1. Standard Software Contract / Software licence Contract
In the software licence contract, the subject matter of the contract is the licence of the software. Maintenance is usually agreed in a separate software maintenance contract. Standard software is characterised by the fact that it is not specially adapted to the needs of the buyer. However, as soon as an adaptation is made, a contract for work and services or an individual software contract exists.
2. Legal nature of the software licence contract
The legal nature of the software licence contract was disputed for a long time (purchase contract vs. contract for work and services). Differences arose primarily in the warranty rights (today these have been largely adapted) and in the remuneration. In the meantime, the software standard contract is classified as a purchase contract.
3. Description of the programme / licences
The programme or the capabilities of the software must be described precisely. The same applies to the intended use of the software. The exact number of licences must be specified. A licence can refer to one or several workstations, it depends on the individual case. In any case, it should be clarified how many licences one needs for one’s workstations. Sometimes the ability of the software to run on a certain hardware is contractually guaranteed.
4. CPU clause
Special case CPU clause: The software may only be used on a certain hardware. Such a clause is permissible as an exception if the programme is dependent on a certain hardware configuration for its ability to run.
Updates to a certain extent can be agreed as an option. The rights of use are usually enumerated, whereby these are standardised. Not to be forgotten is the remuneration for the rights of use.
6. Warranty for defects
Although a warranty for defects/liability arises from the law, something is often written into software licence agreements (which is harmless).
Sometimes the resale of the software is prohibited. According to the “Used Soft” decision of the ECJ, such a clause is invalid if the software was acquired on a permanent basis.
7. Programme lock / audit clause
Under certain circumstances, however, it is permissible to provide the software with a programme lock (e.g. use only possible with an online assigned identification). Sometimes a so-called audit clause can be found in the contracts. According to this clause, the software producer can control the use of the software by the customer.