SOFTWARE LICENSE TERMS
of 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. The subject of this contract is the temporary provision of software along with the granting of the rights necessary for its contractual use in accordance with the order form and § 3.
2.2. The owed quality of the software is finally derived from the order form and the documentation.
2.3. MHB is free to make changes, in particular improvements and extensions, at any time while maintaining the essential functions of the software. MHB will announce major changes to the licensee with a notice period of 4 weeks. In the event of a change to the software that is unreasonable for the licensee, the licensee can extraordinarily terminate the contract within two weeks of receiving the notification 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, which is 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. The type and scope of the permitted use are otherwise determined on the order form.
3.2. The licensee is not entitled to transfer the software access granted to him or the software installed on the licensee's computer to third parties. In particular, he is not permitted to sell, lend, rent or otherwise sublicense the software, or to reproduce the software publicly or make it accessible.
3.3. If the licensee violates one of the above provisions, all rights of use granted under this contract become immediately ineffective and automatically revert to MHB. In this case, the licensee must immediately and completely stop using the software, delete all copies of the software installed on his systems and delete any backup copies made or hand them over to MHB.
- Scope of services, requirements
4.1. MHB points out that, in particular, the portal offers from third-party providers presented using the software, as well as their timeliness and availability, are not part of MHB's service and MHB has no influence on their timeliness and availability. With the software, MHB only provides a tool for displaying and sorting the portal offers.
4.2. Due to the technical design, in particular the use of the software exclusively via the Internet, there may be interruptions in availability and at times of non-availability. MHB points out that the server applications required to operate the software can also be operated in a third-party data center and that this can also lead to technical disruptions. MHB also points out that third parties (e.g. through the use of so-called hacking tools) can gain unauthorized knowledge of data sent via the Internet. In addition, the software cannot be accessed in whole or in part during normal maintenance times (for example when installing new software); However, MHB will endeavor to set these maintenance times as low as possible.
- performance Limits
The following services are not owed by MHB within the scope of the transfer of use, but require a separate written agreement:
- Instruction and training of employees of the licensee;
- Creation of specific modules and extensions for the licensee;
- Maintenance, care (e.g. upgrades, updates, new versions), support (e.g. telephone hotline).
- Rights of the licensee in case of defects
6.1. Defects in the software will be remedied by MHB within a reasonable period of time, at MHB's option, by means of repair or replacement.
6.2. Claims of the licensee due to a defect in the software presuppose an immediate examination of the software and notification of the defect after delivery - within two weeks at the latest - in the case of a recognizable defect, in the case of an undetectable defect within one week of discovery.
6.3. A notification of defects should contain a description of the defects as detailed as possible. Upon request, the licensee will, as far as possible and reasonable, provide MHB with documents and information that MHB needs to assess and remedy the defect. The licensee gives MHB the opportunity to review notifications of defects. If the notice of defects turns out to be unfounded, the licensee is obliged to reimburse MHB for 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 free of industrial property rights and copyrights of third parties in accordance with the regulations applicable in Germany (“property rights”). Insofar as a third party asserts legitimate claims against the licensee due to the infringement of property rights by software supplied by MHB and used by the licensee in accordance with the contract, MHB shall be liable as follows: MHB will, at its own discretion and at its own expense, either obtain a right of use for the software supplied or so change or replace it with software that does not violate the property right.
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 requirements for the operation of the software are created, in particular with regard to the hardware, operating system software and the connection to the Internet.
7.2. The licensee is responsible for using the software's security mechanisms and, if necessary, introducing and maintaining adequate security measures (such as random checks) to prevent the software from being used improperly 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 to be paid for the first month is calculated proportionally according to the remaining days of the month, starting on 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 offsetting prohibition does not apply to a counterclaim due to a defect that is based on the same contractual relationship as the seller's claim. The licensee is only authorized to exercise a right of retention if 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 can be terminated by either party with a notice period of four (4) weeks to the end of the contract period, but at the earliest at the end of the quarter in which the first anniversary of the conclusion of this contract or at the end of the minimum contract period specified in the order form.
10.2. The monthly rent results from the order form and is due for the respective month in advance on the 3rd working day of each month. In the first month of the rental period, the rental fee is due when the software is fully available.
10.3. If the licensee is in default with two or more consecutive rental payments or with an amount corresponding to the value of two monthly rent, MHB is entitled to block software access to the server applications.
10.4. The contract can also be terminated in writing by either party for good cause without observing a notice period. An important reason that entitles MHB to terminate exists in particular if the licensee violates MHB's rights of use by using the software beyond what is permitted under these provisions.
10.5. The termination must be made in writing.
10.6. Upon termination of the contract, the licensee must give up the use of the software and remove all installed copies of the program from his computer and confirm this to MHB in writing.
11.1. MHB has unlimited liability
- in the event of willful intent or gross negligence,
- for injury to life, limb or health,
- according to the provisions of the Product Liability Act and
- to the extent of a guarantee assumed by MHB.
11.2. In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), MHB's liability is limited to the amount of damage that is foreseeable and typical for the type of business in question.
11.3. Typical contract, foreseeable damage is damage of up to 25.000 euros.
11.4. MHB's liability for the slightly negligent breach of non-essential contractual obligations is excluded.
11.5. MHB has no further liability. In particular, MHB is not liable for initial defects unless the requirements of Paragraphs 1 and 2 are met.
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 in accordance with the statutory provisions. 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 only transfer rights from or in connection with these conditions to third parties 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 meet the written form requirement.
13.3. German law applies exclusively to this contract.
13.4. Place of fulfillment and 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 fundamentally affect the validity of the remaining provisions.