General Licencing Terms and Conditions „Exply“
(„Terms and Conditions“)
Sec. 1 Applicability of Terms and Conditions
- Sandstorm Media GmbH, Blasewitzer Straße 41, 01307 Dresden, Germany („Sandstorm“ or „Licensor“) provides the temporary use of their developed data analysis software “Exply” (“Software”) on a download basis. The Software is aiming at B2B users and not at consumers (Verbraucher) within the meaning of sec. 13 German Civil Code (BGB).
- The Software of the Licensor is an application that requires installation on the server of the user (“Licensee”). By installing the application the Licensee can – after facilitating compatible datasets determined by the Licensor – access the analytic functions of the Software over a web interface.
- The Licensor grants the licensee on the basis of a software license agreement temporary access to their Software – including and applying the type and extent of the following Terms and Conditions – which is deemed to be concluded after the Licensee chose a variation of use of the Software (in particular price, payment frequency, duration of use) (“License Subject”) on the Sandstorm website (“Contract”).
- These Terms and Conditions shall apply to all Contracts of the Licensee regarding the Software. Contradicting terms and conditions by the Licensee shall not apply even when not expressly objected.
Sec. 2 Contractual Purpose
- Purpose of the Contract is the temporary transfer of the License Subject and assignment of the rights needed for its contractual usage within its time limit subject to sec. 3.
- The Licensor provides the Licensee with a digital copy of the License Subject. In case the License Subject is protected by a license key, the Licensor provides the Licensee with the license key solely for the use of the License Subject according to the Contract and the public documentation on Licensor’s website. The public documentation describes the Software in its current version. The public documentation is only applicable in the version provided on the Licensor’s website at the time.
- The owed quality of the License Subject shall only derive from these Terms and Conditions and such public documentation available on Licensor’s website.
Sec. 3 Assignment of Rights
- The Licensee upon complete payment of the license fee (according to sec. 4 of the terms and conditions) receives and gets assigned the right to use the License Subject on a non-exclusive, timely limited and non-transferable basis whereas the timely limitation shall be subject to the duration of the Contract beginning with Licensees payment according to sec. 4. The right of usage may not be granted to a third party by the Licensee through a sub-license.
- The right of usage according to the Contract includes the installation, loading and running of the License Subject on one (1) computer system in possession of the Licensee.
The use of the License Subject is restricted to two (2) active registered users in the system (i) until the Licensee fully paying the initial and due fee according to sec. 4 or (ii) in case the Licensee chooses a possible free download option for the use of the License Subject (“Trial Mode”). During Trail Mode only two (2) system users can be created and used within the Software.
- The Licensee is only allowed to duplicate, edit or decompile the Software if mandatory by law and if the required information may not be made accessible on request by the Licensor.
- In furtherance to the scenarios described in these paras. 1, 2 and 3 the Licensee shall not duplicate the Software.
- The Licensee shall not provide the copy of the License Subject which had been received by him to third parties. The Licensee shall in particular not sell, lend, rent, sub-license, publish or grant public access to the License Subject. Third parties are also affiliated companies within the meaning of secs. 15 et seq. Stock Corporation Act (AktG).
- In case the Licensee violates any of the aforementioned terms all granted rights for the use of the License Subject will be void and return automatically to the Licensor. The Licensee in such case shall immediately and completely stop the use of the License Subject. All copies of the License Subject on the Licensee’s system have to be deleted. All copies of the License Subject saved on any other data carrier need to be issued to the licensor immediately.
Sec. 4 License Fees
- The consideration for the granted access and use of the License Subject shall result from the payment model chosen when downloading the Software.
- The license fee has to be paid monthly in advance no later than the third working day of each month. In the first month the license fee is due when the Software is provided by the Licensor. In case the chosen payment model includes annual payments, the license fee is due no later than the third working day of each year. Sentence 2 of this section 2 is also applicable to yearly payments accordingly.
- In case the payment for the license fee is delayed the overdue amount is interest-bearing with an interest of 8 percent above the base rate. Asserting further rights shall in no way be affected by this provision.
- Unless expressly provided otherwise any amounts shall be subject to VAT at the applicable rate.
Sec. 5 Protection of the License Subject
The Licensee has to protect the License Subject by means of taking appropriate measures against unauthorized access by third parties and shall store all copies of the License Subject at a safe location.
Sec. 6 Maintenance
- The Licensor shall be responsible for the maintenance of the contractually agreed condition of the License Subject during the duration of the Contract. Furthermore, the Licensor guarantees that the License Subject may contractually be used free of any third party rights. Material defects and defect in title occurring in the License Subject shall be eliminated by the Licensor within reasonable time. During the Trial Mode the Licensor shall not be obliged or liable for maintenance of the License Subject pursuant to this para. 1.
- It is the Licensee’s responsibility to electronically submit any defects to the Licensor without undue delay after taking notice of such defects (submissions are exclusively to be directed at: email@example.com). In case of material defects, the submission needs to include the time and circumstances of the defect.
Sec. 7 Liability
- The licensor shall be liable for
- intent or gross negligence,
- damage to life, body or health,
- liability under the Product Liability Act (Produkthaftungsgesetz), and
- in the scope of any guarantee furnished by the Licensor.
- In case of violation of any obligation that is essential for the attainment of the contractual purpose the Licensor shall be liable in the case of minor negligence insofar as the damage is foreseeable and typical according to the type of business in question.
- A more extensive obligation or liability of the Licensor shall not exist. In particular there shall be no further liability for initial defects unless the requirements set out under paras. 1 and 2 are met.
- The above-mentioned limitations of liability shall also be valid for the personal liability of employees, representatives and corporate bodies of the Licensor.
- During the Trial Mode the liability of the Licensor is limited to intent.
Sec. 8 Compliance, Data Protection, Indemnity
- The Licensee is aware of the fact that the use of the License Subject may require the use of personal data according to the General Data Protection Regulation (Datenschutzgrundverordnung (DSGVO)) and the Federal Act on Data Protection (Bundesdatenschutzgesetz (BDSG)). This may lead to the need of approval of clients, employees, workers’ council or similar committees or instances. The use of the License Subject may therefore be based on other legal provisions. The Licensor shall only be bound to its obligation to fulfill the Contract as long as there are no conflicting national or international laws or provisions concerning export and import rights.
- The Licensee is responsible to make sure the use of the License Subject complies with statutory regulations.
- The Licensee agrees to indemnify and hold the licensor harmless against any and all liabilities occurring due to violation of any legal regulations according to paras. 1 and 2.
Sec. 9 Confidentiality
- The parties undertake to treat as confidential all information that becomes known to them in the course of the performance of this Contract and to use such information only for the contractually agreed purposes.
- The duty of confidentiality also continues to apply after the Contract has ended. It applies for a duration of three years after termination of the Contract. Both parties are required upon termination of the Contract either to return or to destroy confidential information of the respective other party, unless this has been properly used or there is a statutory duty to retain this data.
Sec. 10 Duration and Termination
- The Contract shall be of unlimited duration. It may be terminated (i) in case of monthly payments by each party each month with a two weeks’ notice, (ii) in case of annual payments by each party each year with one month’ notice.
- The Contract may additionally be terminated by either party without notice for cause. Cause for the Licensor may especially result from the Licensee’s use of the License Subject in a way prohibited by these Terms and Conditions. Compliance related or statutory obligations according to sec. 8 do not constitute cause for the Licensee.
- In case of termination the Licensee needs to cease the use of the Software, delete all installed copies of the License Subject from their system and send back or destroy at the Licensor’s sole discretion all copies made of the License Subject.
Sec. 11 Final Provisions
- Rights and obligations under these Terms and Conditions or parts thereof may only be transferred by the Licensee to third parties after the Licensor has given its written consent.
- Any amendments, modifications or the partial or total cancellation of the contract require at least textual form. This applies also to the cancellation of this requirement of textual form.
- These Terms and Conditions shall apply in their version valid at the time. The Licensor reserves the right to change these Terms and Conditions at any time with good cause, especially in the case of regulatory changes or high court decisions, technical changes or advancements, new organizational requirements, regulatory gaps, changes in market condition or other equivalent reasons as long as it will not adversely affect the Licensee to an unreasonable extent. The Licensee shall be informed of changes to the terms and conditions six weeks in advance of the changes coming into force in writing or via e-mail. The changes shall take effect between the parties of the licensee raises no objection to the changes within six weeks of receipt of the information in writing or via e-mail and the Licensor has informed them of their right to object. If changes adversely affect the Licensee to an unreasonable extent, the Licensee has the right to terminate the Contract within two weeks of receipt of the information. The Licensor shall draw attention to this right of termination of the Contract.
- Exclusive place of jurisdiction concerning all disputes resulting from and in connection with this Contract shall be the place of business of the Licensor.
- In the event of invalidity of individual provisions of the present Contract, effectivity apart from this shall be unaffected. In such case, the parties agree to find an effective regulation which economically approximates the intended purpose of the ineffective stipulation. The same applies in the case of omissions from these Terms and Conditions.