EN

End User License Agreement of AtroCore GmbH (EULA)

Version (effective date): 2026-09-24

1. Preamble and Scope of Application

1.1. This Agreement applies to all proprietary standard software (hereinafter: Software) provided by AtroCore GmbH (hereinafter: Licensor) to the Licensee in return for payment, including all paid modules, extensions, and add-ons.

1.2. This Agreement governs the relationship between the Licensee and the Licensor exclusively in a business-to-business (B2B) context. The Software is designed, offered and priced solely for commercial and professional use by legal entities and by natural persons acting in the exercise of a commercial or professional activity. The Software is not offered to consumers, that is, natural persons concluding a legal transaction for purposes that are predominantly outside their commercial or independent professional activity.

1.2.1. Licensor contracts exclusively with entrepreneurs, that is, natural or legal persons or partnerships with legal capacity acting, when concluding the legal transaction, in the exercise of their commercial or independent professional activity, and with legal persons under public law and special funds under public law. By accepting this Agreement, the signatory represents and warrants that it has full authority to bind the Licensee, and that the Licensee is acting in the exercise of its commercial or professional activity.

1.2.2. Where a natural person concludes this Agreement otherwise than in the exercise of a commercial or professional activity, Licensor is entitled to rescind or terminate this Agreement with immediate effect upon becoming aware of that fact, and to invoice the license fees accrued for the period of use actually made. Licensor's statutory rights arising from misrepresentation remain unaffected. Nothing in this Agreement excludes or limits rights that a consumer holds under mandatory law.

1.3. This Agreement sets the terms, rights, restrictions, and obligations governing use of the Software. Nothing in this Agreement excludes or limits rights of the Licensee that cannot be excluded or limited under mandatory applicable law. Where a provision of this Agreement conflicts with such mandatory law, the mandatory provision applies to the minimum extent required and the remainder of the provision continues to apply.

1.4. The Licensor delivers the Software as source code, including during Evaluation Periods. Licensee acknowledges that the source code constitutes a trade secret and confidential proprietary information of the Licensor, subject to Section 14.

1.5. By downloading, installing, paying for, or using the Software, the Licensee accepts the terms of this Agreement. If the Licensee does not agree to these terms, it must not download, install, or use the Software.

1.6. Contract language and versions. This Agreement is provided in English and in German. Where the Licensee has its registered seat in Germany, Austria or Switzerland, or where the contract was negotiated in German, the German version prevails in the event of any discrepancy. In all other cases the English version prevails.

1.7. Conflicting terms. Licensee's own general terms and conditions do not apply, even where Licensor performs without expressly objecting to them.

2. Definitions

For the purposes of this Agreement:

2.1. Order Confirmation means Licensor's written or electronic confirmation of the licensed scope, including the licensed modules, the license model, the Project, the number of Environments, the Support Period, and the fees.

2.2. Documentation means the product documentation and release notes published by Licensor for the licensed version of the Software in its official documentation portal (currently help.atrocore.com). Content marked as draft, preview or beta, content marked as relating to a different version, and content published outside that portal, such as blog posts, tutorials, webinars, presentations and community contributions, do not form part of the Documentation. Section 3.2 determines which version of the Documentation applies.

2.3. Project means the single business undertaking of the Licensee identified as such in the Order Confirmation, comprising:

  • exactly one (1) legal entity as Licensee; and
  • the business units, brands, divisions or sales channels listed in the Order Confirmation; and
  • one (1) Productive Environment as defined in Section 2.5.

Where the Order Confirmation does not identify a Project expressly, the Project comprises the Licensee as a single legal entity together with all of its business units, and one Productive Environment. Use of the Software for a further business undertaking, a further legal entity, or a further Productive Environment requires a separate license.

2.4. Environment means one distinct installation or deployment instance of the Software.

2.5. Productive Environment means an Environment in which the Software is actively used for live business operations, processes real business data, or is accessible to persons outside the Licensee's internal technical team.

2.6. Purchase License means a license granted for an unlimited period against a one-off fee, governed by the statutory law of sale.

2.7. Rental License means a license granted for a limited period against a recurring fee, governed by the statutory law of lease.

2.8. Major Version means a release of the Software identified by a change in the first digit of its version number.

2.8.1. Minor Version means a release of the Software identified by a change in the second digit of its version number.

2.9. Security Update means a modification to the Software whose purpose is to remediate a vulnerability.

2.10. Feature Upgrade means any release, upgrade or update whose content extends the documented functionality of the Software beyond the version held by the Licensee. A Security Update is not a Feature Upgrade, even where it unavoidably contains new functionality.

2.11. Support Period means the period, stated in the Order Confirmation and in the Documentation, during which Licensor provides Security Updates for the Software free of charge in accordance with Section 10. The Support Period is at least five (5) years from the date on which the relevant Minor Version was first placed on the market in the European Union.

2.12. Defect means a deviation of the Software from the Agreed Quality as defined in Section 3, where that deviation prevents or materially impairs the use of the documented functionality of the Software. Deviations that do not prevent or materially impair such use (in particular cosmetic issues, non-critical inconsistencies in the user interface, and reductions in performance that do not affect the primary documented use) are not Defects.

2.13. Business Day means a day other than a Saturday, a Sunday or a public holiday at the registered seat of Licensor.

3. Subject Matter of the Contract and Agreed Quality

3.1. The subject matter of this Agreement is the provision of the Software in the version and configuration set out in the Order Confirmation, together with the rights of use granted under Section 4.

3.2. Agreed Quality. The agreed quality of the Software is determined exclusively by the Documentation. The Software conforms to the contract if it substantially provides the functionality described in that Documentation. For Purchase Licenses, the applicable Documentation is that current at the time the licensed version is delivered. For Rental Licenses, the applicable Documentation is that current for the release made available to the Licensee at the relevant time, so that the agreed quality tracks the release actually supplied during the term.

3.3. Beyond the Documentation, Licensor warrants no particular quality, and in particular does not warrant:

  • suitability for any purpose of the Licensee beyond the documented functionality;
  • any specific level of availability, throughput, response time, capacity or performance;
  • interoperability with third-party software, hardware, data formats or interfaces, other than those expressly listed as supported in the Documentation;
  • compliance of the Licensee's business processes or data with any legal, regulatory, industry or certification requirement;
  • that any output of the Software meets the current technical, formatting or content requirements of any third-party channel, marketplace, platform or authority to which the Licensee transmits it;
  • fitness for use in environments other than those stated in the published system requirements.

3.4. Licensee is responsible for determining whether the Software meets its requirements. Licensor makes an evaluation copy available for this purpose under Section 16.

3.5. Licensee is responsible for providing and maintaining the operating environment in accordance with the published system requirements, including hardware, operating system, database, runtime versions, network, and third-party components not supplied by Licensor.

3.6. Statements not forming part of the Agreed Quality. The following do not constitute an agreement on quality, a guarantee, or a warranted characteristic: marketing materials, websites, blog posts, webinars, product presentations, demonstrations, roadmaps, forward-looking statements about planned features, feature requests accepted for consideration, and statements made by Licensor's staff or partners in the course of pre-contractual discussions, unless expressly incorporated into the Order Confirmation or a written addendum.

3.7. No guarantee. Licensor assumes a guarantee, that is, an undertaking to stand in for the existence of a characteristic of the Software and to be liable for its absence irrespective of fault, only where a document signed by Licensor expressly designates a characteristic as guaranteed and uses the word "Garantie" or "guarantee" in that context.

3.8. Freedom from errors. Licensee acknowledges that software of the complexity of the Software cannot be developed so as to be entirely free of errors, and that this is the state of the art. The absence of all errors is therefore not part of the Agreed Quality. Section 2.12 governs which deviations constitute Defects.

3.9. Roadmap. Licensor's published roadmap describes current development intentions. It is not binding, creates no entitlement to any feature, and its content may change.

3.10. No services included. Neither the Purchase nor the Rental of the Software includes installation, setup, configuration, migration, data cleansing, integration, training, or consulting services. These are available exclusively as Additional Services under Section 9.

3.11. Hosting and provision as a service. This Agreement governs the licensing of the Software only. It does not include the operation or hosting of the Software by Licensor, or its provision to the Licensee as a service. Where the Licensee wishes Licensor to operate or host the Software, the parties shall conclude a separate SaaS agreement. That agreement governs availability and service levels, the hosted environment and its support, data location, responsibility for backup and restore in the hosted environment, and the obligations applicable to providers of data processing services under the EU Data Act. In the event of a conflict, the SaaS agreement prevails in respect of the hosted operation of the Software.

3.11.1. Environments operated by Licensor. Where Licensor operates an Environment under a separate SaaS agreement in accordance with Section 3.11, Sections 3.5 and 13.6 do not apply to that Environment. Responsibility for the operating environment and for backup and restore in that Environment, and liability for loss of data in it, are governed by the SaaS agreement. Section 10.5.1 governs responsibility for installing Security Updates and Feature Upgrades in that Environment. Where the Licensee installs them itself, the SaaS agreement shall provide it with the means to do so, including a restore point taken before an update is applied.

3.12. The Licensee's data. The Licensee is responsible for the data it enters into or processes with the Software, including its accuracy, completeness, currency, legality and freedom from third-party rights. Licensor does not warrant the accuracy or completeness of any data. The results of import, matching, consolidation, enrichment, transformation, data quality and export functions depend on the data supplied by the Licensee and on the rules the Licensee configures. Deviations resulting from the Licensee's data or rules are not Defects.

3.13. The Licensee's configuration. The Software is designed to be configured by the Licensee in accordance with Section 4.6.1. The behavior and output of the Software depend on that configuration. Licensor does not warrant the suitability, correctness or results of any configuration carried out by the Licensee or by a third party engaged by it, including entities, fields, relations, layouts, workflows, rules, mappings and permissions. Behavior resulting from such configuration is not a Defect.

3.14. The Licensee's own modules and extensions. Where the Licensee develops its own modules, extensions or interfaces in accordance with Section 4.6.1, the Licensee is responsible for them. Licensor does not warrant that they will remain compatible with future releases of the Software. Section 10.8 applies to changes in the Software.

3.15. Automated and AI-assisted functions. Where the Software provides automated or AI-assisted functions, including suggestions, classifications, translations, matching proposals, enrichment or generated content, their output is non-deterministic and requires review by the Licensee before use. Licensor does not warrant that such output is accurate, complete or fit for any purpose. The Licensee remains responsible for the decisions it takes on the basis of that output.

3.16. No professional advice. The Software and the Documentation do not constitute legal, tax, regulatory or other professional advice. Where the Software supports the Licensee in complying with a legal or regulatory requirement, including product compliance, packaging or digital product passport obligations, the Licensee remains responsible for determining the requirements applicable to it and for verifying that its use of the Software satisfies them. Section 3.3 applies.

3.17. Release notes prevail. Where the release notes for a release and other parts of the Documentation describe the functionality of that release differently, the release notes govern.

3.18. Correction of the Documentation. Licensor may correct manifest errors and inconsistencies in the Documentation. Where the Documentation describes functionality that the licensed version demonstrably never contained, correction of the Documentation constitutes remedy within the meaning of Section 11.5. This does not apply where the functionality was contained in the licensed version and subsequently removed; Section 10.8 applies in that case.

4. License Grant

4.1. Subject to full payment and continued compliance with this Agreement, Licensor grants Licensee a limited, non-exclusive license to use the Software for the Project, in accordance with this Section and the Order Confirmation. Purchase Licenses are granted for an unlimited period; Rental Licenses are granted for the term of the subscription.

4.2. Permitted Use. Licensee may:

  • run the Software in the Environments permitted under Section 4.5, on its own infrastructure or on infrastructure procured by it, or, subject to the conclusion of a separate SaaS agreement under Section 3.11, on infrastructure operated by Licensor;
  • use the Software for the internal business purposes of the Project;
  • publish the Software's output to its employees, contractors, and customers within the scope of the Project;
  • configure the Software using the configuration functions provided in the Software for that purpose;
  • develop its own modules or extensions using the interfaces documented by Licensor for that purpose, in accordance with Section 4.6;
  • make backup copies as required for proper data security.

4.3. Restrictions. Except as permitted by Section 5 or by mandatory law, Licensee may not:

  • resell, redistribute, sublicense, rent, lease, lend, or otherwise make the Software or any part of it available to third parties;
  • make the functionality of the Software available to third parties over a network as part of a Software-as-a-Service, managed service, or hosted service offering, without those parties holding their own license, unless a separate written agreement with Licensor expressly permits this;
  • use the Software for more than the licensed Project or within more than the licensed legal entity, including affiliated companies and group entities, without a separate license;
  • use the Software to develop a product or service that competes with the Software;
  • modify the Software, subject to Section 4.6.

4.3.1. Statutory rights unaffected. The restrictions in Section 4.3 and in Sections 4.6, 4.7 and 14 do not restrict the Licensee's mandatory statutory rights, in particular the right of a person entitled to use the Software to make a backup copy where this is necessary to secure its future use; to observe, study or test the functioning of the Software in order to determine the ideas and principles underlying any element of it, while performing any of the acts of loading, displaying, running, transmitting or storing the Software that it is entitled to perform; and to reproduce the code and translate its form where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with other programs, subject to the conditions laid down by law; nor any equivalent mandatory provision of applicable law. Any provision of this Agreement that would restrict those rights is ineffective to that extent.

4.3.2. Error correction. The Licensee's statutory entitlement to make adaptations necessary for the intended use of the Software, including error correction, is restricted by Section 4.6. The law permits such a restriction by agreement. In return, Licensor owes the Licensee the remedy of Defects in accordance with Sections 11 and 12, and those obligations remain unaffected. Section 12.4 remains unaffected.

4.4. Single Project / Single Entity. Each license covers exactly one Project and one legal entity as defined in Section 2.3. Use by subsidiaries, affiliates, holding companies or related entities requires a separate license. Licensee shall notify Licensor in writing within thirty (30) days of any corporate restructuring, merger, or acquisition that results or is likely to result in expanded use of the Software.

4.5. Environments. Licensee may operate the Software in up to four (4) Environments for the Project, of which no more than one (1) may be a Productive Environment. Additional Environments, or an additional Productive Environment, require a separate written agreement.

4.6. No modification of the Software. The Software is delivered as source code (Section 1.4). The Licensee may not modify, adapt, translate, rework or otherwise alter the Software or any part of it, and may not commission or permit any third party to do so. This applies irrespective of whether the alteration is intended for internal use only. The Licensee may further not reverse engineer, decompile or disassemble any component of the Software that is delivered in compiled, minified or otherwise obfuscated form. Sections 4.3.1 and 4.3.2 remain unaffected.

4.6.1. What does not constitute modification. The following do not constitute modification within the meaning of Section 4.6:

  • configuring the Software by means of the configuration functions provided in the Software for that purpose, including the creation of entities, fields, layouts, workflows and comparable configuration carried out through the Software's own administration functions;
  • developing separate modules, extensions or interfaces that use the interfaces documented by Licensor for that purpose, without altering the delivered source code;
  • adaptations that Licensor has expressly approved in writing in the individual case.

4.6.2. Third-party components. Section 4.6 does not apply to third-party components, including open source components, whose own license terms permit modification. Section 14.10 applies to those components.

4.6.3. Consequences. Licensor has no support obligation and no liability for Defects in respect of any modification made in breach of Section 4.6, or for behavior caused by such a modification (Sections 8.5 and 11.8). Modification in breach of Section 4.6 does not affect Licensor's ownership of the Software, and Licensee acquires no rights in the modified version. Section 14.9 governs material that the Licensee voluntarily submits to Licensor.

4.7. No Derivative Products. Licensee may not use the Software as the basis for a standalone software product offered to third parties.

4.8. Audit Right. Licensor may, upon at least ten (10) Business Days' written notice and no more than once in any twelve (12) month period, audit Licensee's use of the Software to verify compliance with the licensed scope. The audit shall be conducted during normal business hours, shall not unreasonably disrupt Licensee's operations, and shall be limited to information necessary to verify license compliance. Licensor shall treat all information obtained as confidential and shall comply with Licensee's reasonable security and data protection requirements. Licensee shall bear the reasonable costs of the audit only where the audit establishes that Licensee's actual use exceeds the licensed scope by more than ten (10) percent of the applicable license fee, or where a breach of Section 4.3 is established. In all other cases Licensor bears the costs.

5. Transfer of Purchase Licenses

5.1. Licensor acknowledges that, where a Purchase License has been sold within the European Economic Area against a one-off fee, Licensor's distribution right in the delivered copy is exhausted, and that the Licensee may transfer that copy to a third party notwithstanding Section 4.3. This Section sets out the conditions under which such a transfer takes effect between the parties.

5.2. A transfer requires that:

  • the license is transferred in its entirety and is not split, and no partial or per-Environment transfer takes place;
  • the transferor renders every copy in its possession unusable, including backups and copies in all Environments, at or before the time of transfer, and confirms this to Licensor in writing within five (5) Business Days;
  • the transferor notifies Licensor in writing of the identity of the transferee before the transfer;
  • the transferee accepts this Agreement in the version applicable to the transferor.

5.3. Any update or upgrade coverage held by the transferor transfers with the license for its remaining term. Support entitlements under Section 8 transfer with the license for their remaining term.

5.4. Rental Licenses are not transferable.

5.5. Failure to render copies unusable under Section 5.2 constitutes unlicensed use and is subject to Section 6.8.

6. Term and Termination

6.1. Purchase Licenses are granted for an unlimited period, subject to full payment. Licensor may terminate a Purchase License only for cause in accordance with Section 6.3.

6.2. Rental Licenses are subscription-based. The minimum term is three (3) months. Either party may terminate with one (1) month's notice to the end of a calendar quarter. Section 7.10 governs termination in response to a price increase.

6.3. Termination for cause. Either party may terminate this Agreement, including a Rental License, for cause without notice where, taking into account all circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the Agreement until its agreed end or until the expiry of a notice period. Where the cause consists in the breach of an obligation under this Agreement, termination is permissible only after a reasonable period set for remedy has expired without result or after an unsuccessful warning, unless setting such a period or giving such a warning is dispensable in the circumstances. Notice of termination must be given within a reasonable period after the terminating party has become aware of the cause. Licensor may in particular terminate for cause where the Licensee:

  • sublicenses, redistributes or otherwise makes the Software available to third parties in breach of Section 4.3, other than a transfer complying with Section 5;
  • uses the Software materially beyond the licensed scope under Sections 4.4 or 4.5;
  • breaches its confidentiality obligations under Section 14.7 in respect of the source code;
  • modifies the Software in breach of Section 4.6;
  • continues to use an evaluation copy after expiry of the Evaluation Period without a valid license (Section 16.5);
  • fails to pay amounts due, where those amounts remain outstanding more than fourteen (14) days after a written reminder.

6.4. Prior warning. Termination for cause requires that Licensor has first given the Licensee written notice specifying the breach in reasonable detail and a period of at least fourteen (14) days to remedy it. A prior warning is not required where remedy is impossible, where the Licensee seriously and finally refuses to remedy the breach, where the breach is repeated after a previous warning, or where the breach is so serious that, weighing both parties' interests, immediate termination is the only reasonable response.

6.5. Good-faith dispute. Where the Licensee disputes in good faith that a breach has occurred, it shall notify Licensor in writing within five (5) Business Days of receiving the warning or termination notice, setting out the basis of the dispute. Licensor shall not act on the termination for a further fourteen (14) days while both parties assess the dispute in good faith. If unresolved, either party may escalate to senior management for a further five (5) Business Days, after which Licensor may proceed. Raising a dispute does not suspend the Licensee's obligation to remedy the alleged breach.

6.6. Impaired ability to perform. Where, after conclusion of this Agreement, it becomes apparent that the Licensee's ability to pay is at risk, Licensor may refuse further performance until the Licensee pays or provides security, and may require payment in advance or the provision of security. Licensor may withdraw from the Agreement where the Licensee neither pays nor provides security within a reasonable period set by Licensor. The commencement of insolvency proceedings does not of itself terminate this Agreement; the statutory right of an insolvency administrator to choose between demanding performance of this Agreement and refusing it remains unaffected.

6.7. Consequences of termination. Upon termination the Licensee shall cease all use of the Software and render all copies unusable, including copies in all Environments and in backups, save where and for as long as statutory retention obligations require otherwise. Licensee shall confirm in writing within ten (10) Business Days that it has done so, and shall describe any copies retained under a statutory retention obligation together with the basis for retention. Where the Licensee retains such copies, it shall continue to treat them in accordance with Section 14.7 and shall not use them productively.

6.8. Unlicensed use. Where the Licensee uses the Software without a valid license, in excess of the licensed scope, or after termination, Licensor may claim lump-sum damages amounting to the license fee that would have been payable for the unlicensed use for its actual duration, plus a surcharge of fifty (50) percent of that amount. The Licensee is entitled to demonstrate that no damage arose or that the damage was lower than the lump sum, in which case only the lower amount is owed. Licensor may alternatively claim its actual damage. This Section presupposes fault on the part of the Licensee.

6.9. Termination for convenience. Only Rental Licenses may be terminated for convenience, and only in accordance with Section 6.2. Where Licensor terminates a Rental License under Section 6.2, the Licensee is entitled to a pro-rata refund of any prepaid fees for the period after termination takes effect. Purchase Licenses may not be terminated by Licensor for convenience.

6.10. Survival. Sections 1.3, 1.6, 2, 3, 4.3, 4.7, 6.7, 6.8, 7 (in respect of amounts accrued before termination), 11, 12, 13, 14, 15, 16.6, 17, 18 and 20 survive termination. Claims that arose before termination remain unaffected.

7. Fees and Payment

7.1. The Licensee shall pay the license fee stated in the Order Confirmation and invoice.

7.2. All fees are net of VAT and any other applicable taxes, which the Licensee bears. The Agreement is concluded upon Licensor's Order Confirmation or, at the latest, upon receipt of the first payment.

7.3. Rental. Fees are calculated monthly and invoiced quarterly in advance. Payment is due within seven (7) days of the invoice date, unless the invoice states a different payment term, in which case that term applies.

7.4. Purchase. The full license fee is due within seven (7) days of the invoice date, unless the invoice states a different payment term, in which case that term applies. The rights of use under Section 4 take effect upon receipt of full payment. Where Licensor delivers before payment, the Licensee's right to use the Software before payment is limited to installation and verification in a non-productive Environment.

7.5. Standard price adjustment (Rental only). Licensor may adjust rental fees once per calendar year, effective at the start of the next billing period, with at least eight (8) weeks' prior written notice, by no more than the percentage change in the consumer price index for Germany published by the Federal Statistical Office (Destatis) over the preceding twelve months. Adjustments under this Section take effect without the Licensee's consent, subject to Section 7.10.

7.6. Feature-driven adjustment (Rental only). Where Licensor adds Substantial New Functionality to a licensed module, it may increase the fee for that module beyond the limit in Section 7.5, provided that:

  • the notice specifies the new functionality relied on, in reasonable detail and by reference to the release notes;
  • the functionality is available to the Licensee within its licensed scope at no separate charge;
  • the increase does not exceed twenty-five (25) percent in any single annual adjustment; and
  • the Licensee may terminate under Section 7.10.

7.7. Substantial New Functionality means one or more features or capabilities added to a licensed module that (i) materially extend the documented feature set of that module beyond its scope at the time the Licensee's current license was concluded, (ii) provide meaningful additional business value to the Licensee such as new integration capabilities, automation, data processing functions or output channels, and (iii) are documented in Licensor's official release notes. Bug fixes, Security Updates, performance improvements and minor changes to the user interface do not constitute Substantial New Functionality, whether individually or in combination.

7.8. Increases exceeding twenty-five (25) percent per year, and increases not attributable to Section 7.5 or Section 7.6, require the Licensee's prior written consent.

7.9. Adjustments under Section 7.6 may not be applied in more than two (2) consecutive annual periods without the Licensee's prior written consent.

7.10. Termination in response to a price increase. The Licensee may terminate the affected Rental License in writing within thirty (30) days of receiving notice of an adjustment under Section 7.5 or 7.6. Notwithstanding Section 6.2, such termination takes effect on the date on which the adjustment would otherwise take effect, and the Licensee is entitled to a pro-rata refund of prepaid fees for the period after that date. Licensor shall state this right and its effect in the notice of adjustment. If the Licensee does not terminate within the period, the adjustment is deemed accepted.

7.11. Default. Where the Licensee fails to pay by the due date, it is in default without a reminder, and overdue amounts bear interest from the due date at a rate of nine (9) percentage points above the base rate published by the Deutsche Bundesbank. Licensor may further claim a lump sum of €40 for each overdue claim, which is credited against any damages owed for the costs of pursuing the claim; further damages caused by the delay remain reserved. Where payment remains outstanding fourteen (14) days after a written reminder, Licensor may suspend access to the Software and to support until payment is received in full. Licensor shall give at least five (5) Business Days' notice before suspending access to a Productive Environment.

7.12. Set-off and retention. The Licensee may set off only against claims that are undisputed, have been established by a final court judgment or arbitral award, or arise from this Agreement and are based on defects or on incomplete performance. The Licensee may exercise a right of retention only in respect of claims arising from this Agreement.

8. Support

8.1. Licensor provides limited support at no additional charge (Basic Support) as follows:

  • Purchase Licenses: twelve (12) months from delivery;
  • Rental Licenses: for the duration of the active subscription.

8.2. Basic Support covers:

  • questions on the documented functionality of the Software;
  • questions on documented installation and configuration steps, but not the performance of installation or configuration work (Sections 3.10 and 9);
  • reproducible Defects in the unmodified Software.

8.3. Basic Support is provided by email in German or English. No telephone or hotline support is included. Licensor aims to respond within five (5) Business Days. Basic Support includes no guaranteed response or resolution time; these are available under a separate Software Maintenance and Support Agreement (SMSA).

8.4. Basic Support excludes:

  • integrations with third-party software not supplied by Licensor;
  • installation, setup, configuration, migration, data cleansing, training and consulting of any kind, whether the license is purchased or rented;
  • environments that do not meet the published system requirements, or in which other Software of Licensor required for the relevant functionality is not properly installed;
  • versions outside their Support Period (Section 10.4).

8.5. Modified Software. Modification of the Software is not permitted (Section 4.6). Where the Licensee or a third party has nevertheless modified the Software, Basic Support does not extend to the modified components or to behavior caused by the modification. Licensor will, on request, examine such cases as an Additional Service under Section 9. Section 11.8 governs Defect claims in respect of modified Software. Support for the Licensee's own modules and extensions within the meaning of Section 4.6.1 is not included in Basic Support and is available as an Additional Service.

8.6. Security Maintenance under Section 10 is provided independently of Basic Support and is not limited by this Section.

9. Additional Services

9.1. Services not covered by Sections 8 and 10, including training, consulting, custom development, implementation, configuration, migration, on-site support and extended support, are Additional Services subject to separate agreement and separate billing at the standard hourly rate under the GTC. Additional Services are Professional Services within the meaning of the GTC.

9.2. Licensor's General Terms and Conditions (GTC) apply to Additional Services. This Agreement does not form part of the GTC, and the GTC do not govern the license granted under this Agreement. In the event of a conflict between the GTC and this Agreement, the GTC prevail in respect of Additional Services only, and this Agreement prevails in all other respects. Where it cannot be determined whether a matter concerns Additional Services or the license itself, this Agreement prevails.

10. Security Maintenance, Updates and Upgrades

10.1. Support Period. Licensor declares a Support Period for each Minor Version of the Software. The Support Period is stated in the Order Confirmation and published in the Documentation, and is at least five (5) years from the date on which that Minor Version was first placed on the market in the European Union. Licensor publishes the end-of-support date for each Minor Version.

10.2. Security Updates. Within the Support Period for a Minor Version, Licensor handles vulnerabilities in that Minor Version and provides Security Updates for it free of charge. This obligation applies irrespective of whether the Licensee holds current Feature Upgrade coverage under Section 10.7, and irrespective of whether Basic Support under Section 8 is still running.

10.2.1. Security information and availability. Licensor identifies Security Updates as such in the release notes and accompanies each Security Update with information on the vulnerability remediated and on any measures the Licensee should take. Each Security Update remains available to the Licensee for at least ten (10) years after its release, or for the remainder of the Support Period where this is longer.

10.3. Currency requirement. Subject to Section 10.3.1, to receive Security Updates the Licensee must operate the most recent patch release of a Minor Version that is within its Support Period. Security Updates for a Minor Version are provided as patch releases of that Minor Version; the Licensee is not required to install a newer Minor Version or Major Version in order to receive them. Each Minor Version of the Software remains compatible with all later minor versions of the major version of the AtroCore platform for which it was released, so that the Licensee can also install the security updates of the platform. Releases within a Major Version do not remove documented functionality.

10.3.1. Additional costs of upgrading. Where the installation of the most recent patch release of the Minor Version would require the Licensee to adapt its own modules or extensions within the meaning of Section 4.6.1, third-party modules or system integrations, or to upgrade its operating environment beyond the system requirements of the release it operates, and would thereby cause the Licensee additional costs, Licensor provides the Security Update, on the Licensee's written request, as a patch for the release operated by the Licensee. Instead, Licensor may at its choice carry out free of charge the adaptation of the modules, extensions or system integrations required for the installation of the most recent release. The patch is provided free of charge in accordance with Section 10.2.

10.4. After the Support Period. Once the Support Period for a Minor Version has expired, Licensor is under no obligation to provide Security Updates for that Minor Version. Where Licensor remediates a vulnerability in an out-of-support version at all, it does so as a chargeable Additional Service under Section 9. Moving to a Minor Version or Major Version with a current Support Period constitutes a Feature Upgrade and is governed by Section 10.7.

10.5. Installation of Security Updates and Feature Upgrades. Where the Licensee has not concluded a maintenance and support agreement or a SaaS agreement with Licensor under which Licensor installs releases, the Licensee is responsible for installing Security Updates and Feature Upgrades. In that case the Licensee shall install Security Updates without undue delay, and in any event within thirty (30) days of their availability, or within seven (7) days where the Security Update remediates a vulnerability of Critical severity under Licensor's published Security Policy. This is an obligation of the Licensee and not a recommendation. Sections 13.7 and 13.8 govern the consequences of non-compliance.

10.5.1. Where the Licensee has concluded a maintenance and support agreement or a SaaS agreement with Licensor, responsibility for installing Security Updates and Feature Upgrades in the Environments covered by that agreement is governed by that agreement. Sections 13.7 and 13.8 do not operate against the Licensee to the extent that Licensor performs the installation. Licensor's obligation to provide Security Updates under Section 10.2 is unaffected in every case.

10.6. Vulnerability reporting and SBOM. The Licensee shall report vulnerabilities it discovers to Licensor in accordance with Licensor's published Security Policy, and shall not disclose them publicly before Licensor has had a reasonable opportunity to remediate them. Licensor maintains a software bill of materials (SBOM) for the Software and makes it available to the Licensee on written request.

10.7. Feature Upgrades.

  • Rental Licenses: Feature Upgrades are included for the duration of the active subscription.
  • Purchase Licenses: Feature Upgrades are included free of charge for twelve (12) months from delivery. Thereafter the Licensee may purchase successive twelve-month Feature Upgrade packages at twenty (20) percent of the then-current purchase price of the licensed modules. Packages must be purchased consecutively; where coverage lapses, it cannot be reinstated retroactively and Licensor may require payment for the lapsed periods as a condition of resuming coverage.
  • A Licensee without current Feature Upgrade coverage retains its license and continues to receive Security Updates under Section 10.2 for the remainder of the Support Period of the Minor Version it holds.

10.8. Changes to functionality. Licensor may modify, add to, or discontinue functionality in a Feature Upgrade where this is necessary or objectively justified for one of the following reasons: technical development of the Software, security, the discontinuation or change of a third-party component or interface, changes in legal or regulatory requirements, or the correction of a Defect. Any such change must be reasonable for the Licensee taking account of Licensor's interests. Licensor shall not remove documented core functionality of a licensed module in a way that materially impairs the module's primary documented use. Where Licensor nonetheless does so in respect of a Rental License, it shall give the Licensee at least sixty (60) days' notice, and the Licensee may terminate the affected module with effect from the date the change takes effect, with a pro-rata refund of prepaid fees.

10.9. Release notes and testing. Licensor publishes release notes for each release. The Licensee shall review the release notes before applying a release. Licensor recommends that the Licensee test a Feature Upgrade in a non-productive Environment before applying it to a Productive Environment, but the Licensee is not obliged to do so; the Environments permitted under Section 4.5 are available for that purpose. Where Licensor applies a Feature Upgrade to a Productive Environment, Licensor shall test it beforehand in accordance with its own release testing process. That testing does not extend the Agreed Quality under Section 3 and is not an assurance that the release is free of Defects (Section 3.8).

11. Defects: Purchase Licenses

11.1. This Section applies to Purchase Licenses, to which the statutory law of sale applies. Whether the Software is defective is determined by the Agreed Quality under Section 3 and the definition of Defect in Section 2.12.

11.2. Inspection and notification. The Licensee shall examine the Software within ten (10) Business Days of delivery and notify Licensor in writing of any obvious defects within that period. The examination period begins once the Software has been installed and is capable of being operated in the intended Environment; where the Licensee has not commissioned installation as an Additional Service, the period begins on delivery. Failure to notify within the period means the Software is deemed approved in respect of defects discoverable on such examination. This does not apply where Licensor fraudulently concealed the defect.

11.3. Hidden defects. Defects not discoverable on examination under Section 11.2 must be notified in writing without undue delay and in any event within ten (10) Business Days of discovery, and before expiry of the period in Section 11.10.

11.4. Content of a notification. A notification shall include a comprehensible description of the symptoms, the steps required to reproduce the Defect, the version and Environment concerned, and available supporting material such as log files and screenshots. Licensor may require notifications to be submitted through its support ticket system.

11.5. Subsequent performance. Licensor shall remedy confirmed Defects by repair or by supplying a replacement, at its choice, taking reasonable account of the Licensee's interests. Delivery of a new release, a patch, or a documented workaround that removes the material impairment constitutes remedy. Licensor is entitled to two (2) attempts at remedy.

11.6. Rights on failure of subsequent performance. Where two attempts at remedy have failed, where Licensor refuses remedy, or where remedy is unreasonable for the Licensee, the Licensee may set a final written deadline of at least fourteen (14) days and thereafter rescind the Agreement in respect of the affected modules or reduce the license fee, and may claim damages in accordance with Section 13. On rescission the affected license terminates, Section 6.7 applies, and Licensor refunds the license fee for the affected modules less an allowance for the use actually made, calculated pro rata temporis over thirty-six (36) months from delivery.

11.7. Unfounded notifications. Where Licensor establishes that a notified Defect cannot be reproduced or is not a Defect, Licensor shall inform the Licensee before beginning a detailed investigation and shall provide an estimate of the investigation cost at its then-current published rate. The Licensee may withdraw the notification within two (2) Business Days of receiving the estimate at no charge. Where the Licensee does not withdraw it, the Licensee shall bear the investigation costs actually incurred, unless the Licensee was not at fault in making the notification.

11.8. Modified Software. Licensor is not liable for Defects caused by a modification made by the Licensee or by a third party engaged by it in breach of Section 4.6, or by a module or extension of the Licensee within the meaning of Section 4.6.1. Where the Licensee demonstrates that a Defect exists independently of the modification, its Defect claims remain unaffected. Licensor may require the Licensee to reproduce the Defect in an unmodified installation as a condition of remedy, where doing so is reasonable for the Licensee.

11.9. Defects attributable to the Licensee. Defects caused by an Environment that does not meet the published system requirements, by third-party integrations, by improper use, or by the Licensee's failure to apply a Security Update under Section 10.5, shall be remedied as an Additional Service at Licensor's then-current published rate.

11.10. Limitation period. Defect claims become time-barred twelve (12) months after delivery. This shortened period does not apply to: claims for injury to life, body or health; claims based on intent or gross negligence on the part of Licensor, its legal representatives or persons employed in performing its obligations; claims arising from the fraudulent concealment of a defect or from a guarantee assumed under Section 3.7; claims under mandatory product liability law; and any case in which mandatory law provides for a longer period. In those cases the statutory limitation periods apply.

12. Defects: Rental Licenses

12.1. This Section applies to Rental Licenses, to which the statutory law of lease applies. Licensor owes the provision of the Software in a condition suitable for the use agreed under Section 3, and the maintenance of that condition for the term.

12.2. Exclusion of no-fault liability for initial defects. Licensor's statutory liability, irrespective of fault, to pay damages for defects present at the time the Software is made available is excluded. Licensor's liability for such defects is governed by Section 13, which requires fault. This exclusion does not apply to the cases listed in Section 13.1.

12.3. Reduction of the fee. A reduction of the fee for a defect that removes or reduces the suitability of the Software for the agreed use presupposes that the Licensee has notified Licensor of the defect in writing in accordance with Section 11.4. Reduction takes effect from receipt of the notification; it does not operate retroactively for periods before notification where the Licensee knew of the defect and failed to notify it without undue delay.

12.3.1. Manner of exercise. The Licensee's statutory right to a reduction of the fee is neither excluded nor limited in substance by this Agreement. This Section regulates only the manner in which that right is exercised. The Licensee shall continue to pay the agreed fee in full and shall assert the reduction by way of a claim for repayment of the amount overpaid. The Licensee may reduce the fee directly, by withholding the corresponding amount from a payment due, where:

  • Licensor has acknowledged the defect and the extent of the reduction in writing;
  • the reduction has been established by a final court judgment or arbitral award; or
  • the defect renders the Software wholly unusable for the Licensee's contractual purpose for more than fourteen (14) consecutive days following notification.

A claim for repayment under this Section is subject to the statutory limitation period. Section 7.12 governs the set-off of such a claim.

12.4. Self-remedy. The Licensee may remedy a defect itself and claim reimbursement of the expenses required for this only where it has notified Licensor of the defect, set a reasonable deadline of at least fourteen (14) days for remedy, and that deadline has expired without result, or where immediate remedy is necessary to preserve or restore the operation of the Software.

12.5. Termination for defects. Termination for cause on the ground that the agreed use of the Software is not granted in time, or is withdrawn, in whole or in part, requires that the Licensee has first given Licensor written notice of the defect and a reasonable period of at least fourteen (14) days to remedy it, unless setting such a period is unreasonable for the Licensee in the circumstances.

12.6. Sections 11.4, 11.5 and 11.7 to 11.9 apply to Rental Licenses accordingly. Sections 11.2, 11.3, 11.6 and 11.10 do not apply to Rental Licenses. In place of Sections 11.2 and 11.3, the Licensee shall notify Licensor of any defect without undue delay after becoming aware of it, in accordance with Section 11.4; no approval of the Software is deemed to occur by reason of a failure to notify. In place of Section 11.10, the statutory limitation periods apply.

13. Liability

13.1. Unlimited liability. Licensor is liable without limitation:

  • for intent and gross negligence;
  • for injury to life, body or health;
  • for the fraudulent concealment of a defect, and under any guarantee assumed in accordance with Section 3.7;
  • under mandatory product liability law;
  • to the extent that liability cannot be limited under mandatory applicable law, in particular liability toward data subjects under data protection law and liability that may not be limited under the mandatory rules of the EU Data Act on unfair contractual terms.

13.2. Simple negligence. In cases of simple negligence Licensor is liable only for the breach of a material contractual obligation, being an obligation whose performance is essential to achieving the purpose of this Agreement and on whose performance the Licensee may therefore rely. In such cases liability is limited to the damage typical for a contract of this kind and foreseeable at the time of its conclusion.

13.3. Cap. Liability under Section 13.2 is limited, per event giving rise to liability, to the greater of (i) the total fees paid by the Licensee to Licensor under this Agreement in the twelve (12) months preceding the event, or (ii) €10,000. Liability under Section 13.2 for all events occurring within the same contract year is limited in aggregate to twice that amount. The cap in this Section does not apply to the cases listed in Section 13.1.

13.4. Exclusion. Liability beyond Sections 13.1 to 13.3 is excluded, in particular liability for lost profits, lost savings, business interruption, loss of goodwill and loss of anticipated cost savings, save where such damage constitutes damage typical for a contract of this kind and foreseeable within the meaning of Section 13.2.

13.5. Data loss. In cases falling under Section 13.2, Licensor's liability for the loss, corruption, destruction or unavailability of data is limited to the expenditure that would have been required to restore the data from backup copies maintained in accordance with Section 13.6. This limitation does not apply to the cases listed in Section 13.1.

13.6. The Licensee's data security obligation. The Licensee shall maintain backups of its data appropriate to the criticality of that data, and in any event shall:

  • take backups of all data in the Productive Environment at least daily;
  • verify at regular intervals that backups can in fact be restored;
  • take a complete backup immediately before applying any update, upgrade or configuration change to a Productive Environment.

This is a contractual obligation of the Licensee. The implementation and operation of a functioning backup and recovery process is a precondition for the productive use of the Software.

13.7. Contributory negligence. Where the Licensee has contributed to the occurrence or the extent of the damage, the Licensee's claims are reduced, or excluded, in proportion to its contribution. Circumstances attributable to the Licensee that may reduce or exclude its claims include failure to comply with Section 13.6, failure to apply a Security Update in accordance with Section 10.5, applying a Feature Upgrade to a Productive Environment without prior testing where testing was reasonably available to the Licensee, failure to notify a Defect in accordance with Sections 11.2 to 11.4, and operating the Software outside the published system requirements.

13.8. Unapplied Security Updates. Where damage results from a vulnerability that a Security Update made available by Licensor would have remediated, and the Licensee failed to apply that update within the period set by Section 10.5, Licensor is not liable in cases of simple negligence to the extent that the damage would have been avoided had the update been applied.

13.9. The above provisions do not alter the statutory allocation of the burden of proof.

13.10. The limitations and exclusions in this Section apply equally in favor of Licensor's legal representatives, employees, agents and subcontractors, where a claim is brought against them directly.

13.11. Mandatory law. Where a provision of this Section is not binding on the Licensee by virtue of the mandatory rules of the EU Data Act on unfair contractual terms, or is invalid under any other mandatory provision of applicable law, that provision is severable and the remaining provisions of this Section continue to apply.

14. Intellectual Property, Trade Secrets and Confidentiality

14.1. Ownership. All intellectual property rights in and to the Software, including all original code and the Documentation, remain exclusively with Licensor. The Licensee acquires only the rights of use expressly granted under Section 4.

14.2. Third-party rights. Licensor warrants that the Software, in unmodified form and used within the licensed scope, does not infringe the intellectual property rights of third parties in the European Economic Area.

14.3. Defense and indemnity. Where a third party asserts a claim against the Licensee alleging such an infringement, Licensor shall defend or settle the claim at its own cost and shall indemnify the Licensee against final awards and settlements agreed by Licensor, subject to the cap in Section 13.3, provided that the Licensee:

  • notifies Licensor in writing without undue delay after becoming aware of the claim;
  • grants Licensor sole control of the defense and of any settlement;
  • makes no admission of liability and enters into no settlement without Licensor's written consent;
  • provides Licensor with reasonable cooperation, information and access at Licensor's cost.

14.4. Exclusions. Section 14.3 does not apply where the claim arises from: modifications made by the Licensee or by a third party engaged by it; combination of the Software with software, data, content or hardware not supplied or approved by Licensor, where the claim would not have arisen without that combination; use outside the licensed scope; or the Licensee's continued use of an infringing version after Licensor has made a non-infringing version available.

14.5. Remedies. Licensor may, at its option, procure the necessary rights, or modify or replace the Software so that it is no longer infringing while substantially preserving the documented functionality. Where neither is reasonably possible, either party may terminate the affected license. On such termination, the Licensee is entitled to a pro-rata refund of prepaid fees in the case of a Rental License, and in the case of a Purchase License to a refund of the license fee for the affected modules less an allowance for the use actually made, calculated pro rata temporis over thirty-six (36) months from delivery.

14.6. Source code as a trade secret. The parties agree that the source code and the technical documentation of the Software constitute trade secrets of Licensor, that is, information that is neither generally known nor readily accessible and is therefore of economic value, that is subject to appropriate confidentiality measures by Licensor, and in whose confidentiality Licensor has a legitimate interest. The Licensee shall:

  • treat them as strictly confidential and disclose them only to those of its employees and contractors who need access for the permitted use, and who are bound by confidentiality obligations at least equivalent to those in this Section;
  • implement appropriate technical and organizational measures to prevent unauthorized access, use or disclosure, including access controls, restriction of copies to those necessary, and protection of development and backup systems;
  • not disclose the source code or the technical documentation to third parties, publish it, or transfer it to any repository, service or platform that is publicly accessible or accessible to third parties, including public code hosting services and third-party code analysis or code generation services;
  • not alter the Software, and not reverse engineer any component delivered in compiled, minified or otherwise obfuscated form, in accordance with Section 4.6; Sections 4.3.1 and 4.3.2 remain unaffected.

The parties agree that the measures required by this Section constitute appropriate confidentiality measures for the protection of these trade secrets.

14.7. Confidentiality. Each party shall treat as confidential all non-public information of the other party disclosed in connection with this Agreement, and shall use it only for the purposes of this Agreement. The obligation does not apply to information that is or becomes publicly known without breach of this Agreement, that the receiving party independently developed or lawfully obtained from a third party, or whose disclosure is required by law, court order or regulatory authority, in which case the disclosing party shall be notified in advance where legally permissible.

14.8. Duration. The obligations in Section 14.7 survive for five (5) years after termination of this Agreement. The obligations in Section 14.6 in respect of the source code and the technical documentation survive without limitation in time, for as long as the information concerned continues to constitute a trade secret.

14.9. Contributions by the Licensee. The Licensee is under no obligation to make material of the kind described below available to Licensor, and neither Licensor's support obligations under Section 8 nor its obligations under Sections 10 to 12 depend on its doing so. Where the Licensee voluntarily provides Licensor with a module or extension within the meaning of Section 4.6.1, a proposed correction, a patch, or an improvement suggestion (a Contribution), the Licensee grants Licensor a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and sublicensable right to use, reproduce, modify, further develop and distribute that Contribution as part of the Software or of software derived from it. The Licensee grants this right only to the extent that it holds the necessary rights, and warrants that it has secured the rights required from its employees and contractors. Licensor is under no obligation to accept or incorporate a Contribution.

14.10. Third-party and open source components. The Software contains third-party components, including open source components, identified in the Documentation and in the SBOM referred to in Section 10.6. Those components are licensed under their own terms, which prevail in respect of the components concerned. Licensor's obligations under Sections 10 to 13 apply to the Software as integrated and delivered by Licensor.

15. Refunds

15.1. The Licensee is entitled to a refund in the following cases and to the extent stated:

  • termination of a Rental License by Licensor for convenience under Sections 6.2 and 6.9: pro-rata refund of prepaid rental fees;
  • termination in response to a price adjustment under Section 7.10: pro-rata refund of prepaid rental fees;
  • termination following a material reduction of functionality under Section 10.8: pro-rata refund of prepaid rental fees;
  • rescission following failure of subsequent performance under Section 11.6: refund as set out in that Section;
  • termination on grounds of third-party rights under Section 14.5: refund as set out in that Section;
  • termination on grounds of a Force Majeure Event under Section 19.3: pro-rata refund of prepaid rental fees;
  • termination by the Licensee for cause under Section 6.3 based on an uncured material breach by Licensor: pro-rata refund of prepaid rental fees, and for Purchase Licenses the refund provided by Section 11.6 where the breach consists of an unremedied Defect.

15.2. Outside the cases in Section 15.1, and outside any case in which mandatory law provides otherwise, the Licensee is not entitled to a refund, in particular where:

  • it decides not to use the Software;
  • its technical environment proves incompatible, Section 3.5 applying;
  • it is dissatisfied with functionality that conforms to the Documentation;
  • it terminates a Rental License before the end of a paid period for reasons other than those listed in Section 15.1.

15.3. The Licensee's statutory rights arising from a confirmed Defect that has not been remedied, and any other mandatory statutory rights, remain unaffected by this Section.

16. Pre-Purchase Evaluation

16.1. This Section governs the optional provision of a free evaluation copy for the purpose of pre-purchase assessment. It confers no rights in connection with any paid license. Completion or expiry of an Evaluation Period does not entitle the Licensee to return the Software or to a refund under any paid license subsequently concluded.

16.2. Licensor may provide a free evaluation copy for thirty (30) days (the Evaluation Period), unless a different period is agreed in writing. Once granted in writing, an Evaluation Period may not be shortened without the Licensee's consent, save where the Licensee breaches Section 16.3.

16.3. During the Evaluation Period the Software may be used only internally, to assess whether it meets the Licensee's requirements. Productive, commercial and third-party use is not permitted.

16.4. Form of delivery and confidentiality. Evaluation copies are provided as source code, on the same basis as under Section 1.4. Section 14 applies to evaluation copies in full. In particular, the source code provided for evaluation constitutes a trade secret of Licensor within the meaning of Section 14.6, and the obligations under Sections 14.6 to 14.8 apply irrespective of whether a paid license is subsequently concluded and continue to apply after the Evaluation Period has expired.

16.5. On expiry of the Evaluation Period the Licensee shall cease use and render all copies unusable in accordance with Section 6.7.

16.6. Continued use after expiry of the Evaluation Period without a valid license is governed by Section 6.8.

16.7. Evaluation copies are provided free of charge. Sections 11 and 12 do not apply to them. Licensor's liability in respect of evaluation copies is limited to the cases set out in Section 13.1.

17. Indemnification by the Licensee

17.1. The Licensee shall indemnify Licensor and its legal representatives, employees and affiliates against third-party claims, and against the resulting damages, losses and reasonable costs including reasonable legal fees, where the claim is directly and primarily caused by:

  • the Licensee's use of the Software in material breach of this Agreement;
  • modification of the Software by the Licensee or by a third party engaged by it;
  • integration of the Software with third-party software by the Licensee, where that integration is the direct and primary cause of the claim;
  • content or data that the Licensee processes in or publishes by means of the Software;
  • breach by the Licensee of its obligations under Section 14.

17.2. The indemnity does not apply to the extent that the claim arises from Licensor's own act or omission, including a Defect in the unmodified Software or a breach of this Agreement by Licensor. It presupposes fault on the part of the Licensee.

17.3. Licensor shall notify the Licensee of any such claim without undue delay, shall make no admission of liability and shall enter into no settlement without the Licensee's consent, and shall give the Licensee a reasonable opportunity to participate in the defense.

18. Data Protection

18.1. Deployment models. Whether Licensor processes personal data on behalf of the Licensee depends on how the Software is deployed:

18.1.1. Self-hosted without access by Licensor. Where the Licensee operates the Software on its own or its own procured infrastructure and Licensor has no access to it, Licensor does not process personal data on behalf of the Licensee and no Data Processing Agreement is required. The Licensee alone is the controller.

18.1.2. Support access. Where the Licensee grants Licensor access to an Environment containing personal data for the purposes of support or defect analysis, Licensor acts as processor for the duration and scope of that access, and Section 18.2 applies.

18.1.3. Hosting and managed services. Where Licensor hosts or operates the Software under a separate SaaS agreement in accordance with Section 3.11, or provides managed services in respect of it, Licensor acts as processor and Section 18.2 applies.

18.2. Data Processing Agreement. In the cases covered by Sections 18.1.2 and 18.1.3, the Licensee acts as controller and Licensor as processor. The parties shall conclude a separate Data Processing Agreement meeting the requirements of the GDPR for processing on behalf of a controller, signed by both parties and including the Annex 3 describing the processing activity concerned, before any processing of personal data by Licensor begins. Licensor shall provide its standard form of Data Processing Agreement at the latest upon delivery of the Software, without requiring a request from the Licensee. Where the Licensee wishes to use its own form, Section 20.5 applies.

18.2.1. No processing before conclusion. Licensor is entitled to refuse to host the Software, to refuse access to an Environment containing personal data, and to suspend any such hosting or access, until a Data Processing Agreement has been concluded. The Licensee shall not commence productive use involving the processing of personal data by Licensor in a case covered by Section 18.1.2 or 18.1.3 before the Data Processing Agreement has been concluded.

18.2.2. Relationship to this Agreement. The Data Processing Agreement supplements this Agreement. In the event of a conflict, the Data Processing Agreement prevails in respect of the processing of personal data. Section 13 applies to liability arising under the Data Processing Agreement, unless that agreement expressly provides otherwise.

18.3. Content of the Data Processing Agreement. The Data Processing Agreement governs in particular the engagement and change of sub-processors, transfers to third countries, the technical and organizational measures, the notification of personal data breaches, audit rights and the allocation of their costs, and the deletion and return of personal data. Where the parties use a data processing agreement other than Licensor's standard form and that agreement does not regulate audits, the audit conditions of Licensor's standard form of Data Processing Agreement apply accordingly.

18.4. The Licensee's responsibilities. The Licensee is responsible for the lawfulness of the processing it instructs, for identifying a legal basis, for information obligations and data subject requests, for retention and erasure periods, and for the content of the personal data it enters into the Software. The Licensee shall not enter special categories of personal data (in particular health, genetic and biometric data and data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sex life or sexual orientation) into the Software unless the parties have agreed this in writing and the necessary measures are in place.

18.5. Liability toward data subjects. Liability toward data subjects under data protection law is determined by that law and cannot be modified by this Agreement. The allocation of that liability between the parties by way of recourse is governed by the Data Processing Agreement and by Section 13.

18.6. Other data protection regimes. Where the Licensee's use of the Software is subject to a data protection regime outside the European Economic Area, the Licensee is responsible for verifying and complying with the requirements applicable in its jurisdiction. Licensor makes no representation that the Software is compliant with any particular regime outside the European Economic Area. On written request, the parties shall negotiate in good faith an appropriate addendum.

19. Force Majeure

19.1. Neither party is liable for delay or failure in performing its obligations to the extent caused by circumstances beyond its reasonable control, including natural disasters, war, terrorism, civil unrest, acts of state, cyberattacks on infrastructure outside its control, failures of internet or energy infrastructure, epidemics and pandemics, and the failure of third-party service providers where no equivalent provider is reasonably available (a Force Majeure Event). Lack of funds is not a Force Majeure Event.

19.2. The affected party shall notify the other as soon as reasonably practicable and shall use reasonable efforts to mitigate the effects. The affected obligations are suspended for the duration of the Force Majeure Event. Where Licensor's performance is suspended in respect of a Rental License for more than fourteen (14) consecutive days, the fee is reduced pro rata for the period of suspension.

19.3. Where a Force Majeure Event continues for more than sixty (60) days, either party may terminate the affected license on written notice. The Licensee is entitled to a pro-rata refund of prepaid rental fees for the period after termination takes effect.

20. Final Provisions

20.1. Changes to the Software. Licensor may develop the Software further within the limits set by Section 10.8. Licensor may not unilaterally amend this Agreement. Existing licenses remain subject to the version of this Agreement applicable at the time they were concluded, subject only to the price adjustment mechanism in Sections 7.5 to 7.10.

20.2. Amendments and the priority of individual agreements. Amendments to this Agreement require written form and the signature of both parties. Individual agreements between the parties are effective irrespective of this requirement and take precedence over this Agreement.

20.3. Reference customer. With the Licensee's consent, Licensor may name the Licensee as a customer and use its name, trade name or logo on Licensor's website and in Licensor's standard marketing materials such as customer lists, case study references and product presentations, but not in paid advertising, sponsored content or press releases without the Licensee's separate prior written consent. The Licensee may withdraw its consent in writing at any time with effect for the future. Withdrawal does not require Licensor to alter or recall materials already published or distributed before receipt of the withdrawal. Irrespective of consent, Licensor may name the Licensee as a customer in confidential, non-public contexts, in particular in tenders and bids, in due diligence reviews by prospective investors or acquirers, and toward its auditors, legal and tax advisors, and financing partners, provided the recipients are bound by confidentiality obligations. Section 14.7 does not restrict these uses.

20.4. Entire agreement. This Agreement, together with the Data Processing Agreement concluded under Section 18.2, the applicable Order Confirmation and invoice, and any written addendum signed by both parties, constitutes the entire agreement between the parties in respect of the Software and supersedes all prior oral and written agreements and representations on that subject matter. Written addenda signed by both parties after the date of this Agreement prevail over this Agreement to the extent of any conflict.

20.5. Individually negotiated agreements. In the event of a conflict between this Agreement and an individually negotiated written agreement between the parties, the individually negotiated agreement prevails to the extent of the conflict.

20.6. Governing law. This Agreement is governed by the law of the Federal Republic of Germany, excluding its conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods. Where overriding mandatory provisions of the law of the Licensee's jurisdiction apply, those provisions apply to the minimum extent required and German law governs all remaining matters.

20.7. Jurisdiction. Where the Licensee is a merchant, a legal person under public law, or a special fund under public law, or has no general place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement is the registered seat of AtroCore GmbH. Licensor may in addition bring proceedings before the courts of the Licensee's registered seat or place of business, provided those courts are the courts of a Member State of the European Union or of a State party to the Lugano Convention. In all other cases, the statutory rules on jurisdiction apply.

20.8. Export control. The Licensee is responsible for complying with all applicable export control law, including the EU rules on the export of dual-use items, the export control law of the United States, and applicable sanctions regimes. The Licensee warrants that it is not located in, operating from, or acting on behalf of a person or entity in a country or territory subject to EU or UN sanctions, and that it is not itself a listed person. Licensor is not liable for the Licensee's non-compliance with export control obligations.

20.9. Assignment. Licensor may assign this Agreement, in whole or in part, to a company affiliated with it or to a successor in the context of a transfer of the business to which the Software relates. The Licensee may transfer its rights and obligations only in accordance with Section 5.

20.10. Notices. Notices under this Agreement require at least text form, that is, a legible declaration on a durable medium that names the person making it, and may be given by email to the addresses designated by the parties, save where this Agreement expressly requires a signature. Where this Agreement requires written form or a signature, a document signed by the declaring party is required; a signed document transmitted as a scanned copy (for example as a PDF) by email, or a document signed with a qualified electronic signature, satisfies this requirement. Notices of termination require written form.

20.11. Severability. Where a provision of this Agreement is or becomes invalid or unenforceable, it shall be replaced by the statutory provision applicable in its place. The remaining provisions continue in force. Where the invalidity results from a provision restricting the Licensee's rights beyond what applicable law permits, the provision applies with the content permitted by law, and this Section does not operate to preserve a provision where the law precludes its preservation.

20.12. Records. Each party is responsible for retaining a copy of this Agreement, the Data Processing Agreement, and the applicable Order Confirmation.