W.EASY TERMS OF SOFTWARE LICENCE

Preamble

On the basis of this Agreement, WABCOWÜRTH Workshop Service GmbH (hereinafter referred to as “WWWS”) shall grant the Customer (hereinafter also referred to jointly as the “contractual parties” or individually as the “contractual party”) use of its software products described in I. of the quotation within the framework of a licence purchase; it shall grant the Customer the latest version of the respective product. In addition, if he has chosen the respective additional options, WWWS, based on this Agreement, shall grant the Customer use of its software products, described under II. of the quotation, “technical data package” and/or “flat rate units” for a limited period of time within the framework of a licence lease; it shall grant the Customer the latest version of the respective product. Furthermore, various maintenance services and software services in accordance with III. of the quotation are offered to the Customer. WWWS purchase and rental software, including the database of WWWS, is usually pre-installed on the hardware purchased together with the software licence. The licence terms are subdivided into §§ 1-4, which is individually defined for each software category in accordance with I., II. and III. of the quotation, and §§ 5-9, which apply to all software categories in accordance with I., II. and III. of the quotation.

The following terms apply to the purchase of a version of the software product W.EASY in accordance with I. of the quotation:

§ 1 Subject of the contract and granting of rights
(1) The subject matter of this Agreement is the indefinite surrender of the software in the object code described in detail in the quotation text under I., including the corresponding user documentation (singly or jointly “purchase software” with regard to §§ 1-4 or “contract software” with regard to §§ 5-9) along with the granting of the rights mentioned below required for their contractual use.
(2) For the purchase software, the Customer shall be granted the non-exclusive, indefinite and non-sublicensable right to use the purchase software. The purchase software may only be used simultaneously by the maximum number of natural persons corresponding to the number of licences acquired by the Customer. The permissible use comprises the installation of the purchase software, the loading in the main memory and the intended use of the software by the Customer. Incidentally, the type and scope of use are determined in accordance with the quotation. Under no circumstances shall the Customer be entitled to lease the purchase software acquired or to otherwise sub-licence it, reproduce it publicly or make it available to the public or to make it or any backup that may have been made available to third parties either free of charge or against payment, e.g. by way of application service providing or as “software as a service.”
(3) Should the Customer use the purchase software to an extent that goes beyond the acquired rights of use either qualitatively (with regard to the type of authorised use) or quantitatively (with regard to the number of licences acquired), he shall immediately acquire the rights of use required for the authorised use. Should he fail to do so, WWWS shall assert the rights to which it is entitled.
(4) The Customer is not entitled to transfer or surrender long-term the copy of the purchase software acquired to a third party by surrendering the licence certificate and the documentation.

§ 2 Fee and maturity
(1) The remuneration for the indefinite granting of use is listed under I. of the respective quotation. All prices are net prices plus the respective legal rate of value-added tax.
(2) Payments shall be due upon the delivery of the purchase software to the Customer, and shall be made within 20 days of invoicing.
(3) The purchase software cannot be activated online, and therefore cannot be used, until the fee due has been paid in full.

§ 3 Warranty
(1) WWWS warrants for the agreed quality of the purchase software, and that the Customer can use the purchase software in accordance with the provisions of this Agreement without breaching third-party rights. The guarantee against material deficiencies shall not apply to deficiencies caused by the purchase software being used in a hardware and software environment that does not satisfy the requirements specified in § 5, i.e. in particular if the software is installed by the Customer on the Customer’s previously existing hardware. § 377 German Commercial Code (HGB) applies.
(2) WWWS is entitled to render warranty at the Customer’s premises. WWWS also meets its obligation to supply supplementary performance by making available updates with an automatic installation routine on its homepage for downloading and by offering the Customer telephone support to help solve any installation problems that may arise.
(3) With the exception of claims for damages, warranty claims due to material defects shall become statute-barred after one year. In the event of sale on a data carrier, the period of limitation shall commence upon the delivery of the purchase software; in the event of sale by downloading from the internet, it shall commence after notification and activation for the download area. In addition, § 6 shall apply to claims for damages and claims for reimbursement of expenses disbursed in vain.
(4) Unless otherwise agreed by the contractual parties, any possible withdrawal from the sale of the purchase software in accordance with I. of the quotation shall also end the agreements with regard to the rental software in accordance with II. and the update software in accordance with III. of the quotation, provided that they require the existence of the purchase software.
(5) Any warranty entitlements with regard to the software sold shall be asserted in writing to: WABCOWÜRTH Workshop Services GmbH, Benzstraße 7, 74653 Künzelsau, Germany.
(6) In the event of a withdrawal, the Customer shall abandon any use of the purchase software and shall remove all installed copies of the program from his computers and shall either immediately return any backups made to WWWS or shall destroy them, according to the wishes of WWWS.

§ 4 (not applicable to purchase software)

The following terms apply to the lease of software products in accordance with II. of the quotation:

§ 1 Subject of the contract and granting of rights
(1) The subject matter of this Agreement is the submission of the software in the object code described in detail in the quotation text, including the corresponding user documentation (singly or jointly “rental software” with regard to §§ 1-4 or “contract software” with regard to §§ 5-9) for the term of the Agreement, along with the granting of the rights mentioned below required for their contractual use.
(2) The Customer shall be granted the non-exclusive, non-transferrable and non-sublicensable right, limited to the duration of the lease, to use the rental software. The rental software may only be used simultaneously by the maximum number of natural persons corresponding to the number of licences acquired by the Customer in accordance with II. of the quotation. The permissible use comprises the installation of the rental software, the loading in the main memory and the intended use of the software by the Customer. Incidentally, the type and scope of use are determined in accordance with the quotation. Under no circumstances shall the Customer be entitled to lease the rental software acquired or to otherwise sub-licence it, reproduce it publicly or make it available to the public or to make it or any backup that may have been made available to third parties either free of charge or against payment, e.g. by way of application service providing or as “software as a service.”
(3) If the Customer breaches any of the aforementioned provisions with regard to the rental software, all rights of use assigned to him under this Agreement shall immediately become void and shall automatically revert to WWWS. In this case, the Customer shall immediately stop any use of the rental software, and shall delete all copies of the rental software from his systems and shall delete or present to WWWS any backups that may have been made.
(4) The Customer is not entitled to transfer or surrender long-term the copy of the rental software acquired to a third party by surrendering the licence certificate and the documentation.

§ 2 Fee and maturity
(1) The monthly remuneration for the temporary granting of use is listed under II. of the respective quotation. All prices are net prices plus the respective legal rate of value-added tax, whereby the rental software is surrendered for a 12-month period each time.
(2) The rent is payable in advance for the respective 12-month period on the 3rd working day of each contract year. In the first contract year of the rental period, the rent is payable upon the complete provision of the rental software.
(3) The rental software cannot be activated online, and therefore cannot be used, until the fee due has been paid in full.

§ 3 Remedy of defects
(1) WWWS shall ensure that the Customer is able to use the rental software in accordance with the provisions of this Agreement without breaching third-party rights. The Customer is obliged to notify WWWS of any deficiencies in the contract software immediately after their discovery. In the event of material defects, the notification shall include a description of when the defects occurred and the detailed circumstances.
(2) In the event of deficiencies in the rental software, WWWS is entitled to remedy the defect at the Customer’s premises. WWWS also meets its obligation to remedy defects by making available updates with an automatic installation routine on its homepage for downloading and by offering the Customer telephone support to help solve any installation problems that may arise.
(3) With the exception of claims for damages, claims due to deficiencies in the rental software shall become statute-barred one year after the termination of the lease agreement. For consequential harm caused by a defect, the period of limitation shall commence upon the surrender of the rental software onto a data carrier or, in the event of surrender via downloading from the internet, after notification and activation for the download area. § 6 shall apply to claims for damages and claims for reimbursement of expenses disbursed in vain.

§ 4 Duration und termination
(1) The Agreement with regard to the rental software is concluded for a period of 12 months. It may be terminated by either contractual party at twelve (12) weeks’ notice to the end of each respective 12-month period. Provided that neither contractual party has received a termination from the other contractual party up to this point in time, the contract period shall be prolonged for a further 12-month period each time.
(2) In addition, the Agreement with regard to the rental software may be terminated in writing by either contractual party for cause without observing a period of notice. In particular, one important reason entitling WWWS to terminate this Agreement is if the Customer breaches WWWS’s rights of use by applying the rental software beyond the use permitted in accordance with this Agreement and if he fails to put a stop to the breach within an appropriate deadline, despite receiving a warning from WWWS.
(3) Any notice of termination must be made in writing. It should be addressed to: WABCOWÜRTH Workshop Services GmbH, Benzstraße 7, 74653 Künzelsau, Germany.
(4) In the event of a termination, the Customer shall abandon any use of the rental software and shall remove all installed copies of the program from his computers and shall either immediately return any backups made to WWWS or shall destroy them, according to the wishes of WWWS.
(5) The termination of the rental software merely terminates the respective provisions with regard to the rental software; the agreement concerning purchase software in accordance with I. and the associated updates in accordance with III. of the quotation remains unaffected. Unless otherwise agreed by the contractual parties, any possible withdrawal from the Agreement concerning purchase software in accordance with I. of the quotation shall also end the agreements with regard to the rental software in accordance with II. of the quotation, which is a requirement of the existence of the purchase software in accordance with I. of the quotation.

The following terms apply to the software maintenance in accordance with III. of the quotation:

§ 1 Subject of the contract and granting of rights
(1) WWWS provides the Customer of the purchase software in accordance with I. and rental software in accordance with II. of the quotation with a software maintenance and update service in accordance with III. of the quotation for at least 12 months after the conclusion of the Agreement. The subject matter of this part of the Agreement is the surrender of the update software in the object code described in detail in the quotation text, including the corresponding user documentation (singly or jointly “update software” with regard to §§ 1-4 or “contract software” with regard to §§ 5-9). The scope of the granting of the rights required for the contractual use of the update software are determined by the respective rights for the purchase software (see §1 therein) or rental software (see § 1 therein) to which the update software refers and which become part of the update software after being applied by the Customer.
(2) The Customer shall independently activate the download of the update software via a button on the local installation of his purchase software or, if applicable, rental software at regular intervals (generally with every use), and shall download the update software via the internet. If a firewall or similar security installations are used or if applied within a company network, the Customer must ensure unrestricted access to the internet. WWWS shall not expressly notify Customers of the availability of new updates. The continual updating of the contract software is an essential prerequisite for the utilisation of the technical support services, since they always refer to the latest version of the contract software.
(3) If the Customer breaches any of the aforementioned provisions with regard to the update software, all rights of use assigned to him under this Agreement shall immediately become void and shall automatically revert to WWWS. In this case, the Customer shall immediately stop any use of the update software, and shall delete all copies of the update software from his systems and shall delete or present to WWWS any backups that may have been made. If the update software has already been applied, the rights of WWWS are restricted to the assertion of compensation for damages.
(4) The Customer is not entitled to transfer or surrender long-term the copy of the update software acquired to a third party by surrendering the licence certificate and the documentation.

§ 2 Fee and maturity
(1) The monthly remuneration for the provision of the update software is listed under III. of the respective quotation. All prices are net prices plus the respective legal rate of value-added tax, whereby the software maintenance is purchased for a 12-month period each time.
(2) The fee is payable in advance for the respective 12-month period on the 3rd working day of each contract year. In the first contract year of the software maintenance period, the respective fee is payable upon the complete provision of the update software. The maintenance service for the first 12 months from the acquisition of the respective contract software is already included in the respective fee in accordance with I. and II. of the quotation, and shall only become payable from the second 12-month period.
(3) The respective software cannot be activated online, and therefore cannot be used, until the fee due has been paid in full.

§ 3 Remedy of defects
(1) WWWS shall ensure that the Customer is able to use the update software in accordance with the provisions of this Agreement without breaching third-party rights.
(2) Any other warranty or remedy of defect rights is determined by the provisions of the purchase software to which the update software refers.
(3) With the exception of claims for damages, claims due to deficiencies in the update software shall become statute-barred in one year. In the event of sale on a data carrier, the period of limitation shall commence upon the delivery of the update software; in the event of sale by downloading from the internet, it shall commence after notification and activation of the access data for the download area. In addition, § 6 shall apply to claims for damages and claims for reimbursement of expenses disbursed in vain.

§ 4 Duration, termination and possible consequences
(1) Unless otherwise agreed, the Agreement with regard to software maintenance is concluded for a period of 12 months each time. It may be terminated by either contractual party at twelve (12) weeks’ notice to the end of each respective 12-month period. Provided that neither contractual party has received a termination from the other contractual party up to this point in time, the contract period shall be prolonged for a further 12-month period each time.
(2) In addition, the Agreement with regard to software maintenance may be terminated in writing by either contractual party for cause without observing a period of notice. In particular, one important reason entitling WWWS to terminate this Agreement is if the Customer breaches WWWS’s rights of use by applying the update software beyond the use permitted in accordance with this Agreement and if he fails to put a stop to the breach within an appropriate deadline, despite receiving a warning from WWWS.
(3) Any notice of termination must be made in writing. It should be addressed to: WABCOWÜRTH Workshop Services GmbH, Benzstraße 7, 74653 Künzelsau, Germany.
(4) In the event of a termination, the Customer shall no longer receive any further update software or software maintenance, which may lead to restrictions in support services if taken out beyond the period of warranty.
(5) The termination of the update software merely terminates the respective provisions with regard to the respective update software; the agreement concerning purchase software in accordance with I. of the quotation remains unaffected. Unless otherwise agreed by the contractual parties, any possible withdrawal from the agreement with regard to purchase software in accordance with I. of the quotation shall also end the agreements with regard to the respective update software in accordance with III. of the quotation, which requires the existence of the respective purchase software.

In addition, the following provisions apply jointly and uniformly to all forms of software licensing in accordance with I., II. or III.:

§ 5 Principles for dealing with WWWS software
(1) The contract software was specifically designed for the hardware offered by WWWS and was exclusively tested for correct functionality in this combination. If the contract software is not given to the Customer pre-installed on hardware surrendered by WWWS at his request, the use of the contract software generally requires the following hardware and software environment:
- Processor with 1.6 Mhz clock speed or above, at least Intel Pentium 4 or comparable model;
- Main memory 1GB RAM or more;
- Operating system Microsoft XP Professional SP3; from 1 March 2011, also Microsoft Windows 7 Professional, Starter, Home Basic or Home Premium;
- Bluetooth Microsoft stack or Widcom stack;
- Internet access;
Installation of the contract software on the Customer’s own hardware by the Customer is generally undertaken at the Customer’s own risk. In the event of the non-compliance with the aforementioned minimum requirements by the Customer, WWWS expressly excludes any warranty for the full functionality of the contract software, and also for any hardware and software conflicts that may arise due to installation by the Customer. In such cases, the Customer shall be referred to the customer service of his hardware or software manufacturer; no support can be provided by WWWS customer service for the Customer’s own hardware or software.
(2) WWWS shall surrender a copy of the programs that are the subject of the contract pre-installed in digital form on a hardware environment, as well as a printed version of the associated documentation or he shall make the respective contract software and documentation available via access to the internet for automated downloading. The prerequisite for the use of the respective contract software is online activation via the internet. The prerequisite for this, in turn, is that the Customer has internet access and that the Customer approves the contract software in the event of the use of a firewall or similar security measures.
(3) The quotation text and the documentation finally determine the quality of the contract software owed.
(4) Copyright notices, serial numbers and any features that serve to identify the program may not be removed from the contract software or altered.
(5) Decompiling is only permissible within the framework of § 69e German Copyright Act (UrhG). Reverse engineering or other manipulations or any attempt by the Customer to do so is expressly forbidden, and constitutes cause for WWWS to execute extraordinary termination without notice and/or to assert claims for damages.

§ 6 Liability
(1) WWWS shall be liable within the extent of the law
- in the event of intent or gross negligence,
- for damage to life, limb or health,
- in accordance with the provisions of the Product Liability Act and
- within the framework of an explicit guarantee assumed by WWWS.
(2) In the event of ordinary negligence regarding a breach of a duty which is significant for fulfilling the purpose of the Agreement, WWWS’s liability shall be limited to the extent of the damage which is predictable and typical according to the type of transaction in question.
(3) Any further liability on the part of WWWS that goes beyond § 6 (1) and (2), in particular for initial deficiencies, is contractually ruled out.
(4) The aforementioned limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of WWWS.

§ 7 Security measures, right to carry out audits
(1) The Customer shall take suitable measures to keep the contract software and, if applicable, the access data for online access safe from access by unauthorised third parties. In particular, all copies of the contract software and the access data must be kept in a safe place.
(2) At the request of WWWS, the Customer shall enable WWWS to check that the contract software is being used properly, in particular that the Customer is using the program qualitatively and quantitatively within the framework of the licences acquired by him. For this purpose, the Customer will provide WWWS with information, grant it access to relevant documents and files, and enable it to check the hardware and software environment used. WWWS may carry out the examination at the Customer’s premises during his regular business hours or may have the examination carried out by third parties who are bound by professional secrecy. WWWS will take care that the Customer’s business operations are disturbed as little as possible during his activities at the premises.

§ 8 Confidentiality
(1) “Confidential information” is all of the respective other contractual party’s information and documents labelled as confidential or which can be viewed as confidential arising from the circumstances, in particular information about operational processes, business relations and expertise.
(2) The contractual parties agree to maintain silence about confidential information.
(3) Excluded from this obligation is such confidential information
(a) that the recipient can prove he was in possession of upon the conclusion of the Agreement or which became known thereafter by a third party without breach of a confidentiality agreement, statutory provisions or official orders;
(b) that was known to the public upon the conclusion of the Agreement or which was made known to the public thereafter, insofar as this is not based on a breach of this Agreement;
(c) that has to be disclosed on the basis of statutory obligations or by order of a court or authority. Insofar as permissible and possible, the recipient obliged to disclose information shall notify the other contractual party beforehand and shall give it the opportunity to object to the disclosure.
(4) The contractual party shall only grant such consultants access to confidential information who are subject to professional secrecy or upon whom the respective obligations are imposed beforehand regarding this Agreement’s obligations to maintain secrecy. In addition, the contractual parties shall only disclose confidential information to those employees who need to know such information in order to execute this Agreement and who also swear these employees to secrecy to the extent permissible within labour law also for the time after which they leave the company.
(5) Any culpable breach of the aforementioned confidentiality obligations shall entail a contractual penalty amounting to EUR 2500, whereby it is up to the Customer to prove to WWWS that less damage actually occurred. The right to additional claims by the contractual parties remains unaffected.

§ 9 Miscellaneous, alterations to the Agreement, data protection
(1) The Customer may only assign rights and duties arising from or in connection with this Agreement to third parties after receiving the prior written consent of WWWS.
(2) Offsetting is only permitted with claims by WWWS that are undisputed or that have been determined as legally binding.
(3) Amendments and supplements to the Agreement must be made in writing in order to be legally effective, unless an amendment to the Agreement is made electronically within the Customer’s access to the online platform of WWWS.
(4) The General Terms & Conditions of the Customer expressly do not apply.
(5) German Law applies exclusively to this Agreement and the legal relationships arising from it, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
(6) The place of performance is Künzelsau. The sole jurisdictional venue is the local competent court for Künzelsau, provided that each party is a merchant or a legal entity under public law.
(7) The Customer agrees to the exclusive use of his personal information and data for product information of WWWS and for the anonymous evaluation of the functionality of the contract software. It will not be forwarded to third parties, in particular for advertising purposes.
(8) Should individual provisions of this Agreement be invalid, the validity of the remaining provisions shall not be affected. The contractual parties shall endeavour to find a provision that comes closest to the objective of the Agreement, in legal as well as in economic terms, to replace the invalid provision.
(9) All annexes mentioned in this Agreement are part and parcel of the Agreement and shall be adapted accordingly in the event of an amendment or update. This applies also to the online terms and conditions of use (of the electronic portrayal of these contract terms), which have to be accepted prior to the first use of a software component of this Agreement.