General conditions of sale of LIGNOCAM SA
Saint-Légier-La Chiésaz, 2017.12.15, rev. 2
Lignocam SA (hereinafter “the Supplier”) offers its professional customers delivery, commissioning, training, maintenance and hotline services for its “Lignocam “ software, the purpose of which is to import and interpret machining data from a 3D modelling software package, to modify, delete or complete them.
By agreeing to the special conditions of sale, the customer expressly acknowledges that the products and services provided by Lignocam SA meet its needs.
The customer represents that without being a professional in the field of data processing, it has:
- – all the associated information and advice in order to make the relevant choices;
- – the technical skills to evaluate the technical specifications and their associated limitations corresponding to the products and services provided by Lignocam SA.
These general conditions prevail over all the general or special conditions of purchase of the customer.
In this Contract, the following terms, regardless if mentioned in plural or singular, when written with a capital letter, have the following meanings:
Anomaly: any malfunction or non-conformity of the Software in relation to its technical documentation and to the special conditions which prevents its normal operation in whole or in part.
- – these general conditions of sale;
- – any later versions thereof;
- – the special conditions of sale.
Dongle: the physical key required to operate the Software.
Software: the program in the form of source code and object code, where applicable its documentation, in the condition at the time of acceptance of the Contract by the Licensee, and the Modules chosen by the Licensee.
Hardware: the computer but also a whole machine, the tools.
Business Days and Hours: opening days and hours of the Supplier’s offices, Monday to Friday, from 8 a.m. to 12 p.m. and from 1.30 p.m. to 5 p.m
Supplier: Lignocam SA.
Licensee: the Software user having accepted the Contract and acquired a license (natural or legal person).
Module: subset of the Software, with its own identifiable functions.
Lignocam Report: all the files used and generated by the Software and partially transmitted to third parties (including, but not limited to: *.BTL, *.3dg, *.XAM, ISO code, laser file, protocol).
NC: everything concerning the Numerical Control (including, but not limited to: tools settings, origins definitions, axes limits).
Simulation: visual, dynamic and 3-dimensional translation of the code generated by the Software and which contains the instructions transmitted to the Hardware.
Maintenance: service including, but no limited to:
- – the hotline (telephone service, remote Maintenance, e-mail);
- – updates;
- – upgrade.
The general conditions are communicated with the Supplier’s service offering and are also available and accessible online on one’s personal space. In the event that one or more services of Lignocam SA are distributed by a third party, these general conditions apply to the Licensee.
The customer is informed that he can save and/or print these general conditions by using the standard features of his browser or computer.
At the time of subscription, the version of the special conditions binding upon and enforceable against the customer is the one accepted by the customer.
The Supplier reserves the right to adapt or change these general conditions at any time. The Customer will be informed, by e-mail and by publication on the home page of the website, of the proposed changes within eight (8) business days prior to their entry into force. These changes must be accepted by the customer; failing this, after a notice period of six (6) months from the date of entry into force of the new version of the general conditions, he may no longer use the services provided by the Supplier, the Contract being deemed terminated.
The following general conditions apply, subject to special provisions derogating from these conditions and agreed in writing between the parties..
By acquiring a license, the Licensee obtains the right to use the Software, for the price agreed between the parties, without restriction of time, for the whole world, on a single computer, and under the following provisions.
The Software remains the property of the Supplier.
5. SPECIAL CONDITIONS OF SALE
The special conditions of sale, specific to each Licensee, form an integral part of this Contract.
The Contract documents are, in decreasing order of priority:
- – the special conditions of sale;
- – their annexes;
- – the most recent version of these general conditions of sale.
Where there is any inconsistency between documents of different nature or rank, the parties expressly agree that the provisions contained in the document with the higher rank in the order of precedence shall prevail with regard to the conflicting obligations. In case of discrepancy between the provisions of documents of the same rank, the most recent documents shall prevail.
Notwithstanding the rules for the interpretation of contracts laid down in relevant legislation, the following order of precedence shall apply:
- – obligation per obligation;
- – or, failing that, paragraph per paragraph;
- – or, failing that, article per article.
7.1. Effective date
These general conditions of license come into force and are enforceable against the Licensee upon the subscription of the service.
Unless otherwise provided by special terms, this Software license in its version on the day of its delivery is granted by the Supplier to the Licensee for the entire legal term of protection of intellectual property rights.
8. DELIVERY, COMMISSIONING, RECEIPT
The place and the means of delivery of the Software are specified in the special conditions.
The Supplier agrees to deliver the Modules of the current version of the Software.
The commissioning service is provided by the Supplier for a period of 15 days from the installation of the Software; this installation is carried out by the Licensee.
8.3. 8.3 Receipt and acceptance
The Software is deemed as accepted by the Licensee if no claim concerning an Anomaly is made by the Licensee in writing by registered letter with acknowledgement of receipt:
- – within 15 days of its receipt; or
- – at the end of the contractual warranty period, if applicable, provided that the Licensee has followed training.
General provisions of warranty
The Licensee accepts the Software as is, without any warranty of any kind, unless expressly stated otherwise.
The Supplier warrants to the Licensee that it holds all rights for distribution of and changes to the Software.
Any other requirements of the Licensee are not covered by the Software warranty, unless specific developments are carried out by the Supplier.
9.2. Warranty of conformity
9.2.1. Principle of the warranty of conformity
The Software is warranted only when used in accordance with the descriptions contained in the Contract.
9.2.2. Conditions of the contractual warranty of conformity
In order to benefit from the warranty of conformity mentioned above, the Licensee must have previously followed a mandatory training.
In order to implement the warranty of conformity, the Licensee must notify the Supplier by registered letter with acknowledgement of receipt of the Anomalies identified and provide the following documents:
- – the Lignocam Report at the moment of the occurrence of the problem;
- – the NC files at the moment of the occurrence of the problem;
- – an accurate description of the error.
9.2.3. Duration of the contractual warranty of conformity
The warranty starts at the end of the training period and has a limited duration of 12 months.
9.2.4. Extension of the warranty of conformity
Beyond the 12-month period, the Licensee has the option to subscribe to an extended warranty.
9.2.5. Effects of the warranty of conformity
During the contractual warranty period, the Supplier will repair free of charge all Anomalies that are directly attributable to it.
The Supplier will also repair any Anomalies if an extension of warranty is subscribed by the Licensee, subject to full and timely payment of the extended warranty price.
9.2.6. Exclusion of the warranty of conformity
The warranty of conformity becomes void if the occurrence of a defect is due to:
- – unauthorized use of the Modules installed during commissioning on the workstation and for which the Licensee has not acquired the rights;
- – modification in the source code of the Software or the environment on which it is installed by the Licensee or a third party;
- – non-compliance with the Software documentation;
- – wear or failure of Hardware;
- – use not in accordance with the Software documentation by the Licensee or by a third party;
- – use of the Software without prior training provided by an organization approved by the Supplier;
- – production without prior visual control of the Simulation by the Licensee;
- – production without prior collision control free from collision with machine or materials;
- – Anomaly not documented by the Licensee.
The Provider does not warrant that the functionalities of the Software will meet the Licensee’s requirements or will allow him to achieve his desired results, or that the Software will operate in the combination or environment of use selected by the Licensee, or that the operation of the Software will exempt collisions with machines and/or materials. The Licensee is responsible for verifying that the results produced by the Software comply with quality and security requirements.
If no Anomaly within the meaning of article “Definition” of these general conditions of sale is identified, the work done by the Supplier to correct the Software will be charged to the Licensee at the rates in force on the date the invoice is issued by the Supplier.
10.1. Liability of Supplier during the warranty
The Supplier is insured for its activity.
It shall be liable under the services it supplies to the Licensee for direct material or personal damage caused by it.
It shall be the Licensee’s responsibility to prove the Supplier’s liability for any damage caused.
10.2. Liability of Supplier after the warranty
The Supplier disclaims all liability after the warranty period.
Subscription of the Maintenance services by the Licensee does not involve any responsibility from the Supplier regarding the conformity of the Software.
10.3. Limitation of Supplier’s liability
10.3.1. General provisions
The Supplier disclaims any contractual or tortious liability due to the breach or failure of the Licensee to implement the Contract.
The Supplier shall not be liable for:
- – Licensee’s damage resulting from a non-reproducible Anomaly;
- – Licensee’s damage due to the Licensee’s total or partial failure to fulfill its obligations;
- – Licensee’s direct or consequential damage due to the use or performance of the Software but with no relation to an Anomaly;
- – any Licensee’s consequential damage including any commercial or economic loss, loss of customers, revenue, profit, damage to brand image, loss, destruction, alteration of its data.
In no event shall the Supplier be responsible for processing the Licensee’s data. It is therefore the Licensee’s duty to perform under his responsibility and under his direction regular backups as well as the archiving of all data processed directly or indirectly by the Software.
The Supplier shall under no circumstances be held liable for any contamination by any virus of Licensee’s files and potentially damaging consequences of this contamination.
10.3.3. Financial cap
In any event, and for any heads of loss combined, the liability of the Supplier cannot exceed the total amount paid by the Licensee to the Supplier, under the Contract, during the last twelve (12) months prior to the occurrence of the damage.
A training plan shall be agreed between the Supplier and the Licensee in order to allow the latter to better understand how the Software works.
It shall be provided by an organization approved by the Supplier.
The terms, location and cost of the training shall be specified in the special terms.
The training is mandatory and it is a precondition for the warranty of conformity of the Supplier.
12. MAINTENANCE AND HOTLINE (OPTION)
Supplier Maintenance Services include corrective Maintenance, evolutionary Maintenance and Hotline.
12.1. Maintenance services
During the first 12 months of the Contract, the Supplier will provide corrective and evolutionary Maintenance on the Software.
Corrective Maintenance consisting in correcting Anomalies is included in the contractual warranty of conformity, provided that the Licensee follows the mandatory training prior to the implementation of the warranty.
For evolutionary Maintenance, the added functionalities of the Software developed by the Supplier and the new versions of the same Software are provided on the initiative of the Supplier.
New versions are transmitted by download from the Supplier’s website.
Maintenance does not include:
- – the treatment of non-reproducible Anomalies;
- – the treatment of non-documented Anomalies;
- – the treatment of Anomalies on the Software whose new versions have not been downloaded and installed for more than a month;
- – the reconstitution of files in the event of accidental destruction for any reason whatsoever;
- – the development of new specific programs for the Licensee;
- – the Anomalies of third party software, even if it works in chain with the Software;
- – any intervention on the Licensee’s computer system or network;
- – repair of any Anomaly caused by a third party other than the Supplier.
The Supplier shall use its best endeavors to provide, within a reasonable period of time, the necessary correction of any Anomaly. The treatment of an Anomaly may consist of a workaround (alternative solution).
Corrective Maintenance differs from the warranty of conformity; consequently, it is not because a maintenance service is subscribed by the Licensee that the Supplier will be liable in the event of Anomalies.
The Licensee may, at its own expense, purchase insurance to cover all risks of damage and in particular cyber risks.
12.2. Maintenance renewal
At the end of the first 12 months of the Contract, the corrective and evolutionary Maintenance are automatically renewed for the same duration and will be invoiced to the Licensee under the terms of the special conditions.
12.3. Termination of the Maintenance
12.3.1. Termination by the Licensee
The Licensee may waive the Maintenance renewal by registered letter with acknowledgment of receipt three (3) months before the expiry of the term.
12.3.2. Termination by the Supplier
The Supplier reserves the right to terminate the Maintenance fifteen (15) days after a letter remains ineffective, in the event of violation of one or more clauses of the Contract and in particular in default of payment at maturity date of amounts due from the Licensee.
Furthermore, the Contract will be terminated by sending a letter in the following cases: counterfeiting, attempted counterfeiting, violation of physical integrity.
12.3.3. Effects of termination of Maintenance
The Supplier reserves the right not to renew the Maintenance services supplied to a Licensee. The Supplier shall not be obliged to give reasons for its refusal.
In the event of termination, the Licensee receives a Dongle with definitive code for the permanent use of the Software (unlimited in time) in the version he holds on the termination date.
The loss or theft or damage of the Dongle entails the lapse of the license. The Licensee must then obtain a new license.
Similarly, any modification of the PC configuration of the means of production results in the lapse of the fixed license. The Licensee must then obtain a new license.
The Licensee may, at its own expense, purchase insurance to cover this type of incidents.
In the event of maintenance service interruption for one or more years, the Licensee may only benefit from the new versions once the arrears have been paid.
In that case, an estimate will be established by the Supplier for the Licensee.
The hotline is available to the Licensee during the first 12 months of the Contract after receipt of the Software, and during the Supplier’s Business Days and Hours. The hotline is only possible for Licensees who have a valid Maintenance contract and is not included in the warranty of conformity.
13.1. Notice period
The Supplier must notify the Licensee in writing of its intent to have an audit conducted by giving at least a notice of thirty (30) days. The Supplier may only conduct an audit once a year.
The audit can be done remotely by taking remote control of the computer on which the Software is installed.
13.2. Prior information
The Supplier must communicate the scope of the planned audit, the list of audit operations and measurement tools it intends to use (in particular scripts and system commands), as well as all license and maintenance contracts and purchase orders to which its request relates.
The Supplier must disclose the name of the auditor, where applicable. The Licensee has a right to refuse the auditor for a legitimate reason. In the event of disagreement after a third proposal, the choice of the auditor will be determined by the competent court. The Licensee is liable for damage caused by the auditor.
13.4. Audit report
The results of the audit will be formalized in a report, which will be sent for comments and reservations to the Licensee. The final report will necessarily include comments from the Licensee.
13.5. Audit costs
In the event of disagreement regarding any compliance gap, the Supplier shall be entitled to issue the corresponding invoice on the basis of the rates in effect at the time of the audit.
14. PRICE, PAYMENT CONDITIONS
The purchase price agreed in the special conditions is final.
14.2. Payment conditions
Invoices should be paid net 30 days from the invoice date, unless otherwise specified in the special conditions.
14.3. Late payment interests and debt collection indemnity
If the Licensee fails to pay all or part of an invoice issued by the Supplier within the time period specified above, the Supplier may at its discretion apply the following penalties to the Licensee by way of default interests, without prejudice to its right to claim compensation for the harm caused by the late payment.
In case of default of payment, a late payment interest based on the interest rate applied by the European Central Bank (ECB) to its most recent refinancing operation, plus 10 percentage points, will be invoiced.
It is proposed to use the rate of the ECB increased in the state of the rate assessments.
The parties agree that the amount of the fixed indemnity for debt collection costs shall be fixed at 40 euros for each invoice.
15. SOFTWARE PROTECTION
The Supplier is the owner of the intellectual property rights on the Software or holds the rights necessary for its distribution, as well as on its documentation.
Nothing in the license granted by the Supplier to the Licensee is intended to transfer any intellectual property to the Licensee.
As a result, the Licensee shall refrain from acting or conducting in any manner that may directly or indirectly infringe the copyright of the Supplier in the Software.
All rights reserved by the Supplier remain in the possession of the Supplier.
15.2. Protection of rights
The Software contains information, ideas, concepts and processes that are confidential.
The Licensee shall ensure that he takes the necessary measures to prevent the propagation of information related to his license.
He commits himself to protect the Software in his company against any disclosure, access, theft and other misuses.
These measures also apply to training manuals and other documentation relating to the Software.
Particular attention should be paid by the Licensee to the security of the Dongles against thefts and losses.
The Licensee agrees that it shall not directly or indirectly infringe the Supplier’s copyright and distinctive signs.
The Licensee shall not modify, remove, hide, alter, move by any means whatsoever all or part of any distinctive signs appearing, inter alia, on the computer programs, media, documentation and manuals, as well as the various property and copyright notices that will appear on the screens and the Software.
The Licensee agrees to take all measures necessary to protect the Supplier’s property rights.
The Licensee may make a backup copy when necessary to protect the use of the Software.
Moreover, due to the implementation of technical protection measures, notably through the use of a Dongle, the exception for private copying is limited.
The Licensee must not make any copy, reproduction or adaptation of the Software, whether in whole or in part, except as strictly necessary for the security of its systems or for the use of the Software in accordance with the Contract.
The Licensee must not directly or indirectly disclose, make available or assign the Software to a third party that is not a party to the Contract, whether or not for consideration.
The Licensee must refrain from acting or conducting in any manner that may directly or indirectly infringe the copyright of the Supplier in the Software.
For the purposes of the Contract, any and all information shall be confidential, including any information or data disclosed by the parties orally or in writing.
The parties accordingly agree:
- – to treat the confidential information with the same degree of protection with which they treat their own confidential information of like importance;
- – to keep confidential information in strict confidence and ensure that it is neither disclosed nor likely to be disclosed, whether directly or indirectly, to third parties;
- – not to infringe in any manner the intellectual property rights in the confidential information;
- – to prevent the confidential information from being copied, reproduced or otherwise duplicated, in whole or in part, when such copies, reproductions or duplications are not directly linked to the performance of the Contract.
The parties expressly agree that they shall not infringe the property rights in the confidential information in any manner.
The parties shall be bound by this confidentiality obligation for the term of the Contract and for a period of five (5) years after its termination for any reason whatsoever.
17. PERSONAL DATA
17.1. Prior formalities
Each party is responsible for carrying out the formalities it is required to carry out under personal data protection laws and regulations, in particular the General Data Protection Regulation.
Each party warrants to the other the compliance with its obligations under personal data protection laws and regulations, in particular in relation to transborder flows outside the European Union.
17.3. Rights of data subjects
Pursuant to personal data protection laws and regulations, the individuals whose names are used by each of the parties have a right to inquire about, access, modify and rectify their data with each party concerned by sending a request at the address of their respective registered offices, if no other specific address appear in the forms used to collect personal data.
Each party grants to the other party the possibility to use the personal data exchanged for professional purposes and for direct marketing purposes by electronic means, both for itself and for the partners with which they are contractually bound.
18.1. Other services
Additional services relating to the Software (telephone support or modification of version) are listed in the special conditions containing the specific provisions to each Licensee.
18.2. License transfer
The Licensee is not allowed to lend, give or exchange a license to a third party without the express consent of the Supplier.
In certain special cases, it is possible to assign a license. However, this should never be done without first notifying the Supplier in writing.
These general conditions have been drafted in French, in English and in German.
In the event of a dispute between the parties, the general conditions drafted in French shall be the only authentic text and shall legally prevail.
In the event of difficulties of any nature and prior to any legal actions, each party agrees to meet at the request of the most diligent party within eight days of the receipt of the letter requesting a conciliation meeting to find an amicable solution to the dispute.
This clause is legally severable from the Contract. It shall survive and continue to apply even if the Contract is annulled, rescinded, terminated or cancelled.
18.5. Governing law
The Contract shall be governed by the laws of Switzerland.
Swiss law shall apply to both form and substance, notwithstanding the place of performance of principal or ancillary obligations.
IN THE EVENT OF A DISPUTE, IT IS EXPRESSLY AGREED THAT THE COMPETENT COURT OF THE CANTON OF VAUD SHALL HAVE JURISDICTION, EVEN IN THE EVENT THERE IS MORE THAN ONE DEFENDANT OR IN CASE OF THIRD-PARTY PROCEEDINGS.
19. ADDITIONAL CLAUSES FOR TRAINING CENTERS
All educational institutions are also subject to these general conditions of sale such as mentioned above.
The Software must be used exclusively for educational purposes.
Any commercial use is totally forbidden. The Software shall not be lent or sold to any third party or installed in a configuration that does not comply with the technical prerequisites set by the Supplier or not previously validated by the Supplier.
The authorization code made available by the Supplier for the training centers is renewed annually.
The versions for teachers are governed by a specific contract distinct from these general conditions.