TERMS AND CONDITIONS OF LICENCE AND USE FOR WOW! SOFTWARE AND ADDITIONAL MODULES
WOW! WÜRTH Online GmbH (hereinafter “WOW”) grants the Customer (both hereinafter jointly referred to as the “Contracting Parties” or individually as the “Contracting Party”) use of its software products on the terms of the present Agreement. Various services are also offered to the Customer. WOW! software and data files are supplied to the Customer either on a data carrier or pre-installed on hardware also purchased from WOW!.
§ 1 Object of the agreement and granting of rights
(2) Subject to full payment of the software licensing fee, the Customer shall be granted non-exclusive, time-limited and non-sublicensable right of use of the contract software. The software may be used simultaneously by a number of natural persons not to exceed the number of licences purchased by the Customer. Permitted use includes installation of the software, loading it into the main memory and the intended use of the software by the Customer. Under no circumstances shall the Customer be entitled to sub-license the acquired software or otherwise distribute it, make it available to the public, or make the software or any backup copy available to third parties either free of charge or for payment, e.g. through Application Service Providing or “software as a service”.
(3) Should the Customer use the software to an extent that goes beyond the acquired rights of use, either qualitatively (by the type of use authorised) or quantitatively (by the number of licences acquired), it shall immediately purchase the user rights required for authorised use. Should it fail to do so, WOW! shall exercise its rights accordingly.
(4) The Customer shall not be entitled, without the approval of WOW!, to transfer or cede on a long-term basis a copy of the contract software to a third party by transferring the data carrier and documentation.
§ 2 Prices and due dates
The fee for the granting of time-limited rights of use is indicated in the currently valid price list. All prices are net prices plus the respective legal rate of value-added tax.
§ 3 Warranty and maintenance
(1) WOW! guarantees the agreed composition of the software and the software maintenance, and that the Customer will be able to use the software on the terms of this Agreement without infringing third-party rights. The warranty shall not apply to defects resulting from the software being used in a hardware and software environment which does not meet the requirements specified in the WOW! manual, i.e. in particular if the software is installed by the Customer himself on hardware already in place on the Customer’s premises. The Customer shall undertake to inform WOW! immediately in writing of software defects as soon as they are discovered. In the event of material defects, such notification shall include an indication of the time when the defect occurred and details of the circumstances.
(2) WOW! shall be entitled to provide the warranty either at the Customer’s premises or by remote access. WOW! shall meet its obligation to provide supplementary performance by making updates available for download through an automatic installation routine on its homepage, and by offering the Customer telephone support to help solve any installation problems that may arise.
(3) The Customer shall also be entitled to obtain software updates for the WOW! software, the multi-brand diagnostics and the “Technical Data”, “Work Values” and “AU Target Data” modules. The Agreement also includes the Flight Recorder function. The software updates obtained as described below are subject to the granting of rights as described in § 1.
(4) The Customer shall independently activate downloads of the software updates at regular intervals, using a button in the WOW! software to download the software update from the internet. If a firewall or similar security features are used or applied through a company network, the Customer must ensure unhindered access to the internet. WOW! shall not be required to give express notification of the availability of new updates. Continuous updating of the contract software is an essential requirement for utilisation of the technical support services, since these always relate to the latest version of the contract software.
§ 4 Duration and termination
(1) Unless otherwise agreed, the Agreement is concluded for a period of 12 months. At the end of the initial 12-month period, it may be terminated by either contracting party with a notice period of one (1) month to the end of the following month.
(2) If there is good cause, the Agreement may also be terminated in writing by either contracting party, without observing the notice period. In particular, such good cause entitling WOW! to terminate this Agreement would be where the Customer infringes WOW!’s rights of use by using the leased software beyond the extent allowed by this Agreement, and fails to desist from the said infringement within an appropriate period after receiving due warning from WOW!.
(3) In the event of termination, the Customer shall no longer receive software updates. This does not constitute a material defect. The Customer is given the opportunity to reactivate the licence or to conclude a new licence agreement at any time.
(4) Furthermore, after the licence has expired, WOW! allows the Customer to continue using the WOW! multi-brand diagnostics and AU target data in the versions current at the time of termination of the Agreement, in a restricted form (according to the performance description of the software, available at: www.wow-portal.com/diagnostics). However, full functionality of the WOW! software is only available with a valid licence. Certain functions are no longer available to customers with an inactive licence. After the end of the Agreement, the use of technical data, work values and hotline services is excluded and all rights of use thereto shall revert to WOW!. Further software updates may then only be obtained through a new agreement.
§ 5 Principles for handling WOW! software
(1) The contract software was specifically designed for the hardware offered by WOW! and has been tested for correct functionality in this combination only. If the contract software is not delivered to the Customer pre-installed on hardware supplied by WOW! at the Customer’s request, use of the contract software generally presupposes the hardware and software environment described in the WOW! Snooper Plus or LOOQER manual. An internet connection is also required for activation and software updates. In general, installation of the contract software by the Customer on the Customer’s own hardware is undertaken at the Customer’s own risk. In the event that the Customer fails to meet the current minimum requirements set out in the WOW! Snooper Plus or LOOQER manual, WOW! expressly refuses to warrant for the full functioning of the contract software and for hardware or software conflicts that occur within the framework of installation by the Customer. In such cases, the Customer shall be referred to the customer service of its hardware or software manufacturer; and no support can be provided by WOW! customer service for the Customer’s own hardware or software.
(2) WOW! shall surrender a copy of the contract software programs pre-installed in digital form on a hardware environment, along with a version of the related documentation either in the form of an electronic document or made available for downloading from the internet. In order to use the relevant contract software, online activation is required via the internet. To meet this requirement, the Customer must therefore also have internet access and enable use of the contract software if there is a firewall or other security measures in place.
(3) Copyright notices, serial numbers and any other features used to identify the program may not be altered or removed from the contract software.
(4) Decompiling is permitted only within the terms of § 69e of the German Copyright Act (UrhG). Reverse engineering or other manipulations, or any attempts at these by the Customer are expressly forbidden, and represent good cause for WOW! to declare extraordinary termination without notice and/or bring claims for infringement of copyright.
§ 6 Liability
(1) WOW! shall be liable within the extent of the law as follows:
- in cases of wilful intent or gross negligence,
- for damage to life, limb or health,
- in accordance with the provisions of the Product Liability Act and on the terms of the warranty expressly provided by WOW!
(2) In the event of a breach of obligation due to slight negligence, where the said obligation is essential for fulfilling the purpose of the Agreement, WOW!’s liability shall be limited to the amount of damages which would normally and typically occur with the type of transaction in question.
(3) Liability of WOW! extending above and beyond § 6 (1) and (2) is excluded.
(4) The aforementioned limitation of liability shall also apply to the personal liability of WOW! employees, representatives and bodies.
(5) Strict liability on the part of WOW! for initial defects in the software is excluded.
§ 7 Security measures, right to audit
(1) The Customer shall take suitable measures to protect the contract software, and the online access data if applicable, from access by unauthorised third parties. In particular, all copies of the contract software and access data must be kept in a safe place.
(2) At the request of WOW!, the Customer shall allow WOW! to check that the contract software is being used properly, and in particular that the Customer is using the program qualitatively and quantitatively within the terms of the licences acquired by it. To this end the Customer shall provide WOW! with information and allow WOW! to see relevant documents and check the hardware and software environment used. WOW! may carry out their audit at the Customer’s premises during its regular business hours, or may have it carried out by third parties who are bound by professional secrecy. WOW! will ensure that the Customer’s business operations are disturbed as little as possible during their activities at its premises. Audit procedures require prior notice in writing four (4) weeks in advance.
§ 8 Miscellaneous, amendments to the agreement, data protection
(1) Unless otherwise stipulated in these licence terms and conditions, the General Conditions of Sale, Delivery and Payment of Würth Online World GmbH (WOW!) apply. In case of doubt, these terms and conditions take precedence over the General Conditions of Sale, Delivery and Payment of Würth Online World GmbH (WOW!).
(2) Insofar as certified diagnostic functions are used, the additional licence agreements made regarding these shall apply in full.
(3) To be legally effective, amendments and supplements to the Agreement must be made in writing, unless they are made electronically through customer access to the online platform of WOW!.
(5) The Customer consents to the use of anonymised log files for the purpose of further product development or new product development by WOW!. WOW! shall also be entitled to forward such files to its partners for the same purposes.
(6) The Customer shall be notified of any changes to these licence conditions either in writing or electronically. The Customer may cancel the Agreement within six (6) weeks of receipt of this notification. If there is no cancellation, changes shall be assumed to have been accepted after the six (6) weeks have elapsed.
(7) Should individual conditions in this Agreement prove to be unworkable, the validity of the remaining conditions shall remain unaffected.
(8) The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
(9) The place of jurisdiction is Stuttgart.
Last updated: September 2021