Terms and Conditions for OEM
General Terms and Conditions for mySalesDrive.com
1. General Provisions
This Agreement is made between perform IT GmbH (perform IT) and the end-user or a distributor (You), in case You act on behalf of a third party you confirm that you are authorized to bind the third party to this Agreement.
perform IT reserves the right to modify, change or amend this Agreement. In the event that such amendments change the scope of services to be provided by perform IT or the remuneration thereof, they shall be communicated to You at minimum 4 (four) weeks prior to their coming into legal effect. In this event, You shall be entitled to terminate the present Agreement effective as of the date on which the amended conditions would have taken legal effect. If no rejection from You is received by perform IT within the pre-notice period of four weeks, the amended conditions shall be deemed implemented into the present Agreement.
The Software shall be provided by perform IT as web-application solely. For log-in into the secured area of our website, You shall be provided with log-in data (user name and passcode). You shall be obliged to keep Your access information strictly confidential, i.e. treat the same as Confidential Information and not disclose your user name and password to any third parties. In case of a breach of this obligation perform IT reserves the right to take legal action.
Any general, standard or other terms and conditions used by You are hereby formally rejected and shall in no way whatsoever be or become part of or otherwise be implemented into the present Agreement, even if such general or standard terms of conditions have been enclosed by You to RfPs, purchase orders, declarations of acceptance, etc.
Order Sheet means a document with all details concerning the respective Software that is ordered (e.g. Profile, price, payment term)
perform IT means perform IT GmbH only and no affiliated companies pursuant to section 15 et sequentes of the German Stock Corporation Act (AktG). It does also not comprise perform IT’s suppliers or subcontractors.
Software means the standard software “SalesDrive” and all trade and service marks used by perform IT for the distribution of the software, in object code including but not limited to all existing and future components, modules, updates, upgrades and materials in writing, e.g. users manuals as further described in the respective documentation. Software does not include any third party software components not developed by or not constituting intellectual property of perform IT.
SaaS means Software as a Service and includes the Use of the Software for a limited period of time
Update means slight improvements or bug fixes of the Software.
Upgrade means a new version of the Software comprising new functionalities.
Use means the installation, loading, display and running of the Software on Your system pursuant to the present Agreement as set forth herein.
3. Subject Matter of Agreement
The subject of this Agreement is the providing of the use of the Software (Software as a Service) for a limited period of time as further defined and set forth in the present Agreement. Additional services including but not limited to customizing, installation, configuration and training with regard to the Software will be negotiated separately. perform IT shall provide access to the Software via internet connection in object code only (any rights of use in the source code shall not be the subject of the present Agreement). For the avoidance of doubt it is understood that the Software is not sold to You for permanent use. You are, instead granted a simple, non-exclusive, non-transferable license limited in time as further set out in the present Agreement. As far as You act as a distributor, you are granted the right to sublicense.
For OEM perform IT will provide a customized Software with the OEM logo in a dedicated area of the user interface of the Software. The OEM is obliged only to use this customized version and has no right and no claim to use SalesDrive in another than this customized version.
In general, the Software makes it possible to calculate TCO (Total Cost of Ownership) for paper outputting and scanning solutions. In relation to TCO calculations for a user’s current situation, the users have access to all device data within the Software database. In relation to TCO calculations related to optimization the user will have access to all data that is uploaded by the user into the portfolio. The OEM is authorized to limit the data parameters towards distributors and specialized dealers.
You are not allowed to use more than the number of licenses leased by You under the present Agreement; the use of the same shall be in strict accordance with the present Agreement, in particular with the respective Order Sheet.
Third party software or third party services are subject to the respective third party’s terms and conditions. perform IT will not be liable for any damages resulting from third party software or third party services.
The foregoing shall apply likewise and in particular for the rendering of signal transmission and other telecommunication services pursuant to section 3 para 24 of the German Telecommunication Act (TKG), which shall in no respect be the subject of the present Agreement.
The specifications of the Software shall be as set forth in the Order Sheet.
4. Technical Support and Maintenance
For system requirements of “mySalesDrive.Com” see www.mySalesDrive.com.
If there will be changes perform IT will –if possible- announce those 3 weeks in advance.
Technical support means support for technical functionality only, no support concerning commercial matters.
Support is provided in English.
Support times shall be Monday-Thursday 8.30-17.00 Central European Time (CET) and Friday 8.30 - 16.00 CET, there is no support on German public holidays. Support is offered by telephone, email and remotely via e.g. Teamviewer.
Each Support request that can’t be solved at once, should be confirmed in writing. Perform IT will send an answer without any further request.
In this answer, perform IT should have recognized and evaluated the bug. He should have defined a solution approach and should be able to offer a possible work schedule for bug fixing.
If a bug can’t be fixed easily on account of technical reasons, there will be information about the further process. perform IT will provide a time schedule.
As bug fixing perform IT will provide a solution which solves the problem.
Upgrades will be offered to You when they are available.
4.2 Response Time and Severity Code
The response time for answering the request and for bug fixing are as following:
severity code 1 (S1): critical bug
The product doesn’t work anymore and the user has no possibility to work with it. Essential functions are not available. The bug has caused the standstill or the crash of the product.
response within: 1 working day
bug fixing within: 5 working days
severity code 2 (S2): bug
The product or functions of it are not fully available. The bug does not concern essential functions which are necessary for further Use. The user is restricted in his work flow very much.
response within: 1 working day
bug fixing within: 10 working days
severity code 3 (S3): slight bug
The products shows a slight bug which does not restrict the essential functions. This also includes flaws in appearance. The work flow of the user is limited slightly only or not at all.
response within: 5 working days
bug fixing within: 20 working days
severity code 4 (S4): maintenance
The product is working but changes are necessary. They will be made within the next Update.
response within: 10 working days
bug fixing within: 30-40 working days
4.3 Support covered/not covered by the license fee
Per month and per license the monthly fee includes 2 hours of support. Further requirements will be charged with 60 € plus V.A.T. per commenced half-hour. An exceedance of the free of charge support will be announced in advance.
SaaS shall also include periodical updates of the software as leased by You under the present Agreement. Not included are services concerning configuration, installation or bug fixing of third party hard- or software. Perform IT is not able to influence a loss of performance resulting from third party hard- or software or services.
The monthly remuneration for SaaS shall include the user’s fee, support up to the agreed extent and update of the database and the Software. The costs for the service provider of the cloud service are charged to You as volume related prices according to the Order Sheet and in addition to the user’s fee.
The currency is €.
All prices shall be strictly exclusive of any other additional costs including but not limited to hardware, licenses of third party software e.g. Microsoft Office, costs for telecommunication services and upgrades of the Software.
All prices shall be net prices strictly exclusive of applicable statutory VAT, taxes, tariffs and other levies (if any), which are to be borne in addition by You. To the extent permissible under applicable law You shall indemnify and hold harmless perform IT from any related claims of tax authorities and other third parties.
The remuneration per month for SaaS shall be invoiced and payable and due as set forth in the Order Sheet. The first installment shall fall due for payment in advance. perform IT will provide to You log-in access to the services leased after having received the payment.
Payments under this Agreement can be made via direct debit; You may submit a completed and signed direct debit authorization form enclosed to Your order. With regard to any direct debit cancelled and/or actually not finally credited to perform IT, You are liable for the related costs if and to the extent the cancellation of the debit is attributable to Your fault
The pre-notification period is limited to two days.
If you do not agree with direct debit, for each invoice a handling fee of 5 € will be charged.
Default interest and its accrual on payments under the present Agreement shall be in accordance with the statutory provisions.
perform IT may require an amendment of the remuneration at perform IT’s reasonable discretion. In this event, respective communication shall be made to You at minimum 4 (four) weeks prior to their coming into legal effect. In this event, You shall be entitled to terminate the present Agreement effective as of the date on which the amended conditions would have taken legal effect. If no rejection from You is received by perform IT within the pre-notice period of four weeks, the amended conditions shall be deemed implemented into the present Agreement.
In the event of any payment default on your side, perform IT shall, save for any other legal entitlements and remedies available to perform IT, be entitled to suspend its services under the present Agreement, in particular to close Your account, cancel Your log-in details and block access immediately without any warning or prior notice being required. perform IT shall use commercial reasonable efforts to inform You by e-mail in due time on any such measure.
You accept that perform IT’s obligations under this Agreement are not by perform IT in person/not on perform IT’s own system and infrastructure, but that perform IT is entitled to elect and to change one or more service providers, subcontractors, etc. with which perform IT may conclude respective contracts providing services (e.g. server and CPU capacity for the performance of perform IT’s services under the present agreement, etc.). perform IT is entitled to elect any service providers/subcontractors at perform IT’s reasonable discretion. The costs are covered by the monthly payments/remuneration per month for SaaS as far as they do not concern the cloud provider. These costs are charged to You as volume related prices according to the Order Sheet and in addition to the user’s fee.
The hand-over of a copy of the Software on a physical storage media is expressly excluded and waived by You.
perform IT provides the Software via public data-networks at the junction of the data processing center within the availability described below. The user can load the Software into the working memory of his computer and then have access to his own data, which are saved and processed by the data processing center
perform IT shall provide access to the remote storage and all contractually agreed services (including but not limited to their accessibility and availability from time to time) to You as provided to perform IT by their respective service providers under their terms and conditions . In the light of the technical nature of the internet and transmissions there on, this shall be expressly understood and agreed by the parties to the present Agreement as a description of perform IT’s services (Leistungsbeschreibung) here under (clause 3)
perform IT can conform an availability of the Software of 97% in the annual average relating to a time slot of Monday to Friday 8:00 -17:00 CET excluding German Public holidays.
Additionally there must be a deduction of the availability for perform IT’s own service and maintenance (e.g. to upload Updates, database maintenance, tests, etc.). The deduction will amount to 8 hours a month. This maintenance shall be performed after office hours if reasonably possible.
Currently, perform IT has chosen Amazon Web Services Inc. (“Amazon”) as the cloud provider for the users. Perform IT also can change the cloud provider at its reasonable discretion.
8. Right of Use
Conditioned upon Your timely payment of the remuneration, You shall be granted the simple, non-exclusive, non-transferable right of use by the permitted number of users in Your system as set forth in the present Agreement. As far as You act as a distributor, you are granted the right to sublicense. Such rights shall be limited in time for the duration of the present Agreement. With regard to Your right of use, the limitations of the present Agreement (in particular as to the number of permitted named single users) shall apply. You shall in no way be entitled to sub-license or to make available Your rights of use (or parts of it) under the present Agreement to other than the named users, as far as you do not act as a distributor.
The right of Use is granted to registered users only. The number of users/licenses and the extent of use permitted shall be set forth in the respective Order Sheet.
You are also not allowed to modify, change, adapt, reproduce, translate, sub-license, distribute or otherwise make available/disseminate the Software or part of it, except with the prior written approval of perform IT.
Furthermore You are not allowed to copy, reverse engineer or decompile the Software unless within the strict limits for interoperability and other protected purposes set forth in the German Act on Copyrights (UrhRG), Your mandatory rights under which act shall remain unaffected. You shall also be prohibited from the effectuation of any changes and amendments to the Software (“Bearbeitung”).
Also you are not allowed to copy, distribute or change/amend the user’s manuals.
9. Data Security/Backups
Any kind of data security and data backup are Your sole responsibility. It is, therefore, recommended that You perform backups on a regular basis in accordance with Your business requirements using the SalesDrive front end functionality in the user interface of the Software. Any liability of perform IT for damages due to data losses shall be expressly excluded, unless such damages should have occurred despite the observation of due state of the art data backup measures on Your side. In the latter event, the limitations of liability under the present Agreement shall apply. The burden of proof for a due state of the art data backup measures shall exclusively vest in You. As far as You have ordered the respective service from perform IT, the clause above does not apply.
Important note regarding data security in connection with the Capture IT App provided by perform IT via App Store:
perform IT strongly recommends that You switch off the automatic update feature (Settings > iTunes & App Store > Automatic Downloads for Apps/Updates) on Your iPad device for the period from the beginning to the end of the onsite survey including the upload of all your data from the local iPad storage to the cloud solution.
Please also make sure that you have performed all offline backups of your iPad device incl. all apps and their data before activating the automatic update again or updating the capture IT app manually. Otherwise you would run the risk of losing your locally stored project data if something will go wrong during the update process of this offline application.
Please note that You are solely responsible for backups of your iPad. Even if you are benefitting from a framework agreement where perform IT has taken over the task of performing backups, this only relates to backups of mySalesDrive.com in the cloud. Backups of offline software are always Your own responsibility and perform IT has no obligations to assist you in performing and concerning these offline backups any liability of perform IT is expressly excluded.
10. Term of Agreement / Termination
The present Agreement is entered into for a fixed term of 12 months. Upon expiration of the initial term of 12 months, the Agreement shall renew automatically for terms of additional 12 months each, unless terminated by either party in writing observing a notice period of three months prior to the end of any respective extension period.
The right of either party to terminate the present Agreement for good cause with immediate effect (“Wichtiger Grund” - section 314 of the German Civil Code - BGB) shall remain unaffected.
Any notices on termination have to be in writing to be legally effective.
11. Obligations after the expiration of the Agreement
After the expiration of the Agreement, any data entered by You will be deleted from perform IT and its providers’ systems within 30 days. At Your request and expense, the data will be handed over to You on a storage media complying industry standards and to be elected by perform IT at its reasonable discretion. Any such request for the production of data must be made within one week from the date of expiration. Perform IT does not guarantee a correct inclusion of the data into the software/platform/system of any new supplier.
12. Intellectual property rights
perform IT’s trademarks and all other intellectual property rights to the products – in particular the Software under this Agreement - shall remain to vest solelyperform IT’s trademarks and all other intellectual property rights to the products – in particular the Software under this Agreement - shall remain to vest solely in perform IT. You acknowledge that perform IT’s trademarks and its intellectual property rights are the sole intellectual property of perform IT and may not be used by You or third parties without perform IT’s prior written approval.
It is also acknowledged by the parties that perform IT is free to sell, license and otherwise market the Software to third parties during the running time of the Agreement.
13. Confidential Information
„Confidential information” shall mean all information (whether written or in other form) provided to You by perform IT under or in connection with the present Agreement.
Confidential Information shall include (however, without any limitation), the existence and the commercial conditions of the present Agreement itself or any order there under as well as information perform IT may, at perform IT’s reasonable discretion, deem to be proprietary or confidential (including but not limited to perform IT’s trade secrets, know-how and information relating to employees of perform IT, as the case may be).
You shall keep any such documents, data or information received by You from perform IT in written, electronic or other form strictly confidential and You shall refrain from any disclosure or other dissemination to third parties. Furthermore you must inform perform IT about all change in those circumstances that entitle you to receive such information.
No confidentiality obligation shall exist with regard to information, which (i) upon the conclusion of the present Agreement was in the public domain or which has become known to the public thereafter other than due to a breach of the present Agreement; (ii) information that has to be disclosed pursuant to a decision of a court or an enforceable order of an administrative body, in the event of which You are obliged to mitigate the damage from such potential disclosure with Your commercially reasonable efforts and (iii) information which was known to You upon the conclusion of the present Agreement other than due to a breach of the present Agreement or any other law or regulation.
Furthermore, You shall disclose any Confidential Information to Your employees on a strict need-to-know-basis and shall bind Your employees in accordance with the foregoing provisions to the extent permissible under employment law. Confidential Information shall be passed to Your consultants only, if such consultants are bound by a statutory professional secrecy obligation as (or reasonably comparable) to German attorneys-at-law (Rechtsanwälte), tax advisors (Steuerberater) or Certified Public Accountants (Wirtschaftsprüfer).
Your foregoing obligations shall not be limited in time and shall survive the termination or other expiration of the present Agreement for an indefinite period of time.
14. Place of Performance
License keys will be provided to You in the current version of the Software within 10 days after the order has been received and accepted by perform IT.
perform IT has fulfilled its contractual obligations by providing the Software at the junction of the data processing center. The contractually agreed place of performance for either party shall be in Nuremberg.
perform IT has fulfilled its contractual obligations by providing the Software at the junction of the data processing center. The contractually agreed place of performance for either party shall be in Nuremberg.
15. Export regulation
You agree that the software will not be exported or delivered into any country or used in any manner prohibited by the export control laws of any country. The present Agreement shall be concluded with You under the express condition precedent that Your use of the Software is in full compliance of such laws.
Warranty and strict liability pursuant to section 536a of the German Civil Code (BGB) for defects of the Software existing upon the conclusion of the present Agreement shall be expressly excluded.
This notwithstanding, perform IT shall ensure compliance of the Software with its contractually agreed functionalities and specification during the term of the present Agreement. Any defects shall be rectified by perform IT in due time from their reporting by You.
Any defects must be reported by You without undue delay and in the written form.
17. Limitation of Liability
perform IT shall only assume full liability for any damage suffered by You which is caused intentionally or by gross negligence on the part of perform IT or any parties called in by, and assisting the latter in contractual performance, or for personal injuries or claims under the German Act on product liability law (ProdHaftG). In all other cases, the limitations set out below shall apply:
- In cases involving material breach of contract due to simple negligence, perform IT will only be liable for typically foreseeable direct damages to a maximum of (i) EUR 50,000 for damages to property and (ii) EUR 10,000 for economic losses, each per year.
- Liability for damage caused by breach of a non-material contractual obligation due to minor negligence will be excluded.
- “Material contractual obligations” shall mean obligations being essential for contract performance and of the other contractual party must be able to rely on the fact that such material contractual obligations will be fulfilled.
- The limitation of liability herein shall apply likewise to all employees, executives and affiliates of perform IT and any parties called in by, and assisting, the latter in contract performance.
- perform IT will not accept liability for any damage if the client interferes with the work performed without written approval by perform IT.
- Your obligation to prevent or mitigate damages, in particular in cases involving the loss of data or files shall remain unaffected. No compensation can be claimed by You for and in connection with the loss of data unless regular backup copies have been created on separate data carriers by You at least on a daily basis.
- perform IT will not assume any liability for damage or disadvantages arising out of the fact that an IT system or part thereof was switched off for, or otherwise affected by, repair or maintenance.
18. Idemnity for IP/Copyright Violation
perform IT agrees to indemnify and hold harmless You, Your affiliates, subsidiaries, officers, agents, partners, employees, and licensors from and against all losses, damages, suits, claims, demands, penalties, liabilities, costs or expenses, settlements, judgments, awards and actions of whatever kind or nature, that You may suffer or incur arising out of or in connection with any claim that the marketing, advertising, promotion, use, sale or other disposal of any product of perform IT (or any part thereof) and/or the use of any of the perform IT Trade Marks in accordance with and as contemplated by these terms and conditions infringes the rights (including any Intellectual Property Rights) of any third party, each including reasonable attorneys' fees and costs against any claim that perform IT’s software would infringe Your or another parties’ intellectual property rights or copy rights.
You agree to indemnify and hold harmless perform IT, its affiliates, subsidiaries, officers, agents, employees, and licensors from and against all losses, damages, suits, claims, demands, penalties, liabilities, costs or expenses, settlements, judgments, awards and actions of whatever kind or nature, that perform IT may suffer or incur arising out of or in connection with any claim that the marketing, advertising, promotion, use, sale or other disposal of anything granted by Brother to fulfil the contract (or any part thereof) and/or the use of any of the Brother Trade Marks in accordance with and as contemplated by these terms and conditions infringes the rights (including any Intellectual Property Rights) of any third party, each including reasonable attorneys' fees and costs against any claim that You would infringe perform IT’s or another parties’ intellectual property or copyrights and it is not the case of a).
Each party shall, at the request and reasonable attorneys' fees and cost of the other party, provide all reasonable assistance to the other in connection with any action to be taken by the other party in respect of any of the matters set out in these clauses.
perform IT shall not acquire any rights in the data (data means data as defined under §3 I BDSG) used or stored by You or Your permitted users in the course of your perusal of the services under the present Agreement unless such data is provided by perform IT or part of the Software. This notwithstanding, perform IT shall be entitled to use the data in strict accordance with Your instruction in the framework of an agency data processing agreement pursuant to section 11 of the German Data Privacy Act (BDSG), if the parties here to so agree.
Any such agency data processing agreement shall be entered into separately and in the written form and pursuant to the statutory requirements of the BDSG.
20. Choice of Law, Jurisdiction
This Agreement and any dispute arising from the relationship between the parties to the present Agreement shall be exclusively governed by German substantive law except for its provisions on the conflict of laws. The UN Convention on the International Sale of Goods (CISG) shall be excluded. The exclusive international and local venue for jurisdiction for any disputes, claims and litigation between the parties out of or in connection with the present Agreement shall be before the courts competent for Nuremberg, Federal Republic of Germany. This notwithstanding, perform IT reserves the right to adjudicate and pursue any claims against You in any other court having personal jurisdiction over You.
Modification of the Agreement:
All messages, changes, amendments and notices concerning this Agreement have to be provided in writing. The parties acknowledge that no verbal side-agreements exist.
Transfer of rights and entitlement
It is hereby acknowledged that perform IT is free to transfer any rights, claim, entitlements, etc. under the present Agreement to third parties, including, but not limited to the transfer of accounts receivables for refinancing purposes.
Retention and Set-Off
You may exercise a right of set-off or retention exclusively with regard to such claims and entitlements, which are undisputed or have been decided upon by a court in a res iudicata judgment.
Severability of the Agreement:
If any term or provision of this Agreement should be found to be unlawful or unenforceable, or invalid in whole or in part for any reason, the validity of the remaining provisions shall remain unaffected. The unlawful, unenforceable or invalid provision (or the respective part thereof) shall be deemed deleted from this Agreement and deemed replaced by a provision which is legal, valid and enforceable and serves the economic intent of the parties in the best possible way instead of the deleted provision.
© perform IT V02/2016 (03.03.2016)
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