Software Licence Agreement
Status July 2020
Software Licence Agreement
Contech Software & Engineering GmbH
represented by Dipl. Ing. (FH) Frank Thurner
(hereinafter referred to as Contech or Licensor)
and the respective Licensee.
Contech offers the possibility to license the self-developed and patented software solution ………….to the contractual partner against payment in accordance with the provisions of this contract.
The licensee accepts this offer.
§ 1 Definitions
(1) „Software” is the computer program called …………. in object code including the associated documentation. The program is in German language.
(2) “Confidential Information” shall mean all information and documents of the respective other party which are marked as confidential or are to be regarded as confidential from the circumstances, in particular information about operational processes, business relations and know-how.
§ 2 Subject matter of the contract
(1) The licensor is the sole owner of the license rights for the software ………….. .
(2) Licensor grants Licensee a non-exclusive license to use the Software ………….. . for not a limited period of time, limited to the geographical area of………….. , and provides Licensee with the latest version of the Software available at the time of conclusion of the agreement, together with the granting of further rights required for its contractual use in accordance with § 3. This agreement does not cover the provision of updates for the contractual Software. Updates must be purchased separately against payment.
(3) The Licensor permits the Licensee to save a copy of the contractual program in digital form for download on data carriers.
In the event that the software is protected by a license key, the customer shall receive the license key exclusively for the use of the software. Alternatively, the software can be delivered on data carriers. Installation and configuration services and their acceptance are not subject matter of the contract.
§ 3 Granting of rights
(1) Upon complete and timely payment in accordance with § 4 of this agreement, the licensee shall receive the
- limited to business premises registered with Contech, and in general geographically limited to GERMANY, the right to use the Software to the extent granted in this Agreement.
(2) All software is subject to retention of title prior to full payment of the remuneration pursuant to § 4 of this contract.
(3) The contractual use includes
- data input and its processing,
- their storage,
- printing of displayed data and contents
- displaying and running the installed software,
- data protection
- Permission to use the Software on the internal network only to use file services, print services, Internet information services, Internet connection sharing services and telephony services.
- Permission to use remote access technologies to access and use the software installed on the licensed computer from another device.
The use does not authorize:
- bypass technical limitations of the software
- reverse engineer, decompile or disassemble the Software, unless (and only to the extent that) applicable law expressly permits such action, notwithstanding this limitation
- use components of the Software to run applications that are not executed under the Software
- making a larger number of copies of the Software than specified in this Agreement
- publishing or making the software publicly available so that others can copy it
- renting, leasing or lending the software
- using the software for commercial services.
(4) The licensee is entitled to create a backup copy by way of backup. The Licensee shall visibly affix the note “Backup Copy” as well as a copyright notice of the Licensor on the backup copy.
(5) Furthermore, the Licensee is only entitled to duplicate, process or decompile the Software if this is legally permissible and only if the information necessary for this purpose is not made available by the manufacturer of the Software or the Licensor at the request of the Licensee. In addition, the Licensee is not entitled to reproduce the Software, to transfer the copy of the Software handed over to him or the backup copy, if any, to third parties.
(6) The licensee is not permitted to sell, lend, rent, publicly reproduce or make publicly available or sublicense the Software.
(7) If the licensee violates this provision, all license rights granted under this agreement shall lapse with immediate effect. They automatically revert to the licensor. The Licensee shall immediately and completely cease using the Software, delete all copies of the Software installed on his systems and delete the backup copy that may have been created or hand it over to the Licensor.
(8) Prior to full payment of the remuneration in accordance with this agreement, all software, including software provided on data carriers, or such software installed on the Licensee’s computer systems, together with the user documentation provided, shall be subject to the expanded and extended reservation of title and may not be used, sold, modified or sublicensed. Title, ownership and use rights shall not pass to Licensee until full payment of Contech has been received. Until such time, Contech or its authorized representative is authorized to block the Software.
(9) All IP rights to ……. remain with Contech. They are not subject of the licence. Licensee will not assert any rights against Contech with respect to the ……… Software or further developments of this or other software developments of future, present or past nature, either directly or indirectly, neither against Contech nor against its affiliates or its licensees. This also implies that Contech shall not be prevented from further developing the Software on its own, either directly or indirectly, or at the request of third parties.
(10) Contech remains entitled to further develop, use, license, sub-license, distribute, make publicly available and/or market the Software worldwide, even if its functions are completely or partially identical with functions developed by or for Licensee. The Licensee’s rights are never infringed upon by this. To the extent that Licensee may grant sublicenses to sublicensees, Licensee shall impose such restrictions also on its licensees.
(11) All Software (including patches, corrections, updates, upgrades and new versions of Software), documentation, services and/or materials (collectively, the “Items”) provided by Contech under this Agreement may be subject to the export and import control laws of various countries, including, without limitation, the laws of the United States, the EU, Ireland, Austria and the Federal Republic of Germany.
(12) In particular, licensing requirements may exist or the use of the software or related technologies abroad may be subject to restrictions. The Licensee shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The performance of the contract by Contech is subject to the proviso that there are no obstacles to performance due to national and international regulations of export and import law or any other legal provisions.
(13) If Licensee breaches any of the foregoing provisions, all license rights granted under this Agreement will terminate immediately and revert automatically to Contech. Licensee shall immediately and completely cease using the Software, delete all copies of the Software installed on the systems and delete the backup copy, if any, or hand it over to Contech.
§ 4 Remuneration, maturity and denomination
(1) The fee for the granting of use and license is due when the software is first made available. This amounts to … Euro per license plus value added tax. The minimum number of licenses to be purchased is ….
§ 5 Termination due to violation of rights of use and legal consequences
(1) Furthermore, the license agreement can be terminated in writing by either party without notice for good cause. An important reason that entitles the licensor to terminate the agreement is particularly given if the licensee violates the licensor’s rights of use by using the software beyond the extent permitted under this agreement and does not remedy the violation within a reasonable period of time after receiving a warning from the licensor.
(2) In the event of termination, the Licensee must cease using the Software and remove all installed copies of the program from his computers and, at the Licensor’s discretion, immediately return any backup copies made to the Licensor or destroy them.
§ 6 Software protection
The Licensee is obliged to take suitable measures to protect the Software from access by unauthorized third parties, in particular to store all copies of the Software in a protected location.
§ 7 Maintenance
The Licensor does not grant any maintenance for the Software. This is regulated in a separate SLA.
§ 8 Liability
(1) The licensor has unlimited liability
- in case of intent or gross negligence,
- for injury to life, limb or health,
- according to the regulations of the product liability law and
- to the extent of a guarantee assumed by the licensor.
(2) In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the liability of the Licensor is limited to the amount of damage that is foreseeable and typical for the type of business in question.
(3) A further liability of the licensor does not exist. In particular, there is no liability of the licensor for initial defects, unless the requirements of paragraphs 1, 2 are met.
(4) The above limitation of liability also applies to the personal liability of the employees, representatives and organs of the Licensor.
§ 9 Warranty, statute of limitations
(1) The period for the assertion of warranty claims arising from material defects and defects of title shall be 1 year from the date of delivery in the case of movable goods, and 1 year from the date of notification of completion or acceptance in the case of work performance. The Licensee shall notify the Licensor of any defects within a reasonable period of time, giving a precise description of the defects. Warranty claims arising from the Software ………. in the form of rectification of defects or subsequent delivery shall be incorporated and thus fulfilled within the scope of further development.
(2) The rectification of defects may also consist in Contech showing the licensor reasonable ways to avoid the effects of the defect. In the case of defects of title, the defect is considered to be remedied if Contech provides Licensee with a legally unobjectionable possibility of using the delivered service/goods or, if reasonable, at its option, an exchanged or modified, comparable and equivalent service/goods.
(3) If a defect can only be remedied by the adoption of a new software version, the licensee must adopt the new software version if the contractual scope of functions is retained and the adoption is not unreasonable.
(4) If the licensee has used the services of Contech because of alleged defects and it turns out that there was no defect or that the defect was caused by a circumstance which does not entitle the customer to assert warranty claims, the customer must reimburse Contech for the costs incurred.
(5) Contech guarantees that the software components covered by the licence are free from third-party property rights that restrict or exclude the contractual use of the software components. The parties will immediately notify each other in writing if claims are asserted against them due to infringement of property rights. Contech shall indemnify and hold the licensee harmless from all claims of third parties in connection with property rights in the delivered software components. This shall not apply if the infringement of third party property rights is caused by the behaviour of Licensee which goes beyond the contractual use, as well as by changes and additions to the software components carried out by Licensee under his own responsibility.
§ 10 Confidentiality
(1) The parties agree to maintain silence about confidential information. This obligation continues for a period of 2 years after termination of the contract. Such confidential information is excluded from this obligation,
o which was demonstrably already known to the recipient at the time of conclusion of the contract or subsequently become known to the recipient by a third party, without this infringing a confidentiality agreement, legal regulations or official orders;
o which is publicly known at the time of the conclusion of the contract or become publicly known thereafter, unless this is due to a breach of this contract;
o which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permissible and possible, the recipient obliged to disclose shall inform the other party in advance and give it the opportunity to take action against the disclosure.
(2) The Parties shall only grant access to confidential information to consultants who are bound by professional secrecy or who have previously been subject to obligations of confidentiality under this Agreement. Furthermore, the parties shall only disclose confidential information to those employees who need to know such information in order to perform this Agreement, and shall require such employees to maintain secrecy to the extent permitted by employment law, including for the period after their departure.
(3) Any culpable violation of the above confidentiality obligations shall result in a contractual penalty of EUR 25,000. Further claims of the parties remain unaffected.
§ 11 Data protection, data storage in the cloud
(1) The licensee is obliged to have created all necessary prerequisites (e.g. by obtaining declarations of consent, conclusion of data processing contracts) so that Contech can also provide the agreed services in this respect without violating data protection regulations. Contech observes the rules of data protection law. As far as Contech gains access to Client’s hardware and software (e.g. in case of remote maintenance), this is not intended for businesslike processing or use of personal data by Contech. A transfer of personal data is only carried out in exceptional cases as a secondary consequence of the contractual services of Contech. Contech will handle this personal data in accordance with the legal provisions of data protection and other relevant protection regulations. The customer shall involve the data protection officer in proceedings involving personal data. In these cases, the natural persons concerned have the right to receive information free of charge at any time, upon request, regarding the personal data stored about them. The information must also be provided electronically on request. Furthermore, there is a right to correct, block and delete this data within the framework of the statutory provisions.
(2) The data storage takes place in the cloud as far as legally permissible. Should this not be expressly desired, the customer must notify us in writing. This may increase the costs of the services.
§ 12 Data backup
(1) The licensee is responsible for proper and sufficient data backup. Inadequate data backup is deemed to exist in particular if the Licensee has failed to take precautions against external influences, in particular against computer viruses and other phenomena which must be known to a careful user of IT systems and which could endanger individual files or an entire database, by means of appropriate, state-of-the-art security measures.
§ 13 Source code, data proof function
(1) All rights to the software remain with Contech. The release of the source code requires a written agreement. Data stored in electronic registers or otherwise in electronic form at Contech shall be deemed admissible evidence for the proof of data transfers, contracts and payments made between the parties.
§ 14 Delivery date, remuneration, due date
(1) The delivery date corresponds to the invoice date, unless otherwise stated in the invoice. Payment is due immediately, payable within 10 calendar days of receipt of invoice.
(2) Contech is entitled to request reasonable advances for partial performances and to issue partial invoices according to the progress of performance.
§ 15 Set-off, assignment, currency and foreign settlement
(1) The licensee is only entitled to set-off if his counterclaims are ready for decision or acknowledged by Contech. Licensee may assign his rights only with the written consent of Contech, Contech will refuse to do so only for special reasons. All payments are to be made in Euro. The costs of foreign bank transfers are to be borne by the client.
§ 16 Rights to documents and embodied results, third-party rights
(1) Unless otherwise conclusively regulated in the previous sections of this contract, the following provisions shall apply additionally: Offer and development documents remain the property of Contech.
(2) All property rights and rights of use (including copyright) in any pre-existing and/or non-Agreement services and software solutions included in the work of Contech or any of its sub-contractors (including any extensions or modifications thereto under this Agreement) shall remain with Contech or its sub-contractors. Inventions made jointly by employees of Client and Contech or by employees of the respective affiliated companies during the performance of the services belong to Contech, as well as the right to apply for the invention as a property right and the property rights granted to the invention.
§ 17 Place of performance and time, obligations to cooperate
(1) The place of service/performance is the place of business of Contech. Events of any kind (e.g. stoppage of work, operational disturbances, transport disturbances, delivery blocks, etc.), which are not the fault of Contech, release Contech from the obligation to perform for the duration of the hindrance. Unless otherwise agreed, performance dates begin 20 working days after signing the contract. Fixed dates must be agreed in writing.
(2) Licensee must grant Contech the necessary access to the software and IT systems directly and by means of remote data transmission upon request. Client shall cooperate in acceptance tests and provide the necessary resources and staff time for Contech’s inquiries. This applies in particular to the handling of any warranty claims.
§ 18 Authority to issue instructions
(1) Only Contech is authorized to give instructions to its employees. Contech decides which employees it deploys. Contech employees are not integrated into the customer’s business. Contech is authorized to use subcontractors to fulfil the order.
§ 19 Miscellaneous
(1) General terms and conditions of the licensee do not apply. Changes and amendments to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
(2) Contech reserves the right of ownership until full payment of the goods/software. In case of seizure or other claims of the goods by third parties, Customer is obliged to point out Contech’s right of ownership and to inform Contech immediately. The resale of the goods or software subject to retention of title requires the prior written consent of Contech. In this case, the reserved property extends to the proceeds or the claim from this transaction, which is thereby assigned to the property of Contech. In the event of such a resale, Client is obliged to keep the proceeds separately. Contech is entitled to notify the third-party debtor of the assignment. In case of processing and combination of the goods and/or software delivered by Contech with other goods and/or software, Contech is entitled to the resulting co-ownership share in the object created by processing or combination in the ratio of the value of the goods delivered by Contech to the other processed goods at the time of processing or combination.
(3) This contract shall be governed exclusively by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).
(4) The place of performance is …….. Exclusive place of jurisdiction among merchants or legal persons under public law is …………..
(5) All annexes referred to in this Agreement shall form an integral part thereof.
(6) Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavour to replace the invalid provision with a provision that is legally and economically most appropriate to the contractual objective.
This English version of Software Licence Agreement only fulfils the duty to inform. Legally, the German version applies.