Last updated 09/2011
§ 1 Validity of the Terms and Conditions for Servicing, Maintenance and Support Services for aurenz GmbH
(1) Our Terms and Conditions for Servicing, Maintenance and Support Services (hereinafter referred to as “Services” for short) shall apply exclusively; we shall not recognise any of the customer’s terms and conditions which may differ from or contradict our Terms and Conditions for Services, unless we have explicitly confirmed their validity in writing. Our Terms and Conditions for Services shall also apply without reservation if we carry out services to the customer in the knowledge that the customer’s terms and conditions conflict with or differ from our General Terms and Conditions for Services.
(2) Our Terms and Conditions for Services shall only apply to businesses as defined by section 310 (1) of the German Civil Code (BGB)
§ 2 Quotes
(1) All of aurenz’s quotes shall be non-binding, unless otherwise explicitly stated in the quote.
(2) aurenz's sales staff are not authorised to make verbal agreements or provide assurances that go beyond the content of the written contract.
§ 3 Terms and conditions of payment and prices
(1) The customer shall pay for aurenz’s services by means of an ongoing annual fee specified in aurenz’s quote, plus VAT at the current rate. If no fee is specified in aurenz's quote, the amount owed by the customer shall be determined according to the aurenz’s price lists at the time of the quote. Unless otherwise agreed in aurenz's quote, the fee shall be payable one contract year in advance, once an invoice has been received. Unless otherwise specifically agreed, invoices shall be due for payment to the account specified in the invoice within thirty days of receipt. The date the payment is received by aurenz shall determine whether the thirty day deadline has been met. A warranty holdback shall be excluded.
(2) If the customer commissions services from aurenz that exceed the scope of services listed in aurenz's quote, the additional services provided will be invoiced by aurenz using the price list in force at the time the services are provided.
(3) aurenz shall be entitled to increase the payment for the first time at the end of the first year of the contract, and no more than once a year, having given three months’ notice to the end of the month, in order to adjust for internal rises in costs caused by increases in material, staffing or third-party costs. If the annual fee increases by more than 5%, the customer shall be entitled to terminate the contract for good cause within six weeks of receipt of the request for an increase with effect from the time the increase comes into force.
(4) The customer shall only be permitted to offset claims against other payments if its counterclaims have been upheld by a court of law, are not disputed, or have been acknowledged by aurenz. The customer shall only be entitled to assert a right of retention for counterclaims from this contract.
(5) The customer shall reimburse aurenz for the costs incurred for every unpaid or returned direct debit order if the customer is responsible for aurenz incurring these costs.
§ 4 Dates and deadlines
(1) Dates and deadlines shall not be binding, unless they have been specifically agreed in writing.
(2) If the customer fails to accept the services or culpably breaches other duties to co-operate, aurenz shall be entitled to demand compensation for any losses incurred, including any additional expenditure. Other claims and rights shall remain reserved.
§ 5 Duration of the agreement
(1) Unless otherwise specified in aurenz's quote, the service agreement shall be valid for one year starting from the date specified in aurenz's quote. If no contract start date is specified in aurenz’s quote, the service agreement shall begin on the day after the software in the service agreement has been successfully installed in the customer’s computer system, unless otherwise agreed in writing. The contract shall be extended for a further year if it is not terminated by one of the parties with three months’ notice up to the end of the contract period.
(2) If the licence is extended to allow for more users after the service agreement has been concluded or if the customer uses a central system, the service agreement will not start again, but will continue unchanged.
(3) The right to termination for good cause shall remain unaffected. aurenz deems good cause to include, for example, the customer’s unjustified refusal to pay, or late payment exceeding one month on the part of the customer.
(4) Termination must be made in writing in order to be valid.
§ 6 Scope of the service agreement
(1) The object of the service agreement is to undertake services to maintain the functionality and operational readiness of the software produced by aurenz and specified in aurenz’s quote and, if there exists a maintenance contract, also to provide software updates and upgrades for aurenz’s software that forms the basis of the maintenance contract. The scope of services is outlined in aurenz’s quote.
(2) If aurenz is required to provide telephone hotline support under the terms of the scope of services described in aurenz's quote, unless otherwise agreed in writing, aurenz shall provide a telephone hotline for the customer in German during aurenz’s usual business hours (Monday to Friday, 8 am to 4 pm) on +49 (0) 7021 7388833. The scope of services for which the customer can use the hotline in each year of the contract shall be based on aurenz's quote.
(3) Maintenance of computer hardware shall not be part of the service agreement.
(4) Inclusion of software not manufactured or sold by aurenz in the service agreement will require a separate written agreement between the parties.
(5) Unless otherwise stated in aurenz’s quote, aurenz’s services shall relate to the latest, valid, unmodified version of the software being maintained and used by the customer.
(6) If aurenz is due to provide software upgrades and updates after the agreement with the customer, these will be made exclusively through provision (delivery) of a data storage medium (usually a CD-ROM). When software upgrades and updates are provided, the previous version of the software will no longer be maintained.
(7) aurenz shall not provide on-site services. If the customer requests on-site services, the parties will reach a separate written agreement regarding payment for on-site services.
§ 7 Usage rights and carrying out the services
(1) Unless otherwise agreed, aurenz shall grant the customer the non-exclusive and non-transferable right to the performance outcomes provided to the customer by aurenz as part of the services provided, to use permanently for its own internal purposes within the framework of the uses agreed in the contract.
(2) The customer’s usage rights with regard to software updates and upgrades and other changes to the software being maintained (known collectively as the “new versions”) shall correspond to the usage rights granted to the customer by aurenz with regard to the software. With respect to the usage rights, the rights to the new versions shall replace the rights to the previous versions after a reasonable transition period, usually not more than two weeks.
(3) aurenz shall be entitled to provide the services by remote access.
§ 8 Liability
(1) aurenz shall be liable for claims for damages from the customer that are based on deliberate or gross negligence on the part of aurenz, including deliberate or gross negligence on the part of aurenz’s legal representatives and vicarious agents, in accordance with statutory provisions. aurenz shall also be liable in accordance with statutory provisions if aurenz culpably violates a material contractual obligation. A material contractual obligation shall exist if the breach of duty relates to a duty, the fulfilment of which the buyer has relied on and should be able to rely on.
(2) aurenz’s liability for damages in accordance with paragraph (1) shall be limited to damages that are typical of this type of contract and which could have been predicted at the time the contract was concluded on the basis of the circumstances known at that time. In any event, liability for damages shall be limited to five times the annual fee for the software service.
(3) In the event of a slightly negligent breach of duty, aurenz shall not be held liable, as long as this does not involve damages attributable to aurenz relating to injury to life, limb, health or to a material contractual obligation. In the event of a breach of a material contractual obligation, the limitation of liability in accordance with paragraph (2) shall apply accordingly.
(4) The customer shall be required to back up data and use the latest anti-virus software. Data backup must be carried out at intervals appropriate to the applications in question, usually once a day, to ensure that the data can be restored at a reasonable cost. The customer shall also be required to carry out an up-to-date data backup immediately before carrying out software maintenance work and before installing updates and upgrades. aurenz shall not be liable for any damage that may occur because of the lack of a usable data backup. aurenz’s liability in the event of data loss shall be limited to compensation for typical recovery costs that would have occurred even with regular precautionary data backups.
(5) aurenz’s liability for culpable injury to life, body or health shall remain unaffected. This shall also apply to compulsory liability under the German Product Liability Act.
(6) Further liability for damages as mentioned in paragraphs (1) to (5) above shall be excluded, irrespective of the legal nature of the claim asserted. This shall particularly apply to compensation claims arising from culpability when the contract was concluded, either because of other breaches of duty or because of tortious claims for compensation for property damage in accordance with section 823 BGB. The limitation in the two previous paragraphs shall also apply if the customer demands compensation for wasted expenses instead of compensation for a claim for damages in lieu of a service.
(7) Insofar as aurenz’s liability for damages is excluded or limited, this shall also apply to personal liability on the part of the aurenz’s employees, workforce, staff, legal representatives and vicarious agents
(8) Unless otherwise stipulated above, aurenz’s liability shall be excluded.
(9) The customer’s right to claim shall expire one year from the beginning of the statutory limitation period.
(10) If the services provided by aurenz’s quote include the provision of updates and upgrades, the provisions in sections 8 and 9 of the current version of aurenz’s General Terms and Conditions shall apply to the updates and upgrades with regard to liability.
(11) Services provided by aurenz under the warranty (such as the provision of patches, updates, releases, upgrades, etc.) shall not mean that the warranty period is extended or re-started.
§ 9 Obligations of the customer
(1) The customer shall ensure that it provides aurenz with the complete, accurate documentation, information and data required for the services being provided, punctually and free of charge, unless aurenz is expected to do this. Unless informed otherwise, aurenz may assume that this documentation, information and data is complete and accurate.
(2) The customer shall notify aurenz immediately of any malfunctions within its area of responsibility and of their likely duration.
(3) The customer will record modifications to the software application environment and shall inform aurenz immediately in writing of any modifications. The customer shall not be entitled to modify, add to or exchange the object of the services agreement.
(4) The customer shall be required to support aurenz when needed and to create all of the conditions necessary within its sphere of operations for an order to be carried out properly. The customer shall take care of the necessary technical requirements for services delivered via remote connections. Unless otherwise agreed in writing, the customer shall bear the costs of communication, particularly the connection charges, and shall make transmission equipment available free of charge.
(5) In order to maximise efficiency, the customer shall be required to present as accurate and detailed a record as possible to aurenz. The customer must also answer all of aurenz’s questions regarding the malfunction as precisely as possible. It will only be if this requirement to cooperate on the part of the customer is observed that aurenz will be able to guarantee appropriate and timely provision of all support services.
(6) Please refer to section 8 paragraph (4) with regard to the customer’s duty to back up data daily and to install the latest antivirus protection.
(7) Unless otherwise agreed, the customer shall store all documentation, information and data provided by aurenz in such a way that the data can be restored in the event of damage or loss to data storage media.
§ 10 Force majeure
(1) aurenz shall not be liable for events of force majeure which make it difficult for it to provide contractual services and which temporarily hinder or prevent it from carrying out the contract properly. Force majeure shall include all circumstances beyond the control of the parties to the contract, such as natural disasters, government actions, decisions made by authorities, blockades, war and other military conflicts, mobilisation, civil unrest, terrorist attacks, strikes, lockouts and other work-related disturbances, seizures, embargoes or other serious, unpredictable circumstances for which the parties are not responsible and which occur after this contract is concluded.
(2) If either party is prevented from fulfilling its contractual obligations by force majeure, this shall not be deemed a breach of contract. The deadlines set out in the contract or on the basis of the contract will be extended appropriately in accordance with the duration of the impediment. The same shall apply if aurenz relies on advance deliveries from third parties that are delayed because of force majeure.
§ 11 Data processing, in accordance with section 11 of the German Federal Data Protection Act (BDSG)
If aurenz comes into contact with personal data held by the customer while providing the agreed services (while providing support services, for example) and aurenz collects, processes or uses the data on behalf of the customer, the customer shall be required, in accordance with section 11 BDSG, to first conclude a written data processing contract with aurenz, which must regulate the minimum contents prescribed in section 11 (2) BDSG.
§ 12 Confidentiality
aurenz and the customer shall mutually undertake to keep all of each other’s business and trade secrets confidential for an indefinite period and not to pass them on to third parties or to exploit them in any way. All information in any form received by the other party as a result of the business relationship may only be used by that other party within the scope of the purpose of the contract.
§ 13 Final provisions
(1) Unless agreed otherwise, aurenz’s registered office shall be the place of performance.
(2) The customer may only assign its rights arising from a business relationship with aurenz with aurenz’s written consent.
(3) If the customer is a businessperson, aurenz’s registered office shall be the place of jurisdiction. aurenz shall, however, also be entitled to sue the customer in the local court for its registered office.
(4) The laws of the Federal Republic of Germany shall apply.
(5) In the event that individual provisions of this contract with the customer, including these Terms and Conditions for Services, are or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. Instead, the invalid provisions shall be replaced by provisions that come closest in spirit to the intended purpose of the invalid provisions.