General terms and conditions
Software as a Service (B2B)
Note:
The Terms and Conditions have been translated for informational purposes. In the event of any discrepancies, ambiguities, or inconsistencies, only the German version shall be legally binding.
§1 Scope and subject matter of contract Terms and conditions
(1) The following conditions apply to the conditions between etiscan Identification Systems GmbH, Gustav-Kayser-Strasse 24 in 61231 Bad Nauheim, represented by managing directors Andre Kiehne and Jens Hantschel (hereinafter “etiscan”) and contract partners (hereinafter customer) contracts concluded for the provision of Software as a Service (SaaS) services for a fee and for a limited period of time.
(2) These contract conditions and the respective individual contract concluded between the parties, including attachments, apply exclusively unless the parties are in writing (In the context of this agreement, written always means signed electronically) Arrange something else. The customer's contractual terms do not apply. The inclusion of the customer's terms and conditions is expressly rejected.
(3) This agreement is aimed exclusively at entrepreneurs within the meaning of §14 BGB. There is therefore no right of withdrawal in accordance with §§ 312g, 355 BGB.
(4) The respective service description of the software is an essential part of the contract.
(5) These contract terms form a framework for the use of the software. Orders for further modules, functional packages or usage quotas are made on the basis of the contractual terms valid at the time the order is placed. This applies in particular to modules that are only booked after these contract conditions have been incorporated.
§2 Scope of services
(1) etiscan develops and operates a cloud-based software solution that is used for mobile recording, processing and transmission of logistical process data. The latest version of the software solution is usually made available to the customer for use via the Internet using a Software-as-a-Service (SaaS) model.
(2) Software is only provided for installation on servers or other infrastructure if this is necessary due to technical conditions. These exceptions must be approved by etiscan. The application is operated on server systems operated by etiscan or on server systems provided by customers. Only one access application (client) is used on the customer's devices.
(3) The customer receives the following services:
· Provision of the software specified in the individual contract for use via the Internet
· Required caching of data exclusively for transmission to the systems connected by the customer
· Software maintenance
(4) etiscan is entitled to use subcontractors such as hosting and infrastructure providers to provide the contractually owed services, in particular for operating the software and for providing the technically required temporary storage space. The use of subcontractors does not release etiscan from its responsibility to the customer for the proper performance of the contract.
(5) Insofar as this results from the respective specific service description, the software is designed to connect to common ERP systems (e.g. Microsoft Dynamics 365, SAP, Sage). etiscan provides interfaces and/or transfer mechanisms for this purpose. Responsibility for the configuration and functionality of the customer's ERP system and for setting up the customer-side interfaces is not part of the scope of services and lies exclusively with the customer. Individual adjustments, customizing services, integration projects or training as well as other consulting or work services that go beyond the provision of the software are — unless expressly agreed — not part of the scope of services and must be agreed and paid separately.
(6) The delivery date is defined in the individual contractual agreement.
(7) Compliance with the delivery date or the provision of access by etiscan always requires the proper and timely fulfilment of the customer's obligation, insofar as this is necessary. In particular, this includes the transmission of necessary information by the customer. Without prejudice to etiscan's rights, the delivery date is extended by the time that the customer is in default in the event of customer delay.
(8) The customer is not entitled to the transfer of the source code of the software.
(9) Software maintenance and support are included in the scope of services. etiscan undertakes the maintenance of the software and keeps it in working order in accordance with technical possibilities and economic reasonableness or restores it through appropriate measures. There are corresponding regulations for software maintenance and service level agreements (SLA), insofar as they have been agreed.
(10) The specific range of functions of the software and the modules provided in each case result from the service description of the software valid at the time of conclusion of the contract and the modules or functional packages selected by the customer.
§3 Conclusion of contract
(1) The representations of etiscan on its website are always subject to change and non-binding. This also applies to technical descriptions and other information on the website, in presentations or other documents. Such representations do not constitute binding performance commitments or quality guarantees. Information is only binding if it is expressly marked as binding in an order confirmation or in the service description.
(2) By placing an order via the website, by e-mail, other text form or telephone, the customer submits a binding offer to conclude a contract. An offer made by the customer remains binding two weeks after receipt by etiscan. Within this period, etiscan can declare the acceptance. This is usually done in the form of an order confirmation by email. A confirmation of receipt sent automatically by etiscan does not represent acceptance. The order confirmation contains details of the rights of use, the duration of their granting, the price and other conditions agreed upon by the parties.
(3) etiscan is not obliged to accept an offer from the customer. Acceptance is not considered in particular if price information or other information on the website, in price lists or other documents was incorrect due to spelling, printing, transmission or calculation errors and became the basis of the customer's offer.
(4) If etiscan already grants the customer access to the software before submitting an order confirmation, this is an implied acceptance of the offer made by the customer.
§4 Right of use
(1) All etiscan software and individual modules, including the entire documentation, are both tangible and intellectual property of etiscan. etiscan remains the owner of all copyright, patent, trademark and other intellectual property rights. The ownership rights to the software remain unaffected; the customer only receives a right to use the software.
(2) Etiscan grants the customer the simple, non-exclusive and non-transferable right limited to the term of the respective individual contract, to use the software or modules specified in the individual contract as part of the SaaS service in accordance with the terms of this agreement and in accordance with the respective individual contract.
(3) The right of use is granted for own purposes and for the purposes of affiliated companies (see Sections 15 et seq. AktG; together the “Customer Group”) insofar as this has been expressly agreed between the parties in an individual contract. In the event of such an agreement, the customer is obliged to notify etiscan immediately in text form of both the departure and the addition of affiliated companies to the customer group. The use of the software by newly joining affiliated companies requires the prior approval of etiscan and may be subject to additional remuneration. If an affiliated company leaves the customer group, the customer guarantees that the use of the software by this company is immediately discontinued. If the customer fails to report the information required in accordance with sentence 2 or does not comply with his obligations under sentence 3 or 4, he is obliged to pay compensation to etiscan.
(4) The customer's right of use is based on the usage quotas defined in the individual contract (e.g. number of activated devices, number of usable modules or other individually agreed usage units). The customer is not entitled to exceed the agreed quotas without prior adjustment of the remuneration. Any use of the software beyond what is contractually agreed upon constitutes use contrary to the contract.
(5) The customer is obliged to report any extension or other change to the agreed usage quotas immediately, at the latest by the end of the following month, in text form. The use of additional devices, modules or other usage units is considered an extension of the usage quota and is charged at the applicable remuneration rates.
(6) The customer ensures that all information on the quotas, terminal devices or other units of use used is accurate and up-to-date.
(8) In the event of reasonable doubts as to the accuracy of the usage quotas reported by the customer, etiscan is entitled to carry out or have it carried out. The review is carried out by the provider or a third party bound to secrecy.
(9) In no case does the customer have the right to transfer, rent, lend, sell, sub-license or make available to third parties, for payment or free of charge, or publicly reproduce the use of the software granted to him. Third parties are natural or legal persons who are not involved in the legal relationship. However, the parties agree that the term “unauthorized third party” in this context does not include employees as part of their employment relationship and includes affiliated companies and their employees, insofar as this has been expressly agreed. Any further transfer or joint use by third parties is prohibited.
(9) The customer is prohibited from decompiling, disassembling, analyzing, modifying, imitating or otherwise technically altering or influencing the software or components of it. Only acts that are absolutely permitted in accordance with Section 69e UrhG remain permitted. Use to develop or reproduce competing products, interfaces or functions is prohibited.
(10) For the period of unagreed overuse, the customer undertakes to immediately repay the remuneration for the supra-mandatory use in accordance with the etiscan price list applicable for the respective period of use after the corresponding invoice has been issued. If the customer culpably conceals the overuse and etiscan otherwise determines this, the customer must pay lump sum compensation for the unauthorized overuse in the amount of an additional usage fee that would have been charged for authorized use in accordance with the price list applicable for the period of use. The customer is free to prove that etiscan only suffered minor damage. etiscan reserves the right to claim further damage.
§5 Allocating storage space
(1) The software processes the data generated or recorded by the customer and transmits this to the ERP system used by the customer. There is no further permanent storage of data by etiscan; only technically necessary temporary caches are carried out.
(2) The customer remains the sole responsible owner of the processed data at all times.
(3) Etiscan is entitled to carry out the technical processing steps necessary to provide the contractually owed services, in particular to temporarily store, validate, transform or transfer data, insofar as this is necessary for the software to function.
(4) Etiscan takes appropriate technical and organizational measures to ensure the integrity and confidentiality of data during processing and transmission.
(5) The provider is entitled to use subcontractors (e.g. hosting providers) to provide technical services. The provider remains responsible for the proper provision of the contractually owed services.
§6 Interruption/impairment of availability
(1) Etiscan is entitled to make adjustments, changes and expansions of SaaS services as well as measures to analyze and correct errors. Temporary interruptions or impairment of availability due to such measures are permitted insofar as they are necessary for the proper provision of the services or for technical reasons. Etiscan will take such measures — as far as possible — outside normal peak hours.
(2) The annual average availability of SaaS services is 99.5%.
(3) Excluded from availability are:
a. planned announced maintenance windows,
b. times in which the services are not available due to circumstances beyond the control of etiscan or subcontractors employed by etiscan (in particular force majeure, failures of communication networks or power supply, faults or failures in the customer's systems),
c. Impairments to accessibility caused by necessary technical measures in accordance with paragraph 1.
(4) etiscan generally informs the customer at least three days in advance about planned maintenance work and its effects.
(5) Urgent safety-related maintenance measures, in particular to remedy critical security gaps, may exceptionally be carried out at any time, at short notice and without prior notice, provided that this is necessary to ensure system security.
(6) Service Level Agreements (SLA) apply to further or deviating availability regulations, insofar as they have been agreed. In the event of conflicting regulations, the provisions of the SLA take precedence over the provisions of these terms and conditions.
§7 Customer obligations
(1) The customer is obliged to support etiscan in executing the contract to the best of its knowledge and belief and to create all conditions necessary for the proper execution of the contract. In particular, the customer will provide etiscan with all information necessary to fulfill the contract. This includes in particular information that is necessary to provide the software and other services. This also includes the customer informing employees in good time about upcoming services provided by etiscan.
(2) The customer is obliged to prevent unauthorized access to the software by third parties by taking appropriate measures.
(3) Insofar as access to the software is via registered devices, access data, authentication information or comparable security features (e.g. user IDs, passwords, tokens, API keys, certificates or other device-related activations), the customer or his employees must treat them confidentially and protect them from access by unauthorized third parties and not pass them on to third parties. The customer must ensure that the terminal devices or comparable security features are only used by authorized users. The customer is liable for misuse by third parties, provided that he is responsible for the unauthorised use. The loss, disclosure or suspicion of misuse of access data or comparable security features must be reported to etiscan immediately. The customer is liable for any resulting damage until etiscan receives the loss or theft report.
(4) The customer is obliged to expressly inform his employees and vicarious agents, who use the software in accordance with the provisions of these terms and conditions, that they comply with the individual contractual agreements and these terms and conditions and the provisions of copyright law.
(5) The customer has informed himself about the essential functional features of the software and individual modules and bears the risk of whether they meet his wishes and needs. Before concluding the contract, he sought advice from etiscan employees or competent third parties.
(6) The customer is solely responsible for setting up a functional hardware and software environment.
(7) The customer is solely responsible for the accuracy and completeness of the data collected or transmitted by him via the software and for their storage, backup and archiving in his ERP system or in other own systems. etiscan only temporarily processes the data for the technical implementation of the SaaS services; there is no permanent storage or backup of customer data by etiscan. It is the customer's responsibility to maintain appropriate data backup measures in its own systems.
(8) At its request, the customer will enable etiscan to verify the proper use of the software, in particular as to whether the customer uses the software qualitatively and quantitatively within the scope of the right acquired by him.
(9) For each location where the software is used, the customer appoints a contact person who is available for all necessary information and who can make or immediately make decisions necessary for the cooperation of the parties. The contacts must be familiar with the functionality of the software and with the technical features of the customer's existing IT systems.
(10) Should the customer violate an agreed obligation to cooperate and thereby prevent etiscan from providing contractual services, those deadlines and deadlines that may have been agreed upon as binding shall be postponed for the duration of the hindrance.
(11) The customer is prohibited from misusing and manipulating etiscan's system or network. This includes in particular attempts to overcome or circumvent security or authentication mechanisms, to enable unauthorised access, to inject malware or otherwise impair the integrity of the systems. In the event of misuse or a responsible violation of the integrity of the system or network, etiscan is entitled to extraordinarily terminate the contract with the customer and claim compensation.
(12) After termination of the contractual relationship, the customer may not continue to use the software in any way.
§8 Usage fee
(1) The fee to be paid by the customer results from the SaaS services, modules or usage quotas selected in the respective individual contract. The prices valid at the time of the respective order are decisive in accordance with etiscan's price list. The current price list can be requested from etiscan at any time.
(2) The fee is to be paid in advance for the respective agreed billing period. The respective billing period is based on the agreements made in the individual contract.
(3) All prices are net, i.e. excluding the applicable value added tax.
(4) On-site services provided by etiscan will be invoiced separately in accordance with the fee agreement based on expenses, unless this is an agreed special service in accordance with the individual contract.
(5) Unless otherwise agreed in an individual contract, any remuneration is due upon invoicing and must be paid without deduction to the Koto specified by etiscan within 14 calendar days of the invoice date.
(6) Payment can be made by SEPA base direct debit, insofar as this has been agreed. If this payment method is agreed upon, the customer is obliged to issue etiscan a SEPA direct debit mandate upon conclusion of the contract. The annual fee is due after the mandate has been issued, but not before the deadline for advance information (“pre-notification”) has expired. Advance information (“pre-notification”) is any message from etiscan to the customer that announces a charge via SEPA direct debit. It is usually in the form of an invoice. The customer receives the invoices via email in accordance with the billing period. The deadline for advance notice is reduced to one working day. The customer undertakes to ensure that the account is covered. Costs arising from non-redemption or chargeback of the direct debit are borne by the customer.
(7) If payment deadlines are not met, the customer will automatically be set in default. There is therefore no need for a separate payment reminder.
(8) The default interest is nine percent above the current base interest rate. The obligation to pay interest on arrears does not preclude further claims by etiscan. In particular, the customer who is in default must reimburse etiscan for all reasonable reminder, collection and information costs.
(9) The assertion of a right of retention in accordance with Sections 273, 320 BGB by the customer is excluded. The customer can only offset claims established by reciprocally valid rights.
(10) etiscan is entitled to change its prices once a year at its reasonable discretion to reflect the effects of changes in the total costs associated with its service. Examples of cost elements that influence prices include production and licensing costs, costs for technical provision and dissemination of their service, customer service and other costs (e.g. invoicing and payment, marketing), general administrative and other overhead costs (e.g. rent, interest and other financing costs, costs for personnel, service providers and services, IT systems, energy), and state-imposed fees, contributions, taxes, and duties. Price changes will be notified to the customer in writing at least 30 days in advance and apply from the announced date. If the price increases by more than 20% compared to the last agreed fee, the customer is entitled to extraordinarily terminate the contract with effect from the time of change. There is no right of termination in the event of price reductions.
§9 Malfunctions and liability
(1) Etiscan guarantees the functionality and operational readiness of the SaaS services in accordance with the provisions of this contract, subject to technical capabilities and economic reasonableness. A functional impairment exists when the software does not fulfill the functions specified in the service description, delivers incorrect results or does not function properly in any other way, so that the use of the software is impossible or restricted. There is no malfunction insofar as deviations from the agreed mode of operation only marginally affect the use of the SaaS services.
(2) The customer is obliged to immediately report any malfunctions to etiscan in accordance with the support regulations and to provide all relevant information immediately, comprehensibly and in detail. He will assist etiscan in troubleshooting.
(3) The software provided is used to collect, process and transfer data to target systems specified by the customer (e.g. ERP systems). Permanent storage or independent data backup by the software does not take place. The customer is solely responsible for securing the data stored in the ERP system or in other target systems. etiscan is excluded from liability for data losses in these systems, unless etiscan caused the loss intentionally or through gross negligence.
(4) etiscan is only liable for intent and gross negligence. It is only liable for slight negligence in the event of a breach of an essential contractual obligation (cardinal obligation), the fulfilment of which makes the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely, as well as for damage resulting from injury to life, body or health.
(5) In the event of slight negligence, etiscan's liability is limited in amount to the foreseeable damage that must typically be expected to occur. In any case, liability is limited to a maximum amount of twice the remuneration to be paid by the customer in the respective contract year.
(6) The liability regulations also apply in favour of etiscan's organs and vicarious agents.
§10 Duration and termination
(1) The term results from the respective individual contractual agreement. It is automatically extended for the respective term if it is not terminated in writing with a notice period of four weeks before the expiry of the original or extended term. In order to be effective, the termination must be made in writing (in writing always means signed electronically within the framework of this agreement).
(1) The duration of the framework agreement is based on the individual contracts concluded between the parties. The terms of the modules, function packages or usage quotas booked by the customer are also defined in the respective agreement.
(2) Modules may have different minimum run times. Partial cancellations via individual modules are possible in accordance with the respective cancellation conditions. Paragraph 1 shall apply accordingly. The termination of an individual module does not affect the duration of the remaining individual contracts.
(3) A change of legal form/name or dissolution of the customer does not result in a special right of termination. In such cases, however, etiscan may, at the customer's request, decide at its own discretion to terminate the contract early, provided that the customer pays an early repayment penalty to be agreed on a case-by-case basis.
(4) The right of each contracting party to terminate the contract extraordinarily for good cause remains unaffected if, taking into account all the circumstances of the individual case and mutual interests, the terminating party cannot be expected to continue the contractual relationship until the ordinary period of notice has expired. In particular, etiscan is entitled to extraordinary termination if
a. the customer is more than two months late in payment with a payment obligation to etiscan despite a reminder and setting a deadline, or
b. the customer falls into financial lapse, in particular opens insolvency proceedings against the customer's assets or the opening of which is rejected due to lack of property or the customer files an insolvency application, or
c. the customer breaches essential contractual obligations and does not remedy the breach of duty despite a reminder and a reasonable deadline. In particular, if the customer infringes etiscan's property rights or trade secrets, in particular disseminates the software without authorization, does not prevent unauthorised access, makes the software publicly available or circumvents technical protective measures. A warning or setting a deadline is unnecessary in these cases, provided that the infringement is so serious that a continuation of the contractual relationship is unreasonable.
§11 Confidentiality/ Data Protection
(1) The parties agree to treat all confidential or personal information received in connection with the contractual relationship confidentially and, if necessary, to protect it by taking appropriate technical and organizational measures. The information is stored, processed, used and made available to third parties exclusively within the framework of the agreed purposes.
(2) The confidentiality obligation of both parties also extends to all business and trade secrets, proceedings or other business or operational facts that have become known. It applies to employees, employees, representatives and vicarious agents and is valid even after termination of the contractual relationship.
(3) “Confidential information” means all information and documents from a party that are marked as confidential or are regarded as confidential based on the circumstances, in particular information about the respective party's products, including object codes, documentation and other documents, operational processes, business relationships and know-how.
(4) Confidential information is exempted from the duty of confidentiality
a) which were demonstrably already known to the recipient at the time the contract was concluded or become known by third parties thereafter without violating a confidentiality agreement, legal regulations or official orders;
b) which are publicly known when the contract is concluded or are subsequently made public, unless this is based on a breach of this contract;
c) which must be disclosed due to legal obligations or by order of a court or authority. To the extent permitted and possible, the recipient required to disclose will give the other party advance notice and give it the opportunity to appeal the disclosure.
(6) The parties will only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been subject to obligations in accordance with the confidentiality obligations of this Agreement. Furthermore, the parties will only disclose confidential information to those employees who they need to know in order to carry out this contract and will oblige these employees to maintain secrecy even after their departure to the extent permitted by employment law.
(7) Any culpable violation of these regulations results in a contractual penalty of 50,000 EUR. Further claims by the injured party remain unaffected.
§12 Statistical data
(8) In addition, the customer agrees that etiscan processes the customer's usage behavior and depth of use in its own IT system for its statistics and for the purpose of continuous development of the software.
(9) This data does not contain any personal information and does not allow conclusions to be drawn about identifiable natural persons or specific business processes of the customer.
(10) etiscan is entitled to analyze and evaluate the data obtained in this way in order to ensure the functionality of the software, to analyze errors and to further develop the software. The customer grants etiscan a temporally and spatially unlimited right to use and utilize the data. etiscan is entitled to take all actions relating to the statistical data that are necessary in connection with the analysis and evaluation of the statistical data for the purpose of further developing the software.
§13 Final provisions
(1) Additional agreements, amendments and additions must be made in writing in order to be lawful (in the context of this agreement, written always means signed electronically). This formal requirement cannot be overridden by oral agreement.
(2) Should individual provisions of this agreement and other agreements between the contracting parties be or become void or ineffective in whole or in part, or if the party agreements contain a formal error or a loophole, the legal validity of the remaining provisions remains unaffected. The parties agree to replace the ineffective or void provision with another effective provision that comes closest to the intended economic purpose. The same applies in case of a gap.
(3) In the event of a dispute arising from these conditions, the individual contract or an annex, the contracting parties may initiate conciliation proceedings before carrying out legal proceedings. The purpose of the conciliation procedure is to resolve the dispute in whole or in part, provisionally or finally. The statute of limitations for all claims arising from the life matter of conciliation is suspended from the request for conciliation until the end of the conciliation procedure. §203 BGB applies mutatis mutandis. The contracting parties make it clear that the prior initiation of conciliation proceedings is not a procedural requirement, regardless of whether it concerns proceedings on the merits of the matter or interim relief.
(4) The legal relationships of the parties arising from or in connection with this contract are subject exclusively to the laws of the Federal Republic of Germany, excluding the UN Convention on the International Sale of Goods. The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is the registered office of etiscan. However, etiscan is also entitled to sue at the customer's general place of jurisdiction.
§14 Amendments to the terms and conditions
(1) Unless this results in undue discrimination against the customer, etiscan is entitled to change the terms and conditions in whole or in part at any time for the following reasons: for legal or regulatory reasons; for security reasons; to further develop or optimize existing features of the services and to add additional features; to take account of technical progress and make technical adjustments and to ensure the future functionality of the services. If etiscan makes changes, it will inform the customer in text form and inform him of the rights to which he is entitled.
(2) Amendments are considered approved if the customer does not object in writing within four weeks of notification. The customer will be expressly informed of this consequence when the change is announced. If the customer objects to the changes, etiscan has a special right of termination.
The terms and conditions supplementary regulations for software maintenance and support
§1 Software maintenance services
(1) Etiscan provides the following maintenance and support services as part of the SaaS service, unless otherwise specified in the individual contract:
a. the elimination of functional disorders,
b. the development of the software, including the provision of updates,
c. providing hotline or ticket support
d. assistance with application problems and advice on optimal use of the software to the usual extent
(2) Care services are regularly provided remotely. The place of fulfilment is the registered office of etiscan, unless otherwise stated due to the nature of the respective measure.
(3) etiscan is entitled to provide the corresponding service by a subcontractor or an affiliated company within the meaning of Sections 15 AktG et seq., unless this is excluded by law. etiscan ensures that they are bound to confidentiality and — if necessary — that an order processing contract is concluded.
(4) The aim of eliminating malfunctions is to maintain or restore operational readiness and the functionalities of the software agreed in accordance with the individual contract and any agreed modules.
(5) etiscan will process malfunctions reported by the customer within a reasonable period of time in accordance with the following provisions. The appropriateness of the deadline depends on the type of malfunction, the agreed priority level, the general order situation and availability of suitable employees.
(6) The method of troubleshooting is at etiscan's discretion. This can be achieved in particular through software adjustments, updates or changes.
(7) Etiscan provides care services with the usual care in the industry. There is no guarantee that malfunctions will be eliminated completely or within certain periods of time.
(8) Malfunctions must be reported by the customer to etiscan via email, telephone or ticket system. The fault report must contain the following information:
• name and address of the customer (organization),
• Specific name of the module in which the malfunction occurs,
• Specific description of the work steps in the course of which the malfunction occurs or which cause the malfunction,
• description of the malfunction using screenshots, logs or similar information,
• date and time when the malfunction was detected,
• Information on reproducibility (yes/no) and
• The priority given by the customer.
(9) The final and binding prioritization is always the responsibility of etiscan. However, if, in the opinion of the customer, the malfunction reaches a higher priority level, the customer must immediately inform etiscan of this.
(10) The respective requirements for the priority levels and the corresponding response times result from a separately concluded service level agreement (SLA). In the event of a conflict, the SLA takes precedence over these terms and conditions.
(11) During etiscan's core business hours (Monday — Friday, excluding public holidays at etiscan's location), malfunctions are processed every working day (Monday — Friday, excluding public holidays at etiscan's location) from 09:00 to 17:00.
(12) If the report is made outside core business hours, the respective response time begins at the earliest when core business hours begin, unless otherwise agreed in an individual contract. In addition, the time etiscan receives the report is only decisive if the report contains the information required for processing.
(13) etiscan is entitled, but not obliged, to process malfunctions outside of its core business hours; however, this only if the customer guarantees its cooperation to a sufficient extent and bears the additional fees for these services. Anything different from this can be agreed on an individual contract.
(14) At the customer's request, etiscan can provide the customer with a non-binding estimate of the expected duration of troubleshooting.
(15) etiscan is also entitled to process malfunctions by advising the customer on reasonable measures to avoid the malfunction.
(16) etiscan may correct functional problems of the lowest priority level at a later, objectively appropriate time, in particular as part of planned further developments, updates or other adjustments to the software.
(17) Benefits not included in the scope of care
The above scope of maintenance and support does not include in particular individual configuration services, customer-specific adjustments, extensions, integration services, data migrations, individual training, process or organizational consulting, on-site deployments and other services that go beyond the elimination of functional problems or standard application support.
Major adjustments, expansions or consulting services are generally provided on the basis of a separate, written offer from etiscan. A claim to the performance of such services exists only after a corresponding order has been made by the customer.
Ad hoc services that are outside the scope of care owed under the contract and do not have a separate project character are — unless otherwise agreed in individual contracts — calculated according to actual expenditure at an hourly rate of €200.00 plus statutory value added tax. Billing is carried out in units of 1 hour each.
etiscan will inform the customer before providing paid services, provided that etiscan is aware that the requested service is not covered by the contractually owed scope of care.
§2 Further developments
(1) etiscan provides the customer with all software updates required for troubleshooting, security or stability during the contract period. This includes in particular security-relevant patches, bug fixes and minor functional adjustments. As far as technically possible, such updates are installed automatically or as part of regular maintenance processes.
(2) etiscan strives to further develop the software within the scope of technical and economic possibilities. The further development of the software may result in an extension and/or change of the software, with the result that new functionalities are available or existing functionalities are optimized and/or adapted to the state of the art. Etiscan will inform the customer if further development is likely to have an impact on the use of the software.
(3) etiscan will only provide the customer with more extensive functional extensions, new modules or major version upgrades (“upgrades”) if these are expressly provided for in the individual contract, the service description or a separate agreement. Otherwise, upgrades are chargeable. The customer is not entitled to carry out certain further developments.
(4) In all further developments, etiscan takes due account of the customer's legitimate interests and does not make any changes that significantly impair the agreed purpose of use.
§3 Services not owed
(1) In any case, only the agreed or usual activity is owed, but in no way a specific success.
(2) Assistance and consulting services within the meaning of §1 d) are provided to the usual extent and are limited to standardized information, explanations of operation and clarification of typical application questions. Consulting services that go beyond the scope of support described as well as individual adjustments, customizing or integration services are not owed and are only provided on the basis of separate assignment and for separate remuneration.
(3) Unless otherwise agreed in individual cases, there is in particular no entitlement to the following benefits:
• Adapting the software to stands used by other customers or sold by etiscan.
• The adaptation of the software to a changed hardware or software environment, including the adaptation to changed operating systems.
• Adapting the software to legal or other government requirements.
• The processing of malfunctions resulting from the customer's risk area, in particular those caused by faulty or contaminated hardware, failure of the power supply or data-carrying lines, errors due to lack of information security, unsuitable environmental conditions at the site of software operation or force majeure.
• Instructing and training software users. This service can be contracted for a separate fee.
(4) The list is not exhaustive. It cannot be concluded from the lack of mention of services that these services are the subject of etiscan's contractual obligations.
§4 Duties/Customer Collaboration Services
(1) The customer is always obliged to support etiscan in executing the contract to the best of its knowledge and belief and to create all conditions necessary for the proper execution of the contract. In particular, in the interest of efficient assistance, advice and troubleshooting, the customer will appoint a responsible employee and a corresponding representative with in-depth knowledge of the software as a contact person and appoint them.
(2) The contacts bundle and coordinate reports and inquiries from the customer. Before passing on the reports and inquiries, they will first check on the basis of their own expertise as to how they can help the affected users. If they are unable to solve the problems that arise, they forward the reports and inquiries to etiscan.
(3) The contacts also support etiscan while processing the malfunction, for example by transmitting screen shots, etc.
(4) The customer ensures that the software is only used by competent, trained employees. The customer is advised to take advantage of training courses offered by etiscan. Training courses must always be arranged separately.
(5) The customer is always obliged to use state-of-the-art virus protection programs and a firewall.
(6) Insofar as etiscan needs to access the customer's IT system by means of remote data transmission in order to provide services, the customer must provide appropriate access.
