END USER LICENSE AGREEMENT (EULA)

GLI Business Solutions GmbH and Licensee are here in after referred to collectively as the „Parties“ or individually as „Party“.

Table of Contents

END USER LICENSE AGREEMENT (EULA)

1. Scope of Application
2. Grant of License, Audit, Termination, Partial Maintenance Termination (End of License)
3. Obligations upon Termination of Contract
4. GLI Business Solutions Product Enhancement Plan Compensation
5. Warranty Rights, Limitation of Liability
6. Confidentiality
7. Changes to the Contract Software, Interoperability
8. Closing Provisions
9. Scope of Application

1.1     Licensor is GLI Business Solutions GmbH, Fraunhofer Straße 3, 25524 Itzehoe, Germany

1.2     This EULA applies to all standard software programs of GLI Business Solutions GmbH (hereinafter „GLI Business Solutions“) including new versions (upgrades, updates, service packs or hotfixes), industry solutions and add-ons (hereinafter collectively „Contract Software“).

1.3     Any contradictory general terms and conditions of Licensee shall not apply.

1.4     The Contract Software together with documentation and accompanying documents, is copyrighted. Contrary-to-contract use, in particular any distribution, wired or wireless communication to the public, including making publicly available, transmission, modification and reproduction are illegal and will be prosecuted under criminal and civil law.

1.5     GLI Business Solutions, the companies of the GLI BUSINESS SOLUTIONS group and authorized dealers (hereinafter collectively Partners) are entitled to distribute the Contract Software based on this EULA.

2. Grant of License, Audit, Termination, Partial Maintenance Termination (End of License)

2.1     Perpetual License

2.1.1   On full payment of the agreed fee to the respective seller of the licenses of the Contract Software (hereinafter „Seller“), GLI BUSINESS SOLUTIONS grants licensee (hereinafter customer) the perpetual (with the exception of section 2.6), non-exclusive and non-transferable license to use the Contract Software for its own internal business purposes. Unless agreed otherwise between the Parties, this includes installing, loading and running of the Contract Software on single server(s) of Licensee as well as making a reasonable number of backup copies; Licensee is not entitled to make further copies.

2.1.2   Except as provided for in sections 2.5 und 7.1, Licensee shall not be entitled to make copies, distribute, publicly reproduce by wire or wireless means, make available to the public, grant sublicenses, rent, lease or otherwise transfer the Contract Software to third parties, whether in return for payment or free of charge. Notwithstanding the foregoing, Licensee shall be entitled to permanently transfer the Contract Software to a third party if at the same time Licensee completely abandons its own use of the Contract Software. For this purpose, Licensee shall immediately delete all copies of the Contract Software installed at its premises or hand them over to GLI BUSINESS SOLUTIONS after passing on the Contract Software to the third party, provided that legal regulations do not oblige him to a longer storage. On request by GLI BUSINESS SOLUTIONS, Licensee has to explain in writing the measures taken by Licensee for the complete abandonment of its own software use, or the reasons for the longer storage of the contract software. Licensee will only grant the third-party rights of use to the extent specified in this section 2.1.

2.1.3   The number and type of licenses to the Contract Software, in particular the maximum number of employees of Licensee who are authorized to use the contract software at the same time (hereinafter „Concurrent User“), or the named employees of Licensee which are entitled to use the Contract Software (hereinafter „Named User“), are specified in the purchase order or the agreed contract.

2.1.4   GLI BUSINESS SOLUTIONS retains all further rights to the Contract Software.

2.2     Temporary License (Subscription)

2.2.1   GLI BUSINESS SOLUTIONS grants Licensee the non-exclusive, non-transferable license, which is limited in time to the respective contract term of the Software Subscription to use the Contract Software and new versions thereof for its own business purposes, starting with payment of the agreed fee to the respective Partner. Depending on the agreement, this includes either

1. a) the installation, loading and operation of the Contract Software on individual servers of Licensee as well as the creation of an appropriate number of backup copies; or
2. b) the right to use the Contract Software via remote online access.

2.2.2   Subject to the provisions of sections 2.2.1, 2.5 and 7.1, Licensee shall not be entitled to copy, distribute, publicly reproduce by wire or wireless means, make publicly accessible, grant sublicenses, rent, lease or otherwise transfer the Contract Software to third parties, whether in return for payment or free of charge.

2.2.3   The number and type of licenses for the Contract Software, in particular the number of Named Users, are specified in the purchase order or the agreed contract.

2.2.4   Licensee’s license to use the Contract Software under this section 2.2 shall automatically end upon termination of the Software Subscription term without further notice.

2.2.5   GLI BUSINESS SOLUTIONS retains all further rights to the Contract Software.

2.3     Extension of Perpetual or Subscription Licenses

If Licensee intends to use the Contract Software beyond the agreed upon numbers and types of licenses (e.g. for a higher number of Concurrent or Named Users), it shall notify the respective Seller or Partner immediately at least in text form and come to a contractual agreement with the Seller or Partner on this. Unless agreed otherwise with the Seller or Partner, Licensee is obliged to pay GLI BUSINESS SOLUTIONS for each use of the Contract Software beyond the originally agreed number and type of licenses in accordance with the then  current price list of GLI BUSINESS SOLUTIONS; further claims of GLI BUSINESS SOLUTIONS shall remain unaffected.

2.4     Audit

As long as Licensee uses the Contract Software, GLI BUSINESS SOLUTIONS is entitled to have the proper licensing examined by a financial auditor of its choice. Licensee shall grant such auditor access to its business premises, its books of account, its systems and all documents and data necessary for the audit and shall provide all information required in this context. GLI BUSINESS SOLUTIONS must announce the examination with a lead time of 1 month. GLI BUSINESS SOLUTIONS bears the costs of the examination.

2.5     Affiliated Companies

For the purposes of this EULA, affiliated companies are those companies in which Licensee has at least a 50% direct or indirect interest or which have at least a 50% direct or indirect interest in Licensee, or companies which are also at least 50% directly or indirectly owned by the same owner as Licensee (hereinafter Affilates).  Affiliates are, like Licensee, entitled to use the Contract Software under this EULA. This does not include an increase in the number of Concurrent or Named Users permitted. Licensee will ensure that its Affiliates comply with all their obligations under this EULA.

2.6     Termination

2.6.1   GLI BUSINESS SOLUTIONS is entitled to terminate this EULA for good cause without notice if Licensee violates this EULA and does not remedy this violation despite a warning.

2.6.2   In case of a perpetual license according to section 2.1, the following additionally applies: if Licensee partially terminates the software maintenance and | or the GLI BUSINESS SOLUTIONS |Product Enhancement Plan related to the Contract Software, GLI BUSINESS SOLUTIONS is entitled to deactivate the affected Contract Software or to demand its immediate deactivation from Licensee from the effective date of the partial termination (end of license to use the Contract Software).

3. Obligations upon Termination of the Contract

3.1     Upon termination of this EULA and |or of the Software Subscription and software maintenance, Licensee shall return the original data carrier and all copies thereof, including accompanying documentation and delete all copies from its systems. The complete return and deletion is to be confirmed vis-à-vis GLI BUSINESS SOLUTIONS in text form.

3.2     If Licensee uses the Contract Software by way of online access according to section 2.2.1 b), the respective Partner is entitled to block the online access to the Contract Software upon termination of this EULA and | or end of the Software Subscription term.

4. GLI BUSINESS SOLUTIONS |Product Enhancement Plan Compensation

4.1     If Licensee in case of a perpetual license according to section 2.1 has contracted for a Microsoft Enhancement Plan, Licensee is obliged, with regard to the Contract Software, also to pay the fee for the GLI BUSINESS SOLUTIONS |Product Enhancement Plan during the term of the Microsoft Enhancement Plan. The GLI BUSINESS SOLUTIONS |Product Enhancement Plan entitles Licensee to receive new versions of the Contract Software (upgrades, updates, service packs or hotfixes) via internet download. The details are specified in the GLI BUSINESS SOLUTIONS |Product Enhancement Plan. This payment is to be made annually in advance

4.1.1   to the respective Seller in accordance with the respective contract or purchase order; or

4.1.2   to GLI BUSINESS SOLUTIONS directly, if there is no contractual relationship with the Seller. Unless agreed otherwise, the fee in this case shall be in accordance with the current price list of GLI BUSINESS SOLUTIONS.

4.2     If Licensee has removed the Contract Software from the Microsoft license file in accordance with the Microsoft Enhancement Plan before the beginning of a new enhancement plan period, the fee  according to section 4.1.2 persists only until the end of the previous enhancement plan period.

4.3     In case of Software Subscription according to section 2.2, the GLI BUSINESS SOLUTIONS |Product Enhancement Plan is part of the Software Subscription and subject to the fee to be paid for it. For Software Subscription, sections 4.1 and 4.2 above shall apply accordingly with the proviso that the remuneration is to be paid monthly or annually in advance, depending on the agreement.

5. Warranty Rights, Limitation of Liability

5.1     Rule Case: Any warranty rights or liability claims are exclusively vis-à-vis the respective Seller or Partner and shall be determined exclusively by the respective contract or purchase order concluded with the respective Seller or Partner.

5.2     Exception: Only if Licensee no longer has a contractual relationship with the Seller or Partner and is nevertheless obliged to pay fees to GLI BUSINESS SOLUTIONS directly for the GLI BUSINESS SOLUTIONS |Product Enhancement Plan pursuant to section 4.1.2, any warranty rights or liability claims of Licensee are to be directed to GLI BUSINESS SOLUTIONS; in this case, the following shall apply:

Warranty Rights

5.2.1   GLI BUSINESS SOLUTIONS is to be notified of defects, which are to be described as accurately as possible.

5.2.2   Any statutory warranty rights of the customer vis-à-vis GLI BUSINESS SOLUTIONS are initially limited to supplementary performance in the variant of the rectification claim. The rectification shall be completed with the next available upgrade, update, service pack or hotfix. In case of a defect, three repair attempts are to be accepted, unless this cannot be reasonably expected of Licensee.

5.2.3   Licensee may terminate or reduce the price only after these attempts have failed.

5.2.4   In case of a legitimate reduction in the price, Licensee has a claim for refunding in the event of overpay.

5.2.5   Licensee’s claims for damages shall only exist under the conditions and within the limits specified in sections 5.2.11 to 5.2.17 below.

5.2.6   Any further statutory warranty rights of Licensee are excluded.

5.2.7   The warranty rights of Licensee shall lapse after one year, starting with the download or online usage of the relevant version of the Contract Software.

5.2.8   As far as GLI BUSINESS SOLUTIONS has communicated specifications for the environment for the use of Contract Software, it is a condition of warranty that use is made exclusively in an environment that meets the specifications.

5.2.9   If Licensee makes a change to the Contract Software, in particular a change in the source code or a complete or partial deactivation or has a change carried out by a third party, liability for defects is excluded, unless Licensee can prove that the defect is not based on the measures taken or initiated by Licensee.

5.2.10  Efforts caused by unjustified complaints must be paid according to the current price list of GLI BUSINESS SOLUTIONS.

Limitation of Liability

5.2.11  If a legal representative or a vicarious agent of GLI BUSINESS SOLUTIONS in the performance of any of its obligations acts with negligence or slight negligence, the liability of GLI BUSINESS SOLUTIONS shall be limited to the typically foreseeable damage where a material contractual obligation was breached (material contractual obligations are those contractual obligations which need to be fulfilled to allow for the proper execution of the respective contract and the observance of which the contractual partners may regularly rely upon). In other cases, any further liability of GLI BUSINESS SOLUTIONS for negligence or slight negligence shall be excluded.

5.2.12  Notwithstanding section 5.2.11 above, GLI BUSINESS SOLUTIONS shall be liable without limitation for damages resulting from injury to life, body or health caused by an intentional or negligent breach of duty by GLI BUSINESS SOLUTIONS.

5.2.13  Strict liability regardless of fault for defects, existing at the time when the contract was concluded in accordance with section 536a of the German Civil Code, shall be excluded.

5.2.14  If the liability of GLI BUSINESS SOLUTIONS is limited under the above provisions, this also applies to any liability of company organs, institutions, employees, freelancers, representatives and vicarious agents.

5.2.15  All claims for damages – except for those based on intent, gross negligence or those referred to in section 5.2.12 – expire after two years. This period begins with the end of the year in which the claim arose. For the claims for damages based on intent, gross negligence or section 5.2.12, the statutory limitation period shall apply.

5.2.16  In the event of data loss, GLI BUSINESS SOLUTIONS shall only be liable for reimbursement of expenses for the recovery of data up to the last data backup.

5.2.17  The above is without prejudice to the statutory liability under the German Product Liability Act.

6. Confidentiality

6.1     Both parties agree that the Contract Software contains confidential information and a trade secret of GLI BUSINESS SOLUTIONS under the German Trade Secrets Act. Licensee agrees to carefully protect the Contract Software, including accompanying documents, any backups made and any other information marked or designated confidential by GLI BUSINESS SOLUTIONS, which is made available to Licensee under this contract and to treat it as strictly confidential and to protect it against unauthorized access or disclosure through appropriate confidentiality measures. This includes in particular all information made accessible that goes beyond the external appearance of the Contract Software and the mere listing of its functionality as well as the methods and the procedures used by GLI BUSINESS SOLUTIONS.

6.2     The obligation of confidentiality shall not apply to confidential information that

• was already public knowledge at the time of disclosure or was subsequently made public without any non-compliance with the above provisions being partly responsible for this;
• was disclosed by GLI BUSINESS SOLUTIONS expressly on a non-confidential basis;
• was in the lawful possession of Licensee prior to the disclosure;
• was later disclosed by a third party without breach of any obligation of confidentiality.

The burden of proof for the existence of the above exceptions shall be borne by Licensee.

7. Changes to the Contract Software, Interoperability

7.1     The change, adaptation, decompilation, disassembly and reassembly and any other alteration of the Contract Software are not permitted unless GLI BUSINESS SOLUTIONS has given prior approval at least in text form or Licensee is entitled to do so in accordance with the following provisions:

7.1.1   The approval of GLI BUSINESS SOLUTIONS is not required, if dublication of the code and translation of its code form are indispensable to obtain the information necessary to achieve interoperability of an independently created computer program with other programs, provided that the following conditions are met:

• the actions are conducted by Licensee or by another person, who is duly authorized

to use a copy piece of the Contract Software or on their behalf by an authorized person;

• necessary information to achieve interoperability are not made readily available to the

persons referred in section 7.1.1;

• the actions are limited to the parts of the original Contract Software that are necessary to

achieve interoperability.

7.1.2   Information obtained in the course of actions under section 7.1.1 shall not

• be used for purposes other than to achieve interoperability of the independently created computer program,
• be disclosed to third parties, unless that disclosure is necessary for the interoperability of the independently created computer program,
• be used for the development, production or commercialization of a computer program substantially similar in its expression, or for any other act which infringes copyright.

7.2     If Licensee otherwise desires changes, modifications, alterations or adaptations of the Contract Software, the relevant partner will offer these on the basis of a separate purchase order or a separate contract.

7.3     Unless agreed otherwise, all further developments of the Contract Software are also to be provided to GLI BUSINESS SOLUTIONS. GLI BUSINESS SOLUTIONS is entitled to integrate such further developments including documentation and to use and exploit them in the source and object code perpetually, irrevocably, worldwide and freely transferable to third parties for all kinds of use and exploitation including yet unknown types of use. In particular, this includes the right to reproduce them in any way, distribute, perform and transfer them via cable or wirelessly, make them available for use of third parties and utilize them fully in every conceivable way as well as the right, at GLI BUSINESS SOLUTIONS sole discretion to edit, develop, modify, decompile and reshape them in every way and modify them in any other way and use and exploit the results created thereby in the same manner. Licensee receives a non-exclusive right thereto if this has been agreed in the purchase order or the separate contract.

7.4

Multiplexing. Multiplexing (sometimes referred to as „pooling“) is a method of indirect access to hardware or software („indirect access“) used for the following: – pooling connections, – redirecting information, – reducing the number of users who directly access or use the Software, – reducing the number of users that the Software directly manages. Each user accessing MAIN-TOOL solution via a multiplex connection must be properly licensed with an access license.

7.4.1 Outsourcing of business processes. You are not authorized to use the Software to provide business process outsourcing services to your customers. However, you may make your access licenses available to business process outsourcers who act on your behalf and provide services to your business.

8. Closing Provisions

8.1     All changes and additions to this EULA must be made in text form to be effective. Oral subsidiary agreements are not valid.

8.2     If any provision of this EULA is invalid, this will not affect the validity of the remaining provisions. The Parties will, without delay, substitute the invalid provision by a valid provision which comes closest to the economic intent of the invalid provision.

8.3     The contractual relations are governed by German law; the application of the 1980 United Nations Convention on the Contracts for the International Sale of Goods (CISG) is excluded.

8.4     The place of jurisdiction for all legal disputes arising from or in connection with this EULA is, to the extent permitted, Itzehoe.