Licence agreement on usage of SPS-Programm-Software
§1 SUBJECT OF THE AGREEMENT
The subject of this agreement is the permanent transfer of the business software “SPS Programm” installed in the wastewater treatment plant, including the relevant user documentation (“Licensed Software”) and the granting of rights of use described in § 2.
KLC shall transfer to the Customer a copy of the Licensed Software in digital form.
The nature and functionality of the Licensed Software are based on the user handbook of the wastewater treatment plant. The details included therein shall be understood as performance specifications and not as guarantees. A guarantee shall only be granted if it is specifically designated as such and agreed in writing.
§2 GRANTING OF RIGHTS
The Customer shall have a non-exclusive right of use of the Licensed Software unrestricted in terms of time, within the scope granted in this Agreement.
The Customer shall not be entitled to lease the acquired Licensed Software or to license it in any other way, to make it available to third parties with or without payment or to use it for any other purposes than the operation of the specific wastewater treatment plant together with which the Licensed Software was supplied.
The Customer shall then be exclusively entitled to decompile and to duplicate the Licensed Software, in so far as this is provided for by law. This shall, however, only apply on condition that KLC has not made available to the Customer the required information on request within a reasonable period of time.
Copyright notices, series numbers and other features serving to identify the programme must not be removed from the Licensed Software or amended.
KLC warrants that the Customer may use the Licensed Software without infringing the rights of third parties. In the event of legal defects, KLC shall, at its own discretion, provide the Customer with use of the Licensed Software that is legally acceptable or to amend the software in such a way that the rights of third parties are no longer infringed.
KLC is, in the event of a material defect, initially entitled to subsequent fulfilment, i.e. for the defect to be rectified at its own discretion (“rectification”) or to be provided with a replacement. Within the context of provision of a replacement, the Customer shall, if required, be provided with the latest software. KLC shall also satisfy its duty of rectification by providing updates to download on its homepage supplied by automatic installation and offering the Customer telephone support to solve any installation problems occurring, unless the type of rectification selected by KLC results in unacceptable adverse effects.
Amendments on the part of the Customer to the Licensed Software may result in malfunctioning and/or damage to the wastewater treatment plant. Thus, the existence of a defect is excluded in so far as the defect can be attributed to customer interference to the Licensed Software. KLC shall not, in this respect, take on any liability for functionality and scope of function of the wastewater treatment plant, and for damage, especially to the wastewater treatment plant but also to other items.
Warranty claims, including those resulting from claims for damages due to defects, shall fall under the statute of limitations within 12 months. The limitation period shall begin on supply of the wastewater treatment plant including the Licensed Software.
KLC shall be liable according to legal provisions in the event of a culpable breach of obligation, for all damage resulting from injury to life, limb or health. KLC shall be liable according to the provisions of product liability law.
KLC shall be liable according to legal provisions in the event of culpable breach of essential contractual obligations. Liability is, however, limited to 2 million euros, if KLC has not violated essential contractual obligations intentionally or through gross negligence. Essential contractual obligations are those obligations that are required to fulfil the purpose of the contract and where the customer may rely on compliance with the contract.
KLC shall be liable for grossly negligent and intentional infringement of non-essential contractual obligations.
Otherwise, liability is excluded.
The licence agreement shall be concluded for an indefinite period. It may be terminated by either party with a notice period of six (6) weeks to the end of each quarter.
In addition, the licence agreement may be terminated in writing by either party without notice for good cause. Good cause entitling KLC to terminate the agreement shall be deemed to exist in particular if the customer infringes the KLC’s rights of use by using the software beyond the scope permitted under this agreement and fails to remedy the infringement within a reasonable period of time following a warning by KLC.
Notice of termination must be given in writing.
In the event of termination, the customer shall cease using the Software and remove all installed copies of the program from its computers and, at the KLC's option, immediately return any backup copies that may have been made to KLC or destroy them.
In so far as a separate confidentiality agreement has been concluded between the parties, this agreement shall, in the event of conflict, take priority over the subsequent provisions.
The parties shall undertake to maintain the strict and complete confidentiality of confidential information of the other party, and to protect such information by reasonable technical and organisational measures. This obligation shall continue to exist for a period of five (5) years after the termination of the licence agreement.
The following confidential information shall be excepted from this duty of confidentiality,
- information which can be proven to have been known by the recipient on conclusion of the licence agreement or thereafter by a third party, without infringing any confidentiality agreement, legal provisions or official instructions.
- information which was publicly known on conclusion of the licence agreement or thereafter, in so far as this information is not based on any infringement of this licence agreement;
- information which must be disclosed due to legal provisions or on the order of a court or an official body. In so far as is permissible and possible, the recipient obligated to disclosure must inform the other party in advance and give them the opportunity to take action against the disclosure.
“Confidential information” is all information and documents of the respective other party, which is characterised as confidential or considered so as a result of circumstances, especially information regarding operational procedures, business relationships and expertise.
§7 PLACE OF JURISDICTION, APPLICABLE LAW
The competent court for the KLC head office in Kirchentellinsfurt, Germany is exclusively responsible for all claims arising from and in conjunction with this licence agreement and its termination. Moreover, KLC is entitled to bring an action against the customer at the customer’s general place of jurisdiction.
The law of the Federal Republic of Germany shall be applicable.
Alternative to §7, only if expressly agreed in the contract
§7 ARBITRATION CLAUSE, APPLICABLE LAW
All disputes arising from or in conjunction with this licence agreement shall ultimately be decided according to the Rules of Arbitration of the International Chamber of Commerce (ICC) by an arbitrator specified by these rules without recourse to normal legal redress. The language of the arbitration proceedings is English. The applicable law is substantive German law. The place of arbitration shall be Vienna (Austria).
§8 WRITTEN FORM – VALIDITY OF GENERAL BUSINESS TERMS AND CONDITIONS
All amendments and additions to this licence agreement must be made in writing. This also applies to a potential waiver of the requirement for the written form.
The general business terms and conditions of the licensee shall not apply.
§9 SEVERABILITY CLAUSE
If one or more provisions of this licence agreement or partial provisions become invalidity, this invalidity shall not affect the validity of the other provisions or the agreement as a whole. It is the express will of the parties to maintain the validity of the other provisions of this agreement under all circumstances.
The parties shall undertake to agree on a valid provision by mutual consent instead of the invalid provision, which comes closest to the invalid provision in economic terms.