picturesafe media/data/bank GmbH Email [email protected] Bank details Internet www.picturesafe.de Sparkasse Goslar/Harz Management & billing address Office Hamburg BIC NOLA DE 21 GSL
General Terms and Conditions
picturesafe media/data/bank GmbH (hereinafter „picturesafe“) offers advice and expertise on, and development and distribution of, digital asset management and knowledge management solutions, and operates software applications in its own and foreign electronic data processing centres (hosting).
picturesafe has developed a software for archiving texts and images and for operating databases online and in other media (hereinafter „Basis Software“). At the Customer’s request, picturesafe adapts the Basis Software to the Customer’s individual requirements (hereinafter „Individual Software“) (Basis Software and Individual Software separately hereinafter also referred to as „Contractual Software“),installs the Contractual Software, provides introductory support, trains the Customer’s personnel, and provides maintenance services with respect to the Contractual Software.
Furthermore, picturesafe offers additional services, in particular in connection with data
collection, data management, data cataloguing, and the initial setting-up of archives, as well as proofreading services and invoicing services.
The present General Terms and Conditions (hereinafter „GTC“) relate to agreements concluded between picturesafe and the Customer (jointly hereinafter referred to as the „Parties“), in particular relating to:
(a) the granting of rights to use the Basis Software by way of a software purchase. To this effect, the Parties mutually conclude a Software Licensing Service Schedule that, together with Section „A. Software Licensing“ and Section „E. General Part“ of these GTC shall form an agreement (hereinafter „Software Licensing Agreement“).
(b) the adaptation of the Basis Software to the Customer’s individual requirements, the installation of the Contractual Software and, where required, of the software of third companies, as well as the provision of introductory support and training units to the Customer’s personnel for the Contractual Software (hereinafter „Project Services“). For that purpose, the Parties conclude an additional Project Services service schedule, in which reference may be made to Annexes in the form of specifications and/or detailed concepts that shall immediately become a part of and be incorporated into the Project Services service schedule (hereinafter „Project Services Service Schedule“). The Project Services Service Schedule together with Section „B. Project Services“ and Section „E. General Part“ of these GTC shall form an agreement (hereinafter „Project Agreement“).
(c) maintenance of the Contractual Software. For that purpose, the Parties conclude an additional Software MaintenanceService Schedule that together with Section „C. Software Maintenance“ and Section „E. General Part“ of these GTC shall form an agreement (hereinafter „Software Maintenance Agreement“).
(d) the provision of services (e.g. data migration, data management, data collection, data cataloguing, thesaurus and taxonomy creation, consulting in the acquisition and
cataloguing of large pools of data and the initial setup of an archive, proofreading of daily press services, invoicing services) (hereinafter „Services“). For this purpose, the Parties conclude an additional Services service schedule that may refer to Annexes in the form of specifications and/or detailed concepts that shall become an integral part of and be incorporated into the Services service schedule (hereinafter „Services Service Schedule“). The Services Service Schedule, together with Section „D. Services“ and Section „E. General Part“ of these GTC shall form an agreement (hereinafter „Service Agreement“).
The Software Licensing Agreement, the Project Agreement, the Software Maintenance
Agreement and the Service Agreement hereinafter are separately referred to as „Agreement“ and jointly as „Agreements“.
A.
Software Licensing
§ 1 Subject Matter of the Software Licensing Agreements
1.1 Scope of Performance. picturesafe shall transfer to the Customer the Basis Software in
object code form on a suitable data carrier, or, if so agreed in the Software Licensing Service Schedule, by transmitting the required information for downloading from the Internet. Furthermore, documentation describing the functionality and the utilisation of the Basis Software (hereinafter „Manual“) shall be provided to the Customer in printed form, or – upon the Customer’s request – on a suitable data carrier, or for downloading from the Internet, in printable form. Furthermore, the Software Licensing Service Schedule conclusively specifies the subject matter of the Software Licensing Agreement. It particularly specifies the amount of licences, terms and conditions relating to the inclusion of affiliates of the Customer under the scope of the licence granted, the fees, details on the hard- and software environment within which the Basis Software may be used, and any other details regarding the implementation of the Agreement.
1.2 Timelines. Where fixed timelines for performance shall be met, these shall be expressly
agreed upon in advance and in writing in the Software Licensing Service Schedule. Chapter E., Section 35 shall not be affected.
§ 2 Use of the Basis Software
In return for the fees specified in the Service Schedule, picturesafe grants the Customer a non-exclusive right, unlimited in time and place, to use the Basis Software as specified hereinafter.
2.1 Reproduction. The Customer may reproduce the Basis Software to the extent required for
the use of the Basis Software according to its intended purpose. In particular, the Customer may install the Basis Software on the hardware used by the Customer and load it into the main memory. Furthermore, the Customer may make one copy of the Basis Software for backup purposes. This backup copy shall be marked as such. Otherwise, the Customer shall not be entitled to reproduce or duplicate the Basis Software.
2.2 Modification and Alteration. Unless indispensable to the use of the Basis Software according to its intended purpose or for independent defect recovery or unless expressly agreed in writing, the Customer may not modify, process, or alter the Basis Software in other way. The Customer is herewith advised that the Basis Software also contains open source components. Consequently, alteration shall be subject to the relevant licence provisions that apply respectively to the open source components.
2.3 Decompilation. Retranslation of the programme code into other code forms (so-called decompiling) and any other forms of reverse development of the different software production stages of the Basis Software (so-called reverse engineering) shall not be permitted. The interface information required for establishing interoperability of an independently created computer program may be requested from us against reimbursement of the expenses thereby incurred.
2.4 Hardware. The Customer may use the Basis Software on any hardware that meets the requirements specified in the Software Licensing Service Schedule. In the event that the Customer exchanges the hardware he shall entirely delete the Basis Software from the hardware used so far.
2.5 Leasing, Granting Use, Multiple Use. The Customer may not, either for consideration or
financial gain, hire out, rent out, lease or otherwise grant third parties temporary use of the Basis Software. Third parties shall also be the Customer’s affiliates as defined by § 15 Aktiengesetz (German Stock Companies Act), unless such granting of use of the Contractual Software is expressly permitted in the Software Licensing Service Schedule. Multiple use of the Basis Software (e.g. so-called timesharing) by way of simultaneous storing, keeping it on hand, or using it on more than one hardware item, is not permitted.
2.6 Selling, Gratuitous Transfer. The Customer may sell or gratuitously give away as a gift
the Basis Software including the Manual. In this case the Customer shall surrender to the buyer all and any copies, including the backup copy or delete any copies not surrendered. Upon reselling of the Basis Software the Customer’s right of use shall expire.
2.7 Excessive Use. In the case that the Customer uses the Basis Software beyond the agreed
scope (excessive use) the Customer shall pay 150% of the agreed licence fee for every additional copy. The Customer shall notify picturesafe of all and any excessive use
without delay. This clause shall not be construed as picturesafe’s approval of any excessive use.
2.8 Protection from Unlawful Use. picturesafe shall be entitled to take reasonable technical measures of protection against unlawful use. This provision may not materially impede use of the Basis Software on workarounds or successive configurations.
2.9 Reservation. Any and all rights of use not expressly granted herein shall be reserved.
§ 3 Fees and Reservation of Ownership
3.1 Fee. The Customer shall pay the purchase price agreed in the Software Licensing Service Schedule. The purchase price comprises a licence fee for the Basis Software and the Manual.
3.2 Invoicing. On principle, invoices shall be issued upon delivery of the data carrier and the Manual as provided in Section 1.1 or upon delivery of the information required for downloading from the Internet. In the event that the Customer also requests the installation of the Basis Software, 40% of the purchase price agreed in the Software Licensing Service Schedule shall be invoiced to the Customer upon acceptance of the order, 40% shall be invoiced upon installation, and 20% shall be invoiced upon acceptance of the installation. Acceptance of the installation services and the fees for installation shall exclusively be subject to the provisions under Chapter B., Section 6 and Section 8 of these GTC.
3.3 Retention of Title. Until full payment of the fees due; picturesafe retains ownership of the Basis Software including the data carrier and the Manual, that have been supplied to the Customer. The Customer may use the Basis Software and the Manual from delivery.
B.
Project Services
§ 4 Subject matter of the Project Agreement
4.1 Scope of Performance. picturesafe shall transfer to the Customer the Individual Software
in object code form on a suitable data carrier, or, if so agreed in the Project Services Service Schedule by transmitting the required information for downloading from the Internet. Furthermore, the Customer shall be provided with a Manual in printed form, or – upon the Customer’s request – on a suitable data carrier or for downloading from the Internet in printable form, describing the application and functionality of the Individual Software. Furthermore, the Project Services Service Schedule conclusively specifies the subject matter of the Project Agreement. The Service Schedule particularly determines the individual Project Services and their specifications (e.g. the programming services to be rendered in order to adjust the Basis Software to the Customer’s requirements, the actual state and conditions of the Customer’s system environment that need to be taken into consideration, the installation services for the Contractual Software, training services), the procedure and the dates for the project, the fees, the Customer’s obligations of
cooperation where required, and any other details of the implementation of the Agreement.
4.2 No Warranty. The specifications set forth in the Project Services Service Schedule do not provide for any warranties of quality.
§ 5 Customer’s cooperation
5.1 Persons Responsible for the Project. The Customer shall, as shall picturesafe, denominate a project manager. The project managers shall be responsible for all questions concerning implementation of the Agreement and shall consult each other thereunto. The declarations made by either Party´s project manager shall be binding on such Party.
5.2 Obligation to Cooperate. The Customer shall perform, gratuitously, all acts of cooperation required for the implementation of the Agreement. In particular, the Customer shall provide picturesafe with all relevant information and make available to picturesafe’s staff the required technical equipment that only the Customer is able to make available. To the extent necessary, the Customer shall also assign qualified personnel to assist picturesafe in the performance of the ordered work and services.
5.3 Breach of the Obligation to Cooperate. In the event that the Customer fails to fully meet its obligation to cooperate in due time, thus causing a delay that has an impact on any agreed timelines for completion of the work, the Parties shall adjust the timelines accordingly. If due to such breach of an obligation to cooperate picturesafe incurs any additional expenses, the Customer shall separately compensate picturesafe for such expenses on the basis of picturesafe’s general rates.
§ 6 Acceptance
6.1 Acceptance Test. In the case that picturesafe owes the production of work (contract for
work, § 631 Bürgerliches Gesetzbuch (“BGB”) (German Civil Code)) under the Project Agreement, picturesafe shall present the work produced to the Customer for acceptance. Acceptance shall take place by way of an acceptance test that the Customer shall commence immediately upon delivery of the work.
6.2 Defect. The Customer shall immediately inform picturesafe of any defects that come to
the Customer’s knowledge during the acceptance test. The Customer shall notify picturesafe in writing of any material defects by describing the defect and the circumstances of its appearance. picturesafe shall remove any material defects and subsequently redeliver the work to the Customer for acceptance. Any defects revealed during an acceptance test that do not or only immaterially impede the contractual use of the work (immaterial defects) shall not entitle the Customer to refuse acceptance.
6.3 Acceptance Certificate. If the Customer is not entitled to refuse acceptance, the Customer shall immediately upon carrying out the acceptance test declare acceptance in writing. Immaterial defects shall be recorded in the acceptance certificate as defects and removed by picturesafe in accordance with the warranty provisions.
6.4 Fictitious Acceptance. In the event that the Customer fails to accept work which is acceptable within a reasonable period of time set forth by picturesafe, or if the Customer already productively uses acceptable work, this shall be deemed to be an acceptance of such work.
§ 7 Use of Individual Software
In consideration of the fees specified in the Service Schedule, picturesafe shall grant the Customer the non-exclusive right to use the Individual Software. The provisions in Chapter A., Section 2 shall apply mutatis mutandis.
§ 8 Fees
8.1 Fees. Unless otherwise agreed in the Project Services Service Schedule, Project Services shall be charged according to expenditure and effort. Calculation of the fees shall be based on daily rates per employee assigned. The daily rates shall be based on a normal working day of 8 hours. Extra hours shall be charged separately according to the proportional daily rates.
8.2 Final Invoice. The estimate of the final fee mentioned in the Service Schedule shall not be binding. The final fee shall result from the final invoice. If the amount of the cost estimate is substantially exceeded, picturesafe shall inform the Customer thereof without delay.
8.3 Invoicing. If not otherwise agreed upon in the Project Services Service Schedule, one half of the estimated fees shall be invoiced upon placing of the order by the Customer. The remaining half of the fees shall, depending on the nature of the agreed Project Services, either be invoiced upon delivery according to Section 4.1, or after acceptance of the work, or upon completion of the service.
8.4 Other Costs. Any costs exceeding the work expended (e.g. fares, travelling expenses, or
C.
Software Maintenance
§ 9 Subject Matter of the Software Maintenance Agreement and Definitions
9.1 Subject Matter of the Agreement. Unless otherwise specified in the Software
Maintenance Service Schedule, picturesafe shall perform maintenance, support and malfunction removal services for the Contractual Software. The Software Maintenance Service Schedule conclusively defines the subject matter of the Software Maintenance Agreement. In particular, it specifies the Contractual Software for which maintenance services are to be provided, the system location of the Contractual Software, the use of Remote Access Support, the date of commencement of maintenance services, the fees, and any other details of the implementation of the Agreement.
9.2 Definitions
(a) Malfunction. A malfunction under this Chapter C. means cases in which the Contractual Software deviates adversely from the function described in the Manual (if provided), or in which the Contractual Software provides incorrect results, or in which uncontrolled aborts occur, or in which the Contractual Software fails to function adequately in any other manner, so that use of the Contractual Software is prevented or more than immaterially impeded (hereinafter ”Malfunction”). Other deviations or adverse impacts shall be considered imperfections of the Contractual Software that do not impede its function.
(b) Bugfix. The term “bugfix” under this Chapter C means an improved programme version of the contractual software or parts thereof, which contain troubleshooting or fault correction of already existing functionalities only.
(c) Update. The term Update under this Chapter C. means an improved programme version
of the Contractual Software or parts thereof (including bugfixes and patches) that replace or supplement the already existing, in particular defective functions of the Contractual Software, without extending the scope of functions.
(d) Upgrade. The term Upgrade under this Chapter C. means a new or improved programme
version of significant parts of the Contractual Software or parts thereof, which as compared to the previous Contractual Software, show a significantly extended scope of functions and contain other adjustments and/or corrections.
(e) Release. The term Release under this Chapter C means an installable programme version, which contains either fault corrections and/or additional features and functionalities.
(f) Version-No. A Release is clearly marked through a Version No. The Version No. consists of Major-Version-No., Minor-Version-No. and Release-No. The elements of the Version-No. are separated by a point; .Major-Version-No., Minor-Version-No. and Release-No., e.g..: 3.4.11
§ 10 Performance
10.1 Hotline Support. In the case of Malfunctions of the Contractual Software, the Customer
shall accurately describe them and picturesafe shall provide telephone support and related assistance to the Customer during the agreed service hours (Section 12.2) (hereinafter „Hotline Support“).
10.2 RAS Procedure. If and to the extent that the provision of maintenance services by way of Remote Access Support (hereinafter „RAS Procedure“) is provided for in the Software Maintenance Service Schedule, maintenance services – provided picturesafe considers them to be adequate in the individual case – may be fully or partly rendered by way of RAS Procedure.
The following requirements have to be met:
(a) The Customer shall be responsible for providing access to the Contractual Software.
(b) picturesafe recommends a Remote-Access VPN (OpenVPN). Alternative VPN-Procedures used by the customer may also be implemented, e.g. via Token, provided that a simple usage method is given to picturesafe. Picturesafe emphasizes to the Customer that the RAS Procedure is connected with the risk of damage to or loss of the Customer’s hardware, the software and/or data, in particular.
(c) With respect to systems affected by the RAS Procedure, picturesafe recommends making an adequate backup copy at least daily. Non-observance of this recommendation will significantly reduce the Customer’s chances of limiting any damage occurring as a result of the RAS Procedure.
§ 11 Removal of Malfunctions
11.1 Removal of Malfunctions. picturesafe shall remove Malfunctions in the Contractual Software to the extent described hereafter. The removal of defects of the Contractual Software under warranty provisions shall not be subject to the Software Maintenance Agreement but to the provisions under Section E. of these General Terms and Conditions.
11.2 Malfunction Notification. The Customer shall report any Malfunctions in writing, whereby notification by email shall suffice. This written notification shall be enjoined with a specific and qualified description of the Malfunction containing in particular information on the circumstances surrounding the appearance of the Malfunction, it’s consequences, and possible causes (hereinafter ”Malfunction Notification”). Upon request, the Customer shall reasonably provide picturesafe with documents and information required by picturesafe to assess and remove the Malfunction.
11.3 Malfunction Categories. Upon receipt of the Malfunction Notification, picturesafe shall evaluate the Malfunction in accordance with the following categories:
(a) Operation-Preventing Malfunction. An Operation-Preventing Malfunction occurs when the use of the (Contractual) Software, e.g. due to defective or other conditions, is not possible or if crucial production-relevant functions are significantly restricted as a result.
(b) Operation-Impeding Malfunction. An Operation-Impeding Malfunction occurs when the use of the (Contractual) Software, e.g. due to defective functions, incorrect work results or other conditions, is greatly restricted or if crucial functions or processes do not function normally.
(c) Minor Malfunction. A minor Malfunction occurs when the use of the Contractual Software is not significantly or directly impeded. For instance, when the descriptions of certain filters or labels are incorrect, but the functions attached thereto are not significantly impeded.
Reaction Time. This refers to the time by which picturesafe is required to begin the Malfunction-removal process. This may also mean that by this time an analysis of the reported malfunctions must have begun, before further steps to reach a solution can take place.
11.4 Malfunction Category “Operation-Preventing.” With regard to malfunctions in this category, picturesafe is required, after the appropriate Malfunction Notification (see Section 11.2), to remove the malfunction as quickly as possible. For this, all steps necessary to remove the malfunction will be begun immediately and continuously in accordance with the service category (see Section 12) chosen by the customer. If a quick or complete malfunction removal is not possible, picturesafe may set up a work-around solution, which seeks to circumvent or lessen the effect of the malfunction.
11.5 Malfunction Category “Operation-Impeding.” With regard to malfunctions in this
category, picturesafe is required, after the appropriate Malfunction Notification (see Section 11.2), to remove the malfunction in accordance with the service category chosen by the customer. The goal is for this malfunction to be removed within the next release, which will be provided by picturesafe to the customer. In this regard, the steps to remove the malfunction will be begun in a timely manner. If a timely or complete malfunction removal is not possible, picturesafe may set up a work-around solution.
11.6 Malfunction Category “Minor.” With regard to malfunctions in this category, picturesafe
is required, after the appropriate Malfunction Notification (see Section 11.2), to remove the malfunction within an appropriate amount of time through the delivery of a Release, as defined by Section 9.2.e.
11.7 Bugfixes/Updates/Upgrades and Releases
(a) Transfer. picturesafe offers Bugfixes and Updates to the customer for the purpose of removing malfunctions within the scope of this contract. The transfer of such Releases, including the related Release Notes, takes place in object code form on a suitable data storage carrier or via transmission of the required information as a download on the
internet. The installation of Releases is not part of the Maintenance Contract an will be invoiced separately.
Upgrades are not a service component of this Software Maintenance Contract and must be charged for separately. Upgrades as defined in Section 9.2.d, are Releases of which the Major-Version-Number is larger than the Major-Version-Number of the Software, to which this Software Contract relates.
(b) Installation. The Customer shall ensure that the Updates and Releases provided by picturesafe shall be installed without delay, unless this is unreasonable to the Customer, in which case no fault will be assigned the Customer.
(c) Adaptation Works. In the event that individual adaptation works are carried out for the Customer on the occasion of a Release, picturesafe shall bring them to account as Project Services on the basis of picturesafe’s current price list. The basis for the calculation of maintenance services as set forth in Section 16.1 shall be increased accordingly.
§ 12 Maintenance Categories
12.1 Maintenance Categories. picturesafe offers maintenance categories on an individual basis. The maintenance category requested by the Customer shall be specified in the Software Maintenance Service Schedule.
12.2 Service Hours. The service hours for the maintenance services owed by picturesafe shall depend on the maintenance category selected.
The service hours by default are: workdays (excluding Saturdays, Sundays and National German public holidays) from 9:00 am to 17:00 pm.
§ 13 Scope of the Agreement
13.1 Services not Included in the Scope of the Agreement. The following services are not
covered by the fee determined in the Software Maintenance Service Schedule nor are they included in the scope of the Software Maintenance Agreement:
(a) Maintenance services for software that is not used under the conditions of use prescribed by the manufacturer (including operation outside of the agreed hardware-specifications), that does not belong to the original version of the Contractual Software specified in the Software Maintenance Project Schedule, or that relates to the software supplied by picturesafe, but is not included in picturesafe’s scope of delivery.
(b) Support for, or advice on, difficulties in using the Contractual Software.
(c) Maintenance services that become necessary due to the Customer’s non-observance of the instructions contained in the Manual and/or in the Service Schedule relating to the Contractual Software, due to other forms of misuse, negligent or wilful damage to the Contractual Software by the Customer, by third party intervention, or by other influences not caused by picturesafe.
(d) Maintenance services for Contractual Software altered by the Customer or by a third party, unless picturesafe consented in writing to such alteration, or unless the Customer is able to prove that the alteration has no impact on the maintenance service. Nevertheless, for any extra expenses caused due to the alteration, consideration shall be paid to picturesafe on the basis of picturesafe’s general price list.
(e) Preventive maintenance services for removing defects of the Contractual Software of which picturesafe gains knowledge regardless of its use by the Customer.
(f) Adaptation of the Contractual Software to new or altered requirements of the Customer, in particular adaptations to new products or services of the Customer, to modified operational processes, or to a modified hardware and/or software environment, including new programme versions of third party software used in the Customer’s system.
13.2 Services at the System Site. The maintenance services are limited to the Contractual Software at the system site as specified in the Software Maintenance Service Schedule. picturesafe shall be notified if the site of the system, in which the Contractual Software is used, is altered. In the case that due to such alteration additional costs are incurred during the performance of the maintenance services, they shall be borne by the Customer on the basis of picturesafe’s current price list.
13.3 Restriction to Certain Programme Versions. picturesafe shall perform maintenance services for one programme version for a period of at least 6 months after its release. Otherwise, picturesafe’s obligation to perform the contractual maintenance services relates to the latest version, respectively, and the programme version (Minor-Version-No., ref. 9.2 (f) of the Contractual Software preceding the latest version. In the case that the Customer has still installed an older version of the Contractual Software, picturesafe may refuse to perform maintenance services or - at its discretion – choose to carry out the maintenance services with separate reimbursement of the expenditure and effort relating thereto on the basis of its current price list.
13.4 Additional Maintenance Services. picturesafe shall perform additional maintenance services for a separate order for a separate applicable fee, if at the time of requesting the services sufficient qualified personnel is available.
§ 14 Customer’s Cooperation
14.1 General and Special Obligations to Cooperate. The Customer shall upon picturesafe’s request, perform in a timely manner and for free, all obligations of cooperation required for the implementation of the Maintenance Agreement. In particular, the Customer shall perform the following obligations of cooperation:
(a) The Customer shall designate one or several of its first-level-support employees engaged at the Customer’s system site as contact persons for picturesafe. They shall have full authority and shall be duly authorised to make all decisions required for purposes of implementing the Software Maintenance Agreement. In order to standardize the information flow, picturesafe may demand that notifications of Malfunctions are only
made via this/these contact person(s) or a previously reasonable selected group of people;
(b) The Customer shall give notification of Malfunctions in accordance with the provisions under Section 11.2;
(c) The Customer shall document Malfunctions and undertake its best efforts to support picturesafe in the search for the origin of the Malfunction;
(d) Prior to submitting a qualified malfunction notification, the customer is required to review and rule out all possible internal causes or sources, which could have led to the malfunction and which lie exclusively in the customer’s area of responsibility.
(e) The customer shall inform picturesafe of all changes, made to hardware, operating systems, configurations, etc. used by the customer, which may have an impact on the maintenance of the contractual software.
14.2 Data backup. Under the Software Agreement picturesafe shall assume no responsibility
whatsoever for the maintenance of the Customer’s individual data. The Customer is aware that maintenance services carried out on software may entail data loss. The Customer is responsible for providing work-around solutions and backup measures for protecting stored data from damage or loss (backup copies etc.). The Customer is responsible for carrying out the necessary data backups regularly (10.2.(c)) and, in particular, prior to the installation of an update.
§ 15 Rights of Use
picturesafe grants the Customer the right to use, - according to Chapter A., Section 2 and Chapter B. Section 7 - as part of the Contractual Software, information for preventing or working around a Malfunction (so-called “work-arounds”), error correction codes, or Releases provided by picturesafe to the Customer as part of the software maintenance services. This granting of a licence shall not be affected by a termination of the Software Maintenance Agreement. picturesafe reserves all other rights of use, including the right to make available to third parties the same work-arounds, correction codes, or releases.
§ 16 Fees
16.1 Fees and Invoicing. The Customer shall pay in advance, by the beginning of each calendar quarter, the fees agreed toin the Software Maintenance Service Schedule for the billing periods specified therein. The proportional fee for a maintenance period preceding the first full billing period shall be invoiced to the Customer together with the fees for the first full billing period.
16.2 Other Services. Services, in particular those provided for under Section 13, that are not due under the Software Maintenance Agreement shall be brought to account on the basis of the time expended based on picturesafe’s relevant price list valid at the time of placing the order.
16.3 Right to Adjust. 12 months after the commencement of the Agreement, at the beginning of a new billing period, picturesafe shall be entitled, on the occasion of a general increase of the rates of its price list, to adjust the fees in proportion with the general increase by written notification to the Customer three months in advance. In the event that the fee is increased by more than 10% compared to the prior applicable fee the Customer shall be entitled, within two months of the notification of the intended fee adjustment, to terminate the Software Maintenance Agreement with effect to the date on which the fee adjustment comes into effect.
§ 17 Contractual Term
17.1 Term. The date of commencement of the Agreement is specified in the Software Maintenance Service Schedule. The Software Maintenance Agreement is concluded for a term of 12 months (hereinafter „Initial Term“) and is extended automatically by another 12 months (hereinafter „Extended Term“) unless the Agreement is terminated by one of the Parties.
17.2 Termination. After 12 months the Agreement may be terminated giving three month’s
prior notice to the end of the Initial Term or the Extended Term. The notice of termination shall only be effective if in writing. The right of extraordinary termination for cause shall not be affected.
D.
Services
§ 18 Subject Matter of the Service Agreement
18.1 Scope of Performance. The Services Service Schedule conclusively stipulates the subject
matter of the Service Agreement. The Services Service Schedule particularly specifies the nature and scope of the Services due and their specifications, course of procedure and dates, and, where applicable, the Customer’s obligations of cooperation, the Customer’s effective rights to verify that picturesafe observes the contractual terms, the fees due, and any other details of contractual implementation. No other services shall be due than those specified in the Service Schedule.
18.2 No Warranty of Quality. The specifications in the Services Service Schedule do not provide for any warranties of quality.
§ 19 Customer’s Obligation of Cooperation
19.1 Contact Person. The Customer shall, as shall picturesafe, denominate a main contact person. The contact persons shall be responsible for all questions of contractual implementation and shall consult with each other thereunto. The contact persons’ declarations shall be binding for the respective contracting Party.
19.2 Obligation to Cooperate. The Customer shall perform, free of charge, the obligations of
cooperation required for the implementation of the Agreement. In particular, the Customer shall transmit to picturesafe all information and data relevant to the
implementation of the Agreement. Where required, the Customer shall also assign qualified personnel to assist in the contractual work.
19.3 Violation of the Obligation to Cooperate. In the event that the Customer fails to fully meet its obligations to cooperate in due time, thus causing a delay that has an impact on the agreed timelines, the Parties shall accordingly adjust said timelines. In the event that due to such violation of an obligation to cooperate picturesafe incurs additional expenditure and/or efforts, the Customer shall separately pay a consideration for such expenditure and efforts on the basis of picturesafe’s current price list.
§ 20 Acceptance
20.1 Acceptance Test. In the case that picturesafe owes the production of work (contract for
work, § 631 BGB under the Project Agreement, picturesafe shall deliver the work performed to the Customer for acceptance. Acceptance shall take place by way of an acceptance test that the Customer shall commence immediately upon delivery of the work.
20.2 Defect. The Customer shall immediately inform picturesafe of any defects that come to
the Customer’s knowledge during the acceptance test. The Customer shall notify picturesafe in writing of any material defects by describing the defect and the circumstances of its appearance. picturesafe shall remove any material defects and subsequently redeliver the work to the Customer for acceptance. Any defects revealed during an acceptance test that do not or only insignificantly impede the contractual use of the work (immaterial defects) shall not entitle the Customer to refuse acceptance.
20.3 Acceptance Certificate. If the Customer is not entitled to refuse acceptance the Customer shall immediately upon carrying out the acceptance test declare acceptance in writing. Immaterial defects shall be recorded in the acceptance certificate as Defects and removed by picturesafe under the warranty provisions.
20.4 Fictitious Acceptance. In the case that the Customer fails to accept acceptable work within a reasonable period of time set by picturesafe, or if the Customer already productively uses acceptable work, this shall be deemed equal to acceptance.
§ 21 Data processing
In the case that picturesafe is commissioned to process data for the Customer, the Customer shall be responsible for providing the data in full, correctly and in a timely manner. Unless otherwise expressly agreed in the Services Service Schedule, picturesafe shall not examine the data for its accuracy.
§ 22 Rights of Use, Liability, and Indemnification
22.1 Rights of Use. In the case that, in order to perform the Services Agreement, the Customer grants picturesafe the right to use data, images, texts or other materials that are subject to third party copyrights or other intellectual property rights, the Customer shall grant
picturesafe a non-exclusive, non-assignable licence, sublicensing excluded, to reproduce, distribute and modify such data, images, texts, and other materials.
22.2 Liability. The Customer shall ensure that it possesses the required rights to these data, images, texts, or other materials to perform the Service Agreement, and that they are free of third party intellectual property rights, and that no other rights apply that may limit or exclude contractual usage by picturesafe. In particular, the Customer shall ensure by way of concluding corresponding agreements with its employees, agents, or principals, that the contractual scope of use is not limited by any joint copyrights or any other rights.
22.3 Third Party Claims. The Customer shall assume unlimited strict liability vis-à-vis third parties who raise claims of infringement of copyrights or other intellectual property rights in relation to the data, images, texts or other materials provided to picturesafe, and the Customer shall indemnify and hold picturesafe free and harmless from and against any such claims. The Parties shall duly inform each other without delay in the event that such claims are raised.
§ 23 Data Protection
23.1 Commissioned Data Processing. The Parties mutually agree to observe the relevant data
protection laws. If and inasmuch as picturesafe processes personal data for the Customer, picturesafe shall perform these services for the Customer as commissioned data processing (§ 11 Bundesdatenschutzgesetz (German Data Protection Act)). picturesafe shall ensure that its employees are bound to data secrecy.
23.2 Supervisory Authority. The Customer shall continue to be the sole authorised user of personal data („master of the data“). picturesafe shall process the personal data that it obtains from the Customer, or that it processes for the Customer under the Agreement only according to the Customer’s instructions and the provisions of this Service Agreement. In the case that any instructions given violate data protection laws, picturesafe shall advise the Customer thereof. The Customer shall pay reasonable consideration for any additional expenses or costs incurred due to the Customer’s instructions exceeding the protective measures required by law.
23.3 Third Party Claims. In the case that picturesafe is commissioned by the Customer to process data and third parties raise claims against picturesafe on the grounds of these data, the Customer shall hold picturesafe free and harmless and indemnify picturesafe for the damage caused (including reasonable attorney’s fees).
23.4 Right of Inspection. picturesafe shall enable the Customer’s data protection officer, after prior announcement to verify or let verify within a reasonable period of time that picturesafe observes the data protection provisions in this Service Agreement and data protection laws.
§ 24 Fees
24.1 Fees. Consideration shall be paid in the form of a monthly flat rate and/or by invoicing individual services. Details are specified in the Services Service Schedule.
24.2 Invoicing. picturesafe shall draw up one invoice each for the payable amounts. The time for invoicing is specified in the Services Service Schedule.
24.3 Additional Costs. Costs exceeding the work required for the agreed performance (e.g. travelling expenses, fare, licences fees for third party software, data carriers, and the cost of sending data carriers by mail) shall be brought to account at cost price and invoiced to the Customer separately.
§ 25 Term and Termination
The date of commencement of the Agreement, the contractual term, and the possibilities to terminate the Service Agreement are set forth in the Services Service Schedule. Notice of termination shall only be effective if in writing. The right of extraordinary termination for cause shall not be affected.
E.
General Part
§ 26 Scope of Application of the GTC
These present GTC shall only apply to business people as defined by § 14 BGB.
§ 27 Exclusion of Customer’s GTC
picturesafe does and will not accept or acknowledge any terms and conditions of the Customer that are contradictory to or deviate from these present GTC.
§ 28 Confidentiality
28.1 Secrecy. Each of the Parties agrees to keep any and all information and/or documents of the other Party, its business partners and/or its customers, respectively, that is/are marked as business or trade secrets or that are clearly identifiable as such, („Confidential Information“) secret for the term of the respective Agreement and after its expiration. Each Party shall accordingly instruct its employees and obligate them to observe this clause.
28.2 Exceptions. The obligation to maintain secrecy as provided under Section 28.1 hereinafter shall not apply to Confidential Information that,
(a) was, verifiably, already known to the recipient at the time of conclusion of the respective Agreement or became known to the recipient through a third party, or that was developed independently by the recipient, without thereby violating any agreements of confidentiality, statutory provisions, or official orders,
(b) was publicly known at the time of conclusion of the respective Agreement, or became publicly known for no fault of either of the Parties, and without being due to a violation of the respective Agreement,
(c) has to be disclosed on the grounds of a statutory obligation, or a court or official order. If so permitted and possible, the recipient who is under an obligation to disclose the information will notify the other Party in advance of the statutory obligation or order to publicise and give the other Party the opportunity to proceed against such disclosure.
(d) The burden of proof of the existence of one of the aforesaid exceptions shall be upon the Party invoking the exception.
28.3 Reference Customer Agreement. picturesafe shall be entitled to use the fact of the contractual relationship with the Customer as a reference for other clients and/or projects.
§ 29 Warranty
29.1 Unlimited Warranty. In the case of wilful intent, claims under the Produkthaftungsgesetz (German Product Liability Act), the assumption of a warranty of quality, fraudulent concealment of a defect, or in the case of an injury to life, body, or health, the Customer’s warranty rights and their statute of limitation shall be according to statutory law. Otherwise, the provisions following hereinafter shall apply.
29.2 Service Contract. In the case that picturesafe does not owes a success under a contract but also the provision of services (service contract as defined by § 611 BGB), the statute of limitation for all and any warranty claims shall be 12 months. Otherwise, defects in the provision of services shall be subject to the limitations of liability as provided for under Section 30.1 and 30.2 of these present GTC and, in addition, the statutory warranty provisions. In the case that picturesafe owes other performance than the provision of services, the provisions following hereinafter shall apply.
29.3 No Warranty for Ordinary Software Errors. The Customer accepts and acknowledges that according to the current state of the art it is not possible to develop complex software products that are entirely free of defects. Therefore, the agreed quality of the Contractual Software is not intended to be such that no programming errors whatsoever occur, but that the Contractual Software does not show any programming errors that adversely affect its performance and usability more than just immaterially.
29.4 Obligation to Inspect for and Give Notification of Defects. Where picturesafe performs
a delivery under an Agreement (purchase agreement, § 433 BGB) or supplies a movable object to be manufactured by it (contract for work and material, § 651 BGB), claims against picturesafe on the grounds of defects of the delivered Contractual Software, the Manual, or any Updates and Releases are subject to the precondition that the Customer has duly observed its inspection and notification obligation under § 377 Handelsgesetzbuch (German Commercial Code). The Customer shall give notification of obvious defects in writing without delay and no later than within two weeks after receipt of the object. In the case that picturesafe is obliged to also install the Contractual Software purchased by the Customer and to train the Customer’s employees in respect of the Contractual Software purchased, the time limit for giving notification of obvious defects shall commence upon acceptance of the installation and/or the completion of the training. The Customer shall give written notification of any hidden defects without delay
and no later than within two weeks of discovering them. In the case of a violation of this obligation, all and any warranty claims shall be excluded.
29.5 Alterations of the Contractual Software by the Customer. In the case that picturesafe
delivers an object under an Agreement (purchase agreement, § 433 BGB) or delivers an object to be manufactured by it (contract for work and material, § 651 BGB), warranty claims on the grounds of defects in quality or in title of the Contractual Software shall be excluded if the Customer alters the object or arranges for it to be altered by a third party without picturesafe’s prior approval, unless the Customer is able to prove that the defect in question was not caused by the alteration carried out by the Customer or the third party and that defect analysis and removal is not affected by the alteration.
29.6 Subsequent Performance. picturesafe shall remove defects of which the Customer notifies it in writing within the warranty period. The Customer shall assist in the removal of the defect by providing the necessary information and documents, and in any other reasonable manner.
(a) Purchase Agreement and Contract for Work and Material. In the case that picturesafe
delivers an object under an Agreement (purchase agreement, § 433 BGB) or delivers an object to be manufactured by it (contract for work and material, § 651 BGB), picturesafe shall remove any defects at its choice, either by remedying the defect (subsequent improvement) or by delivering a defect-free object (new delivery). The Customer may, within a reasonable time limit, demand subsequent improvement or new delivery if the other form of remedy, respectively, is unreasonable to the Customer.
(b) Contract for Work and Material. In the case that picturesafe owes manufacture of a work under an Agreement (contract for work, § 631 BGB), defects shall be removed at picturesafe’s choice, either by remedying the defect or manufacturing a new work.
29.7 Withdrawal from the Agreement or Reduction of the Purchase Price. Unless
withdrawal from the Agreement is excluded by law, the Customer shall be entitled to withdraw from the Agreement or reduce the purchase price, no earlier than by the end of a reasonable time limit set by the Customer, within which two attempts of subsequent improvement are possible, unless one attempt of subsequent improvement has already failed, or if an additional time limit can be dispensed according to statutory provisions for other reasons.
29.8 Compensation for Damage and Reimbursement of Expenses. Subject to the limitation
of liability provided for under Sections 30.1 und 30.2, the Customer may claim compensation for damage and reimbursement of expenses if picturesafe is at fault.
29.9 Fees. In justified warranty cases, the Customer shall not be charged any fees or costs. However, if picturesafe is able to prove that there was no defect and if the Customer culpably made a notification of a defect, picturesafe may, based on picturesafe’s current price list, demand reimbursement of expenses incurred due to the performance rendered to remove the defect.
29.10 Warranty Period. An extension of the scope of utilisation of the Contractual Software shall have no impact on the statute of limitation.
(a) Purchase Agreement and Contract for Work and Materials. In the case that picturesafe
delivers an object under an agreement (purchase agreement, § 433 BGB) or a movable object to be manufactured by it (contract for work and services, § 651 BGB), the warranty claims shall be subject to a statute of limitation of 12 months as from delivery. If in view of the Contractual Software purchased by the Customer picturesafe is also obliged to install it and train the Customer’s employees, warranty claims shall be subject to a statute of limitation of 12 months as from acceptance of the installation services, or upon completion of the training, whatever occurs last. § 438 par. 1 no.1(a) BGB shall not be affected.
(b) Contract for Work. In the case that under an Agreement picturesafe owes the production of a work, (contract for work, § 631 BGB), warranty claims shall be subject to a statute of limitation of 12 months as from acceptance of the work manufactured. § 634 par. 1 no. 2 BGB shall not be affected.
§ 30 Liability
30.1 Unlimited Liability. In cases of wilful intent, claims under the Produkthaftungsgesetz (German Product Liability Act), assumption of a warranty of quality, fraudulent concealment of a defect, or injuries to life, body, or health, picturesafe’s liability and its statute of limitation shall be subject to statutory provisions.
30.2 Limitation of Liability. Otherwise, picturesafe shall be liable for all and any resulting damage whether on the grounds of a breach of contract, defects in quality or in title, or on the grounds of tort, subject to the provisions following hereinafter:
(a) Gross Negligence. In the case of gross negligence, picturesafe’s liability shall be limited to compensation of the typical foreseeable damage. This limitation shall not apply if picturesafe’s executive staff or legal representatives caused the damage.
(b) Slight Negligence. In the case of slight negligence, picturesafe shall only be liable for a breach of contractual obligations, the performance of which is indispensable to the achievement of the purpose of the contract, the breach of which puts the achievement of the purpose of the contract at risk, and the observance of which the Customer may normally rely upon (so-called cardinal obligations). In these cases, picturesafe’s liability shall be limited to the typical foreseeable damage. In all other cases, picturesafe shall not be liable for slight negligence.
(c) Strict Liability. In the case of strict liability for an impediment to performance occurring during default, picturesafe’s liability shall also be limited to the typical, foreseeable damage.
(d) Contributory Negligence. In the event that damage is due to both picturesafe’s fault and to the fault of the Customer, the Customer’s contributory negligence shall be attributable to the Customer.
(e) Data Loss. The Customer shall be responsible for making regular backups of its data. Without prejudice to the limitations set forth hereinabove, picturesafe shall be liable only for the loss of data to the extent that the Customer ensured that the lost data may be reconstructed with reasonable effort from data material held available in machine-readable form. Liability for data loss shall be limited to typical restoration efforts. Section 30.1 shall not be affected.
30.3 Statute of Limitation. The statute of limitation for claims of compensation for damage or reimbursement of expenses for defects in quality or title shall be subject to Section 29.10, the statute of limitation for warranty claims under contracts for services (§ 611 BGB) shall be subject to Section 29.2. All other claims of compensation for damage or reimbursement of expenses as against picturesafe shall be subject to a statute of limitation of two years as from their accrual.
§ 31 Maturity
Invoices shall be due payable in full within 14 days as from receipt of the invoice. If payment is not received in full within this period of time, picturesafe shall be entitled, without prejudice to other rights, to charge interest for default in the statutory amount.
§ 32 VAT
All and any prices and fees shall be plus the applicable statutory value added tax, as amended from time to time.
§ 33 Subcontractors
In the case that picturesafe owes a provision of services (contract for services, § 611 BGB) and wishes to assign the performance of its contractual obligations vis-à-vis the Customer to a third party, picturesafe shall only permitted to do so with the Customer’s prior approval that may not be refused without a valid reason. In all other cases, picturesafe may use subcontractors to perform its contractual obligations without the Customer’s prior approval.
§ 34 Assignment
The assignment of all and any rights and obligations under one or several of the Agreements shall only be permitted with the prior written approval of the other Party, respectively, and such approval may not be refused without a valid reason. picturesafe may assign this Agreement to an affiliated company without the Customer’s prior approval.
§ 35 Postponement
If, due to a reason for which picturesafe is not responsible (in particular strike, lockout, or inadequate cooperation by the Customer) the agreed timelines cannot be met („Disturbance“), the agreed timelines shall be postponed by the duration of the Disturbance, where necessary including a reasonable re-startup phase. Each Party shall notify the other without delay of the cause of any Disturbance occurring in its sphere and its anticipated duration.
§ 36 Miscellaneous
36.1 Priority. In the case of inconsistencies between a Service Schedule and these present GTC, the provisions of the Service Schedule shall prevail.
36.2 Entire Agreement. The individual Agreements constitute the entire agreements
concluded between the Parties in relation to the subject matter of the respective Agreement. No ancillary oral agreements have been concluded.
36.3 Written Form. Amendments of and/or supplements to the Agreements, including the individual Service Schedules or these present GTC, shall only be effective if in writing. The same applies to a waiver of this requirement of the written form.
36.4 Severability Clause. In the case that individual provisions of an Agreement are or become invalid, the validity of that Agreement shall not be affected. Instead of the invalid provision, picturesafe and the Customer shall mutually agree upon a provision that comes closest to the intended provision and the economic purpose of the Agreement concerned. The same shall apply in the case of gaps or omissions in an Agreement.
36.5 Applicable Law. The Agreements are governed by German law. The application of the UN
Convention on the International Sale of Goods (CISG) shall be excluded.
36.6 Place of Jurisdiction. The place of jurisdiction for disputes arising from the Agreements shall be Hanover, Germany.
