8.5 The right to use the Software according to its intended purpose which is granted to the Client also includes the right to grant a right to use the Software to End Clients in accordance with the provisions of this Section 8 (“Sublicense”). When granting sublicenses, the Client shall not be allowed to grant any further rights of utilization than those as agreed in this Section 8. and acquired by him in the individual case wherein our right to grant further sublicenses to the End Client shall be excluded, and the Client is also not entitled to use third parties as sub-distributors. The Client guarantees that the license terms of these TERMS AND CONDITIONS are observed by the End Client and will consequently take all required measures. Within the framework of such measures, the Client agrees in particular, to conclude a reasonable license agreement and to ensure that all appropriate technical requirements and conditions for use of the Software are also provided in the environment of the end Client.
The Client agrees to compensate The Company for any damage and hold harmless and indemnify The Company from and against any and all costs and expenses (including, but not limited to the prosecution costs) arising from violation of The Company’s rights in the Software by the End Client or by a breach of legal regulations in distributing the Software by the Client to End Clients.
8.6 Unless expressly permitted in these TERMS AND CONDITIONS or otherwise dictated by mandatory law, the Client is in particular not allowed to use the Software and/or the entirety or elements of the corresponding rights of use or other rights granted to him in accordance with these TERMS AND CONDITIONS (including those contained in individual contracts concluded on their basis) to be used by third parties, passed on or made accessible to third parties or rented, lent, sold, sublicensed or otherwise transferred without The Company’s prior written consent.
8.7 Unless otherwise expressly agreed with The Company, the Client is not allowed to use the Software in order to directly or indirectly compete with The Company on the market with a business model similar to The Company’s one. The Client is not entitled to grant sublicenses to group-internal parent companies, affiliates or subsidiaries (intercompany transfer/transaction). In cases of doubt, the Client is to obtain a prior written approval from The Company.
8.8 The copyright notices, brands, trademarks, serial numbers and other features serving the program/software identification must not be removed, destroyed, modified or obliterated. The Client is not entitled to remove or bypass any mechanisms of the Software or parts thereof which protect the Software from unauthorized use.
8.9 The Company is entitled to fully or partially revoke the rights granted in accordance with this Section if the Client fails to pay the due license fees either as a whole or in part despite reminder and after expiry of a reasonable period for payment. The Company expressly reserves the right to assert further claims, notably the claim for damage compensation.
8.10 Using the Software for purposes other than those as in accordance with its intended purpose and/or in breach of other provisions of this Section 8. constitutes a violation of our rights in the intellectual property and represents a material breach of these Terms and Conditions. In all other respects, Section 21.2 shall apply. The Company’s further rights, for whatever legal reason, shall remain unaffected.
8.11 If The Company provides a new program version of the Software (including, but not limited to software patches, updates, upgrades, new releases/versions) to the Client within the framework of the warranty or as support services, for example, such a new program version shall similarly be subject to the relevant provisions of these General Terms and Conditions applicable for the Software.
The Client may hand over the new program versions of the Software provided to him to the End Client only after the new program versions have successfully passed a stress test under real conditions in the environment of the Client. Unless otherwise expressly agreed in writing, the costs for such a test shall be borne by the Client.
8.12 If The Company creates program add-ons for the Software at the Client’s special request (e.g. further functions for use), the Client will be granted a right to use these add-ons pursuant to the right obtained for the use of the Software.
Any and all intellectual property rights in such program add-ons shall be created exclusively to The Company benefit. As a rights-holder, The Company is entitled to exploit and use such program add-ons without limitations.
If such a creation of rights to The Company’s benefit is not possible for legal reasons, the Client herewith agrees to grant The Company an irrevocable, exclusive and royalty-free right to use and exploit any and all program add-ons created for the Client without limitations in respect of the time, nature or geographical extent of such use or exploitation. The Company is entitled without limitations to integrate the program add-ons into the existing software as an inherent program part. The aforementioned granting of rights also includes the right for processing, modification, copying, distribution and exploitation of any kind and the right to transfer rights for use and to grant sublicenses unlimited in time and content. If the Client is a joint author, he herewith waives his share of the exploitation rights in accordance with Section 8 (4) of the German Copyright Law (“UrhG”). Insofar as employees or agents of the Client are joint authors, the Client assures to have acquired any and all rights of use and exploitation from them and to have received a declaration of waiver in accordance with Section 8 (4) of the Copyright Law. The aforementioned granting of rights refers to the object code and source code and all intermediate results and documentation created in connection with the program add-ons, in particular development documentation.