GENERAL TERMS AND CONDITIONS

(Last updated on May 1, 2020)

of
ProVI GmbH | Garmischer Strasse 21 | 81373 Munich
hereinafter referred to as the Licensor

1. DEFINITIONS

1.1 The licensee is ProVI GmbH’s contracting party as specified in the ProVI GmbH Software Licensing Agreement.

1.2 The software is “ProVI – Programmsystem für Verkehrs- und Infrastrukturplanung” with the ID agreed between the Licensor and the licensee.

1.3 Contractual use is use of the software for the planning of line structures, particularly railway lines, as well as roads, drainage networks and supply lines.

2. RETENTION OF TITLE TO THE SUPPLIED ITEMS

The supplied items are the property of the Licensor. They do not become the property of the licensee until the Software Licensing Agreement has been signed by both parties and all the agreed license fees have been paid in full. Until then, the licensee merely has a temporary contractual right of use that is revocable.

3. COPYRIGHT OF THE LICENSOR

3.1 The licensee acknowledges that the software and the user documentation are protected by copyright.

3.2 The Licensor reserves its rights in particular to edit, lease, distribute, exhibit, demonstrate and publish the software.

4. RIGHT OF USE OF THE LICENSEE

4.1 The licensee’s right of use covers contractual use of the supplied items within the scope of normal use for the purpose of performing calculations, preparing parametric data models and outputting them as drawings.

This encompasses the following:
– Transferring the software from the original program disks to a hard drive;
– Using the software exclusively with the dongle or code for unlocking the software;
– Loading, displaying and running the program connected with the software;
– Creating a back-up copy of the software, if this is required to safeguard the future use of the software and the original program disk in the licensee’s possession is not sufficient to create a back-up;
– Copying the user manual and other documents provided by the Licensor for the licensee’s internal purposes.

4.2 No further rights are transferred.

4.3 The following actions are forbidden:
– Using the software without the dongle or code for unlocking the software;
– Using the software in parallel on more workstations than the number of software licenses purchased by the licensee allows;
– Transferring usage of the software to or allowing it to be transferred by third parties, with the exception of transferring the license in accordance with section 6 of this Agreement;
– Creating other copies of the software, or allowing them to be created, other than the permitted creation of a back-up copy;
– Decompiling the software outside the limits defined in section 69e of the German Act on Copyright and Related Rights;
– Disassembling the software;
– Reverse engineering the software.

4.4 It is further prohibited
to change, remove or otherwise deface references to copyrights or other property rights of the Licensor that may be found on the software, on the original program disks or in the user manual.

5. MONITORING SOFTWARE MISUSE

The Licensor is entitled, for the purpose of monitoring misuse of the software and where there is a reasonable suspicion, to have the licensee’s data processing equipment inspected by a publicly appointed and certified expert, without giving any advance notice. The licensee shall grant the expert access to the equipment during normal office hours. The expert may report to the Licensor misuse of the software only and not any other perceptions.

6. CONTRACTUAL PENALTY

If the licensee culpably breaches one of the provisions under section 4.3 of this Agreement, for each breach it shall pay the Licensor a contractual penalty of 2.5 times the license fee that was agreed for contractual use of the software that it has misused. Any forfeited contractual penalties shall be charged to the licensee and counted against any claims for damages by the Licensor.

7. EXTRAORDINARY RIGHT OF TERMINATION BY THE LICENSOR

The Licensor is entitled to terminate this Licensing Agreement for good cause in the event of a serious breach of its copyrights to the software by the licensee or one of its users. Upon receipt of notice of termination, all the licensee’s rights of use are terminated. In this case, the licensee shall return the software to the Licensor and destroy all copies of the software in its possession.

8. OBLIGATIONS OF THE LICENSEE

8.1 The licensee is obliged to competently inspect all of the items supplied by the Licensor immediately once delivered or disclosed in accordance with commercial law (section 377 of the German Commercial Code) and prepare a written report of any defects identified, describing them in precise detail.

8.2 The licensee is obliged to test the usability of each module thoroughly in the specific conditions under which it will be used before commencing productive use. The same also applies to programs that the licensee receives in the course of remedial action or within the scope of a Software Service Agreement.

8.3 The software must be used in the operating system environment approved by the Licensor and under the hardware requirements recommended by the Licensor.

8.4 The licensee has a particular obligation to back up data and ensure malware protection in accordance with the current state of the art.
Furthermore, the licensee shall take appropriate precautions for a situation in which the program, in full or in part, does not work properly (e.g. by backing up data, documenting software use, diagnosing errors, regularly examining the results and contingency planning). It shall be responsible for ensuring that the program environment is functional.

8.5 If the licensee changes its hardware, it must delete the software from the previously used hardware.

8.6 The licensee shall destroy any back-up copies that it no longer requires.

9. SOFTWARE SERVICES, NEW VERSIONS OF THE SOFTWARE

9.1 The software is updated in accordance with the provisions of a Software Service Agreement that is separately concluded between the parties.

9.2 The rights, obligations and restrictions of this Agreement shall also apply to every update, upgrade and other new versions of the software that the licensee has purchased within the framework of a Software Service Agreement or any other agreement with the Licensor.

10. MATERIAL DEFECTS

10.1 Liability for material defects for the supplied items shall apply for one year from when the software is delivered.

10.2 The Licensor shall be liable for ensuring that the software complies with the specifications, meets the criterion of practical usability and is of the usual quality expected of software of this type. However, the software is not flawless.

10.3 The Licensor shall rectify software defects that impair the intended use of the software to a significant extent.

10.4 Depending on the significance of the defect, it shall be rectified as the Licensor sees fit
– by giving instructions to remove or bypass the effects of the defect;
– by removing the defect through remote maintenance;
– by supplying software that does not contain the defect.

10.5 At least three attempts to remedy the defect shall be made.

10.6 The licensee shall enable the Licensor to remove the defect through remote maintenance. The licensee shall provide the required technical equipment at its own expense and, with sufficient prior notice, shall grant the Licensor electronic access to the software.

10.7 The licensee shall assist the Licensor with analyzing and removing the defect by describing the particular problem in specific detail, giving the Licensor comprehensive information, and giving it the time and opportunity required to remove the defect.

10.8 The licensee is obliged to accept a defect-free copy of the software offered to it by the Licensor in the course of removing the defect, including a new version, unless this would cause it unacceptable adjustment and conversion issues.

11. LIABILITY

11.1 The Licensor shall pay compensation or reimburse wasted expenditure, for whatever legal reason, only in the following circumstances:

– The liability for deliberate or fraudulent intent is unlimited.
– In the event of gross negligence, the Licensor shall be liable to the extent of the typical damages foreseeable at the time of concluding the Agreement.
– In the event of a minor negligent breach, including of a cardinal obligation (an obligation that principally enables the fulfillment of the Agreement in the first place and the observance of which the contracting party regularly trusts and is entitled to expect, and the breach of which jeopardizes the achievement of the purpose of the Agreement), the Licensor shall be liable to the extent of the typical direct damages foreseeable at the time of concluding the Agreement, but up to a maximum per claim of two times the license fee paid for the software that caused the damages and for all claims arising from and in connection with the Agreement overall up to a maximum of the amount covered by the Licensor’s business liability insurance. In the event of minor negligence, including of a cardinal obligation, the Licensor shall not be liable for indirect damages or for consequential damages, in particular not for loss of profits and loss of production.

11.2 The Licensor has the right to claim contributory negligence.

11.3 The statutory provisions shall apply without limitations in the event of an injury to life, body or health and for claims under product liability law.

12. TRANSFER OF THE LICENSE TO THIRD PARTIES

12.1 The licensee is entitled to sell the software, including the original program disk and the user manual, on to an end user when simultaneously transferring the above-stated rights of use. This entitlement does not extend to copies of the software or parts thereof.

12.2 The transfer of the license to a third party shall be effective on the condition precedent that the licensee notifies the Licensor of the transfer, the third party agrees to the Licensor’s licensing conditions under this Agreement and the third party allows itself to be registered by the Licensor as a new licensee.

12.3 As soon as the license is effectively transferred to the third party, it shall acquire the rights of use as defined in this Agreement and shall therefore replace the licensee.

12.4 As soon as the license is effectively transferred to the third party, the licensee shall be obliged to delete the software on its hard drives or otherwise destroy it. The same applies to any original program disks containing the software or copies of the software it still has in its possession.

13. PREFERENTIAL PURCHASE RIGHT OF THE LICENSOR

The licensee shall grant the Licensor a preferential purchase right to the license transferred under this Agreement. The licensee is obliged to notify the Licensor immediately of its intention to transfer this license to a third party and of the license fee negotiated with the third party. Once it has received this notification, the Licensor will have 15 calendar days in which to exercise its preferential purchase right by furnishing the licensee with a declaration to this effect.

14. CONFIDENTIALITY

14.1 The parties agree to treat as confidential all items given to them and all information disclosed to them by the other party before or during execution of the Agreement that are legally protected; contain business and trade secrets; or are designated as confidential, including beyond the term of the Agreement, and to store and secure them in a way ensuring that no third parties have access to them, unless these items and this information are already in the public domain without breach of this duty of confidentiality.

14.2 The licensee acknowledges the software as a trade secret belonging to the Licensor.

14.3 The licensee shall make the items under this Agreement available only to its employees and other third parties that require access to them in the course of their official duties. It shall inform these persons of the confidentiality requirement regarding these items.

15. FINAL PROVISIONS

15.1 No other verbal agreements have been made in addition to this Agreement. Changes to this Agreement must be made in writing; the same also applies to changes to this written form requirement. Should individual provisions of this Agreement be or become ineffective, this shall not affect the effectiveness of the remaining provisions. The invalid provision shall be reinterpreted or supplemented in such a way as to achieve the intended commercial purpose. The same applies if during the execution of the Agreement a contractual loophole requiring amendment comes to light.

15.2 The laws of the Federal Republic of Germany shall apply with the exception of the United Nations Convention on Contracts for the International Sale of Goods.

15.3 The place of jurisdiction for all disputes arising from and in connection with this Agreement shall be Munich.

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