Translation Disclaimer: These Terms and Conditions are an automated translation of the original German version. They are provided solely for the convenience of non-German-speaking users. In case of any inconsistency, ambiguity, or dispute regarding interpretation, the original German version shall prevail and be the only legally binding version.
Supplement to our General Terms and Conditions (GTC), see texts “HPTF AV”.
Confidentiality: The contents of this document are the property of HighPots GmbH. It may not be duplicated, disclosed to third parties, or otherwise published, either in whole or in part, without the written permission of HighPots GmbH or its subsidiaries, branches, or shareholders.
A1: Care software
HighPots GmbH shall provide the maintenance services agreed below only for the current version of the standard software agreed as the object of maintenance (“maintenance software”) in return for the agreed remuneration. If third-party software is expressly agreed as maintenance software in the contract, the restrictions described therein shall apply.
HighPots GmbH provides the following care services:
A2: Incident management
1)
Vertragliche Leistungen – die HighPots GmbH wird Störungsmeldungen des Kunden entgegennehmen, den vereinbarten Störungskategorien zuordnen und anhand dieser Zuordnung die vereinbarten Maßnahmen zur Analyse und Bereinigung von Störungen durchführen.
Incident management does not include services related to the use of maintenance software in non-approved environments or to changes made to the maintenance software by the customer or third parties.
2)
Acceptance of fault reports from customers – HighPots GmbH will accept valid fault reports from customers during its normal business hours and assign each report a reference number. Upon request from the customer, HighPots GmbH will confirm receipt of a fault report and provide the assigned reference number.
3)
Assignment to fault categories – unless otherwise agreed, HighPots GmbH will assign fault reports received to one of the following categories after initial review:
4)
Implementation of measures to rectify faults: In the event of reports of serious faults and other faults, HighPots GmbH will immediately take appropriate measures based on the circumstances reported by the customer in order to first locate the cause of the fault.
If, after initial analysis, the reported malfunction does not appear to be a fault in the maintenance software, HighPots GmbH will inform the customer immediately.
Otherwise, HighPots GmbH will take appropriate measures for further analysis and rectification of the reported malfunction or, in the case of third-party software, forward the malfunction report together with its analysis results to the distributor or manufacturer of the maintenance software with a request for remedy.
HighPots GmbH shall immediately provide the customer with any measures available to it for circumventing or rectifying an error in the maintenance software, such as instructions or corrections to the maintenance software. The customer shall immediately implement such measures to circumvent or rectify malfunctions and shall immediately report any remaining malfunctions to HighPots GmbH when using them.
A3: Provision of new versions
A3.1: Contractual services
HighPots GmbH provides the customer with certain new versions of the maintenance software in order to keep it up to date and prevent malfunctions. HighPots GmbH provides the customer with updates to the maintenance software that include technical modifications and improvements as well as minor functional enhancements and improvements. Furthermore, HighPots GmbH provides the customer with patches containing corrections to the maintenance software and other workarounds for possible malfunctions. These new versions of the maintenance software are collectively referred to as “New Versions.”
The provision of upgrades with significant functional enhancements or new products or obligations to further develop the maintenance software is not included in the maintenance services, unless otherwise expressly agreed.
A3.2: Obligations and rights regarding new versions
HighPots GmbH shall provide the customer with new versions of the software. The customer shall examine new versions immediately and report any identifiable defects without delay, for which § 377 HGB (German Commercial Code) shall apply accordingly. Malfunctions and defects shall be handled in accordance with Section A2.
If HighPots GmbH has provided the customer with a new version, it will continue to maintain the previous version for a reasonable transition period, which generally does not exceed three months.
With regard to new versions, the customer shall only be entitled to assert claims for defects if the reported defects are reproducible or can otherwise be proven by the customer. Section 3.2 of the General Terms and Conditions (HPTF AV) shall apply in particular to the notification of defects.
If the customer is entitled to claims for defects, they initially only have the right to subsequent performance within a reasonable period of time. Subsequent performance includes, at the discretion of HighPots GmbH, either repair or the delivery of replacement software. The interests of the customer will be taken into account appropriately when making a choice.
A4: Point of contact
A4.1: Contractual services
HighPots GmbH sets up a point of contact for the customer. This can be:
This department handles customer inquiries relating to the technical requirements and conditions for using the care software, as well as individual functional aspects.
The contact point does not provide any services related to the use of maintenance software in non-approved environments or to changes to the maintenance software by the customer or third parties.
A4.2: Acceptance and processing of inquiries
The customer shall only designate to HighPots GmbH personnel who are suitably qualified in terms of expertise and technical skills and who are responsible internally at the customer’s premises for processing enquiries from users of the care software. Only this personnel designated to HighPots GmbH shall address enquiries to the contact point, using the templates provided by HighPots GmbH for issue description. The contact point will receive such requests and enter the resulting actions into an issue/ticket tracking system during the usual business hours of HighPots GmbH.
The contact point will process proper inquiries in the normal course of business and respond to them as far as possible. The contact point may refer to documentation and other training materials for the maintenance software available to the customer in order to respond. If the contact point is unable to respond or cannot respond promptly, HighPots GmbH will forward the inquiry for processing, in particular inquiries regarding maintenance software not manufactured by it.
Any additional services provided by the contact point, such as other contact times and deadlines, on-call services, or assignments carried out by HighPots GmbH at the customer’s premises, must be expressly agreed in advance.
A5: Additional services
Services beyond those specified in sections A 2 to A 4 are not owed under this contract, require a separate agreement, and must be remunerated separately. This may include, for example, additionally agreed on-site visits to the customer, consulting and support for modified software, clarification of interfaces to third-party systems, and installation and configuration support.
The following provisions apply equally to fault management (A2), the provision of new versions (A3), and the point of contact (A4).
1)
Unless otherwise agreed, the maintenance contract shall commence upon delivery in accordance with the transfer agreement for the standard software.
2)
After expiry of any agreed minimum term, the care contract may be terminated in writing with three months’ notice to the end of a calendar year, but for the first time at the end of the calendar year following the conclusion of the contract. In addition, the contract may be terminated by HighPots GmbH and customers without notice for good cause.
3)
Notices of termination are only valid in writing.
The customer pays for the care services through a regular flat fee. The care fee is payable in advance for the billing period and will be invoiced to the customer by HighPots GmbH at the beginning of the billing period. The billing period is generally the calendar year. If the contract begins within a billing period, the fee is payable pro rata and will be invoiced upon conclusion of the contract.
2. Vergütung von Zusatzleistungen
Additional services that are not covered by the flat-rate remuneration shall be remunerated in accordance with Section 1.1 of the HPTF AV.
3. Adjustment of remuneration
HighPots GmbH may adjust the remuneration annually in line with general list prices. The customer has a right of termination if the remuneration rates increase by more than ten percent.
The customer’s rights of use for new versions and other corrections to the maintenance software correspond to the rights of use for the previous version of the maintenance software. With regard to the rights of use, the rights to the new versions and other corrections shall replace the rights to the previous versions and other corrections after a reasonable transition period, which shall not normally exceed one month. The customer may archive one copy.
1)
The customer shall immediately notify HighPots GmbH of any changes to the operating environment. In addition, the customer shall ensure that the care software is only used in an approved environment supported by the care software.
2)
Unless otherwise agreed, the customer shall additionally store all documents, information, and data provided to HighPots GmbH in such a way that they can be reconstructed in the event of damage to or loss of data carriers.
Insofar as software is transferred within the scope of these terms and conditions and nothing else has been agreed, this shall be done in the same way as for the transfer of maintenance software.
Insofar as HighPots GmbH has access to personal data stored on the customer’s or its suppliers’ systems, it shall act exclusively as a contract data processor and shall only process and use this data for the purpose of performing the contract.
HighPots GmbH shall comply with the customer’s instructions regarding the handling of this data. The customer shall bear any adverse consequences of such instructions for the performance of the contract. Details regarding the handling of personal data shall be agreed in writing by the contracting parties as necessary.