Licensing terms – Marketplace purchase | NexaSwift
License agreement – Marketplace acquisition
§ 1 Definitions
- "Provider" is the rights holder of the software and the licensor.
- "Customer" is the entrepreneur acquiring via the Marketplace within the meaning of § 14 BGB.
- "Marketplace" is the platform through which ordering, payment and delivery take place.
- “Software” refers to the “digital twins” (“behavioral models”) provided by the vendor, including any updates, sample configurations and documentation.
- “Group companies” are affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG).
- “Third parties” are all persons/companies other than the customer and its group companies.
- “Re-engineering” includes in particular reverse engineering, decompiling, disassembling, source code extraction and other measures for the reconstruction of structure/logic/algorithms – unless expressly permitted by law.
§ 2 Subject matter of the contract
(1) The subject matter is the granting of rights of use to the software in accordance with this license agreement.
(2) Provision (download/delivery) is carried out via the Marketplace. Marketplace services (e.g., payment processing) are governed by its terms and conditions; this agreement governs exclusively the rights to the software.
§ 3 Granting of license (internal use, one-time purchase)
(1) The provider grants the customer a simple, non-exclusive, non-transferable and non-sublicensable right to use the software, solely for the internal use of the customer and its group companies, without time or geographical limitations (one-time purchase), subject to Section 10.
(2) The customer and group companies may internally reproduce, install, adapt/modify, compile and integrate the software into internal applications; the number of internal users/instances is unlimited, unless expressly limited otherwise in the Marketplace product description.
(3) Backup copies and test/staging use are permitted.
§ 4 Group Use / Responsibility
(1) The rights under Section 3 shall also apply to group companies.
(2) The Customer shall ensure that group companies comply with these conditions and shall be liable for their breaches as if they were its own.
§ 5 Strict prohibition of transfer, resale and marketplace use
(1) Any transfer, publication, provision or making available to third parties of the software, the source code, parts thereof or derivative works is prohibited.
(2) The prohibition includes in particular:
- a) Resale or other transfer (for consideration or free of charge), including as part of a product/“bundle” or within the framework of “white-label/OEM”,
- b) Sublicensing, rental, lending, assignment/transfer of the license or individual rights of use,
- c) Provision via public repositories or other public distribution channels,
- d) Offering the software or derivative works via marketplaces/app stores/plugin stores or similar platforms,
- e) Use as a SaaS/Service/Managed Service for third parties, insofar as third parties functionally benefit from the software.
(3) The involvement of external service providers/subcontractors is permitted only to support internal use, provided that a confidentiality agreement exists, use is only carried out according to the customer's instructions and the customer is liable for any breaches.
§ 6 Prohibition of Re-Engineering / Protection Against Circumvention
(1) Re-engineering is prohibited unless expressly permitted by law. In particular, the customer may not decompile, disassemble, reverse-engineer, or otherwise attempt to reconstruct the source code or underlying concepts/algorithms of the software.
(2) Technical protective measures must not be removed or circumvented.
(3) Insofar as mandatory legal rights exceptionally permit decompilation, the customer shall – to the extent legally permissible – inform the provider in advance in text form and use the information only to the extent permitted by law.
§ 7 IP rights, modifications, derivative works / labelling
(1) All intellectual property rights to the original software remain with the provider. No rights are transferred, but rather usage rights are granted.
(2) Internal modifications/further developments by the customer or its group companies may only be used internally; disclosure pursuant to Section 5 remains excluded.
(3) The provider's copyright and license notices may not be removed or altered; if changes are made, a notice of the change must be included.
§ 8 Confidentiality / Source Code / Repository Rules
(1) Source code and documentation are confidential information of the provider.
(2) The customer shall implement appropriate technical and organizational measures to prevent unauthorized access; no storage in public repositories. Private repositories may only be used with access restricted to a "need-to-know" group.
§ 9 Open-source components
Insofar as the software contains open-source components, their licenses take precedence over these components; the provider will provide a list of components, if available.
§ 10 Termination in case of violation / Legal consequences
(1) The license is a one-time purchase and is valid indefinitely.
(2) In the event of a material breach, in particular of Section 5 (Disclosure/Resale/Marketplace Prohibition) or Section 6 (Re-Engineering), the provider may terminate the agreement without notice after an unsuccessful warning with reasonable notice.
(3) Upon termination, software and (where reasonable) derivative works must be deleted; backup copies must be destroyed. Deletion confirmations must be provided upon request.
§ 11 Warranty and Liability (Cap 200%)
(1) Unless expressly agreed otherwise, the software is provided "as is"; technical specifications in the Marketplace product description are a description of performance, but not a guarantee independent of fault.
(2) The provider shall be liable without limitation for intent and gross negligence, for injury to life, body or health, and under mandatory product liability law.
(3) In the event of a slightly negligent breach of essential contractual obligations (cardinal obligations), liability is limited to the typical, foreseeable damage.
(4) Limitation of liability (Cap): The provider's liability – regardless of the legal basis – is limited in total to 200% of the one-time payment (net) made by the customer for the software.
(5) Liability for indirect damages, consequential damages, lost profits and data loss is excluded, unless mandatory law provides otherwise; in the case of data loss, liability is limited to the typical recovery costs if proper data backup has been performed.
§ 12 Compliance / Export / Sanctions
Export, sanctions and other compliance laws must be observed; the software may not be used in prohibited areas of application.
§ 13 Miscellaneous / Ranking
(1) Amendments and additions must be in text form (e.g. email), unless written form is mandatory.
(2) The assignment/transfer of the Customer’s rights under this license is excluded, except with the prior written consent of the Provider.
(3) Ranking: Insofar as Marketplace terms and conditions concern IP/usage rights to the software, this license agreement shall take precedence; mandatory Marketplace obligations remain unaffected.
§ 14 Applicable Law & Jurisdiction
German law applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
Place of jurisdiction: Wiesbaden, insofar as permissible.
