Customer shall observe the specifications of the documentation and the information given on SEP’s online information platform.
6.3 The Customer / End Customer shall cooperate in the fulfilment of the order to the extent necessary and free of charge, e.g. by providing employees, workspaces, IT Systems, data and telecommunications facilities. It shall grant SEP direct and remote access to the SEP Software and its IT Systems.
6.4 The Customer / End Customer shall designate in writing a contact person for SEP and an address and email address at which this contact person can be reached. The contact person must be in a position to make the necessary decisions for the Customer / End Customer or to bring them about without delay. The contact person shall ensure good co-operation with the contact person at SEP.
6.5 The Customer / End Customer shall test the SEP Software thoroughly to ensure that it is free from defects and can be used in its IT infrastructure before commencing operational use of the SEP Software.
6.6 The Customer / End Customer shall take reasonable precautions in the event that the SEP Software does not work properly in whole or in part (e.g. by backing up data, diagnosing faults, regularly checking data backup logs).
6.7 The Customer / End Customer assumes an obligation to inspect and give notice of defects in respect of all goods and services supplied by SEP in accordance with § 377 German Commercial Code (“HGB”). The Customer shall notify SEP in writing with a detailed description (log files) of the problem. Only the contact person (paragraph 6.4) is authorized to make complaints.
6.8 The Customer / End Customer shall bear any disadvantages and additional costs arising from a breach of its obligations.
7.1 SEP warrants the agreed quality (paragraph 2.1) of the SEP Software acquired as a Purchase License and that the transfer of the agreed rights of use to the Customer / End Customer (paragraph 2) does not conflict with any third party rights, in accordance with the provisions of the sale of goods law.
7.2 In the event of proven material defects, SEP shall provide warranty by way of subsequent performance in such a way that SEP provides the Customer / End Customer with a new, defect-free version of the Software or remedies the defect. The defect may also be remedied by SEP showing the Customer reasonable ways of avoiding the defect’s impact. In the case of proven defects of title, SEP will remedy the defect by providing the Customer with a legally unobjectionable use of the delivered SEP Software or of replaced or modified equivalent SEP Software. The Customer must accept a new software version if the contractual range of functions is to be maintained. Technical updates are announced via RSS (Really Simple Syndication) notifications at notification.sepsoftware.com. Material defects are not defects that occur due to subsequent software updates or hardware updates in the existing IT infrastructure.
7.3 If the supplementary performance finally fails after the expiry of a reasonable grace period to be set by the Customer / End Customer, he may withdraw from the Agreement or reduce the remuneration. The requirements of paragraphs 13.1 and 13.5 must be met when setting a grace period. SEP will pay damages or reimburse wasted expenditure due to a defect within the limits set out in paragraph 8.
7.4 The limitation period for defects in remedial work, workarounds or new deliveries by way of subsequent performance also ends at the time specified in paragraph 8.4. However, the limitation period shall be suspended if SEP, with the Customer’s / End Customer’s consent, inspects the existence of a defect or provides subsequent performance, until SEP notifies the Customer of the result of its inspection or declares that subsequent performance has ended or refuses subsequent performance. The limitation period will expire at the earliest three months after the end of the suspension.
7.5 If SEP provides troubleshooting or fault rectification services without being obliged to do so, SEP may demand separate remuneration. This shall apply in particular if a reported defect is not verifiable or cannot be attributed to SEP, or if the SEP Software is not used in accordance with the documentation. In particular, any additional costs incurred by SEP in remedying defects caused by the Customer’s / End Customer’s failure to properly fulfill its obligations to cooperate, improper use of the SEP Software or failure to take measures recommended by SEP shall also be reimbursed.
7.6 If a third party asserts claims that conflict with the exercise of the contractual usage authority, the Customer / End Customer must notify SEP immediately and comprehensively in writing. If the Customer / End Customer ceases to use the SEP Software in order to minimize damages or for other important reasons, he is obliged to inform the third party that the cessation of use does not constitute an acknowledgment of the alleged infringement of property rights. The Customer will only engage in legal proceedings with the third party in agreement with SEP or authorize SEP to engage in such proceedings.
7.7 If SEP fails to perform or improperly performs services outside the scope of liability for defects in quality and title or if SEP commits any other breach of duty, the Customer must always give SEP written notice of such failure and grant SEP a grace period within which SEP is given the opportunity to properly perform the services or to remedy the situation in some other way. Clause 13.1 shall apply. The margins set out in clause 8 apply to damages or compensation for wasted expenditure.
7.8 If the SEP Software has been supplied to an End Customer by an Intermediary, the End Customer is only entitled to warranty claims against the Intermediary.
8.1 In all cases of contractual and non-contractual liability, SEP shall pay damages or reimburse wasted expenditure only to the extent described below:
(a) Liability in cases of willful misconduct, fraudulent intent, under guarantee and for damages caused by delay (§ 286 of the German Civil Code (“BGB”) is unlimited.
(b) In the event of gross negligence, SEP shall be liable to the extent of the typical loss or damage foreseeable at the time of the formation of the Agreement.
(c) In the event of a breach of a cardinal obligation (an obligation the fulfillment of which is essential for the proper performance of the Agreement, on the observance of which the other Party to the Agreement regularly relies and may rely, and the breach of which jeopardizes the achievement of the purpose of the Agreement) due to simple negligence, SEP shall be liable up to the amount of the typical loss or damage foreseeable at the time the Agreement was entered into, but not exceeding EUR [1,000,000] per claim and EUR [5,000,000] for all claims arising out of and in connection with the Agreement as a whole.
8.2 In the event of injury to life, limb and health and in the event of claims under the Product Liability Act, the statutory provisions shall apply without modification.
8.3 The defense of contributory negligence remains unaffected. In particular, the Customer / End Customer shall be obliged to back up data and defend against malware in accordance with the current state of the art.
8.4 The limitation period for claims arising from clauses 7 and 8 is
(a) in the case of material defects, one year from delivery of the SEP Software for claims for repayment of the remuneration from cancellation or reduction, but for defects duly notified within the limitation period not less than three months from submission of the effective notice of cancellation or reduction;
(b) one year for other claims arising from material defects;
(c) two years in the case of claims based on defects of title, if the defect of title does not relate to a right of a third party on the basis of which the third party can demand the return of the SEP Software or demand that it cease using it;
(d) two years in the case of claims for damages or compensation for wasted expenditure that are not based on defects in quality or title; the period commences on the date on which the Customer becomes aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.
The limitation period shall commence at the latest upon expiry of the maximum periods specified in § 199 German Civil Code (“BGB”).
This paragraph 8.4 shall not apply to claims for damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent, injury to life, limb and health and claims under the Product Liability Act.
9.1. Use of Confidential Information. The Contracting Parties undertake to treat all Confidential Information of the other Contracting Party obtained before and in the course of the fulfillment of the Agreement as confidential for an unlimited period of time and to use it only in the course of the fulfillment of the Agreement. The reproduction of Confidential Information in any form is prohibited unless it is done in fulfillment of the purpose of the Software Agreement. Copies of Confidential Information of the respective other Party must contain all references and notes on their confidential or secret character that are contained in the original.
With respect to the other Party’s Confidential Information, (a) each Party shall take all Reasonable Steps (as defined below) to keep all Confidential Information confidential and (b) each Party shall provide access to the other Party's Confidential Information only to those persons who need access for the performance of the Agreement. For the purposes of this Agreement, “Reasonable Steps” are those steps that the Recipient takes to protect its own comparable Confidential Information and which are at least equivalent to reasonable care; this includes careful safekeeping and protection of the Confidential Information against misuse on the part of the Customer / End Customer.
9.2 Exceptions; The foregoing paragraph 9.1. shall not apply to Confidential Information that (a) was independently developed by the Recipient without recourse to the Disclosing Party’s Confidential Information or was lawfully and without obligation of confidentiality acquired from a third party, authorized to provide such Confidential Information, (b) has become generally available to the public without a breach of agreement by the Recipient, (c) was known to the Recipient without restriction at the time of disclosure, or (d) is exempt from the foregoing provisions upon written consent of the Disclosing Party.
Unless otherwise agreed, paragraph 9.1. shall not apply in relation to knowledge of ideas, concepts, know-how, methods, processes or technologies of the Customer obtained and remembered by persons engaged by SEP; any IP rights of the Customer shall remain unaffected. “Remembered” means only knowledge of a particular employee which the employee has without recourse to documents obtained from the Customer or information embodied in any other way, as well as copies or transcripts thereof, and which the employee concerned has not intentionally memorized for the purpose of later use or disclosure.
9.3 Confidential Contractual Content; Publicity. The Customer / End Customer shall treat the provisions of the Software Agreement, in particular the prices contained therein, as confidential. Neither Party shall use the name of the other Party in any publicity, advertising or similar activity without the prior written consent of the other Party. Notwithstanding the foregoing, SEP is authorized to use the Customer’s name in reference customer lists, to prepare analyses (e.g. to forecast demand) based on the contractual content and – subject to mutual agreement in each case – to use it in other SEP marketing activities. The Customer / End Customer grants SEP the right to use the Customer Data for the provision of its services and in anonymized form internally for the development and improvement of its Products and services, provided that the End Customer has expressly consented to this by ticking a box in the settings under “Calling Home Action”.
9.4 Data protection; The Parties undertake to comply with the applicable data protection provisions and, if necessary, to conclude an Order Processing Agreement.
10.1. In the case of subscription, care / maintenance is part of the service offer and can only be terminated with the respective Agreement. In the case of SEP Software acquired as a Purchase License, care / maintenance is included for the first twelve (12) months, after which it is provided on the basis of a separate Agreement.
10.2. SEP shall provide the care / maintenance services specified in the applicable Price List for the Maintenance model agreed in the Software Agreement.
10.3 SEP is entitled to adapt the range of care / maintenance services to the further development of the SEP Software and technical progress. If a change in services may adversely affect the Customer’s legitimate interests, SEP shall notify the Customer / End Customer of the change in services in writing or by electronic means at least three months before it becomes effective and shall inform the Customer / End Customer of his right to terminate the Agreement as set out below and of the consequences of not exercising the right to terminate. In this case, the Customer / End Customer shall have the right to terminate the care / maintenance agreement, or the subscription agreement if applicable, prematurely with a notice period of two months to the date on which the change takes effect (special right of termination). Paragraph 10.6 sentences 3 to 5 shall apply mutatis mutandis. If the Customer / End Customer does not make use of its right of termination, the care/maintenance shall continue with the changed range of services.
10.4 SEP shall provide care / maintenance for the current version of SEP Software and, where applicable, for older versions within the life cycle of SEP Software and in accordance with its Release Strategy, which is available on SEP’s online information platform. SEP may provide personalized care / maintenance in favor of a specific IP address and a specific server name.
Maintenance for Third Party Software by SEP may require the use of support services from the respective third party providers. If third party providers no longer provide SEP with the required support services, SEP shall have a special right of termination to partially terminate the care / maintenance agreement relationship for the relevant Third Party Software with reasonable notice, but where possible at least three months, to the end of a calendar quarter.
10.5 Paragraphs 7 and 8 shall apply mutatis mutandis to material defects and defects of title of Software supplied within the scope of care / maintenance or subscription as well as to liability. Withdrawal from the Agreement shall be replaced by the extraordinary cancellation of the care / maintenance or subscription agreement. The subject matter of any right of reduction is the remuneration owed under the care / maintenance and subscription agreement.
No claims for defects may be made if the SEP Software is only insignificantly impaired in its suitability for use in accordance with the Agreement. Claims for defects are also excluded if the deviation from the contractual quality of the SEP Software is due to improper operation or if the SEP Software is used under conditions not agreed in the Agreement or in a system environment not agreed. The same applies to deviations caused by particular external influences which are not assumed under the Agreement.
Warranty claims by the Customer based on defects are excluded if the Customer modifies SEP Software or has modifications made to it without SEP’s prior consent, unless the Customer / End Customer proves that such modifications do not unreasonably impair SEP’s ability to analyze and remedy the defect. However, the Customer’s warranty rights shall remain unaffected if it is entitled to make changes within the scope of its statutory right to make changes itself in accordance with § 536a (2) German Civil Code (“BGB”), if these changes are carried out professionally and properly documented and are made available to SEP.
According to § 543 (2) sentence 1 no. 1 German Civil Code (“BGB”), the Customer / End Customer may only terminate the Agreement without notice if they have given the Provider a reasonable opportunity to rectify defects that impair the contractual use and this rectification of defects has failed.
In the case of subscriptions, strict liability for defects already existing at the time of conclusion of the Agreement is excluded in accordance with § 536a (1) German Civil Code (“BGB”). The statutory period of § 548 German Civil Code (“BGB”) remains unaffected.
10.6 Unless otherwise agreed, each subscription agreement and each maintenance agreement is initially concluded for twelve (12) months (minimum term). Subsequently, the subscription agreement and the maintenance agreement shall be automatically extended by a further twelve (12) months (extension), unless the respective Agreement is terminated in writing with a notice period of three (3) months before the end of the respective term. Maintenance shall always relate to the Customer’s / End Customer’s entire stock of SEP Software, insofar as SEP offers Maintenance for it. The Customer / End Customer must always keep all installations of SEP Software for which SEP offers Maintenance (including SEP Software acquired through any subsequent purchases or as part of the Maintenance) fully maintained by SEP or terminate the Maintenance altogether. This provision shall also apply to SEP Software that the Customer / End Customer has purchased from third parties and for which SEP provides Maintenance. Additional purchases oblige the Customer / End Customer to extend the Maintenance on the basis of separate maintenance agreements with SEP.
10.7 Special termination rights and termination for cause remain reserved.
10.8 Termination for important cause must be in writing to be effective. The rules on grace periods in paragraph 13.1 shall apply mutatis mutandis. SEP reserves the right to terminate for cause, in particular in the event of repeated or gross breach of material contractual obligations (e.g. paragraphs 2, 6 and 9). In this case, SEP retains the right to the remuneration incurred up to the termination and may claim liquidated damages of 60% of the remuneration incurred up to the date on which the Customer / End Customer could have terminated the Agreement for the first time. The Customer / End Customer reserves the right to prove that SEP has suffered a lower loss.
10.9 If the Customer / End Customer does not order Maintenance immediately upon delivery of the SEP Software, it must pay the Maintenance Fee which it would have had to pay if maintenance had been agreed from delivery, in order to obtain the current Software version when Maintenance commences at a later date. In addition, SEP may charge a reactivation fee, the amount of which will be communicated by SEP on request. The additional payment is due immediately and in full. This shall apply mutatis mutandis in the event of termination and subsequent reactivation of the Maintenance. The options for changing the Maintenance Model are set out in the applicable Price List.
11.1 SEP shall provide the services / Professional services in accordance with the Agreement and the terms agreed below in return for remuneration in accordance with the applicable Price List. The services / Professional services may consist of a one-off service, which may also be provided in parts, or may be provided on an ongoing basis. Unless otherwise agreed, the place of performance shall be the registered office of the Provider.
11.2 The services / Professional services shall be performed by SEP employees. The Customer / End Customer is not entitled to have the services performed by specific employees. The manner in which the services are provided shall be determined by SEP, unless otherwise agreed. The Customer / End Customer is not entitled to give instructions to the employees responsible for providing the services / Professional services.
11.3 The Customer / End Customer is responsible for ensuring that the contact persons designated by it provide all documents, information and data necessary for the provision of the services completely, correctly, in good time and free of charge, unless this is the responsibility of SEP. The Provider may assume that these documents, information and data are complete and correct, unless it recognizes or must recognize that they are incomplete or incorrect. SEP is entitled to claim reasonable compensation for any additional expenses incurred as a result of the Customer’s failure to properly fulfill its obligations. The Customer / End Customer is responsible for supervising the performance of the services by SEP.
11.4 With regard to liability, paragraph 8 shall apply mutatis mutandis.
11.5 SEP grants the Customer / End Customer a non-exclusive, non-transferable right to use the deliverables provided under the Agreement for internal use for the contractually agreed purpose. All other rights shall remain with the Contractor. SEP reserves the right to revoke the rights of use granted if the Customer / End Customer materially breaches the specified restrictions on use or protective provisions against unauthorized use. In such cases, the Customer / End Customer shall initially be granted a period of time to remedy the infringement. In the event of continued violations or in special cases that justify immediate revocation of the rights of use, the Provider may also revoke the rights of use without setting a prior deadline.
11.6 If SEP’s performance deviates from the contractual Agreements and SEP is responsible for this, SEP is obliged to provide the service in whole or in part in accordance with the Agreement within a reasonable period of time at no additional cost to the Customer / End Customer, unless this requires disproportionate effort. However, this obligation of SEP shall only apply if the Customer / End Customer notifies SEP of the deviation in writing without undue delay, but at the latest within two weeks of becoming aware of it, unless otherwise agreed.
11.7 Agreements concluded for an indefinite period can be terminated with a notice period of three months to the end of a calendar month, unless otherwise contractually agreed. The right to terminate without notice for good cause remains unaffected. Terminations must be made in writing to be effective, whereby email is sufficient.
12.1 SEP provides a trial version of the SEP Software (“Test Software”) for evaluation and demonstration purposes. To the extent that this paragraph 12 deviates from the other provisions of these GTC, the provisions for Test Software contained in this clause 12 shall prevail.
12.2 SEP is under no obligation to maintain or provide support for the Test Software.
12.3 SEP grants the Customer / End Customer a non-exclusive, time-limited right to use the Test Software for internal testing purposes. The right to sublicense and otherwise grant rights of use to third parties is excluded. The exclusive rights of ownership, use and exploitation of the Test Software shall remain with SEP or, in the case of Third Party Software, with the respective licensors.
12.4 The Customer’s / End Customer’s rights of use are limited exclusively to activities that serve to test and assess the suitability of the Test Software for its business operations. Any modifications, decompilations, productive use of the test software or preparations for this are not permitted. Furthermore, any use of the software for benchmarking purposes in comparison with Third Party Software or in connection with the software development of the Customer / End Customer or third parties is expressly prohibited.
12.5 SEP shall provide Test Software to the Customer / End Customer free of charge. SEP’s liability for providing the Test Software free of charge is governed by § 599 German Civil Code (“BGB”). Liability for defects in title and quality is governed by § 600 German Civil Code (“BGB”). If SEP is held liable for gross negligence, its liability shall be limited to compensation for foreseeable, typical damage, irrespective of the legal grounds (whether contractual or tortious). Liability for injury to life, limb or health and under the Product Liability Act shall remain unaffected. Paragraphs 7 and 8 do not apply.
12.6 The contractual relationship between SEP and the Customer / End Customer regarding the use of the Test Software may be terminated by either Party in text form (e.g. by email) with one month’s notice without needing to state a reason. The right to terminate without notice remains unaffected.
13.1 Deadlines set by the Customer / End Customer by law or agreement must – except in urgent cases – be at least ten working days. If the unsuccessful expiry of a time limit set entitles the Customer / End Customer to terminate the Agreement (e.g. by rescission, termination or damages in lieu of performance) or to reduce the price, the Customer / End Customer must threaten these consequences of the unsuccessful expiry of the time limit in writing together with the setting of the time limit. After expiry of a time limit set in accordance with sentence 2, SEP may require the Customer / End Customer to exercise its rights resulting from the expiry of the time limit within two weeks of receipt of the request.
13.2 SEP may accept offers from the Customer / End Customer within four weeks. Unless otherwise agreed in writing, offers made by SEP are without engagement. In case of doubt, the offer or order confirmation by SEP will determine the content of the Agreement.
13.3 SEP and its Affiliates are subject to the export control and sanctions laws of the United Nations, the European Union, the Federal Republic of Germany and the United States of America. The Contracting Party shall notify SEP in advance if it becomes aware that a delivery to it or to its country is in breach of such provisions. SEP shall be entitled to terminate the Agreement with immediate effect by notice to the Contracting Party if the delivery of the SEP Software or other goods to the Contracting Party is in breach of such provisions. In the event of such termination, neither SEP nor the other Party shall be entitled to recover from the other Party any damages, losses, liabilities and related costs and expenses incurred by the other Party as a result of such termination.
The other Contracting Party shall not export or supply the SEP Software or any other goods supplied to it by SEP to any country or to any natural or legal person to which export prohibitions apply under the export control laws of the European Union, the Federal Republic of Germany, the United States of America or its country of residence.
13.4 All contractual and non-contractual claims shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods. The conflict of laws shall not apply. The exclusive place of jurisdiction for all disputes arising from and in connection with the Software Agreement is Munich, provided that the Customer / End Customer is an entrepreneur, a legal entity, a legal entity under public law or a special fund under public law.
13.5 The conclusion of the Agreement and amendments to the Agreement as well as all declarations of intent relevant to the Agreement and declarations for the exercise of formative rights, in particular notices of termination, reminders or setting of deadlines, must be made in writing. This also applies to the waiver of the written form requirement. The written form requirement stipulated here and elsewhere in this Agreement may also be complied with by fax, email or correspondence. However, § 127 (2) and (3) German Civil Code (“BGB”) shall not otherwise apply.
13.6 Any terms and conditions that conflict with or supplement the Software Agreement – in particular the General Terms and Conditions of the Customer or, where applicable, the End Customer – shall not form part of the Agreement, even if SEP executes an Agreement without expressly objecting to such terms and conditions.
13.7 SEP reserves the right to amend the provisions of these GTC for continuing obligations for good cause. Such reasons include, in particular, changes due to new legal requirements or supreme court rulings, technical progress or technical developments, changed requirements of mass traffic, the existence of loopholes in the current GTC, changed market conditions, or comparable reasons, provided that these changes do not unreasonably disadvantage the Customer / End Customer. The Customer / End Customer shall be notified of amendments to these GTC in writing or by email at least six weeks before the planned entry into force and shall be informed of their right to object. The changes will take effect if the Customer / End Customer does not object in writing or by email within six weeks of receipt of the notification and SEP has pointed out this consequence in the notification. In the case of services provided free of charge, SEP is entitled at any time to amend or revoke these GTC or to replace them with new GTC and to offer new services for a fee or free of charge.
Last updated: 11/22/2023