General Software Maintenance Conditions of SMARTech Consulting GmbH

Status: June, 2024

1. Object and Scope of Care
   1. The object of maintenance is the software developed and produced by SMARTech and provided to the customer on the basis of the General Terms and Conditions for Deliveries and Services of SMARTech Consulting GmbH (SMARTech). The exact designation of the software provided, with regard to which maintenance services are provided in accordance with these General Terms and Conditions of Software Maintenance, is specified in SMARTech’s order confirmation. The right to use the software is governed by SMARTech’s General Software License Conditions.
   2. The maintenance of the software by SMARTech includes the following services in accordance with the order confirmation:
      Hotline Service (see No. 2 below);
      Support Service (see No. 3 below);
      Update Service (see No. 4 below).
   3. These General Terms and Conditions of Software Maintenance shall also apply to later versions of the software provided to the customer by SMARTech as part of the update service in accordance with No. 4.1, unless otherwise agreed when the respective later version is provided. After the release of a new version, the maintenance services for the respective previous version shall be maintained for a period of six months. Separate agreements must be made for the consideration of older software versions.
   4. Maintenance always relates to the customer’s entire license portfolio for a specific software product. The customer must therefore either maintain all licenses of the software product in question or terminate maintenance in accordance with the provisions of these General Software Maintenance Conditions for the entire license portfolio of the software product in question.
2. Hotline Service
   1. The Hotline Service is also available to the customer to accept fault reports. As far as possible, such faults or program errors shall be rectified by the Hotline Service by specifying a simple workaround to be implemented by the customer (first level support). Otherwise, the customer will be forwarded immediately to SMARTech’s support service (see No. 3) or the support infrastructure of the respective manufacturer.
   2. SMARTech’s hotline service is available to the customer on working days (Monday to Friday, excluding public holidays at SMARTech’s headquarters) between 06:30 and 15:30 and can be reached as follows:
      
      By telephone at +49 89 54198166
      By e-mail at support@smartech-consulting.de
3. Support Service
   1. As part of SMARTech’s support service, faults that occur during the contractual use of the software by the customer (second level support) are processed after notification by the hotline service. A fault exists if the software does not fulfill the functions specified in the program documentation, delivers incorrect results, aborts its run in an uncontrolled manner or does not behave in a functional manner in any other way, so that the contractual use of the software is not only insignificantly impaired.
   2. As part of the support service, SMARTech undertakes to localize the cause of the fault, to diagnose the fault and to eliminate the fault or, if the latter is not possible with reasonable effort, to restore the operational readiness of the software by demonstrating a workaround solution.
   3. Measures within the scope of the Support Service are provided during the service hours in accordance with No. 2.2. Measures outside these times shall only be carried out on the basis of a separate agreement in individual cases and against separate remuneration.
   4. Faults reported by the Hotline Service are prioritized by the SMARTech Support Service Center staff for the purposes of fault processing:
      1. Priority P1: Prevention of Operation
         An impediment to operation exists if the use of the software is not only temporarily impossible due to malfunctions, incorrect work results or the exceeding of response times or is so severely restricted that central business processes can no longer run.
      2. Priority P2: Operational hindrance
         An impediment to operation exists if the use of the software is not impossible or severely restricted due to malfunctions, incorrect work results or the exceeding of response times, but there is nevertheless a disruption of the workplace functionality with a not only insignificant impairment of business processes.
      3. Priority P3: Other malfunction
         Other malfunctions exist if the use of the software is not significantly impaired, in particular if there is no impairment of workplace functionality.
   5. SMARTech offers the following response times as part of the Support Service within the service times in accordance with No. 2.2, measured from the time of receipt of the detailed fault report in accordance with No. 6.1 by the Hotline Service (call receipt):
      1. Priority P1: Response time 2 hours (if the call is received by 3 p.m., it is forwarded to and initially processed by the Support Service on the same day)
      2. Priority P2: Response time 4 hours
      3. Priority P3: Response time 8 hours
         Response time is the time in which a qualified employee from SMARTech’s Support Service Center actively attends to the reported fault and initiates fault processing either by telephone, e-mail or remote access.
   6. If a reported fault of priority P 1 cannot be rectified within 24 hours (within the service times in accordance with No. 2.2) from receipt of the call, an escalation procedure is automatically initiated within SMARTech. SMARTech will nominate a responsible employee to the customer who will take over the management of the fault processing and coordinate all necessary internal and external measures. This includes, for example

      Creation of an action plan together with the customer
      Informing the SMARTech management
      Inquiries to the SMARTech development department
      The designated employee is the customer’s personal contact and keeps the customer informed of all activities. Once the fault has been rectified, the entire system continues to be monitored for a certain period of time. During this phase, the designated employee continues to be available to the customer for advice and support.

   7. In all cases other than those described in No. 3.6, the SMARTech Hotline Service employee who received the fault report remains the main contact person for fault processing vis-à-vis the customer. The Hotline Service employee coordinates all necessary measures and informs the customer’s contact person at regular intervals about the progress of the fault processing.
4. Update Service
   1. As part of the update service, SMARTech shall provide the customer with new program versions of the software and the associated program documentation on machine-readable data carriers in object code format or by download for self-installation.
   2. The update service does not cover extensions to the software with modified or improved functionalities that SMARTech offers separately as new standard programs or modules (upgrades). Licenses for the use of such upgrades can be purchased by the customer at SMARTech’s current list prices.
   3. With regard to the rights to use the new program versions of the software provided to the customer as part of the update service, SMARTech’s General Software License Conditions (for permanent software licensing or temporary software licensing) shall apply to the program version originally provided. SMARTech’s warranty and liability for the new program versions shall be governed by SMARTech’s General Terms and Conditions for Deliveries and Services.
5. Delimitation: Services not Included
   1. SMARTech is under no obligation to provide maintenance services in accordance with these General Software Maintenance Conditions:
      outside the service times specified in No. 2.2;
      If the software is used contrary to the provisions of the applicable license conditions;
      If the software is modified by the customer or a third party;
      for malfunctions of the software which are caused by application errors on the part of the customer and which could have been avoided by careful consultation of the program documentation;
      For malfunctions of the software due to virus attacks or other external influences for which SMARTech is not responsible;
      For malfunctions of the software caused by errors in the hardware, the operating system or other computer programs of the customer;
      For the recovery of data that the customer has not adequately backed up against loss, contrary to the provisions of No. 6.4.
   2. The scope of maintenance does not include services such as the installation of software, data conversions, research activities, changes to systems or environments, model data analyses, answers to questions about infrastructure or installations, or support for software products and modules other than those specified in the order confirmation. Such services can be agreed via a separate service contract.
   3. The provision of maintenance services by SMARTech requires that the customer’s users are trained in the software products and modules used by the customer and acquire practical experience in using these applications. SMARTech reserves the right to answer frequently recurring questions from users, which could be avoided by appropriate training or careful consultation of the program documentation, only against separate remuneration.
   4. The training of users by the SMARTech Support Center is not included in the scope of services according to these General Terms and Conditions of Software Maintenance, but is offered to the customer as a chargeable additional service on the basis of the General Terms and Conditions for Deliveries and Services of SMARTech.
   5. The customer shall notify SMARTech of any changes to the installation location of the software without being requested to do so. Additional expenses incurred by SMARTech as part of the provision of maintenance services resulting from the change of installation location shall be borne by the customer.
6. Obligations of the Customer to Cooperate
   1. As part of the fault report to the Hotline Service, the customer shall provide SMARTech with all available fault reports, system logs, log files, interim and test results and all other documents and information required to analyze and process the fault. The fault must be described in such a way that it is reproducible. If SMARTech carries out a fault analysis at the customer’s request and it turns out that there is no fault which SMARTech is obliged to rectify in accordance with these General Software Maintenance Conditions, SMARTech may invoice the customer for the corresponding expenditure on the basis of SMARTech’s applicable hourly rates.
   2. The customer shall allow SMARTech and its employees unhindered access to the software and to the customer’s hardware and operating system on which it is installed in order to provide the maintenance services, in particular as part of the support service. Furthermore, the customer undertakes to provide SMARTech with a suitable infrastructure for remote access to the software in the event of a fault.
   3. The customer shall name up to three authorized and qualified contact persons who may call the SMARTech hotline directly. In addition, the customer shall designate an employee working at the installation site of the software as the main contact person who shall make all decisions in connection with the provision of the maintenance services or bring them about immediately.
   4. The customer undertakes to regularly back up data in accordance with the relevant information in SMARTech’s respective program documentation. In the absence of such information, the data backup shall be carried out in accordance with the generally recognized principles of secure data processing.
7. Remuneration
   1. In the absence of a separate provision in SMARTech’s order confirmation, the fee for the maintenance services to be provided in accordance with these maintenance conditions (hereinafter referred to as “Annual Maintenance Charge – AMC”) is based on SMARTech’s current price list.
   2. The annual maintenance fees are to be paid annually in advance and will be invoiced for the first time at the beginning of the contract and then at the beginning of each new contract year. Timely payment of the maintenance fees is a prerequisite for the provision of maintenance services in the relevant contract year.
   3. If the maintenance services are provided in connection with a temporary software license in accordance with the General Software License Conditions of SMARTech Consulting GmbH for the temporary software license, the annual maintenance fees are included in the annual license fees (“Yearly License Fee – YLC”), so that a separate billing of the maintenance fees does not take place. Timely payment of the license fees is a prerequisite for the provision of maintenance services in the relevant contract year.
   4. In the event of extensions of use through the acquisition of further licenses during the term of the maintenance agreement, the annual maintenance fees shall increase proportionately. In the absence of separate agreements, the prices in SMARTech’s current price list shall apply. The increased maintenance fees shall be payable from the date of commencement of use of the additional licenses.
   5. SMARTech is entitled to adjust the annual maintenance fees with a notice period of three months to the beginning of a contract year, for the first time at the end of the minimum term stated in the program certificate, to compensate for wage and other cost increases or as part of the general increase in license and maintenance prices for the SMARTech software. If the increase is more than 3% compared to the last annual maintenance fee paid, the customer is entitled to terminate the maintenance agreement in writing at the beginning of the new contract year with one month’s notice. If the customer does not terminate the agreement, the price adjustment shall take effect at the beginning of the new contract year. SMARTech shall inform the customer of this consequence when announcing the adjustment.
   6. With regard to the invoicing and payment of the annual maintenance fees, the provisions of SMARTech’s General Terms and Conditions for Deliveries and Services shall also apply.
8. Terms, Termination
   1. SMARTech’s obligation to provide the contractual maintenance services shall commence on the contract start date specified in SMARTech’s order confirmation, but not before payment of the annual maintenance fee (AMC) or license fee (YLC) for the first year of the contract.
   2. The maintenance agreement is concluded for the minimum term specified in SMARTech’s order confirmation. After expiry of the minimum term, the maintenance agreement shall be extended by a further year in each case, unless it is terminated in writing by one of the contracting parties with three months’ notice to the end of the minimum term or an extension period. The maintenance agreement may not be terminated by either party during the minimum term or an extension period.
   3. A partial termination of the maintenance agreement with regard to parts of the license portfolio for a specific software product is not possible (see No. 1.4).
   4. If the maintenance services are provided in connection with a temporary software license in accordance with the General Software License Terms of SMARTech Consulting GmbH for the temporary software license, termination of the maintenance agreement is not possible regardless of the license. The provisions of the aforementioned license conditions shall apply exclusively to the termination of the license.
   5. The maintenance agreement shall end without the need for termination if the license granted to the customer for the software to be maintained ends in accordance with the applicable license terms. In this case, SMARTech shall not be obliged to reimburse maintenance fees already paid for periods up to termination.
   6. SMARTech reserves the right to terminate the maintenance agreement for good cause.
   7. Any termination must be in writing.
9. Miscellaneous
   1. SMARTech is entitled, after prior notice, to provide parts of the maintenance services through or with the help of third-party companies.
   2. If these General Terms and Conditions of Software Maintenance do not contain any separate or deviating provisions, the General Terms and Conditions of Business for Deliveries and Services of SMARTech shall apply to the provision of maintenance services and the legal relationship between SMARTech and the customer.