Services of the Provider; Software and professional services 

Customer will have the license granted in Section 2 to access and use the most current version of the Software for the agreed number of authorized users via the internet by means of access through a browser or the App. The functional scope of the Software is described in the purchase order. The provision of Software, e.g. for installation or use on the Customer’s systems, shall not be part of the subject matter of the Agreement, unless explicitly agreed between the parties in a separately executed contract. 

The Provider will make the Software available for use as contemplated herein in accordance with the Service Level Agreement (“SLA”) attached hereto as Annex 1 and will maintain it in a condition in material accordance with the Software Description in the purchase order.  

The Provider shall provide access data for the corresponding number of authorized users to the Customer in electronic form as stated in the purchase order. 

The Provider may update and further develop the Software at any time without notice and, in particular, adapt it due to a changed legal situation, technical developments or to improve IT security. In doing so, the Provider shall give due consideration to the Customer’s legitimate interests and inform the Customer of any necessary updates in the application change log. However, Provider is generally under no obligation to make changes, improvements, or further develop the Software and has made no representations or warranties to Customer regarding any future functionality or updates to the Software. 

The Provider does not owe an adaptation to the individual needs or the IT environment of the Customer unless expressly agreed upon in a writing contract signed by both parties. The Customer shall bear responsibility for the functionality and sufficient capacity of its internet access as well as for the hardware and software components necessary to access and use the Software. 

The Provider shall provide the Customer with storage space and data tags on its servers up to the amount described in the purchase order for the storage of data/number of data tags and for the purpose of using the Software.  

Consistent with Provider’s then current practices, the Provider shall use reasonable measures designed to protect the Customer data.  

Provider provides support for the Software as described in the SLA or purchase order and (if agreed), provides implementation services, consulting services or other related services (“Professional Services”) under a separate purchase order.  

Scope of use and rights 

During the Term, the Customer shall be granted a non-exclusive, i.e., non-sublicensable and non-transferable right to use the Software for Customer’s own business activities by its own personnel by means of access via a browser or the App in accordance with the contractual provisions for the most current version of the Software for the number of users specified in the purchase order.    Customer may provide users with a login and password to access and use the Software. Customer is responsible for all actions taken by users or by anyone using a login and password issued by Provider and administered by Customer. 

The Customer may only use the Software within the scope of its own business activities by its own personnel. The Customer is not permitted to use the Software for any other purpose. 

Service Levels 

Unless stated otherwise in the purchase order, Provider will maintain an average monthly system availability for the Software as defined in the SLA. 

In the event of Provider’s failure to achieve the SLA, Customer may claim a credit as detailed in the SLA in the form of service credits. Once the validity of the service credit is confirmed by Provider in writing (email permitted), the credit will be applied to a future invoice.   

Customer duties 

The Customer shall protect the provided login data against access by third parties and keep them safe. Customer is responsible for all activities conducted using such login data.  The Customer shall ensure that the software is only used in the contractually agreed extent. The Provider shall be notified immediately of any unauthorized access. 

The Customer shall not store any data on the provided storage space, which violates applicable law, official orders, rights of third parties or agreements with third parties.  Customer is responsible for obtaining all rights, permissions, and licenses necessary to provide such data to Provider for use in the Software. 

The Customer shall check the data for viruses or other harmful components before storing them or using them in the Software and shall use state-of-the-art security measures (e.g. virus protection programs) for this purpose. 

Customer grants Provider and Provider’s Affiliates and applicable subcontractors a worldwide, limited-term license to host, copy, use, transmit and display Customer data as necessary for Provider to provide the Software to Customer in accordance with this Agreement. Subject to the limited license granted herein, Provider acquires no right, title or interest from Customer under this Agreement in or to any of Customer data. In addition, Customer grants Provider and Provider’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose and make available and incorporate into the Software any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Software.     

In the event that the Software is used by unauthorized third parties using the Customer’s access data, the Customer shall be liable for any fees incurred as a result within the scope of liability under civil law until receipt of the Customer’s order to change the access data or notification of the loss or theft, provided that the Customer is at fault for the access of the unauthorized third party. 

The Provider is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is illegal, violates the rights of third parties, or would otherwise expose Provider to potential liability. A reasonable suspicion for an illegality and/or a violation of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof. 

Warranty  

Provider warrants, for the duration of the Agreement, that the Software meets the specifications of the Software as described in the purchase order and that the Software, where used by Customer as contractually agreed, does not infringe any third-party rights. Provider will remedy any defects as to quality in accordance with Section 5.4 and the SLA. If Provider has failed to remedy the defect at the end of an additional time period of a reasonable length set in writing by Customer, and the suitability of the Software is consequently reduced to a more than just insignificant degree, Customer has the right to reduce the remuneration by an appropriate amount or to terminate the Agreement, which must be communicated in writing. Section 6 (Limitation of Liability) applies to wasted expenditure and damage compensation due to defects. No-fault liability as provided in the German Civil Code, section 536a (1) Alt. 1 for defects that existed at the time of contract execution is excluded.  

For Professional Services provided as works (“Werkleistung”), Provider warrants that the Professional Service corresponds to the agreed service description and where used by Customer as contractually agreed does not infringe any third-party right. Provider will remedy defects in accordance with Section 5.4. If defects have not been remedied at the end of an additional time period of a reasonable length set by Customer in writing, Customer is entitled to reduce the payable remuneration in the purchase order for the Professional Service concerned by an appropriate amount or to withdraw from the purchase order with respect to the Professional Service. Section 6 (Limitation of Liability) applies to wasted expenditure and damage compensation.  

If Provider fails to properly provide Professional Services which are not subject to acceptance, or if Provider is otherwise in breach in an area other than liability for defects as to quality and defects in title, Customer must give notice of this failure or breach to Provider in writing and set an additional time period of a reasonable length, during which Provider has the opportunity to properly perform its duty or otherwise remedy the situation. Section 6 (Limitation of Liability) applies to wasted expenditure and damage compensation. 

Provider shall remedy defect in the Software and for those Professional Services that are subject to acceptance by providing Customer with either a Software or new Professional Service, that is free of defects or, at its election, by eliminating the defects. One of the ways Provider may eliminate a defect is to indicate to Customer a reasonable way to avoid the effect of the defect. In the event of defects in title, Provider shall elect to (i) procure for Customer the right to use the Software or Professional Service in accordance with the Agreement, or  (ii)  replace  the  Software  or  Professional  Service  or change  it such  that  the  accusation  of breach no longer stands, whereby Customer’s contractual use is not unreasonably impacted, or (iii) terminate the purchase order to this extent and reimburse the Customer’s remuneration paid in advance for the term remaining  after  the  date  of  termination,  and  to  pay  wasted  expenditure  and/or  damages  subject  to  the limitations of Section 6 (Limitation of Liability). 

Customer must give notice of every defect to Provider in writing without delay and with a detailed description of the defect using the Provider’s preferred method as for example a ticket system. 

limitation of Liability; INDEMNITY 

Provider shall not be liable for any loss or damage or any expenses suffered or incurred by the Customer, irrespective of the legal grounds on which any such claim may be based (breach of pre-contractual obligation, contract, tort etc.). 

Notwithstanding the foregoing, Provider shall be liable for any expense, loss or damage caused by willful act or gross negligence; for any death, personal injury or damage to health for which Provider is held responsible; where its liability arises under the German Product Liability Act (Produkthaftungsgesetz); and for any expense, loss or damage caused by any breach of any material obligation under this Agreement (wesentliche Vertragspflicht), i.e. any such obligation the performance of which is essential to the proper implementation of this Agreement and compliance with which the Customer may rely on, where and to the extent that Provider is held responsible for such expense, loss or damage. Provider’s liability in the event of any breach of any material obligation under this Agreement shall be limited to such typical loss or damage as could reasonably have been foreseen, unless Provider’s liability is due to willful acts or gross negligence, death, personal injury or damage to health, or where it arises under the German Product Liability Act. 

Where and to the extent that Provider’s liability is excluded or limited pursuant to the provisions set out above this shall also apply with respect to any statutory or vicarious agents or employees acting on behalf of the Provider. 

Nothing in this section 6 shall be construed to affect the Customer’s burden of proof to the detriment of the Customer.  

Term of Contract and Termination  

The Agreement shall enter into force on the date of the last signature on the purchase order and shall be concluded for an initial term as indicated in the purchase order (“Initial Term”). After expiry of the Initial Term, the Agreement automatically renews for another year (“Renewal Term”), unless it is terminated in accordance with Section 7.2.  The Initial Term and Renewal Term may be referred to herein, collectively, as the “Term.” 

With the exception of Professional Services provided as works, ordinary termination of the Agreement is excluded during the Initial Term or any Renewal Term. Customer may terminate an Agreement by giving notice at least one month in advance of the expiration of the Initial Term or current Renewal Term. Provider may terminate the Agreement by giving notice at least three months prior to the expiration of the Initial Term or current Renewal Term. The right to terminate the Agreement for good cause remains unaffected. Provider reserves the right to terminate for good cause in particular where Customer is repeatedly or seriously in breach of major contractual obligations. In any case, the termination must be in writing. 

After expiry or termination of the Agreement: 

Customer’s right to use the Software or any other rights granted under this Agreement will cease, and Provider will have no further obligation to make the Software available to Customer;  

Company may delete Customer data and/or any archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer data remains Customer’s responsibility. 

remuneration and payment 

The Customer shall pay monthly fees to the Provider for the Initial Term as stated in the purchase order. The fees applicable for any renewal terms corresponds to the fees preceding any Initial or Renewal term unless Provider increases the fees by giving two months’ notice of the fee adjustment to Customer. 

The invoice shall be issued monthly. The invoice shall be due for payment within 14 working days. 

All fees are net and do not include Taxes. Customer is responsible for paying all taxes associated with each purchase order. If Provider has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Provider will invoice Customer and Customer will pay that amount unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required to withhold or deduct any taxes from the fees or expenses, Customer then agrees to increase the amount payable to Provider by the amount of such taxes so that provider receives the full amount of all fees. All fees, expenses and other amounts paid under this Agreement are non-refundable unless otherwise agreed in the Agreement. 

Any undisputed fees that are not paid within the aforementioned payment terms are subject to late payment fees including the applicable legal interest rate for late payment and any reasonable collection cost. 

If Customer does not pay Provider undisputed fees within the agreed payment terms, Provider may, without limiting Provider’s other rights and remedies, suspend access to the Software or other Professional Services to Customer until such amounts are paid in full, provided that Provider will give Customer at least 10 days’ prior notice that Customer’s payment is overdue before suspending the services. 

Data Protection 

The parties shall comply with data privacy and protection regulations and laws applicable to their businesses in the performance of this Agreement. 

While providing the service to Customer, Provider has access to Customer personal data. Therefore, parties have concluded a data processing agreement pursuant to Article 28 (3) and (4) of Regulation (EU) 2016/679 General Data Protection Regulation that is referenced to this Agreement as Annex 2. 

Final Provisions 

Should individual provisions of this Agreement be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall replace such provisions by effective and feasible provisions which come as close as possible to the meaning and economic purpose as well as the intention of the parties at the time of conclusion of the contract. The same shall apply in the event of a gap in the contract. 

There are no oral or written collateral agreements to this contract. Amendments to this contract and its annexes must be made in writing. 

General terms and conditions of the Customer shall not apply unless Provider and Customer have expressly agreed to their applicability in writing.   

German law shall apply to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention). 

The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Munich, Germany. 

SUBJECT MATTER OF THE SLA 

The subject matter of this SLA is the definition of performance parameters (“Service Levels”) for measuring and controlling the quality of the Software to be provided under the Agreement and the determination of measures in the event of non-compliance with the agreed Service Levels. 

If provisions in the Agreement contradict provisions in this SLA in whole or in part, the provision in this Service Level Agreement shall take precedence. 

Availability (Uptime) 

The Provider will maintain an availability of the Software agreed in the Agreement of 99.5 % per month (“Availability or Uptime“). 

The Software shall be deemed available if it is accessible in the agreed period in accordance with the agreed percentage availability rate. The availability rate shall be calculated as follows: 

The period during which the Provider provides the Customer with the Software is for 24 hours a day, 7 days a week from the time a license agreement begins minus planned maintenance windows (“Agreed Availability Time“). 

The period from the occurrence of the non-availability of the Software within the Agreed Availability Time until the end of the non-availability is defined as unplanned downtime (“Unplanned Downtime“). When determining the availability or the availability rate, such downtimes shall be disregarded which 

the Provider is not responsible for, in particular impairments caused by outages and/or defects of technical systems and/or network components outside the Provider’s area of responsibility; in particular 

outages caused by incoming IT attacks, outages due to connections related to downtime (ISP outages), 3rd party service provider outages, IOT device outages, improper configured transfer scripts    

outages caused by improper use of software or hardware on the part of the Customer; 

are maintenance work agreed with the Customer or unforeseen maintenance work required for which the Provider is not responsible including, for example, force majeure events such as, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Provider’s employees), Internet service provider failure or delay, or denial of service attack is not in Provider’s responsibility, or any other planned outages. 

The Customer shall immediately notify the Provider of any disruptions of the Software, availability restrictions or availability failures that are recognizable to the Customer. 

Availability (Response Time) 

Provider shall remedy any defects of the Software, availability restrictions or availability failures occurring during the term of the Agreement on the basis of the following provisions. 

Any occurring defects shall be classified into the following categories at the Provider’s reasonable discretion: 

Category 1 (Critical): Defects that causes a failure of the entire system or essential parts (incl. control & alarm modules) or many services thereof, so that use of the same is completely or almost completely excluded for many users and no workarounds are available.  

Category 2 (High): Defects that impairs system use to such an extent that meaningful system use is very restricted, e.g., Issue/Bugs that impact the system or feature so that it does not function as intended and no workarounds are available. 

Category 3 (Low): Other disruptions that do not or only insignificantly affect system use.  

The Provider shall respond to the notification of a defect by the Customer within the following response periods (“Response Time“): 

In the event of Category 1: within one business day of receipt of the report, 

In the event of Category 2: within three business days of receipt of the report, 

In the event of Category 3: The notification about the defect will be included in the Provider’s product backlog and be resolved at the Provider’s discretion. 

The response period shall commence upon receipt of the Customer’s notification by the Provider. It shall be deemed to have been complied with by the Provider if it informs the Customer of its initial assessment of the solution to the problem within the period specified in Section 3.3. 

Provider shall resolute the defect within the following resolution times (“Resolution Time“): 

In the case of Category 1: within 24 hours of acknowledgement of the notification, 

In the event of Category 2: within 15 business days of receipt of the notification, 

In the event of Category 3: at the Provider’s discretion. 

It shall be at the discretion of the Provider which means are used to remedy a defect. 

Hotline 

Provider shall support and advise Customer by telephone or by other means of remote communication. 

The hotline shall be available during CET and EST business hours (9am – 5pm (Monday- Friday), excluding Government holidays in the EU. 

The Customer shall always notify the Provider of non-compliance with availability via the contact options listed in Section 4.1. The Customer shall describe the problems as precisely as possible. 

Reports 

service credits 

In the event of non-compliance with the agreed Availability Time, the parties have determined a reduction of the monthly remuneration according to the following fault classes: 

from and including 98%: 0 % Reduction 

from and including 95 % to 97,9 %: 10 % reduction 

from and including 90% to 94,9%: 20% reduction 

below 90 %: 30 % reduction. 

In the event of non-compliance with the agreed Response Time, the parties have agreed on a reduction of the monthly compensation according to the following fault classes: 

1-2: 0 % reduction of the monthly invoice 

3-5: 10% reduction of the monthly invoice 

4-10: 20 % reduction of the monthly invoice 

The above-mentioned reduction of the monthly remuneration is the Customer’s sole and exclusive remedy and Provider’s sole and exclusive liability in the event of a failure by Provider to meet Uptime in this Service Level Agreement. However, in the event that during one month of service provision more than 5 Category 1 defects or more than 10 Category 2 defects occur that are not remedied during the specified Response Time, Customer is entitled to terminate the Agreement on written notice to Provider for cause.