SOFTWARE TERMS AND CONDITIONS
SOFTWARE TERMS AND CONDITIONS
The subject matter of the agreements shall be the purchase or lease of AMbrace software as well as the conclusion of a maintenance or hotline contract.
Remuneration and Payment
The remuneration for the purchase or lease of the software and/or the maintenance of the software and/or the conclusion of a hotline contract shall be set out in the specific customer quotation. The remuneration shall be understood as the net amount plus statutory VAT applicable in each case. Invoice amounts shall be paid within 14 days from the delivery of the software and the receipt of the invoice without any deductions. In the case that the customer is in delay of payment, AMbrace shall be permitted to charge default interest at the statutory rate. AMbrace shall also be permitted to suspend the further performance of the contractual services until the customer has complied with their payment obligations. AMbrace shall notify the customer of this prior to suspending the performance of their services. The customer shall only be entitled to set off against payment claims that are uncontested or have become res judicata. The customer shall be permitted to assign payment claims against AMbrace only with the consent of AMbrace. Provided that the customer is entitled to already use the software prior to having completed the payment, AMbrace shall reserve the right to revoke the granted rights of use in cases of delays in payment of more than six weeks, definite refusal of payment or inability to pay on the part of the customer. In the case of such a revocation, the customer shall delete or return without delay the software and all copies thereof or – if requested by AMbrace – confirm in writing the deletion and return.
Further Development of the Software
AMbrace shall continuously develop the contractual software. Within the scope of the software maintenance, the customer shall receive new software versions with the following features:- support of current operating system environments and product modules and those that are officially supported by AMbrace;
- support of new versions of all connected/integrated third-party software products;
- higher operating comfort;
- more powerful versions;
- new functionalities, unless these are issued by AMbrace within the scope of a new product;
- removal of software errors.
The customer shall in each case receive the standard version of the new software versions and shall be solely responsible for integrating any possible customer-specific adjustments. AMbrace is willing to perform the integration of these adjustments for a separate remuneration. A right to deliveries of new versions at regular intervals shall not exist. AMbrace integration modules or AMbrace connectors to third-party software shall be adjusted to minor releases of this third-party software as soon as possible within the scope of the software maintenance and upon the customer’s request. As a general rule, minor release changes shall be changes of decimal places of the version number (e.g. changes from version 7.0.3 to 7.1 or 6.5 to 6.6), which do not affect the interfaces used by AMbrace. In cases of major release changes announced by the manufacturer of the third-party software, AMbrace shall reserve the right to not perform these within the scope of the software maintenance. If possible, AMbrace shall announce this in due time within the scope of release notes. In that context, major release changes shall be generally characterised by a change of the first digit of the official release designation (e.g. a change from version 4.9 to 5.0). In addition, major release changes are characterised by one of the following features:
- change (discontinuation or change of functionalities used by AMbrace and of access to the programming interface of the third-party software) of the API (programming interface of the third- party software);
- a new or substantially modified software core;
- a new or substantially modified user interface.
In the case of an error removal performed by AMbrace, the customer shall be obliged to install and use the new software versions/updates delivered by AMbrace within three months after their delivery. If the customer uses the previous software version beyond this period of time, the customer’s rights based on defects of quality and title shall lapse and the liability of AMbrace in that regard shall be excluded, unless the error is included also in the newly delivered software version. When the customer starts using the new software version, they shall no longer be permitted to use the previous software version.
Changes of the Hardware and Third-Party Software Environment
The customer shall maintain separate software and hardware servicing contracts for hardware and third-party software. The customer shall bear the responsibility for the fact that the servicing is sufficient for their needs. In cases of changes to the hardware and third-party software that are caused by maintenance and service, AMbrace shall endeavour in each case to ensure compatibility of the AMbrace software to third-party software and hardware within an appropriate period of time. The customer shall not be entitled to claim that the compatibility of new products of third-party software manufacturers shall be obtained within the scope of the software maintenance; this shall apply in particular if the system architecture, interfaces or data formats are changed. The adjustment of AMbrace integration modules or AMbrace connectors to changes of third-party software shall be performed as described in these Software Terms and Conditions. In cases of changes to the hardware and third-party software environment that are not caused by maintenance and servicing, AMbrace is willing to support the customer for a separate remuneration at the currently applicable daily rates of employees of AMbrace on the basis of a separate agreement (e.g. connecting new software products or adapting to changed hardware architecture, customising of third-party software). AMbrace shall make aware of the fact that changes of the hardware and third-party software environment (also within the scope of service and maintenance regarding this hardware and third-party software or within the scope of customising the third-party software) shall at all times be subject to coordination with AMbrace, as these changes may result in a partial or complete failure of the functionality of the software that is covered by the respective contract and may substantially delay any error analysis or correction or make these impossible.
Rights
In the relation between the contracting parties, AMbrace shall be solely entitled to the rights to the software. AMbrace shall grant to the customer the non-exclusive rights, which shall be unlimited in terms of time, in accordance with these Software Terms and Conditions. The software shall only be used for internal purposes at the customer location that has been contractually agreed upon, and in accordance with the rights of use granted in the license certificate. The multiple use of a single license shall not be permitted. Any change of location shall require the prior written consent of AMbrace, which may only be withheld for valid reasons. Upon request, the customer shall confirm in writing that no copies of the software are kept at the prior location. At the time of the delivery or installation of the software, the customer shall be granted access to the electronic software delivery portal of AMbrace and shall download the software from there. The right to use the software shall be set out in the customer quotation. Any further duplication shall only be permitted for backup purposes within the scope provided by law. Backup copies shall be marked, as far as is technically possible, with the copyright notice of the original software. All other types and possibilities of use of the software (that are relevant in relation to copyrights) shall be prohibited. Rendering data centre services on behalf of third parties or any other use of the software for purposes of third parties (e.g. within the scope of online services) shall not be permitted. Any utilisation by or for companies affiliated with the customer shall only be permitted with expressly written permission in the license certificate. The distribution of the software shall not be permitted. The customer shall be permitted to decompile the software only insofar as this is necessary for obtaining the interoperability of the software with third-party software and hardware (e.g. for obtaining the interface information) and only if AMbrace does not provide to the customer upon written request the necessary information for an appropriate remuneration and within a reasonable period of time.Transferring the software to third parties shall require the written permission of AMbrace. The permission shall be granted if the customer definitely and completely waives their own legal status regarding the software and prior to the transfer submits a written undertaking of the third party to accept AMbrace’s regulations regarding rights of use and confidentiality requirements. The acquirer shall not be entitled to derive from this permission any claims vis-à-vis AMbrace based on a contract or another legal provision. Splitting the rights of use pursuant to the license certificate shall not be permitted. The customer shall confirm vis-à-vis AMbrace in writing after the transfer that the customer no longer possesses the software or copies thereof or reuses any possible backup copies. The customer shall receive the following delivery contents of the software for the purpose of exercising their rights:
- machine programme;
- manual in digital form.
The customer shall not be entitled to claim the release of the source code. AMbrace shall be solely entitled to all rights to other work results that may be subject to copyright and that AMbrace submits to the customer within the scope of the performance of the contract; this shall also apply if they have arisen on the basis of a cooperation or a suggestion of the customer. The customer shall receive the non-exclusive permission, which shall be unlimited in terms of time, to use and to process these for internal purposes in connection with the contractually granted right to use the software. Provided that the work results that are subject to copyright are independent of the software, the customer shall be permitted to use and process them only for internal purposes for an unlimited period of time. Any distribution shall not be permitted. An extension of the potential use shall require a separate contractual agreement. AMbrace shall be entitled to examine the scope of use at any time by means of a license manager. In the case that AMbrace notices that the customer uses the software beyond the agreed scope, AMbrace shall have the right to invoice the difference between the paid remuneration and the remuneration for the actual scope of use. Any further rights shall remain reserved. Third-party software contained in the AMbrace products is subject to the terms and conditions of the third-party software manufacturer or supplier, which may be made available to the customer at any time upon request; alternatively, AMbrace shall also be permitted to notify the customer of the internet address from which the terms may be retrieved. The granting of the rights of use according to this Rights section is subject to full payment of the contractually agreed payment
Contact Persons and Cooperation of the Customer
The complexity and individuality of the software require intensive cooperation between the customer and AMbrace. The customer shall contribute free of charge to the performance of the contractual services (including error removal). In the order confirmation, the customer shall designate in relation to AMbrace a contact person and a deputy, who shall be responsible for all issues in connection with the performance of the contract and also as competent system administrators. The customer shall provide to AMbrace in due time and without being requested to do so all information necessary for the performance of the contract (e.g. regarding business procedures, available hardware and software environment, data structures). This obligation shall also include the provision of data of the customer, i.e. as required test data, but also real data in appropriate quality and quantity, which AMbrace requires for the performance of the contract. The data storage devices and data format shall be agreed upon. At regular intervals (AMbrace recommends to do so at least once per day) as well as prior to each intervention in existing EDP systems (e.g. before the installation of new programmes or versions), the customer shall perform a data backup. In the case that the customer does not – or not properly or not in due time – comply with their contractual obligations to cooperate, AMbrace shall be permitted to invoice for any costs or extra work or expenses resulting therefrom in accordance with the rates of remuneration applicable at that time.
Delays in Deliveries
AMbrace will be able to meet deadlines agreed upon only if the customer fully complies with their cooperation obligations. Deadlines agreed upon may be postponed in cases of changes and extensions and insufficient contribution. The deadlines shall be postponed in these cases and in other cases that AMbrace is not liable for (e.g. force majeure, labour disputes, etc.) by the time additionally required or by the time during which the disturbances did exist, respectively, and by an appropriate restart time. In the case that AMbrace enters into default, the customer shall first be obliged to fix in writing an appropriate grace period for the performance of the deliveries and services. Only if this period has expired without the desired result, the customer shall be permitted to assert further rights. If the customer would like to terminate the contract for cause after the grace period has expired without the desired result, the customer shall announce this intention to terminate the contract in the message by means of which the grace period is fixed.
Defects of Quality and Title
In cases of defects of quality and title, AMbrace shall primarily comply with their warranty obligations by means of supplementary performance. In the case of defects of quality, the supplementary performance shall consist – at AMbrace’s option – in the removal of errors or the delivery of an error-free programme version or of other error-free work results. In the case that the contractually agreed usage is restricted due to defects of title (e.g. by third parties asserting rights to the software), AMbrace shall – in the scope of the supplementary performance and at their option – ensure a usage of the software as agreed upon in the contract by defending against or satisfying these rights or by accordingly changing the contractual items. At their option, AMbrace shall be permitted to act themselves as a party in the judicial or extra-judicial dispute with the third party on behalf of the customer. The customer shall to a reasonable extent and free of charge support AMbrace in this context. Furthermore, the customer shall have the right to rescind the contract after an appropriate period (during which several attempts of supplementary performance will be permitted, if applicable), which has been granted in writing, has expired without the desired result. In the case of defects of quality, the due fulfilment of obligations by AMbrace shall require that the customer notifies of errors without delay in writing or by email, whereby the error shall be described in detail. The requirement in the case of defects of title shall be that the customer notifies AMbrace without delay in writing of protective rights of third parties asserted vis-à-vis the customer and submits all necessary information and data. AMbrace shall support the customer in the error tracking also if it is not certain that errors in the deliveries and services of AMbrace are concerned. If during the error tracking it does not become evidently apparent that the errors that occurred were caused by deliveries and services of AMbrace, AMbrace shall invoice the customer for the work or expenses that have arisen. AMbrace shall not have any obligations in relation to defects of quality or title if the contractual items have been altered without the consent of AMbrace and the customer does not prove that the respective defect of quality or title is independent therefrom. The same shall apply if the customer makes customizing settings themselves without the consent of AMbrace. The warranty period for defects of quality and title shall have a duration of one year (except in cases of intent) and shall start upon delivery. In cases of defects of third-party software or hardware, which is also provided by AMbrace within the scope of this contract, AMbrace shall – also at their option – also be permitted to first assign to the customer the claims that AMbrace is insofar entitled to vis-à-vis their respective suppliers. In such a case, the customer shall only be permitted to assert against AMbrace claims they are entitled to if the customer has asserted claims – in court, if applicable – against these persons without the desired result.
Error Report and Response Times; Error Handling
AMbrace receives error messages from the customer by email at hotline@ambrace.com. A process with the error message is automatically created in the AMbrace call tracking system contacted with this e-mail. Customer will not receive an automatic confirmation by the system. After a proper error message, the AMbrace hotline team will confirm the error acceptance to the customer by email. The customer receives this confirmation within 24 hours exclusively on working days from Monday to Friday at the AMbrace headquarters in Rotterdam.
Errors of the Software, Third-Party Software and Hardware, Operating Errors, other Services
AMbrace shall support the customer in the error analysis as follows: AMbrace shall be liable for errors in the software purchased by the customer within the scope of the liability for defects of quality and title (as described in these Software Terms and Conditions). In the case of customers which have leased the software (including maintenance) (B. Special Provisions) or customers which have purchased the software and have additionally concluded a software maintenance contract (B. Special Provisions), AMbrace shall remove any errors in their own software. AMbrace shall separately invoice the customer for the accrued work or expenses unless during the error analysis it becomes obvious that the errors that occurred are attributable to the software or services of AMbrace. In the case of customers who have additionally concluded a support/hotline agreement (B. Special Provisions), AMbrace shall additionally remove also other errors within the service contingent agreed upon in the support/hotline agreement, even if this is not an error of the AMbrace software. If the service contingent contractually agreed upon is exceeded, the customer may additionally purchase further services at an hourly rate defined in the quotation regarding the support/hotline services.
Technical Requirements; System Environment
The error analysis and removal shall be performed via telephone, email or remote connection, unless the parties have expressly agreed upon a deviating regulation in writing for individual cases. The customer shall ensure the establishment and maintenance of a remote connection at their own expense during the entire term of the contract. AMbrace shall undertake to use this connection only after prior coordination; in other respects, the regulations regarding data protection pursuant in these Software Terms and Conditions shall apply. AMbrace shall inform customers of maintenance and support/hotline agreements in due time of changes to the technical requirements and the system environments supported by AMbrace. In the case that the changes are not reasonable for the customer, the customer shall have the right to terminate the contract within four weeks after the receipt of the notification as of the end of the next possible quarter; if the customer does not terminate the contract, they shall be obliged to implement the technical changes. AMbrace may in each case only perform the maintenance services in the case that all technical requirements for the system environments supported by AMbrace at the relevant time have been met. If the contract is terminated, AMbrace shall refund any remuneration already paid for the period after the time as of which the contract has been terminated; any further rights shall be excluded.
Liability
AMbrace shall be liable without any limitation in the case of personal injuries as well as in other cases in which an unlimited liability is prescribed by law (e.g. in accordance with the applicable Product Liability Laws, in cases of intent or gross negligence, and injury to life, body, or health). In cases of slight negligence, the liability of AMbrace shall be limited to foreseeable damages that are typical for the contract, including consequential damages, with a limitation to the maximum amount of €500,000.00 per case of damage, however, up to a maximum amount of €2,000,000.00 for all damages within one contractual year. In the event of a slightly negligent breach of essential contractual obligations, liability is limited to the foreseeable damage typical of the contract. AMbrace shall be liable for losses of data and information (except in cases of intentional acts) only if the customer has performed system tests and data backups at regular intervals (at least once per day) and only if the data are reproducible from databases available in machine-readable form using reasonable efforts.
Confidentiality and Data Protection
The contracting parties shall undertake to treat as confidential all information, records, and data that they gain knowledge of in the course of providing the contractual services and not to make them available to third parties unless that is covered by the purpose of the contract. The customer shall ensure by means of appropriate measures that third parties do not have access to the contractual software that is or to other records of AMbrace. The contracting parties shall make their employees aware of the obligation to maintain confidentiality. AMbrace shall be permitted to use know-how obtained during the performance of the contract for their business operations, particularly for the further development of the software, and thereby further develop any general techniques and concepts created in the course of this. AMbrace and the customer shall observe the provisions of the data protection law. AMbrace shall process the data of the customer electronically and shall observe the provisions of the data protection law. However, the customer shall be responsible for protecting personal data before the commencement of the service provision in a way that unintentional access (i.e. access that is not required for the performance of the contract) by AMbrace will not be possible. In other respects, it shall be the customer’s task to obtain the consent of the relevant employees, customers, and business partners of the customer as well as other persons concerned that are required under the data protection law. The customer shall indemnify AMbrace against all claims that these persons could assert against AMbrace on the basis of the non-compliance with these obligations. This shall also apply to the possibility of accessing databases on site or via remote data transmission. The obligations to maintain confidentiality shall continue to apply during a period of five years after the termination of the contract.
Term and Termination
The contract has a term of one year and can be concluded at the beginning of the year or during the year. It is automatically renewed for a further year unless one of the two contracting parties terminates the contract with three months' notice to the end of the contract year. The right of a termination for cause shall remain reserved. A prior warning of it shall be given in writing, whereby the reason for the termination shall be indicated and an appropriate period for the removal of the reason for the termination shall be fixed. Such causes shall particularly be unforeseeable errors preventing the operation or significant errors impeding the operation of the software without a reasonable workaround, that may not be removed, delays of payments of the customer by more than six weeks, the opening of insolvency proceedings regarding the assets of a contractual partner or the rejection of the opening due to the lack of assets. Every termination shall only be valid when made in writing. After the termination of the contractual relationship, the customer shall be obliged – at AMbrace’s option – to return the software to AMbrace or to delete the provided programmes and to destroy the submitted manuals as well as any other material possibly submitted to the customer. The customer must confirm this to AMbrace in writing. Any usage of the software after the termination of the contractual relationship shall be prohibited. This does not apply for the purchase of Software.
Jurisdiction and Applicable Law; final Provisions
The place of performance shall be the seat of AMbtace. The place of jurisdiction regarding all disputes concerning the contractual relationship shall be the seat of AMbrace, provided that the customer is a businessperson, a legal person under public law or a special fund under public law. The contractual relationship shall be governed by Dutch law; the UN Convention on Contracts for the International Sale of Goods shall be excluded. In the case that individual provisions of these Software Terms and Conditions should be or become invalid or should the Software Terms and Conditions be incomplete, the validity of the other provisions shall remain unaffected thereof. If such a case occurs, the contractual partners shall attempt to reach a mutual agreement or a supplement regarding these items with the result that the intended economic purpose will be achieved in a legal way as well as possible. This provision shall apply with the necessary modifications also to gaps that require a supplementation. If these Software Terms and Conditions should be translated into another language, the English version shall have priority in cases of deviations or interpretation difficulties.
B. Special Provisions
B. Software Purchase
In the case that the customer purchases AMbrace software, the following additional regulations shall apply: AMbrace shall undertake to send the software in the form of its object code as well as the corresponding user manuals in digital form to the customer or to make it available to the customer in another way. The installation of the software shall not be covered by the delivery obligations of AMbrace. Any additional support services such as the installation of the software or the training of employees of the customer shall be agreed upon separately in a project contract. AMbrace shall reserve the right to make technical improvements and further developments of the software.
B. Software Lease
In the case that the customer leases AMbrace software, the following additional regulations shall apply:
The lease contract concerning the software described in the quotation shall include the maintenance of the software.
The contract shall have a duration of one year and shall automatically be extended by another year, unless one of both contractual partners terminates the contract as of the end of the month, whereby a notice period of three months shall be observed.
The right of a termination for cause shall remain reserved. A prior warning of it shall be given in writing, whereby the reason for the termination shall be indicated and an appropriate period for the removal of the reason for the termination shall be fixed. Such causes shall particularly be unforeseeable errors preventing the operation or significant errors impeding the operation of the software without a reasonable workaround, that may not be removed, delays of payments of the customer by more than six weeks, the opening of insolvency proceedings regarding the assets of a contractual partner or the rejection of the opening due to the lack of assets.
Every termination shall only be valid when made in writing.
After the termination of the contractual relationship, the customer shall be obliged – at AMbrace’s option – to return the software to AMbrace or to delete the provided programmes and to destroy the submitted manuals as well as any other material possibly submitted to the customer. The customer must confirm this to AMbrace in writing. Any usage of the software after the termination of the contractual relationship shall be prohibited.
The installation of the software is not part of the delivery obligations of AMbrace Additional support services such as the installation of the software or the training of the customer's employees are to be agreed separately in a project contract.
B. Software Maintenance
In the case that the customer and AMbrace have entered into a contract governing the maintenance of the purchased software, the following additional regulations shall apply: In the case that the customer purchases further licenses regarding the software to be maintained, these shall be included in the contract and the remuneration shall be adjusted accordingly. AMbrace shall send to the customer a contract that was amended accordingly. AMbrace shall be permitted to change the provisions of the software maintenance, whereby an announcement period of 60 days shall be observed. The customer shall be entitled to terminate the contract for cause as of the end of the next possible quarter within 60 days after the receipt of the changed provisions. In the case that the customer does not terminate the contract, the new software maintenance provisions shall apply as from the time indicated in the announcement. In the case that the customer terminates the contract, AMbrace shall refund any remuneration already paid for a period after the time as of which the contract has been terminated; any further rights shall be excluded.
B. Support/Hotline Agreement
In the case that the customer and AMbrace have entered into a support/hotline agreement, the following additional regulations shall apply:
-The subject matter of the support/hotline agreement shall be the provision of a service contingent at the AMbrace hotline for the AMbrace software products installed at the customer's premises and listed in the software maintenance contract.
-Depending on the contractually agreed Service Level Agreement (SLA), the support/hotline agreement offers shorter response times for error messages and error handling and also offers extended support times.