Software License Agreement
for the
Integrated Service Technical Application (ISTA)
The following provisions govern the contractual relationships for the use of the Integrated Service Technical Application. These provisions constitute a contract between BMW Romania S.R.L. ("BMW") and you personally or, if you act on behalf of a legal person or legal association (in particular BMW authorized dealers and service workshops as well as independent dealers and service workshops) or a natural person, that person/association ("Licensee"). BMW and Licensees are subsequently collectively referred to as "Parties" and individually as "Party".
If you use ISTA as a BMW authorized dealer or service workshop, the use of the Software (including the data) is further subject to the terms and regulations of the dealer contract or service contract and the use is only permitted within the scope and in fulfilment of the dealer contract or service contract. In the event of any inconsistency, the provisions of the dealer contract or service contract shall prevail over the following provisions.
If you use ISTA via a BMW portal, the terms of use of the portal apply in addition to the following provisions. In the event of any inconsistency, the following provisions shall prevail.
PLEASE READ THESE TERMS CAREFULLY AND COMPLETELY. MAKE SURE YOU UNDERSTAND THEM BEFORE YOU ACCEPT THEM.
BY CONFIRMING THE CHECKBOX "I AGREE TO THE LICENSE TERMS AND CONDITIONS" OR " "I ACCEPT THE TERMS IN THE LICENSE AGREEMENT" AND BY CLICKING ON THE "INSTALL" BUTTON, BY USING ISTA OR BY EXPRESSING YOUR CONSENT IN ANY OTHER WAY ("ACCEPTION"), YOU AGREE WITH THESE PROVISIONS.
IF YOU REPRESENT ANOTHER PERSON, YOU ADDITIONALLY CONFIRM WITH YOUR ACCEPTION THAT YOU ARE ENTITLED TO REPRESENT THAT PERSON.
YOU MUST NOT USE ISTA IF YOU DO NOT AGREE WITH THESE PROVISIONS.
Preamble
Licensee plans to use the Integrated Service Technical Application (ISTA) software for a limited period of time. ISTA is the diagnostic and programming application for vehicles of the BMW Group.
BMW therefore grants Licensee the use of the Software for a limited period of time on the basis of this Agreement and provides it to Licensee for this purpose in its most recent version.
Section 1 Definitions
(1) "Software" is the computer program ISTA in the object code including the associated documentation, as described in more detail in this Agreement and the documentation.
(2) "Agreement" is this Software License Agreement for ISTA.
(3) Confidential Information' shall mean any information and documents of the respective other Party which are marked as confidential or which are to be regarded as confidential under the respective circumstances, in particular information relating to operational procedures, business relationships and know-how.
Section 2 Subject matter of the Agreement
(1) The subject matter of this Agreement is the temporary provision of the Software for the duration of the Agreement, together with the granting of the rights necessary for its use in accordance with Section 3.
(2) BMW shall provide Licensee with one or more copies of the Software in digital form on one or more suitable data carriers or as a download on a BMW homepage and, where appropriate, by means of a client provided for this purpose. In the event that the Software is protected by license key, Licensee will receive the license key or license keys exclusively for the use of the Software as specified in this Agreement and the documentation.
(3) The quality of the Software due is conclusively determined in this Agreement and the documentation.
(4) Installation and configuration services are not the subject of this Agreement.
Section 3 Granting of rights
(1) With full payment of the fee pursuant to Section 4 of this Agreement, Licensee shall receive the non-exclusive, non-transferable and non-sublicensable right to use the Software to the extent granted in this Agreement. The contractual use includes the installation, loading, displaying and running of the installed Software. Licensee may use the Software to carry out legally permissible and professional diagnostic, maintenance and repair work on BMW Group products. The scope of use is limited to the number of installations ordered from BMW and, where applicable, associated license keys, whereby an installation/license key entitles to use the Software on one device.
(2) Licensee is entitled to make a backup copy of the data carrier and/or the download file given to him. Licensee shall affix the words "backup copy" and a copyright notice to the copy made.
(3) Beyond that, Licensee is only entitled to reproduce, edit, modify or decompile the Software in the cases permitted by law.
(4) Beyond the cases mentioned in paragraphs 1 to 3, Licensee is not entitled to duplicate, edit, modify or decompile the Software.
(5) Licensee is not entitled to leave the copy of the Software or the backup copy, if any, or any other copies made to third parties. In particular, he is not permitted to sell, lend, rent or otherwise sublicense the Software or to reproduce or make the Software publicly available. If Licensee intends to sell devices on which the Software is installed to third parties, he must remove the Software completely from the respective device before the sale.
(6) Licensee may not remove, alter, cover, render illegible or deface any trademarks or other marks and notices on the Software. Licensee may also not bypass, modify, defeat or circumvent any of the functions or protections of the Software, or assist any third party in doing so.
(7) If Licensee violates any of the above provisions, all rights of use granted under this Agreement become immediately ineffective and automatically fall back to BMW. In this case, Licensee must immediately and completely cease the use of the Software, delete all copies of the Software installed on its systems and delete any backup copies made or hand them over to BMW.
Section 4 Remuneration, maturity and default
(1) The remuneration for the granting of use and its due date shall be based on the prior agreement between BMW and Licensee, which becomes part of this Agreement. Unless otherwise agreed, the tariffs and time costs available under https://aos.bmwgroup.com/web/oss/pricing shall apply in the most recent version and the remuneration shall be due immediately.
(2) Interest on late payments is nine percent (9%) above the applicable base interest rate.
Section 5 Protection of the Software
Licensee is obliged to protect the Software from access by unauthorized third parties by appropriate measures, in particular to store all copies of the Software in a protected place. Licensee shall instruct its employees in the proper use of the Software and ensure that its employees use the Software exclusively in accordance with the provisions of this Agreement and the documentation provided.
Section 6 Term and Termination
(1) Unless otherwise agreed (e.g. by time-limited tariffs/bookings), the Agreement is concluded for an indefinite period and can be terminated by either Party with a period of two (2) weeks at the end of each calendar month. It is possible to add or unsubscribe from installations beyond the first installation at any time. For authorized dealers or authorized service workshops, the Agreement automatically ends when the dealer contract or service contract ends.
(2) In addition, the Agreement may be terminated by either Party for good cause without observance of a time limit. An important reason that entitles BMW to terminate the Agreement is in particular given if (i) Licensee violates BMW's rights by using the Software beyond what is permitted under this Agreement and does not stop the breach within a reasonable period of time on a warning from BMW, or (ii) Licensee violates Section 3 paragraph 5 or Section 3 paragraph 6; in such cases, BMW shall be entitled to terminate the Aontract without observance of a time limit and without prior warning; Section 3 paragraph 7 remains unaffected.
(3) Termination must be made in writing.
(4) In the event of termination, Licensee must stop using the Software and remove all installed copies of the program from its computers, as well as return or destroy any backup copies made by BMW at the discretion of BMW.
Section 7 Material and legal defects
(1) BMW warrants the maintenance of the contractually agreed quality of the Software during the term of the Agreement as well as for the fact that no rights of third parties preclude the use of the Software in accordance with the Agreement. BMW will remedy any material and legal defects in the Software within a reasonable period of time.
(2) Licensee is obliged to notify BMW defects of the Software immediately in writing after their discovery. In the event of material defects, this is done by describing the time of occurrence of the defects and the circumstances.
Section 8 Liability for Damages
(1) BMW is fully liable for damages
- in the event of intent or gross negligence,
- for injury to life, body or health,
- in accordance with the provisions of the Product Liability Act, as well as
- to the extent of a guaranty provided by BMW.
(2) In the event of a slightly negligent breach of an obligation which is essential for the achievement of the purpose of the Agreement (cardinal obligation), BMW's liability shall be limited in amount to the damage which is foreseeable and typical according to the nature of the transaction.
(3) BMW is not liable for any further damages. In particular, BMW is not liable for initial defects unless the conditions of paragraph 1, 2 are met.
(4) The above limitation of liability also applies to the personal liability of BMW employees, representatives and bodies.
Section 9 Confidentiality
(1) The Parties agree to maintain confidentiality of Confidential Information. This obligation shall continue to exist, to the extent permitted by law, even after the termination of the Agreement.
(2) Excluded from this obligation are such Confidential Information,
a) which were demonstrably already known to the recipient at the time of conclusion of the Agreement or subsequently become known by third parties without violating a confidentiality agreement, legal regulations or official orders;
b) which are publicly known at the time of conclusion of the Agreement or subsequently made public, unless this is due to a breach of this Agreement;
c) which must be disclosed on the basis of legal obligations or by order of a court or authority. To the extent permitted and possible, the recipient obliged to disclose the information shall inform the other Party in advance and give it the opportunity to take action against the disclosure.
(3) The Parties shall only grant access to Confidential Information to such consultants which are subject to professional secrecy or which have previously been imposed confidentiality obligations that correspond to the confidentiality obligations of this Agreement. Furthermore, the Parties will only disclose Confidential Information to those employees that need to know the information for the performance of this Agreement, and the Parties will oblige these employees to maintain secrecy also for the period after their departure, to the extent permitted by labor law.
(4) Any culpable breach of the above confidentiality obligations shall entail a contractual penalty of EUR 10,000.00. Further claims of the Parties remain unaffected.
Section 10 Final provisions
(1) Licensee may transfer rights and obligations arising from or in connection with this Agreement to third parties only after the written consent of BMW.
(2) Licensee may only offset against claims arising from this Agreement with undisputed or legally established claims.
(3) Amendments and additions to the Agreement must be made in writing. This also applies to the amendment or repeal of this clause. Insofar as this Agreement, including this Section 10 paragraph 3, refers to "written form" or "written", the text form within the meaning of § 126b of the German Civil Code (BGB) is sufficient to comply with the form thus defined.
(4) Licensee's general terms and conditions do not apply.
(5) This Agreement shall be governed exclusively by German law excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Convention on contracts for the sale of goods).
(6) The Parties are aware that the Software may be subject to export and import restrictions. In particular, there may be authorization requirements or restrictions on the use of the Software or related technologies abroad. Licensee will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The performance of BMW's under this Agreement is subject to the proviso that there are no obstacles due to national and international regulations of export and import law or other legal regulations.
(7) Place of performance is Bucharest, Romania. The exclusive place of jurisdiction is Munich, Germany...
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