TERMS AND CONDITIONS OF LICENCE AND USE FOR WOW! SOFTWARE AND ADD-ON MODULES

Preamble

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 delivered to the Customer either on a data carrier, by download or pre-installed on hardware supplied by WOW!.

§ 1 Object of the agreement and granting of rights

(1) The object of these Terms and Conditions of Use is the licensing of the WOW! software reserved by the Customer (consisting of the available and reserved modules WOW! multi-brand diagnostics, technical data, work values, exhaust emissions target data or hotline services) by lease of the software in the version current at the time of licensing in the form of an object code, including related user documentation, and granting the appropriate contractual rights of use as described hereunder. The agreed composition of the contract software shall be conclusively defined in the service description.

(2) Installation and configuration services are not covered by this agreement.

(3) The Customer is granted the non-exclusive, spatially unlimited, non-sublicensable and non-transferable right of use of the contract software for a period of time limited to the term of the agreement. The software may be used simultaneously by a number of natural persons not to exceed the number of licences provided to the Customer for use. 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”.

(4) 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 obtain the rights of use required for authorised use. Should it fail to do so, WOW! shall exercise its rights accordingly.

(5) The Customer is advised that the contractual use of the contract software may be impaired by an external security check that is carried out prior to diagnostic access of the contract software to vehicles of certain vehicle manufacturers. The Customer can overcome this security gateway check by applying for a digital key from the manufacturer concerned and receiving it if the manufacturer’s security check is passed. A manufacturer’s refusal of access to the vehicle in question due to lack of a digital key shall not constitute a disruption of the services owed by WOW! on the basis of these terms and conditions, nor shall it entitle the Customer to assert claims against WOW!. The issuing of one or more digital keys is outside the responsibility of WOW! and depends primarily on the Customer’s personal qualification for the digital key.

§ 2 Prices

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 statutory rate of value-added tax.

§ 3 Warranty and maintenance

(1) WOW! guarantees for the duration of the agreed contract period the agreed composition of the software and the maintenance thereof, and that the Customer will be able to use the software on the terms of this agreement without infringing the rights of third parties. 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 by WOW! (available on the WOW! website), i.e. in particular if the software is installed by the Customer itself on hardware already in place on the Customer’s premises, or that the Customer uses the software in breach of the agreement, e.g. by making changes or processing hardware or software itself or by having them made by third parties. The Customer is obliged to immediately notify WOW! in writing of any software defects it discovers. In the event of material defects, such notification shall include an indication of the time when the defect occurred and a description of the symptoms of the defect as well as the submission of documents illustrating the defect.

(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) WOW! may refuse to provide the warranty until the Customer has paid WOW! the agreed remuneration, minus an amount that corresponds to the economic significance of the defect. This does not apply to claims of the Customer that are undisputed, legally established or ready for decision.

(4) If the Customer claims a defect against WOW! and this defect cannot be detected or reproduced or if the defect cannot be attributed to a warranty obligation of WOW! after appropriate investigation (pseudo defect) and the Customer could have recognised this, the Customer shall reimburse WOW! for the costs and expenses for verification and/or attempted troubleshooting.

(5) In cases where WOW! is obliged to provide a warranty, warranty claims shall become statute-barred within one (1) year from the commencement of the statutory limitation period, unless WOW! has unlimited liability under the statutory provisions or the liability regulations set out in this agreement. This also applies to claims for compensation and the right of removal pursuant to § 548 of the German Civil Code.

(6) Insofar as the software products of WOW! are dependent on third-party software (e.g. operating system, browser) for their running or operation, they are only guaranteed to be compatible with the third-party software mentioned in the documentation/manual or, insofar as none is mentioned therein, the third-party software in common use at the time of conclusion of the agreement. WOW! does not guarantee that the software products are compatible with later versions. The warranty also does not include adapting the software products to changing operating conditions and technical and functional developments such as changes to the IT environment, in particular changing the hardware or operating system, adapting products to the range of functions of competing products or making products compatible with new data formats.

(7) 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 “Exhaust emissions 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.

(8) The Customer is obliged to independently initiate the download of software updates at regular intervals using a button in the WOW! software and 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! is entitled to carry out system and security-relevant updates immediately and to install them by means of a “silent update” without any interaction on the part of the Customer. Within the client-side software application, the Customer will receive messages from WOW! regarding the availability of new updates; no separate messages will be provided outside the software application. Continuous updating of the contract software is an essential requirement for utilisation of the technical support services, since these always relate to the current version of the contract software. Warranty claims due to defects arising from the fact that the Customer has not fulfilled its obligation to regularly install updates offered by WOW! or has prevented the installation of updates in any other way, are excluded.

§ 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 exists if the Customer infringes the rights of use granted by WOW! by using the software beyond the extent allowed under this agreement, and failing to desist from said infringement within an appropriate period set by WOW! after receiving due warning from WOW!. Setting a deadline or issuing a warning shall not be required if the other Contracting Party has definitively refused the service owed or if there are special circumstances that justify the immediate termination of the contractual relationship, taking into account the interests of both parties.

(3) In the event of termination, the Customer shall no longer receive software updates. This does not constitute a deficiency. 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 exhaust emissions target data in the versions current at the time of termination of the agreement, in a restricted form (according to the service description of the software, available at: www.wow-portal.com/diagnostics). However, the 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!.

§ 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 its request, use of the contract software generally presupposes the hardware and software environment described in the Snooper Plus or LOOQER manual (available on the WOW! website). 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 meet the current minimum requirements set out in the WOW! Snooper Plus or LOOQER manual, WOW! expressly excludes any warranty for full functionality of the contract software, or for any hardware or software conflicts that may arise as a result of installation by the Customer. In such cases, the Customer shall be referred to the customer service department 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. Furthermore, technical measures that protect the contract software against use in breach of the agreement, in particular against unauthorised reproduction, may not be removed or otherwise circumvented. § Section 95a of the German Copyright Act remains unaffected.

(4) Decompiling is permitted only within the terms of § 69e of the German Copyright Act. Reverse engineering or other manipulations or any attempt by the Customer to do so is expressly forbidden, and constitutes cause for WOW! to execute extraordinary termination without notice. The assertion of further rights and claims, in particular those arising from copyright and under the Law on the Protection of Trade Secrets, remains reserved.

(5) The Customer is entitled to create a backup copy of the data carrier provided to it if this is necessary to secure future use. The Customer must visibly affix the note “Backup copy” as well as a copyright notice of the manufacturer to the backup copy created. The backup copy must be deleted after termination of the contractual relationship.

§ 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) WOW! shall not be liable in cases where the Customer has failed to exercise the care customary for its professional activity.
These are, in particular, cases in which:

the Customer does not take (sufficient) account of the warning signals and messages of the vehicles evaluated with the contract software.
the Customer has not (completely) carried out the usual test and repair steps during an inspection of vehicles.
the Customer disregards or does not comply with occupational safety and accident prevention regulations.
the workplace or its equipment does not meet the specifications!

(5) The aforementioned limitation of liability shall also apply to the personal liability of WOW! employees, representatives and bodies.

(6) Strict liability on the part of WOW! for initial defects in the software is excluded.

(7) WOW! shall only be liable for loss of or damage to data and its recovery if such loss could not have been avoided even if the Customer had taken reasonable data backup measures.

§ 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. If the inspection reveals that the purchased number of licences has been exceeded by more than 5% (five percent) or that there has been other non-contractual use, the Customer shall bear the costs of the inspection, otherwise the costs shall be borne by WOW!.

§ 8 Free and open source software

(1) The software contains free and open source software components which are subject to the respective open source licence agreements and may only be used on the basis of the applicable free and open source licence agreements. These are enclosed with the software or are made available to the Customer on request. The free and open source licence agreements may in particular contain provisions on the granting of rights of use and on warranty and liability that deviate from these Terms and Conditions of Use. If and to the extent that the provisions in these Terms and Conditions of Use and the free and open source licence agreements contradict each other, the free and open source licence agreements shall take precedence over the provisions of these Terms and Conditions of Use for the software components to which the free and open source licence conditions apply.

§ 9 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!). In particular, the provision of hardware to the Customer is subject to the General Terms and Conditions of Sale, Delivery and Payment of Würth Online World GmbH (WOW!), even if the contract software is delivered pre-installed on this hardware.

(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!.

(4) For all information in connection with the handling of the Customer’s data, WOW! refers you to its separate privacy policy which can be viewed on the WOW! website at https://www.wow-portal.com/web/en/wow/privacy/statement.php

(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: 07 / 2023