These General Terms and Conditions ("GTC Software Maintenance") of weltfern UG ("contractual partner" or "weltfern") apply to the provision of software maintenance services. The customer ("customer") has purchased one or more software products created by the contractual partner together with documentation and, if applicable, hardware components on the basis of a separate contract, which also regulates the scope of functions and system requirements (hereinafter referred to as "purchase or rental contract"). In the case of individually created software, the General Terms and Conditions for Software Creation shall apply ("GTC Software Creation").
The GTC Software Maintenance supplement the terms and conditions that are part of the contract in addition to these GTC Software Maintenance - in particular with regard to liability, statute of limitations and data protection - insofar as a point is not regulated in the GTC Software Creation or in the respective product GTC. In case of contradictions between these GTC Software Maintenance and the GTC Software Production or the GTC Other Services, the GTC Software Maintenance shall apply. In the event of contradictions between contractual agreements and these GTC Software Maintenance, the contractual agreements shall take precedence over the GTC Software Maintenance. Deviating or supplementary terms and conditions of the customer shall not apply.
weltfern is entitled to change these GTC Software Maintenance. weltfern will notify the customer of the change in text form. If the customer remains silent or does not object within six weeks after receipt of the change notification in text form, the changes become effective, provided weltfern has explicitly pointed out this consequence to the customer in the change notification. If the customer objects in due time, the changes will not become part of the contract.
weltfern shall take over the maintenance of the programs or the program in question. Significant extensions of the programs (upgrades) are to be included in the contractual agreements in a separate addendum. Unless otherwise agreed, weltfern provides the following services ("maintenance services"):
a) The maintenance includes
- maintaining and restoring the operational readiness
of the software,
- the updating of the software (Updating),
- the documentation of the performed works,
- consulting services for the customer
- periodic maintenance services such as software tests, etc.
b) In the case of individual software development, a contractual arrangement or individual order is required. In case of product purchase the respective terms and conditions apply,
c) Advice and support in case of software errors,
d) brief advice ("support") in connection with the use of weltfern via telephone ("hotline") or electronic communication.
The maintenance also extends to the documentation (user manual) belonging to the programs as well as to files or database material.
The elimination of malfunctions and damage caused by incorrect operation, improper handling on the part of the customer, by the influence of third parties or by force majeure is not the subject of this contract. Furthermore, damage and malfunctions caused by environmental conditions at the installation site, by faults or non-performance of the power supply, faulty hardware or other effects for which the world remote is not responsible are not subject of this contract. These maintenance works will be charged on the basis of weltfern's generally valid hourly rates at the time of placing the order.
The scope of services is based on regulated agreements. The maintenance services to be provided by weltfern refer exclusively to weltfern software. Third party products - with the exception of updates for the database software included in weltfern's scope of delivery - are not subject of the maintenance contract, even if they are delivered together with weltfern software or products.
The customer shall notify weltfern immediately of any errors occurring and support weltfern in investigating and eliminating the error within the scope of what is reasonable. This includes in particular to submit written defect reports to weltfern upon its request and to provide other data and protocols which are suitable for the analysis of the defect.
The customer shall allow weltfern access to the data processing equipment on which the programs designated in the service certificate are installed. The customer shall provide the technical facilities (power supply, telephone connection and data transmission lines) required for the performance of the maintenance work to a reasonable extent free of charge.
Customer shall maintain accurate records of the beginning and duration of downtime and maintenance service for each designated program. The records shall be confirmed by weltfern by signature.
It is the customer's responsibility to perform proper data backups and to properly maintain and service the software and hardware environment of the software not covered by the performance certificate. The customer shall protect the hardware and software in particular against unauthorized access by employees or other third parties, viruses, Trojans and other malware.
weltfern provides maintenance services for interfaces only with regard to a separate agreement. As far as the customer orders services regarding the connection of third party software via this interface (e.g. consulting on development level), these services are to be remunerated separately according to expenditure.
weltfern is entitled to transfer the execution of the care services in whole or in part to third parties.
The customer is responsible for fulfilling the currently specified system requirements. weltfern is not obligated to provide maintenance services in the event of unauthorized changes or unauthorized adjustments to the software or hardware by the customer and / or their use contrary to the contract.
weltfern is obligated to investigate reproducible errors of the software reported by the customer and to give the customer hints to eliminate the consequences of the error. An error exists in particular if the software does not fulfill a function specified in its performance description or does not fulfill it correctly or does not behave in a functionally correct manner in any other way.
In case of significant errors in the software, weltfern is obliged to eliminate the error in one of the following updates. Major errors are those that cannot be eliminated within a period of 56 working hours.
Other errors are to be corrected only if this is possible with economically reasonable effort. This is not the case if a reprogramming of essential parts of the program is required.
weltfern undertakes to inform the customer or the customer's personnel once about the type and scope of the work performed. weltfern will inform the customer about planned updates reasonable time in advance. The same applies if a planned update is not possible on the used hardware.
Software maintenance is carried out by qualified personnel who are familiar with the designated programs. The tools suitable for the efficient execution of the maintenance work and corresponding to the state of the art (test programs, test data, debugging programs etc.) are provided by weltfern.
The employees of weltfern do not enter into an employment relationship with the customer. The customer will give instructions exclusively to the responsible employee named by weltfern with effect for and against weltfern.
For the maintenance of the provided software, weltfern will regularly transmit the latest program version and install it, if necessary. Only this program version will then be maintained. In the same way weltfern has to adapt the corresponding documentation. On explicit request of the customer older program versions can be continued.
Not covered by the contract are additional services (e.g. installation of the software, individual adjustments requested by the customer, change of hardware or operating system of the customer). These will be carried out by weltfern on request of the customer against separate payment. The calculation is based on weltfern's hourly rates valid at the time of execution.
weltfern is only obligated to provide maintenance services with regard to the most current software version provided to the customer - unless otherwise agreed. Preliminary versions of weltfern ("beta releases") are still under development. weltfern is not obligated to provide maintenance services for beta releases.
The customer is obliged to consult the relevant sections of the documentation before using care services.
The customer is responsible for the creation and archiving of a continuous data backup of his data files created with weltfern according to the respective recognized rules of technology.
Prerequisite for the provision of maintenance services by weltfern is that the problem description of the customer allows the reproducibility of the problem and that the same occurs in the latest program version provided to the customer.
weltfern will receive all documents, information and data required for a problem analysis from the customer immediately upon request. If the customer violates his obligation to cooperate, weltfern is not obligated to provide the service.
Furthermore, for a proper problem analysis it is necessary that the customer ensures that the respective employee of weltfern is granted proper remote data access to the affected workstation as well as access to server computers, if applicable. Remote accesses are recorded by weltfern for the purpose of quality assurance as well as problem analysis and traceability.
The above performance requirements represent essential contractual obligations of the customer. If the customer violates his obligations to cooperate in this regard, weltfern is not obligated to perform.
weltfern grants the customer the right to use the latest software version released for its configuration, including associated updates of the database software, to the extent to which the customer was entitled to use the original version under the respective contract concluded. Unless otherwise agreed, the customer acquires a simple, permanent right of use in the case of a software purchase or individual software creation and a simple, time-limited right of use in the case of a software lease or license agreement. The right of use refers exclusively to updates and does not include new development.
The transfer of the new program version takes place exclusively by remote data transmission by weltfern making the new program version available on a server. weltfern is not obligated to make new program versions available in any other way.
As far as weltfern advises the customer in case of software errors, carries out an error diagnosis or removes errors, weltfern owes the customer a best effort effort. weltfern will first analyze the reported software error. If the detected error can be eliminated by the customer himself, weltfern will advise the customer within the scope of the support.
weltfern will make every effort to inform the customer whether and if so, how and until when the error can be eliminated or the customer can bypass the malfunction.
If the services for troubleshooting or attempted troubleshooting are caused by circumstances for which weltfern is not responsible - in particular if the software error reported by the customer is not due to an error by weltfern - these services are not compensated with the remuneration agreed in the maintenance contract, but will be charged separately according to expenditure.
For the provision of care services, the customer pays the care fee specified in the care contract plus the legally applicable value added tax in the amount of currently 19%.
The care fee is due for payment without deduction after the corresponding invoice has been issued. If no other terms of payment have been contractually agreed, all payments are due 14 days after invoicing without any deductions. If the payment dates are exceeded, weltfern is entitled to interest on arrears in the amount of 2% - above the reference interest rate of the European Central Bank in accordance with the Discount Rate Transition Act - without further reminder. The right to claim further damages remains unaffected.
The maintenance fee increases due to an extension of the software scope, in particular due to the purchase or addition of further software components. The increase is calculated pro rata from the time the software is made available. In the event that a reduction in the scope of the software or the maintenance service is agreed, the maintenance fee shall only be taken into account in the contract year following the reduction.
If the removal of individual customization programming formerly made for the customer is agreed upon to reduce the maintenance fee, weltfern is entitled to compensation for the effort required for this. If weltfern decides to include individual customization programming in the standard, the maintenance fee will be reduced proportionally from the next contract year.
weltfern can adjust the contractually agreed care fees to the general price development. A change can be made at the earliest after the end of the first contract year and also only once per contract year. If the increase of the care fee is more than 10%, the customer can terminate the care contract within one month after receipt of the adjustment notice, on which the increase of the care fees should take effect.
In case of default of payment by the customer weltfern is entitled to suspend all maintenance services until the customer has made all due payments to weltfern. The exercise of the aforementioned right of retention does not release the customer - not even proportionally - from the payment of the maintenance fee.
The customer has no right of set-off or retention, unless the respective claim has either been legally established by the customer or has been acknowledged by weltfern.
The Maintenance Agreement shall commence on the date specified therein and shall supersede all previous Software Maintenance Agreements entered into between the Parties.
Unless otherwise agreed, the minimum term of the maintenance agreement is initially one year after conclusion, or six months in the case of software rental. The term of the contract shall thereafter be automatically extended by a further year in each case unless one of the parties has previously terminated the contract with three months' notice to the end of the minimum term or an extension period.
For partial terminations of additional services agreed in the maintenance contract which go beyond the scope of the maintenance services in the standard maintenance contract, as well as for a reduction in the scope of the software, the above contract terms and notice periods shall apply accordingly.
The contract may be terminated by ordinary notice in text form pursuant to § 126 b BGB.
Termination of the contract without notice by the client is only possible with good cause. Good cause shall be deemed to exist in particular if
a. the Contractor repeatedly exceeds the contractually guaranteed time for remedying the defect to an increased extent,
b. if insolvency proceedings are opened against the assets of the other party or are rejected for lack of assets,
c. if the terminating party cannot reasonably be expected to continue the contract, taking into account all circumstances of the individual case and weighing the interests of both parties to the contract.
The right of both parties to extraordinary termination for good cause shall remain unaffected by the above provisions.
In cases of strike, lockout, force majeure and similar circumstances for which weltfern is not responsible and which make the provision of services significantly more difficult or temporarily impossible, agreed performance periods and dates are automatically extended by a reasonable period.
In case of delay of the service for reasons for which weltfern is responsible, the customer is entitled to terminate the software maintenance contract if weltfern has previously set an appropriate grace period in writing and at the same time threatened the refusal to accept the service. The termination has to be made by registered mail if weltfern does not provide the services owed within the grace period.
The warranty for weltfern (including any hardware supplied) shall be governed by the provisions of the purchase or rental agreement and the GTC Software Creation or the respective product GTC. The maintenance services owed according to the maintenance contract are in addition to the warranty claims of the customer.
As far as weltfern owes the creation or adaptation of software, advice and support in case of software errors or the delivery of updates according to this contract, the warranty period is one year from the provision of the respective software to the customer for electronic download via the Internet. Excluded are claims for damages to which the GTC Software Production applies.
Only the last update provided to the customer is subject to warranty.
weltfern and the customer shall maintain secrecy about all business and operational matters that become known to them and shall treat all information in connection with the fulfillment of this contract as strictly confidential, even after its expiration. The same applies to personal data that fall under the provisions of data protection laws.
weltfern agrees not to collect, store, reproduce or otherwise use or exploit any information, documents or data in any form other than for maintenance purposes. After expiration of this contract all collected or stored data will be deleted. Excepted are legal regulations which allow, require or oblige the storage of the data.
weltfern undertakes not to exploit or disclose to third parties any business and trade secrets as well as confidential information of the client and its principals which have become known to it during its activities for the client without the prior consent of the client. The same applies to transferred documents and knowledge communicated in writing or verbally.
Furthermore, the contracting parties agree to maintain confidentiality regarding the content of this contract and the knowledge gained during its execution.
The obligation to maintain secrecy shall also apply beyond the termination of the contractual relationship.
The customer receives a simple, non-transferable right of use to the contractual objects that weltfern provides to him within the scope of his maintenance obligations according to this contract (e.g. updates).
If the customer uses contractual objects that are to replace earlier ones, the right of use to the replaced contractual object shall expire.
All amendments or additions to this contract must be made in writing to be effective. Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, that provision shall apply which the parties would have agreed upon in good faith according to the originally intended purpose from an economic point of view. The same shall apply in the event of a loophole in the contract.
In the event that individual provisions of this agreement are or become invalid in whole or in part, or in the event that this agreement contains unintended loopholes, the validity of the remaining provisions of this agreement shall not be affected thereby. The invalid provision shall be replaced by such valid provision as the parties would have agreed, taking into account the purpose of this Agreement, if they had been aware of the invalidity or the absence of the provision in question when concluding this Agreement.
There are no verbal ancillary agreements. Amendments or supplements to this contract. Amendments must be made in text form to be effective, and this requirement cannot be waived verbally.
This contract shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The place of jurisdiction for disputes arising from this contract is Hamburg.