December 1st, 2015
Article 1 – Object of the Agreement
Upon the making of this Agreement, SimScale agrees to enable the Customer to use the Software in accordance with Article 2 below. The Customer agrees to pay a usage fee according to Article 4 below. The Software that SimScale provides is used to simulate physical processes using data that the Customer uploads in an Account the Customer creates (Article 8). These data are composed of various parameters, the CAD data, settings, and other necessary information. SimScale thus simultaneously creates a platform through which users can discuss the simulation projects and technical problems and can use simulation projects already carried out (public simulation projects) by other users.
Article 2 – Contract Conclusion
Create your account by clicking on the “Register” button on the home page. This opens a form where you can enter your name, your e-mail, and a password of your choice. After consenting to the standard terms and conditions, you can send the data by clicking the “Free Registration” button.
An e-mail will then be sent to you at the e-mail address previously entered. Clicking on the “Activate My Account” link will create your account. Now, when you log in using your e-mail address and password, you can optionally enter additional information. When this information is provided, all functions are available to you free of charge for two weeks. The functionality of the expanded functions will terminate without any further requirements and does not lead to any additional obligations.
Commercial customers cannot cancel the contract using order revocation.
Article 3 – SimScale Performance
1 SimScale grants the use of a software application. This software is composed of various components from various providers. SimScale is thus providing a technical construct for use. The data transmitted by the Customer will be forwarded by SimScale to computers—always in encrypted form. The use of the Software will be carried out on these computers. The data will be loaded to the web server from the Customer’s local computer. As soon as the Customer starts the calculation, SimScale forwards the data and the settings to external computer centers; as soon as results are created on these computers, they are sent to the web server and can be called up by the Customer in his Account.
2 SimScale rents computing capacity in order to enable the use of its software.
3 SimScale sends the data to available computers in such a way that the available resources can be used as efficiently as possible. Due to the central management of this process, SimScale is able to precisely calculate the usage fee under Article 4 below.
4 SimScale does not use the data that are uploaded by the Customer. Separately, the platform sends reports about errors in the program’s application flow through the SimScale program used by the customer. The Customer consents to SimScale using these data exclusively for optimizing the program and then deleting the data immediately. SimScale stores the conclusions and insights obtained from the data to, for instance, optimize the Software or to be able to provide users with tips for using the Software (a non-exhaustive list). Please see Article 5(3).
5 SimScale takes customary precautionary measures in order to guarantee the security and confidentiality of the customer data.
6 SimScale grants use of the software immediately after opening of the account or activation of specific options, regardless of any assertion of a right of withdrawal. SimScale hereby provides notice of the possibility of charging a fee for services provided up to that point.
Article 4 – Usage Fee
1 The user can initially use the software free of charge. However, he can select options in his account that are subject to a fee. Users who use the Software free of charge can only run
public simulation projects.
2 Depending on the rate selected, this fee is composed of a monthly flat fee, a flat fee per simulation, or a hardware-dependent price per calculated simulation minute. All prices can be found on SimScale’s website. In addition, all costs are listed in the Account by minute.
3 The invoice shall be sent to the Customer in digital form on the 28th of each month to the e-mail address specified in the Account.
4 Deletion of the Account shall have no effect whatsoever on the existence and due date of the usage fee.
5 Transaction costs will be incurred by the user for payment by credit card.
6 If the Customer moves from fee-based use to free use of the Software, simulation projects that were previously not public shall remain non-public. After the move, the user can no longer process these non-public simulation projects.
Article 5 – Public and Non-Public Simulation Projects
1 Public simulation projects are displayed in the category “Public Projects.” These simulation projects can be called up and inspected by any visitor to the page.
2 Public simulation projects can be used by other users who have logged in on their accounts for their own simulation projects by clicking on the “Get a copy” button.
3 SimScale receives the right to use public simulation projects, particularly the images and representations under Para. 1 for its own representations and marketing purposes – particularly on the Internet, specifically for blog entries and marketing purposes. SimScale does not owe any remuneration for this use.
4 The user grants all users of SimScale the right to copy the public simulation projects carried out into their own accounts and to use them. This comprises both the technical details as well as all other representations, images, and the details significant to the simulation. The user also grants the right to publish the representations, images, and the details significant to the simulation according to a simulation of a SimScale user.
5 The public projects are intended to enable sharing about the simulation and the individual technical problems on the SimScale platform. For this reason, the users also waive the right to acknowledgement of sources regarding the public simulation projects.
6 Non-public simulation projects can only be seen and processed by the individual user.
7 The user remains the owner of all of his/her owner’s rights and additional intellectual property rights, notwithstanding the provisions in these Standard Terms and Conditions.
Notice of Right to Cancel
You have the right to cancel this Agreement within fourteen days without providing reasons. The cancellation period starts on the date the account is opened and runs for fourteen days. In order to exercise your right of cancellation, you can send a clear statement (e.g., a letter sent by mail or an e-mail) indicating your decision to cancel this Agreement to “SimScale GmbH, Pelkovenstrasse 145, 80992 Munich” or to email@example.com. You can also fill out and transmit the cancellation form electronically on our website, www.simscale.com/cancel-signup If you take advantage of this possibility, then we will transmit a confirmation of receipt of such a cancellation without undue delay.
In order to comply with the deadline for cancellation, it is sufficient to send notice of exercise of the right of cancellation prior to expiration of the cancellation period.
Consequences of cancellation
If you cancel this Agreement, we must refund all payments to you that we have received from you, including delivery costs (excluding the additional costs that result from your having selected a different type of delivery than the most inexpensive standard delivery offered by us) without undue delay and no later than within fourteen days from the date on which the notice of your cancellation of this Agreement is received by us. We will use the same means of payment for this refund that you used in the original transaction unless a different arrangement was expressly agreed upon with you; no fees will ever be charged to you due to this refund.
If you have requested that the services should begin during the cancellation period, then you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the time at which you notify us of your exercise of the right of cancellation with respect to this Agreement to the total scope of services provided for in the Agreement.
End of Notice of Right to Cancel
Article 6 – Default
If the usage fee is not received in SimScale’s account by the 15th of the next month, the Customer is in default without further notice. If the 15th of the next month is not a business day, then the payment period shall end at the end of the first business day following the 15th. If the Customer is in default, the usage fee will be charged interest at 5% over the base lending rate starting on the first day after the default is triggered.
Article 7 – Data necessary for use
1 SimScale uses a user account (hereinafter: Account) to record the data necessary for invoicing and ensures that the Customer can use the Software through the Account. SimScale expressly points out the fact that the data required for payment of the usage fee are not stored by SimScale, but rather by companies accredited for this purpose, in order to ensure the security of this information.
2 In order to be able to use the software, the Customer shall personally upload or specify the data necessary to run a simulation and review its completeness and correctness. (These data include, inter alia, geometric information (CAD), selection of analysis type, material parameters, boundary and initial conditions, numeric settings, etc. This listing can only be exemplary.). The user warrants that he/she has authorization to use and, as the case may be, to publish the data, representations and images.
3 The Customer is solely responsible for the correctness and completeness of the data transmitted by the Customer and the modeling of the technical system. The Software can only perform a calculation correctly using completely transmitted and correct data. SimScale therefore assumes no liability for the correctness of the calculated results with regard to the process to be simulated. The user is also responsible for the correctness and completeness when the user transfers data from a public simulation project that has already been carried out (Article 5).
4 The Customer can access the data that he has loaded into his Account at any time, and can access the results obtained by the use of the SimScale Software at any time.
If SimScale would be temporarily unable to provide these data and results for technical reasons, then SimScale agrees to remedy the malfunction promptly. This excludes events of force majeure.
5 The Customer can freely use the results of the usage.
Article 8 – Access to the Software
In order to use the SimScale Software, the Customer must create the Account using SimScale’s home page. All required data must be entered in order to open the Account. The data that are requested by SimScale for the user’s publicly visible profile does not need to permit any conclusions as to the user’s identity. The user is free to provide additional information.
Article 9 – Right of use
SimScale permits the Customer to use the Software developed by SimScale on computers or through computers that are made available by SimScale. The Customer is entitled to have the data and settings uploaded or made by employees.
Article 10 – No transfer of the right of use
1 The Customer is not entitled to transfer the right of use to third parties.
2 Paragraph 1 shall apply to commercial users subject to the following proviso: However, members of the company or authorized third parties are permitted to upload data. The Customer is not authorized to use the SimScale Software through his Account for third parties. In case of unauthorized usage, SimScale is entitled to block the Account. In this case, SimScale shall issue a closing invoice within the meaning of Article 4 above. In this case as well, the Customer is obligated to maintain the e-mail address until completion of this process.
Article 11 – Limitation of warranty
1 If the software made available has an error, then the Customer shall have a right to remedy of defects. The Customer shall have a right to withdraw if SimScale can not remedy an error in the simulation within a reasonable period. Sentences 1 and 2 shall apply subject to the limitation of liability and warranty within this regulation.
2 As long as the Customer uses the software free of charge, SimScale shall only be liable for wrongful intent and gross negligence.
3 When a fee is paid for use, SimScale warrants the functionality of the Software from SimScale provided for use, with the proviso that the customary defects that technically cannot be excluded (e.g., bugs) in the Software will be removed in each case immediately upon their discovery. If a calculated result is false due to a defect that has then been remedied, the specific calculation process can be repeated without being charged a usage fee.
4 Otherwise, liability for damage and consequential damage due to defects is limited to wrongful intent and gross negligence.
5 Any and all liability is excluded for the modeling of the technical system since this falls beyond SimScale’s sphere of influence.
6 SimScale’s liability for its agents is limited to wrongful intent and gross negligence.
7 Notwithstanding the provision of Article 2 (5) above, liability for data loss is limited to wrongful intent and gross negligence.
8 The amount of claims for damage shall be limited in all cases to €250,000. Due to the special hazards that may result in individual cases from releasing applications for sale, SimScale recommends purchasing insurance.
9 The inadequacies that customarily occur in SimScale’s Software and therefore cannot be excluded shall be kept to the lowest level possible by SimScale regularly revising the Software. Such revision shall be carried out outside of the main usage periods insofar as technically possible. If the Customer is a commercial customer, then the Customer is obligated to notify SimScale promptly of defects in the Software that the Customer becomes aware of. Similarly, the Customer shall provide notice of any defects becoming known to him in the interaction of the various components of the Software. Any restrictions on the functionality of SimScale’s offerings will be limited to the minimum amount possible.
10 SimScale also uses third-party software for individual parts of simulation runs. SimScale selects this software to the best of its knowledge and belief. SimScale assumes a warranty for the functionality of the third-party software provided for use only in case of wrongful intent and gross negligence, but agrees to report errors to the author of the software immediately after their discovery. If a calculated result is false due to a defect that has subsequently been remedied, the specific calculation process can be repeated without a usage fee being charged.
11 The limitation of liability does not apply to personal injury, damage to health, and death.
Article 12 – SimScale support
1 The Customer may request that SimScale employees help in the creation of a simulation.
2 In this case as well, SimScale excludes any and all liability for the correctness of the modeling of the technical system. SimScale can help exclusively in setting the tool, but shall in no case make its own assessment of what is technically necessary for the Customer.
Article 12a – Forum
1 SimScale will establish a “Forum (Community Function)” at various locations on the SimScale platform. This makes it possible for the users of the SimScale platform to share information on the use of the software and simulations as well as sharing simulation projects. This is exclusively a platform whose content is not monitored by SimScale. This shall also
apply insofar as SimScale employees participate in the discussions. Therefore, liability for the content of the contributions in the forum is excluded in all cases.
2 SimScale agrees to remove contributions to the discussion that violate third-party rights once SimScale has been notified thereof.
Article 13 – Termination of the Agreement
1 The Customer can delete his Account when he has paid the usage fee due under Article 3 hereof. SimScale reserves and retains the right to delete the Account in question after termination by a Customer or after blocking under Article 8 above. After deleting the Account, SimScale will also delete all other Customer data.
2 The Customer is obligated to maintain the e-mail account specified in the Account until SimScale has informed the Customer that all payments have been completed.
Article 14 – Severability Clause
Should individual provisions be or become invalid or contestable in toto or in part, this shall not affect the applicability and validity of the other clauses set forth herein, and this provision shall be interpreted and/or supplemented in such a way that the intended meaning and purpose is achieved to the extent possible.
Article 15 – Law and Jurisdiction Clause
1 German substantive law shall be exclusively applied to this Agreement. This is without prejudice of mandatory rules for consumer protection at the habitual residence of a consumer.
2 For commercial users: The Munich I Regional Court (Landgericht München I) shall have exclusive jurisdiction and venue for any disputes arising from and with regard to this Agreement.
Article 16 – Final Provisions
All amendments shall require written form to be effective; this shall apply to the requirement of written form itself.