Valid from August 5th, 2016
The customer has legally acquired the rights to apply INOSIM software and has agreed with the INOSIM License Conditions by signing the license contract.
(1) INOSIM takes over maintenance of the INOSIM software products delivered to the customer together with (when indicated) software products from other supplies.
(2) The customer´s products that have to be maintained are determined in detail in the invoices/license certificates. Subjects to software maintenance are regularly the latest and next to latest software version delivered to the customer from the licenser of the software product in the version determined by the latest update. A software update is as default a new program status that has been developed to correct or handle failures (numbering example: 3.7.x). A software version is as default a developed and as such indicated new program status containing growth in performance and functionality compared to an earlier version of this software product (for example 3.x).
(3) Maintenance covers
a. removal of failures of the program,
b. update or extension of programs,
c. substitute of improved standard software including documentation (actualization, updating)
d. advising the customer (written via email/most and/or via phone due to §4) in questions resulting for him due to the
INOSIM is obliged to deliver the following services in order to maintain the optimum operational state of the software specified in the license certificate(s):
(1) INOSIM is obliged to scrutinize software failures reported by the customer and, if possible, to give the customer hints on how to remove these failures. A software failure resp. a software disturbance is given when the software product as specified in the contract differs from the valid functional and performance features due to product specification.
(2) Reproducible failures and failures realized by INOSIM as failures in the current software version are, as far as possible, removed by INOSIM or corrected by workarounds. In case of substantial software failures, INOSIM is obliged to correct the failure in one of the following new program versions. The precondition for failure search and failure removal is the fulfillment of the cooperation duties by the customer due to §3.
(3) INOSIM is obliged to inform the customer resp. the customer´s staff about the manner and extent of the executed work one-time.
(4) Further faults are only to be corrected if possible by reasonable effort. This is not the case when new programming of substantial parts of the program is required.
(5) Software maintenance is executed by qualified staff who is familiar with the programs specified in the license certificates. Convenient tools for the execution of the maintenance due to the state of the technology (testing programs, test data, error diagnostics tools) are provided by INOSIM.
(6) The employees of INOSIM do not enter an employer-employee relationship with the customer. The customer will issue instructions exclusively to the responsible employee appointed by INOSIM, effective for or against INOSIM.
(7) Support to the customer is given by phone (or email or internet) in the form of advice or instruction in case that failures of the program occur, through INOSIM or a partner company authorized by INOSIM.
(8) Within maintenance of software delivered by INOSIM, INOSIM will regularly transmit the newest program version. As soon as updates or new versions of the software products specified in the license certificates are developed and approved, these will be delivered to the customer for use. From then, only this program version will be maintained. In the same manner, INOSIM will update the corresponding documentation.
(9) INOSIM decides in which cases a local commitment is necessary to evaluate a problem closer. Due to scheduling being harmonized with the customer, a service employee locally will push on the problem-solution resp. will detect additional system information required for a solution. The maintenance work is executed as soon as the data processing units on which the program is installed are ready to work. If the customer agrees, the work can also be executed via remote maintenance, as far as the technical conditions are given by the customer.
(10) Requests concerning the functionality of the INOSIM standard software are transmitted to the product management by the customer. This includes no obligation for implementation.
3.2 Modalities of Service
(1) Receipt of failure notifications as well as the execution of maintenance services is generally limited to the defined service times on working days (Saturdays, Sundays, legal and local holidays, and the 24th and 31st of December are excluded). The customer can contact INOSIM therefore on working days during regular working times between 9:00 and 11:30 resp. 12:00 and 17:00 (CET) by the following contact data: email@example.com or +492319700250
(2) The person in charge appointed by the customer under §4 and his substitute(s) get support by INOSIM via phone or via email in case of software failures or application problems.
(3) Reaction time in case of software failure notifications is 24 hours, i.e., from receipt of the notification until qualified feedback at the customer a maximum period of 24 hours is agreed upon. A reaction period regularly starts not early than at the receipt of a correct and comprehensive failure notification at the customer support which is confirmed by the support.
(4) For services beyond the specified service times, an overall of € 150,00 per hour is charged.
3.3 Exclusion of Services
1) Repair of damages by improper handling, abusive application, use of inappropriate utilities, the intervention of persons which are not authorized by INOSIM, system influences by third parties, faults by the customer, operation beyond the tolerances described by the hardware supplier (temperature, humidity, etc.) are not subject to this contract.
2) The execution of services in connection with interface problems of products that are not part of the INOSIM product guidelines is not subject to this contract.
3) Software support at the location of the customer in case of software problems that are directly linked to the operating system or customer-specific application solutions are not subject to this contract.
4) Functionality tests of the customer-specific application solution after software updates or the installation of new versions are not subject to this contract.
5) Training concerning updates or new releases on-site is not subject to this contract.
6) Installation of printers or other peripherals which are not part of the INOSIM solution offers are not subject to this contract.
7) System alteration or change of location, as well as cosmetic repairs, are not subject to this contract.
8) Services due to the customer-specific system environment (hardware/software) are not subject to this contract.
9) Substitution of means of production or data storage media are not subject to this contract.
10) Additional services which are not covered by this contract are executed by INOSIM on-demand of the customer and due to own decision against a special fee when INOSIM has sufficient maintenances staff at the time of demand. The calculation is based on the hourly wage rates of INOSIM at the time of execution, regarding the required amount of time.
3.4 Changes to the Status of the Installation
(1) Each change of installation which – beyond the regular release changes – requires a new software key for the software products listed in the license certificate has to be announced to INOSIM right on time and in written form.
(1) The customer will inform INOSIM immediately about occurring failures and support INOSIM with the failure scrutinization and correction as far as reasonable. Most of all, this includes providing INOSIM, due to their request, with written failure reports and further data and protocols which are convenient for failure analysis.
(2) For maintenance on-site, the customer will provide the necessary technical equipment, like electricity, phone connections, and data transmission, lines functioning, and in an appropriate amount for free. When a service employee is on-site, the customer will care for the availability of expert personal to provide system access, prevent eventual disturbances, and after the execution of services provide the functioning of the system in the submitted report.
(3) To INOSIM, the customer will announce an expert employee who can give the required information for the execution of the contract and will make or initialize decisions. For details, see §5.
(4) It is up to the customer to execute regular data backups and maintain the software and hardware environment properly.
(5) If not agreed upon differently in written form, the software system may only be maintained by employees of INOSIM resp. persons authorized by INOSIM, under the supervision and with knowledge of the person in charge of the system. It has to be secured from access by third parties. The handling and the operation have to conform with the online documentation provided by INOSIM and in an appropriate environment.
(6) The customer has to care for sufficient workroom, lighting, and electrical installation as well as telephone within appropriate reach of the system. For all this, the customer will not charge any fees.
(1) The customer will appoint a person in charge of the system.
(2) The person in charge of the system and his substitute(s) will be contact persons for INOSIM regarding all areas of execution.
6.1 In General
(1) The maintenance fee is valid for the systems specified in the license certificate and is payable in advance yearly one month before the beginning of the contractual year, within 30 days after invoicing.
6.2 Travel Expenses
(1) The maintenance fee covers travel expenses as far as they are due to the services agreed upon (valid only in Germany). All travel activities in connection with the software maintenance are harmonized with the customer before the start of the traveling.
6.3 Pricing and Invoicing
(1) The maintenance fee relates to the official list price of the product at the time of the conclusion of contract for the buy of the software products.
(2) Fee increases are not permitted before the end of 12 months and have to be announced by INOSIM at least six months in advance when the increases exceed more than 5% per year. If the customer does not agree upon an increase, he is justified to resign at the time of increase due to the end of the contract year.
(3) The fee is payable yearly in advance.
(4) The software products listed in the license certificate can only be put under maintenance as a whole. Exclusion of single licenses is only possible when INOSIM agrees.
(5) Maintenance due to false handling or intentional or careless damaging or change to the programs is not included in the overall price. These maintenances are calculated based on the general hourly wage rates of INOSIM valid at the date of assignment due to generated expenditure of time.
(6) The fees which are calculated have to be added by the possibly valid turnover tax.
6.4 Right of Retention
(1) Claiming rights of retention or counting up of counterclaims by the customer is only allowed when the counterclaim is due and undisputed or there is an effective legal title.
Liability in case of damages due to carelessness or omission of INOSIM is regularized as follows:
(1) INOSIM overtakes liability for direct personal damages resulting to the customer from intention, rough carelessness, or slightly careless violation of contractual duties. In case of slight carelessness, liability is limited to predictable damage. For any other damage, liability is only taken over if rough carelessness or intention of INOSIM is given.
(2) As far as for any kind of damage public liability of INOSIM sets in, INOSIM will prompt payoff of insurance refunding to the customer or forward already received insurance payments to the customer, or, as far as due to the insurance conditions, resign its claims against the insurance to the customer. Each further liability of INOSIM is excluded. Liability due to intention or carelessness remains untouched.
(3) As far as public liability of INOSIM does not set in, INOSIM is liable exclusively for damages caused by INOSIM during maintenance of the systems. Each liability is limited to the actual cash value of the systems.
(4) INOSIM is not liable to the customer concerning subsequent damages, including loss of use, loss of yield or profit, or other damage.
(5) INOSIM does not take over liability for data losses or eventual subsequent damages connected to services, as far as these are not due to apparently improper handling of the systems. INOSIM will only be liable for data losses – except in case of intention – when the customer has regularly executed system checks and data backups, and only as far as data are reproducible at reasonable effort.
(6) Liability by INOSIM in connection with this contract is limited to the sum of fees payable within one year. This limitation is not valid for personal damage.
(1) Both parties have to keep silent about all commercial and operational matters known to them. They are obliged to handle all information connected to this contract strictly confidential, even after the end of this contract. The same applies to personal data for which privacy laws are valid.
(2) INOSIM is obliged to neither record nor save, copy, or apply or exploit in any other intention except maintenance purposes information, documents, or data in the sense of §7 paragraph 1 BDSG. Saved data have to be deleted when no longer needed. This does not apply as long as a legal regulation allows to save these data.
(3) INOSIM is obliged to train its staff accordingly and to obligate them to keep the agreement due to §7 paragraph 1 BDSG separately in written form.
(4) In the case of remote maintenance (due to §2.1 of this contract), sufficient measures have to be agreed upon separately between the parties.
(1) Of the contractual subjects omitted to him by INOSIM due to their maintenance duties specified in this contract (e. g. updates, additional program manuals), the customer is granted an exploitation right. INOSIM releases the customer of claims which might be put by third parties due to the application of these programs.
(2) If the customer applies contractual subjects which are to substitute earlier subjects, the exploitation right of the earlier subject is no longer valid.
(1) INOSIM guarantees that for programs provided to the customer within the range of a license contract, they are authorized to edit or change these programs or have changes made. INOSIM releases the customer from all claims which might be put due to editing or changing.
(1) The maintenance period starts with the date of order.
(2) If the beginning of the maintenance of a license is within a contractual year, maintenance in the first year is calculated proportionately.
(3) A termination without notice by one of the contractual partners needs a previous notice by certified mail with a two weeks limitation. After the expiration of this limitation, the termination can be expressed via certified mail.
(4) To be effective, each termination needs a written form.
(1) If single regulations of this contract should be, or become, invalid, or if an essential issue should not be regulated here, this does not touch the effectiveness of the remaining issues. The parties oblige themselves to promote regulation, instead of the invalid regulation, which comes next to the intended success and which the parties had agreed upon if having known about the invalidity of the regulation.
(2) Rights from these contracts can only be transferred with the permission of the other party.
(3) Changes and additions of this party are only valid in written form and with relation to this contract. They have to be signed by both parties.
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