General business conditions for software licenses of the entire Hella Gutmann Group (hereinafter called “HGG”) nationally and internationally
1.1. The term access codes means codes, which, like a key, open the licensed programme and grant the licensee access to use the licensed programme.
1.2. The term HGG refers to Hella Gutmann Holding, Am Krebsbach 2, 79241 Ihringen, or one of its affiliated companies, the proprietor of the programme rights.
1.3. The term data carrier means an electronic unit on which the EDP programmes and data are stored (in other words diagnostic units, computers, PCs and servers).
1.4. The term documentation means all documents in electronic and hardcopy form that HGG has developed for the licensed programme and to which the licensee has acquired the rights of use; in addition, all descriptions that HGG has drafted in connection with the licensed programme.
1.5. The term license conditions means these present terms and conditions.
1.6. The term programme means the parts of the latest electronic version of the HGG software and all third-party programmes that HGG has integrated, either wholly or in part, into the HGG software and to which the licensee has acquired the rights of use.
2. Scope of the license
2.1. HGG grants the licensee a time-limited, non-exclusive and non-transferable right to use the licensed programme for internal use. This right of use with respect to the licensed programme only embodies the authorization to install it on one data carrier in each case (unless agreed otherwise in the contract).
2.2. The licensee has no sub-licensing rights.
2.3. The licensee has no rights to the source code of the licensed programme.
2.4. The licensee may not perform, or permit, the reverse engineering, decomposition or decompiling of the licensed programme unless such a right is conferred on it by law. The licensee may not allow the licensed programme to be used, either wholly or in part, by any persons other than the licensee’s employees. Neither may the licensee disclose the licensed programme to third parties.
2.5. The licensee has no right to alter the licensed programme or parts of the licensed programme without HGG’s prior written consent.
2.6. HGG may add new functions or content to the licensed programme and alter existing functions or content of the licensed programme, for instance by issuing a new version or releasing a service pack or an update of the licensed programme, at any time without the licensee’s consent.
3. Intangible rights/copyright
3.1. HGG has absolute copyright, complete access and all other rights with respect to the licensed programme, apart from sub-products manufactured by third parties to which the latter hold all the absolute rights. The licensed programme is protected by copyright. Any infringement of the rights of HGG and/or any third party whatsoever, and any unauthorised handling of the licensed programme that enables the licensed programme to be copied by third parties shall be deemed as a breach of these license conditions.
3.2. The licensee may not remove or alter any trademarks or copyright marks that are embedded in the licensed programme or that HGG provides with the licensed programme in any other way.
4. Payment terms and taxes
4.1. The licensee shall pay to HGG all the license fees arising from the contract or a corresponding order form. The licensee shall pay each HGG invoice not later than 15 days after receipt of the invoice. Notwithstanding, all license fees shall be due for payment at the latest by the date stated in the contract or on the respective order form. In case of overdue payment, the licensee shall pay interest on the arrears at the rate of 1% per month.
4.2. The licensee shall bear all the taxes (with the exception of income and/or capital taxes attributable to HGG) incurred in connection with this contract, the licensed programme and any other performances and payments made within the framework of this contract. Insofar as taxes are incurred, they are not included in the fees stated in the contract or order form. HGG shall inform the licensee of the respective amounts attributable to taxes in the invoice.
5.1. HGG points out expressly that, according to the current state of the art, the development of absolutely fault-free software products/programmes is not possible. No warranty is therefore assumed for normal software faults that do not impair or only detract immaterially from the use of the software.
5.2. HGG warrants that the programme supplied is free from documented defects at the time at which risk passes to the licensee. Liability is excluded for other defects beyond the documented defects.
5.3. A documented defect of the licensed programme including the manuals and other documents shall be remedied by HGG after corresponding notification by the licensee. This shall be, at HGG’s discretion, either by eliminating the defect (reworking) or by supplying a non-defective programme (replacement). The licensee shall furnish all the documents required for fault diagnosis free of charge.
5.4. If the defect cannot be remedied within a reasonable period of time or if the reworking or replacement has to be deemed to have failed for other reasons, the licensee may, at its discretion, reduce the license fee (price reduction), withdraw from the contract, or claim damages or compensation for wasted expenditure. The latter two claims shall be regulated according to clause 13 of these business conditions. In the case of withdrawal from the contract, the right to claim damages shall be excluded.
5.5. Reworking or replacement shall be deemed to have failed only when
a. HGG has been afforded sufficient opportunity to rework or replace without the desired outcome being achieved,
b. reworking or replacement is impossible,
c. it is refused or unduly delayed by HGG, or
d. reworking or replacement becomes unacceptable for the licensee for other reasonable cause.
5.6. If the licensee has altered or worked the software without HGG’s authorisation, HGG’s liability shall lapse unless the licensee can furnish proof that the respective defect was not caused by such alteration or working and that the remedying of the defect was not impaired by such alteration or working.
5.7. The licensee shall reimburse expenditures not attributable to defects of the products supplied by HGG.
5.8. Claims of the licensee for defects shall become statute barred 12 months from the passage of risk/availability unless caused wilfully or fraudulently.
5.9. A guarantee within the meaning of § 443 of the German Civil Code (BGB) shall only be deemed to have been assumed by HGG subject in each case to a separate written agreement.
6.1. In the event that the contractual use of the licensed programme leads to the assertion of claims against the licensee for infringement of copyright, HGG undertakes to defend the licensee against such claims and to indemnify it against all claims and the necessary costs of legal defence. Said obligations on the part of HGG exist expressly only if the following prerequisites are fulfilled in aggregate:
a. The licensee informs HGG about the assertion of such claims without undue delay.
b. The licensee assigns to HGG in writing sole control over the defence against such claims and over all negotiations aimed at ending the litigation (also by way of an out-of-court settlement). If the licensee decides to represent its own interests in such proceedings, it is free to do so at its own cost. However, this may not give rise to any binding legal effect with regard to HGG’s right of control over the defence and negotiations.
c. The licensee must cooperate with HGG without qualification and use its best efforts to support it in the defence or out-of-court settlement of the dispute.
d. The third-party claim may not be attributable to modifications of HGG products or the use or combination of HGG products with products furnished by the licensee itself or other third parties. If the aforesaid claims are asserted against the licensee or if the assertion of such claims is likely in HGG’s estimation, HGG may, at its discretion and at its own expense, either a) acquire for the licensee the right to continued use of the respective programme on the terms and conditions of this contract, b) replace the licensed programme with products that are of essentially equivalent functionality or alter the licensed programme in such a way that the third-party copyright is no longer infringed and the licensed programme is still of essentially equivalent functionality after the alteration, or c) refund to the licensee the portion of the license fee that was paid for the programme giving rise to the infringement claim less a pro rata usage fee calculated on a straight-line basis according to the period of use, based on an ordinary useful life of five years. However, the licensee’s refund claim is subject to the licensee ceasing to use the licensed programme and returning it to HGG or destroying it.
6.2. The foregoing constitutes HGG’s sole obligation and liability in connection with third-party claims for the infringement of copyright or other intellectual and industrial property rights.
7. Duration and termination of the contract
7.1. Either party has the right to perform an extraordinary termination of the contract (including all order forms insofar as they relate to the acquisition of licensed programmes) if the other party has breached a material contractual obligation. Before the contract is terminated, the consequences of the breach of contract are to be described in detail to the infringing party, giving notice that this is cause for termination of the contract. From the day such notice is received, the other party has 30 days’ in which to remedy the breach of contract to the reasonable satisfaction of the party threatening termination. If the consequences giving cause for termination are not remedied within this period of time, the party threatening termination may terminate the contract in writing insofar as it relates to the acquisition of licensed programmes. Furthermore, the party threatening termination has the right to terminate the contract (including all order forms) at any time in writing if there is justified cause for termination and a remedying of the breach of contract by the infringing party is impossible. Notification of a documented defect cannot be construed as a declaration of termination of the contract.
7.2. Upon termination of the contract, regardless by which party, the licensee shall cease further use of the licensed programme and shall return it to HGG without undue delay. The ending of the contract due to termination shall not release either party from the obligation to effect payments that are owed according to the terms and conditions of the contract and these business conditions.
7.3. All obligations with regard to ceasing use and the disclosure of confidential information, indemnification and liability and those arrangements that by virtue of their sense and purpose are intended to remain in force beyond the end of the contract shall continue to apply after the contract ends.
7.4. The ending of the contract shall have no effect on existing other rights and claims to which the party terminating the contract is entitled within the framework of this contractual relationship.
All notices, advices, declarations and other forms of communication that are necessary or permitted within the framework of this contract shall only be effective if they are in written form. Notices, advices and declarations shall be sent to the party’s address as stated in the signature space of the contract or to the address that the party concerned has indicated at a later time, heeding the required written form, as the address to which notices, advices and declarations by the other party are to be sent. Additionally, the licensee shall send copies of the notice of a breach of a material contractual obligation and termination of contract without undue delay to Hella Gutmann Holding, Am Krebsbach 2, 79241 Ihringen or to an addressee indicated subsequently by HGG.
9. Force majeure
Neither party shall be liable for damages incurred by the other party as a direct or indirect consequence of the other party being prevented from or hindered in the performance of its obligations according to these business conditions due to force majeure. Force majeure shall be deemed to be, among other things, war and mobilisation, natural disasters, strikes, lockouts, fire, import and export regulations and other conditions that are beyond the control of the respective party concerned.
10. Assignment of rights
10.1. The licensee may not assign rights or obligations arising from this contract to third parties without HGG’s prior written consent. For the purposes of this contract the term assignment shall, to the extent permissible, also be deemed to include the use of the software to the benefit of a third party by way of merger, acquisition and/or other combination by or with the licensee, including any new or surviving corporate entity emerging from such merger, acquisition and/or other combination. In such event an upgrade fee shall be payable.
10.2. The software licence shall end automatically upon the sale of the diagnostic unit to a third party. The personal, non-transferable access number shall thereby also expire. The licensee undertakes to inform the third party accordingly in case of sale. All liability on the part of HGG shall lapse upon sale to third parties.
11. Waiver of rights
In the event that a party does not enforce its rights in respect of an individual or persistent breach of contract by the other party, this shall not be construed as a waiver by that party of the enforcement of rights from this or other (also subsequent) breaches of contract at a later date.
Upon receipt and installation of an update, these license conditions shall be replaced or supplemented by the new business conditions contained in the update.
HGG shall only be liable to the licensee for any damages that occur, whatever the de facto or legal cause, according to the following provisions:
a. In case of wilful intent, claims under product liability law, assumption of a quality guarantee in terms of § 443 of the German Civil Code (BGB), fraudulent concealment of a defect and injury to life, body or health, HGG shall be liable in accordance with the provisions of law.
b. In case of gross negligence, HGG’s liability shall be limited to the typical, foreseeable damages. This restriction shall not apply if the damages were caused by senior officers of HGG.
c. In case of ordinary negligence, HGG shall only be liable if a material contractual obligation was breached or in case of delayed performance or impossibility for which HGG is responsible. In such cases, liability shall be limited to the typical, foreseeable damages.
d. In case of liability without fault for warranted properties, initial impossibility and impossibility arising in the course of delayed performance HGG’s liability shall also be limited to the typical, foreseeable damages.
e. Any liability on the part of HGG for loss of use in the event of software defects or shortcomings is excluded.
f. The licensee is aware that, within the scope of its duty to limit avoidable consequences, it is responsible especially for ensuring that its data are secured through regular back-ups. HGG shall be liable for the loss of data only insofar as the licensee has complied suitably with its data back-up responsibilities and the lost data can be reproduced mechanically with a reasonable technical outlay.
g. All claims for damages against HGG itself or against HGG employees and other persons employed in performing its obligations shall, to the extent permitted by law, become statute barred 12 months from the time of occurrence of the damage or knowledge of the circumstances giving rise to the claim and the identity of the causer unless a shorter period of limitation is provided for by law. Excepted are claims due to wilful intent or fraud and claims arising from product liability law. In these cases the limitation provisions as provided for by law shall apply.
14.1 This contract shall be governed by the law of the Federal Republic of Germany.
14.2 Should a provision in the contract, the General Business Conditions, the order forms or other attachments be void or unenforceable, the validity of the remaining provisions shall in no way be affected.
14.3 Place of jurisdiction for all disputes arising in connection with the present contract, the respective order form or with regard to their validity shall be the domicile of HGG.
Hella Gutmann Holding GmbH Tel.: + 49 (0) 76 68 / 99 00 - 0
Am Krebsbach 2 Fax: + 49 (0) 76 68 / 99 00 – 3999
79241 Ihringen Mail: email@example.com