Stand 07 / 2023

Area of application:

1.1 D365 Innovation GmbH, Joseph-von-Frauenhofer-Straße 20, 44227 Dortmund is the licensor.

1.2 The following End User License Agreement (EULA) applies to all standard software programs of D365 Innovation GmbH (hereinafter referred to as „I365“), including new versions (upgrade, update, service pack or hotfix), industry solutions and add-ons (hereinafter referred to as „Contract Software“).

1.3 The Licensee’s general terms and conditions or terms and conditions of purchase shall not apply.

1.4 The contractual software, including its documentation and accompanying documents, is protected by copyright. Any non-contractual use, in particular distribution, wired or wireless public reproduction including making available to the public, other transfer, processing or duplication, is unlawful and will be prosecuted under criminal and civil law.

1.5 I365 and the companies of the I365 group of companies as well as authorized distributors (hereinafter collectively referred to as „Partners“) are entitled to distribute the Contract Software in accordance with this EULA.

Temporary licensing, audit and termination rights

2.1 D365 Innovation GmbH (hereinafter referred to as „I365“) grants the Licensee the non-exclusive and non-transferable right to use the contractual software for its own business purposes. This license is limited in time and begins with the payment of the agreed remuneration to the respective partner and ends automatically upon termination of the contractual term of the software subscription.

2.1.1 Depending on the agreement, the Licensee may either install, load and run the Contract Software on a single server and make a reasonable number of backup copies or
2.1.2 have the right to access the Contract Software via online access.

2.2 The Licensee is not entitled to reproduce, 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, except as expressly provided for in Sections 2.1.1, 2.8 and 6.1.1.

2.3 The number and type of licenses for the Contract Software, in particular the maximum number of employees of the Licensee entitled to use it (so-called „Named Users“), shall be specified in the order form or contract concluded with the Partner.

2.5 All rights to the Contract Software shall remain with I365.

2.6 If the Licensee wishes to use the Contractual Software beyond the agreed number and type of licenses (e.g. for a higher number of Named Users), it must notify the respective Partner immediately in text form and make a contractual arrangement. Unless otherwise agreed, the Licensee is obliged to remunerate I365 for any use of the Contractual Software in excess of the originally agreed number and type of licenses in accordance with I365’s current price list; further claims by I365 remain unaffected.

2.7 During the use of the Contract Software, I365 is entitled to verify the proper licensing by an auditor appointed by I365. The Licensee shall grant this auditor access to its business premises, business books, systems and all necessary documents and data for verification and shall provide all necessary information.

2.8 Affiliated companies within the meaning of this EULA are companies in which the Licensee has a direct or indirect interest of at least 50% or which have a direct or indirect interest of at least 50% in the Licensee or companies which are also held directly or indirectly by the same owner as the Licensee. Affiliated companies also have the right to use the Contract Software under this EULA for the respective contract term of the Software Subscription and Software Maintenance, without any increase in the permitted number of Named Users. The Licensee is responsible for ensuring that its Affiliates comply with all obligations under this EULA.

2.9 I365 is entitled to terminate this EULA extraordinarily without notice if the Licensee breaches this EULA and does not remedy the breach despite a warning.

Termination of a contract

Upon termination of this EULA and/or the contractual term of the Software Subscription and Software Maintenance, the Licensee is obliged to return all original data carriers and copies of the contractual software, including documentation and accompanying documents, and to delete them from its systems. The complete surrender and deletion must be confirmed to I365 at least in text form.

If the Licensee uses the Contractual Software via online access in accordance with No. 2.1.2, the respective Partner is entitled to block access to the Contractual Software when this EULA ends or the contractual term of the Software Subscription expires.

Limitation of liability and defects

Any rights in respect of defects or liability claims relating to the contractual software exist exclusively against the respective partner of the licensee and are governed by the contract concluded with this partner or the GTCs. I365 is not responsible or liable for such defect rights or liability claims.

Secrecy

 5.1 – Both parties agree that the Contractual Software contains confidential knowledge of I365. The Licensee undertakes to carefully protect the Contractual Software, as well as accompanying documents, any backup copies and all information marked or designated as confidential that is made available to it by I365 within the scope of this contractual relationship, from unauthorized access by third parties. This applies in particular to information that goes beyond the external appearance of the contractual software and the mere listing of its functional scope, as well as the methods and procedures used by I365.

5.2 – The confidentiality obligation does not apply to confidential information that:

– were already generally known at the time of disclosure or become publicly known thereafter without violating these provisions.

– Be expressly disclosed by I365 on a non-confidential basis.

– were already lawfully in the possession of the licensee prior to disclosure.

– Subsequently disclosed to him by a third party without breach of a confidentiality obligation.

The burden of proof for the existence of one of the above exceptions lies with the licensee.

Modification, editing and further development of the contract software:

6.1 – The Licensee may not modify, edit, decompile, disassemble or reassemble or otherwise rework the Contract Software or its code without the prior consent of I365. Reproduction of the results obtained is also prohibited unless the Licensee is entitled to do so in accordance with the following provisions or I365 has given its prior written consent.

6.1.1 – I365 may grant permission for the reproduction of the code or the translation of the code form if this is essential to obtain the information necessary to establish the interoperability of an independently created computer program with other programs. In this case, the following conditions apply:

– The actions must be performed either by the Licensee itself or by another person authorized to use a copy of the Contract Software or by a person authorized to do so on its behalf.
 – The information necessary for establishing interoperability has not yet been made readily accessible to the persons named in No. 6.1.1.
 – The actions are limited to those parts of the original contractual software that are necessary to establish interoperability.

6.1.2 – The information obtained through actions under 6.1.1 may only be used for the purpose of establishing the interoperability of the independently created program and may not be disclosed to third parties unless necessary for the interoperability of the independently created program. The information may also not be used for the development, production or marketing of a program with an essentially similar form of expression or for other copyright infringements.

6.1.3 – The application of No. 6.1.1 and No. 6.1.2 may neither impair the normal evaluation of the Contract Software nor unreasonably prejudice the legitimate interests of I365.

6.2 – Should the Licensee also wish to make changes, modifications, edits or adaptations to the Contract Software, the respective Partner may offer these on the basis of a separate order or a separate contract.

6.3 – Irrespective of other provisions, I365 is also entitled to all further developments of the contractual software. I365 has the right to adopt these further developments together with the documentation and to use and exploit them worldwide without restriction and in any form of use and exploitation, including unknown types of use. This includes the right to reproduce, distribute, perform, transmit by wire or wireless means, make available to third parties for use and exploit in any conceivable manner. I365 also has the right to process, further develop, modify, decompile and otherwise redesign these further developments at its own discretion and to use and exploit the resulting performance results in the same way. The licensee shall be granted a non-exclusive right of use to these further developments if this has been agreed in the order or the separate contract.

Final provisions

7.1 Changes and additions to this EULA:

Amendments and additions to this EULA must at least be made in text form to be effective. Verbal collateral agreements are not valid.

7.2 Severability clause:

Should any provision of this EULA be or become invalid, the remaining provisions of this EULA shall remain valid. The parties agree to replace the invalid provision with a valid provision that best meets the economic objectives of the parties. The same shall apply in the event of a gap in this EULA.

7.3 Choice of law:

This EULA is governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

7.4 Place of jurisdiction:

For all legal disputes arising from and in connection with this EULA, Dortmund is agreed as the place of jurisdiction, insofar as this is permissible.