However, a provision of the licensing agreement allows the licensee to terminate the contract before the start of insolvency due to a delay in payment, debt or a deterioration in the financial situation of the taker. In addition, a provision allowing termination of the contract in the event of a late payment or where the licensee cannot meet a minimum use obligation of the intellectual property right granted, even after the insolvency proceedings have been requested, is generally valid. At least with respect to patents, the right of omission cannot be waived with real effect (LG Mannheim, case 7 O 94/08), but it may be waived to assert the right to omission in an agreement with a third party. In this case, the third party has a defence against the request for omission if the third party is prosecuted for violation (RGZ 153, 329, 331). There are restrictions on the applicability of such a waiver when terms and conditions are applied (see question 32). Any type of intellectual property that allows the owner to exclude others from the use of these, such as patents, utility models, copyrights, including copyrights for software, industrial design, trademarks, semiconductor topographies, etc., may be subject to a licensing agreement. In addition, personality rights and confidential information (know-how, trade secrets) may also be the subject of a licensing agreement. On franchise agreements (see question 6). In principle, the parties to an agreement are free to choose the right governed by the agreement (Article 3, paragraph 1, regulation (EC) 593/2008 (Rome I)). However, a German court would apply mandatory provisions of German and EU law, i.e.
provisions whose compliance is considered crucial to the protection of the public interests of Germany or the Union (Article 9, paragraph 2, rome I). In particular, EU legislation on cartels and abuse of dominance can be applied to assess the validity of the provisions of a licence agreement. In general, the courts expect this case law to also be adopted in other areas of intellectual property, such as patents and trademarks, which will result in sublicensings generally remaining in force even when the licensee has legally terminated the licence. If a licensee wishes to avoid this effect, it is advisable to include in the license agreement a provision that requires the licensee to include clauses in the sublicensing, provided that the sublicensing ceases if the licence ceases to exist. In order to ensure that this provision is properly enforced, the licensee`s explicit consent to a sublicensing in the licensing agreement may be necessary.