Terms of Service
Terms of Service
General Terms and Conditions (hereinafter "GTC")
A. General provisions
1. Structure and scope
Simova provides different services to the customer depending on the contract: For example, Simova provides standard software produced by third parties or develops individual software solutions for its customers as part of project contracts. Software maintenance services can also be agreed if they are not already part of the services, as is the case with certain rental agreements.
The “General Provisions” contained in this Chapter A. apply to all contracts between Simova and the customer. Chapter B. regulates "Special provisions for rental contracts", Chapter C. "Special provisions for project contracts" and Chapter D. "Special provisions for software maintenance and optional services". Only the “General Provisions” apply to sales contracts.
2. Usage Rights
Unless otherwise agreed, Simova grants the customer a simple (non-exclusive), time-unlimited (in the case of rental, a time-limited), non-transferable and non-sublicensable right to use the software and the associated documentation, restricted to the licensed area business purposes to the extent specified in the contract. The source code is not the subject of the transfer of rights.
The documentation may also only be used for own business purposes, e.g. training and familiarization of employees, as well as for the purpose of migration to another software system. The customer must document who received copies of the documentation and where they are stored. Simova is entitled to inspect this documentation.
Property rights or other legal owner notices on data carriers and the user documentation must not be removed.
The customer is entitled to make a backup copy of the program. He must visibly affix the note "Backup copy" and a copyright notice from the manufacturer to the backup copy made. In addition, reproductions of the program are not permitted unless they are necessary for the contractually stipulated use.
The customer is obliged to inform Simova on request about the number, storage medium and storage location of the copies made. In the event that the software is protected by means of a license key, the customer will receive the license key during the term of the contract exclusively for the use of the software to the extent specified in the contract.
3. Employment of personnel and subcontractors
Simova is free to choose the people who are used to provide the services. The customer is not authorized to issue instructions, even if the services are provided on his premises.
Simova is entitled to have the contractually owed services provided by subcontractors. Upon written request from the customer, Simova will name the subcontractors used in the contractual relationship.
The customer has the right to request the replacement of a subcontractor if the assignment of this subcontractor means serious disadvantages for the customer, e.g. disclosure of information to a competitor. The customer bears the additional costs resulting from the exchange.
4. Customer Obligations
The customer is obliged to cooperate in the performance of the contract. The individual obligations incumbent on him result from Appendix 1 to these GTC.
The contractual services are remunerated in accordance with the current price list, unless otherwise agreed in writing.
As part of the software rental, the rent is payable monthly in advance. Software maintenance services are not charged separately as part of the software rental. The rent is due for the first time when the software is provided and then on the first day of each month.
In the context of project contracts, the remuneration is due at the latest at the time of project acceptance. If the parties have contractually determined remuneration for the individual accepted parts, the remuneration for each part must be paid upon its acceptance. If the parties have not determined remuneration for individual parts that have been accepted, Simova is entitled to demand an advance payment from the customer for each service rendered in accordance with the contract in the amount in which the customer has gained value through the service. The down payment cannot be refused due to minor defects.
In the context of software maintenance contracts, remuneration is to be paid for one calendar year in advance. It is due, if necessary pro rata, on the first working day of the month in which the contractually owed service is to be provided for the first time; thereafter on the first working day of each new calendar year.
Unless otherwise agreed, half of the travel time will be paid as working time.
Material costs, travel costs and expenses are shown separately in the amount actually incurred and reimbursed by the customer.
All prices are exclusive of the applicable statutory sales tax. The remuneration is to be paid within fourteen (14) days of the invoice date without deduction.
Simova reserves the right to increase the remuneration with a notice period of three months if the factors influencing the costs of the services change (e.g. personnel, material and work equipment costs). In the event of an increase, the customer is entitled to terminate the contract by giving one (1) month's notice to the end of the month before the increase in remuneration takes effect.
6. Material defect warranty
If the software has a defect that is not only insignificant, Simova will remedy the defect within a reasonable time, at Simova's option, by adapting the software or by delivering new software.
If neither the adjustment nor the new delivery will probably lead to the elimination of the error, Simova is entitled to eliminate the error by bypassing the error. As far as this is reasonable for the customer, it counts as supplementary performance.
The customer is only entitled to assert further statutory warranty rights, in particular to withdraw from the contract or to demand compensation, if the rectification of the same defect has failed at least twice. Claims for damages exist only in accordance with section 8 of this chapter.
The right to self-implementation according to § 637 BGB is excluded.
If it becomes apparent that a program disruption is not due to a defect for which Simova is responsible, the customer will remunerate Simova appropriately for the services provided.
The claims for defects do not extend to software that the customer or a third party changes without the consent of Simova, unless the customer can prove that this change was not the cause of the reported defect.
In addition, the claims for defects do not extend to software that the customer does not use in the agreed system environment, unless the customer can prove that this use was not the cause of the reported defect.
The customer's warranty claims for material defects become statute-barred after twelve (12) months from delivery of the software. Notwithstanding sentence 1, the warranty claims expire in the regular limitation period if Simova has fraudulently concealed the defect. This does not affect liability in accordance with Section 8 of this chapter.
7. Defects in title
If it is legally established that Simova's services violate the rights of third parties, Simova will acquire the necessary rights at its own expense. Alternatively, Simova is entitled, provided the functionalities agreed with the customer are not unreasonably impaired, to change the software so that the rights of third parties are no longer impaired.
Should third parties assert a violation of their rights against the customer, the customer will proactively support Simova in resolving these disputes both in and out of court. The process management is the sole responsibility of Simova, whereby the contractual partners will coordinate closely and support one another. In particular, the customer is not entitled, without Simova's prior consent, to conclude judicial or extrajudicial settlements or to take legal action that could affect the relationship between Simova and the customer. Simova's consent is not required if the above action is necessary to avoid serious disadvantages for the customer and Simova's prior consent cannot be obtained.
If Simova has acted culpably with regard to the infringement, Simova will indemnify the customer from such third-party claims. The limitation of liability according to number 8 of this chapter applies accordingly.
Simova has unlimited liability in the event of willful intent or gross negligence, for injury to life, limb or health, in accordance with the provisions of the Product Liability Act and to the extent of an assumed guarantee.
In the event of a slightly negligent breach of a contractual obligation, the amount of liability is limited to the damage typically foreseeable when the contract was concluded. The contractual partners assume that the contractually agreed remuneration, in the case of continuing obligations, the remuneration to be paid in half a year, corresponds to the amount of the damage typical for the contract.
There is no further liability. In particular, Simova is not liable for any legal violations by the customer in handling the software made available.
The above limitations of liability also apply to the personal liability of employees, representatives and organs of the parties.
9. Data protection
The contractual partners observe the relevant data protection regulations. If Simova processes the customer's personal data as part of the provision of services, the contractual partners will conclude a data processing contract in accordance with Section 11 of the Federal Data Protection Act (BDSG).
The contractual partners oblige their employees and the subcontractors they use to comply with data secrecy in accordance with Section 5 of the Federal Data Protection Act (BDSG), unless such an obligation already exists.
The contracting parties agree to keep confidential information confidential. "Confidential information" is the contract and its attachments as well as all information and documents of the other party that are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships and know-how.
Confidential information is excluded from this obligation,
which were verifiably already known to the recipient at the time the contract was concluded or subsequently become known from a third party, without a confidentiality agreement, statutory provisions or official orders
which are publicly known at the time the contract is concluded or are subsequently made public, unless this is based on a breach of this contract;
which must be disclosed due to legal obligations or by order of a court or an authority; As far as permissible and possible, the recipient obliged to disclose will inform the other contractual partner in advance and give him the opportunity to take action against the disclosure.
The contractual partners will only grant third parties access to confidential information if they are subject to professional secrecy or if they have previously been subject to these confidentiality obligations. Furthermore, the contractual partners will only disclose confidential information to those employees who they need to know for the execution of the contract and will also oblige these employees to maintain confidentiality for the period after their departure to the extent permitted by labor law.
11. Prohibition of assignment, offsetting
The customer is only entitled to assign claims against Simova to third parties with the written consent of Simova. Section 354a of the German Commercial Code remains unaffected.
The customer may only offset undisputed or legally established claims.
12. Applicable law, place of performance, place of jurisdiction
German law is applicable to the contract, excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention).
The place of fulfillment and exclusive place of jurisdiction is Dortmund.
B. Special provisions for rental agreements
1. Scope and subject of the contract
The object of a rental contract is the provision of standard software for the term of the contract together with the granting of the rights required for use in accordance with the contract and software maintenance services in accordance with Chapter D of these terms and conditions.
Installation and furnishing measures are not part of the rental agreement. However, they can be agreed as additional services against separate payment.
2. Warranty and Liability
As part of the software rental, Simova guarantees that the contractually agreed quality of the software will be maintained during the contract period.
Simova's no-fault liability for defects that already existed at the time the contract was concluded is excluded.
A termination by the customer in accordance with Section 543, Paragraph 2, Clause 1, No. 1 of the German Civil Code (BGB) due to failure to grant the contractual use is only permitted if Simova has been given sufficient opportunity to remedy the defect and this has failed. A failure to remedy the defect can only be assumed if it is impossible, if it is refused by Simova or is delayed in an unreasonable manner, if there are justified doubts about the chances of success or if the customer is unreasonable for other reasons.
In addition, the provisions of Chapter A. 6.-8. appropriate application.
3. Contract term and termination
The contract period is one year and begins when the contract is signed.
The contract period is automatically extended by a further year, unless the contract is terminated in writing three (3) months before the end of the contract period by a declaration to the other contractual partner.
Each contractual partner can extraordinarily terminate the contract without observing a notice period by means of a written declaration to the other contractual partner, provided that there is good cause. For Simova, there is good cause in particular if the customer repeatedly fails to make payments due, or if the customer applies to open insolvency proceedings
or the customer does not comply with the obligations under the contract.
C. Special provisions for project contracts
1. Scope and subject of the contract
The provisions of this section apply to the implementation of software projects, in particular the adaptation of standard software or the development and programming of individual software.
Software maintenance services after conclusion of the project contract can be agreed separately.
2. Provision of customization services
If agreed, Simova adapts the software to the customer's requirements. The scope of services owed by Simova results from the service description. The adaptation services to be provided by Simova are specified in the service description. The final service description, which has also been confirmed by the customer, finally defines the services to be provided by Simova.
The service description also specifies the dates by which Simova is expected to provide the respective partial services (“project plan”). Unless expressly agreed otherwise in writing, the dates specified are only non-binding service times for Simova. Simova is not obliged to provide the services owed before the respective service times.
If additionally agreed, Simova also creates project-specific documentation.
3. Change request
The contractual partners can suggest changes or additions to the scope of services agreed in the specification sheet ("Change Request").
Simova checks whether the change request can be technically carried out and informs the customer of the effects on the implementation of the project, in particular a postponement of the service times and an adjustment of the cost estimate in text form. If Simova makes the change request, Simova will provide the customer with the aforementioned information with the change request.
Unless otherwise agreed, the project will initially be accepted in parts. After completion of the overall project, the entire project is accepted. The acceptance process is as follows:
Simova shows the customer that individual functions can be accepted and makes them available to him. The customer then checks within two (2) weeks whether the owed service has been provided in accordance with the contract (“functional process test”) and then accepts it. The functional process test is carried out using the test strategies and test scripts named by Simova. During the functional process test, the customer is supported by Simova if necessary. The content of the process test is logged in preparation for system acceptance. The acceptance of all functions is a prerequisite for the subsequent system acceptance.
Once all the contractually agreed functions have been completed, Simova shows the customer that the system is ready for acceptance. The system acceptance refers to the entire implementation of the system. The customer checks within two (2) weeks after the notification of acceptance, whether the system corresponds to the contractually agreed specifications. The system acceptance and any defects are logged there. The preparation of the system acceptance is carried out by Simova. A
System acceptance in modules or partial steps is equivalent to a complete acceptance of the system. The system acceptance is a prerequisite for the real start.
The real start takes place after the system acceptance. The customer checks the operational readiness of the system through use in his business. During the first weeks of the real start, Simova will support the customer if requested by the customer. The duration of the support results from the contract. The final project acceptance takes place four weeks after a successful real start.
Because of insignificant defects, the customer may refuse neither partial nor final project acceptance. These defects are listed in detail and finally in the respective acceptance report.
If there are no defects hindering acceptance, the customer must declare acceptance in writing no later than two (2) weeks after the respective notification of acceptance; after this period the service is deemed accepted.
If there are defects in the owed service that prevent acceptance, Simova will inform the customer of the expected duration of the defect removal and correct the reported defects. Simova then makes the owed service available again for acceptance, whereby the inspection of the owed service only includes the reported defects, insofar as their function can be the subject of an isolated inspection.
D. Special provisions for software maintenance and optional services
1. Scope and subject of the contract
The following provisions apply in the context of rental contracts and if software maintenance ("maintenance") has been commissioned in addition to a purchase or project contract or exclusively. Does the customer have standard software or
Software components acquired from Simova as part of a rental, purchase or project contract, however, take precedence over the respective warranty rights.
If third-party manufacturers provide updated program versions after the conclusion of the contract, software maintenance refers to these program versions. Microsoft program versions are only maintained within the "Microsoft mainstream support" phase.
As part of software maintenance, Simova carries out preventive measures to improve the organizational structure and program flow of the software to be maintained, eliminates any program errors and adapts the software to any changed legal, official or other provisions within the respective time window. As part of the preventive measures, Simova implements improved program versions, such as updates and patches, which the software manufacturer provides from time to time. With regard to rented or sold standard software, software maintenance is limited to preventive measures
Following a fault report by the customer, Simova will notify the customer of the start of troubleshooting in text form within the response time set out in Appendix 2. Simova will indicate the prioritization of the fault and the expected duration of the fault rectification.
The way in which the fault is rectified is at Simova's discretion. To rectify a malfunction, Simova can also create instructions for the customer that the customer must follow. If Simova cannot completely eliminate the malfunction within the recovery time, Simova will integrate a workaround solution at its own expense, which largely provides the functionality of the software to be maintained. Simova will then rectify the fault immediately.
2. Limits of service provision / optional services
Unless the contractual partners have expressly agreed otherwise in writing, Simova in particular does not owe in the context of software maintenance:
installing and setting up the software;
Instruction and training of employees in handling the software;
the maintenance of old versions (for Microsoft program versions: Extended Support);
maintenance of the software at locations other than the contractually agreed installation location;
the maintenance of the software on a different IT system than the contractually agreed one;
the backup of customer data; Support in the reconstruction of software versions and data after a technical defect, provided that the customer has a current data backup.
Services for the software that result directly from the fact that the customer did not follow Simova's recommendations in the context of software maintenance or did not use the software in accordance with its intended use.
Such optional services can be agreed separately.
Appendix 1 - Customer Obligations
The customer's obligations to cooperate mentioned below are real contractual performance obligations and not mere obligations. Further cooperation obligations of the customer can result from the contractual agreement.
The customer is obliged to examine the software provided by Simova immediately after delivery and, if a defect is found, to notify Simova immediately. In the case of material defects, this is done by describing the time at which the defects occurred and the more detailed circumstances.
The customer tests the software provided by Simova for usability before starting productive use. This also applies to programs that the customer receives as part of the warranty or a software maintenance contract.
The customer takes reasonable precautions in the event that a program does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular checking of the results, emergency planning). It is his responsibility to ensure the functionality of the working environment of the program.
The customer creates the prerequisites in his sphere that are necessary so that Simova can provide the service owed. This includes in particular:
Access to the customer's premises,
Provision and access to the customer's IT infrastructure,
Providing the necessary information,
Participation in the specification of services,
Participation in test runs and functional tests,
Obtaining all necessary permits,
Detailed description of errors.
Unless otherwise expressly agreed in writing, the customer shall provide his duty to cooperate and provide material at his own expense at the agreed time and in the manner necessary for the success of the project immediately after Simova has requested it in advance, unless the time for the provision of the collaborative services results from the project plan.
If the customer does not provide his cooperation services at the right time and / or in the required manner, Simova can exercise the rights it is entitled to under the law, in particular compensation, withdrawal, compensation or termination.
Simova is not obliged to perform itself until the cooperation has been fully fulfilled. After two (2) weeks, Simova is no longer obliged to reserve resources for the implementation of the project. After the customer has performed the owed cooperation, the contractual partners will appropriately postpone the expected performance times in the project plan, taking into account the delay and any performance obligations of Simova towards other customers.
For the period between the agreed performance of the cooperation and the subsequent performance or the declaration of withdrawal, but no longer than two (2) weeks, the customer pays Simova remuneration for the provision of the resources in accordance with the current Simova price list. The remuneration is reduced by the amount of saved expenses or by the amount that Simova could have acquired through another assignment in the period. Further claims according to §§ 642, 643 BGB remain reserved.
Appendix 2 - Service Level Agreement
1. User Helpdesk
Simova provides a user help desk for customers during business hours.
Business hours describe the period within which Simova owes the troubleshooting.
Business hours are Mondays to Thursdays, with the exception of national public holidays, from 8:00 a.m. to 5:00 p.m. Friday from 8:00 a.m. to 3:30 p.m.
2. Disturbance classes
Simova will classify incoming faults in priority I to III depending on their severity and impact on the customer's system.
Priority I: Urgent, operations are interrupted. All jobs are affected.
Example: The application cannot run, the program crashes. Printing, selecting and / or transferring data cannot be started. Data is not saved or read incorrectly or in full.
Priority II: High, operations are affected. Individual jobs are affected.
Example: The functionality of the application is impaired or malfunctions occur, in particular messages are incomprehensible or are not in the correct context for the called function. Functionalities do not show the expected results. The response time behavior prevents normal use of the software.
Priority III: Low, operations are not affected.
Example: Working with the software is possible, albeit not consistently within the agreed parameters. Ease of use is in need of improvement. Error functions can be bypassed.
As part of the fault report, the customer can suggest a prioritization. The final classification is up to Simova.
3. Response time
The response time describes the period between the receipt of a proper fault report and the beginning of the fault elimination as well as the information of the customer about the beginning of the fault elimination by Simova.
The response time will be interrupted if business hours end before the response time expires. The response time continues as soon as the next business hour begins.
The response time depends on the priority of the fault and is defined as follows:
Priority I: 3 hours
Priority II: 6 hours
Priority III: 24 hours
Unless explicitly agreed otherwise in writing, Simova does not owe any troubleshooting within certain repair times.