End-User Licence Agreement for Software (EULA)
Version 1.3, dated: 16 January 2017
This End-User Licence Agreement is a legal agreement between you, the customer, and Continental. This agreement supplements any contract you may have concluded with Continental or a Continental partner relating to the provision of the software as an independent product or as part of a product on which the software is installed or in which the software is embedded as firmware.
You acknowledge the terms and conditions of this agreement by purchasing the software and, at the latest, by installing and using it or, in the case of a product that has software installed on it or firmware contained in it, by purchasing the product and, at the latest, by putting the product into operation.
The following definitions shall have precedence over any identically worded definitions in the contract:
1.1 “Client” denotes a unit that can access a server and one or more product instances of server software running on the server. Depending on the respective software or product and the designated counting method for it, clients may be, for example, a user (“concurrent user”), agent software (“software agent”), a device, an identity (“named user”) or a communications channel (“line”). The type and number of the clients authorised to use the server software are defined in the contract.
1.2 “Client access licence” or “CAL” denotes a licence that permits a client to access the server software. Depending on the product, the CAL can permit one (1) client, a specific number of clients (e.g. 20, 25 or 100) or an indefinite number of clients to access the server software.
1.3 “Continental” denotes Continental Trading GmbH, Schwalbach, Germany, unless explicitly specified otherwise.
1.4 “Continental partner” denotes the distributors, dealers, VARs, OEMs and other sales partners who are authorised by Continental and sell products and services from Continental.
1.5 “Documentation” denotes the technical and/or functional descriptions that belong to the software and are provided together with the software. The documentation can be provided in electronic form and also online, e.g. over the Internet. The documentation includes the description of features, specific functions, hardware and software requirements, installation requirements, operating conditions and operating instructions, along with all the lists, diagrams and drawings contained in them. If designated by the respective holders of the rights to open source software or freeware, the documentation also comprises the respective open source licence texts, copyright notices (“attributions”) or licence terms of the freeware’s vendor.
1.6 “Standalone software” is software that is intended for use by a single person on a single computer system that is not used as a server, for example a desktop PC, notebook, smartphone, etc.
1.7 “Firmware” denotes standalone software that is firmly embedded in the microcontroller of an electronic device, such as a handheld diagnostic device, is only intended for use on the electronic device in question and not for installation or use on technically different hardware, and can be updated or deleted or removed from the device only using additional aids.
1.8 “Freeware” denotes software that can be used without the need for any payment or noncash compensation (such as display of advertising). Freeware may be subject to special licence terms of its vendor that may, for example, restrict the intended use or distribution of the freeware. Freeware may have functional restrictions that a commercially available version of the same software might not have. Unlike with open source software, for example, the freeware’s vendor does not usually supply the freeware’s source code as well.
1.9 “Customer” or “you” denotes the natural person or, if the software is purchased by or for a company, the company that acquires the software or, in the case of a product that has software installed on it or firmware contained in it, that acquires the product and is not a Continental partner or affiliated company of Continental.
1.10 “Licence” denotes the right to use specific software. A licence may be permanent and is then typically granted in exchange for a nonrecurring payment, or it is granted for a limited period of time for the duration of the respective procurement relationship, typically in exchange for a recurring fee. The precise type and scope of the licence(s) acquired by the customer are defined in the contract.
1.11 “Licence agreement” or “EULA” denotes this document.
1.12 “Open source licence” or “OSS licence” denotes licence terms for a computer program that grant the user – in addition to the right to use the software free of charge – rights of use that are usually reserved for the owner of the copyright to the computer program, such as the right to modify the computer program, combine it with other computer programs or to sell the computer program or a version derived from it, and where the licence terms demand that at least one of the following requirements is met: (a) The right to adapt the original or a modified version of the computer program is granted, (b) the party that has modified the program must grant everyone, or in some cases third parties who so demand, a free licence to use its intellectual property rights relating to the computer program, (c) the source code, including any changes or design information, must be provided to everyone, or in some cases to third parties who so demand, upon request and at no charge above and beyond the costs of providing it, (d) the holder of the copyright to the unmodified open source software must be stated (attribution). Open source licences within the meaning of this definition are for example, but not exhaustively, the GNU General Public Licence (GPL) family, the Berkeley Software Distribution Licence (BSD) family and public domain licences.
1.13 “Open source software” or “OSS” denotes a computer program that is subject to an open source licence and is either available (a) only in source code form or (b) in executable object code form and where the source code is supplied together with the executable code or (c) where the source code is provided free of charge (apart from shipping and delivery charges).
1.14 “Product instance” denotes a copy of the server software that is installed and run on a server. If virtualisation technologies are used, multiple product instances of the same server software can also be operated on a server and/or there are multiple installations of the server software that are run on the same server, depending on the method. Unless otherwise specified, the number of product instances is the number of copies of the server software run on a server.
1.15 “Product instance licence key” or “licence key” denotes an identifier that enables the product instance to be put into operation, in compliance with the maximum number of CALs permitted for the product instance. This can be a number or an electronic identifier (e.g. a certificate). A licence key can also permit a product instance to be accessed by an unlimited number of clients or for the product instance to be run on just one specific item of hardware. The precise scope of the product instance licence key acquired by the customer is defined in the contract.
1.16 “Server software” denotes (in contrast to standalone software) software that is installed on a server, the “host”, and is accessed by clients in order to use the functionalities of the server software.
1.17 “Software” denotes the computer program, the files and, if applicable, the data carriers that are provided in accordance with the contract or this EULA, including all and any updates, upgrades, bug fixes, modified versions, additions and reproductions provided for them. The software may comprise computer programs from Continental or third parties and is provided in general only in executable form (object code), unless the nature of the software (e.g. a script) means that the source code/script code has to be supplied. For the purposes of this EULA, the associated documentation is part of the software. In principle, the open source software and freeware supplied with the software is also covered by this definition of “software”, but the open source licences or special licence terms of the freeware’s vendor have precedence over this EULA. Unless otherwise indicated, the use of the term “software” (as defined in this Section 1) also includes firmware or the software part of products, as well as the software components required to update, configure or read the firmware of a product outside the device (e.g. a PC).
1.18 “Update” denotes a version of the software that contains bug fixes and possibly minor functional enhancements (e.g. additional drivers). Continental defines at its own discretion whether an update is published as a version that can be installed independently (release) or as a component that has to be installed additionally (e.g. a service pack). In either case, an update requires an existing, properly licensed installation of the software. When firmware is updated, suitable hardware and, if applicable, a suitable predecessor version on the hardware in question are required. Firmware updates may cause settings stored on the device to be lost. An update is typically identified by an increment in the release number after the main version number (e.g. “Version 1.2” instead of “Version 1.1”).
1.19 “Upgrade” denotes a version of the software that contains new and/or extended functionality and, if necessary, bug fixes for older versions. An upgrade can usually be installed independently. An upgrade always requires a proper licence for specific older versions of the software that are allowed to be upgraded. When firmware is upgraded, suitable hardware and, if applicable, a suitable predecessor version on the hardware in question are required. Firmware upgrades may cause settings stored on the device to be lost. An upgrade is typically identified by an increment in the main version number (e.g. “Version 2.0” instead of “Version 1.2”).
1.20 “Affiliated companies” denotes companies that are affiliated with Continental or the customer within the meaning of Section 15 et seq. of the German Stock Corporation Act (AktG). If the German Stock Corporation Act (AktG) is not applicable, “affiliated company” denotes any organisationally independent unit that controls Continental or the customer directly or indirectly, is controlled by one of the two or is under joint control with another party. “Control” denotes the ability to directly control management and the organisation of a company or have a steering influence on it, whether through the majority of the voting rights, under an agreement or otherwise.
1.21 “Contract” is the separate agreement (e.g. software licensing agreement) under which the customer has procured the software from Continental or a Continental partner.
2. Types of licence
2.1 Licence for standalone software: A licence for standalone software authorises the customer to install the software once on a single computer system and to use it on that system. Unless explicitly specified otherwise, the customer may additionally install a copy of the respective standalone software on a file server within the customer’s internal network in order to download the standalone software to and be able to install it on other individual computer systems connected to said internal network, if the standalone software enables such an installation routine and the customer has the necessary number of licences. Depending on the content of the contract, the maximum permitted number of installations may be defined by the number of purchased standalone licences. Overall, the number of purchased standalone licences must not be exceeded, irrespective of whether the specific standalone licence is tied to a specific named user or the number of standalone licences defines the number of instances of concurrent use of the standalone software permissible at any one time. Any other use of the standalone software in a network is not permitted.
2.2 Licence for server software: A licence for server software authorises the customer to run a single product instance on a server. A CAL for the server software in question must be acquired for each client that accesses a product instance, depending on the software in question. Overall, the number of acquired CALs must not be exceeded, irrespective of whether the CAL is tied to a specific named user or the number of CALs defines the number of instances of concurrent use of the server software permissible at any one time, regardless of whether it is used by (human) users, other software, devices or communications channels. If the same server software is run on one or more servers (virtualisation, operation in a cluster, load balancing, hot spare), in general a further licence for the server software must be acquired for each further product instance, unless explicitly designated otherwise for the product in question.
2.3 Licence for firmware: A licence for firmware authorises the customer to use the firmware on the hardware purchased by the customer. The right of use also applies to any replacement hardware provided pursuant to a maintenance agreement or warranty claim. The customer may create a backup copy of the firmware only if this function is explicitly provided for in the product in question. The firmware is not allowed to be installed on hardware, or a type of hardware, other than that which has been explicitly released for it by Continental, even if this were technically possible in an individual case.
3. Term and termination of licences
3.1 Licences for standalone software or server software shall be granted for a limited period of time, unless explicitly agreed otherwise in the contract. The contract can also specify a fixed term, after which the right to use the software automatically expires. Continental can specify that standalone software and server software are provided for permanent use.
3.2 If standalone software and server software are provided for permanent use, Continental can also define that specific special functions are enabled only in exchange for a separate payment and, if applicable, also only for a limited period of time and that, after the period of time expires, a new right of use must be acquired, for example also in the form of a subscription. Without the renewal, the special functions can no longer be used and the standalone software or server software merely provide the basic functionality.
3.3 In general, firmware licences are permanent. Continental can define that specific special functions of the firmware or hardware in question above and beyond the basic functionality are enabled only in exchange for a separate payment and, if applicable, also only for a limited period of time and that, after the period of time expires, a new right of use must be acquired, for example also in the form of a subscription. Without the renewal, the special functions can no longer be used and the firmware and hardware merely provide the basic functionality.
3.4 The term of software provision commences on the day the software is provided, unless installation/establishment of operability requires activation/registration in accordance with Section 4 hereinafter so that the software is enabled by Continental or the Continental partner. In this case, the term shall commence upon acceptance or activation/registration, whichever is earlier. In the case of the special functions for standalone software, server software or firmware, the period of use of the extended functions shall commence when the measure required to enable them is carried out, e.g. entry of a code.
3.5 The right of the Parties to extraordinarily terminate rights of use that have been granted for a limited period of time, as well as the statutory rights of callback of the originator, shall not be affected by this EULA. Above and beyond any further grounds that may be specified in the contract, Continental shall also have the right to terminate rights of use that have been granted for a limited period of time without notice, if the customer violates the provisions of this EULA to a not merely inconsiderable extent, in particular if the customer infringes Continental’s rights to the software in a way that would makes it unreasonable for Continental to continue to grant the rights and the customer demonstrably does not cease the violation within (10) days of receiving written notice (including by fax and email) from Continental setting said deadline. The right of Continental to take legal action against infringements of its rights, in particular by means of interim legal relief, shall remain unaffected.
3.6 When provision of the software for a temporary period of time ends, the customer shall permanently cease using the software in question immediately and shall destroy the software, any and all serial number(s), all CALs and other materials supplied with the software, including preinstalled materials, all copies, updates and earlier versions, immediately or return them at the request of Continental; if they are destroyed, written confirmation of that must be furnished. This shall also apply if it is not technically possible to use the software beyond the agreed period of time.
4. Registration/enabling of the software
4.1 If the software, firmware or a component thereof or enabling of special functions requires activation on a specific item of hardware or registration with the vendor (usually Continental, possibly a third-party vendor), for example by entering or loading a licence key or logging on to a website, the customer shall do that within thirty (30) days of installation or of when the hardware is put into operation for the first time. Only then is installation technically completed. Until activation has been completed, it is possible that the software or firmware does not work or only does so to a restricted extent (basic functionality); this does not constitute a defect. The customer must enter the information required for activation or registration as described in the documentation.
4.2 If software is activated for a specific item of hardware and changes are subsequently made to the hardware, it may be necessary to activate the software again within a specific period of time. If this is not done, the software may be locked so that it cannot be used further. An activation code then needs to be entered to enable it; this code can be requested from Continental or the respective Continental partner at any time, provided proof of authorisation is furnished.
4.3 Activation or registration shall be regarded as acceptance or acceptance without notice of defects only if the contract does not define any more specific provisions on acceptance or acceptance testing and there are also no individual agreements on this subject.
5. Granting of rights / rights of use
5.1 The software or firmware is protected by copyright laws, international copyright agreements and other laws and agreements on intellectual property. Vis-à-vis the customer, only Continental or where relevant the suppliers of Continental, OSS licensors or freeware vendors shall be entitled to all rights to the software and firmware that are not granted to the customer pursuant to this EULA and the associated contractual agreements.
5.2 As part of being granted the licence, and unless explicitly agreed otherwise in the contract, the customer shall obtain the nonexclusive right to use the software as defined in more detail in this Section 5 solely to handle its own internal business transactions and those of companies affiliated with the customer. All rights above and beyond that, in particular the right to distribute, translate, modify and rework the software or make it publicly available, shall remain with Continental.
5.3 In general, the rights to use the software or firmware, or data required to use or helpful in using the software or firmware, shall only be granted for the territory of the European Union under this EULA. The contract must explicitly specify whether the right of use applies to further regions or countries or is restricted to specific regions or countries. Any use outside the territory in question shall be prohibited and shall not be covered by the granted rights of use. There may be local restrictions on usability of the software, in particular under third-party licence regulations.
5.4 Sections 5.2 and 5.3 shall apply to firmware mutatis mutandis, subject to the proviso that the firmware may only be used on the purchased hardware. Continental may specify that the usability of special functions is subject to local restrictions, in which case only basic functionality may be available. Such products shall be appropriately identified.
5.5 The customer shall install and use the software or the device containing firmware only if it consents to all licence terms, including for the open source licences and to the special licence terms of the freeware vendors. If the customer refuses to, it must refrain from using the software (including any necessary installation of it). In the absence of any regulations to the contrary in the contract, the customer can then rescind the contract in relation to the software in question or the device containing firmware, to the exclusion of further claims. The software or the device and the documentation shall then be returned to Continental or the Continental partner from whom the software was procured. If return of the software is not technically possible, e.g. if it has been downloaded, the customer must give credible assurance in writing (paper form) that the software has not been installed and is not being used. If a device is also returned with it, any value impairment in the meantime must be taken into reasonable account.
5.6 Irrespective of Continental’s obligations from open source licences and unless explicitly specified otherwise in the contract, software shall be supplied and licensed solely in object code, i.e. in executable, machinereadable form. The customer shall not have the right to be provided with the source code for such object code.
5.7 With the exception of the OSS, the customer shall not decompile or disassemble the software, remove program parts from it, carry out reverse engineering or otherwise try to derive the source code from the object code. This shall not affect the customer’s right to carry out reverse engineering or decompilation in accordance with mandatory statutory provisions, such as Section 69d (3) and Section 69e of the German Copyright Act (Urheberrechtsgesetz), in particular if this is necessary to ensure that the software functions or is interoperable with other computer programs as contractually agreed. The customer shall ask Continental, in writing with a reasonable period of advance notice, to provide the information and documents necessary to ensure that the software functions or is interoperable with other computer programs as contractually agreed. The customer shall be authorised to reverse engineer or decompile the software pursuant to mandatory statutory provisions only once this period of notice has expired without result.
5.8 The customer may create a reasonable number of backup copies of the software. The customer shall not remove alphanumeric identifiers, trademarks and copyright notices in or on the software or data carriers and shall only copy the software in unmodified form. The customer shall keep records on the whereabouts of all copies and let Continental inspect them upon request. The above right to make backup copies shall apply to firmware only if the firmware in question expressly provides for the possibility of creating copies.
5.9 Outside the provisions of Section 7, software or rights to use the software shall not be rented, leased, lent, sublicensed or assigned or otherwise made available to third parties without the prior written consent of Continental (prohibition on subleasing). However, the customer can use third parties (e.g. IT service providers or as part of outsourcing) to use or operate the software, if this is done solely under the customer’s control and for the customer’s internal business purposes.
5.10 The software shall not be copied in full or in part. The cases explicitly permitted in the contract or under the law, e.g. backup copies, shall be exempted therefrom. Continental can freely decide whether to grant its consent. Continental shall deny its consent in cases of pure financial leasing only on legitimate grounds. Renting, leasing or lending of devices containing firmware shall not be restricted thereby, unless there are special functions on the device that are tied to the customer and are enabled for a limited period of time or such a restriction has been imposed on the device in question in the contract.
5.11 The software may contain confidential information as well as trade and business secrets of Continental or third parties (e.g. reference data for diagnoses). In this case, the customer shall – in order to ensure that the confidential information contained in the software is protected – give its employees who have access to the software appropriate instruction on protecting the information or obligate other persons who are to have access to the software in accordance with its intended use to keep it secret by concluding suitable agreements within them. The customer undertakes to notify Continental immediately if private persons or companies gain unauthorised knowledge or unauthorised possession of or make unauthorised use of the software or associated material, unless there are statutory reasons standing in the way of that.
5.12 If the customer is provided with data carriers containing multiple software products, the customer may only use the software for which it has acquired the rights of use. Unbundling or repackaging the software for the purposes of distributing or reselling it and any related modification of reproductions of the software shall not be permitted, even if technically feasible. The restrictions of this Section 5.12 shall apply even if further rights apply to any open source software or freeware that is also on the data carrier under its open source licence or the freeware vendor’s conditions of use.
5.13 The provisions of this EULA shall apply to firmware mutatis mutandis; however, firmware may only be used, or passed on to third parties in accordance with Section 7, together with the associated hardware for which it has been released.
6.1 After the warranty expires, Continental shall be free to decide whether it continues to offer additional supplies of computer software (maintenance) and, if so, for how long and for what software or devices containing firmware and what versions of them. Such maintenance services may be subject to a charge and, unless specified otherwise in the contract, may be governed by the separate terms and conditions of a maintenance agreement. However, the customer shall not have the right to demand that Continental conclude such a maintenance agreement with it. The same shall apply mutatis mutandis if data resources are updated and not the software.
6.2 Any additional supply of computer programs (e.g. a patch, update or new firmware image) provided to the customer as part of subsequent performance or under a maintenance agreement or another service, as well as all licence extensions, such as additional CALs, shall be an integral part of the provided software in question. If they are made available under the warranty, they shall be subject to this EULA, unless otherwise agreed in an individual case. Continental reserves the right to specify that additional deliveries of computer programs made available outside the warranty shall be governed by an updated EULA.
6.3 In the absence of any regulations to the contrary in the contract, Continental can specify for updates provided under a maintenance agreement that the software/device to be updated must have a minimum version.
6.4 The rights to use the preceding version/release shall expire when upgrade or migration versions or new releases of the software are installed or a new firmware version is loaded. The customer shall demonstrably destroy existing copies, including backup copies, or return them to Continental or the Continental partner, unless the customer proves that it requires the older version to comply with statutory or officially prescribed retention and accountability obligations and the upgrade or migration version of the software is not able to do that. The possibility of retaining copies shall always cease when the software is sold to a third party. This shall not affect the possibility of the customer to keep a backup copy for any necessary return to the previous version (downgrade) until the updated system is put into productive operation, plus an observation period of four (4) weeks. Continental can also define for specific products that a longer transitional period, during which parallel operation is carried out or the customer can return to the previous version (downgrade), applies to expiry of the rights of use.
7. Dissemination of the software in the case of rights of use for an unlimited period of time
7.1 Resale of the software and transfer of the rights of use shall be permitted only if the customer has been granted permanent rights to use the software for an unlimited period of time and only if the software and rights of use are passed on to the scope and in the combination acquired by the customer. As part of that, the software may be provided to the acquiring party only as a single entity and in full together with the documentation, all other associated materials and the CALs. Provision of it only for a temporary period shall not be permitted. Only partial provision of the software to third parties or provision of the same software to multiple third parties shall be prohibited, apart from in the cases explicitly permitted under the law. Firmware must not be sold separately from the associated device.
7.2 If the software is disseminated as permitted, the customer shall ensure, and must be able to prove in writing at Continental’s request, that
- The acquiring party has undertaken to comply with this EULA;
- The software, any and all serial number(s), all CALs, the documentation and other materials supplied with the software, including all copies, updates and earlier versions, have been transferred to the acquiring party;
- The customer has not retained any copies, including backup copies;
- Continental has been informed, directly or through the Continental partner in question, about the acquisition and the acquiring party and is provided with details of the serial numbers and licence keys of the software in question; and
- Continental has been requested to reregister the serial numbers and licence keys under the name of acquiring party.
When the software is transferred to the acquiring party, all rights of the customer to use it shall expire.
7.3 Sale of the software shall not automatically result in transfer or assignment of warranty claims or any maintenance agreement for the software that may exist between the customer and Continental. This shall not include rights to use special functions for a limited period of time; these shall stay with the hardware on which the firmware has been installed. If the customer acquires the software from a Continental partner, individual/different regulations may apply to warranty claims against or maintenance agreements existing with the Continental partner.
8. Open source software, freeware and third-party software components
8.1 The software may contain components that are subject in full or in part to separate licence regulations. This shall cover in particular open source software, freeware and third-party software components. Before concluding the contract, the customer can request a copy of the separate licence regulations from Continental or the Continental partner in question.
Such separate licence regulations shall have precedence over this EULA in respect of the component in question and shall be displayed as part of the installation process or referred to in the documentation.
8.2 Some OSS licences or freeware licences may contain additional restrictions or exclude warranty and liability claims and Continental is obliged to pass on these restrictions and exclusions to the customer, irrespective of whether they are valid or not in accordance with the legal system applicable to the contract. Continental advises the customer to find out what these restrictions and exclusions are and to obtain independent legal advice if in doubt.
8.3 If an open source licence envisages provision of the source code or documentation, Continental can choose to provide it either together with the software on a data carrier, on a separate data carrier, installed on the device or on Continental’s website and shall always provide it on a data carrier at the customer’s request in exchange for reimbursement of the relevant expenses/payment of the shipping costs. Continental shall comply with requests for provision of the source code or documentation on a data carrier for a specific version of the software for at least three (3) years starting from the date on which the version in question is no longer distributed by Continental in accordance with the product lifecycle specified by Continental.
8.4 Open source software and freeware shall be provided and can be used free of charge, i.e. no payment is due for provision of the OSS and the freeware and their use. However, Continental may demand a charge to cover its costs for providing the source code of the OSS on data carriers.
9. Duration of provision of the software in the case of rights of use for a limited period of time
If software is provided for a limited period of time, the term of its provision shall be calculated as of the date on which the software was available at the customer; if the software is made available by download, this shall be the day after the date on which the customer has been sent the access data required for downloading it. This shall not apply if installation/establishment of operability, including any necessary activation/registration, is carried out by Continental or the Continental partner. In this case, the time of activation/registration shall in general be regarded as the start of the term of provision of the software, without regard to any acceptance that may be conducted. Unless specified otherwise in the contract, the period of provision shall in general be twelve (12) months and thereafter shall be repeatedly and automatically extended by three (3) months, unless it has been terminated by one of the Parties in writing giving a period of notice of one month to the end of the minimum term or a renewal period.
10.1 Unless agreed otherwise in the contract, the software shall be delivered by Continental or the Continental partner by, at their choice, sending it on a separate data carrier or preinstalled on a device (e.g. server) to the agreed delivery address (physical shipping) or providing it electronically, e.g. by being downloaded by the customer from an online portal or app store (electronic shipping), with the relevant access data also being sent. Firmware is usually firmly installed on the hardware in question.
10.2 If the software is shipped on data carrier or preinstalled on the device, the time they are handed over to the shipper shall determine whether delivery deadlines have been observed and shall mark the passage of risk; in the case of electronic shipping, this shall be the time at which the software has been made available for downloading for the first time and the customer has been informed thereof.
10.3 Some Continental products can be provided by means of the software-as-a-service (SaaS) method and a corresponding licence. As part of that, the product is operated on a central server and the customer can access it for the term of the contract. Such products shall be provided for use and not delivered in physical form. No rights above and beyond the right to use the SaaS product shall be granted.
11. Warranty and liability
11.1 The owed qualities and functionality of the software or firmware shall be defined solely by the documentation. Any qualities and functionality above and beyond that shall not be owed. In particular, Continental shall not warrant (a) that the software or firmware works together with a configuration that has not been defined solely and freely by Continental; (b) that it runs without interruption and without errors or (c) that all errors are rectified. A technical error in the software shall only be deemed to be a defect that has to be remedied under the warranty if it results in the software not having the qualities and functionality owed in accordance with the documentation or not being able to be operated as contractually agreed due to the technical error. Moreover, Continental shall not warrant that the software fulfils the customer’s specific requirements or works on hardware other than that supplied by Continental or released or recommended by Continental specifically or, if applicable, as a category.
11.2 Unless agreed otherwise in the contract, a defect reported by the customer to Continental or the respective partner of Continental as extensively and fully as possible and within the applicable warranty period shall be rectified by the customer being provided with a bugfix update to rectify the defect.
11.3 The customer shall be entitled to warranty claims, liability claims and/or claims for reimbursement of expenses against Continental only if they have been agreed in a contract concluded directly between Continental and the customer. If the customer acquires the software from a Continental partner, the customer’s claims shall be governed by the contract concluded with the Continental partner. Claims of the customer under the applicable product liability regulations shall not be affected thereby.
In the absence of a different, individual agreement on liability with the customer (e.g. under the contract), liability shall be governed by the following provisions:
12.1 Continental shall be liable for damage that has been caused through wilful intent or gross negligence by Continental or its legal representatives, employees or vicarious agents.
12.2 If major contractual obligations (“cardinal obligations”) are violated through simple or slight negligence, the amount of liability on the part of Continental shall be limited to the damage that was typically foreseeable when the contract was concluded. Such a cardinal contractual obligation shall include obligations that are essential for the proper implementation of the contract or on which the contractual partner relied or could have been expected to rely on. Liability for violations of other obliga-tions through simple or slight negligence shall be excluded.
12.3 When concluding the contract, the Parties assume that the total volume of the contract and, in the case of provision of software for a limited period of time or other services that are provided recurrently or continuously (e.g. support, software maintenance), the amount of sales covered by the contract in the calendar year in which the damaging event occurred corresponds to the foreseeable damage that is typical of the contract.
12.4 Mandatory statutory regulations, such as unlimited liability for injury to persons and liability under the German Product Liability Act (Produkthaftungsgesetz). shall not be affected by the above provisions.
12.5 Liability for loss of data shall be limited to the customary cost and work to recover it that would have been incurred if backup copies had been made regularly and commensurately to the risks. However, this shall not apply if these precautionary measures, such as regular creation of backup copies, has been explicitly defined as a cardinal contractual obligation in relation to the subject matter of the contractual services.
12.6 In the case of incidents of force majeure, such as war, mobilisation, civil war, epidemics, quarantine, government measures or natural disasters – for which Continental is not to blame, Continental shall not be liable for any resultant delay or failure to fulfil its obligations.
12.7 The period of limitation for liability claims shall be one (1) year; however, the statutory periods of limitation shall apply to claims in accordance with Section 12.1 and Section 12.4. The period of limitation in accordance with Sentence 1 shall commence at the time defined in Section 199 (1) of the German Civil Code (BGB). It shall commence no later than at the end of the maximum periods defined in Section 199 (3) and (4) of the German Civil Code (BGB).
12.8 The customer shall inform Continental of any damage as soon as it gains knowledge of it, by telephone first and then in writing.
12.9 Continental shall not assume any responsibility for content created by the customer. It shall not be obliged to examine whether the supplied data and/or content is lawful. If the content stored by the customer on the storage space that is the subject matter of the contract contains infringements of the law, the customer shall indemnify Continental against all resultant claims and shall bear the resultant costs. That shall also include the costs of legal defence.
12.10 The customer shall be responsible for ensuring reasonable insurance cover for its devices.
13. Indemnification against infringement of third-party rights
13.1 The provisions of this Section 13 shall apply exhaustively in relation to the software or firmware in the case of an alleged or actual infringement of third-party intellectual property rights, unless differ-ent provisions have been agreed in the contract or Continental has acted through wilful intent or with intent to deceive, in which case the statutory provisions shall apply. All other rights and legal remedies shall be excluded.
13.2 If use of the software or firmware in accordance with the contract infringes the rights of third parties in any way and a third party therefore files claims against the Party in question, Continental shall indemnify the customer against the claims, defend it against them and indemnify it in full against all claims of the third party that are proven or ruled on finally and conclusively. This indemnification shall also include the necessary lawyer’s fees the customer incurs in this connection.
13.3 If a third party asserts such a claim or if Continental at its own discretion comes to the conclusion that precautionary action might prevent a third party being able to assert such a claim with the prospect of success in future, Continental shall be authorised, at its own choice and at its own expense, to acquire rights to use the third party’s intellectual property or to modify the affected parts or replace them with similar functions or to implement a workaround, provided the software or firmware retains its key functions.
13.4 The customer must fulfil the following duties in connection with an infringement or merely an alleged infringement of third-party rights:
a) The customer shall immediately notify Continental in writing of any alleged or suspected infringement;
b) The customer shall not issue an acknowledge that is or may be detrimental to Continental without the prior written consent of Continental;
c) The customer shall assign Continental the right to defend against the alleged infringement, including the right to conclude a settlement;
d) The customer shall assist Continental in defending against the alleged infringement to a reasonable extent;
e) The customer shall allow Continental to carry out the remedial measures specified in Section 13.3.
13.5 If the customer decides to cease using the part of the software affected by the claimed infringement or the software or the device as a whole, for example in order to minimise any claims for damages or for other precautionary reasons, the customer shall notify Continental immediately and inform the third party that the cessation of use does not imply an acknowledgement of the alleged infringement.
13.6 Continental shall not be obliged to indemnify the customer if the customer is to blame for the infringement, even an only alleged one. This shall apply in particular if the claimed infringement is attributable to
a) Any usage contrary to the contract;
b) Use of the software or firmware or a component thereof in conjunction with hardware, a system environment, operating conditions or other software or devices that have not been explicitly approved by Continental or its suppliers or have not been specified in the associated documentation;
c) Any usage outside the rights of use granted by Continental; if there are territorial restrictions, this shall also include use at locations for which the customer has not acquired a right of use;
d) Use of the software or firmware without the fixes or updates recommended by Continental or generally provided by the third-party software vendor, including generally available fixes and security patches for the underlying hardware or the system environment (e.g. operating system, database, runtime environment);
e) Any unauthorised change to the open source software or freeware used, whether by modification or use of a version other that the one contained in what Continental supplied;
f) Use in a system environment in which restrictions on use or security functions defined by the vendor as a whole or for individual components have been removed or overridden (for example by jailbreaking or rooting) or otherwise locked functions have been enabled as a result;
g) In all cases where Continental has complied with a stipulation by the customer, a draft provided or sent by the customer, or an instruction issued by the customer.
14. Export control
14.1 Fulfilment of the contract by Continental shall be subject to the proviso that there are no impediments pursuant to national or international foreign trade regulations or due to embargoes or other sanctions.
14.2 The customer shall comply with all national and international export/reexport control restrictions that are applicable to the software and/or documentation. In particular, the customer shall not directly or indirectly export, re-export or transship the software or, in the case of firmware, the device on which the firmware has been implemented, if that violates the valid foreign trade laws, customs and export control regulations or other statutory or officially prescribed export restrictions of the Federal Republic of Germany, the European Union or the United States of America that are applicable to the soft-ware or firmware/device.
15. Special provisions for test versions
15.1 The provisions of this section shall only apply if the customer has obtained the software or firmware along with the device for test purposes and they shall have precedence over the other terms and conditions of the EULA. The software or firmware shall be provided only for a limited time for testing.
15.2 The customer may use the software or firmware solely for testing and evaluation and only for the duration of the test phase agreed with Continental or the Continental partner from whom the copy of the software or the device was obtained. The customer can terminate the test phase prematurely at any time by destroying all copies of the software or by returning the software or device to Continental or the Continental partner.
15.3 The right to use the software or device shall expire automatically if (a) the customer violates the terms and conditions of the EULA and/or (b) the test phase ends. The customer hereby notes that some products contain licence keys that are restricted to the period of the test phase and are deactivated automatically when the test phase ends.
15.4 Unless otherwise agreed, the customer shall not be authorised to obtain support services from Continental or the Continental partner during the test phase.
15.5 The customer can also convert the test version into a paid version during the test phase. The details of that must be defined with Continental or the Continental partner.
15.6 Test versions shall be provided by Continental “as seen” and without any warranty. The customer shall use the test versions during the test phase at its own risk, at its own expense and under its own responsibility. Continental and the suppliers of Continental shall not assume any liability for their performance or the achievement of specific results. Continental and the suppliers of Continental shall not warrant that use of the test versions does not infringe any third-party rights or warrant its marketability or usefulness for a specific purpose and shall not assume any liability in this respect. The customer’s statutory rights against Continental in the case of intent to deceive, wilful intent or gross negligence shall remain unaffected.
15.7 Claims by the customer for damages or reimbursement of expenses, in particular due to loss of production, loss of prospective profits, loss of information or data and consequential damage, shall be excluded, regardless of the legal grounds. Continental’s liability for wilful intent, for gross negligence, under the German Product Liability Act (Produkthaftungsgesetz), for bodily harm and to the extent of any guarantee that has been assumed shall remain unaffected thereby. The same shall apply to other cases where liability is mandatory under the law.
16. General provisions
16.1 If individual provisions of this EULA are or become invalid or unworkable, the validity of the other provisions of the licence agreement shall not be affected thereby. In such a case, the Parties shall conclude an arrangement that replaces the provision in question with a valid one that corresponds as closely as possible in terms of economic purpose.
16.2 Any modifications, ancillary agreements or additional agreements shall only be valid when given in writing. That same shall apply to any waiver of the requirement for written form.
16.3 Written communications relating to his EULA must be sent to the following address:
Continental Trading GmbH
Sodener Strasse 9
16.4 Unless otherwise agreed, German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.5 The place of jurisdiction shall be Frankfurt am Main, Germany, unless a different place of jurisdiction is mandatory under the applicable law.