General Software License Conditions of SMARTech Consulting GmbH for the Permanent Licensing of Software

Status: June, 2024

1. Subject of the License
   1. The subject of the license is the software developed and produced by SMARTech and provided to the customer on a permanent basis on the basis of the General Terms and Conditions for Deliveries and Services of SMARTech Consulting GmbH (SMARTech), together with the associated program documentation. The exact designation of the software provided is specified in the order confirmation from SMARTech. For separately supplied software from other manufacturers (third-party software), the license conditions of the respective manufacturer shall apply.
   2. Unless otherwise stipulated in the order confirmation, the customer shall receive the software exclusively in object code format via download over the Internet for self-installation on the customer’s system.
   3. The software and the program documentation supplied are protected by copyright. SMARTech shall be exclusively entitled to all rights to the software in relation to the customer, even if the software was created according to specifications or with the cooperation of the customer. The customer shall receive a permanent, non-exclusive right to use the software on the basis of these General Software License Terms, which is only transferable in accordance with the provision in No. 2.5. The customer has no claim to the surrender of the source code and the development documentation for the software.
2. Scope of the License
   1. The license entitles the customer to use the software for his own operational purposes in accordance with the description in the program documentation supplied: by the number of authorized users listed in the order confirmation, whereby only the authorization of use as such, but not the actual use, is important (“Named User” license); or by the maximum number of permitted parallel accesses to the software listed in the order confirmation (“Concurrent User” license); or by the number of licensed computers listed in the order confirmation, whereby the authorization of use is linked to the computer and not to the user (“Node Locked” license).
      Use means loading, displaying, running, transferring and saving the software for the purpose of executing it and processing the data on the customer’s system on which the software is installed.
   2. The customer is entitled to make a backup copy of the software, which must be marked with a copy of the original identification (including the copyright notice). The use of the backup copy is only permitted in the event of deterioration or destruction of the copy of the software originally provided by SMARTech. The customer is also subject to these General Software License Conditions with regard to the use of the backup copy. In addition, the customer is not entitled to reproduce the software or the program documentation or parts thereof outside the permitted use in accordance with No. 2.1 without the prior written consent of SMARTech.
   3. The customer is not entitled to use the software outside its business or for purposes other than its own business purposes or to enable third parties who do not belong to its business to use the software or to transfer the software to third parties temporarily or permanently – subject to No. 2.5. In the absence of an express agreement to the contrary, third parties in this sense also include branches of the customer or companies affiliated with the customer.
   4. Without SMARTech’s consent, the customer is not entitled to edit, modify or otherwise rework the software, to connect it to other programs in any way other than via the intended interfaces, to decompile it into another form of presentation, to remove, circumvent or modify any security codes or features serving to identify the software, or to remove information in the software and program documentation regarding the manufacturer’s status, copyrights or other property rights of SMARTech. The provisions of §§ 69 d para. 3 and § 69 e UrhG remain unaffected.
   5. The customer is entitled to permanently transfer the software as a whole together with the license in accordance with these General Software License Terms to a subsequent purchaser, provided that the customer does not retain any copies of the software and the associated program documentation – not even in part – and refrains from any further use of the software. In the case of corporate, package or volume licenses, the right to further transfer is limited to the transfer of the entire license portfolio to a single subsequent purchaser; the splitting and transfer of parts of the license portfolio to one or more subsequent purchasers requires the prior written consent of SMARTech, which may be linked to the payment of an additional reasonable license fee. The subsequent purchaser must undertake to SMARTech to comply with these General Software License Conditions, in particular the provisions on the scope of the license in this No. 2. The right of use of the subsequent purchaser shall therefore only commence upon receipt by SMARTech of a copy of the program certificate and these General Software License Terms signed by the subsequent purchaser, whereby the name or company of the subsequent purchaser and its business address must be stated in full. In addition, the customer must assure SMARTech in writing that he has deleted or otherwise rendered unusable all copies of the software and the associated program documentation still in his possession. The costs and expenses incurred by SMARTech for the license transfer shall be borne by the customer in relation to SMARTech.
3. Duration of the License
   1. The license begins on the date specified in the order confirmation and is granted on a permanent basis, i.e. without a time limit. The right to ordinary termination of the license is excluded for both contracting parties.
   2. The right to extraordinary termination of the license for good cause remains reserved. Good cause for extraordinary termination by SMARTech shall be deemed to exist in particular if the customer culpably violates the provisions of No. 2 of these license conditions in a not merely insignificant manner. In this case, the customer shall not be entitled to a refund of the remuneration paid for the provision of the software and the granting of the license. SMARTech reserves the right to assert claims for damages.
   3. The customer’s right to use the software provided shall expire at the end of the license. He must delete the copies installed on his systems as well as all copies of the software on separate data carriers and destroy the program documentation provided. The complete deletion or destruction must be confirmed to SMARTech in writing and, at SMARTech’s request, proven in a suitable form.
4. License Fees
   1. The remuneration for the provision and use of the software is based on the agreed scope of use and is set out in SMARTech’s order confirmation. Unless otherwise agreed, the remuneration consists of a one-time license fee (“Primary License Charge – PLC”) to be paid at the beginning of the contract.
   2. If the customer wishes to receive ongoing maintenance of the software, SMARTech shall offer him the conclusion of a maintenance agreement on the basis of SMARTech’s General Software Maintenance Conditions. The maintenance agreement can only be concluded together with the license agreement; if the maintenance agreement is concluded at a later date, the subsequent purchase of licenses for the then current version of the software is required. An annual maintenance charge (“Annual Maintenance Charge – AMC”) is payable for the maintenance of the software, the amount of which is specified in SMARTech’s order confirmation. The maintenance charge will be invoiced for the first time at the beginning of the contract and then at the beginning of each new contract year. Timely payment of the maintenance charge is a prerequisite for the provision of maintenance services in the relevant contract year.
   3. The customer is obliged to inform SMARTech immediately of any changes to the scope of use, in particular the number of Named Users or Concurrent Users or the licensed computers (in the case of a Node Locked License) in accordance with No. 2.1). SMARTech is entitled at any time to check the current scope of use and to install systems to automatically measure the scope of use. In the event of changes to the scope of use that affect the remuneration to be paid for the use and/or maintenance of the software, the customer shall be obliged to pay the resulting additional license fees and/or increased annual maintenance fees on the basis of SMARTech’s then valid price list with effect from the time of the change in the scope of use.
5. Right of Review, Self-Disclosure, Re-licensing
   1. The customer must keep complete and accurate records that allow a clear assessment of whether the customer is using the software in accordance with the provisions of these General Software License Terms. SMARTech has the right to verify the customer’s compliance with the license conditions by means of self-disclosure by the customer or to carry out an on-site inspection by an independent auditor. SMARTech will engage an independent auditor for this purpose, who is subject to a confidentiality obligation.
   2. The on-site review by an independent auditor shall be announced at least thirty (30) days in advance and shall take place during Customer’s normal business hours in a manner that does not unreasonably interfere with Customer’s normal business operations. Customer shall promptly provide the independent auditor with all information that the independent auditor may reasonably request in support of the audit and immediate access to the systems on which the Software is running.
   3. Alternatively, SMARTech may request the customer to complete SMARTech’s self-audit questionnaire in relation to the software used by the customer and send it to SMARTech within two (2) weeks of receipt. However, SMARTech reserves the right to initiate a review process by an independent auditor as described in No. 5.2 above.
   4. If the inspection or self-inspection reveals unlicensed use, the customer is obliged to pay the license and maintenance fees due for this with effect from the start of the unlicensed use on the basis of SMARTech’s price lists valid at the time of the request for subsequent payment. When calculating the license and maintenance fees to be paid retrospectively, any discounts individually agreed in the license agreement between SMARTech and the customer shall not apply. In addition to the license and maintenance fees, the customer is obliged to pay interest on arrears at the statutory rate retroactively from the date of commencement of the unlicensed use. SMARTech shall bear the costs of the audit unless it reveals a deviation of five (5) % or more; otherwise, the customer shall reimburse SMARTech for the costs incurred during the audit, including the costs of the commissioned auditor.
6. Miscellaneous
   
   1. These General Software License Conditions shall also apply to later versions (updates) and extensions of the software (upgrades) provided to the customer by SMARTech separately or as part of a maintenance agreement (cf. No. 4.2), unless otherwise agreed when the respective later version or extension is provided.
   2. If, these General Software License Terms do not contain any separate or deviating provisions, the General Terms and Conditions for Deliveries and Services of SMARTech shall otherwise apply to the provision and use of the software.