1. General Terms and Conditions (GTC)
Last Update: March 1 2018. This version replaces all previous versions.
1.1 Scope of Application
1.1.1 All offers, orders, goods and services of OCAD Inc. shall be governed exclusively by the following General Terms and Conditions (GTC). In any event, they shall take prece-dence 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, the customer confirms that he has taken note of and accepted the contents of these General Terms and Conditions.
1.1.3 In addition to the terms and conditions listed here, the licensing terms enclosed with the respective OCAD editions shall apply (cf. below). By ordering the software the license conditions are accepted. Subsequent return or exchange for a different product is not possible.
1.2. Offers and Specifications
1.2.1 Offers made by OCAD Inc. shall always be without obligation and are subject to change.
1.2.2 All information on the OCAD editions received by the customer within the scope of this ordering process are without obligation. Minor deviations from the pictures or descrip-tions provided by us are possible. In particular, changes are reserved which extend and improve the functionality of OCAD, as well as errors in description, illustration and price information.
1.2.3 OCAD Inc. is entitled to make partial deliveries.
1.2.4 Your order shall be deemed an offer to conclude a contract in accordance with these conditions. We do not assume any obligation to accept your order. If we accept your order, we will send you an order confirmation. You will receive it by e-mail. In the course of acceptance of the order, execution can also be started immediately; in this case, you will not receive a separate order confirmation.
1.3. Delivery Conditions
1.3.1 The delivery will be processed within 1-2 working days after receiving the order. The delivery of the goods is at the expense and risk of the customer.
1.3.2 Software ordered from the online shop is delivered directly by electronic download. Once we have received payment approval from your credit card company or bank trans-fer in advance, you will receive an email from us with instructions on how to download and activate the software you ordered.
1.3.3 Delays in deliveries on physical data carriers (e.g. USB stick) of customs clearance may delay the delivery time.
1.4 Import and Export
1.4.1 Import duties and taxes are levied by the customs authorities of the importing country. These vary from country to country and can be up to several times the purchase price. The customer is responsible for the payment of import duties and taxes as well as compliance with import and export regulations of his country.
1.4.2 This software is subject to export restrictions to be observed by the licensee. https://www.admin.ch/opc/de/classified-compilation/20000358/index.html
1.5.1 Unless otherwise stated, prices are quoted in Swiss francs (CHF), excluding VAT, fees, duties, customs duties, transport, packaging, insurance, installation, commissioning and training.
1.5.2 Country-specific taxes are shown after entry of the invoice recipient.
1.5.3 The listed prices are subject to possible price changes.
1.6 Terms of Payment
1.6.1 In principle, prepayment applies.
1.6.2 If you pay by credit card, you must provide the necessary information on the order form and at our payment service provider. The charge will be made when the ordered products are dispatched or when the invoice is issued.
1.6.3 Unless otherwise stated on the invoice, payment is due within twenty-one (21) days.
1.6.4 Bank transaction costs and expenses shall be borne entirely by the customer.
1.7 Right of Return
1.7.1 In principle, there is no right of return.
1.7.2 The right of return / warranty right is only applicable within the following re-strictions. The use of the software is not possible due to technical restrictions on the licen-see's server. The right of return is only granted if the customer has granted OCAD Inc. the possibility of troubleshooting within five working days via remote access on the in-stalled computer or server of the licensee and the error is demonstrably not attributable to misconduct by third party plugins.
1.7.3 Any software that we send to you is subject to the terms of the applicable license agreements. These license conditions are delivered with all software products. The license terms that are part of and incorporated into this Agreement by reference are available to you prior to your purchase on our website www.ocad.com
1.7.4 It is your responsibility to ensure that the software or product software packages (editions) you order meet your needs and are compatible with your existing infrastructure and/or systems and processes.
1.8 Use of the Software and Warranty
1.8.1 The Licensee is responsible for the risk of using the Software. OCAD Inc. and/or its resellers make no representations regarding the suitability, reliability, availability, accessi-bility and accuracy of the OCAD software or related information, products and services. The software OCAD and related information, products and services are provided "as is" without warranty of any kind. OCAD Inc. and/or its resellers hereby exclude all relevant warranties and guarantees - as far as legally permissible.
1.8.2 In particular, OCAD Inc. does not guarantee or warrant that:
- the data entered by you in OCAD are stored correctly and are accessible at any time,
- errors and defects of OCAD can be corrected.
1.8.3 In no case OCAD Inc. and/or Reseller shall be liable for:
- any direct, indirect, immediate, indirect, incidental or consequential damages or punitive damages,
- any other damages whatsoever, including, but not limited to, damages arising from loss of use, lost data or lost profit resulting from the use or services of OCAD, from the delay or impossibility of using OCAD, from the provision of services or from the fact that no services have been rendered, or are somehow related there-to, or for damages from information, software, computer hardware, products or services that have become accessible through OCAD, or for damages that other-wise arise through the use of OCAD, regardless of whether this is based on con-tract, tort, negligence, strict liability or any other legal reason, even if OCAD Inc. and/or its resellers have been informed of the possibility of such damages. In par-ticular, liability for slight and gross negligence on the part of auxiliary persons is excluded.
1.8.4 OCAD Inc. expressly draws attention to the fact that it is not possible according to the state of the art to develop computer programs in such a way that they work error-free under all conceivable conditions. The subject of any warranty by OCAD Inc. is soft-ware which is basically usable in the sense of the program description.
1.8.5 OCAD Inc. does not guarantee that the program functions meet the customer's re-quirements or are suitable for a specific project. Unless expressly assured in writing, OCAD Inc. assumes no warranty for the compatibility of delivered software with any other programs or hardware components. From the fact that OCAD Inc. acts as a provider of services for products, no obligation or guarantee can be derived for the solution or removal of problems connected with OCAD.
1.8.6 The maximum liability of OCAD Inc. for breach of contract, tort (including negli-gence) or for any other reason is limited to the amount you owe OCAD Inc. for the prod-ucts and/or services in question.
1.9 Standby and Reaction Times
1.9.1 Unless otherwise agreed, the readiness and reaction times of the respective con-tracts, in particular the support contract, shall apply. The general contact person for all customers of OCAD Inc. is customer service.
1.9.2 Availability times are based on business hours. Public holidays at the service provid-er's registered office are not covered by these availability times.
1.9.3 Liability for non-compliance with the Service Levels is only given if OCAD Inc. is re-sponsible for the non-compliance. This does not apply in particular to:
- failures for which we are not directly responsible. In particular breakdowns at third party suppliers.
- losses caused by the customer.
- failures due to improper use or repair of customer hardware or software.
1.9.4 We do not claim ownership of your Content. You retain all rights and property rights to your content.
1.10 Applicable Law and Place of Jurisdiction
1.10.1 This contract shall be governed by Swiss law, with the exception of conflict of law provisions and the UN Sales Convention. Application of the Convention for the International Sale of Goods (CISG) of 11.04.1980 in its currently valid version is excluded.
1.10.2 Place of jurisdiction is the registered office of OCAD Inc. However, OCAD Inc. may also appeal to the court at the customer's place of business.
1.11 Validity Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision or to fill any gaps in the contract, an effective and appropriate provision shall be made which comes as close as possible to what the parties wanted according to the economic objective. Baar, March 1 2018
2. License Terms
Last Update: March 1 2018. This version replaces all previous versions.
OCAD INC. (HEREINAFTER ALSO REFERRED TO AS THE "LICENSOR") LICENSES THE EN-CLOSED 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.
The OCAD software can cause the licensee's computer to automatically connect to the Internet. The OCAD software may also have to be activated or registered. Additional in-formation on activation, Internet access and data protection can be found in more detail in later chapters.
2.1.1 "OCAD" stands for the company OCAD Inc. under the law of a Swiss corporation with its headquarters at Mühlegasse 36, 6340 Baar, Switzerland.
2.1.2 "Data Processing Unit" may be a personal computer, laptop or tablet PC.
2.1.3 "Licensee" means you and any entity that has received and is using the Software.
2.2 Granting of a License
2.2.1 You (a company or natural person), hereinafter also referred to as "Licensee", are entitled to use the software according to the number of purchased licenses (the num-ber/type of the purchased licenses is specified in the invoice/license certificate, or an elec-tronic confirmation you receive from OCAD Inc. or one of its authorized resellers) if and to the extent that you comply with the following terms.
2.2.2 Single User License: The purchase of a single user license entitles one user (also referenced as primary user) to install and use the software on one data processing unit. Furthermore, the primary user is entitled to carry out another (second) installation on an-other (second) data processing unit and to use the software there, if and insofar as this further (second) data processing unit is used exclusively by the primary user.
2.2.3 License for Teams: The purchase of a team license entitles a user to install and use the software on a data processing unit. The user can transfer the purchased license to another subsequent user. After the transfer, the transferring user can no longer use the purchased license. From now on, the right of use lies with the subsequent user. A team license can be transferred once within 24 hours. The number of licenses for one team is generally limited to twenty-five (25).
2.2.4 Classroom license: If OCAD Academic is installed in a classroom, it may be in-stalled on a maximum of 25 computers in the same classroom per license.
2.2.5 A software copy is in use or deemed to be in use on a computer if the copy is load-ed 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).
2.2.6 A single license may only be installed on a data processing unit that is not used as server.
2.2.7 Leasing or commercial resale of the software is not permitted.
2.2.8 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.
2.2.9 You may neither pass on nor resell your software license key without the consent of OCAD AG. However, you are entitled to transfer the software permanently, provided that you transfer all documentation and media, do not retain any copies and ensure that this license agreement applies. OCAD Inc. must be notified of the permanent transfer via the transfer form at www.ocad.com/transfer or via the installed and activated OCAD software (license transfer), stating the recipient of the transfer.
2.2.10 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. For this pur-pose, OCAD Inc. must be informed via transfer form at www.ocad.com/transfer stating the type of loss as well as the user name and license number of the OCAD license con-cerned.
2.2.11 The software or parts of the software may not be copied, modified, decompiled, translated, retranslated, the source code of the software deciphered or integrated into other programs without the express consent of OCAD Inc.
2.2.12 In order to use a product that is designated as an upgrade, the licensee must be the holder of a full license for the product that is designated as an upgrade by OCAD AG. After exercising the upgrade, Licensee is no longer entitled to permanently transfer the product that was the basis for Upgrade eligibility (including the license).
2.2.13 Notwithstanding all other claims (e.g., damage compensation claims), OCAD Inc. has the right to terminate this license agreement without notice by written notice to the licensee, without OCAD Inc. having to observe another notice period or to give further notice if the licensee commits a breach of contract to such an extent that it is unreasona-ble for OCAD Inc. to continue this license agreement, in particular if the licensee:
- has committed a breach of its obligations under this agreement and has not reme-died the situation within 30 days after Licensee has received notice of such breach from OCAD Inc;
- has committed an unresolvable breach of its obligations under this agreement.
2.2.14 To enable the execution of this contract, the licensee is obliged to register by e-mail or online registration and to provide hardware fingerprints.
2.2.15 OCAD Inc. can change the software (including certain parts or functions) at any time without liability to the licensee or third parties, stop the support of the software at any time and change prices, features, specifications, abilities, functions, license conditions, publication dates, general availability or other characteristics of the software. However, we will make reasonable efforts to notify you of any changes in good time.
2.3. Term of the license
2.3.1 The license is generally granted for a limited period of one year (365 days).
2.3.2 The duration of the limited annual subscription begins with the sending of the license information (including activation code) by e-mail, as stated in the corresponding invoice of OCAD Inc. or the OCAD reseller. From this time on, the licensee can use OCAD for 365 days.
2.3.3 An extension is always valid for one year (365 days) from the expiry date of the yearly subscription.
2.4.1 Termination by the licensee. Licensee may terminate the use of the Software at any time up to thirty (30) days prior to the end of the term. In the event of early termination, he is not entitled to a refund of the annual fee paid for the annual subscription. About 8 weeks before the end of the annual subscription, the OCAD Inc. or the OCAD re-seller will inform the licensee about the expiration of the license's useful life. He then has the option of cancelling the annual subscription at the latest 30 days before the end of the term. If he does not use this time, it is tacitly assumed that he wants to extend the annual subscription.
2.4.2 Termination by OCAD Inc. or OCAD reseller. If we terminate these terms without cause, we will reasonably endeavor to notify you at least 30 days prior to termination by sending a notice to the email address you provide. Except as otherwise provided in the Additional Terms, we may terminate your right to use and access the Software at any time if: (a) You violate any of these provisions (or act in a manner that indicates that you do not intend or are not able to comply with these best practices), (b) You may not pay for the software or services on time, (c) This is necessary for us for legal reasons (e.g. if the provision of the services or soft-ware is or becomes illegal for you).
2.5.1 The software enclosed with these license terms, including all components, especially sample files and the documentation, are property of OCAD Inc. and are protected by na-tional and international copyrights and other industrial property rights. The rights resulting from the copyright are entitled to OCAD Inc. Unless otherwise stated in the respective documentation of the components of the software, they may be used, displayed, repro-duced and distributed. However, they may not be distributed individually and no claim can be made to trademark rights or derivations from them. 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.
2.5.2 The software contains copyrighted material as well as trade secrets to which the licensee undertakes to observe.
2.5.3 The original software, as well as parts and the individual modules of the software shall not be passed to third parties. This applies both to free distribution of the software and to sales, renting or leasing to third parties.
2.5.4 Any violation of the above copyright is subject to prosecution under civil and crimi-nal law.
2.6 License violations
2.6.1 In case of violation of the license agreement, the Licensor or an authorized repre-sentative of the Licensor is entitled to withdraw the license and declare it null and void.
2.6.2 In case of violation of this license, the Licensor is entitled to take immediate legal action. In addition, the Licensor is entitled to claim damages for damages incurred.
2.6.3 In the event of the withdrawal of a license due to license violations, no payments made will be refunded for acquired licenses.
2.7. Separate Provision, Provision Changes and Support
2.7.1 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 pro-visions of these license terms.
2.7.2 Changes and amendments to this license agreement must be made in writing. A waiver of the written form must also be made in this form.
2.8 Disclaimer of Liability
2.8.2 You are solely responsible for the quality, reliability and accuracy of the data you collect. With OCAD, you may only enter data that you are authorized to enter. A control of the contents is unreasonable for the Licensor and is therefore rejected.
2.8.3 Any refunds and claims for damages in the context of a legal case are limited to the purchase price of the respective license.
2.8.4 Should OCAD and/or your service partners suffer direct or indirect damage as a result of the data collected by you, you undertake to pay for the damage incurred.
Baar, March 1 2018