news about second-hand Software

author: susensoftware GmbH

HRC Düsseldorf prohibits provision for SAP reactivation fee

Herzogenrath, 15 December 2014. – With a verdict from 25.11.2014 the higher regional court (HRC) of Düsseldorf has forbidden and deemed illegal a major German software manufacturer′s Terms and Conditions clause regarding the so-called ″reactivation fee″. 

Found within the terms and conditions for the transfer and care of standard software was a clause that obligated the customer to pay a reactivation fee should they wish to make use of care services for used software licences. Below is a description (of several) from the terms and conditions:

″Furthermore, SAP may charge for reactivation, the amount of which SAP will state upon request.″

In the opinion of the HRC this clause violates general terms and conditions law (§ 307 III 2 German Civil Code), as it is intransparent. The conditions under which the manufacturer can calculate a reactivation fee are completely open. Furthermore, it remains unclear whether the manufacturer can even belatedly calculate a reactivation fee without prior warning. Indeed, the software manufacturer essentially has the opportunity to levy and price fees for care services at their own discretion. The price model of the fees must, however, be transparently presented within the general terms and conditions, which is currently not the case.

During the verdict the court also made it clear that the reactivation fee clause is not applicable if the consumer of the software has settled an ongoing care agreement with the manufacturer regarding the software. Thus upon resale of the software by a secondary consumer, neither a care charge nor a reactivation fee may be requested. 

This concerns a verdict that was decreed as part of a provisional injunctive process. It is yet unclear whether the defendant software manufacturer has recognised the verdict as a definitive regulation, or if they will strive for proceedings on the matter. 

Should the verdict become legally valid, the consequence would be the nullification of the reactivation fee in all customer agrements that contain this clause. In this case the manufacturer would not be allowed to charge any reactivation fees - even if said fees are more precisely clarified and the calculation is made transparent. The latter would only be possible within a new contract draft with the customer. Depending on the conditions in which the reactivation fees were calculated in the past, a claim for restitution by the customer also comes into consideration on an individual basis.

HRC Düsseldorf, verdict from 25.11.2014, AZ: I-20 U 154/14

date: 2014-12-15
author: susensoftware GmbH