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Openmatics s.r.o. General Terms and Conditions for the Standard Development and Licensing of Application Software (Version of October 2013)
1. General Provisions
1.1 These General Terms and Conditions (“App License GTC”) shall apply for all agreements (“App License Contracts”) about the standard development and licensing of program software for a specific utilization and analysis of Telematics Data (“Application Software”) between Openmatics s.r.o., with its place of business at Univerzitni 1159/53, 301 00 Pilsen, Czech Republic, ("Openmatics") and the individual person or legal entity (“App Licensing Partner”), who has developed, or will develop, or is trading with the Application Software, if they form part of the Licensing Contract due to their notification by Openmatics to the App Licensing Partner (together being the "Parties" or a "Party") upon conclusion of the App License Contract through the electronic procedure via the homepage of Openmatics (www.openmatics.com).
1.2 Any deviating contractual terms of the App Licensing Partner that have not been expressly accepted in writing by Openmatics shall not be binding, even if they had been qualified as basis of the submission of the Application Software by the App Software Partner and Openmatics has not expressly objected to them.
1.3 Openmatics shall not be obliged
(i) to distribute an Application Software, unless it has been certified according to Section 7.6 and no refusal according to Section 7.7 was notified by Openmatics;and
(ii) to refrain from the conclusion of a further App License Agreement with a third party due to the existence of any other App License Contract.
1.4 The App Licensing Contract comprises
(i) any objectives individually determined within the electronic procedure of contract conclusion, if applicable;
(ii) these App License GTC;
(iii) the App Documentation according to Section 6.3 as certified by Openmatics according to Section 7.6;
(iv) Openmatics development guidelines according to Section 5.2;
(v) Openmatics documentation guidelines according to Section 5.3;
(vi) the guidelines and technical standards valid at the time the App License Contract is concluded as well as the general state of the art of science and technology.
The aforementioned documents, information and standards take precedence in the specified order.
1.5 Insofar a declaration has to be made in writing with regard to the execution of the App License Contract, such declaration must be signed by a person, who is entitled to represent the respective Party properly, and be transmitted in written form by letter, telefax or email.
1.6 The designated purpose of the Application Software is its distribution to Openmatics customers through the internet shop for telematics services of Openmatics (“Openmatics Shop”; http://shop.openmatics.com). Furthermore, Openmatics may distribute the Application Software also through other distribution channels. However, Openmatics may decide in its absolute and sole discretion,
(i) whether it will operate the Openmatics Shop in the future;and
(ii) whether and which distribution channels it will use.
1.7 The App License Contract shall be valid as long as the Application Software will be distributed by Openmatics to its customers but not longer than 10 years (“Service Period”). The Service Period shall be prolonged automatically, if the App Licensing Partner has provided a new version of the Application Software that has to be acquired again by the customers of Openmatics. Openmatics shall inform in writing the App Licensing Partner, when the distribution of the Application Software will be discontinued. With discontinuation of the distribution the Application Software will be removed from the systems of Openmatics and its customers.
2.1 The App Licensing Partner shall grant to Openmatics an irrevocable, non-exclusive, world-wide, sub-licensable and transferable license for the usage of the Application Software or any of its components and any results of its usage.
2.2 This license comprises in particular
(i) the right to distribute the Application Software and the App Documentation to customers by any kind of technical and commercial measures and procedures;and
(ii) the right to provide maintenance services in respect of the Application Software to the customers.
3. Licensing conditions of third-party/open-source software
3.1 If the Application Software or components of the Application Software are subject to third-party license or so-called open-source license terms (together "Licensing Conditions") which the App Licensing Partner is obligated to pass on to Openmatics, the App Licensing Partner
(i) shall notify Openmatics of the applicable Licensing Conditions and make them available to Openmatics in an appropriate form, e.g. as downloads;
(ii) shall expressly inform Openmatics in writing about any contradiction between these App License GTC and said Licensing Conditions;
(iii) shall expressly inform Openmatics in writing of any usage restrictions or measures necessary in respect of, or resulting from, the Licensing Conditions; as Openmatics has to ensure valid usage rights for its customers with regard to the Application Software.
3.2 If Openmatics is obligated due to the Licensing Conditions to make available the source codes of software contained in the Application Software to its customers, the App Licensing Partner shall surrender such source code to Openmatics in an appropriate form of its own accord.
4. Remuneration and payment conditions
4.1 The App License Partner shall provide a proposal for the sales price of the Application Software. However, Openmatics may determine in its absolute and sole discretion any licensing and pricing models for the distribution of the Application Software taking into account the sales prices in the respective market and the sales prices of the other Application Software distributed by Openmatics.
4.2 The App Licensing Partner shall receive 70% of the net sales revenues generated by the distribution of the Application Software.
4.3 Openmatics will provide to the App Licensing Partner the accounting for the remuneration, including, if applicable, the information about the revenues for the distribution of the Application Software, on a monthly basis. Any payment will be due on the 15th day of the following month of each accounting period.
5. Support by Openmatics
5.1 Openmatics shall make available all information and documents necessary for the proper performance of the development and maintenance services to the App Licensing Partner.
5.2 The guidelines for the development of any Application Software will be provided on the development portal of Openmatics (https://dev.openmatics.com). The development guidelines comprise also general requirements of the Application Software, e.g. system compatibility, memory usage, reasonable consumption of resources, operation under full workload, handling of failures.
5.3 The guidelines for the documentation of any Application Software will be provided on the development portal of Openmatics (https://dev.openmatics.com).
5.4 Guidelines and any other material of any kind (e.g. documents, software programs) surrendered to the App Licensing Partner shall remain the property of Openmatics. The App Licensing Partner may only use guidelines and any other material to the extent necessary for the proper execution of the App Licensing Contract.
6. Provision of Development Services by the App Licensing Partner
6.1 The App Licensing Partner shall perform the development services according to the state of the art and in the interest of all the software users.
6.2 The App Licensing Partner shall use the development environment determined and, if applicable, provided by Openmatics.
6.3 The App Licensing Partner shall create a documentation comprising all technical data, a software description and all other information necessary for the proper usage of the Application Software (“App Documentation”). The description of the Application Software shall be prepared by the App Licensing Partner according to the requirements mentioned in the documentation guidelines.
6.4 The App Licensing Partner shall provide a draft of the App Documentation reasonably after conclusion of the App License Contract and before the start of the development of the Application Software. Openmatics shall review the draft and may comment on technical and usage issues as a recommendation. Furthermore, Openmatics is entitled to refrain from the distribution of such Application Software in its absolute and sole discretion; in such case Openmatics shall notify in writing the App Licensing Partner without undue delay.
6.5 The Application Software and the App Documentation shall be provided in English and, in the absolute and sole discretion of the App Licensing Partner, any other language. The Application Software may be provided only in the language of a specific country, if
(i) it shall solely meet particularities of such country,and
(ii) may only be used by Openmatics' customers of this country.
6.6 The App Licensing Partner shall inform in writing Openmatics without undue delay in case of a discovery of faults in the information or materials provided by Openmatics, irrespective whether such faults are based upon erroneous, unclear or impossible directives or other statements. The App Licensing Partner shall provide an explanation of the fault in writing.
7. Submission and Certification of the Application Software
7.1 The App Licensing Partner is entitled, but not obliged, to submit the Application Software to Openmatics for certification and distribution.
7.2 The App Licensing Partner shall notify in writing Openmatics without undue delay, if the development of the Application Software and/or the App Documentation will not be completed.
7.3 The App Licensing Partner shall notify in writing Openmatics of the submission of the Application Software and the App Documentation reasonably in advance before there completion and delivery to Openmatics.
7.4 After submission of the Application Software and the App Documentation, a testing phase will occur during which Openmatics shall inspect the compliance
(i) of the Application Software with the provided specifications, especially functionality and performance, and the development guidelines;and
(ii) of the App Documentation with the reasonable form and content and the documentation guidelines. Openmatics may authorize an independent third party with the performance of the respective tests.
7.5 The App Licensing Partner shall be notified
(i) of malfunctions and/or other problems of the Application Software arising during the testing phase,and
(ii) faults or inaccuracy of the App Documentation.
The App Licensing Partner may solve the problems and/or remedy the malfunctions and/or resolve the fault or inaccuracy. Afterwards the App License Partner may submit the Application Software to Openmatics for testing again. The App Licensing Partner shall inform Openmatics without undue delay, if the Application Software will not be submitted once again. Openmatics may charge a testing fee for the second or further testing phases; such testing fee shall
(i) correspond to the cost of the additional testing phases;and
(ii) be notified by Openmatics to the App Licensing Partner before a further submission of the Application Software.
7.6 Subject to Section 7.5, Openmatics shall expressly declare in writing the conformity of the Application Software and the App Documentation (“Certification”) after the successful completion of the testing phase. The testing phase is considered to be successfully completed, if the Application Software complies
(i) with the provided specifications and the development guidelines,and
(ii) the App Documentation is complete and in the reasonable form and in compliance with the documentation guidelines.
7.7 Openmatics shall be entitled to refuse Certification in its absolute and sole discretion,
(i) if the Application Software and/or the App Documentation will not be conform with the applicable requirements after a second or further testing phase;or
(ii) if the Application Software or the App Documentation comprise fraudulent, unfair, immoral or other illegal or inappropriate content or aspects.
7.8 The App License Contract will be terminated automatically,
(i) if the App Licensing Partner notifies in writing Openmatics that the Application Software or the App Documentation will not be submitted (again);or
(ii) Openmatics refuses Certification or refrains from the distribution of the Application Software.
Subject to the testing fee according to Section 7.7, the Parties are not entitled to claim compensation or damages for any services or other activities already performed until the termination of the App License Contract in any of the foregoing cases.
8. Source Code and its documentation
8.1 The App Licensing Partner is not obliged to provide the source code of the Application Software (“Source Code”). Nevertheless, Openmatics strongly recommends to provide the Source Code in order to prevent further damage to customers in case of a sudden failure without adequate and timely support by the App Licensing Partner.
8.2 The App Licensing Partner shall ensure that any delivered Source Code and its documentation must correspond to the version of the Application Software at the time of Certification. In case of any modification of the Source Code the App Licensing Partner shall provide to Openmatics a new version of the Source Code and its documentation.
8.3 Openmatics shall store the Source Code and its documentation by a custodian. Openmatics shall only make use of the Source Code according to Section 10.6. in case of any defects of the Application Software that have not been or could not been remedied by the App Licensing Partner properly in time.
9. Maintenance of the Application Software and the App Documentation
9.1 The App Licensing Partner shall perform the following software maintenance services during the Service Period.
9.2 Further development The App Licensing Partner shall further develop the Application Software with regard to quality and modernity, adjust it to altered requirements, cure defects and deliver the resulting new versions of it to Openmatics. In particular, the App Licensing Partner shall ensure that the Application Software is always
(i) compatible with the actual operating system used by Openmatics and the Openmatics Portal,
(ii) backward compatible with the prior operating systems used by Openmatics, and the Openmatics Portal,and
(iii) is functional.
For this purpose, Openmatics shall inform the development partner in a timely manner of planned updates via the Openmatics Portal. If updating the operating system or the Openmatics portal affects the functionality or compatibility of the Application Software, the Application Software must be certified again according to Section 7 successfully.
9.3 Support The App Licensing Partner shall reply to support requests from Openmatics within one business day and actively support the remedy of defects upon request by Openmatics.
9.4 If new program versions or program extensions of the Application Software are provided as part of the software maintenance, they shall be subject to the same conditions of use and usage rights as for the original Application Software.
9.5 The App Licensing Partner shall support Openmatics through instructions on avoiding defects, remedying defects, and preparing workarounds for defects.
9.6 Data backup Any software or documents created electronically should be backed up continually by the App Licensing Partner in the partial results corresponding to the progress of the project, taking the necessary program environment into account. The backup copies should be stored offsite and properly.
10.1 The App Licensing Partner warrants the proper functioning of the Application Software including the appropriateness and correctness of any App Documentation within the designated handling of the Application Software during the Service Period.
10.2 As improper functioning shall be qualified every negative deviance from the existing functional aspects, applicability and system requirements expressly and exhaustively stated in the Software Description at the time of Certification.
10.3 Defects attributable to the development or documentation guidelines or other Openmatics specifications are not covered by the warranty obligation of the App Licensing Partner, unless the App Licensing Partner has violated the notification obligation according to Section 6.6.
10.4 The App Licensing Partner shall remedy defects of the Application Software or the App Documentation as quickly as possible after a respective notice of Openmatics (“Remediation”). In any case Openmatics is entitled to claim Remediation by repair or delivery of a replacement software or replacement documentation at its discretion. In case of a defect of the Application Software the App Documentation shall be corrected correspondingly, if necessary.
10.5 Defects that cannot be remedied within a time period appropriate in light of the effect of the fault should be temporarily remedied by a workaround that is reasonable for Openmatics and its customers; this does not affect the obligation of the App Licensing Partner to provide a conclusive remedy.
10.6 In case of exigent circumstances or special urgency, Openmatics is entitled to remedy the defects itself.
10.7 If defects of the Application Software arise repeatedly after Certification, Openmatics is entitled to discontinue the distribution of the Application Software.
10.8 In any case of a defect Openmatics shall be entitled to claim compensation for damages.
11. Defects of title (“deficiencies”)
11.1 The App Licensing Partner warrants, that the use of the Application Software by Openmatics and by its customers will not be impaired by third party rights.
11.2 In case of a deficiency, the App Licensing Partner is further obligated either
(i) to obtain the right to use the Application Software at no cost to Openmatics,or
(ii) to modify the Application Software in such a way that the intellectual property rights violation no longer exists but the performance complies with the requirements under this App License Contract.
Openmatics shall be entitled to withdraw from the App License Contract, if the App Licensing Partner will not enable the valid usage of the Application Software for Openmatics and its customers within a reasonable period of time.
11.3 In case of a deficiency, the App Licensing Partner shall indemnify Openmatics against all claims of intellectual property rights violations asserted by third parties against Openmatics or its customers. Openmatics shall notify the App Licensing Partner of claims asserted by third parties. Openmatics may in its absolute and sole discretion handle the claim on its own or assume responsibility for the judicial and extra-judicial proceedings to the App Licensing Partner. The App Licensing Partner shall bear the cost that Openmatics incurs through its own necessary legal defense.
11.4 In any case of a deficiency Openmatics shall be entitled to claim compensation for damages.
11.5 If Openmatics itself is responsible for the intellectual property rights violation, the foregoing claims against the App Licensing Partner are excluded.
12.1 Openmatics shall only be liable for damages resulting from an improper execution of a contractual obligation under the App License Contract, irrespective due to which legal reason, in the following cases:
(i) the damage caused by willful intent or gross negligence of Openmatics;
(ii) a negligent injury of life, body or health by Openmatics.
12.2 Openmatics excludes any liability for Associates, even if the damage is based on their willful intent or gross negligence.
12.3 The foregoing limitations of liability shall not apply if otherwise required by mandatory law.
13.1 Either Party shall keep confidential all information and data of the other Party (e.g. software, documents, other information of any kind) that is legally protected, contains business or trade secrets, is marked or reasonably noticeable as proprietary (altogether “Confidential Information”), which are disclosed by the other Party to the receiving Party or which the receiving Party becomes aware of in any other way during conclusion or execution of the App License Contract, and either Party shall use it only for the proper performance of the App License Contract.
13.2 The Parties shall not disclose Confidential Information to third parties, subject to a disclosure
(i) to representatives, employees and other vicarious agents, advisers and sub-contractors (together „Associates“) of a Party, if such Associates are bound by an equivalent obligation of confidentiality and the disclosure is necessary for the execution of the App License Contract,or
(ii) to Associates of group companies of ZF Friedrichshafen AG providing services to Openmatics, if such Associates are bound by an equivalent obligation of confidentiality.
13.3 This confidentiality obligation shall remain in effect still after termination of the Service Period.
13.4 The confidentiality obligation is not applicable with regard to such information
(i) which is public knowledge;or
(ii) which a Party becomes aware of through a third party, who is not violating any confidentiality obligation in respect of the other Party hereby;or
(iii) if required by law; in such a case a Party is obligated to- immediately inform the other Party enabling it to implement the measures necessary against disclosure; the Parties herewith grant their irrevocable consent to a respective transfer of such Confidential Information.
14. Data protection
14.1 Openmatics will as a contract data processor collect, process and utilize telematics data of its customers, based on which personal analysis could be performed.
14.2 The App Licensing Partner shall observe legal regulations on data protection with regard to such telematics data of Openmatics customer. In particular, the App Licensing Partner will not perform any personal analysis in respect of such data or disseminate it.
14.3 Openmatics shall observe data protection regulations in processing the data from the App Licensing Partner necessary for the execution of the App License Contract.
15.1 The App Licensing Partner may transfer rights and obligations arising from, or in connection with, the App License Contract to third parties only after prior written consent of Openmatics.
15.2 The App Licensing Partner is only entitled to offset payments with counterclaims that are undisputable or have been determined by final judicial decisions.
15.3 If a Party fails to adhere to one or more provisions of the App License Contract and the other Party does not pursue such a breach, then no waiver of the obligation to comply with these provisions may be derived in consequence, even if such an action occurs repeatedly.
15.4 Modifications of, and amendments to, the App License Contract must be in writing in order to be valid. This requirement of written form may only be waived by written agreement of the Parties. Compliance with the written form is also given by a transmission in text form, in particular via fax or email.
15.5 If any provision of the App License Contract is or becomes invalid, the validity of the App License Contract shall not be affected, unless the adherence to the contract under these new circumstances would constitute an unreasonable hardship to one of the Parties. The Parties shall replace such invalid term or provision by a valid term or provision that as closely as possible attains the result of the invalid term or provision.
16. Place of performance, jurisdiction, applicable law
16.1 The place of performance is Openmatics' place of business.
16.2 The Commercial Court Zurich (Handelsgericht Zürich) shall have the exclusive jurisdiction for any dispute arising out of, or in connection with, an App License Contract. However, Openmatics has the right to file a suit in the jurisdiction, in which the App Licensing Partner maintains its place of business.
16.3 All legal relationships between Openmatics and the App Licensing Partner shall be governed exclusively by the substantive law of Switzerland. The application of any conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods dated November 11th, 1980 (CISG) shall be excluded.