License Agreement for HOB Software

Important Note:

On 01.08.2018 new license conditions apply for HOB Software:

Software published after 08/01/2018 is subject to the new license terms (as of 2018)

Software published before 08/01/2018 is subject to the previous license terms (as of 2012)

This page is intended to serve as preliminary information. You agree to the license terms that apply to you during the installation process of the software. If you are not sure which licensing conditions apply to you, just contact us.

 

License Agreement from 08/01/2018
 

I. Licensing Terms and Conditions for HOB Software upon Purchase

1. Scope of Applicability

The General Licensing Terms and Conditions for HOB Software upon Purchase shall apply to all software products purchased from HOB and only towards entrepreneurs w. t. m. of Section 310 (1) BGB (German Civil Code). By ordering software, installing, configurating or executing provided software, the orderer shall agree to the licensing terms and conditions below.

2. Agreement Objects

1. The agreement objects shall not include the source code of the software.

2. The quality of the software delivered by HOB shall be conclusively governed by the statement of work applicable upon dispatch of the agreement objects and available to the orderer prior to the conclusion of the agreement which is described once again in the application documentation. HOB shall not owe any further quality of the software. The orderer may not derive any such obligation, in particular, from other representations of the software in public statements or in the advertising of HOB and of its employees or sales partners, unless HOB has explicitly confirmed the further quality in writing.

3. Where HOB employees give guarantees prior to the conclusion of the agreement, these shall be effective only if they are confirmed by the HOB executive management in writing.

3. Scope of Use

1. HOB shall grant the orderer a simple, temporarily unlimited right of use to the agreement objects, but only for the country of destination agreed between the parties in which the agreement objects are intended to be used. Where no explicit arrangement exists, the right of use shall be granted exclusively for the country in which the orderer has its place of business.

2. The orderer may use the software only to conclude its internal business transactions and those of its affiliated enterprises within the meaning of Section 15 AktG (German Stock Corporation Act) ("Group companies"). In particular, (i) a computer center business for third parties or (ii) the temporary provisioning of software (e.g. as application service providing) for companies other than Group companies or (iii) any use of the software to train individuals, who are not employees of the orderer or of its Group companies, shall be permitted only after HOB has given its prior written consent. Any commercial subletting shall be generally prohibited.

3. Reproductions of the software shall be permitted only where this is necessary for the contractual use. The orderer may create backups of the software pursuant to the codes of practice to the extent required. Backups on removable media must be marked as such and provided with the copyright notice of the original data carrier. If the orderer has acquired the software by online download, it shall be entitled to copy the software to a data carrier upon transfer. For the rest, HOB’s right to the online copy shall exhaust as if the orderer had received the software on data carriers.

4. The orderer shall be authorized to alterations, amendments and other modifications to the software w. t. m. of Section 69c no. 2 UrhG (German Act on Copyright and Related Rights) only where this is unalienably permitted by law. Before the orderer rectifies itself or has third parties rectify any errors, it shall authorize HOB to make two attempts to rectify the error. The orderer shall not have any own rights of use and exploitation to such processing beyond the rights of use granted hereby.

5. The orderer shall be entitled to decompile the software only within the limits of Section 69e UrhG and only if, following a written request with a reasonable time limit, HOB failed to provide the data and/or information required to establish interoperability with other hardware and software.

6. If HOB surrenders additions to the orderer within the framework of subsequent improvement or maintenance (e.g. patches, additions to the user manual) or any new edition of the agreement object (e.g. update, upgrade) that replaces agreement objects previously ceded ("legacy software"), these shall be subject to the provisions hereof. If HOB provides a new edition of the agreement object, the orderer’s authorizations relating to the software shall also lapse without any explicit return request of HOB once the orderer uses the new software productively. However, HOB shall grant the orderer a three-month transition phase in which both versions of the agreement objects may be used concurrently.

7. Subject to cl. (3), (4) (where the documentation has been integrated into the software), any reproduction or modification of the application documentation shall not be permitted.

4. License Types

1. The licensing right upon acquisition of "user licenses" shall include the use by one defined user per user license. The maximum number of software users must correspond to the number of user licenses acquired.

2. The licensing right upon acquisition of "client licenses" shall include the use at one defined workstation per client license, regardless of the number of users at such workstation. The maximum number of workstations must correspond to the number of client licenses acquired.

3. The acquisition of "web user licenses" shall entitle to concurrently use the HOB software by anonymous or authenticated web accesses in the number of the web user licenses acquired. In this context, one web user license shall be equivalent to access by one anonymous or authenticated user.

4. Upon acquisition of "concurrent user licenses", concurrent use of the software shall be limited to the maximum number of users in which concurrent user licenses were acquired, regardless of the number of potentially possible users.

5. Use of the software with a "server license" on one or several server/s for multiple and/or concurrent use shall be permitted only to the extent that user or client licenses were acquired.

6. If any "server licensing" linked to the maximum potential performance of the server/s was agreed, use of the software shall be permitted only via the server/s not exceeding the agreed performance and only to the extent to which the rights of use had been acquired. If several virtual machines are used on one server, each virtual machine shall be deemed an own server. Analogously, an own server licensing must be acquired for each virtual machine. Where modifications to servers result in any higher performance, the rights of use must be aligned with the higher performance of the servers and newly acquired.

5. Payment Terms, Use Beyond the Agreement

1. The payment shall be due and payable upon invoicing, but not prior to delivery of the agreement objects or their provisioning for retrieval on the network and informing of the orderer about the provisioning.

2. All prices shall be plus the respective applicable statutory VAT.

3. Upon provisioning for call-off via a network, HOB shall bear the costs for posting the software for retrieval on the network, while the orderer shall bear the retrieval costs.

4. The orderer shall be entitled to use the software beyond the rights of use granted herein only after HOB has given its prior written consent. In case of any multiple use without consent (especially any concurrent use by a larger number of users than agreed), HOB shall be entitled to invoice the amount incurred for such further use acc. to the HOB price list applicable at that time, unless the orderer demonstrates that HOB has suffered significantly lower damage. Any further non-contractual claims for damages shall remain unaffected.

6. Protection of Software and Application Documentation

1. Unless the orderer has been explicitly granted rights pursuant to a separate agreement, all rights to the agreement objects (and to all copies created by the orderer), especially the copyright, the rights for and to inventions as well as technical property rights, shall be exclusively due to HOB. This shall also apply to any processing of the agreement objects by HOB. The orderer’s ownership of the respective data carriers of such copies shall remain unaffected.

2. The orderer shall store the surrendered agreement objects carefully to exclude misuse. It shall make agreement objects accessible to third parties (whether unaltered or modified) only after HOB has given its prior written consent. Third parties shall not include the orderer’s employees and other individuals present at the orderer’s to ensure the contractual use of the agreement objects. II. cl. 6 shall remain unaffected.

3. The orderer shall not be permitted to alter or remove copyright notices, labels and/or control numbers or characters of HOB. If the orderer alters or processes the agreement objects, such notices and labels must be taken over into the altered version of the agreement object.

4. The orderer shall keep records of any copies contractually created by it of the agreement objects on data carriers and of their retention and shall provide HOB with information and insight thereof upon request.

5. If the orderer (i) hands over to third parties, without this being deemed a transfer acc. to clause II. 6., or (ii) gives up direct possession of any data carriers, memories or other hardware storing agreement objects (in whole or in part, unaltered or modified), it shall be responsible for ensuring that the stored agreement objects will be completely and permanently erased beforehand.

7. Transfer of the Software

1. The orderer may surrender the agreement objects to a third party only in a uniform manner while completely and conclusively surrendering any own use of the agreement objects. Any temporary or partially paid surrender of use to third parties shall be prohibited, whether or not the agreement objects are surrendered in a tangible or intangible form. The same shall apply to any free surrender.

2. Any transfer of the agreement objects shall require the written consent of HOB. HOB shall give its consent if (i) the orderer assures to HOB in writing that it has transferred all original copies of the agreement objects to the third party and has erased all self-created copies and (ii) the third party gives HOB its written consent to the terms of use and transfer agreed herein.

8. Cooperation and Information Obligations of the Orderer

1. The orderer has informed itself of the essential functional features of the software and shall bear the risk of whether it meets its wants and needs; in cases of doubt, it shall seek advice from HOB employees or expert third parties prior to the conclusion of the agreement.

2. Setup of a functional hardware and software environment for the agreement objects, which must also be sufficiently dimensioned considering the additional load by the agreement objects, shall be the sole responsibility of the orderer.

3. The orderer shall test the software thoroughly for freedom of defects and for usability in the existing hardware and software configuration prior to its use. This shall also apply to software obtained by it as part of the warranty and subscription or maintenance.

4. The orderer shall observe the notes given by HOB for the installation and operation of the software; it shall regularly inform itself of current notes on the websites accessible via the Internet on www.hob.de and shall take them into account in the operation.

5. Where HOB has any further performance obligations beyond the provisioning of the agreement objects, the orderer shall cooperate free of charge to the extent required, e.g. by providing employees, workspaces, hardware and software, data and telecommunication facilities.

6. The orderer shall grant HOB access to the agreement objects for troubleshooting and debugging, directly and/or by remote data transmission at the orderer’s option. HOB shall be entitled to verify whether the agreement objects are used in line with the provisions hereof. HOB may request information from the orderer for this purpose, especially about the period and scope of use of the agreement objects, and may inspect the orderer’s books and writs, hardware and software. To this end, HOB shall be granted access to the orderer’s business premises during the usual business hours.

7. The orderer shall take reasonable precautions for the case that the software does not work properly in whole or in part (e.g. by daily backup, fault diagnosis, regular review of the data processing results).

8. Unless explicitly pointed out by the orderer in advance, HOB may assume that any data of the orderer that HOB may encounter have been backed up.

9. The orderer shall bear disadvantages and extra costs from any violation of these obligations.

9. Delivery and Performance Period; Force Majeure

1. Unless arranged otherwise, the software shall be delivered in the version current upon delivery.

2. HOB shall effect delivery by, at its option, (i) surrendering one (1) program copy of the software on a machine-readable data carrier and an application documentation or (ii) providing the software for retrieval in a network while communicating this to the orderer and ceding an application documentation.

3. For any physical dispatch, compliance with delivery dates and the passing of risk shall be governed by the date when HOB hands software and application documentation over to the carrier, otherwise the date when the software is provided for retrieval on the network and this is communicated to the orderer. If the software or the application documentation is damaged or destroyed after the passing of risk, HOB shall deliver a replacement against reimbursement of the copying and dispatch costs.

4. As long as HOB (i) awaits cooperation by or information from the orderer or (ii) is prevented in its performances by strikes or lock-outs in third-party companies or in its own company (in the latter case, however, only if the labor dispute is legitimate), official interventions, statutory prohibitions or other involuntary circumstances ("force majeure"), delivery and performance terms shall be deemed extended by the duration of the impediment and by a reasonable start-up period after the end of the impediment ("downtime"), and no breach of duty shall exist for the duration of the downtime. HOB shall immediately notify any such impediments to the orderer and their expected duration. If the force majeure lasts more than three months without interruption, both parties shall be exempted from their performance obligations.

10. Obligation to Inspect and to Give Notice of Defects

The orderer shall assume an obligation to inspect and to give notice of defects acc. to Section 377 HGB (German Commercial Code) in relation to all deliveries and services.

11. Verification Right of HOB

HOB shall basically have the right to verify whether the number of used licenses utilized by an orderer / a customer corresponds to the number of licenses purchased. If terminals or servers with installed and started HOB software are connected to the Internet, data may be transmitted to HOB computer systems for license reconciliation. Such transmission does not include any personal information. Prior to transmission, any data that may allow conclusions to a user shall be anonymized such that it will not be possible to restore personal information of a data subject. Such data shall be transferred in encrypted form and shall also be retained on HOB computer systems in encrypted form.

12. Material and Legal Defects; Other Defaults; State of Limitations

1. Pursuant to the rules of the CISG, HOB shall warrant the agreed quality of the agreement objects acc. to II. cl. 1. (2) and that any use of the agreement objects by the orderer to the contractual extent does not conflict with third-party rights. However, the warranty for the freedom of the agreement objects from third-party rights shall apply only to the country of destination agreed between the parties in which the agreement objects are intended to be used. Where no explicit arrangement exists, the warranty shall apply to the country in which the orderer has its place of business.

2. HOB shall initially warrant material defects by cure. To this end, HOB shall, at its option, cede a new, defect-free software version to the orderer or remedy the defect; defects shall also be deemed remedied if HOB demonstrates reasonable possibilities to the orderer to avoid the effects of the defect. For legal defects, HOB shall initially warrant by cure. To this end, HOB shall, at its option, provide the orderer with a legally unobjectionable opportunity for use to the delivered agreement objects or to replaced or altered equivalent agreement objects. HOB shall be entitled to condition cure on the orderer having paid at least a reasonable portion of the remuneration.

3. The orderer shall be obliged to take over a new software version if the contractual functional scope is preserved and such takeover does not result in major disadvantages.

4. If two attempts of cure fail, the orderer shall be entitled to set a reasonable grace period for remedy of defects. In this context, it must explicitly point out in writing that it reserves the right to rescind from the agreement and/or to claim damages if the next attempt fails again. If subsequent improvement also fails during the grace period, the orderer may rescind from the agreement or reduce the remuneration, unless the defect is insignificant. HOB shall pay damages or compensation for futile expenses due to a defect within the framework of the limits defined in II. cl. 12. Following expiry of a time limit set acc. to sentence 1, HOB may require that the orderer exercises its rights resulting from the expiry of the time limit within two weeks after receipt of the request. Once the time limit has expired, the option shall pass to HOB.

5. If HOB renders troubleshooting or debugging services without being obliged to do so, it may claim remuneration for this according to its customary rates. This shall apply, in particular, if any defect cannot be demonstrated or attributed to HOB. Moreover, the additional expenditure incurred by HOB due to the orderer having failed to properly meet its obligations acc. to II. cl. 7 must likewise be remunerated.

6. If third parties allege claims preventing the orderer from exercising the usage authorizations contractually granted to it, the orderer shall immediately notify HOB in writing and in detail. It shall herewith authorize HOB to take legal action against third parties in and out of court on its own. If the orderer is sued, it shall coordinate with HOB and shall take legal actions, especially acknowledgments and settlements, only with its consent. HOB shall be obliged to ward the claims off at its own expense and to indemnify the orderer from any and all costs and damage associated with such warding off, unless they are based on the orderer’s non-compliant behavior.

7. The orderer may derive rights from any other breaches of duty by HOB only if it has given written notice of these to HOB and has granted HOB a grace period for remedy. This shall not apply where remedy is ruled out due to the quality of the breach of duty. Damages or compensation for futile expenses shall be governed by the limits defined in II. cl. 12.

8. The limitation period for all warranty claims shall be one year and shall start upon delivery or provisioning (and notification of the orderer thereof) of the agreement objects; the same time limit shall apply to any other claims of any nature whatsoever vis-à-vis HOB. Willful intent or gross negligence by HOB, fraudulent concealment of the defect, personal damage or legal defects w. t. m. of point (a) of Section 438 (1) no. 1 BGB and guarantees (Section 444 BGB), as well as claims according to the German Product Liability Act (Produkthaftungsgesetz) shall be subject to the statutory limitation periods.

13. Total Liability

1. HOB shall be liable without limitation pursuant to the legal provisions, where the customer claims damages based on willful intent or gross negligence, including willful intent or gross negligence by our representatives or auxiliary agents.

2. We shall be liable without limitation pursuant to the legal provisions in case of any culpable violation of life, body or health; this shall also apply to the mandatory liability pursuant to the German Product Liability Act.

3. Unless stipulated otherwise above, any liability shall be excluded.

4. Subject to clauses 1. and 2., the limitation period for claims for defects shall be twelve months from the passing of risk. Clauses 1. to 3. shall not affect the customer’s rights if HOB has fraudulently concealed a defect or assumed a guarantee of quality.

5. Any further liability shall be excluded, irrespective of the legal nature of the asserted claim. This shall apply, in particular, to claims for damages from culpa in contrahendo, due to any other breaches of duty or due to tortious claims for compensation for material damage acc. to Section 823 BGB. Such limitation shall also apply where the customer claims compensation for useless expenditures instead of compensation for the damage. Where liability for damages vis-à-vis HOB is excluded or limited, this shall also apply with regard to the personal liability for damages of the staff members of HOB, employees, coworkers, representatives and auxiliary agents.

6. HOB shall remain at liberty to argue contributory negligence.

14. End of the Right of Use to the Agreement Objects

In all cases of termination of its usage authorization (e.g. by rescission, subsequent delivery), the orderer shall immediately surrender all deliveries of the agreement objects and shall delete all copies, unless it is legally obligated to a longer retention period. II. cl. 2. (6) shall remain unaffected. It shall assure the fulfillment to HOB in writing.
 

II. Licensing Terms and Conditions for HOB Software upon Leasing

1. Scope of Applicability

The General Licensing Terms and Conditions for HOB Software upon Leasing shall apply to all software products provided by HOB for use in return for payment. By ordering software, installing, configurating or executing provided software, the orderer shall agree to the licensing terms and conditions below.

2. Agreement Objects

Upon conclusion of a software leasing agreement, servicing and overhaul (maintenance) shall be included as part of an overall package.

3. Payment Terms; Rent Increase; Default of Payment

1. The rent shall include the remuneration for surrender, use and maintenance of the software.

2. Vis-à-vis entrepreneurs w. t. m. of Section 310 (1) BGB, all prices shall be plus the respective applicable statutory VAT.

3. HOB shall be entitled the increase the rent for the first time upon expiry of twelve months from conclusion of the agreement by giving three months’ notice to the end of the month if and where the costs incurred by it for maintaining the leased property have increased accordingly. The orderer shall have the right to terminate the lease within a period of six weeks from receipt of the announcement of any rent increase.

4. HOB shall be entitled to terminate the contractual relationship extraordinarily without notice for good cause if the orderer is in default with paying the rent for two consecutive dates or a not insignificant part of the rent or is in default with paying the rent in a period covering more than two dates in an amount reaching the rent of two months.

4. Rights of Use to the Software, Use in the Network

1. HOB shall grant the orderer the simple, non-transferable right to use the surrendered software in the object code and the other software components for the designated contractual purpose in accordance with the provisions of this clause 4 below and of II. cl. 5, 6 and 7 below for the term of the lease agreement.

2. I. cl. 3. shall apply mutatis mutandis to the rights of use as part of the license type.

3. The orderer shall be entitled to use the software within the contractual arrangements. Any use of the software beyond the contractual terms shall not be permitted, unless HOB gives its explicit consent. HOB may condition its consent on the payment of an additional reasonable remuneration.

4. If the orderer is not able to use the software on one of the computers (client or server) temporarily, especially due to failures or repair or maintenance work, or only to a limited extent, it shall be entitled to transitionally use the software on a replacement computer. Where the computer is changed permanently, use of the software on the new computer shall be permitted; the software must be completely deleted from the computer used beforehand.

5. Reproduction of the Software

1. The orderer shall be entitled to reproduce the software and the documentation if and where this is necessary for the intended use.

2. The orderer shall be entitled to create software copies where this is necessary to ensure future use of the software and for backup and archiving purposes in line with the orderer’s operational requirements.

3. The orderer shall be obliged to notify HOB of the number, storage medium and place of retention of the created copies upon request.

4. The orderer’s authorization to reproduce the software codes on the conditions of Section 69d (1) UrhG shall remain unaffected.

5. Any other reproductions shall not be permitted.

6. Software Modifications; Decompilation

1. The orderer must not make any modifications to the software, unless these are necessary for the intended use. Modification shall be permitted if it is necessary to remedy a defect and the provider is in default with rectifying the defect, the provider unjustifiably declines remedy of the defect or is unable to immediately remedy the defect for any reasons attributable to its sphere of responsibility. Modification shall also be permitted if it is necessary to rectify compatibility issues in the interaction of the software with other software required by the orderer and the provider is unwilling or unable to remedy these against a reasonable remuneration customary in the market.

2. The orderer must not engage third parties to take measures acc. to para. 1 where these are competitors of the provider, unless it demonstrates that the risk of disclosing important trade or business secrets of the provider (especially software functions and design) is excluded.

3. Decompilation of the software shall be permitted only if the terms and conditions specified in Section 69e (1) UrhG are satisfied. The information obtained in this way must not be used or passed on contrary to the stipulations of Section 69e (2) UrhG.

4. Software labels, especially copyright notices, trademarks, serial numbers or the like, must not be removed, altered or obliterated.

7. Surrender of the Software to Third Parties

1. The orderer shall not be entitled to surrender the software to third parties, especially to alienate or lease it, without HOB’s permission.

2. If the orderer is an entrepreneur w. t. m. of Section 310 (1) BGB, dependent use by the orderer’s employees or other third parties subject to the orderer’s right of direction within the framework of the intended use shall be permitted.

8. Duties to Notify and Duties of Care of the Orderer

1. The orderer shall be obliged to immediately notify HOB of any defects in the software. In doing so, it shall take account of the notes of HOB on analyzing problems within the scope of what is reasonable for the orderer and shall forward to HOB any information required to remedy the defect.

2. The orderer shall notify HOB of any change of the computer on which the software is used.

3. The orderer must take suitable precautions to protect the software against any unauthorized access by third parties. It shall keep the original data carriers, the data carriers with the copies contractually created by it and the documentation in a secure location. If the orderer is an entrepreneur w. t. m. of Section 310(1) BGB, it shall point out to its employees and the other individuals entitled to dependently use the software acc. to II. cl. 7. (2) that any creation of copies beyond the contractual scope is not permitted.

9. Rights of the Orderer in Case of Defects

1. HOB shall be obliged to remedy defects in the surrendered software including the documentation.

2. At HOB’s option, defects shall be remedied by free subsequent improvement or replacement delivery.

3. Termination by the orderer acc. to Section 543 (2) sentence 1 no. 1 BGB for non-permission of use in conformity with the contract shall not be permitted before HOB has been given sufficient opportunity to remedy the defect and this has failed. Failure of the remedy of defect is not to be assumed before it is impossible, declined by HOB or unreasonably delayed, where reasonable doubts regarding the prospects exist or if this is unreasonable for the orderer for other reasons.

4. The orderer’s rights due to defects shall be excluded where it makes or causes to make alterations to the leased property without HOB’s consent, unless the orderer demonstrates that the alterations will not have any impact on the analysis and remedy of the defects that are unreasonable for HOB. The orderer’s rights due to defects shall remain unaffected where the orderer is entitled to make alterations, especially as part of exercising the right to rectify the defect itself acc. to Section 536a (2) BGB and this had been professionally executed and comprehensively documented.

10. Verification Right of HOB

HOB shall basically have the right to verify whether the number of used licenses utilized by an orderer / a customer corresponds to the number of licenses purchased. If terminals or servers with installed and started HOB software are connected to the Internet, data may be transmitted to HOB computer systems for license reconciliation. Such transmission does not include any personal information. Prior to transmission, any data that may allow conclusions to a user shall be anonymized such that it will not be possible to restore personal information of a data subject. Such data shall be transferred in encrypted form and shall also be retained on HOB computer systems in encrypted form.

11. Liability Limitations

1. Within the framework of the legal provisions, HOB shall be liable without limitation for damage

  1. from any violation of life, body or health based on a breach of duty by willful intent or negligence or any other willful or negligent misconduct of HOB or of any of its legal representatives or auxiliary agents;
  2. caused by the absence or loss of an assured quality or non-compliance with a guarantee;
  3. based on a breach of duty by willful intent or gross negligence or any other willful or grossly negligent misconduct of HOB or of any of its legal representatives or auxiliary agents.
     
2. HOB shall be liable, with limitation to compensation for the contract-typical foreseeable damage, for any damage based on a slightly negligent breach of collateral duties by HOB or any of its legal representatives or auxiliary agents. Essential obligations shall be any obligations whose fulfillment enable proper implementation of the agreement in the first place and on compliance with which the orderer may rely.

3. For other cases of slightly negligent conduct, HOB shall be liable with limitation to six times the monthly rent per claim.

4. The strict liability of HOB acc. to Section 536a (1) 1st alternative BGB for defects already existing upon conclusion of the agreement shall be excluded.

5. For loss of data caused by slight negligence, HOB shall be liable only for the damage that would have been caused even if the orderer had made proper and regular backup appropriate to the significance of the data; such limitation shall not apply if backup had been impeded or impossible for reasons attributable to HOB.

6. The provisions above shall also apply, mutatis mutandis, to the liability of HOB regarding compensation for futile expenses.

7. Liability acc. to the German Product Liability Act shall remain unaffected.

12. Extension and Termination of the Lease

1. Unless the lease is terminated by either party giving one month’s notice to the respective end of the term, it shall extend automatically by a further twelve-month period.

2. The right of either party to terminate extraordinarily for good cause, especially acc. to II. cl. 3 (4), shall remain unaffected.

3. Any termination must be given in writing to become effective.

13. End of the Right of Use to the Agreement Objects

1. Upon termination of the contractual relationship, the orderer must return the program to HOB on the original data carriers, including manuals and documentation. Any copies created of the program surrendered by HOB must be permanently deleted in full.

2. Instead of return, HOB may also demand deletion of the surrendered program and destruction of the surrendered manuals and documentation.

3. Any use of the software following termination of the contractual relationship shall not be permitted.
 

III. Licensing Terms and Conditions for HOB Software upon Free Surrender

1. Scope of Applicability, General

1. The licensing terms and conditions below shall apply to all agreements between HOB and the respective users where these relate to the free surrender of the freeware versions of the HOB software including the user documentation and the other accompanying materials ("freeware").

2. The terms and conditions of use shall apply mutatis mutandis to the surrender of new program versions of the freeware (e.g. patches, bug fixes, updates, upgrades, etc.) and to the user documentation provided on the HOB website for downloading.

3. The terms and conditions of use shall apply exclusively.

4. Individual arrangements made in the individual case with the user (including side agreements, amendments and modifications) shall take precedence over these terms and conditions of use in any case. The content of such arrangements shall be governed by a written agreement or by the written confirmation of HOB.

2. Surrender of the Freeware, Rights of Use

1. The freeware and the related user documentation shall be surrendered by remote data transmission ("download").

2. All rights to the software shall be exclusively due to HOB and its respective licensors. The software shall be protected by the copyright and international conventions on the protection of intellectual property.

3. HOB shall grant the user the non-exclusive, temporally unlimited right to use the freeware delivered in the object code to the extent defined in these terms and conditions of use. This shall include the right to reproduce the freeware on hardware (computer, smartphone, etc.), where the respective reproduction is necessary for the aforementioned purpose. Necessary reproductions shall include the installation of the freeware on the mass storage device of the hardware used and the loading of the freeware into the RAM. Apart from that, the user may use the freeware only to the extent contractually defined.

4. The user may use the freeware on any suitable hardware available to it.

5. Use of the freeware shall be limited to its use for private purposes. Any use of the freeware for commercial purposes shall not be permitted.

6. The user may create a copy of the freeware for backup purposes. Such backup copy must be marked as such. The backup copies must be kept at a location secured against unauthorized access by third parties. The user shall be obliged to prevent any unauthorized access by third parties to the freeware by suitable precautions.

7. The user may implement modifications of the freeware, especially alterations and add-ons, only where this is explicitly permitted by mandatory laws or has been contractually agreed. HOB points out that even minor alterations may result in major, unforeseeable malfunctions in the running of the freeware.

8. The user must not redevelop, translate and remove program parts from the freeware. It shall neither decompile, disassemble or reverse engineer the freeware nor otherwise attempt to derive the source code. Where the user may reverse engineer or decompile the freeware based on mandatory laws to achieve full functionality or interoperability with other software programs, the user must inform HOB of the nature and scope of the intended action in advance. Decompilation shall be permitted only if the user demonstrates a legitimate, justified interest in performing such actions.

9. Copyright notices, serial numbers, version numbers, trademarks or other identifiers of the freeware must not be altered or removed in any case. The same shall apply to suppressing the screen display of corresponding features.

3. Liability and Warranty

1. HOB shall be liable only for willful intent and gross negligence. Any further claims of the orderer for damages and reimbursement of expenses for any legal reason whatsoever, especially due to any breach of duties from the contractual obligation and in tort, shall be excluded.

2. HOB shall be liable for material and legal defects in the freeware only if HOB has fraudulently concealed a material and/or legal defect in the freeware. Any further liability or warranty for the freedom of the freeware from material and legal defects shall be excluded.

3. HOB shall be liable for any loss of data only where the user backups such data at intervals adequate for the application, at least once a day, in a machine-readable format, ensuring that such data can be recovered with reasonable expenditure. If the user does not make any such data backups, HOB’s liability shall be limited to the expenditure that would have been required to recover the data from proper backup and to the damage that would have occurred by the loss of current data, which would have been lost even with daily backup.

4. Before using the freeware, the user shall be obliged in any case to test it for its basic functionalities using test data.
 

IV. Final Provisions

1. Secrecy and Data Protection

1. The orderer/user undertakes and shall assure HOB that it will treat confidentially for an indefinite period of time and only use for the implementation of the agreement any and all confidential information and trade secrets of the respective other contracting partner it has obtained as part of the initiation and implementation of an agreement ("trade secrets"). HOB’s trade secrets shall also include the agreement objects and the services rendered.

2. The orderer shall make agreement objects accessible to employees and other third parties only where this is necessary to exercise the usage authorizations granted to it. It shall instruct all individuals, to whom it grants access to agreement objects, about the rights of HOB to the agreement objects and the obligation to keep them secret and shall obligate such individuals in writing to keep the information secret and to use it only to the extent pursuant to cl. (1), unless the relevant individuals are obligated to maintain secrecy at least to the extent above for any other legal reasons whatsoever.

3. The obligations above shall not apply to any trade secrets that (i) had already been in the public domain or known to the other contracting party at the time of its transfer by the contracting partner; (ii) had become available in the public domain following its transfer by the contracting partner through no fault of the other contracting party’s own; (iii) had been made unlawfully accessible by a third party to the other contracting party following its transmission by the contracting partner without any limitation in terms of secrecy or utilization; (iv) had been autonomously developed by either contracting party without using the contracting partner’s trade secrets; (v) must be published according to a law, official decree or judicial decision, provided the disclosing party immediately informs the contracting partner and supports it in warding off such decrees or decisions; or (vi) where the contracting partner is authorized to use or pass the trade secrets on based on mandatory legal provisions or on account hereof.

4. HOB shall comply with the rules of data protection, especially where HOB is granted access to the company or to hardware and software of the orderer. HOB shall ensure that its auxiliary agents, too, adhere to these provisions; in particular, HOB shall obligate them to observe data secrecy before they start their activity. HOB shall not intend any processing or use of personal data on the orderer’s behalf. Personal data shall rather be transferred only in exceptional cases as a side effect of HOB’s contractual services. HOB shall treat the personal data in line with the provisions under data protection law.

2. Applicable Law, Place of Jurisdiction; Written Form Clause; Severability Clause

1. All disputes shall be exclusively governed by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

2. The exclusive place of jurisdiction for all disputes at HOB shall be Nuremberg, where the orderer (i) is a merchant within the meaning of the German Commercial Code, (ii) the customer is a legal entity under public law or a special fund under public law or (iii) the user does not have a place of general jurisdiction in the Federal Republic of Germany.

3. Modifications or amendments hereto, the assurance of features and guarantees must always be made in writing to become effective.

4. If any provision hereof is or becomes ineffective, contains an impermissibly defined deadline or a loophole, this shall not affect the legal effectiveness of the remaining provisions.

 
As of August 2018

 

 

 

License Agreement before 08/01/2018
 

I. Scope of this Agreement

The terms and conditions in this agreement apply to all software sold or provided for use by HOB and only to merchant as stated in sec. 310 para (1) BGB. By ordering the software, installing, configuring or executing the provided software, Customer accepts the terms below.
 

II. Terms of license for purchased HOB software

1. Object of this agreement

1. The source code is not within the scope of this agreement.

2. The software provided by HOB is in accordance with the product description with the terms currently valid before shipping. Before the conclusion of the sales agreement, Customer has been provided with the product description that has been described in the application documentation as well. HOB is not liable for conditions beyond this product description. There is no such liability for product descriptions based on public announcements or advertisements from HOB itself, of its employees or sales partners unless separately agreed in writing.

3. Guarantees provided by HOB’s employees are ineffective as long as they are not agreed to in writing by the executive board of HOB.

2. Purpose of Use

1. HOB hereby grants Customer the non-exclusive, non-transferable right for this object of agreement. This right is limited to the country parties have agreed over before. Without prior written approval the use right is limited to the country in which Customer’s company has its registered office.

2. Customer is allowed to use this software only for purposes of processing internal transactions and transactions with associated companies under the terms of sec. 15 AktG. (i) Data processing center services for third parties, or (ii) providing of the software on a temporary basis (e.g., as an application service providing) for companies that are not associated companies or (iii) the use of the software for purposes of training for persons who are not Customer’s employees or its associated companies is not permitted unless previously approved in writing by HOB. Commercial subletting is prohibited.

3. The right to copy the software granted to Customer is limited to fulfill the purpose of use only. Customer is allowed to make a copy of the software for security backup purposes. Security backup copies on data carriers shall be marked as such and shall be marked with the copyright notice. In case of online purchase, Customer is allowed to make a copy of the software on a data carrier for purposes of passing on. The property right of HOB on the online copy is identical with the property right on purchase via data carriers.

4. Customer’s right of change, making enhancements and other remodeling is strictly limited to those granted under the terms of sec. 69 c UrhG (German Copyright Law). Before Customer or a third party attempts to remedy any defects, Customer shall allow HOB two attempts to remedy the defect. In this case, no more extensive rights to use and exploit the software, beyond those granted in this agreement, are granted to Customer.

5. Customer is only granted the right to decompile the software within the limits of § 69e UrhG and only in the event that HOB, after receiving a written request, has not provided the necessary data and/or information required to establish interoperability with other hard- and software.

6. Within the scope of improvement or maintenance amendments (e.g., patches, amendments of manuals) or a new version of the contractual objects that replaces the previous version of the software (e.g., updates, upgrades) provided by HOB, these are subjected to this agreement. If HOB makes available a new edition of the contractual object, the rights of Customer regarding the previously provided contractual object expire, even without HOB making an explicit demand of return. However, HOB grants Customer a three month transition period, in which both versions of the contractual object may be used in parallel.

7. Multiplication or revision of the application documentation, with the exception of sect. (3), (4), is not permitted.

3. Types of licenses

1. If you have acquired a "user license," the license grants the right for one specific user per user license to use the HOB software. The maximum numbers of users of the software may not exceed the numbers of users specified by the software license purchased.

2. If you have purchased a "client license," the license grants the right to use the HOB software on one specific workstation per client license, regardless of the number of users at this workstation. The software may only be used, at maximum, on the number of workstations for which client licenses were purchased.

3. If you have purchased a "webuser license," the license grants the right to use the HOB software simultaneously by anonymous or authenticated web accesses that may not exceed the number of webuser licenses purchased. One webuser license corresponds to an access by an anonymous or authenticated user.

4. If you have purchased "Concurrent User Licenses," the number of users who can simultaneously use the HOB software is limited to the number of users for which "Concurrent User licenses" were purchased, regardless of the number of potentially possible users.

5. The use of the HOB software with a Server License on one or several servers for multiple and/or for simultaneous use is only permissible to the same extent as user or client licenses were purchased.

6. If you have purchased a Server License, which is limited to the maximum-possible performance capacity of the server or servers for which the license was purchased, the HOB software may only be used over the server or servers having no more than the contractually stipulated performance capacity, and only within the scope for which usage rights were purchased. If several virtual machines are used on a server, each virtual machine is considered its own server. Thus, for each virtual machine a server license must be purchased. If changes made to servers result in increased performance capacity, user rights adapted to the server's higher capacity must be purchased.

4. Terms of payment, use beyond duty

1. The purchase price shall be due and payable upon issuance of the invoice. Invoices shall be issued when the contractual object is ready to dispatch or ready for download and Customer has been notified thereof.

2. All prices are subject to value added tax or other taxes as dictated by governing law.

3. If the software is provided as a download via internet, HOB carries the costs for the provision of the software in the network while Customer carries the costs of the download.

4. The use of this software that exceeds the herein granted rights is not allowed unless previously approved in writing by HOB. In the event of excessive use without consent, HOB may invoice the amount payable for such excess use in accordance with HOB’s price list in effect at such time. The Customer has the right to prove that the damage was lower. Further extra-contractual damage compensation claims remain untouched.

5. Protection of software and application documentation

1. Insofar as nothing has been specifically agreed to the contrary with Customer, all copyright, trademark and other protection rights to software products as well as copies of the software made by Customer, belong to HOB. This also applies to editing on the contractual objects made by HOB. Customer’s rights of ownership over all data carriers containing such copies remain unaffected by this.

2. Customer is obligated to keep all contractual objects he has received carefully in order to prevent any improper use. The contractual objects (edited or unedited) may not be made available to third parties unless previously approved in writing by HOB. Customer’s employees and other persons who use the software under the terms of contract within the scope of Customer’s use shall not be deemed to be third parties. Sec. II 6 is not affected.

3. Customer shall not alter or remove copyright notices, labels and/or reference numbers of HOB. If Customer changes or modifies the contractual objects, such labels and notices of HOB shall be incorporated into the modified version of the contractual object.

4. Customer shall keep records about all contractually agreed upon copies of the contractual objects on data carriers and on their locations, which HOB may inspect upon request.

5. If Customer hands over data carriers, memory storage devices or other hardware on which contractual subject matters are stored (completely or partially, unamended or amended) to third parties and no transfer admissible according to these conditions applies, or if Customer renounces direct possession thereof, Customer is responsible for the complete and permanent deletion of the previously-stored contractual objects.

6. Transfer of the software

1. Customer is only authorized to leave the contractual objects to a third party in their entirety, and by completely and irrevocably abandoning Customer’s own use of the contractual objects. The temporary or partial assignment of use for payment of the contractual objects to third parties is prohibited regardless whether the contractual objects are physically or not physically transferred. The same is true for providing the contractual objects without charge.

2. Transfer of the contractual objects needs the written consent of HOB. Consent is given if Customer ensures HOB in writing that Customer transferred all original copies of the contractual subject matters to the third party and deleted all copies created by Customer, and that the third party declares their agreement of the here stipulated conditions of use and transfer to HOB in writing.

7. Cooperation and information obligations of Customer

1. Customer has learned about the major function characteristics of the software and assumes the risk as to whether they meet Customer’s desires and needs. In any case of doubt, Customer has obtained advice prior to the conclusion of the contract from a HOB employee or from knowledgeable third parties.

2. The installation of a fully functional hardware and software environment (that is also sufficiently equipped when taking into account the additional load due to the contractual objects) shall be the exclusive responsibility of Customer.

3. Customer shall thoroughly test whether the software is free of errors and usable under the existing hardware and software configuration before its implementation. The same is true for software Customer has received within the scope of a guarantee and for purposes of subscription or maintenance.

4. Customer shall observe the instructions for the installation and implementation of the software supplied by HOB. . Customer will regularly obtain up-to-date information through www.hobsoft.com and take this into account in the operation of the software.

5. Insofar as it is incumbent upon HOB to provide more services than the supply of the contractual objects, Customer is under the obligation to cooperate -free of charge-, in that Customer, for example, provides a place to work, hard- and software, data and telecommunication devices and employees.

6. Customer allows HOB and its employees free access to the software products to identify and remedy defects either directly or via remote access, as the Customer may choose. HOB shall be authorized to verify whether the use of the contractual objects is in compliance with the general terms and conditions of this Software License Agreement. For this purpose, HOB shall be allowed to ask for information, especially about the period and scope of usage of the contractual objects, as well as to audit Customer’s books and records and hard- and software. For this purpose, Customer will provide HOB access to Customer’s place of business during Customer’s normal business hours.

7. Customer shall be responsible for taking appropriate precautions for the event that the software product or parts thereof do not work correctly (e.g., backing up data on a daily basis, analyzing disturbances, periodically assessing the data processing results).

8. HOB may act on the assumption that all data of the Customer, with which HOB can come into contact, are backed up, unless a prior advice of the Customer expressly states otherwise.

9. Customer shall bear all expenses and losses due to a breach of these obligations by Customer.

8. Period of delivery and performance; force majeure

1. Unless otherwise specified, the software will be delivered in the current version at the date of delivery.

2. HOB performs the delivery in that HOB either gives Customer one (1) copy of the software on a machine-readable data carrier with a copy of the application documentation, or makes the software available to Customer for download from a network and informs Customer thereof, as well as providing Customer a copy of the software documentation.

3. For compliance of delivery dates and transfer of risks the date of the transfer to the haulage contractor is applicable, for electronic delivery the time of making the software available and informing Customer thereof. Software or application documentation which are damaged or demolished after the transfer of risks will be replaced by HOB at an additional charge for delivery and copying.

4. As long as HOB is impaired in performing services, due to HOB having to wait for the cooperation of or information from Customer, or due to strikes or lockouts originating from third parties or in the operation of HOB itself (in this last case, only if the labor dispute is lawful), and is waiting for intervention by the proper authorities, legal prohibitions or other circumstances beyond HOB’s control ("force majeure"), delivery and performance periods are considered extended for the duration of the impairment ("downtime") and there is no breach of duty. HOB shall inform Customer of such impairments and their expected duration without delay. Should the force majeure continue for longer than three (3) months without interruption, both parties shall be released from their contractual obligations.

9. Obligation for inspection and reporting

Customer's compliance with Customer’s obligation of inspection, notification and rejection in accordance with section 377 of the German commercial code (HGB) shall form the prerequisite for our liability for defects.

10. Right of examination

In case of justified suspicion for illicit or careless use by Customer, HOB retains the right to examine whether the numbers of licenses in use comply with the numbers of licenses purchased. Customer shall be given prior notice, and a reasonable deadline to agree to the examination will be given. In case of unfounded refusal, HOB has the right to terminate the contract without notice. Customer is not allowed to refuse his consent without due course. If end devices or servers with HOB software are connected to the Internet, data pertaining to license compliance checks may be transmitted to the HOB computer systems.

11. Defects in case and titles; other impairments of performance; statutory limitation

1. HOB guarantees for the contractual conditions of our products according to the legal requirements of the German sales law and guarantees that the software is free from third party rights which prevent the use in accordance with the contract. The guarantee that the software is free from third party rights shall apply only to the previously agreed country of destination where the software is intended to be used. Without explicit agreement, the legal requirements for guarantee of the country apply in which Customer has its registered office.

2. If defects are verified, HOB fulfills the warranty obligation by, as HOB chooses, either supplying Customer with new, defect-free goods (replacement) or eliminating the defect (improvement). If HOB shows reasonable and effective possibilities to Customer as to how to avoid the effects of the defect, this also constitutes a remedy. If third-party rights are infringed, HOB can, at its option, remedy the defect by acquiring a right of use for Customer sufficient for the purposes of this agreement or by changing the infringing software without any effects on its functions or with effects acceptable to the Customer or by replacing the infringing software without any effects on its function or with effects acceptable to Customer by a software which, if used in accordance with the agreement, does not infringe any property rights, or by delivering a new software version which, if used in accordance with the agreement, does not infringe any third-party property rights. HOB has the right to make subsequent performance contingent upon payment of at least a reasonable part of the remuneration by the Customer.

3. Customer is obliged to take over a new software version if the contractually agreed upon functions are preserved and there are no major disadvantages for the Customer.

4. Should the subsequent improvement and/or product replacement fail twice, the Customer shall have the right to set a reasonable time limit for the removal of defects. Customer shall point out in writing that, at a third failed attempt, Customer reserves the right to withdraw from the contract or claim damages. If the correction of fault is not successful within the extended time limit allotted by the Customer in writing, the Customer shall be entitled to either withdraw from the contract or request a reasonable reduction of the price, but only if the fault is not insignificant. For compensation claims and claims for futile expenditure due to defects, please see sec. II No. 12. If the fault is not remedied within the second time limit, HOB is allowed to the Customer to exercise rights resulting therefrom within two weeks of notice. If Customer does not exercise Customers option within the stated time limit, the option of choice passes to HOB.

5. If HOB performed services for troubleshooting after notice of a defect without being obliged to, Customer shall bear the resulting costs. This applies in particular if there are no material defects found or material defects are found for which HOB is not held to be responsible. If compulsory cooperation as stated in sec. II No. 7 is violated, the Customer shall compensate HOB separately for the unnecessary extra expenditure.

6. If third parties assert claims preventing Customer from exercising the rights of use granted hereby, Customer shall notify HOB without undue delay, in writing and fully. If a third party claims the infringement of protective rights against Customer for use of the program, Customer will immediately inform HOB and will authorize HOB to conduct the dispute with the third party in court and out of court on their own. If HOB takes up the dispute, Customer must not accept the claims of the third party without consent of HOB. HOB defends against the third party’s claims at its own expense and releases Customer from all costs interconnected to defending against these claims, unless they result from obligation violations of Customer.

7. Claims and rights resulting from other breaches of duty may be demanded by Customer only if HOB been notified in writing and been given a deadline to take remedial action. This shall not apply if a remedial action is not possible because of the nature of the breach. The regulations of sec. II no. 12 shall apply for claim compensation or claim for reimbursement of lost expenses.

8. Liability claims by the Customer are subject to a limitation period of 12 months, beginning with the time of delivery of the object or prior notification of the Customer about its provision. The same is true for other claims, irrespective of their nature, against HOB. This does not apply to claims based on a culpable damage to body, life and health as well as to claims for damages based on intent or gross negligence, in the cases of sec. 444 BGB (fraudulent concealment of a defect and assumption of a liability) and guarantees (sec. 444 BGB); such claims are subject to the statutory limitation periods, as well as claims under the German Product Liability Act.

12. Liability

1. In all cases of contractual and non-contractual liability, HOB pays damages only within the following limits:

  1. Liability for intent and warranty is unrestricted.
  2. In case of gross negligence HOB only assumes liability to the amount of the typical damage foreseeable at the conclusion of the contract.
  3. Given negligent violation of such a significant obligation that the contractual purpose’s achievement is endangered (cardinal obligation), HOB assumes liability for the typical damage foreseeable at the time of the conclusion of the contract.
  4. In addition: If HOB is insured against the damages which occurred, liability is restricted to the amount of insurance coverage and temporally subject to the insurance payment.

2. The limitation on liability shall not cover injuries to life, limb or health or liability according to the German product liability act.

3. Exception to contributory negligence remains open for HOB.

4. The limitation period is in accordance with sec. II. No. 11 (8), provided that claims according to sec. II (1) a) und No. (2) comply with the legal liabil ity restrictions. The limitations period begins with the time defined in sec. 199 para. 1 BGB. Limitation shall enter into effect at the latest upon expiry of the maximum period defined under sec. 199 subsecs. 3 and 4 para BGB.

13. End of Customer’s authorization to use

The limitation period is in accordance with sec. II. No. 11 (8), provided that claims according to sec. II (1) a) und No. (2) comply with the legal liability restrictions. The limitations period begins with the time defined in sec. 199 para. 1 BGB. Limitation shall enter into effect at the latest upon expiry of the maximum period defined under sec. 199 subsecs. 3 and 4 para BGB.
 

III. Terms of license for rented HOB software

1. Object of this agreement

With the conclusion of a software rental agreement, maintenance is included in this package.

2. Terms of payment; increase of fee; delayed payment

1. The fee contains the price for the licensing and provision of the software, as well as maintenance.

2. All prices are subject to value added tax or other taxes as dictated by governing law.

3. HOB is entitled to increase the rent right after a period of 12 months after the conclusion of this contract. HOB may do so as after issuing a written notice at least three months prior to that date, if HOB’s costs for maintaining the rental object have increased.

4. HOB is entitled to immediately and exceptionally terminate the contractual relation for an important reason, if Customer delays payment of rent, or a not inconsiderable portion of the rent, for two consecutive payment deadlines, or within a period of time covering two payment deadlines, Customer is in default of payment of an amount equaling the rent of two months.

3. Purpose of Use

1. HOB hereby grants Customer the non-exclusive, non-transferable right to use the contractual object for purposes of this agreement in accordance with the herein stated regulations of No. 3 as well as the following regulations of sec. III Nos. 4, 5, and 6 limited for the duration of the rental agreement.

2. For the right of use within the scope of the license types, sec. II N.3 shall apply.

3. Customer is granted the right to use the software within the contractual purposes. The use of this software that exceeds the herein granted rights is not allowed unless previously approved in writing by HOB. HOB may agree to an excessive use against payment of a corresponding additional fee.

4. If Customer is temporarily not able to use the software on one of the computers (client or server) because of interferences or maintenance work, Customer is allowed to use the software on replacement computers on a temporary basis. In case of a permanent change the use of the software on the new computers is allowed. In this case, the software on the former computers must be deleted.

4. Right to copy the software

1. The right to copy the software and its documentation granted to Customer is limited to fulfill the purpose of use only.

2. The right to copy the software is granted to Customer as far as securing the software for further use and for purposes of backing up and archiving data due to Customer’s operational requirements is necessary.

3. Customer shall inform HOB upon request about all contractually agreed copies of the contractual objects on data carriers, numbers and on their locations.

4. The rights of the Customer to copy the license codes according to sec. 69 d para 1 UrhG remains unaffected.

5. Other reproductions are not permitted.

5. Reworking of the software, decompilation

1. Customer is not allowed to revise the software unless it is necessary to fulfill the contractual purpose. For the purpose of removing defects, Customer shall be entitled to modify the software only if HOB is in default with the remedy of the defect, if HOB has unreasonably refused to rectify the defects or if HOB is for other reasons unable to remedy the defect despite HOB’s responsibility. A revision is also allowed if it is necessary to fix Customer’s compatibility problems with other software and HOB is not able or willing to restore the fault at a reasonable market rate.

2. Customer is not allowed to assign third parties to take actions according to sec. 1 who are HOB’s direct competitors, unless Customer proves that the danger of a dissemination of HOB’s operational and business secrets, especially function and design of the software is excluded.

3. Decompilation of the software shall be permitted only to the extent provided for under sec. 69e UrhG.

4. Customer shall not alter or remove copyright notices, labels and/or reference numbers of HOB.

6. Transfer of software to third parties

1. Without the consent of HOB, Customer is not allowed to hand over the software to third parties, especially to resell or rent.

2. The dependent use by Customer’s employees or other third parties under the authority of Customer who need access thereto to execute the service tasks allowed to them is allowed.

7. Duties of disclosure and exercise of proper care

1. The Customer's compliance with his obligation of inspection, notification and rejection in accordance with section 377 of the German commercial code (HGB) shall form the prerequisite for our liability for defects. Customer will take all information from HOB for trouble-shooting reasonably into account and will forward all information necessary to remedy the defect.

2. Customer shall inform HOB about every replacement of individual computers the software runs on.

3. By using suitable precautions, Customer is obliged to prevent unauthorized third parties from gaining access to the program. Customer shall keep the original data carriers and data carriers on which copies have been made in accordance with this contract, as well as the documentation, in a secure place. Customer shall inform Customer’s employees and other persons according to sec. III. No. 6 (2) that copies exceeding the contractual purpose are not allowed.

8. Claims for defects

1. HOB is obliged to remedy defects in the provided software and the documentation.

2. Remediation of defects takes place at HOB’s choice through either a free repair or through a replacement.

3. Customer is only entitled to a termination of the agreement according to sec. 543 para 2 sent.1 BGB due to the failure to grant use in accordance with the agreement in the event that HOB has been given sufficient opportunity to rectify the defect and such attempt has failed. The rectification or replacement shall only be considered as failed if HOB was given reasonable time and opportunity to attempt the rectification or replacement and the desired results were not achieved, in the event that the rectification or replacement is impossible, in cases where HOB has denied or unreasonably delayed the rectification or replacement, in the event that there are reasonable doubts regarding the chances of success, and in the event of unacceptability arising out of other reasons.

4. Customer’s rights are not applicable in case of changes to the rental object made without prior consent of HOB, unless Customer proves that the changes made have no unreasonable consequences on analysis and troubleshooting. The further rights of the Customer shall remain unaffected if Customer makes changes in accordance with the right to rectify the defect himself as stated in sec. 536 a para 2 BGB and those changes are made appropriately and comprehensibly documented.

9. Right of examination

In case of justified suspicion of illicit or careless use by Customer, HOB retains the right to examine whether the number of licenses in use complies with the number of licenses rented. Customer shall be given prior notice, setting a reasonable deadline to agree to the examination. In case of unfounded refusal, HOB has the right to terminate the contract without notice. Customer is not allowed to refuse his consent without due course. If end devices or servers with HOB software are connected to the Internet, data pertaining to license compliance checks may be transmitted to the HOB computer systems.

10. Limitation of liability

1. HOB is liable without limitation for damages:

  1. to life, body and health caused by an intentional or negligent breach of duty and accordingly an intentional or negligent behavior of HOB, his agents or vicarious agents,
  2. caused by the lack of warranted characteristics or
  3. caused by an intentional or grossly negligent breach of duty and accordingly an intentional or grossly negligent behavior of HOB, his employees or vicarious agents.

2. Limited to compensation for damages foreseeable on conclusion of the contract and typical of this contract, HOB shall be liable for such loss or damages due to the minor infringement of cardinal obligations by HOB, one of our legal representatives or vicarious agents. Material obligations are only such obligations, the fulfillment of which is necessary to allow the proper execution of the agreement in the first place and where Customer may rely on the compliance with these obligations.

3. For other cases of slight negligent behavior, HOB is liable to the amount of the six-fold monthly rate per event of a claim.

4. Strict liability on the part of HOB because of defects that exist at the time of the contract conclusion is excluded

5. HOB’s liability for data loss caused by simple negligence is limited to those damages that would have also occurred in the event the data were regularly and correctly backed-up by Customer, corresponding to their importance. This limitation does not apply if a correct data back-up is not possible due to reasons for which HOB is responsible.

6. The above provisions shall also apply analogously to the liability of HOB with respect to compensation for wasted expenditure.

7. The liability under the German Product Liability Act shall remain unaffected.

11. Renewal and termination of the rental agreement

1. On termination of the contract Customer has to hand over the program on the original data carriers, including all manuals and documentation to HOB. If copies of the provided HOB software were made, they have to be deleted completely and irrevocably.

2. Instead of a hand over, HOB may demand the deletion of the program and the destruction of the manuals and documentation.

3. Any further use of the software after the termination of the contract is prohibited.

12. Ende des Nutzungsrechts an den Vertragsgegenständen

1. Bei Beendigung des Vertragsverhältnisses hat der Besteller HOB das Programm auf den Originaldatenträgern einschließlich Handbüchern und Dokumentation zurückzugeben. Gegebenenfalls erstellte Kopien des von HOB überlassenen Programms sind vollständig und endgültig zu löschen.

2. HOB kann statt der Rückgabe auch die Löschung des überlassenen Programms sowie die Vernichtung der überlassenen Handbücher und Dokumentation verlangen.

3. Jede Nutzung der Software nach Beendigung des Vertragsverhältnisses ist unzulässig.
 

IV. Final provisions

1. Confidentiality and data protection

1. HOB and Customer commit to treat all subject matters (e.g., software, documents, information), which they get from or learn of by the respective other contracting partner before or during execution of the contract, as confidential and for an unlimited time. Classified as company secrets are also contractual objects and services provided.

2. The Customer only makes the contract subject matters accessible to th ose employees and to other third parties who need access thereto to execute the service tasks allowed to them. He warns these persons of the confidentiality in writing of the subject matters in accordance with No.1 unless those persons are not obliged to handle this information as classified due to other legal reasons.

3. The obligations to maintain confidentiality do not apply to Contract Information (i) available to the general public at the time of disclosure or which became available to the general public thereafter, (ii) disclosed to Customer by a third party without any obligation of confidentiality, (iii) already in the possession of or known to one of the parties at the time of disclosure, (iv) developed independently of the Confidential Information by one of the parties, or (v) if by virtue of the law, an ordinance, collective agreement confidential information has to be disclosed and the publishing party informs the other party without delay and supports them in an appropriate scale with the fending off of the asserted claims or decision of courts. (vi) if and to the extent that one of the parties or one of parties’ employees is obliged under an act or by decision of a court or administrative authority to disclose Confidential Information and/or to provide information about it.

4. HOB will comply with all applicable laws and regulations relating to the protection of data, especially in the event Customer provides access to its place of business or to its hard- and software to HOB. HOB will ensure that its employees and/or agents having access to any personal data are bound by these terms as well. HOB has no intention to process or use personal data on behalf of the Customer. A transfer of personal data only occurs in exceptional cases as a result of the contractual obligations of HOB. Personal data will be treated in accordance with all applicable laws and regulations relating to the protection of data. Any personal data included or related to the contract shall be processed pursuant to the regulations of the German data protection law.

2. Applicable law, place of jurisdiction, form clause, protective clause

1. The pur chasing terms and legal relationship between the parties relating to our orders shall be governed by the law of the Federal Republic of Germany.

2. The sole place of jurisdiction for all disputes arising from and in connection with this contract with HOB is HOB’s registered office.

3. Modifications and amendments, the assurance of certain properties as well as guarantees shall require the written form.

4. Should individual terms of this Agreement be ineffective or lose their effectiveness due to later circumstances, or should a loophole emerge in this Agreement, the legal effectiveness of the other provisions is not affected.
 

As of April 2012