General terms and conditions

Transcription

1 General terms and conditions for software maintenance and support,, Am (hereinafter called RIT ) 1 Basis of contract ( RIT ) shall perform support services ( services ) for the software acquired by the customer exclusively on the basis of the present general terms and conditions ( GTC ). They shall prevail over any conflicting terms and conditions. A software support contract is concluded upon receipt of the customer s order in accordance with RIT s offer including the present GTC. 2 Scope of services Services include software maintenance and software support. 2.1 Software maintenance (upgrades/updates/service packs) Software maintenance will be provided only for the current main release (2.0, 3.0, etc.) of the software in accordance with the following provisions. Software maintenance includes the provision of upgrades, updates and service packs. The customer shall receive upgrades, updates and service packs for the existing software as generally provided to customers with a support contract. RIT reserves the right to develop no upgrades, updates or service packs for the existing software of parts of it. Furthermore, RIT reserves the right to modify certain functions, features or components of the existing software for upgrades, updates and service packs or if certain functions are not required anymore or are replaced by equivalent ones to remove them as a whole or in part. > Upgrades are periodically updated main releases (e.g. version 4.0, 5.0, etc.). > Updates are made periodically to a certain main release (e.g. version 2.1, 2.2, etc.). > Service packs (patches) are regularly released software versions providing individual solutions to problems. Upgraded or updated software may provide an enhancement of the scope of services or the correction of application errors. New products which are sold, licensed or delivered separately are not required to be updated or upgraded by RIT. The customer shall receive one copy of each upgraded or updated software and accompanying documentation in accordance with the licence agreement concluded between the customer and RIT. Further copies may either be purchased or downloaded from the server of. The sole responsibility for the installation lies within the customer, who has to bear the total costs for installation. 2.2 Software support The customer shall be assisted in applying the software acquired ( support ) in accordance with one of the support levels stipulated in 4. Support services will be carried out at the place where the software is installed only if RIT regards it as necessary. On-site support will be charged separately in accordance with the provisions stipulated in 5. Support services will be provided exclusively for the current main release of the software (2.0, 3.0, etc.). Support services will be provided by RIT at the following business hours: Monday to Friday from 9:00 a.m. to 6:00 p.m. CET, Austrian national holidays excluded. Advice and professional assistance for software installation and adaptation are not part of RIT s support to the customer. 3 Support levels 3.1 First level support (customer s help desk) The customer is advised to establish a help desk in his/her company. The main responsibility of this help desk is to provide support if software problems or questions about software application or administration arise within the customer s company. The customer is responsible for the employment of qualified and specifically trained personnel and has to bear the total costs for establishing the company s help desk. The customer s help desk shall try to solve any problem and answer any question arising among the users of the software. Problems and questions the customer s help desk is not able to solve or answer are to be passed on to second level support. The professional training of the customer s help desk team is not covered by this support contract. Page 1 of 7

2 3.2 Second level support Second level support will be provided by RIT s support team or by third parties appointed by RIT. Second level support shall provide answers to any question about software application and solutions to any problem arising in connection with software administration which could not be answered or solved by the customer s help desk. The customer shall report to RIT any arising software problem via or, if necessary, via mail or fax ( defect report ). Such a defect report shall contain all the information RIT requires for reconstructing the defect on its own computer system. The defect report shall give detailed information about the respective problem, possible reasons and the measures the customer s help desk has taken in order to solve the problem. For this purpose, the customer shall use RIT s check lists if provided by RIT. The customer is obliged to make available to RIT also configuration files, core dumps and screen shots if requested. After having received a defect report, RIT shall inform the contact named by the customer about the receipt of the defect report and about possible solutions to problems within the reaction time in accordance with enclosure 2, usually via , sometimes via phone or fax. How to solve a problem is to be determined by RIT. If a problem is based on a software defect, the defect shall be rectified by RIT within a reasonable period of time, usually by providing the next update or service pack, unless the damage was caused by wilful destruction, by application errors or by the elements. In particularly urgent cases, RIT shall immediately provide the customer with a program resolving the problem (hot fix) if available. A significant restriction of the functionality of the software provided under a contract is regarded to be a defect. 3.3 Excluded services Services NOT covered by this support contract in particular include: > Advice outside support hours as quoted in clause 3.2; > Delivery, installation and replacement of equipment and peripheral devices and establishing the functionality of the computer system or software in case of an adjustment or change of location; > Services which become necessary due to changing user demands; > Any maintenance and support service regarding computer hardware; > Maintenance and support services for applications created by the customer or a third party. The customer is explicitly made aware of the fact that support services which are necessary due to modifications made to the software provided under a contract by the client or a third party will not be provided under this contract, in particular if software or hardware components were installed or the computer system was modified by the customer or a third party. 4 Prices and payment conditions 4.1 For services performed under a software support contract 19% of the current licence fees at the invoice date plus VAT will be charged to the customer s account ( payment for support ). Payment for support is due in advance for the entire calendar year upon invoicing; the first payment is due after the conclusion of a contract. RIT is entitled to adjust prices for support to the current licence fees for the software covered by the support contract or framework agreement at the beginning of each contract extension period. 4.2 RIT shall report any increase of prices to the customer in writing at least two months before the new prices come into effect, either via fax or via . If the customer does not agree with the increase of prices, he/she is entitled to cancel the contract within a period of one month after having received the information. In this case, the contract will be terminated at the date of the prospective price increase coming into effect. 4.3 On-site support and services as stipulated in clause 4.3 will be charged separately in accordance with the current price list; travel costs and other expenses will be charged according to RIT s actual costs and expenses. Invoices fall due within 14 days after the invoice date. 5 Commercial property rights Commercial property rights, copyrights, rights of use 5.1 Software and any other material, in particular documentations, created under this contract in the course of service performance by RIT or in collaboration with RIT will be produced for RIT by RIT s employees or agents in performing their tasks as instructed by RIT. Unless otherwise agreed in this contract, RIT is entitled to all commercial property rights, copyrights and rights of use to this software and material. Page 2 of 7

3 5.2 RIT hereby grants the customer a non-exclusive, perpetual and locally unrestricted right to use the software and accompanying documentation produced under this contract during service performance in accordance with the provisions stipulated in the licence agreement on the basis of which the customer acquired the software. The customer is entitled to make copies of this software insofar as this is necessary for loading, displaying, running, transferring or saving the software ( authorised use ). The customer is obliged to use the software only in accordance with the contractual provisions regarding to authorised use; therefore, the customer shall neither directly nor indirectly translate, adapt, rearrange or modify the software provided under a contract, or parts of it; the customer shall not correct, disassemble or decompile the software or employ reverse engineering techniques, unless a) this is essential for obtaining information which could enable interoperability with independently developed computer programs, and b) RIT has not provided the customer with the required information within a reasonable period of time despite the customer s request in writing. Information obtained this way shall not be used for purposes other than the establishment of interoperability and shall not be passed on to third parties unless this is essential for producing interoperability. 6 Customer s duty to cooperate 6.1 The customer is obliged to assist RIT in performing services and to make available to RIT information and material necessary or useful for service performance without being asked for as well as software and hardware on RIT s request or, if the requirement or usefulness for service performance is obvious to the customer, without being asked for. The customer is made aware of the fact that the fulfilment of the customer s duty to cooperate is an indispensable precondition for successful, quick and faultless service performance. 6.2 The customer is obliged to take adequate data backup measures. The sole responsibility for taking adequate backup measures in accordance with legal provisions and for making backup copies lies within the customer. The customer is obliged to give immediate notice to RIT in writing, either via or via fax, in case he/she doubts whether backup measures or backup copies are adequate and in accordance with legal provisions. Unless otherwise agreed in writing, RIT s contractual obligations do not include the provision of data backup measures and backup copies. 6.3 During required test runs, the customer shall either be present in person or shall be represented by competent employees who are authorised to decide about defects, expansions or restrictions of functions or changes to the computer system or to the software. If necessary, any other work on the computer system shall be interrupted during service performance. The customer shall make available to RIT computers and material (such as floppy disks, toner, paper, tapes, CDs, etc.) free of charge. If necessary, passwords and documentations for hardware and software are to be provided by the customer. 7 Requirement to give notice of defects / Warranty 7.1 The customer is obliged to check immediately whether the software and accompanying documentation produced or delivered by RIT in the course of service performance is complete, free of defects and fully operative. Defects detected or detectable during adequate inspection are to be reported to RIT in writing within a period of ten days after having received the software or documentation, either via or via fax, giving detailed and comprehensible information about the respective defect ( notice of defect ). Defects which could not be detected during adequate inspection are to be reported to RIT within a period of ten days after detection. Unless a notice of defect is given in due form and time, the software or documentation shall be deemed to have been accepted. As a consequence, RIT will not assume warranty for defects. Obvious defects are to be reported to RIT within a period of ten days after having received the software or documentation, otherwise RIT will not assume warranty. 7.2 RIT is entitled to perform warranty services by rectifying the defect or delivering a product which is free of defects. The customer has to accept several attempts to rectify defects unless he/she can prove to RIT the unacceptability in each individual case. RIT is also entitled to rectify defects by delivering an upgrade, update or service pack. The customer is entitled to rescind the contract or to demand a reduction of payment if RIT finally fails to rectify defects or to deliver a product which is free of defects within due time. 7.3 RIT will not assume warranty for defects if modifications were made to the software by the customer or third parties without RIT s prior written consent unless the customer can prove that these modifications are not responsible for the respective defect. Any claim of damages arising from the loss of data shall be excluded in the event that the respective damage would not have happened if the customer had taken adequate data backup measures. 7.4 In the event that RIT rectifies a defect or delivers a product which is free of defects after having received the customer s notice of defect, RIT is entitled to charge the services to the customer s account in accordance with clause 5.3 if no defect can be detected. 7.5 If new warranty claims arise due to deliveries under this contract, the warranty period shall be one year following the statutory beginning of the warranty period. 8 Right of retention The customer is entitled to exercise his/her right of retention or to offset claims against own counterclaims only if such counterclaims are not disputed or are legally laid down. Page 3 of 7

4 9 Limitation of liability 9.1 RIT is liable for damages only insofar as intent or gross negligence can be proven. Furthermore, RIT is liable for damages arising from failure to perform significant contractual obligations on the part of RIT, limited to an amount usually and reasonably predictable for the compensation of such damages. 9.2 This limitation of liability shall be valid for any claim of damages, for whatever legal reason, in particular with regard to claims for damages arising from a violation of preliminary agreements or from a positive breach of contract. Unless intent or gross negligence can be proven, RIT s liability is limited to the sum covered by public liability insurance. The limit of liability is EUR 1,000,000.- for personal and material damages and EUR 400,000.- for property damage. RIT will grant the customer access to the public liability insurance police if demanded by the customer. RIT shall maintain public liability insurance with the limits quoted above for the entire contractual period. 9.3 THE LIMITS OF LIABILITY QUOTED ABOVE, HOWEVER, SHALL NOT RESTRICT ANY CLAIM ARISING FROM A VIOLATION OF PRODUCT LIABILITY LAW. THEY SHALL HAVE NO EFFECT ON THE LIABILITY FOR DAMAGES RESULTING FROM PERSONAL INJURY CAUSED BY NEGLIGENT FAILURE TO PERFORM OBLIGATIONS ON THE PART OF RIT OR BY INTENT OR NEGLIGENT FAILURE TO PERFORM OBLIGATIONS ON THE PART OF RIT S AGENTS OR REPRESENTATIVES. LIABILITY FOR WARRANTED CHARACTERISTICS SHALL NOT BE LIMITED IF THE SPECIFIC CHARACTERISTIC SHOULD HAVE PROTECTED THE CUSTOMER FROM THE DAMAGE SUFFERED. 10 Term of contract and cancellation 10.1 This software support contract comes into effect at the date of delivery and shall be valid for the term determined in the offer. If the offer does not determine any period of time, the term shall expire at the end of the calendar year following the conclusion of the contract. The contract will be renewed automatically for a period of one year unless cancelled by one of the parties with a period of notice of three months prior to the expiration of the term In case of price increases, the contract may be cancelled in accordance with 5.2. Furthermore, both parties are entitled to cancel the contract for significant reasons. A significant reason for RIT to rescind the contract may be the fact that the customer falls behind with the payment for support in accordance with this contract more than 30 days, or the customer is not authorised to use the software covered by the support contract, or parts of it. In order to be effective, the cancellation requires written form. 11 Final provisions 11.1 Framework agreement Unless otherwise agreed in writing, the provisions of this software support contract shall be valid also for any future delivery of software to the customer; this shall be valid in particular for upgrades, updates and service packs of the software (framework agreement). The software which is subject to the provisions of this software support contract is determined in the support certificate which becomes part of the contract in its current version as enclosure 1 in accordance with clause Changes to the GTC / GTC on the Internet The current version of RIT s GTC is available for download and printout on the website of RIT. RIT is entitled to make changes to the present GTC and shall report any change to the customer in writing. Changes are deemed to have been accepted unless the customer objects to them in writing within a period of one month, either via fax or via . This legal consequence will be pointed out the customer in RIT s notice about prospective changes. Decisive for determining the period of notice of the customer s objection is the date of receipt by RIT Prevailing law / court of jurisdiction / place of fulfilment The present general terms and conditions shall be governed by the substantive law of the Republic of Austria. The UN Convention on Contracts for the International Sale of Goods (CISG) from 11 April 1980 in their current version and other regulations under the international law of contracts are expressly excluded. If the customer is a business person, a legal entity under public law or a special fund under public law, court of jurisdiction for all disputes arising from, or in connection with, this contract is Vienna. Place of fulfilment is Vienna Written form Changes and supplementary agreements to this contract are binding only if agreed upon in writing via fax or , except for updated versions of the support certificate (enclosure 1) in accordance with clause 2.1 of the present GTC. The waiver of the requirement for the written form also requires an agreement in writing. Page 4 of 7

5 11.5 Enclosures Enclosures are significant elements of this contract. The following enclosures are attached to this contract: - Enclosure 1: support certificate (updated at regular intervals) - Enclosure 2: Escalation policy / Terminology - Enclosure 3: Priority matrix 11.6 Severability clause In the event that any portion of the present general terms and conditions shall be held invalid, all remaining provision shall remain in full force and effect. The same shall apply if loopholes are found. In this case, the parties are obliged to replace the invalid provision, or to fill a loophole, with a valid one which comes as close as possible to the economic and legal purpose the contracting parties wish to obtain. Page 5 of 7

6 Enclosure 1 Escalation policy Priority 1: System crash RIT s system crashes in a production environment which results in a complete loss of production capacity. This type of problem has a sustained impact on the achievement of business goals and requires quick reaction and solution. Examples of system crashes include irreversible server crashes or crashes of one of RIT s system components. Priority 2: Failure of a main feature One of the main features of RIT s system does not work. This type of problem also requires quick reaction and solution. Examples of failures of a main feature include crashes of RIT s system during use or the return of an incorrect result of an API function of RIT. Priority 3: Feature does not operate in accordance with documentation One of the features of RIT s software does not operate as described in RIT s documentation. Productivity is not restricted but RIT s software does not operate in accordance with the specifications and a solution is required. Priority 4: General questions This type of problem is a general one which includes questions about the operation of RIT s software in a production environment or in a development environment. Usually questions of this kind are answered immediately. Priority 5: Expansion of functions Consumer requests for an expansion of functions are also handled by RIT s support team. Terminology Notice Notice refers to RIT s support team contacting the customer via or phone. First reaction First reaction refers to RIT s support team contacting the customer via or phone in order to obtain more information about the support case and determine further measures which may enable RIT to reconstruct the problem. Qualified reaction A satisfactory answer or solution to the respective problem will be provided. Frequency of status reports This refers to the frequency of RIT s support team informing the customer about the status of his/her support cases. Upon mutual agreement between the customer and RIT, this frequency may be increased. Temporary solution Temporary solution refers to the act of resolving the respective problem by means of a workaround, patch or any other design approach. A temporary solution may reduce the priority of a problem by one degree. Release Releases are regularly planned software versions which provide problem solutions and new functions. Service pack (patch) Service packs are software versions released at regular intervals which provide problem solutions. Hot fix (immediately) Hot fix refers to the immediate provision of the solution to a problem due to its urgency. Page 6 of 7

7 Enclosure 2 Reaction matrix of RIT s software support Priority Notice First reaction Qualified reaction Frequency of status reports Temporary solution Permanent solution 1 immediately 2 hours 24 hours once a day 2 days hot fix 2 2 hours 8 hours 7 days every 3 days 14 days service pack 3 4 hours 12 hours 14 days once a week no details service pack, next upgrade or update, release to be decided by RIT 4 6 hours 12 hours maximum of 14 days, duration depending on the kind of request no details no details no details 5 8 hours 24 hours no details no details no details next update, release or no details to be decided by RIT Services will be performed only during the business hours of RIT s support team. Page 7 of 7