Terms of Contract of TOLERANT Software GmbH & Co. KG for the maintenance of standard software
– VPS TOLERANT Software GmbH & Co. KG –
Disclaimer: This English translation of Terms and Conditions is for information purpose. The English translation is not legally binding. Only the original version in German is legally binding.
A Subject matter of the contract
A1 Subject matter of maintenance
The provider shall provide the agreed maintenance services only for the current version of the standard software agreed as the
agreed as the object of maintenance (“Maintenance Software”) in return for the agreed remuneration.
If third-party software is expressly agreed as maintenance software in the contract, the restrictions described therein shall apply.
restrictions described therein. The Provider shall provide the following maintenance services – insofar as agreed:
A2 Fault management
2.1 Receipt of fault reports
The Provider shall receive fault reports from the Customer during its normal business hours, provide them with an identifier in each case, assign them to the agreed fault categories and, on the basis of this assignment, carry out the agreed measures to analyse and rectify faults. For fault reports, clause 2.4 AV TOLERANT Software GmbH & Co. KG shall apply accordingly. Upon Customer’s request, the Provider shall confirm to Customer the receipt of a fault report by informing Customer of the assigned identification.
The fault management does not include any services that are required in connection with the use of
software in non-approved environments or with changes to the maintenance software by the customer or third parties.
2.2 Assignment to fault categories
Unless otherwise agreed, the Provider shall allocate received error messages to one of the following categories after an initial review:
a) Serious fault
The malfunction is based on a fault in the maintenance software which makes the use of the maintenance software impossible or only permits it with serious restrictions. The customer is unable to work around this problem in a reasonable manner and therefore cannot complete tasks that cannot be postponed.
b) Other malfunction
The malfunction is based on a fault in the maintenance software which restricts the customer’s use of the maintenance software more than insignificantly, without a serious malfunction.
c) Other message
Error messages which do not fall into categories a) and b) are assigned to other messages. Other reports shall only be handled by the Provider in accordance with the agreements made for this purpose.
2.3 Implementation of measures for fault clearance
In the case of reports of serious faults and other faults, the Provider shall immediately initiate appropriate measures on the basis of the circumstances communicated by the Customer in order to first localise the cause of the fault.
If, after initial analysis, the reported malfunction does not turn out to be a fault in the maintenance software, the Provider shall inform the customer of this without delay. Otherwise, the Provider shall initiate appropriate measures for further analysis and for rectification of the reported fault or – in the case of the reported fault or – in the case of third-party software – report the fault together with its analysis results to the distributor or manufacturer. the results of its analysis to the distributor or manufacturer of the maintenance software with the request for remedial action. The Provider shall immediately provide the Customer with measures available to it for circumventing or rectifying a fault in the maintenance software, such as instructions for action or corrections to the maintenance software. The Customer shall immediately adopt such measures for the avoidance or correction of faults and shall immediately report any remaining faults to the Provider again when using them.
A3 Provision of New Versions
3.1 Contractual Services
The Provider shall provide the Customer with certain new versions of the maintenance software in order to keep it up to date and to software to keep it up to date and to prevent faults. These are updates of the maintenance software with technical modifications, improvements, minor functional extensions as well as patches with corrections to the maintenance software or other corrections to the maintenance software or other workarounds for possible malfunctions. These new
These new versions of the maintenance software are collectively referred to as “New Versions”.
The object of the Maintenance Services is not the provision of upgrades with significant functional extensions or of new products or obligations for the further development of the Maintenance Software, unless otherwise expressly agreed.
3.2 Obligations and rights for New Versions
The Provider shall make the New Versions of the Software available to the Customer. The customer shall immediately versions without undue delay and give notice of any recognisable defects without undue delay, for which § 377 of the German Commercial Code (HGB) shall apply mutatis mutandis.
Faults and defects shall be dealt with in accordance with Clause A 2. In addition, clauses 2.4 and 4.1 of the AV TOLERANT Software GmbH & Co. KG. Insofar as the Supplier has provided Customer with a new version, it shall also continue to maintain the previous version for a reasonable transitional period, which as a rule shall not exceed three months.
If the Customer is entitled to claims for defects, he shall initially only have the right to subsequent performance within a reasonable period of time. reasonable period of time. Subsequent performance shall include, at the discretion of the Supplier, either rectification of the defect or delivery of replacement software. The interests of the customer shall be adequately taken into account in the choice.
The customer shall enable the provider to install and remove the software as part of the supplementary performance, unless this is unreasonable for the customer. The customer shall consult with the provider before taking its own measures to remedy the defect.
If the customer has a claim for reimbursement of expenses, this shall only exist to a reasonable extent, taking into account the value of the service in question. value of the service in question in a defect-free condition and the significance of the defect. defect.
In the case of new versions of third party software, the warranty regulations of the contract between the customer and the supplier for this third-party software, unless otherwise agreed. agreed otherwise.
A4 Contact point (hotline)
4.1 Contractual services
The Provider shall set up a contact point for the customer (hotline). This office shall process the customer’s enquiries in connection with the technical requirements and conditions of use of the maintenance software as well as individual functional aspects. Clause A 2.1 shall apply.
The hotline shall not provide any services in connection with the use of the maintenance software in non-approved environments or with modifications of the maintenance software by the customer or third parties.
4.2 Acceptance and processing of enquiries
A prerequisite for the acceptance and processing of enquiries is that the customer provides the provider with the Provider with appropriately qualified professional and technical personnel, who are internally with the processing of enquiries from users of the maintenance software. The customer shall be obliged to address enquiries to the hotline only via this personnel designated to the provider and to use forms provided by the provider for this purpose. The hotline shall accept such enquiries by e-mail, fax and telephone during the Provider’s normal business hours.
The hotline shall process and, as far as possible, answer proper enquiries in the normal course of business. answer them. The hotline may refer to documentation and other training materials for the maintenance software available to the customer for the purpose of answering. Insofar as an answer by the hotline is not possible or not possible in a timely manner, the Provider shall – insofar as this is expressly agreed – forward the enquiry for processing, in particular enquiries about maintenance software not produced by it.
Further services of the hotline, such as other response times and deadlines as well as on-call service or on-site service of the Provider at the Customer’s premises shall be expressly agreed in advance.
A5 Additional services
Services exceeding the scope of clauses A 2. to A 4. are not owed under this agreement, require a separate agreement and shall be require a separate agreement and shall be remunerated separately. This may, for example, concern additionally agreed on-site assignments at the customer’s premises, advice and support in the case of modified software, clarification of interfaces to third-party systems, installation and configuration support.
B General regulations
The following regulations apply equally to fault management (A 2.), the provision of new versions (A 3.) and the hotline (A 4.). versions (A 3.) and the hotline (A 4.).
Unless otherwise agreed, the maintenance contract shall commence with the delivery in accordance with the transfer agreement for the standard software.
After expiry of any agreed minimum term, the maintenance contract may be terminated in writing with a notice period of 3 months to the end of a calendar year, but for the first time at the end of the calendar year following the conclusion of the contract. calendar year following the conclusion of the contract. In addition, the contract may be terminated by the Provider and the Customer without notice for good cause.
Declarations of termination shall only be effective in writing.
2.1 Flat-rate remuneration
The customer shall remunerate the care services by means of an ongoing lump sum. The care remuneration is period in advance and shall be invoiced by the Provider to the Customer at the beginning of the invoicing period. invoiced to the customer at the beginning of the billing period. In principle, the billing period is the calendar year.
If the contract begins within a billing period, the remuneration is owed pro rata temporis and invoiced upon conclusion of the contract.
2.2 Remuneration for additional services
Additional services that are not covered by the flat-rate remuneration will be remunerated in accordance with clause 1.1 of the AV TOLERANT Software GmbH & Co. KG.
2.3 Adjustment of the remuneration
The Supplier reserves the right to increase the remuneration for the first time after the expiry of 12 months and at most once a year with a notice period of 3 months in accordance with the development of the “Index of Labour Costs for the Manufacturing Industry and Service Sector”. The Provider may pass on any cost increases for third-party inputs going beyond this, except insofar as it has caused them. As soon as the annual remuneration increases by more than 5 %, the customer shall be entitled to terminate the contract extraordinarily at the time the increase takes effect with a notice period of six weeks after receipt of the request for increase. In the event of a reduction of the corresponding costs, the customer may also demand a corresponding reduction of the remuneration for the first time after the expiry of 12 months.
B3 Right of use
The customer’s rights of use to new versions and to other corrections of the maintenance software correspond to the rights of use to the previous version of the maintenance software. With regard to the With regard to the rights of use, the rights to the New Versions and other corrections shall replace the rights to the previous versions and other corrections after an appropriate transitional period – which as a rule shall not exceed one month. The customer may archive one copy.
B4 Obligations of the customer
The Customer shall notify the Provider without delay of any changes to the deployment environment, also in order to enable the Provider to provide maintenance services. Furthermore, the customer shall ensure that the maintenance software is only used in a released operating environment supported by the maintenance software. The Provider shall not owe any maintenance for software that is not used in such a deployment environment.
Unless otherwise agreed, the Customer shall additionally store all documents, information and data handed over to the Provider in such a way that they can be reconstructed in the event of damage to or loss of data carriers.
Insofar as software is handed over within the scope of these terms and conditions and nothing to the contrary is agreed, this shall be done in the same way as for the handover of the maintenance software.
B6 Data protection
Insofar as the Provider has access to personal data of the Customer or from the Customer’s area, the Provider shall act exclusively as an order processor and shall process and use this data only for the purpose of executing the contract. The Provider shall comply with the Customer’s instructions for the handling of such data. The Client shall bear any adverse consequences of such instructions for the performance of the contract. The Customer shall agree with the Provider the details for the Provider’s handling of the Customer’s data in accordance with the requirements of data protection law.
The customer remains the responsible party both generally in the contractual relationship and in the sense of data protection law. The following shall apply to the relationship between the Provider and the Client: vis-à-vis the data subject, the Client shall be responsible for the processing (including collection and use) of personal data, except to the extent that the Provider is responsible for any claims by the data subject due to a breach of duty attributable to the Provider. The customer shall responsibly examine, process and respond to any enquiries, applications and claims of the data subject. This shall also apply in the event of a claim against the provider by the data subject. The Provider shall support the Customer within the scope of its duties.
The Provider warrants that Customer data will be processed exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area, unless otherwise agreed.
B 7 Applicability of the AV TOLERANT Software GmbH & Co. KG
In addition, the General Terms and Conditions of TOLERANT Software GmbH & Co. KG (AV TOLERANT Software GmbH & Co. KG) shall apply.
Disclaimer: This English translation of Terms and Conditions is for information purpose. The English translation is not legally binding. Only the original version in German is legally binding
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