Quality First Software GmbH
Revision 1.3 of January 1, 2012
1. Contractual Basis
1.1 Preamble
Quality First Software GmbH (QFS) is a company developing and
distributing software designed to help in testing and thus enhancing
other software.
This Agreement governs the support and maintenance for the products
licensed by the customer. QFS hereby explicitly object to any
counter-confirmations referring to the General Terms and Conditions of
Business of contractual partners. The foregoing shall also be
applicable if submittal or acceptance of offers by contractual
partners is made subject to the prior applicability of their own
General Terms and Conditions of Business.
1.2 Assignment of Rights and Obligations
QFS may transfer any of the rights and obligations under this
Agreement to third parties at any time and is entitled to use agents
for fulfillment of QFS' contractual obligations.
2. Content of Services
2.1 Support and Maintenance Services
QFS shall provide the following support and maintenance services for
the products licensed by the customer:
- Provision of known error corrections by delivery of available patches via electronic communication and for download via the Internet (www.qfs.de).
- Provision of available minor updates (bundling of several error corrections in one version) for download via the Internet (www.qfs.de).
- Provision of available medium upgrades (version with additional / enhanced functions) for download via the Internet (www.qfs.de).
- Provision of available major upgrades (version with substantially enhanced volume of functions).
- Information via electronic communication (email) when new minor/medium/major updates/upgrades are available.
The support and maintenance services listed in this clause 2.1 only
comprise the products licensed by the customer, but not any new
products of the same product family.
The granting of rights of use and the delivery of the relevant license
files for all minor/medium/major updates/upgrades shall be limited to
the number and type of products, as well as the terms of use thereof,
for which this Agreement has been concluded.
2.2 Telephone Support
For the term of this Agreement, QFS shall provide telephone support in
the following manner: Queries for specific technical problems and
failures are possible at any time. For this purpose, the customer will
generally leave a message indicating the exact problem description and
a classification in the following priority and error levels:
- Level A: System does not work.
- Level B: System works with limited functions.
- Level C: System basically working. Just errors/problems with specific functions.
QFS will show best efforts to provide a qualified response (via phone
or e-mail) within the following time frames:
- Level A: Response within the next working day (Monday - Friday, 9 a.m. until 5 p.m. local time).
- Level B: Response within the next working day (Monday - Friday, 9 a.m. until 5 p.m. local time).
- Level C: Response within the working day after next (Monday - Friday, 9 a.m. until 5 p.m. local time).
Exclusively applicable is the local time at the seat of QFS.
Exclusively applicable regarding holidays are the legal holidays at
the seat of QFS.
2.3 Email Support
For the term of this Agreement, QFS shall provide support via email.
The error and priority levels set forth in clause 2.2 above and the
response times indicated therein are applicable.
2.4 Subject Matter of Support Services
The subject matter of support services in clauses 2.2 and 2.3 above is
the help with installation or operation problems and alleged program
errors. Installation services or other support services at the
customer's location are not a subject matter of this Maintenance
Agreement.
2.5 Service Contract
Due to the complex nature of hardware and software applications,
networks and specific configurations with the customer, QFS cannot
assume liability for the successful remedy of any error, i.e. despite
QFS' best efforts it may occur that errors cannot be rectified in
providing the support to the customer. Consequently, all services are
provided as a service contract to this effect.
3. Securing of Services
3.1 Customer Cooperation
To guarantee the best level of efficiency, the customer commits to
describing the problems as exactly and detailed as possible.
Especially all the questions referring to the failure should be
answered as accurately as possible. Only the compliance with this
obligation to cooperate as an essential contractual performance will
enable the provision of all support services in a timely and due
manner.
3.2 Limitation / Exclusion of Liability
3.2.1 QFS is liable without contractual restrictions in accordance
with statutory regulations:
- for damages based on a breach of a guarantee provided by QFS;
- for willful misconduct;
- for damages based on the fact that QFS has fraudulently concealed a defect;
- for damages arising from injury to life, body or health caused by an intentional or negligent breach of duty by QFS or otherwise on the intentional or negligent conduct by a legal representative or a vicarious agent of QFS;
- for damages other than those listed under indent 4 based on intentional or grossly negligent breach of duty by QFS or otherwise on the intentional or grossly negligent conduct by a legal representative or a vicarious agent of QFS.
- pursuant to the terms of the German Product Liability Act.
3.2.2 In cases other than those listed in 3.2.1, QFS' liability for
negligent breaches of Cardinal Duties by QFS or by a legal
representative or agent of QFS shall be limited to such damage which
was typical for this kind of business and foreseeable upon the
execution of this Agreement. Cardinal Duties shall mean duties which
enable the performance of the Agreement i.e. are precondition of the
performance of the Agreement and which the customer may therefore rely
on. Typical and foreseeable is a damage which QFS has foreseen as a
potential consequence of a breach of duties or - taking into
consideration the circumstances QSF was or should have been aware of -
QFS should have foreseen.
3.2.3 In cases other than those listed in 3.2.1 and 3.2.2 the
liability of QFS for negligence is excluded.
3.2.4 The plea of contributory negligence (sec. 254 German Civil
Code/BGB) remains unaffected. The customer is especially obliged to
make backup copies and to provide sufficient and up to date anti-virus
protection. Backup copies have to be made regularly and to an extent
that is appropriate when considering the usage and the risks,
typically once a day in order to ensure restoration of data with
reasonable time and effort. In case of loss of data, QFS' liability is
limited to the restoration expenses that would have arisen if backup
copies had been made regularly and where anti-virus protection had
been in place.
3.2.5 The foregoing provisions regarding the limitation of liability
apply to all contractual and non-contractual claims for damages
against QFS regardless of their legal grounds and accordingly to the
liability of QFS to compensate futile expenses.
3.3 Copyright
QFS shall be entitled to the copyright as well as any proprietary,
utilization and commercial exploitation rights resulting thereof to
any and all materials capable of being protected by copyright that are
made available to the customer under this Agreement. Any granting of
rights shall be made exclusively in the form agreed upon in the
license agreement. Any violations of copyright shall be brought before
the court by QFS both under civil and criminal law.
4. Performance of the Agreement
4.1 Commencement and End
This Agreement is concluded with the acceptance of the Software
Maintenance Agreement by the customer. The base term is one year and
commences on the date on which the Agreement is invoiced by QFS.
4.2 Termination with Notice
Termination by the end of the base term is possible by giving three
months' notice in writing to take effect by the end of the respective
month. In the absence of termination in due time, the Agreement shall
be renewed for further one year's periods each time. Termination upon
the expiration of the base term is possible at any time by giving
three months' notice in writing to take effect by the end of the
respective month.
4.3 Termination for Good Cause
The parties' right to terminate this agreement for good cause remains
unaffected A good cause for QFS is present, especially - but not
limited to - if
- the customer has committed a severe breach of the contractual covenants
- and the consequences of such breach, especially pecuniary damages, have not been remedied without undue delay and without the need for an explicit request in this respect;
- or the consequences of the breaches of the Agreement cannot be remedied due to their nature
- and termination for good cause has been notified no later than within three months of the date on which the party suffering the breach got reliable knowledge thereof.
5. General Provisions
5.1 Choice of Law and Venue
This Agreement is exclusively governed by German law. Should German
law make reference to foreign jurisdictions, this reference is
excluded. The application of the UN Sales Convention is explicitly
excluded.
In case the parties are merchants, legal entities under German public
law or special assets under German public law, the exclusive venue
shall be QFS' seat of business. The same applies in case one party
does not have a legal domicile in Germany. It is at QFS' discretion to
bring charges forward also at the other party's seat of business in
cases stated in this paragraph.
5.2 Written Form
Any modifications of and/or amendments to this Agreement, as well as
all other statements of legal import of both parties, shall only take
effect if made in writing or simple text without signature (e.g.
email, or facsimile). The same applies to modification of this clause;
abandoning the formal requirement requires an agreement in writing or
simple text without signature.
5.3 Interpretation of the Agreement
If any of the provisions of this Agreement should be or become
invalid, ineffective or unenforceable, that will not affect the
effectiveness of the remaining provisions. The same applies to any
gaps in individual provisions and/or parts of this Agreement.
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