License conditions of Materna Virtual Solution GmbH
These license terms (EULA) of Materna Virtual Solution GmbH, Mühldorfstraße 8, 81671 Munich (hereinafter referred to as “MVS”) govern the Use of software components (hereinafter referred to as “MVS software”) that the customer has acquired directly from MVS or from a partner or reseller under a software transfer agreement (hereinafter referred to as the “Agreement”).
Contents
1. Scope of the license conditions
2. Subject matter of the contract
3. Provision of the MVS software
4. Protection of the software, right of retention, release or usage block
9. Software from third-party providers
10. Termination of the contract
1. Scope of the license conditions
1.1. These license terms apply exclusively to business customers. For the purpose of these license conditions, a customer (whether a natural person, legal entity or partnership with legal capacity) is deemed to be a “business customer” if, when concluding the contract, it is acting in the exercise of its commercial or independent professional activity or is a legal entity under public law or a special fund under public law.
1.2. If the customer acquires additional licenses for the MVS software from MVS during the term of the contract, these license conditions shall also apply to these additional licenses, even when hereupon not explicit Reference taken will.
1.3. These license conditions also apply to all corrections or updates to the components of the MVS software that the customer receives in connection with these license conditions.
1.4. These License Terms shall apply exclusively. Any terms and conditions of the customer that deviate from or conflict with these License Terms shall not apply; this shall also apply even if MVS does not expressly object to the customer’s terms and conditions.
2. Subject matter of the contract
2.1. MVS shall grant the customer the right to use the components of the MVS software specified in the contract for the duration of the contract in accordance with Section 5.
2.2. Updates and support are not part of the contract and can be agreed via an additional support and maintenance contract.
3. Provision of the MVS software
3.1. The customer can download the MVS software components, where available, as an app from the Apple App Store or Google Playstore. Alternatively, MVS provides the components of the MVS software as software packages for download.
3.2. The license information is provided as a license file.
4. Protection of the software, right of retention, release or usage block
4.1. All rights to the intellectual property of the MVS software and the complete user documentation as well as all other services created by MVS within the scope of the business relationship shall remain with MVS GmbH, unless they are expressly granted to the customer under these license conditions. This includes all concepts, ideas, design documents, algorithms, software codes and all related documents and data.
4.2. The customer undertakes not to make the MVS software or parts thereof provided for use for a limited period of time available to third parties, either in the original or in the form of complete or partial copies, or to reproduce, distribute, edit, reverse engineer, decompile, interfere with, disassemble, create derivative works, publicly reproduce or make publicly available the MVS software or parts thereof without the express written consent of MVS. The customer may not reproduce, translate or modify written material associated with the MVS software or create derivative works from it. A third party shall not be deemed to be anyone who uses one of the customer’s end devices on which the MVS software is installed. is installed in accordance with the contract.
4.3. The customer undertakes to retain unchanged the protective notices contained in the components of the MVS software, such as copyright notices and other reservations of rights, and in particular not to remove or change them. The same applies to the suppression of the screen display of corresponding features.
4.4. In the event of conduct in breach of contract, MVS reserves the right, after giving reasonable advance notice, not to release or block the software provided or to exercise the right of retention in another way.
5. Scope of use
5.1. MVS grants the customer the non-exclusive, non-transferable right to use the MVS software and the associated user documentation as intended, limited in time to the term of the contract and in accordance with these license conditions. The further development of the MVS software and the provision of new versions shall not be owed. However, MVS shall be entitled to provide the customer with further developed or new versions of the MVS software at its own discretion, inter alia in order to eliminate any errors in the version to be replaced.
5.2. The customer shall be entitled to use the MVS software provided to him for a limited period of time by the number of users on the number of end devices per purchased license, as specified in the contract, provided that these end devices and the installed operating system are compatible with the components of the MVS software in accordance with the product description.
5.3. Simultaneous installation, stocking or use of the component of the MVS software on more end devices than the number of end devices per license specified in the contract is not permitted.
5.4. The customer undertakes to ensure that every user to whom it makes the MVS software available and who uses end devices with installed components of the MVS software complies with these license conditions.
5.5. The MVS software shall be made available to the customer solely in object code. MVS shall be exclusively entitled to all rights to the source code of the software. The customer shall have no claim to access to the source code or surrender of the source code of the software. § Section 69e of the German Copyright Act shall remain unaffected. Reverse engineering of the various production stages of the software is expressly prohibited.
5.6. The customer is not permitted to lease or otherwise transfer the MVS software to third parties, whether for a limited period or permanently, whether for a fee or free of charge. The customer may neither sell nor transfer the MVS software, including the user documentation and other accompanying material, to third parties, and in particular may not rent or lend it. However, the use of the MVS software on the customer’s end devices by the users (e.g. the customer’s employees) of these end devices is permitted, provided that Section 5.4 is ensured.
6. Installation
6.1. The Installation of the MVS software takes place through the Customers.
7. Claims for defects
7.1. MVS warrants that the MVS software is free from defects that nullify or reduce its suitability for the contractual use. An insignificant reduction in suitability shall be irrelevant. Such defects in the MVS software, including the documentation and other documents, shall be rectified by MVS within a reasonable period of time during the term of the contract following corresponding notification of defects by the customer.
7.2. Defects shall be remedied at MVS’s discretion by means of free updates or releases of a new version of the MVS software, rectification or replacement delivery (“subsequent performance”), insofar as this is reasonable for the customer.
7.3. The customer’s right to extraordinary termination of the contract without notice for good cause due to failure to grant use in accordance with Section 543 (2) sentence 1 no. 1 BGB shall be excluded unless subsequent performance is deemed to have failed. Subsequent performance shall only be deemed to have failed if MVS has been given sufficient opportunity for subsequent performance, if it is impossible, if it is refused or unreasonably delayed by MVS, if there is reasonable doubt as to the prospects of success or if it is unreasonable for other reasons. Otherwise, the right to terminate the contract for good cause shall remain unaffected.
7.4. MVS’s obligation to rectify defects shall apply to the latest version of the MVS software accepted by the customer. A new version shall be accepted by the customer if it serves to avoid or eliminate defects. If a new version of the MVS software is provided, the replaced version shall be destroyed or returned to MVS on request.
7.5. The customer may not rectify any defects in the MVS software itself or by commissioning third parties. § Section 69d (1) UrhG remains unaffected.
7.6. If the customer has components of the MVS software hosted by MVS, MVS does not guarantee that these components of the MVS software will be available at all times and operate without interruption.
8. Liability
8.1. MVS shall always be liable to the customer without limitation
a) for damages caused intentionally or through gross negligence by it and its legal representatives or vicarious agents,
b) in accordance with the Product Liability Act
c) in the event of the express assumption of a guarantee
d) for damages resulting from injury to life, body or health for which MVS, its legal representatives or vicarious agents are responsible.
8.2. MVS shall only be liable for slight negligence insofar as MVS has breached a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the customer may regularly rely.
8.3. This liability is limited to the foreseeable damage typical for the contract in the case of property damage and financial loss. Liability for other remote consequential damages and loss of profit is excluded. For an individual case of damage, liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year Liability in accordance with Clause 8.1 b – c remains unaffected by this.
8.4. In the event of loss of data, MVS shall only be liable for the expenditure required to restore the data in the event of proper data backup by the customer. In the event of slight negligence on the part of MVS , this liability shall only apply if the customer has carried out a proper data backup immediately before the measure leading to the loss of data.
8.5. Clauses 8.1 to 8.4 shall apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against MVS .
8.6. Strict liability for initial defects pursuant to Section 536a (1) BGB shall be excluded. MVS’s liability for culpable defects and its responsibility for the absence of warranted characteristics shall remain unaffected.
9. Software from third-party providers
9.1. The MVS software contains third-party software to which additional general terms and conditions/license conditions may apply. The third-party software included and its license conditions can be viewed in the MVS software in the “Settings” menu and can be made available in advance on request.
9.2. MVS warrants that the MVS software is free of third-party rights that could restrict its use by the customer. In the event that claims are asserted against the customer by third parties due to infringements of property rights, Virtual Solution shall support the customer to the best of its ability in the defense and/or defense against this claim, as well as in solving the resulting problems.
10. Audit
10.1. As long as the customer uses the MVS software, MVS may audit the use of the MVS software either itself or through a third party commissioned by it (“audit”), provided that MVS announces the audit in writing 45 days in advance.
10.2. The customer undertakes to cooperate with MVS audits, to support MVS to the extent necessary and to grant access to all relevant information. The customer’s normal business operations shall not be disproportionately disrupted by such an audit.
10.3. In addition, the customer undertakes to pay any remuneration due for use of the MVS software not covered by the customer’s rights within 30 days of MVS’s written request. If this payment is not made, MVS shall be entitled to extraordinarily terminate its technical support, the rights of use and/or this contract.
10.4. The customer agrees that MVS shall not be liable for any costs incurred by the customer as a result of its assistance with MVS audits.
11. Termination of the Contract
11.1. After termination of the contract, MVS shall block the customer’s use of the MVS software and the customer shall cease using it immediately.
11.2. The customer is obliged to completely and permanently delete all MVS software from all of its devices, including all of its servers on which it is installed, immediately after termination of the contract. This includes all further copies of the MVS software.
11.3. If the customer fails to meet its obligations under sections 10.1 and 10.2 within a period of 14 calendar days, a contractual penalty of 10% of the final annual remuneration shall become due. MVS shall be at liberty to claim further damages.
12. Data protection
12.1. MVS uses electronic data processing for the handling of business relationships with the customer and for the internal processing of business transactions. This is done during the installation of the MVS software as well as during the operation of the MVS software.
12.2. In components of the MVS software, the e-mail addresses of users are transmitted to MVS for registration and stored centrally. Data that is relevant for the operation of the MVS software, such as license validity, licensed modules and functions, is stored centrally on MVS servers, unless the licensing is an SDS environment on premise.
12.3. MVS collects, processes and uses this personal data of the customer exclusively for the fulfillment of this contract, stores this personal data securely and does not transmit it to third parties. This processing of the customer’s personal data by MVS is necessary for the performance of this contract and is therefore lawful under Article 6(1) sentence 1(b) of the General Data Protection Regulation.
12.4. In addition, reference is made to MVS’s privacy policy, whichcan be accessed at https://www.virtual-solution.com/de/datenschutz/ .
12.5. If, in the course of providing the services, MVS receives personal data of the customer and processes it on behalf of and on the instructions of the customer, or if, in the course of providing the services, MVS accesses the customer’s system environment, whereby access to personal data cannot be ruled out, the parties shall conclude a separate contract for order processing in accordance with Art. 28 of the General Data Protection Regulation – MVS shall be entitled to use sub-processors.
13. General Provisions
13.1. The customer shall not be entitled to assign or transfer claims and/or obligations under this contract in whole or in part or to transfer this contract as a whole to a third party without the prior written consent of MVS.
13.2. There are no verbal ancillary agreements between the parties.
13.3. The contractual relationship between the parties and all disputes arising out of or in connection with this contractual relationship shall be governed by the laws of the Federal Republic of Germany. The United NationsConvention on Contracts for the International Sale of Goods (CISG United Nations Convention on Contracts for International Sale of Goods of 11.04.1980) shall not apply. Anyreference to foreign law in accordance with the principles of private international law (IPR) is excluded.
13.4. The exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be Munich/Federal Republic of Germany. However, MVS shall also be entitled to sue the customer at the place of jurisdiction of its registered office.
13.5. Should one or more provisions of these license terms be or become invalid, the validity of the remaining provisions shall not be affected. Provisions hereof not shall be affected. The invalid provision shall be replaced by a valid and enforceable provision whose effect comes closest to the economic purpose pursued by the parties with the invalid provision.