Conditions for the Provision and Maintenance of Software

Transcription

1 of prevero AG, Landsberger Straße 154, Munich hereinafter prevero Definitions QUOTATION means the document attached hereto as Annex 1 DATA OF THE PRINCIPAL means all material, data and information used by the Principal or other entitled parties in the course of the use of PREVERO SOFTWARE. DATA CARRIER means a data carrier in the form described in the DOCUMENTATION means the documentation of PREVERO SOFT- WARE described in the QUOTATION which prevero can provide to the Principal at the election of prevero online or as a handbook (PDF or printed) INDIVIDUAL WORK STATION means the use of PREVERO SOFT- WARE on a computer by a single user at any one time. NAMED USER means a named natural person who is entitled to use PREVERO SOFTWARE. USE VOLUME means the number of INDIVIDUAL WORK STATIONS or NAMED USERS at which or by whom the Principal uses the PRE- VERO SOFTWARE. PATCH means the temporary remedying of defects in the standard software without entering the source code. PREVERO SOFTWARE means the standard software with or without adjustments described in the UPDATE means the bundling of a number of defect remedies in the standard software in a single delivery (e.g. 4.1 > 4.2). SUBJECT MATTER OF THE AGREEMENT means the PREVERO SOFTWARE including the DOCUMENTATION. I. PROVISION OF SOFTWARE 1. Subject Matter of the Agreement prevero provides the Principal with PREVERO SOFTWARE including the DOCUMENTATION for use in accordance with the extent described in the QUOTATION under the following conditions. 2. Delivery prevero delivers the PREVERO SOFTWARE in usable compiled form on a DATA CARRIER or by providing the possibility of downloading. Source codes are not supplied. If prevero performs the hosting of the PREVERO SOFTWARE or if the parties agree software as a service (see III.16), the delivery can take place by the opening of access possibilities to the server. The Principal also receives the DOCUMENTATION. No other services for the PREVERO SOFTWARE such as installation, instruction, adjustment are SUBJECT MATTER OF THE AGREE- MENT providing the software. These additional services require a separate agreement. 3. License and user rights 3.1 Contractual use prevero grants the Principal a non-exclusive, non-assignable right to use the PREVERO SOFTWARE. This includes the installation, the loading and version of the PREVERO SOFTWARE to the extent described in the If once-off remuneration is agreed for the grant of the licenses, the licenses will be granted without time limit (purchase of licenses). In the case of remuneration related to time, the license granted is limited to the period term stated in the QUO- TATION. The QUOTATION can, even in the case of purchase of licenses, provide for restrictions of the time of use (e.g. use only in certain months of a year). The Principal may use PREVERO SOFTWARE only to the extent stated in the QUOTATION even if the Principal can technically access additional software components or additional forms of use are possible. The number of licenses is set down in the Each license entitles the Principal to use the PREVERO SOFTWARE at one INDIVIDUAL WORK STATION (concurrent use) or by a NAMED USER agreed between the parties. Which license model applies to the use of the PREVERO SOFTWARE in each case is stated in the Unless otherwise stated in the QUOTATION, the Principal may use the PREVERO SOFTWARE only for its own business transactions and for affiliates of the Principal in the meaning of Sec. 15 Stock Corporation Act. Leasing of PREVERO SOFTWARE to third parties or the provision of services with the help of PREVERO SOFTWARE for third parties is excluded subject to provisions otherwise in the The Principal may change, translate, re-engineer, decompile and disassemble the PREVERO SOFTWARE, the documents and information connected therewith only with the prior written consent of prevero. The right of the Principal to decompile according to Sec. 69e Copyright Act remains unaffected if the Principal has initially requested the information necessary for establishing interoperability from prevero and prevero has not provided the same within a reasonable period. 3.2 Passing-on The Principal may provide the PREVERO SOFTWARE and the DOCUMENTATION to a third party only as a unit and on complete and final cessation of its own use. The temporary or partial provision of use to a third party for reward is forbidden whether the SUBJECT MATTER OF THE AGREEMENT is passed on in material or immaterial form. The same applies to provision free of charge. The passing-on of the SUBJECT MATTER OF THE AGREEMENT requires the written consent of prevero. The consent will be issued if (i) the purchaser assures the seller in writing that it passes on all original copies of the SUBJECT MATTER OF THE AGREEMENT to the third party and has deleted all copies made by it, and (ii) the third party declares its agreement in writing to the seller to these software provision and maintenance conditions. 3.3 Expanded USE VOLUME The Principal can use the PREVERO SOFTWARE in excess of the number of licenses defined in the prevero is then entitled to demand corresponding remuneration for the expanded use. The amount of the remuneration shall be in accordance with the list price for PREVERO SOFTWARE according to the general price list of prevero current at the time of use in each case. The PREVERO SOFTWARE generates use statistics on the basis of which the USE VOLUME is ascertained and which may be transmitted automatically to prevero. If no automatic transmission of the use statistics generated by the PREVERO SOFT- WARE to prevero takes place, the Principal is obliged to send these quarterly to prevero at the request of prevero. 1/5

2 If prevero does not receive the use statistics generated by the PREVERO SOFTWARE either automatically or by sending by the Principal, prevero is entitled to check the USE VOLUME of the PREVERO SOFTWARE in an audit. prevero gives 45 days advance notice in writing of the audit. The Principal is obliged to cooperate with prevero in the planning and conduct of the audit, to support prevero to a reasonable extent and to grant access to the information relevant for the USE VOLUME of the PRE- VERO SOFTWARE. If the Principal incurs reasonable costs by cooperating with the audit, these will not be borne by prevero. 3.4 Right of duplication/security copy The Principal may make copies of the software only to the extent necessary for the contractual use and a reasonable number of security copies. If the PREVERO SOFTWARE is provided by means of a downloading possibility or by providing access possibilities to a server, the Principal is entitled to copy the PREVERO SOFTWARE in the case of passing-on according to Clause 3.2 on a DATA CARRIER. The duplicate created for the purpose of passing-on is deemed to be an original copy in the meaning of Clause 3.2 sentence Rights to license product prevero remains holder of all rights to license products even if the Principal changes the license product or links it to its own programs or those of a third party. 4. Remuneration 4.1 Statutory VAT will be added to the prices stated in the 4.2 The remuneration is due for the number of licenses stated in the QUOTATION in the event of the purchase of PREVERO SOFTWARE on a DATA CARRIER with delivery, in the event of purchase by download with the provision of the download possibility, in the case of software as a service with the provision of the access possibility to the PREVERO SOFTWARE. In the case of the expansion of USE VOLUME, the remuneration is due on commencement of use. From the 11th day after the issue of an invoice, prevero is entitled to charge interest for delay at 8 percentage points above the base rate from time to time. prevero reserves expressly the right to make further claims. 5. Reservation of rights The grant of user rights is subject to the condition precedent of the time of full payment of the remuneration due. Until full payment, prevero permits the use of PREVERO SOFTWARE revocably in accordance with the above provisions. The Principal is obliged until full payment for the PREVERO SOFTWARE to inform prevero in writing immediately in the case of seizure by a third party of the retained goods and to inform the third party of prevero s rights. 6. Warranty 6.1 Beginning and duration The limitation period for warranty claims begins in the event of acquisition of the PREVERO SOFTWARE on a DATA CARRIER on delivery, in the case of acquisition by download with provision of the download possibility and notification to the Principal thereof. It amounts to one year. For expansions of the USE VOLUME, the limitation period for warranty claims does not begin to run again anew for PREVERO SOFTWARE or DOCUMENTATION already supplied or provided to the Principal. 6.2 Content of the warranty prevero warrants that the PREVERO SOFTWARE in the case of use in accordance with contract corresponds to the data in the QUOTATION, the DOCUMENTATION and in these Software Provision and Maintenance Conditions. prevero, however, gives no warranty that the PREVERO SOFTWARE is adequate for the requirements and purposes of the Principal or that it cooperates with other programs or system environments or operating systems selected by it unless this is expressly noted in the DO- CUMENTATION. 6.3 The Principal is aware that software is never fully free of errors. The Principal therefore has no defect claims for an almost insignificant deviation in the quality or usability of PREVERO SOFT- WARE from the data in the QUOTATION, the DOCUMENTATION and these Software Provision and Maintenance Conditions. 6.4 Conditions of warranty Warranty claims of the Principal are forfeited if the Principal changes the PREVERO SOFTWARE or has it changed by third parties or uses it together with products other than those approved by prevero unless the Principal proves that an error arising is not due thereto. 6.5 Notice of Defects The Principal must give notice of defects in an understandable and detailed form stating all information useful for the recognition and analysis of the defects. The working steps which led to the defect, the form in which it appears and the effects of the defect are to be stated in particular. 6.6 Improvement If the PREVERO SOFTWARE is subject to defects, prevero is firstly entitled to improvement. The improvement can, at the election of prevero, be by correction of the PREVERO SOFT- WARE itself, by the supply of the entire PREVERO SOFTWARE or individual parts thereof. Corrections can be made by telephone or written instructions to the Principal, by data transmission or by sending DATA CAR- RIERS with correcting software. The Principal is in these cases obliged to follow the instructions, to facilitate the data distance processing and to install the correcting software without delay after delivery firstly on a test system as the case may be. A technical software bypass is also deemed to be improvement if thereby the functionality of the PREVERO SOFTWARE is not significantly adversely affected. The Principal is obliged to support prevero in the course of warranty works to a reasonable extent, in particular to provide the necessary information, documents and working equipment in good time. 6.7 Remuneration for work which does not fall under warranty If the Principal alleges a defect in the PREVERO SOFTWARE and if it is ascertained in the course of works and analysis of prevero that a defective function claimed by the Principal is not the result of a defect in the PREVERO SOFTWARE, prevero is entitled to invoice the expense incurred in the course of its work in accordance with the current service price lists of prevero in each case to the Principal if the Principal can be accused of intent or gross negligence in giving the notice of defect. 6.8 Failure of improvement If the first attempt at improvement fails, the Principal must set a reasonable further period of grace. If the improvement is not successful even within the latter period, the Principal is entitled to claim a price reduction or if prevero is responsible to rescind the Agreement. The setting of a grace period by the Principal is not required if this is unreasonable for the Principal. 6.9 Payment for use in the event of rescission In the event of rescission, prevero is entitled to demand reasonable remuneration for the use of the PREVERO SOFTWARE made by the Principal until the rescission. The remuneration for use will be calculated on the basis of a quarter year total use of PREVERO SOFTWARE with deduction of a reasonable amount for the restriction of the use due to the defect Reimbursement of costs in the event of change of location Additional costs due to the Principal changing the original installation location of the PREVERO SOFTWARE are borne by the Principal Third Party Rights If a third party claims rights to the PREVERO SOFTWARE against the Principal, prevero is entitled, in order to avoid damage or further damage, to supply the Principal with a changed version of the PREVERO SOFTWARE which does not infringe third party 2/5

3 rights. The Principal will inform prevero without delay of any knowledge of breach of rights of prevero by third parties. Likewise, the Principal will inform prevero if it is claimed against by third parties for breach of rights by the software. The Principal will give prevero the opportunity to support it in any litigation in a suitable manner. II. SOFTWARE MAINTENANCE 7. General 7.1 prevero maintains the PREVERO SOFTWARE as long and to the extent the PRINCIPAL orders the maintenance service according to the 7.2 The maintenance of the computer hardware is not SUBJECT MATTER OF THE AGREEMENT. 8. Maintenance Services 8.1 The maintenance services of prevero include the following services: a) Supply of the newest UPDATES of PREVERO SOFTWARE at regular intervals. The classification of a part of a program under the term UPDATE is at the equitable discretion of PREVERO. Not only insignificant further developments of PRE- VERO SOFTWARE can be declared by prevero at its equitable discretion as major release, the provision of which is not subject matter of this Maintenance Agreement. The supply of UPDATES will be in usable compiled form on a DATA CARRIER or by provision of a download possibility. Source codes will not be supplied. The due installation of UPDATES is a matter for the Principal. prevero grants the Principal a right to use the supplied UP- DATES and PATCHES in accordance with the right to the PRE- VERO SOFTWARE originally provided to the Principal. prevero alone decides on the nature, extent and interval of UPDATES. prevero has no further development obligation. b) With the supply of UPDATES, the corresponding update of the DOCUMENTATION will also take place. c) Telephone hotline support to the users agreed between prevero and the Principal, e.g. in the event of defects, other errors in the PREVERO SOFTWARE or application problems Monday to Friday between 09:00 hrs. and 17:00 hrs. Statutory holidays at the business base of prevero in Munich, Germany, are excluded. The Principal pays the telephone charges. 8.2 After the expiry of the warranty period for the provision of software (see No. 6), the remedying of errors takes place only by general UPDATES or PATCHES. An error in the PREVERO SOFTWARE arises if functions of the PREVERO SOFTWARE do not correspond to the contractually provided or usual use, incorrect results arise due to programming errors, the running of the program is interrupted uncontrollably or the use of the software is adversely affected or prevented in another manner detrimental to function. Errors are remedied by the supply of PATCHES or UPDATES generally supplied by prevero to its Principals. The delivery takes place at regular intervals. If the removal of the error is not possible in this manner at the usual intervals, prevero attempts within its technical possibilities to create a bypass solution. The relevant measures take place if possible by data distance transmission. 8.3 The following are not included in the maintenance services: the supply and grant of additional rights, the delivery of system environment, remedying of disruptions which do not affect the PREVERO SOFTWARE, e.g. disruption by operating error, other external effects, in particular violence. Operating errors do not exclude the application of this Agreement if they are due to errors in the instructions or in the instructions of the employee by prevero, adjustment of PREVERO SOFTWARE to individual requirements of the Principal, adjustment to a new system environment of the Principal (including new versions of operating systems). Such services can be agreed in separate agreements. 9. Term and notice periods 9.1 The following provision constitutes the standard case and is deemed to be agreed unless otherwise stated in the quotation. The maintenance agreement begins at the time stated in the quotation. Its term ends on of the calendar year following the calendar year in which the term of the maintenance agreement begins. The Agreement can be terminated by either Party with three months notice prior to the end of the term. If there is no termination issued, the Agreement is automatically extended by 12 months in each case. 9.2 If the QUOTATION contains a provision which deviates from the standard case the following applies: The Maintenance Agreement begins at the time stated in the It can be terminated on three months notice before the end of the term defined in the If no termination is issued, the Agreement extends automatically in each case by the originally agreed term. 9.3 The termination must be in writing. 10. Remuneration 10.1 The maintenance charge and any additional remuneration to be paid are payable in advance plus VAT for the term stated in the QUOTATION, namely after the receipt of an invoice, without discount or other deductions unless otherwise stated in the invoice. From the 11th day after the issue of the invoice, prevero is entitled to charge interest for delay at 8 percentage points above the base rate in each case. prevero expressly reserves the making of other claims. The amount of the maintenance charge is stated in the quotation With effect from the expiry of the term of the Maintenance Agreement (Clause II.9.1) prevero can adjust the maintenance charge for the coming extension period in each case. Notification of the adjustment of the maintenance charge is given at the latest four weeks prior to the expiry of the term of the Maintenance Agreement. With such adjustment, the Principal is entitled to terminate the Agreement without observing the notice period in Clause II.9.1 with effect at the end of the term of the Maintenance Agreement. 11. The Principal s cooperation obligations 11.1 It is a condition for the services of prevero that the Principal uses the newest UPDATE and PATCH of the contract software or its direct predecessor, approved and provided to the Principal. If the Principal uses the PREVERO SOFTWARE without updating in the meaning of sent. 1, prevero can refuse services or provide the services in return for payment of the additional expense associated therewith in accordance with the prevero price lists for services. A condition for the services of prevero is also that the Principal in each case uses the current version of the operating system and/or other third party software necessary for the use of PREVERO SOFTWARE stated in the The Principal takes notice that the hardware requirements could change in the course of UPDATES In the case of rewriting, limiting, ascertaining and notifying errors, the Principal must follow the instructions given by prevero. It may be that the Principal has to use checklists of prevero The Principal must specify its notices of errors and questions to the best of its ability. It must avail of competent employees for this purpose During necessary test runs, competent employees of the Principal are to be present and authorized to make agreements on the extension of functions, reduction of functions and changes to the program structure. Other works with the computer system during the time of the maintenance works may have to be discontinued as the case may be. 3/5

4 11.5 The Principal grants prevero for the conduct of services provided for in this Agreement, in particular with regard to remedying errors or by-passing errors; on request the necessary access to the computer systems insofar as possible, even by means of data distance transmission and provides the necessary infrastructure for this purpose at its costs (e.g. internet connection, etc.) The Principal is responsible for the observance of statutory data protection provisions. It is obliged to inform prevero of requirements existing in that connection. prevero will ensure the observance by its employees of the relevant communicated requirements. If compliance with data protection provisions notified to prevero after the conclusion of this Agreement requires in the context of this Maintenance Agreement more expense by prevero, in particular technical, personnel or organization costs, these are to be paid for by the Principal separately in accordance with the price lists of prevero for services current from time to time Distance access for error analysis For error analysis by prevero, distance access may be necessary. This occurs with the express consent of the Principal for each individual session with the help of a remote software. The Principal has the following cooperation obligations: the Principal grants prevero for the purpose of error analysis a full distance access to its production and/or test systems. The access takes place however only after agreement with the Principal and only to those systems affected by the specific problem. the Principal also transmits to prevero insofar as necessary for the analysis or the rapid processing a backup of its configuration and/or a backup of data. That can in particular be necessary if the error must be recreated by prevero for example for the purpose of debugging. III. HOSTING/SOFTWARE AS A SERVICE 12. Subject Matter of the Agreement 12.1 prevero provides the hosting of the PREVERO SOFTWARE if this is agreed in the For this purpose, prevero provides storage space in accordance with the specification on storage of PREVERO SOFTWARE and DATA OF THE PRINCIPAL on a server provided to the Principal. 13. Availability of the server 13.1 The availability of the server is in accordance with the specification In the event of disruption of the availability or other disruption in operation of the server, prevero informs the Principal without delay about the actual disruption and the anticipated duration thereof. If the disruption is remedied, prevero informs the Principal likewise without delay. 14. Remuneration 14.1 There is an all-in charge according to term for the hosting. The amount of the charge and the charging modalities are set out in the 14.2 The charge is payable in advance for the term stated in the QUOTATION plus VAT as applicable from time to time, namely after the receipt of invoice without discount or other deductions unless otherwise stated in the invoice. From the 11th day after the issue of the invoice, prevero is entitled to charge interest for delay at 8 percentage points above the base rate in each case. prevero expressly reserves the making of other claims. 15. The term and termination 15.1 The Hosting Agreement begins at the time stated in the It can be terminated by 3 months notice prior to the end of the term defined in the If no termination is issued, the Agreement extends in each case automatically by the originally agreed term Termination must be in writing. 16. Software as a Service/rent model 16.1 If the Parties have in the QUOTATION agreed a time related provision of PREVERO SOFTWARE (Software as a Service/rent model) the deviating conditions of this clause III.16 apply in priority before the other provisions of these Software Provision and Maintenance Conditions prevero provides the Principal with access to the PREVERO SOFTWARE online. The details of the services of prevero in software as a service model are shown in the specification provided by prevero to the Principal and the 16.3 Clause I.5 does not apply to software as a service. The provisions of clause I.6 apply for the entire term of this Agreement on software as a service. The provisions on the ending of the warranty period in clause I.6.1 do not apply. The with fault liability provided for in Sec. 536a ss. 1 sent. 1 alternative 1 Civil Code is excluded for prevero. In deviation from Clause II.8.2, prevero will automatically install the prevero UPDATES and PATCHES on the PREVERO SOFT- WARE and provide to the Principal access to correspondingly updated version. IV.GENERAL PROVISIONS 17. Liability 17.1 prevero is liable for damage on any legal ground including delay, inferior performance and non-contractual liability in accordance with these provisions prevero has unlimited liability for damage caused by prevero or its agents deliberately or by prevero or leading employees or organs of prevero with gross negligence. The liability is also unlimited in case of personal injury for which prevero is responsible, in the absence of quality guaranteed by prevero in the software and defects which are fraudulently concealed by prevero If none of the cases in Clause 17.2 arise, prevero s liability is limited to the typical contractual foreseeable damage if this was caused by breach of a fundamental contractual obligation or by gross negligence of other agents. Fundamental contractual obligations are such on which the performance of the contractual partner relies to a particularly high degree and the performance of which is significant for the achievement of the objective of the Agreement Contributory fault must be accepted by the Principal to a reasonable extent In addition, the amount of liability is limited to the individually negotiated maximum amount set by the Parties in the QUO- TATION Other compensation if excluded Liability under the Product Liability Act remains unaffected by the above provision The Principal is responsible for regularly securing its data. In the case of a loss of data due to fault of prevero, prevero is therefore liable only for the costs of duplicating the data on the security copy to be created by the Principal and the reconstruction of the data which would have been lost even with the making of security copies at reasonable intervals. 18. Confidentiality/data protection 18.1 The contractual partners undertake to treat confidential information and documents of the other contractual party which are obviously to be regarded as confidential or marked by the other contractual party as such, as operational secrets The Principal is aware that all programs, documentation and concepts supplied by prevero are to be seen as operational and business secrets of prevero. 4/5

5 19. Public relations work 19.1 The Principal permits prevero to publish a press release about the cooperation The Principal permits prevero after the conclusion of the project, to publish press texts about the successful implementation of the project and to use the logo of the Principal for advertising purposes. The content of these texts will be prepared in agreement with the marketing department of the Principal or a contact partner nominated by the Principal and approved in writing by the Principal prevero receives the possibility of writing an application report about the project. The content of the application report will be prepared in agreement with the marketing department of the Principal or a contact partner nominated by the Principal and approved in writing by the Principal. 20. Miscellaneous 20.1 Set-off is possible only with regard to undisputed or legally adjudicated claims Amendments and additions require written form The Agreement is subject to German law. International uniform law in particular UN sales law is excluded The place of performance is the registered office of prevero. The place of court jurisdiction is Munich The general business conditions and the quotation document apply exclusively for the legal relationship between the Principal and prevero. General business conditions of the Principal do not apply. This applies even if prevero has not expressly objected to the general business conditions of the Principal If any provisions of this Agreement are or become wholly or partly invalid or unenforceable, the validity of the remaining provisions shall not thereby be affected. The same applies in the event that the Agreement is subject to omissions. In the place of the invalid or unenforceable provisions or to repair an omission, a reasonable provision will apply which as far as legally possible comes as close as possible to what the parties would have intended if they had considered the point on the conclusion of this Agreement. Annexes: Annex 1: QUOTATION 5/5