LICENCE TERMS FOR Hella Gutmann DATA
1. FIELD OF APPLICATION
1.1. These licence terms apply to all subscriptions/licences for all online products that are offered by Hella Gutmann Solutions A/S, CVR number 87816613, Lundborgvej 10, DK-8600 Viborg (hereinafter “the Licensor”). These licence terms are accepted by the subscriber (hereinafter “the Licensee”) when first logging into the application by checking “I have read and accept the licence terms”.
1.2. An overview of the subscription type and additional modules can be found at www.hella-gutmann.dk. Separate conditions may be associated with individual functions, services and additional modules, which must be accepted in addition to these licence terms before the functions, services and additional modules may be used. The Licensee may only upgrade the subscription against payment of the difference between the Licensee’s current licence and the desired upgrade. Any purchases are automatically covered by these licence terms, unless separate terms and conditions apply to the purchased service.
2. SCOPE OF THE LICENCE
2.1. On acceptance of these licence terms, and to the extent the licence fee has been paid, the Licensor grants a non-exclusive, fixed-term right of use regarding its computerised database (hereinafter referred to as “Hella Gutmann Data”), which contains repair and service information relating to a wide range of car makes and models, as well as illustrations and diagrams, written using standardised terminology, format and design, irrespective of car make and model.
2.2. The right of use grants the Licensee alone access to: search for, use and print information from Hella Gutmann Data as a source for the servicing, troubleshooting or repair of motor vehicles in conjunction with normal use during the licence period. The printing and use of information in Hella Gutmann Data is only permitted in accordance with these licence terms, forwarded covering letters, and to the extent the licence fee has been paid. Information from Hella Gutmann Data, either wholly or in part, may not be made available to third parties, be used in business operations that are in competition with the Licensor or otherwise be forwarded or amended.
2.3. The Licensee may not use or in any way transfer information in Hella Gutmann Data, except as expressly specified in the licence. The Licensee may not “crawl” or otherwise gain access to Hella Gutmann Data, either manually or using automated means, in order to reproduce any part of Hella Gutmann Data in any form. The Licensee may not reproduce, alter or create derivative works based on all or part of Hella Gutmann Data.
2.4. Hella Gutmann Data is made available online, as software “as a service”. Any rights and title to Hella Gutmann Data remain with the Licensor. The Licensee acquires neither the application nor a copy thereof nor a part thereof, and does not receive a licence to run the application, except as software “as a service”.
2.5. The Licensee is personally responsible for any technical arrangements required by the Licensee in order to use Hella Gutmann Data.
3. ACCESS TO HELLA GUTMANN DATA
3.1. Access to Hella Gutmann Data requires a login with a username and passcode, issued to the Licensee. A licence grants access to log in to Hella Gutmann Data for the number of users for whom access has been purchased from the Licensee’s external IP address.
3.2. Only the Licensee’s users (defined as employees of the individual Licensee) are entitled to use Hella Gutmann Data, and Hella Gutmann Data may not be used for parties other than the Licensee or provide other services, such as hotline support etc., for parties other than the Licensee. The Licensee or its users may not grant third parties access to Hella Gutmann Data. Similarly, the Licensee and its users may not pass on the issued passcode to a third party.
3.3. If it is ascertained that the licence is wrongfully being shared between multiple parties, the Licensor may consider this to be an order for an additional licence for the unlicensed user(s) and demand a licence fee for this from the Licensee.
3.4. If a Licensee or one of the Licensee’s users tries to gain unauthorised access to source code or other closed areas, the user’s access will immediately be blocked with no refund of the paid licence, and damages may be claimed against both the user and the Licensee.
3.5. The Licensee is obliged to ensure that Hella Gutmann Data is not used in any way that could harm the Licensor’s reputation or goodwill, nor in a manner that is in contravention of applicable legislation or other regulations.
3.6. The Licensee is responsible for ensuring that the Licensee’s users are notified about and comply with these licence terms, including respecting the Licensor’s intellectual property rights etc. The Licensee acts as guarantor for, and bears full responsibility for, those users to whom the Licensee provides access to Hella Gutmann Data or who use the Licensee’s login details.
3.7. The Licensee accepts that the Licensor may monitor online use of Hella Gutmann Data to ensure compliance with the licence agreement or for statistical purposes. If the Licensor is able to determine that licence access is being used in a manner that is not in accordance with these licence terms, the Licensor may immediately block any access to Hella Gutmann Data and terminate the licence without any obligation to repay the licence fee.
4. CONTENT AND CHANGES ETC.
4.1. The Licensor is entitled to continually update and make changes and additions to Hella Gutmann Data, including technical changes, that the Licensor considers necessary.
4.2. Updates and changes to Hella Gutmann Data do not entail changes to the Licensee’s obligations to the Licensor, and the Licensee may not bring an action for a breach of contract against the Licensor for this reason. The aim is for Hella Gutmann Data to be updated continually and as quickly as possible, but there is no guarantee that new content will be available etc. at a specific time. Similarly, the aim is for the content of Hella Gutmann Data at any given time to be free of defects, but this is not guaranteed.
4.3. The Licensor may at any time, including in conjunction with the issuing of a new version, release, service pack or update of Hella Gutmann Data, add new functions or content in Hella Gutmann Data and change or remove previous functions and content, without consent of the Licensee. Such updates, improvements and changes may be implemented with or without notice, and may affect services, including information and data uploaded to or submitted by Hella Gutmann Data.
5. OPERATIONAL STABILITY
5.1. The Licensor aims to achieve the highest possible operational stability, but does not guarantee 100% uptime. The Licensor is not responsible for breakdowns or operational disruptions, including operational disruptions caused by factors outside of the Licensor’s control. This includes e.g. power failures, equipment faults, Internet connections, telecommunication links or similar.
5.2. In the event of a breakdown or disruption, the Licensor aims to restore normal operation as quickly as possible.
5.3. Scheduled interruptions will primarily take place during the period 21:00–06:00 CET. In the event it should be necessary to interrupt access to Hella Gutmann Data outside of the stated period, notice of this will be given in advance as far as possible.
6. INTELLECTUAL PROPERTY RIGHTS/COPYRIGHT
6.1. Hella Gutmann Data and Hella Gutmann’s logo are registered trademarks of Hella Gutmann Solutions GmbH.
6.2. All material in Hella Gutmann Data, including code language, text, photos, etc., belongs to the Licensor, and the Licensor has full copyright, title and all other rights to Hella Gutmann Data, except for sub-products produced by a third party and to which that party has full rights. Hella Gutmann Data is protected pursuant to copyright legislation, and this protection also applies to any physical material, including user manuals and training material, that is provided to the Licensee.
6.3. Any infringements of the Licensor’s rights and/or any rights belonging to such a third party/supplier, including third party infringements made possible by the Licensee, are considered a breach of the licence agreement.
6.4. Copyright and database rights described in Hella Gutmann Data information shall at all times remain an integral part of the information regarding Hella Gutmann Data and other permitted printing or copies from Hella Gutmann Data. Data that is printed or saved from Hella Gutmann Data must be marked with: ©Hella Gutmann Data.
6.5. The Licensee is not entitled to breach or change any security codes/mechanisms. The Licensee is not entitled to change or remove information on legal conditions, trademarks and similar in Hella Gutmann Data or on the media on which Hella Gutmann Data is supplied. The Licensee is also not entitled to translate Hella Gutmann Data from object code to source code, e.g. by means of reverse engineering, disassembling or decompiling Hella Gutmann Data.
6.6. The Licensor must be notified of any current or potential violation of the Licensor’s intellectual property rights or unauthorised use of the application of which the Licensee becomes aware.
6.7. There is no transfer of intellectual property rights to the Licensee: the Licensee only enjoys a conditional rights of use cf. section 2.2.
6.8. The Licensee and its users have the potential to add their own notes in Hella Gutmann Data. The Licensor is not responsible for the availability of the Licensee’s own generated and uploaded data in Hella Gutmann Data, and it is the duty of the Licensee and its users to ensure that any proprietary data is saved securely in e.g. the Licensee’s own systems. The Licensor is also not responsible for any loss etc. of proprietary data in Hella Gutmann Data, regardless of cause. The Licensor may not utilise any notes for its own purposes, but the Licensee consents to the Licensor deleting all notes on termination of the licence agreement.
6.9. In relation to notes/material uploaded by the Licensee and all the Licensee’s data, the Licensor is granted access that is sufficient such that the Licensor can securely handle and operate Hella Gutmann Data and meet its obligations, as well as perform marketing on the basis of the Licensee’s material. The Licensee guarantees that the material/notes that are uploaded will not infringe any third-party rights and will not contain material that may offend or that is in contravention of relevant legislation or other regulations.
7. TERMS OF PAYMENT
7.1. The Licensee has purchased access to Hella Gutmann Data from a dealer approved by the Licensor.
7.2. The licence fee must be paid in advance – to the approved dealer from whom the licence is purchased – for licence periods of 12 months at a time. The first invoicing period runs from the order date for the subsequent 12 months. The payment terms are eight days net in cash from the invoice date.
7.3. The Licensor reserves the right to temporarily block access to Hella Gutmann Data if the licence fee is not paid on time. Regardless of the lack of access to Hella Gutmann Data, the Licensee is obliged to pay the full licence fee. There is consequently no reimbursement of the licence fee for the period when access to Hella Gutmann Data has been blocked.
7.4. The Licensee accepts that invoices and reminders sent by e-mail to the Licensee’s specified e-mail address will be considered to have been delivered at the time when they are sent by the Licensor.
8. TERMINATION OF THE LICENCE
8.1. The licence agreement runs for a period of 12 months at a time. If the licence agreement is not terminated at the end of the period as set out below, the licence agreement will be renewed automatically for 12 months at a time.
8.2. The Licensee is entitled to terminate the licence agreement with one month’s written notice to the Licensor, although not until the end of the current 12-month licence period. The notice of termination will take effect from the next licence period. NB! Failure to pay will not be viewed as termination of the licence agreement.
8.3. The Licensor is entitled to terminate the licence agreement with one month’s notice prior to the end of the licence period or to terminate the licence agreement without notice in the event the Licensee fails to comply with or is otherwise in material breach of the licence agreement or these licence terms.
8.4. In the event the licence agreement is terminated – regardless of the reason – all the Licensee’s rights will be forfeited, including the right to use Hella Gutmann Data. The Licensee may not request reimbursement of any part of the paid licence fee in the event the licence agreement is terminated.
8.5. If the Licensee wishes to issue its own generated and uploaded data at the termination of the licence, it may contact the Licensor to find out more about the potential for this. Any extracts from Hella Gutmann Data containing the Licensee’s own generated and uploaded service data will be settled with the Licensee at an hourly rate.
9. LIMITATION OF LIABILITY
9.1. Hella Gutmann Data and the service are delivered as they are. The Licensor provides no warranty, assurance, guarantee, etc. regarding the accuracy of the information that can be found in Hella Gutmann Data or regarding the connection to Hella Gutmann Data.
9.2. The Licensor disclaims liability for any losses that the Licensee suffers as a result of its use of Hella Gutmann Data. All use of Hella Gutmann Data therefore takes place at the Licensee’s own risk, and the Licensor is under no circumstances liable for losses of any nature, including anticipated earnings, loss of data, damage to records or data, or for any direct or indirect losses or consequential loss (including but not limited to loss of goodwill or losses as a result of any other form of business interruption) in connection with the use of Hella Gutmann Data, or losses as a result of insufficient or incomplete
program function or services in connection with this, regardless of whether the Licensor has been notified about the possibility of such a loss, and regardless of whether the damage was incurred within or outside of the contract.
9.3. The Licensor is also not liable for losses arising as a result of the Licensee not having had the opportunity to use Hella Gutmann Data, regardless of cause.
9.4. Furthermore, the Licensee bears solely liability in respect of third parties in relation to the Licensee’s own use of Hella Gutmann Data. The Licensee is obliged to indemnify the Licensor for this and all costs associated therewith.
9.5. The above limitation of liability also applies to product liability that the Licensor may incur as a result of loss of or damage to property that, by its nature, is normally intended for commercial use, insofar as this is not in contravention of mandatory legislation.
9.6. The Licensor is not liable for faults and deficiencies that are not related to Hella Gutmann Data, although it is liable for the influence of other software subordinate to this. The Licensor is also not liable for the integration or interaction between Hella Gutmann Data and the Licensee’s own IT environment and organisation.
9.7. In connection with the implementation of updates, new versions, releases or service packs, the Licensor is not responsible for the Licensee being able to take full advantage of any changes to the application logic within Hella Gutmann Data or parts thereof that the Licensee has implemented or subcontracted.
9.8. Regardless of the type of loss or the grounds for liability, the amount of the Licensor’s total liability is limited to the Licensor’s payment for 12 months prior to the commencement of the situation that is giving rise to the liability, although under no circumstances exceeding DKK 10,000. The Licensee undertakes to indemnify the Licensor for product liability claims, third party losses and other claims from third parties resulting from the Licensee’s use of Hella Gutmann Data.
10. FORCE MAJEURE
10.1. Neither party is liable for damage caused to the other party as a direct or indirect consequence of the first party being delayed or prevented from fulfilling its obligations under these licence terms due to the occurrence of a force majeure incident. Force majeure shall be considered to include war and mobilisation, natural disasters, strikes, lockout, fire, import and export controls as well as other circumstances over which the party in question has no control.
10.2. The parties shall immediately, on first becoming aware of a potential force majeure incident, notify each other about the onset and similarly the conclusion of the force majeure circumstances.
11.1. The Licensee is only entitled to transfer the right to use Hella Gutmann Data in its entirety to third parties, and only with the Licensor’s express prior written consent.
11.2. In the event the Licensee transfers the licence, the Licensee – in relation to the Licensor – is obliged to ensure that the recipient accepts and complies with the licence agreement with the Licensor. The Licensee remains liable, jointly and severally, for any breach of the licence agreement by the recipient.
11.3. The Licensor is also entitled to transfer all its rights and obligations under these licence terms wholly or in part to any third party, without the Licensee’s consent.
12. CHANGING THE LICENCE TERMS
12.1. Changes to these terms, which do not impose further obligations on the Licensee other than the applicable terms, may be implemented without prior notice with effect for all. This includes general price increases resulting from price trends. Other changes to the conditions must take place with at least one month’s notice prior to the end of a licence period.
13. VALIDITY, CHOICE OF LAW AND LEGAL VENUE
13.1. In the event a provision in these licence terms is declared invalid, unlawful or without legal effect, this must not affect the agreement in other regards and the provision in question must be amended or redrafted in the broadest possible sense according to applicable law, such that the original intentions of the Licensor are reflected. Any provision in these licence terms, which by its nature extends beyond the time when the licence terms cease to apply, shall remain applicable and binding for the parties.
13.2. These licence terms are subject to, and shall be interpreted in accordance with, Danish law. Any disputes between the parties shall be determined in the Licensor’s domicile.