Software maintenance contract, scope of services and conditions

Preamble

The parties have agreed in a separate contract on the creation/licensing of a software solution by PROXIA. This software was installed into the client’s existing IT system (“System”). The care and if necessary Adaptation of the Software by PROXIA shall be governed by this Agreement.

 

1. subject matter of the contract

1.1 The subject matter of this Agreement is the provision of Services by PROXIA for the Software Products listed in Annex 1 and, should PROXIA deem it necessary or should this be separately agreed between the Parties, the related documentation (“Software”).
1.2 The Services to be provided by PROXIA shall include, the items listed separately in the Schedule to this Agreement and, subject to the other provisions of the Agreement, the following:

1. 1. • Updates with information service
      • Bug fixing for up to a maximum of 2 years (major release cycles) backwards
      • Use of telephone support (hotline)
      • Use of the PROXIA ticket system
      • Use of the e-mail service
      • Remote maintenance, cf. item 12

1.3 The subject matter of the contract shall not include services of bug fixing in older cycles than determined in clause 1.2 or the development of features and upgrades. This remains subject to a separate agreement. The same applies to an on-site service for installation and instruction in the above software. These can be additionally agreed upon for a separate fee.
For explanation: An update is usually an update of a program. Errors and bugs, as well as problems of previous versions are fixed. The version number of the product changes due to an update.
An upgrade usually brings major new features as well as basic enhancements that increase the program’s functionality.

2. Service provision

2.1 PROXIA shall provide the Care Services in accordance with the latest state of proven technology.
2.2 The Customer shall be obliged to comply with the terms and conditions of the installation regulations and
Hardware requirements to be met. Otherwise, PROXIA shall not be obligated to take any service measures, even against separate remuneration.
2.3 PROXIA shall only use qualified and reliable personnel. It will only use proven procedures, tools and tools whose suitability it knows, whose execution it masters and which correspond to the applicable state of the art.

3. Service hours and remote maintenance

3.1 PROXIA shall provide the Services pursuant to Clause 1.2 within the following Service Times, unless otherwise agreed:
2 weekdays from Monday – Friday from 8 am – 5 pm
3.2 Customer undertakes to use only the communication program used by PROXIA for the remote maintenance sessions. Any damages arising from the breach of this obligation shall be borne solely by the client.

4. Other troubleshooting and customization services, consulting

The following services of PROXIA may be agreed upon on the basis of a separate order, in particular:

• Changes to the software that are not the subject of the maintenance services, in particular adaptation to new products and services as well as to changed operating procedures of the customer;
• Adaptation of the Software to a changed hardware and/or software environment of the Customer, including new program versions (e.g. new releases, upgrades) of third-party software used in the system;
• Elimination of malfunctions caused by improper operation of the Software by Customer, by force majeure, intervention by third parties or by other effects not caused by PROXIA;
• Other adaptations, additions and extensions to the software as requested by the client;
• Services within the meaning of Clause 1.3
• Consulting Services.

5. Cooperation of the client

5.1 The notification of defects of the Software shall generally be made in writing or in text form (e-mail). Verbal notification shall be admissible if the Client makes up for the notification in writing or in text form within two working days at the latest. The notification shall precisely describe the defect (in particular, conditions under which it occurs, symptoms and effects of the defect).
5.2 Customer shall grant PROXIA on-site access to its premises during its regular business hours and to the extent necessary and access to the hardware and software required for the performance of the Services, to the extent that remote maintenance is not possible or PROXIA deems on-site service to be necessary. The client will provide the necessary technical equipment for this purpose. Insofar as the urgency of the respective care service requires, access shall also be granted outside the regular business hours of the Client. PROXIA shall ensure that the Customer’s business operations are disrupted as little as possible by its activities on site.
5.3 Customer shall appoint a qualified employee who shall be available as a contact person for PROXIA and who shall be authorized to make the decisions necessary for the performance of the contract.

6. Remuneration

6.1 The annual price for PROXIA’s services under this Agreement, as set forth in the order confirmation, shall be invoiced at the beginning of each year or, in the event of a later commencement of the Agreement, at the respective annual price for the remainder of the calendar year and shall be payable immediately upon receipt of the invoice without deduction.
6.2 In the event of termination of the contract by the customer and subsequent reactivation of the software maintenance by the customer, the customer shall pay the maintenance costs in arrears which it would have had to pay if the software maintenance had continued. Furthermore, the customer has to pay a fee for the reactivation of the software maintenance.
6.3 Value added tax shall be charged additionally at the respective statutory rate, currently 19 %.
6.4 In the event of default in payment by the Customer, interest on arrears shall be charged from the due date at the current rate of 9 percentage points above the base interest rate pursuant to §§ 288 para. 2, 247 BGB calculated. This shall not preclude the assertion of further damage caused by default.

7. Defects of quality and title

7.1 PROXIA warrants that the Services owed under this Agreement are free from defects and from third party rights.
7.2 In the event that the contractual services infringe third party intellectual property rights, Customer shall immediately notify PROXIA in writing and provide PROXIA with the information and other reasonable support necessary to defend itself against such infringement.
7.3 If the performance is defective, PROXIA shall be entitled, at its option, to remedy the defect or to provide a performance free of defects within a reasonable period of time (subsequent performance). In case of impossibility or disproportionality of both types of subsequent performance, PROXIA shall be entitled to refuse subsequent performance. PROXIA shall also have this right as long as Customer does not fulfill its payment obligations to an extent corresponding to the defect-free part of the performance.
7.4 In the event that PROXIA refuses or culpably delays both types of subsequent performance, subsequent performance is impossible or subsequent performance fails for other reasons, Customer shall be entitled in accordance with the respective statutory provisions to reduce the remuneration accordingly or to withdraw from the contract. If only a part of the performance is defective, the Customer may only withdraw from the entire contract under the above conditions if it has no objective interest in the partial performance.
7.5 No defect shall exist in case of non-compliance with operating or maintenance instructions and instructions for use, modifications by the Customer or third parties, influence of third-party accessories, including accessories of any kind (hardware or software) provided or used by the Customer, as well as faulty installation by the Customer or third parties.
7.6 If the defect is due to insufficient data backup by Customer, PROXIA shall not be responsible for it. Inadequate data protection shall be deemed to exist in particular if the Client has failed to take precautions against external influences, in particular against computer viruses, Trojans, cyber attacks and other phenomena that may endanger individual data or an entire data stock, by means of appropriate, state-of-the-art security measures. The Customer itself shall be responsible for ensuring that current data backups are operated in a suitable form and that a prompt and economically reasonable recovery of lost data is guaranteed.
7.7 In the event of subsequent performance, PROXIA shall provide the technically and economically most favorable solution. PROXIA shall be allowed at least two attempts each to remedy the defect before the Customer may exercise its rights to reduce the remuneration (reduction) or to rescind the contract (rescission). The Customer shall be obliged to provide PROXIA with verifiable documents on the type and occurrence of defects and to cooperate in isolating the defects.

8. Liability

8.1 PROXIA shall be liable without limitation

• in the event of intent or gross negligence,
• for injury to life, limb or health,
• in accordance with the provisions of the Product Liability Act as well as
• to the extent of any warranty given by PROXIA.

8.2 In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), PROXIA’s liability shall be limited to the amount of the maintenance costs paid by the Customer within the last 12 months prior to the damaging event.
8.3 PROXIA shall not be liable for loss of profit, loss of revenue, loss of production and other indirect and consequential damages.
8.4 PROXIA shall have no further liability.
8.5 In particular, PROXIA shall not be liable for impairments and failures of communication paths used for remote maintenance that are provided by third parties, unless such impairment or failure falls within the scope of responsibility of PROXIA. If they fall within PROXIA’s area of responsibility, the provisions of Sections 8.1 – 8.3 shall apply.
8.6 PROXIA shall not be liable if the defective Service is exclusively due to a hardware environment at Customer’s premises and Customer does not comply with the hardware requirements specified by PROXIA (cf. Section 2.2).
8.7 PROXIA shall not be liable for any losses, including losses of files and data, as well as such direct and indirect damages which are not typical for the contract or were not foreseeable in view of the underlying legal transaction. This does not apply in the cases of responsibility according to clauses 8.1 and 8.2.
8.8 The above limitation of liability shall also apply to the personal liability of PROXIA’s employees, representatives and bodies.
8.9 A limitation period of one year shall apply to all claims against PROXIA for damages or reimbursement of futile expenses in case of contractual and non-contractual liability. This shall not apply in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty and in the event of claims for damages under the Product Liability Act.

9. Term and termination

9.1 The Software Maintenance Agreement shall commence on the date specified in the cover sheet.
9.2 The contract is concluded for an indefinite period.
9.3 Either party may terminate the contract with effect from the end of a calendar year by written notice of which the other party must be notified at least 3 months before the end of the calendar year.
9.4 The right of both parties to extraordinary termination for good cause shall remain unaffected. Good cause shall be deemed to exist in particular if,

• if the financial position of the other party deteriorates significantly,
• if insolvency proceedings are opened against the assets of the respective other party or the opening of such proceedings is rejected for lack of assets, or
• if the underlying software license agreement is terminated by notice of termination, rescission, avoidance or otherwise.

9.5 Any termination must be in writing.

10.Confidentiality

10.1 During and after termination of the Services under this Software Maintenance Agreement, each party shall be obligated to maintain strict secrecy vis-à-vis third parties about all confidential matters of the other party entrusted to it, made accessible to it or otherwise becoming known to it, not to make them accessible to third parties and to protect them from access by third parties, unless there is a contractual or statutory obligation, including by order of an authority or a court, to disclose them.
10.2 “Confidential Matters” shall include all information and documents of the other party which are marked as confidential or which are to be regarded as confidential from the circumstances, in particular trade and business secrets, project and company-related know-how, strategic plans, all information on projects, products and developments and planning, designs, pricing, client relationships, other contractual relationships, contracts, marketing strategies, plans or analyses on market potential and investment opportunities, information on sales, profit, performance, financing, fundraising plans or activities, personnel and personnel planning.
10.3 “Confidential Matters” shall not include such information

• which were already publicly known or publicly accessible at the time of the transfer or acquisition of knowledge within the scope of the service or become so at a later point in time, without this being based on a breach of the software maintenance agreement; or
• of which there was demonstrable knowledge before such information was made available or disclosed as part of the Services.

10.4 Each party shall be obliged to ensure that the employees or freelancers or subcontractors used by it also maintain the secrecy regulated in Section 10.1.

Insofar as personal data is processed within the scope of the provision of services under this Software Maintenance Agreement, this shall be done on the basis of the provisions of the DSGVO and the BDSG.

13. Remote maintenance
The establishment of the remote maintenance connection takes place only in coordination with the client. PROXIA ensures the sole and direct connection to the client by assigning a unique consultant number. After the remote maintenance work is finished, the connection is terminated immediately. Customer shall grant PROXIA the necessary rights for remote maintenance via the remote maintenance solution used by PROXIA. The Client has the right and the possibility to disconnect the remote maintenance session at any time. The provisions of §§ 3 para. (2) and 8 par. (4) are to be observed.

14. Miscellaneous, written form, place of jurisdiction, severability clause

14.1 In the event of any inconsistency with the contracts already concluded between the Parties and PROXIA’s General Terms and Conditions, the provisions of this Agreement shall prevail for the performance of this Agreement.
14.2 Customer may transfer claims against PROXIA based on this Agreement to third parties only with PROXIA’s written consent.
14.3 Each contracting party may only set off against claims of the other contracting party that are undisputed or have become res judicata.
14.4 Amendments and supplements to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
14.5 General terms and conditions of the Customer shall not apply. PROXIA’s General Terms and Conditions shall apply only to the extent that the provisions of this Agreement do not deviate therefrom or the General Terms and Conditions contain supplementary provisions.
14.6 This contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention). The parties are aware that IT services may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the software or related technologies may be subject to restrictions abroad. PROXIA will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The performance of the contract by PROXIA is subject to the proviso that no obstacles due to national and international regulations of export and import law as well as no other statutory provisions prevent the performance.
14.7 In business transactions with merchants, with legal entities under public law and with special funds under public law, it is additionally agreed that the place of performance and jurisdiction shall be the registered office of PROXIA. Furthermore, this is always the place of jurisdiction if the client has no general place of jurisdiction in Germany.
14.8 Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavor to find a provision in place of the invalid provision that comes as close as possible in legal and economic terms to the objective of the contract. The same applies to an unintended regulatory gap.

Status 09-2023