SPECIAL TERMS AND CONDITIONS OF OROOX AG "PROFESSIONAL SERVICES"
As at October 2020
The following Terms and Conditions of Business of Oroox AG (hereinafter referred to as "Oroox") for the provision of Professional Services apply in addition to the agreed scope of services for the contractual Software in SAAS operation. Oroox does not recognize any terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions unless Oroox expressly agrees to their validity in writing. These Terms and Conditions apply even if Oroox performs the service to the Customer without reservation in the knowledge that the Customer's terms and conditions are contrary to or deviate from these Terms and Conditions.
- Subject of the contract
(1) Oroox provides Professional Services by making available to the Customer the professional and technical operating personnel for the respective standard software (hereinafter referred to as "Software") provided. The services are based on the agreed scope of services.
(2) Working days within the meaning of this BGB are the working days Monday to Friday, 9-17h CET of Oroox at its Lichtenstein site.
(3) The services under this Agreement are provided exclusively for the most current version of the Software provided to the Customer. The Customer has no claim that Oroox will provide or maintain older versions for the Customer. The Customer also has no claim that Oroox will provide Professional Services with respect to customized software ("customizing") or test systems. If the Customer wishes to do so, he must enter into a separate agreement with Oroox on this.
- Professional Services
(1) Professional Services include consulting and support services in connection with the functions of the Software, the handling of software errors that occur during the proper use of the Software, the explanation of manuals and technical documentation; the updating of the standard Software by installing and configuring updates and upgrades; consulting for the use of the software in regular application environments; adaptation and modification of the software to the customer's requirements ("Change Requests; CR"); support of the customer in sending electronic messages as well as consulting on the integration or adaptation of the software to achieve interoperability with third-party systems.
(2) Oroox and the Customer agree on a CR procedure for the adaptation and modification of the Software, which may be initiated by either party through a detailed change request. Oroox will then provide an initial estimate of the effort required within a reasonable time based on a T-shirt sizing procedure (S: less than 1 MD; M: 1 - 3 MD; L: 4 - 10 MD; XL: >10 MD). The customer can then decide whether to request a comprehensive quote, commission Oroox directly or not to implement it at all. If the CR is not commissioned, Oroox is entitled to bill the Customer for the expenses incurred for the cost estimate or the quotation via the Retainer or Service Contingent.
(3) If the technical maintenance and updating measures cannot be carried out without brief interruptions in operation, Oroox will inform the Customer in advance.
(4) The Customer shall name a contact person ("Project Manager") at the beginning of the Contract, as well as a list of the persons authorized to call up Professional Services, through whom the provision of Professional Services will be exclusively carried out. Only employees of the Customer who are qualified for this purpose and have been trained in the handling of the Software to be maintained can be appointed as project managers. The Customer shall notify Oroox immediately of any change of project manager. In particular, the Customer shall ensure that, after reporting a malfunction, the project manager can be contacted by Oroox for questions and suggestions for remedial action at least during the times specified in Clause 4.
- Availability and response times
Professional Services by e-mail, ticket system or telephone;
on workdays from 9-17 o'clock (CET)
If a message is received by 4 p.m., Oroox will respond the same day.
- Elimination deadlines within the scope of Professional Services
(1) To report faults, Oroox operates an electronic ticket system for use by Oroox and the Customer.
(2) The removal periods set forth below apply only to the standard functions of the Software and begin upon Oroox's entry of an error or upon the Customer's entry of an error and confirmation of the entry by Oroox in the ticket system provided by Oroox for use (hereinafter "Notification"). To the extent that Software or parts thereof have been developed individually for the Customer, or individual services are operated for the Customer, Oroox will develop and implement a fault concept with individual deadlines for elimination in consultation with the Customer. Unless otherwise agreed, the expenses incurred are to be paid in accordance with Oroox's agreed hourly rates. The deadline for rectification shall be based on the Professional Services agreed upon, unless in a particular individual case a longer deadline is necessary for rectification due to a disproportionately high effort or due to the particular difficulty, and Oroox shall inform the customer of this immediately, stating the reasons and the expected time for rectification.
(3) The cooperation of the Customer may be necessary to meet the deadlines for elimination; in particular, the Customer must describe the error in detail, provide necessary information upon request, and perform other actions that are necessary to analyze and eliminate the error and that cannot be performed by Oroox itself. This also includes cooperation when the product is put back into operation after the error has been corrected. Oroox is not responsible for exceeding deadlines due to lack of or inadequate cooperation on the part of the customer.
(4) The deadlines for eliminating errors within the framework of Professional Services are based on the following error classes within the framework of IT Service Management (ITSM)
ERROR CLASS 1a (CRITICAL)
Errors that have acute effects on the operational consistency or security of the Oroox system, e.g. data loss at interfaces (unavailability of interfaces despite the buffering measures provided for in the implementation, e.g. data from registration attempts).
Step 1 (Identification) - Message
Step 2 (start of troubleshooting) - within 120 minutes on workdays from notification
Step 3 (completion of troubleshooting) - 8 hours after start
ERROR CLASS 1b (HIGH)
Errors which restrict or hinder the appropriate or economically reasonable use of the software within the scope of the software's functions in such a way that the day-to-day business cannot be continued in a reasonable manner.
Step 1 (Identification) - Message
Step 2 (start of error recovery) - within 120 minutes on workdays from the time of notification
Step 3 (completion of troubleshooting) - 16 hours after start
ERROR CLASS 2 (MEDIUM)
Errors which considerably restrict or hinder the appropriate or economically sensible use of the software within the scope of the standard software functional scope, but which still allow the day-to-day business to be conducted.
Period for Remediation: For Class 2 errors, unless otherwise agreed in a particular case, Oroox undertakes to submit a plan describing the beginning of the work and the expected course of the work no later than the evening of the next business day after notification.
ERROR CLASS 3 (LOW)
Errors which only insignificantly restrict or hinder the appropriate or economically reasonable use of the software within the scope of the standard software functional scope, i.e. without significant effects on the functionality and performance of the overall system.
Period for Remediation: Class 3 errors will be corrected in a future software update or upgrade at Oroox's discretion and in consultation with the Customer.
- Definition of terms Updates, Upgrades
(1) Updates are updated versions of the Software within the version numbers (Version 6.4 to Version 6.5) Upgrades are updates of the Software beyond the primary version limit (Version 6.5 to Version 7.0).
(2) Oroox provides Updates to the Customer for the purpose of troubleshooting and adapting to changes in, for example, the system environment or operating system. Updates may also contain minor functional enhancements/functional extensions.
- Rights of use
Oroox grants the Customer rights of use in the software, software components and documentation supplied in performance of this Agreement in accordance with the underlying SAAS Agreement.
- Contractual obligations of the customer
(1) The Customer shall take all necessary and appropriate measures to ensure that no unlawful applications and/or use of the Software takes place.
(2) The Customer also undertakes to refrain from interfering with or falsifying the proper operation of the Software by excessive and improper use.
(3) If a claim is made against Oroox by a third party due to unlawful acts and uses of the Software by the Customer, the Customer undertakes to indemnify Oroox against all claims and costs of this claim. Further claims for compensation remain unaffected.
(4) The Customer is obligated to register a defect in Oroox's electronic ticket system or to check whether a defect that has been notified elsewhere has been registered in the ticket system.
(5) The Customer will cooperate, where necessary, in providing Professional Services. The Customer shall provide Oroox with all information necessary to perform the Services free of charge.
(6) The Customer shall, within the scope of what is reasonable, take all necessary measures to determine and document the faults and errors. He is obliged to examine new versions without delay and to notify Oroox of any defects. The Customer will provide Oroox with system logs and memory dumps, affected input and output data, interim and test results and other documents suitable for illustrating the malfunction.
(7) If the Customer does not fulfill its obligations to cooperate or does so only insufficiently and if, as a result, the provision of Professional Services by Oroox is delayed, Oroox is not responsible for this. Oroox may charge for any additional work that arises as a result of this in accordance with the current hourly rates.
- Remuneration, default
(1) The remuneration of Oroox for the Professional Services named in Item 3 is determined by the hourly rates agreed in each case. The services provided are invoiced monthly in arrears and are payable within 14 days of the invoice date.
(2) Oroox agrees with its Customers a scope of assignment ("retainer") or a service quota, depending on the service package.
(3) Oroox will bill the Customer monthly at the beginning of the following month for the services actually used within the scope of the Retainer. The Retainer shall be calculated on the basis of the agreed upon person days (PT) per year. If a number of PT per month is stated, twelve (12) times the number of PT per month is deemed to be the annually agreed upon Retainer. Oroox will notify the customer as soon as it becomes apparent that the maximum limit for the Retainer will be reached.
(4) If the Parties have agreed on a service quota (service quota), this will be billed regardless of the service actually used. The service quota is calculated according to the agreed PT per year. If the number per month is stated, twelve (12) times the value is deemed to be the annually agreed service quota. Oroox will inform the customer as soon as it becomes apparent that the service quota has been used up.
(5) If the number of PT agreed upon in accordance with paragraph 3 or paragraph 4 is exceeded in a year, Oroox is entitled to charge for the additional services called for in accordance with the hourly rates agreed upon in each case. PT that is not used up from the agreed service quota cannot be carried over to the following year.
(6) Insofar as Professional Services are provided by Oroox that are not covered by the services listed in Clause 3 or are covered by other agreements and that are not based on a defect or failure to perform Oroox's service obligations, the Customer is obliged to pay for these services at Oroox's hourly rates agreed in each case.
(7) Oroox has the right to suspend the services if and for as long as the Customer is more than two months in arrears with the payment of a due compensation despite a reminder. Oroox will draw the Customer's attention to this separately. Oroox's claim to the agreed compensation remains unaffected by this.
(8) If Oroox does so outside the usual business hours at Oroox's headquarters (Mon-Fri 9-17 hrs CET), the following increased compensation is agreed upon:
a) Monday through Friday between 5:00 p.m. and midnight, Monday through Friday between 6:00 a.m. and 9:00 a.m. CET and between 9:00 a.m. and 6:00 p.m. on Saturdays, Sundays and national holidays: twice the hourly rate;
b) Monday to Friday between midnight and 6 a.m. CET and on Saturdays, Sundays and national holidays from 6 p.m. to 9 a.m. CET; triple rate of the respective hourly rates.
(9) The Customer is only entitled to rights of retention and rights of set-off arising from the same contractual relationship, and rights of set-off beyond this only if its counterclaims are undisputed, recognized by Oroox or have been determined by a court of law.
- Duration, termination
(1) Unless otherwise agreed in writing, the term of the contract is linked to the start and end of the contract of the corresponding SAAS contract.
(2) The right to extraordinary termination for good cause remains unaffected.
(1) Oroox does not warrant for malfunctions that are due to interference by the Customer or third parties, the Customer's technical equipment, or unsuitable, improper, or incorrect use.
(2) Defects will be remedied during the term of this agreement in accordance with Clause 5. In all other respects, the statutory warranty claims of the Customer with respect to the provision of the contractual Software during the respective warranty period shall remain unaffected.
(3) Oroox does not warrant the usability of the Software for a specific purpose or the success of the use, but only the scope of functions within the scope of the documentation and standard description of the Software. The Customer is also aware that, according to the state of the art, it is not possible to rule out errors in the Software under every condition of use.
(4) Claims based on defective performance shall become time-barred within twelve months. This does not apply to claims for damages for loss of life, bodily injury, or damage to health based on a culpable breach of duty on the part of Oroox or on a negligent breach of duty by a legal representative or vicarious agent of Oroox. Furthermore, this does not apply to claims for other damages based on a deliberate or grossly negligent breach of duty by Oroox or one of Oroox's legal representatives or vicarious agents.
(1) Oroox is not liable for the functioning of networks, lines, or computers of third parties that are beyond its control, nor for power failures and other cases of force majeure for which it is not responsible.
(2) In the case of Oroox and/or its vicarious agents, Oroox is liable for intent and gross negligence, including that of its vicarious agents, in accordance with the law. The same applies to damages caused by negligence resulting from injury to life, body or health and to claims under §§ 1, 4 of the Product Liability Act.
(3) In the case of damage to property and financial losses caused by negligence, Oroox is liable only in the event of a breach of a material contractual obligation, but the amount of liability is limited to the losses that were foreseeable and typical of the contract at the time the contract was concluded (material contractual obligations are those whose fulfillment characterizes the contract and on which the Customer may rely). However, Oroox's liability in such cases is limited to a maximum of two million euros. Otherwise, liability is excluded.
(4) To the extent that Oroox's liability is excluded or limited, this also applies to its organs, employees, representatives and vicarious agents.
(5) Liability for loss of data is limited to the typical restoration effort that would have been required if backup copies had been made regularly and in accordance with the level of risk.
- Final provisions
(1) Insofar as the customer is a registered trader or a corporation or institution under public law and nothing to the contrary is stated in the order confirmation, the place of jurisdiction is the competent court at the customer's registered office.
(2) These business relations and all legal relations between Oroox and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
(3) The language of the contract is English.