1. Software License and Maintenance
The Supplier, under this agreement, shall supply the programs de-fined in the license sheet, shall implement the software as defined in the implementation sheet, and maintain these programs (soft-ware/programs) by means of bringing it (back) into a useable state for its purpose.
2. Maintenance Services
The services covered by the maintenance fee are:
• Access to available and/or newer uTraxx application ver-sions, wizards and workflows, which are licensed under this agreement.
• Preventive maintenance to protect the software against fail-ure, troubleshooting in case of failure, correction of docu-mented errors after Section 5, replacement or reinstallation of faulty software modules in order to restore the software’s operational functionality.
• Support services in case of software failure or malfunction caused by uTraxx software, either by phone during business hours, by email or through the support website.
• Access to the uTraxx support website and knowledge base, when available.
• Right to access available updates for the licensed application, at no charge. Updates shall be delivered as packages, install-able by the Customer. Right to increment/decrement user li-censes and accounts, to access available upgrades and soft-ware modules, or to uninstall software modules. Upgrades, additional licenses and uninstalled modules result in a revi-sion of this agreement. Base modules cannot be uninstalled.
The services listed under this Section are covered by the mainte-nance fees, but are exclusively limited to uTraxx software. It does not cover malfunction of (software) modules, which are proven to correct-ly operate on recommended computers and operating systems.
3. Chargeable Services
All Customer services not covered by Section 1 are chargeable, in particular:
• Implementation as defined in the implementation sheet
• Delivery of data and programs
• Meetings, Project Management
• Extended information services
• Program and report modifications
• Data entry
• Data import and export
• Compatibility checks with other computers, operating systems and software
• Installation of/for updates and upgrades
• Database revisions and restructurings
• Operating systems upgrades/replacements
• Hardware changes
• Creation and customization of reports
• Inspection and/or maintenance of third party software or hardware
• Changes and/or customizations of third party software or hardware
• Maintenance due to force majeure. Maintenance on/for operating systems, system environment, computer and operating system configuration, and peripheral devices connected to a computer system. Relocation of computers, problems caused by electrostatic, thermal and other not software related circumstances. Repeated faulty user opera-tion of systems, software, and environment. All not ex-plicitly mentioned problems which are not caused by uTraxx software.
• General revision/replacement of uTraxx software (next indus-trial generation of technologies, operating systems, hardware, e.g. beyond Windows).
• Additional costs due to changed Customer require-ments.
• All other services, not explicitly mentioned in this agreement.
The services listed under this Section shall be paid by the Customer. The uTraxx Corp. rates at the time of this agreement are as defined in the implementation sheet.
These rates are applicable Monday through Friday, between 8am and 5pm. For services outside these working hours, a surcharge of 25% will be added during the week, a 50% surcharge will be added for services during the night and Saturdays, a 100% surcharge will be added for services on Sundays and official Holidays. Travel expenses shall be charged as defined in the implementation sheet, or as actu-al costs for public transport (Train, Bus, Airplane, Boat/Ferries). Taxi and accommodation expenses shall be covered by the Customer. Other expenses for Customer services, such postal delivery, couriers, freight costs, electronic delivery charges, shall be carried by the Customer. All rates are exclusive of applicable taxes (by law).
Chargeable maintenance work beyond the implementation defined in the implementation sheet may not be provided prior to quoting the Customer and receiving an appropriate purchase order from the Customer.
4. Maintenance Readiness
Standard maintenance is applicable during working hours, Monday through Friday, between 8am and 5pm, within the time zones of the corresponding service office. Support during these times is answered by phone, outside working hours, services are available according to the implementation sheet. Fax and E-Mail are available at any time. Support shall be provided as quickly as possible, by priorities of pending requests.
5. Customer Collaboration, Acceptance
The Customer shall be responsible for data backups, data restores, storage device replacements, and for security measures to protect stored data against loss, destruction, computer viruses, overwrites and abuse. The Customer shall grant the Supplier’s access to the installed software solutions, physically and remotely (Modem, Inter-net, VPN). The Customer shall provide sufficient work space and an infrastructure for Supplier’s personnel during on-site support.
The Customer shall be responsible to test delivered and installed programs, updates and upgrades for its intended purpose, before taking these deliverables into live production. The Customer shall report errors, malfunctioning or other misbehavior of the delivera-bles by providing a reproducible documentation of the problem.
The Customer shall document software change requests or Software altering requests in detail before passing the request to the Suppli-er.
The customer is required to accept the software, if the following conditions are met:
- No objective severe error that prohibits the use of the software entirely
- Not more than 10 objective severe errors which prohibit parts of the software to be used in the supplier’s concept
- All others errors do not qualify for a denial of acceptance, in particular errors where a workaround or user instruction helps solving a problem, and also errors, which result from customizations beyond the definition implementation in the implementation sheet.
Productive usage of the software is a declaration of acceptance.
6. Maintenance Fees
Maintenance fees are based on the software modules defined in the license sheet. These fees are applicable at the date of the contract. Supplier shall be obligated to announce fee changes 3 month before the changes will apply. Supplier shall be entitled to in-crease/decrease the fees proportionally upon changed hard-ware/user-count/software-module configurations.
Maintenance rates can or will be, without further notice, adjusted to the official inflation rates of the customers residential country. Transportation costs are, without further notice, adjusted to the actual costs. In case the Customer does not install available updates of the Software defined in the license sheet, maintenance rates will increase by 15% for the 6th and 7th year, and by 50% starting with the 8th year, measured from the last update date.
7. Payment Terms
Maintenance fees are payable upfront. Additional services, listed in the implementation sheet, and not listed services, will be invoiced once a month based on the actual services provided. All service and expense invoices are payable net, without discounts, within 10 days.
In case the Customer does not fulfill his payment duties, Supplier shall be authorized to charge an interest rate of 5% p.a. from the date of the invoice. Supplier may suspend maintenance services during the payment delay. Compensations of bills receivables by any party are prohibited. If the agreement terminates for reasons the Supplier cannot be held responsible for, pre-paid maintenance fees accrue to Supplier.
8. Agreement Duration / Cancellation
This agreement lasts for 36 months from the date of signature. After this time, it automatically renews for another 12 months, if not can-celled by either party with a 3 month notice, by registered letter, before the end the period. If the Customer does not agree with an announced rate change according to Section 6, the Customer may terminate the agreement with 3 months’ notice, before the end of the term.
Supplier may cancel this agreement, in case:
• the Customer has changed the software to another purpose than intended
• a breach of the license terms by the Customer
• the Customer is not able to pay the invoices within reasona-ble time
• the Customer falls under creditor protection
The Customer may cancel this agreement, in case:
• Supplier are not able to install the software on the hardware and operating systems defined in the license sheet
• Supplier are not able to put the software back into operation-al state after failure
Supplier must be immediately notified by Customer and may cancel or renegotiate this agreement in case:
• the Customer will change the purpose of his business
• the Customer acquires (or combines his business with) other business entities that may affect the market competition of the other partners by any means.
If the agreement is regularly terminated to the end of a term, the software listed in the license sheet will be put in a final state, allow-ing the royalty- and maintenance-free use of the Software for unlim-ited time, except/excluding all software components needed to alter the software, such as database, wizard and workflow designers, forms and web designers, which will be deactivated.
The Customer may purchase licenses for the excluded components at the fee defined in the license sheet, under these conditions: The Customer shall not sell, or distribute any products, developed with these components, except distribution within the licensed company for internal use. The Customer shall not develop with these compo-nents for any purpose other than the original purpose of this agree-ment. The intellectual property of the software will remain with uTraxx Corp.at all times. All other license clauses remain valid, after termination of this agreement. For any breaches of these regula-tions, the Customer is fully liable, to any amount.
10. Intellectual Property, Concealment
The software delivered under this agreement is and remains intellec-tual property of uTraxx. Also, distribution, sale or licensing of the software to third parties through the Customer is strictly prohibited. Any damage for Supplier resulting from a breach of this clause will be carried by the Customer.
The parties agree to a strict nondisclosure of knowledge against third parties, unless otherwise instructed by a party in writing: in case of a breach, the infringing party will be held responsible for the damage.
The Customer guarantees to only use the knowledge of the software listed in the license sheet for the intended purpose and the licensed company. If the Customer outsources work to third parties, the Cus-tomer will bind these obligations to such third parties. The Customer shall not transfer work on the software to third parties, which are in competition with Supplier, or which could become competitors of Supplier: a breach of this regulation will hold the Customer at full liability.
The Customer shall not use components of the software listed in the license sheet which were not tested for its purpose, as declared in Section 5. Therefore, Supplier‘s liabilities for damages resulting from implementing and using the software are excluded.
All Supplier’s services and deliveries in this agreement will be exe-cuted through uTraxx and its partners.
12. Final Clauses
Disagreement during execution of this agreement will be communicated by parties, in severe cases, by registered letters. If discrepan-cies cannot be eliminated, an arbitrator will decide on how to pro-ceed.
The Customer agrees to permit Supplier to quote the Customer in a press announcement or on Supplier’s website.
Changes and/or amendments to this agreement must be in writing, signed by both parties and attached to this agreement. If any parts of this agreement prove invalid, all other parts remain valid. Invalid parts shall be replaced by a valid part with the closest possible meaning of the part to be replaced. Should either party commence proceedings against the other, the location for the jurisdiction shall be Zug, Switzerland. This agreement is governed by Swiss Laws.