Software maintenance = contract for work?

The temporary transfer of the possibility to use software by way of pure licensing, without access to third-party servers, does not have the character of a rental agreement. It lacks the material quality of the subject matter of the contract. Recourse to tenancy law is out of the question. Such a contractual relationship is rather subject to the law on contracts for work and services.

Assertion of license fees

The plaintiff develops software and issues software licenses together with the associated services.
It has had an ongoing business relationship with the defendant since 2001.
This relationship involved consulting and support services as well as software development and programming.
In addition, the software “N” together with licenses, software maintenance, support, personnel services, etc. were provided to the defendant.

In 2007, the parties fell out.
In December 2008, the defendant informed the plaintiff that it would switch off the “N” software and remove it from the computers by the end of the year.

It is disputed between the parties whether the defendant actually removed the program from its system in January 2009.
The plaintiff is claiming license fees in connection with an alleged possibility of use of the software “N” by the defendant for the year 2009 in the amount of € 228,480.00.

The Regional Court of Bonn dismissed the action in a ruling dated 19.12.2013 (case no.: 14 O 9/13).
With its appeal, the plaintiff is pursuing its first-instance objective.

No legal grounds for claim apparent

The Higher Regional Court of Cologne dismissed the appeal pursuant to Section 522 para.
2 sentence 1 ZPO by order dated November 24, 2014 (case reference: 19 U 17/14).

According to the judges, the regional court was right to dismiss the claim on the correct grounds.
The plaintiff had no legal claim against the defendant for payment of the license fees demanded.

She is not entitled to any claims from an existing license agreement.
Such a contractual agreement for the year 2009 was neither expressly nor impliedly – by conclusive conduct – established between the parties.

Rental contract law not applicable

The plaintiff could not derive any claims from Section 546 a BGB by analogy either.
According to this provision, the landlord can demand compensation if the tenant does not return the rented property at the end of the tenancy.
However, tenancy law was not applicable to the legal relationship between the parties.

The temporary transfer of the possibility to use software without a data carrier in the sense of pure licensing without the obligation to access third-party servers as intended – which the plaintiff ultimately referred to for 2009 – could not have the character of a rental agreement due to the lack of material quality of the subject matter of the contract (Section 90 BGB).
At most, it represented an authorization to use.
Therefore, recourse (also by analogy) to the provisions of the rental agreement was ruled out due to the lack of comparable interests and regulatory gaps.
For this reason, all approaches to justification under tenancy law would be misguided.
The link to a complete and timely uninstallation of the software (as a quasi-return) as well as the legal consequence of a contract extension in the event of failure to do so would also be ruled out.

Rather, the contractual relationship between the parties was subject to the law on contracts for work and services.

Software maintenance and service contract

In view of the bundle of contractual obligations, this is a software maintenance and servicing contract to which, according to the established case law of the Federal Court of Justice, service or work contract law applies (see judgment of 04.03.2010 – III ZR 79/09).

Contracts for the “maintenance” or “care” of software, IT programs or websites are to be classified as contracts for work and services insofar as they are aimed at maintaining functionality and eliminating malfunctions (and thus: at the success of the activity).
Their qualification as a service contract, on the other hand, is obvious if there is no such focus on success and the ongoing service (activity) is owed as such.

However, there were no indications of the latter in this case.
Rather, the plaintiff owed trouble-free operation within the meaning of §§ 631 et seq. BGB were owed.
This classification is not altered by the fact that the provision of the software – considered on its own – may have elements of a rental agreement.
The focus of the plaintiff’s contractual performance obligations lay in the maintenance, further development and internationalization of the software.
These services would account for the majority of the contractual services compared to the pure provision of software.

No damage or unjust enrichment

The plaintiff would also not be entitled to any conceivable claims for damages or restitution of unjust enrichment.
The mere possibility of use is not sufficient for this.

A damage incurred by the plaintiff due to a failure to remove the software from the defendant’s computers within the meaning of § 280 para.
1 BGB was not apparent.
She herself had access to the program she had designed at all times and was therefore not prevented from its commercial exploitation.

The mere fact that the defendant had not deleted the software in due time did not unjustly enrich it.

No copyright claims apparent

Moreover, the requirements for a claim for damages pursuant to Section 97 para.
2 UrhG were not fulfilled.
This applies irrespective of whether the program was actually used by the defendant.
Here too, there was no corresponding damage.
The plaintiff’s economic use of its program had not been impaired.
There were no indications that the defendant had made a profit from the reproduction.

There is also no claim for damages in the form of a license fee.
Here, too, the occurrence of a specific loss is a prerequisite.
Only the amount of a possible license fee can be used to calculate this.

(Image: © Gajus – Fotolia.com)

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