1. General Terms and Conditions (GTC)
1.1 Scope of application
1.1.1 All offers, orders, goods and services of OCAD Inc. shall be governed exclusively by the following terms and conditions. In any event, they shall take precedence over differing terms and conditions, even those sent by the buyer or printed on its correspondence. Amendments and subsidiary agreements shall only be deemed valid if confirmed in writing by OCAD Inc.
1.1.2 By ordering a product or a service (see section 2.1.) the customer acknowledges and accepts the GTC
1.1.3 In addition to the terms and conditions listed here, the licensing terms enclosed with the respective OCAD editions shall apply. Ordering the software constitutes acceptance of the licensing terms. Subsequent return or exchange for a different product is not possible.
1.2 Offers and Orders
1.2.1 Offers made by OCAD Inc. shall always be without obligation and are subject to change.
1.2.2 All details concerning the products and services received by the customer within the scope of this ordering process are without obligation. Minor deviations from the pictures or descriptions provided by us are possible. In particular, we reserve the right to make modifications that improve the functionality of OCAD; and to correct errors and omissions in descriptions, pictures and displayed prices excepted.
1.2.3 OCAD Inc. is entitled to make partial deliveries
1.2.4 Your order shall be deemed to be an offer to enter into a contract in accordance with these terms. We do not assume any obligation to accepting your order. If we accept your order, you will receive an order confirmation per by e-mail.
1.3 Terms of Delivery
1.3.1 The delivery will be sent within 1-2 working days after the entry of the order. The goods are delivered at the customer’s expense and at his/her own risk.
1.3.2 The delivery of software products is carried out in the form of download. As soon as your credit card company has cleared the payment, you will receive all necessary instructions for the download.
1.3.3 By choosing delivery on a physical medium (USB-flashdrive) delays on delivery due to customs and postal service is possible.
1.4 Import and Export
1.4.1 Import duties and taxes are levied by the customs authorities of the importing country. Depending on the country, these can be anywhere between 0-200% of the purchase price. The customer is responsible for paying import duties and taxes, as well as complying with import and export regulations of his/her respective country.
1.4.2 This software is subject to export restrictions which are to observed by the Licensee. In particular, the Licensee is not entitled to export this software to a country that is specified in an embargo list according to US laws, EU laws, and national laws. Information on the US embargo regulations is available under http://www.bxa.doc.gov.
1.5.1 Unless stated otherwise, all prices are quoted net in Swiss Francs (CHF) excluding charges, customs and excise duties, transport, packaging, insurance, installation, commissioning, training and user support.
1.5.2 The prices are, unless otherwise indicated, including applicable Value-Added Tax during the order information depending on your invoice location.
1.5.3The prices are subject to the reservation of possibly price changes. We expressly reserve the right to adjust prices.
1.6 Terms of Payement
1.6.1Unless stated to the contrary on the invoice, net payment without deductions shall be due within thirty (30) days.
1.6.2 If you wish to pay by credit card, you are obliged to indicate the necessary details on the order sheet. The amount will be debited after delivery of the ordered products or during the issuing of the invoice.
1.7 Right of Return
1.7.1 Generally there is no right of return
1.7.2 The right of return is limited to the following conditions. The right of return is granted only if the licensor has had the possibility of analyzing the issue per FTP or any other remote-control software on the computer or server of the licensee within five working days. Additionally, the refund will only be granted if the problem is not caused by any non-standard third party.
1.7.3 Every software which we send to you is subject to the corresponding licence agreements. These licence agreements are distributed with all our software products. The licence agreements, which are part of this contract and included by reference, are accessible on our webseite www.ocad.com to you before the purchase.
1.7.4 It is your responsibility to make sure that the software or software bundles (Editions) which you order are according to your needs and are compatible with your existing infrastructure, resp. systems and processes.
1.8 Warranty for Physical Products
1.8.1 All physical products include a one-year limited manufacturer's warranty for damages in material or execution. The limited warranty only covers physical products of OCAD Inc. Services and other products of this sort are not included. The guarantee of OCAD Inc. corresponds to the legal regulations, Art. 184ff. Swiss Code of Obligations (CO). (www.ZGBOR.ch).
1.9 Software usage and warranty
1.9.1The licensee shall use the software at his/her own risk. OCAD Inc. and/or its resellers make no guarantees as to the suitability, reliability, obtainability, accessibility and/or accuracy of the OCAD software; nor with regard to associated information, products and services. The OCAD software and the associated information, products and services are sold "as seen" without any guarantee whatsoever. OCAD Inc. and/or its resellers hereby exclude any and all guarantees and warranties associated herewith, provided that this is legally permissible.
1.9.2In particular, OCAD Inc. does not warrant or guarantee that
- the data you enter in OCAD will be stored correctly and be accessible at all times;
- errors and defects will be eliminated by OCAD.
1.9.3In no case shall OCAD Inc. and/or resellers be held liable for
- any direct, indirect, incidental, or consequential damages or punitive compensation of damages,
- any other damages of any kind, including, but not limited to, damages from loss of use, lost data, or lost profits, which may be incurred from, or be related in any way to, the use or the services of OCAD, the delay or inability to use OCAD, the provision of services or the fact that no services have been rendered, or for damages from information, software, IT hardware, products, or services that became accessible through OCAD, or for damages incurred otherwise through the use of OCAD, no matter whether this is based on the contract, offense, negligence, or another legal reason, even if OCAD Inc. and/or its resellers had been informed of the possibility of such damages. In particular, the liability for slight and gross negligence of auxiliary staff is excluded.
1.9.4OCAD Inc. wishes to expressly point out that according to current technical standards, it is impossible to produce computer software that is completely free of defects under all conceivable conditions. Any warranty provided by OCAD Inc. shall relate to software that can be used strictly in accordance with the program description.
1.9.5OCAD Inc. does not guarantee that the program functions meet the customer’s requirements or that they are suitable for a specific purpose. Unless guaranteed in writing, OCAD Inc. shall not accept any warranty for the compatibility of the delivered software with other programs or hardware components. The fact that OCAD Inc. is acting in a capacity as a product service provider shall not give rise to any obligation or guarantee for solving or remedying problems associated with OCAD
1.9.6 The maximum liability of OCAD Inc. for breach of contract, tort (including negligence) or any other reason, is limited to the amount which you owe Lt OCAD Inc. for the products and/or services in question.
1.10 Stand-by and Response Times
1.10.1 As long as nothing divergent has been agreed on the stand-by and response times concluded in the respective contracts, in particular the support contract, are valid. The customer service is the first contact point for all OCAD Inc. customers. Inquiries can be submitted directly via the contact form www.ocad.com/support.
1.10.2 The stand-by times result from the business hours published here: http://www.ocad.com/en/support. All times are given in local Swiss time. Legal holidays at the place of business are not included in these stand-by times.
1.10.3 A liability for the non-compliance to service levels is only given, should OCAD Inc. be responsible for the non-compliance. This applies especially to:
- Malfunctions which are not advocated, especially malfunctions ascribed to third party suppliers.
- Malfunctions attributable to the customer's fault
- Malfunctions resulting from inappropriate usage or reparation of hardware or software in the possession of the customer.
1.11 Choice of law and legal venue
1.11.1 This agreement is governed by the laws of Switzerland, under exclusion of law of conflict and UN sales laws. The application of the latest valid version of the Convention for the International Sale of Goods (CISG) of April 11, 1980 is excluded.
1.11.2 In the event of legal disputes, the courts of Baar, Switzerland shall have jurisdiction. However, OCAD Inc. may also appeal to the court at the customer's domicile.
Should any of the above terms prove inoperative, this fact will have no effect on the overall effectiveness of the contract and these GTB. In the event that there are any other license terms governing the use of the software, these shall be stated in a separate written software agreement that must be signed by OCAD Inc. or an authorized third party. These shall also constitute part of the agreement.
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2. License Terms
OCAD Inc. (hereinafter also referred to as the "Licensor") licenses the enclosed OCAD software to you (the user/Licensee) exclusively on the basis of the software license terms outlined below. If you do not agree to these terms, you are not permitted to install or use the OCAD software. The OCAD software is not sold, but only licensed for utilization purposes.
As far as OCAD software is used as a test version you are entitled to test the software for a maximum period of 21 days. A reinstallation or use of the test version after expiration of the test period is not admitted.
2.1 Granting of a License
2.1.1 You (a juristic or natural person), hereinafter also referred to as "Licensee", are entitled to use the software according to the number of purchased licenses (the number/type of the purchased licenses is specified in the invoice/license certificate, or an electronic confirmation you receive from OCAD Inc. or one of its authorized resellers) if and to the extent that you comply with the following terms. Moreover, you are entitled to make one (1) backup copy of the software, which must be marked as such.
2.1.2 The purchase of one license entitles a single user (primary user) to install and use the software on one data processing unit, which may be a workstation or a laptop.
For schools, there is an exception to the above rules: If OCAD is installed in a classroom, it may be installed on an unlimited number of machines in the same classroom.
2.1.3 Moreover, the primary user is entitled to install and use the software on a second computer, if and insofar as this second computer is being used exclusively by the primary user.
2.1.4 A software copy is in use or deemed to be in use on a computer if the copy is loaded into the temporary memory (e.g., working memory, RAM) or installed on a permanent storage medium (hard disk, CD-ROM, DVD-ROM, or another permanent storage medium).
2.1.5 A single license may only be installed on a data processing unit that is not used as server.
2.1.6 Leasing or commercial resale of the software is not permitted.
2.1.7 The documentation may only be used within the scope of the normal contractual use of the software. Separate use or utilization of the documentation is expressly prohibited.
2.1.8 You are not permitted to transfer or sell your software license key without the approval of OCAD Inc. However, you are entitled to transfer the software permanently if you transfer all documentation and media, do not retain any copies, and make sure that this license agreement is applied. OCAD Inc. shall be informed about the permanent transfer by transfer form (see https://www.ocad.com/transfer/transferform.php), specifying the recipient.
2.1.9 Due to obvious damage of the permanent volume on which OCAD was installed and activated, OCAD Inc. is able to apply an additional activation of OCAD. Therefore an per transfer form (see https://www.ocad.com/transfer/transferform.php) containing the kind of damage, the license name and the license number of the affected OCAD license must be sent to OCAD Inc.
2.1.10 The software or parts of the software may not be copied, modified, compiled, de-compiled, or integrated in other programs without the express approval of OCAD Inc.
2.1.11 To use a product designated as an upgrade or update, the Licensee must be the holder of a full license for the product that OCAD Inc. designates as eligible for upgrade and update. After executing the upgrade or update, the Licensee is no longer entitled to use the product that constituted the basis for the upgrade or update eligibility (including the license) or transfer it to a third party.
2.1.12 Notwithstanding all other claims (e.g., damage compensation claims), OCAD Inc. has the right to terminate this license agreement with immediate effect, by serving a written notice to the Licensee and without observing any other notice period or sending any other notification in the event that the Licensee breaches the agreement to such an extent that OCAD Inc. cannot reasonably be expected to continue this license agreement, in particular if the Licensee
- has committed a breach of his obligations under this agreement that is capable of remedy and does not remedy the situation within 30 days after having received a notification about this violation from OCAD Inc.;
- has committed a breach of his obligations under this agreement that is incapable of remedy.
2.1.13 To facilitate the performance of this agreement and to enable technical support, the Licensee is obligated to register by e-mail or via the online registration form.
2.2. Term of the license
2.2.1 The license is granted for an unlimited term. For Products on subscription base the license is granted for the paid time frame.
2.2.2 If the Licensee violates a provision of this agreement, the license will automatically expire without notice of termination. In the event of termination, the Licensee shall destroy the software and all copies of the software.
2.2.3 The Licensee may terminate the license agreement at all times by destroying the software and all copies.
2.3.1 The software enclosed with these license terms, including all components, especially the Java applets, Flash applets, and the documentation, are property of OCAD Inc. and are protected by national and international copyrights and other intellectual property rights. OCAD Inc. in Baar, Switzerland, is entitled to the rights resulting from the copyright.
In the event that there are any other license terms governing the use of the software, these shall be stated in a separate written software agreement that must be signed by OCAD Inc. or an authorized third party. These shall also constitute part of the agreement.
2.3.2 The software contains copyrighted material and operational secrets that the Licensee undertakes to protect.
2.3.3 The original software, as well as parts thereof, and the individual modules of the software shall not be transferred to third parties. This applies both to free transfer of the software and to sale or letting to third parties.
2.3.4 Every violation of the stated copyright is subject to prosecution under civil and criminal laws.
2.4 License violations
2.4.1 In the event of violations of the license agreements, the Licensor or an authorized agent of the Licensor shall be entitled to withdraw the license and declare it null and void.
2.4.2 In the event of violations of this license, the Licensor shall be entitled to promptly initiate legal steps. Moreover, the Licensor shall be entitled to claim compensation for incurred damages.
2.4.3 In case a license is withdrawn due to license violations, any payments made for purchased licenses will not be refunded.
2.5 Separate provision, provision changes and support
2.5.1 If you have concluded a separate agreement for the purchase of this software with the Licensor, the provisions of the respective agreement shall have priority over the provisions of these license terms.
2.5.2 Amendments and supplements to this license agreement must be made in writing. A waiver of the written form must also be made in this form.
2.6 Exclusion of liability
2.6.2 You alone are responsible for the quality, reliability, and correctness of the data you enter. OCAD may only be used to enter data that you are authorized to enter. A review of the contents is unacceptable for the Licensor and is therefore rejected.
2.6.3 The maximum amount of any reimbursements and damage compensations claims in the event of a court case is limited to the purchase price of the respective license.
2.6.4 Should the data you enter result in direct or indirect damage to OCAD Inc. and/or its service partners, you undertake to pay for the incurred damage.
2.7.1 By submitting the order, you agree that we save, edit, use and forward your data received through your order form or fax in order to execute your order.
2.7.2 OCAD Inc. sells software within the licence procedure. With the purchase of the product you receive a licence for your shop. It is for this reason, that your order is registered with a precise serial number and is reported to us through the installation. With completion of contract, you give OCAD Inc. the right to save this data.
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1.7.1 Es besteht grundsätzlich kein Rückgaberecht.
1.7.2 Das Rückgaberecht / Gewährleistungsrecht ist lediglich innerhalb der folgenden Einschränkungen anwendbar. Die Nutzung der Software ist aufgrund technischer Einschränkungen auf dem Server des Lizenznehmers nicht möglich. Das Rückgaberecht wird nur gewährt, sofern der Kunde der OCAD AG die Möglichkeit der Problembehebung innerhalb fünf Arbeitstagen gewährt hat mittels FTP oder vergleichbarem Remote-Zugriff auf dem installierten Computer oder Server des Lizenznehmers und der Fehler nachweislich nicht auf ein Fehlverhalten von Drittsoftware zurückzuführen ist.
1.7.3 Jegliche Software, die wir Ihnen zusenden, unterliegt den Bestimmungen der jeweils anwendbaren Lizenzverträge. Diese Lizenzbedingungen werden mit allen Softwareprodukten ausgeliefert. Die Lizenzbestimmungen, die Teil dieses Vertrags und in diesen per Verweisung einbezogen sind, sind für Sie vor Ihrem Kauf auf unsere Webseite www.ocad.com einsehbar.
1.7.4 Es liegt in Ihrer Verantwortung, sicherzustellen, dass Software oder Produkt-Software-Pakete (Editionen), die Sie bestellen, Ihren Bedürfnissen entsprechen und mit Ihrer bestehenden Infrastruktur bzw. Systemen und Ihren Prozessen kompatibel sind.