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INFORMATIONEN

Terms & Conditions

General Terms and Conditions (hereinafter "GTC")
 

of

Simova GmbH

Wandweg 1

D-44149 Dortmund

(hereinafter "Simova")

A. General terms and conditions

1. Setup and scope

 

  • Simova performs a number of services for its customers which vary from one contract to another: For example, it relinquishes to its customers the license to use standard software manufactured by itself or by third parties and develops individual software for its customers under commission. It also provides software maintenance under contract when this is not already included, as is sometimes the case in rental contracts.

  • The “general terms and conditions” listed under section A apply to all contracts between Simova and its customers. Section B governs the “special terms and conditions for rental contracts”, section C the “special terms and conditions for project contracts” and section D the “special terms and conditions for software maintenance and optional services”. Only the “general terms and conditions” apply to contracts.

  • These GTC apply to all contracts concluded between Simova and the customer. They apply to future contracts between Simova and the customer as well, even if no reference to the GTC is made when the commission is granted. The terms and conditions of the customer will only apply if Simova has expressly agreed in writing. In addition, any manufacturer’s terms and conditions of use apply, as does the statement of work provided by Simova.

 

2. Usage rights

 

  • Unless otherwise agreed, Simova grants the customer a license to use the software and related documentation for business purposes which fall within the scope of the contract. Said license is nonexclusive, of indefinite duration (but limited in duration for software rental), restricted to the geographical borders of the Federal Republic of Germany, nontransferable and not subject to sublicensing. The source code is not the subject of a legal assignment and not included in the transfer of the license.

  • The documentation may only be used for business purposes such as employee training and orientation, and for the purposes of migration to another software system. The customer must record who has obtained copies of the documentation and where these are stored. Simova is authorised to inspect this record.

  • Notices of copyright and other rights holders on data carriers and the user documentation may not be removed.

  • The customer is entitled to create a backup copy of the program, which it is required to label with the manufacturer’s copyright and the words “backup copy” in a clearly visible place. The customer is also prohibited from otherwise copying the program unless necessary for the use specified in the contract.

  • Upon request, the customer is obligated to inform Simova of the quantity, storage medium and place of storage of copies made. Should the software be protected by the use of a license key, the customer obtains the license key exclusively for the use of the software as specified in the contract during the contract term.

 

3. Personnel deployment and subcontractors

 

  • Simova is free to decide who will perform its services. The customer has no authority over the service employees, not even when the services are performed on the premises of the customer.

  • Simova is authorised to have the contracted services performed by a subcontractor. Upon the written request of the customer, Simova will give the customer the name of the subcontractor it has commissioned to perform the services.

  • The customer has the right to demand a change in subcontractor if the use of the subcontractor would put the customer at a serious disadvantage, for example, disclosure of trade secrets to its competitors. The customer will bear any costs related to the change.

 

4. Duties of customer

The customer has the duty to cooperate within the context of performance of the contract. The individual duties to which it is subject are listed in Annex 1 to these GTC.

 

5. Remuneration

 

  • The contracted services will be remunerated in accordance with the current price list unless otherwise agreed in writing.

  • Software rental is to be paid in advance on a monthly basis. Software maintenance services are not invoiced separately when they are part of a software rental contract. The rent becomes due on the date in which the software is provided and on the first day of each month thereafter.

  • Remuneration for project contracts is due no later than the date on which the project is accepted. If the partners have contractually agreed to separate remuneration for individual parts of the project, said remuneration is to be paid upon acceptance of each part. If the parties have not agreed to remuneration for individual parts of the project, Simova is authorised to invoice the customer in instalments which cover the contracted services performed in an amount equal to the added value of the service to the customer. The payment of said instalment may not be refused because of immaterial deficiencies.

  • Software maintenance contracts entail remuneration in advance for each calendar year. It is due on the first work day of the month in which the contracted service is performed and on the first work day of each new calendar year thereafter.

  • Unless otherwise agreed, travel time will be billed at a rate of one half of working time.

  • The costs of materials, travel costs and per diem will be invoiced separately at the actual costs incurred and reimbursed by the customer.

  • The statutory value added tax will be applied to all prices. Invoices are to be paid within fourteen (14) days from the invoice date without discount.

  • Simova reserves the right to increase its prices with a notice period of three months when changes influencing the costs of services performed occur, (e.g. the costs of personnel, materials, working materials). In the case of such an increase, the customer is entitled to terminate the contract with a notice period of one (1) month until the end of the month before the price increase takes effect.

 

6. Warranty for material defects

 

  • Should the software prove to be defective, Simova will remedy the defect in an appropriate period of time by correcting or replacing the software at its own cost.

  • If neither appears likely to remedy the defect, Simova is entitled to employ a workaround to solve the problem. This shall be deemed rectification of the issue, provided it is reasonable for the customer.

  • Once the software fails to function properly after Simova has attempted to remedy the same problem twice, the customer is entitled to exercise its additional statutory rights of warranty, in particular the option to withdraw from the contract or demand reparations. Damage claims only arise in accordance with no. 8 of this section.

  • If the problem should prove to arise from a source other than a defect for which Simova is responsible, the customer will compensate Simova for the services rendered.

  • Claims of defect do not apply to software which the customer or a third party has altered without the approval of Simova, unless the customer can prove that such changes were not the cause of the reported defect.

  • In addition, claims of defect to not apply to software which the customer uses in a different system environment than agreed upon, unless the customer can prove that said usage is not the cause of the reported defect.

  • There is a statute of limitations of twelve (12) months from the “functional system acceptance” of the software, after which the customer cannot claim material defects under the warranty. As an exception to sentence 1, the standard statute of limitations applies to warranty claims if Simova has fraudulently concealed the defect. Liability under no. 8 of this section remains unaffected by this.

 

7. Defects of title

 

  • Insofar as it is legally determined that the services of Simova violate the rights of a third party, Simova will acquire the necessary licenses at its own costs. Alternatively, Simova is entitled to amend the software in such a way that the rights of the third party are no longer violated, provided that this does not unreasonably impair the functionality of the software agreed upon with the customer.

  • Should third parties claim that the customer is violating their rights, the customer will proactively assist Simova in settling the matter in or out of court. Simova will be the sole party to conduct the legal case, whereby the contract parties will coordinate closely and support each other. In particular, the customer is not entitled or authorised to settle the matter in or out of court without the prior consent of Simova, or to take any legal action which may impact the relationship between Simova and the customer. The customer does not need the consent of Simova for said legal action insofar as it is necessary to prevent serious disadvantages for the customer and the prior consent of Simova cannot be obtained.

  • If Simova is culpable for the violation of rights, Simova will indemnify the customer from any and all claims by the third party. The limitation on liability under no. 8 of this section applies accordingly.

 

8. Liability

 

  • There is no limit on the liability of Simova for intentional or grossly negligent conduct, nor for injury to life, limb or health, and in accordance with Product Liability Act, and for any warranties it has accepted.

  • In the event of slightly negligent conduct which violates its contractual duty, the liability of Simova is limited to the amount of foreseeable damages which are typical for such a contract. The contractual parties assume that the amount of damages typical for such a contract are equal to the contracted remuneration, or in the case of continuous obligations (such as software rental), equal to the remuneration for six (6) months.

  • There is no further liability. In particular, Simova is not liable for any violation of rights by the customer related to its use of the provided software.

  • The aforementioned limits on liability also apply to the personal liability of the employees, representatives and executive bodies of the parties.

 

9. Data protection

 

  • The contractual parties observe the relevant data protection regulations. Insofar as Simova processes the personal information of the customer within the scope of performing its services, the contractual parties will conclude a separate data processing agreement in accordance with article 11 of the Bundesdatenschutzgesetz (the German Federal Data Protection Act or BDSG).

  • The contractual parties will require that their employees and any subcontractors they commission also sign an affidavit that they will comply with the statutory confidentiality in accordance with article 5 BDSG insofar as such an obligation does not already exist.

 

10. Confidentiality

 

  • The contractual parties agree not to reveal any confidential information. “Confidential information” includes the contract and its annexes as well as the information and documentation of the other party labelled confidential or which is considered confidential because of the circumstances, in particular information about operating processes, business relations and know-how.

  • The following confidential information is exempt from this obligation:

    •  

      • that which the recipient can prove it already knew at the time the contract was concluded or which it learned from a third party afterwards without violating the nondisclosure agreement, statutory regulations or directives by the authorities;

      • that which is publicly known at the time the contract was concluded or made public afterwards, provided that this did not occur through a violation of this agreement;

      • that which the party is required to disclose due to legal obligations or at the directive of a court or authority; where possible and permissible, the party required to disclose confidential information will notify the other party beforehand to give it the opportunity to take action against said disclosure.

  • The contractual partners will only give third parties access to confidential information when they have signed a nondisclosure agreement or when they are already subject to such an agreement. In addition, the contractual partners will only disclose confidential information to those employees who need to know this information to perform the contract and those employees must be obligated to secrecy even after their employment contract with the party has ended.

 

11. Non-assignment, offsetting

  •  

    • The customer is only entitled to assign its claims against Simova to third parties with the written consent of Simova. Article 354a of the Handelsgesetzbuch (German Commercial Code or HGB) remains unaffected.

    • The customer may only offset undisputed or legally binding claims.

 

12. Applicable laws, place of fulfilment, jurisdiction

  •  

    • The laws of the Federal Republic of Germany apply to the contract. The UN Convention on Contracts for the International Sale of Goods dated 11/4/1980 (CISG) is excluded.

    • The place of fulfilment and jurisdiction is Dortmund, Germany.

 

B. Special terms and conditions for rental contracts

1. Scope and subject of contract

  •  

    • The subject of a rental contract is the transfer of standard software for the duration of the contract term and the granting of the licenses required for the contractual use of said software, as well as software maintenance services in accordance with section D of these GTC.

    • The rental contract does not cover installation and setup activities. However, these may be contracted as additional services for a separate remuneration.

 

2. Warranty and liability

  •  

    • As part of its software rental service, Simova grants a warranty for the maintenance of the software in the contractually agreed condition for the contract term.

    • All strict liability is excluded for Simova for defects already in place at the time the contract is concluded.

    • The customer is not entitled to terminate the contract for failure to guarantee the contractual usage of the rental software in accordance with article 543 (2) sentence 1 no. 1 of the Bürgerliches Gesetzbuch (German Civil Code or BGB) until Simova has been given sufficient opportunity to remedy the defect and has failed to do so. Failure to remedy the defect may be deemed to have occurred when it is impossible, when Simova refuses to do so or delays doing so for an unreasonable period of time, when there are justifiable doubts regarding the chances of success, or when there are other reasons which would make the situation unreasonable for the customer.

    • Otherwise the provisions of section A. 6-8 apply accordingly.

 

3. Contract term and termination

  •  

    • The contract term is one year and begins when the contract is signed.

    • The contract term automatically extends by another year unless the contract is terminated in writing by one of the contract partners with three (3) month’s notice before the end of the contract term.

    • Either contractual partner may terminate the contract in writing on good grounds without regard for the termination notice. Good grounds for Simova may represent the fact that the customer has failed to pay the contractual remuneration on multiple occasions, that the customer has filed for insolvency, or that the customer has not observed its obligations under this contract.

 

C. Special terms and conditions for project contracts

1. Scope and subject of contract

  •  

    • The general terms and conditions in this section apply to the execution of software projects, in particular the adaptation of standard software or the development and programming of customised software.

    • Software maintenance services can be agreed upon separately after the conclusion of the project contract.

 

2. Performance of adaptation services

  •  

    • Insofar as the parties have agreed, Simova will adapt the software to the needs of the customer. The scope of services Simova is obligated to perform is set forth in the service description. The service description specifies the adaptation services Simova will perform. The final service description, which the customer also signs off on, conclusively defines the services Simova will be obligated to perform.

    • The service description also defines the timelines by which Simova is estimated to perform each part of the service (“project plan”). Unless otherwise agreed in writing, the dates on the project plan represent nonbinding performance timelines for Simova. Simova is not obligated to perform the services by the service timelines given therein.

    • Insofar as the parties additionally agree, Simova will also generate project-specific documentation.

 

3. Change requests

  •  

    • The contractual parties may propose changes or additions to the scope of services defined in the specifications by making a “change request”.

    • Simova will review whether the change request can be executed from the technical perspective and inform the customer in writing of how this will influence the project execution, in particular whether it will postpone the service deadline and/or change the cost estimate. If Simova makes the change request, Simova will include the aforementioned information with the change request.

 

4. Acceptance

  •  

    • Unless otherwise agreed, the project will be accepted in parts. Once the entire project is complete, it will also be accepted in its entirety. The acceptance process is described below:

      •  

        • Simova demonstrates the acceptability of individual functions and provides said functions to the customer. The customer then has two (2) weeks to check whether the service has been performed in accordance with the contract (”functional process test”) and, if so, accepts the work. The functional process test is executed using the test strategies and test scripts given by Simova. During the functional process testing, Simova will support the customer as needed. A protocol of the content of the process test will be recorded in preparation for system acceptance. The acceptance of all functions is a prerequisite for the subsequent system acceptance.

        • Once all contractually agreed functions have been completed, Simova will demonstrate the acceptability of the system to the customer. The system acceptance refers to the entire implementation of the system. The customer has two (2) weeks after the demonstration of acceptability to check whether the system meets the contractually agreed specifications. A protocol of the system acceptance and any defects will be recorded. Simova will handle the preparation for system acceptance. A system acceptance in modules or partial steps is the equivalent of the complete acceptance of the system. The system acceptance is a prerequisite for going live.

        • The system will go live after it has been accepted in its entirety. The customer will check the operability of the system by using it in its business operations. During the first week after going live, Simova will support the customer if the customer so requests. The length of support will be agreed upon in the contract. The final project acceptance comes four (4) weeks after successfully going live.

    • The customer may not refuse the partial or final project acceptance for reasons of immaterial defects. Such defects will be detailed and listed in the acceptance protocol.

    • If there are no defects which should prevent acceptance, the customer has two (2) weeks after being demonstrated the acceptability of the project to accept it in writing; after this deadline the service performance will be deemed accepted.

    • If there are defects which would prevent acceptance, Simova will inform the customer of the projected amount of time needed to remedy the indicated defects. Afterwards, Simova will again submit the service for acceptance, though in this case the acceptance test will be limited to the indicated defect, insofar as it is possible to test this function in isolation.

 

D. Special terms and conditions for software maintenance and optional services

1. Scope and subject of contract

  •  

    • The following terms and conditions apply to rental contracts and to software maintenance (”maintenance”) contracts which have been concluded either alone or in conjunction with a purchase or project contract. If the customer acquires standard software or software components from Simova as part of a rental, purchase or project contract, the warranty for defects for that contract applies primarily.

    • Insofar as third parties release updated program versions after concluding the contract, the software maintenance refers to these updated program versions. Microsoft program versions will only be maintained during the Microsoft Mainstream Support phase.

    • Within the scope of software maintenance, Simova takes preventive measures to improve the organisational setup and workflow of the maintained software, remedies any program errors and adapts the software to fit all regulatory changes and special terms and conditions within the stipulated period of time. Within the framework of preventive measures, Simova installs improvements to the program versions, such as updates and patches which the software manufacturer releases from time to time. With respect to rented or purchases software, software maintenance is restricted to preventive measures.

    • If the customer reports a problem, Simova will respond in writing to the customer in the time frame stipulated in Annex 2 and begin working to rectify the problem in that time. Simova will then inform the customer of the priorty of the problem and the projected time needed to rectify the problem.

    • The manner in which the problem is rectified is left to the discretion of Simova. Simova is entitled to give the customer instructions for solving the problem, which the customer is required to follow. Insofar as Simova has not been able to rectify the problem completely within the restore service period, Simova will integrate a workaround at its own cost which enables the customer to access most of the functionality of the software being maintained. Simova will then rectify the problem in a prompt manner.

 

2. Limits to scope of service, optional services

Insofar as the contractual partners have not expressly agreed to it in writing, Simova is not obligated to perform the following as part of its software maintenance service:

  •  

    • install or set up the software;

    • train and instruct the employees in the use of the software;

    • maintain outdated programs (for Microsoft programs, this is part of extended support);

    • maintain software at other locations than the installation location agreed upon in the contract;

    • maintain the software on an IT system other than the one agreed upon in the contract;

    • back up customer data; support the customer in reconstructing old software and data after a technical malfunction, insofar as the customer has a recent data backup.

    • perform services for software which does not function correctly as a direct result of the customer not following the recommendations of Simova with respect to software maintenance or not using the software in accordance with the terms and conditions.

Such optional services may be agreed upon in a separate contract.

 

Annex 1 – Duties of customer

  •  

    • The duties of cooperation of the customer described below are true contractual performance obligations and not merely responsibilities. Additional duties of the customer to cooperate may arise from the contractual arrangements.

    • The customer is obligated to inspect the software Simova gives it promptly upon delivery and to report any defects to Simova in writing promptly. If there are material defects, the customer should describe the time the defect occurred and the surrounding circumstances.

    • The customer tests the software Simova gives it for usability before it begins productive use of the software. This also applies to software which the customer obtains as part of a warranty or a software maintenance contract.

    • The customer will take the appropriate precautions in case a program fails to function properly, in whole or in part (e.g. by backing up data, running malfunction diagnoses, regularly checking results, setting up emergency plans). It is the responsibility of the customer to ensure the functionality of the working environment in which the software is used.

    • Within its power, the customer will establish the preconditions necessary for Simova to perform the contracted services. These include, in particular:

      •  

        • access to the offices of the customer,

        • access to the IT infrastructure of the customer,

        • provision of the required information,

        • cooperation in specifying the services,

        • cooperation in running tests and functionality reviews,

        • obtaining all required permits,

        • providing detailed description of malfunctions.

    • To ensure the smooth implementation and maintenance, the customer is obliged, in consultation with the Simova to set up a site-to-site VPN tunnel. Alternively, a Windows VPN connection with PPTP or L2TP can be used. Other connection options only after consultation with Simova.

    • Insofar as the parties have not expressly agreed in writing otherwise, the customer will promptly perform its duties of cooperation and supply necessary materials at its own cost within the contracted time period and in the manner required for the success of the project, after Simova has requested this, unless the time period for performing the duties of cooperation is stipulated in the project plan.

    • If the customer does not perform its duties of cooperation at the correct time and/or in the required manner, Simova can exercise its additional rights under the law, in particular demanding remuneration or compensation for damages, or withdrawing from or terminating the contract.

    • Simova is not obligated to perform until the customer has completely performed its duties of cooperation. After two (2) weeks of such nonperformance have passed, Simova is no longer obligated to set aside resources to execute the project. Once the customer has performed its contractual duties of cooperation, the contractual parties will review the project plan and adjust the projected service periods accordingly, taking into account the delay and any performance obligations Simova has vis-à-vis its other customers.

    • For the period between the agreed performance of the duties of cooperation and the actual, delayed performance, or a declaration of withdrawal from the contract is submitted, however no longer than two (2) weeks, the customer will pay Simova remuneration for the provision of resources in accordance with the current price list of Simova. Said remuneration will be reduced by an amount equal to the costs saved or an amount equal to another commission Simova is able to acquire during this period. The parties reserve other rights in accordance with sections 642 and 643 BGB.


Annex 2 – Service level agreement

1. User helpdesk

  •  

    • Simova will provide a user helpdesk for the customer during business hours.

    • The business hours define the period within which Simova will rectify software malfunctions.

    • The business hours are Monday to Thursday from 8:00 a.m. to 5:00 p.m. and Fridays from 8:00 a.m. to 3:30 p.m. (UTC +1), excluding national holidays.

 

2. Malfunction classifications

  •  

    • Simova will classify reported malfunctions based on their seriousness and impact on the customer’s system according to priorty I to III

      • Priority I: Urgent, business operations are interrupted. All workplaces are affected.
        Example: The application has stopped running; it is crashing. It is not possible to initiate the printing, selection and/or transfer of data. Data is not being stored or read in part or in its entirety.

      • Priority II: High, business operations are impaired. Individual workplaces are affected.
        Example: The application is not functioning smoothly or it is malfunctioning; in particular, messages are incomprehensible or not in proper context to the functions called up. Functionality is not demonstrating the expected results. The response behaviour prevents the customary use of the software.

      • Priority III:
        Low, business operations are not impaired.
        Example: It is possible to work with the software, though not universally within the agreed upon parameters. User friendliness needs improvement. Malfunctions can be worked around.

    • Customers may propose a priority when they report malfunctions. However, Simova takes the final decision with respect to classification.

 

3. Response time

  •  

    • The response time defines the period between the receipt of a proper malfunction report and the time when it begins to fix the malfunction as well as when it informs the customer it has begun to fix the problem.

    • The response time will be interrupted if the business hours end before the respond time has expired. The response time resumes as soon as the next workday’s business hours begin.

    • The response time depends on the priority of the malfunction and is defined as follows:

      • Priority I: 3 hours

      • Priority II: 6 hours

      • Priority III: 24 hours

    • Insofar as the contractual parties have not otherwise expressly agreed in writing, Simova is not obligated to rectify the malfunction within specific “rectification periods”.