SOFTWARE LICENSE TERMS
MHB Markt & Motor GmbH
(Stand 12 / 2012)
- Application / defense clause
For all - including future - services of MHB exclusively these terms and conditions apply, without MHB in each case should refer to them. Differing, conflicting or additional terms and conditions of the licensee shall only become part of the contract insofar as MHB has expressly agreed to them in writing.
2.1. Subject of this contract is the temporary release of software and the granting of the rights required for its contractual use in accordance with the order form and § 3.
2.2. The owed quality of the software results finally from the order form and the documentation.
2.3. MHB is free, at any time, to make changes, in particular improvements and enhancements, while retaining the essential functions of the software. MHB will announce significant changes to the licensee with a notice period of 4 weeks. If the Software is unacceptable to the Licensee, the Licensee may terminate the Agreement extraordinarily within two weeks of receipt of the advertisement at the time the change is introduced.
- use rights
3.1. The Licensee receives the non-exclusive, non-transferable and non-sublicensable right to use the Software, limited in time to the term of the License Agreement. The contractual use includes the installation as well as loading, displaying and using the installed software. Incidentally, the type and scope of the permitted use are determined by the order form.
3.2. The licensee is not entitled to transfer the software access granted to him or the software installed on the computer of the licensee to third parties. In particular, it is not permitted to sell, lend, rent or otherwise sublicense the Software or to publicly reproduce or make available the Software.
3.3. If the licensee violates any of the above provisions, all rights of use granted under this contract shall be immediately null and void and automatically revert to MHB. In this case, the licensee must immediately and completely cease the use of the software, delete all copies of the software installed on its systems and delete the backup copy that may have been created or hand it over to MHB.
- Scope of services, requirements
4.1. MHB points out that in particular the third-party portal offerings displayed by the software as well as their up-to-dateness and availability are not part of MHB's performance and MHB also has no influence on their up-to-dateness and availability. MHB only provides the software with a tool for displaying and sorting portal offers.
4.2. Due to the technical design, in particular the use of the software exclusively via the Internet, it can lead to interruptions of availability and at times of unavailability. MHB points out that the server applications necessary for the operation of the software can also be operated in a data center of a third party and also technical disturbances can occur to that extent. Furthermore, MHB points out that third parties (eg through the use of so-called hacking tools) can gain unauthorized knowledge of data sent via the Internet. In addition, the software is partially or completely unavailable during normal maintenance hours (for example, when new software is installed); However, MHB will endeavor to place these maintenance times as low as possible on periods of low use.
- performance Limits
The following services are not owed by MHB within the scope of the transfer of use, but require a separate written agreement:
- briefing and training of employees of the licensee;
- Creating specific modules and extensions for the licensee;
- Maintenance, care (eg upgrades, updates, new versions), support (eg telephone hotline).
- Rights of the licensee in case of defects
6.1. Defects of the software are remedied by MHB within a reasonable period of time at the discretion of MHB by rectification or replacement.
6.2. Claims of the licensee due to a lack of the software require immediate examination of the software and notification of the defect after delivery - at the latest within two weeks - in case of recognizable defect, in case of undetectable defect from discovery within one week.
6.3. A complaint should include a description of the defects that is as detailed as possible. Upon request, the Licensee will provide MHB, as far as possible and reasonable, with documents and information that MHB needs for the assessment and correction of the defect. The licensee gives MHB the opportunity to check complaints. If the notice of defects turns out to be unfounded, the licensee is obligated to replace MHB with the expenses incurred for the inspection.
6.4. Unless expressly agreed otherwise in writing, MHB is only obliged to provide the licensee with the software in accordance with the regulations in force in Germany free from industrial property rights and copyrights of third parties ("property rights"). If a third party raises justified claims against the licensee because of infringement of property rights by software supplied by MHB and contractually used by the licensee, MHB shall be liable as follows: MHB will, at its discretion and at its own expense, obtain a right of use for the supplied software or so change or exchange for such software that the property right is not violated.
6.5. The assignment of claims for defects is excluded.
- Obligations of the licensee
7.1. The licensee is responsible for ensuring that the technical prerequisites for the operation of the software are met, in particular with regard to the hardware used, operating system software and the connection to the Internet.
7.2. The licensee is responsible for using the security mechanisms of the software and, if necessary, initiating and maintaining sufficient security measures (such as random checks) to prevent the software from being misappropriated by employees of the licensee.
- License fee, set-off and retention right
8.1. If the contract is not concluded on the first day of a calendar month, the license fee payable for the first month will be calculated proportionately after the remaining days of the month, starting from the day following the provision of the software.
8.2. The licensee is only entitled to offset if his counterclaim has been legally established or is undisputed. This set-off shall not apply to a counterclaim for a defect based on the same contractual relationship as the seller's claim. The licensee is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
- Protection of the software
The licensee is obliged to protect the software against unauthorized third party access by means of suitable measures. All copies of the Software and any software updates provided must be stored in a secure location.
- Term, maturity, blocking and termination
10.1. Unless otherwise stated in the order form, the contract is concluded for an indefinite period. It may be terminated by either party with four (4) weeks prior to the end of the contract period, but no earlier than the end of the quarter in which the contract's closing date first begins or at the end of the minimum contract period specified in the order form.
10.2. The monthly rent is calculated from the order form and will be sent to 3 in advance for each month. Weekday of each month due. In the first month of the rental period, the rent is due with full provision of the software.
10.3. If Licensee is in default of two or more consecutive rental payments or an amount equal to two months' rent, MHB is entitled to block software access to the server applications.
10.4. In addition, the contract may be terminated in writing by either party without notice for good cause. An important reason that entitles MHB to termination is, in particular, if the licensee infringes the rights of use of MHB by using the software beyond what is permitted under these provisions.
10.5. The termination must be in writing.
10.6. Upon termination of the contract, the licensee must abandon the use of the software and remove all installed copies of the program from his computers and confirm this in writing to MHB.
11.1. MHB is liable without limitation
- in case of intent or gross negligence,
- for injury to life, limb or health,
- in accordance with the provisions of the Product Liability Act as well as
- to the extent of a guarantee assumed by MHB.
11.2. In the event of a slightly negligent breach of an obligation which is essential to the achievement of the purpose of the contract (cardinal obligation), the liability of MHB shall be limited in amount to the damage which is foreseeable and typical according to the nature of the business in question.
11.3. The contract-typical, foreseeable damage is damage of up to 25.000 Euro.
11.4. The liability of MHB for slightly negligent breach of non-contractual obligations is excluded.
11.5. A further liability of MHB does not exist. In particular, there is no liability of MHB for initial defects, unless the prerequisites of para. 1, 2 exist.
11.6. The above limitation of liability also applies to the personal liability of employees, representatives and organs of MHB.
Business and trade secrets of the other party will be treated confidentially by both the licensee and MHB according to the legal regulations. Other confidential information will be treated confidentially by the parties, provided that the information is appropriately marked, and will also oblige employees to maintain confidentiality. This confidentiality agreement ends 3 years after the conclusion of the contract. The licensee will treat the source code as a trade secret of MHB as far as he has been assigned to it, treat it as confidential for an indefinite period and protect it against access by unauthorized third parties.
13.1. The licensee may transfer rights from or in connection with these conditions to third parties only with the written consent of MHB.
13.2. Changes and additions to the contract must be made in writing. Electronic documents in text form do not fulfill the written form requirement.
13.3. German law applies exclusively to this contract.
13.4. The place of fulfillment and the exclusive place of jurisdiction is the registered office of MHB, provided the licensee is a merchant or a legal entity under public law.
13.5. Should individual provisions of this contract be ineffective, this does not affect the validity of the remaining provisions.