Maintenance terms and conditions
1. General provisions
1.1. These maintenance terms and conditions (“Maintenance Terms”) apply to One Data GmbH’s (“One Data”) maintenance-services framework agreement of towards you (the “Customer”). One Data has agreed with the Customer in a separate document between the parties (“Offer”), in accordance with the individually agreed terms and conditions, to maintain the software defined in the Offer (“Licensed Software”) and to support the Customer in their use of the Licensed Software in accordance with the conditions of these Maintenance Terms and the Offer including all attachments (the “Agreement”).
1.2. The Licensed Software is the sole property of One Data.
1.3. The Customer may assert a claim for performance only if the agreed fee has been paid in full in advance in accordance with the provisions of this Agreement and the Offer.
2. Definitions
2.1. Upgrade: Defined as a new version with new features or significant changes to the user interface or to the backend of the Licensed Software. This is indicated by a change in the first digit. For example, by a change from 1.0 to 2.0.
2.2. Update: Defined as changes and enhancements to existing functionality. This is indicated by a change in the second digit. For example, by a change from 2.0 to 2.1.
2.3. Patch: Defined as issued code fixes or bug fixes. This is indicated by a change to the third digit. For example, by a change from 2.1.1 to 2.1.2.
3. Scope of services
3.1. Outside of the (contractual) defect warranty, One Data shall provide maintenance and support services for the Licensed Software at the Customer’s request in order to correct errors that occur while using the Licensed Software and/or become apparent in its documentation.
3.2. A defect exists if the Licensed Software does not function adequately so that its use is precluded or limited.
3.3. One Data shall provide the following services (“Customer Service”) in accordance with the terms of this Agreement:
3.3.1. Consulting and support services in connection with the functions of the Licensed Software;
3.3.2. Handling defects/errors that occur during proper use of the Licensed Software or that become apparent in the corresponding documentation;
3.3.3. Remedying errors in the Licensed Software (delivery of service releases).
3.4. For the purpose of this Agreement, error handling includes isolating the cause of the error, error diagnostics, and services for remedying the error (especially updates and patches). One Data assumes no responsibility for specific results. Services for handling errors can also be provided via interim solutions, delivery of updates or upgrades, at One Data’S discretion.
3.5. If, pursuant to this Agreement, One Data provides computer programs or other works that may be independently copyrighted, such computer programs, as well as the rights of use granted to the Customer for such programs, shall be subject to the One Data Framework Agreement on Software relevant to the software maintained.
3.6. Maintenance services are provided in a two-tier model. The details on the scope of the services can be found in Sections 4 and 5 below.
3.7. Customer service applies only to the Licensed Software installed at the installation locations, of which the Customer has notified One Data in writing. One Data must be notified in writing of any changes of installation location. One Data may refuse to provide its customer service for the Licensed Software installed at new installation locations only for good cause. Additional costs for the provision of services according to this Agreement, which arise due to the change of installation location, shall be borne by the Customer.
3.8. One Data is entitled to perform maintenance on the Customer’s system via remote access. The Customer must ensure that One Data’s access to personal data via remote access is excluded. If maintenance via remote access is not desired, the Customer is obligated to reimburse any costs pertaining to onsite maintenance.
3.9. One Data is entitled to use subcontractors at its discretion, provided that the respective subcontractor has signed a confidentiality agreement with One Data that ensures at least the same level of confidentiality as that of the confidentiality obligations under this Agreement.
3.10. Customer service does not include:
3.10.1. Services outside the agreed support availability times according to Annex 1 of this Agreement;
3.10.2. Services for the Licensed Software not used in accordance with the Terms of Use defined by One Data;
3.10.3. Services for the Licensed Software modified by programming not performed by One Data;
3.10.4. Services for infrastructure or computer programs or parts thereof that are not part of the Licensed Software;
3.10.5. Services for the Licensed Software if updates or troubleshooting measures provided by One Data have not been installed and if the error would have been remedied by such updates or patches;
3.10.6. Services for the Licensed Software in the case of a software version that is no longer generally supported by One Data;
3.10.7. Services that could have been performed onsite at One Data, but were performed elsewhere at the Customer’s request;
3.10.8. Services for the development of customized adaptations; and
3.10.9. Services required as a result of the Customer’s lack of cooperation.
4. First-level support
4.1. Support is provided as a two-tier model (“Support”) via a customer portal accessible at support.onedata.de (“Customer Portal”). The Customer Portal is the main communication channel for first-level support. Upon prior notification, the Customer will receive detailed information and documentation.
4.2. The portal may only be used by specially designated Support contact persons who must be notified to One Data in advance. First-level support takes care of all incoming problem messages from users and forwards them to second-level hotline support if necessary.
4.3. Support for onsite installation of the Licensed Software is provided.
4.4. The problem description is recorded in writing in first-level support. After review and assessment of the problem, a solution is developed and implemented.
4.5. In the case of resolvable problems, the remedy may take the form of a recommendation, user manual, remedial instructions or installation of an available update or patch by the Customer.
4.6. If the measures taken by first-level support do not lead to the desired remedying of the problem, second-level support is immediately called in.
4.7. The Customer will be notified of the problem’s status within a reasonable time by telephone, fax or email. Processing times depend on the degree of impairment specified in Section 6.2 below. Depending on the time required to resolve the problem, multiple customer notifications may be necessary. In all cases, the Customer will be notified when the problem is resolved. The results of the analysis, possible remedies or other solutions will be documented and communicated to the Customer. One Data may close a case if the Customer’s contact person has not responded to at least two written attempts by One Data (e.g. by email) to obtain supplemental information.
4.8. First-level support is available during the business hours set forth in Section 6.1 below.
5. Second-level support
5.1. One Data will provide second-level support for the Licensed Software only and subject to the turnaround times depending on the degree of impairment as set forth in Section 6.2 below.
5.2. All requirements defined in Sections 5.2.1 to 5.2.6 below must have been satisfied in first-level support for the transfer of operations to second-level support.
5.2.1. A solution to the problem was tried in first-level support but failed.
5.2.2. All required information was provided, in particular:
– Specifications of the Licensed Software used including all version numbers;
– Operating system;
– Log information;
– Detailed problem description.
5.2.3. The reported data is available in One Data’s incident-management tool (RedMine).
5.2.4. The Customer is notified about the case being forwarded to second-level support.
5.2.5. If a patch or update is necessary to fix a problem, a course of action pertaining to the patch or update will be developed with the Customer.
5.2.6. Communication with the Customer takes place via first-level support.
6. Customer-service availability
6.1. Customer service is provided at the following times: Monday through Friday 8:00 a.m. to 6:00 p.m., limited customer service on public holidays in Munich and Passau. All customer-service availability times are indicated in the time zone of One Data’s branches.
6.2. One Data gives priority to operations based on the respective degree of impairment according to the following criteria:
6.2.1. Level 1: Business-critical impact. The Customer’s use of the Licensed Software is interrupted or so severely limited that the Customer cannot reasonably continue work related to the Licensed Software, and no workaround exists. Response time: 4 business hours.
6.2.2. Level 2: Business-significant impact. Key features of the Licensed Software fail and there is no workaround. The Customer can continue to use the Licensed Software, but there is a significant performance degradation. Response time: 6 business hours.
6.2.3. Level 3: Limited business impact. Important functions of the Licensed Software fail, but a workaround exists. Or less important functions fail, but no workaround exists. The consequence for the Customer is only a loss of operational functionality. Response time: 2 business days.
6.2.4. Level 4: Very limited or no business impact. Information about the Licensed Software is required, but there is only limited impact on the operation of the Licensed Software. No immediate impact on business operations. Response time: 4 business days.
6.3. The One Data response times specified in Clause 6.2 above apply from receipt of a sufficiently detailed description of the error, including errors, affected product components and measures already taken. The response time refers to the period of time within which One Data begins its work. Outside of the customer-service availability times agreed in Appendix 1 of this Agreement, the response time is considered to be inhibited.
7. Cooperation and obligations of the parties
7.1. The parties agree that they shall cooperate closely and efficiently, for which the Customer’s staffing, organizational, professional and technical responsibilities are also essential, in particular:
7.1.1. Proper documentation, records and information necessary for the performance of the services, in particular concerning available facilities, equipment, computer programs and parts of computer programs that are to function with the services to be performed;
7.1.2. Provision of the necessary premises and materials;
7.1.3. Provision of test plans and test data as well as the preparation and provision of the test environment;
7.1.4. Documentation and immediate notification to One Data of any errors found during testing or live operation of services rendered in reproducible, or in any case, traceable form;
7.1.5. Making available (at their own expense) all facilities, equipment and appropriately qualified personnel needed for the collaboration, to the extent necessary to provide the service; and
7.1.6. The timely fulfillment of (collaboration) obligations, the timely execution of (collaboration) acts and the submission of declarations within the relevant deadlines.
7.2. The Customer must name at least one employee to One Data who is employed at the installation site of the Licensed Software as his/her contact person. The Customer undertakes to inform One Data immediately of any changes pertaining to said contact person. The contact person must have experience with using the Licensed Software. Only the contact person is authorized to submit error messages to One Data.
7.3. The Customer shall, to the extent possible, perform an analysis of the system environment prior to registering a failure to ensure that the failure is not caused by system components that are not subject to this Agreement.
7.4. The Customer agrees to immediately install updates provided by One Data or to take other measures for error correction.
7.5. The Customer undertakes to maintain continuous system management of the system environment on which the Software runs and to ensure support and maintenance of the Customer’s system environment (hardware and software).
7.6. The Customer is obligated to perform regular backups of his/her data with the care expected of a cautious businessperson. The Customer must, in particular before installations and/or access to his systems by One Data or by third parties commissioned by One Data, carry out a complete data backup and a full backup of all systems and application data. The data backup must be stored in such a way that the restoration of the backed up data is possible at any time.
7.7. The Customer must ensure that One Data is granted the right to use the systems of third parties, insofar as this is necessary for the provision of the services owed under this Agreement.
7.8. If the Customer fails to perform the actions for which he is responsible, One Data’s obligations, which cannot be fulfilled without such actions or whose fulfillment is only possible with disproportionately high additional costs, will be suspended for the duration of such delay. Additional costs caused by this will be reimbursed to One Data by the Customer in addition to the agreed fees based on the daily/hourly rates in effect at the time. A legal right of termination by One Data remains unaffected.
8. Rights to the work results
8.1. One Data grants the Customer, with regard to the maintenance and support of the Licensed Software, the right to use the work results of the contractual maintenance and support services as part of this Agreement.
8.2. One Data is entitled to freely dispose of ideas, procedures, concepts and other techniques that arise in the course of the execution of the contractual maintenance and that lead to work results according to section 8.1 above. The same shall apply to know-how and experience from the execution of the contractual maintenance services and the use of their results.
9. Remuneration
9.1. The remuneration owed by the customer to One Data for the services according to this Agreement are specified in the Offer. The remuneration is to be paid in advance on an annual basis. All prices are stated in Euro.
9.2. The remuneration shall automatically increase by the percentage of the German inflation rate in accordance with the annual publication of the Federal Statistical Office. This applies to the remuneration owed for the calendar year following the publication of the German inflation rate.
9.3. With the exception of Section 9.2 above, One Data is also entitled to change the remuneration after written notification with six weeks’ notice at the end of a contractual year. If the remuneration increases by more than ten percent compared to the remuneration of the preceding twelve months, the Customer may terminate the Agreement by giving four weeks’ written notice as of the effective date of the increase.
9.4. Services outside the agreed scope of customer service or outside the agreed subject matter of this Agreement shall be paid for separately by the Customer. One Data’s applicable rates shall apply for this purpose.
9.5. One Data will invoice the Customer for payment according to the payment schedule included in the Offer. Invoices are payable without deductions, as outlined in the Offer. If the Customer is in default of payment, interest will be charged on the outstanding amount at a rate of eight percent (8%) above the current base rate. Further rights remain unaffected by this.
9.6. All amounts stated in the offer are exclusive of applicable sales taxes, unless expressly stated otherwise. The current legal sales-tax rate will be invoiced and paid by the Customer in addition to all fees. One Data must show the price and the sales-tax amount separately on the invoice.
10. Claims in the event of defects in updates, upgrades and other improvements
10.1. If any updates, upgrades, other improvements or other purchased items are delivered to the Customer or work is delivered to or performed for the Customer pursuant to this Agreement, claims for defects with respect to the innovations contained therein that are not mere bug fixes are set forth in Sections 10.2 through 10.14 below.
10.2. The Licensed Software, its features, updates, upgrades and other improvements provided by One Data shall, during the term agreed to in the Offer and this Agreement, be substantially in accordance with the documentation and system environment actually provided and be usable in accordance with such documentation and system environment.
10.3. Rights in the event of defects in the Licensed Software or in updates, upgrades or other improvements are excluded in the case of minor or insignificant deviations from the agreed or assumed features as well as in case of slight impairment of use. Product descriptions shall only be deemed guaranteed if they have been agreed in writing. With regard to updates, upgrades and other improvements, the Customer’s rights in the event of defects are limited to the new features of the update, upgrade or new version compared to the previous published version.
10.4. Rights in the event of defects in the Licensed Software or defects in updates, upgrades or other improvements are excluded in the event of defects based on the following: (i) use of the Licensed Software in a hardware and/or software environment that does not meet the requirements of the Offer; or (ii) changes or modifications to the Licensed Software made by the Customer without having been authorized by law, this Agreement, or other prior written authorization from One Data to make such changes or modifications to the Licensed Software.
10.5. One Data does not warrant against defects, malfunctions or losses resulting from (i) the improper handling of the Licensed Software or the improper handling of updates, upgrades or other enhancements by the Customer, (ii) defects in the Customer’s system environment.
10.6. The Customer must immediately inspect the delivered Licensed Software as well as provided updates, upgrades and other improvements for transport or transfer damages and other obvious defects, keep appropriate proofs and assign recourse claims to One Data by handing over the documents. Otherwise, rights in the event of defects in the Licensed Software or defects in updates, upgrades and other improvements are excluded.
10.7. Defects must be promptly reported in writing. Such notice shall include a full description of the symptoms of the defect and the defects shall be evidenced to the maximum extent possible by written records, hard copies, or other documents demonstrating such defects. The notice of defect should permit reproduction of the defect. This does not affect the Customer’s legal obligation to inspect and report defects. The Customer shall use all reasonable efforts to search for and correct the defects. If One Data determines that One Data is not liable for the alleged defect in the Licensed Software, updates, upgrades, or other improvements because the defect is due to input errors or inappropriate use of the Licensed Software or inappropriate use of updates, upgrades, or other improvements, or to the hardware used, One Data shall be entitled to recover from the Customer a reasonable amount of money to cover the time and expenses of employees and data processors that were required to inspect the alleged defect.
10.8. If the Customer demands additional service during the term of this Agreement due to a defect, One Data is entitled to choose between remedying the defect, replacement delivery or replacement service. Remedying the defect can also take place via the delivery or installation of a new program version or an interim solution. If the defect is not remedied within a first deadline and the Customer has set One Data a reasonable second deadline without success, or if a reasonable number of attempts at remedy, replacement delivery or replacement performance remain unsuccessful, the Customer may, at his/her discretion, withdraw from this Agreement in accordance with the legal requirements or reduce the price and claim damages or reimbursement of costs. If the defect does not affect the functionality or does not affect it significantly, One Data is entitled, under exclusion of further rights in the event of defects, to remedy the defect by delivering a new version or an update as part of its version, update and upgrade planning.
10.9. The Customer’s rights in the event of defects under the provisions of Section 11 below shall be limited to 12 months and such period shall commence (i) on the date of delivery of the first copies of the Licensed Software, updates, upgrades or other improvements or (ii) when the Licensed Software, updates, upgrades or other improvements can be downloaded from the internet, by notification and release of the login data for the download area. The Customer shall not be entitled to any updates with respect to defects in the updates, upgrades or other improvements after the expiration of the foregoing period.
10.10. One Data may refuse to remedy defects or supply a replacement until the Customer has paid One Data the agreed remuneration, minus an amount corresponding to the economic value of the defect.
10.11. If third parties claim rights to the Licensed Software, updates, upgrades or other improvements and pursue such claims, One Data shall do everything in its power to defend the Licensed Software, updates, upgrades or other improvements at its own expense against the claimed rights of third parties. The Customer must promptly notify One Data in writing of any claim to such rights by third parties and shall provide One Data with all powers of attorney and authorizations necessary to defend the Licensed Software against the claimed rights of third parties.
10.12. In the event of defects in title, One Data has the right, at its discretion, to either (i) take lawful action to eliminate the rights of third parties that interfere with the contractual use of the Licensed Software, updates, upgrades or other improvements, or (ii) redress the enforcement of such claims, or (iii) modify or replace the Licensed Software, updates, upgrades or other improvements in a manner that no longer interferes with the rights of third parties, provided and to the extent that doing so does not interfere with the warranted functionality of the Licensed Software, updates, upgrades or other improvements.
10.13. If indemnification pursuant to Section 10.12 is not possible within a reasonable period of time, the Customer may, subject to the requirements of law, at his/her discretion, terminate this Agreement or reduce the price and recover damages.
11. Liability, damages
11.1. One Data is liable under this Agreement only in accordance with the terms set forth in Sections 11.1.1 through 11.1.5 of this Agreement:
11.1.1. One Data is liable without limitation for losses caused intentionally or by gross negligence by One Data, its legal representatives or senior executives, as well as for losses caused intentionally by other of its vicarious agents.
11.1.2. One Data is liable without limitation for death, injury or damage to health resulting from the intent or negligence of One Data, its legal representatives or agents.
11.1.3 One Data is liable up to the amount covered by the purpose of the warranty, which was foreseeable to One Data at the time the warranty was issued, for losses incurred as a result of the absence of warranted characteristics.
11.1.4. One Data is liable in the event of product liability according to German product-liability law.
11.1.5. One Data is liable for losses caused by the breach of cardinal obligations by One Data, its legal representatives or agents. Cardinal obligations include basic obligations that constitute the essence of this Agreement, that were decisive for the conclusion of this Agreement and on the fulfillment of which the customer relies. If One Data breaches its cardinal obligations through simple negligence, its liability is limited to the amount that could have been foreseen by One Data at the time of the provision of the relevant services.
11.2. One Data is liable for the loss of data only up to the amount of typical recovery costs that would have been incurred if proper and regular data backup measures had been taken.
11.3. The Customer is solely responsible for (i) verifying the results generated by using the Licensed Software, (ii) verifying the data he/she uses in the Licensed Software. The Customer indemnifies One Data against all claims for damages in connection with the use of the Licensed Software or the results generated thereby by the Customer.
11.4. Any more comprehensive liability on the part of One Data is excluded in principle. One Data is in particular not liable for initial defects if sections 11.1.1 to 11.1.5 above do not come into effect.
12. Security measures
The Customer must protect the Licensed Software and the login data from unauthorized access by third parties by means of appropriate security measures. In particular, all copies of the Licensed Software and the login data shall be kept in a safe place.
13. Confidentiality
One Data and the Customer undertake to ensure the protection of proprietary and/or confidential information (hereinafter “Confidential Information”) disclosed or made available between the parties under this Agreement.
13.1. Subject to the restrictions set out below in Section 13.3 of this Agreement, all information disclosed between the parties shall be treated as confidential. For the purposes of this Agreement, Confidential Information shall include, in particular, business, employee and customer data of the parties, products, manufacturing processes, know-how, trade secrets, business relationships, business strategies, business plans, financial planning, personnel matters, regardless of their form and the media on which they are stored.
13.2. The Parties undertake to, and mutually assure each other that they shall:
13.2.1. Treat Confidential Information confidentially and with reasonable care;
13.2.2. Use Confidential Information solely for the purposes for which it was contractually provided; and
13.2.3. Reproduce Confidential Information only to the extent necessary and in furtherance of the purposes set forth in this Agreement, and all such reproductions shall also be deemed Confidential Information.
13.3. For the purposes of Section 13.1 herein, Confidential Information shall not include any information the relevant party in receipt of such information can demonstrate:
13.3.1. It is generally known to the public at the time of disclosure or becomes generally known without malfeasance on the part of the party concerned;
13.3.2. It becomes known to the affected party through a disclosure from sources other than the other party or their affiliates and such other source is not subject to any duty of confidentiality, directly or indirectly, to the other party with respect to such information and is legally authorized to disclose such information;
13.3.3. The Confidential Information was obtained independently and without breach of any duty of confidentiality.
13.4. Either party may disclose Confidential Information if such party is required to make such disclosure under applicable law or governmental regulation, in which case the relevant party shall have given prior written notice to the other party and shall take reasonable and lawful steps to avoid the disclosure and/or minimize the extent of the disclosure.
13.5. Each party shall provide the Confidential Information to its employees or consultants only when consistent with the contractual purpose of this Agreement.
13.6. The Customer undertakes to keep confidential information pertaining in particular to the performance, design, functionality or functions of the software.
14. Term and termination
14.1. The Agreement is concluded for an indefinite period. Either party may terminate the Agreement at the end of a quarter of the calendar year by giving six weeks’ notice, but no earlier than the end of the quarter one year after the Agreement was concluded.
14.2. The right to terminate this Agreement for good reason remains unaffected. Good reason, which entitles One Data in particular to terminate the Agreement, exists if the Customer violates the rights of use granted by One Data by using the Licensed Software beyond the provisions of this Agreement and the Offer and does not remedy the violation within a reasonable period of time after a warning from One Data.
14.3. Termination of the Agreement must be in writing.
14.4. In the event of termination of the Agreement, the Customer shall cease use of the Licensed Software, remove all installed copies of the Licensed Software from his/her computers, and, if applicable, destroy or surrender to One Data copies of the Licensed Software made for security backup purposes, at One Data’s discretion.
15. Validity precedence
In the event of contradictions, the following documents shall have precedence in descending order of validity:
(a) The Offer;
(b) Any confidentiality agreement concluded between the Customer and us;
(c) These Maintenance Terms;
(d) The law.
16. Final provisions
16.1. This Agreement and the governing purchase order constitute the entire agreement and understanding between the parties and supersede all prior oral and written agreements, discussions and understandings between the parties relating to the subject matter herein, and neither party shall be bound by any terms and conditions, inducements or assurances except as expressly set forth in this Agreement. No modification of or amendment to this Agreement shall be effective unless made in writing. This also applies to any changes to this written form requirement. This clause shall not apply if an oral agreement is concluded between the parties after this Agreement has come into force.
16.2. The Customer is only entitled to transfer rights and obligations from or in connection with this Agreement to third parties with the prior written consent of One Data.
16.3. The Customer is only entitled to offset if the Customer’s counterclaim is recognized, undisputed or legally established. The Customer is only entitled to exercise rights of retention if such rights are based on the same contractual relationship.
16.4. This Agreement is subject to the laws of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980.
16.5. The location of One Data’s registered office is the exclusive place of execution and jurisdiction for all disputes arising from and in connection with this Agreement, provided that the Customer is a merchant within the meaning of the German Commercial Code or if the Customer does not have a registered office or a regular place of business in the Federal Republic of Germany at the beginning of the dispute.
16.6. If any provision of this Agreement is or becomes invalid, this shall not affect the validity of the remaining provisions. In this case, the parties are obliged to reach an agreement that is legally valid and comes closest economically to the intention of the invalid provision. The foregoing provision shall apply mutatis mutandis to filling any gaps in this Agreement.
16.7. The Customer’s general terms and conditions shall not apply even if one of the parties expressly refers to them.