General Terms and Conditions
1. General Provisions
Distributors are also obliged to ensure that with any sub-licensing (whether single or in a chain of sub-licensing by additional Distributors) the user-related content of this Agreement will be passed on to the user /all users in the chain and he / they will be obliged to comply with the rules.
PIT US 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 PIT US or the remuneration thereof, they shall be communicated to L at minimum 4 (four) weeks prior to their coming into legal effect. In this case, L shall be entitled to terminate the Agreement effective as of the date on which the amended conditions would have taken legal effect. If no rejection from L is received by PIT US within the pre-notice period of four weeks, the amended conditions shall be deemed implemented into the Agreement.
The license(s) shall be provided by PIT US only as web-application and for one named user each (user related license). For log-in into the secured area of the landing page, the user shall be provided with log-in data (user name and passcode). He is obliged to keep his access information strictly confidential, i.e. treat the same as confidential information and not disclose his user name or / and password to any other person. In case of a breach of this obligation PIT US reserves the right to take legal action.
Any general, standard or other terms and conditions used by L are hereby formally rejected and shall in no way whatsoever be or become part of or otherwise be implemented into the Agreement, even if such general or standard terms of conditions have been enclosed by L to RfPs, purchase orders, declarations of acceptance, etc.
Distributor: A natural person or a legal entity who distributes the products of PIT US in his own name and for his own account. The Distributor must conclude a distribution contract with PIT US, which establishes the distribution relationship and refers to the Agreement with regard to the rights and obligations herein. The contract may contain special rules which then precede the Agreement.
Licensee (L): L can be a natural person or a legal entity, he does not have to be identical with the user and he can also be a Distributor.
Order Sheet: By L signing the Order Sheet and PIT US accepting or carrying out the order, a contractual relationship is entered into. The Order Sheet contains all necessary details concerning performance and consideration, name of the user(s) and a reference to the Agreement, third party terms and conditions if applicable and the data protection guidelines.
PIT US: perform IT US, Inc. only and no affiliated companies. Affiliated companies are legally separate companies which in relationship to each other are subsidiary and parent company, controlled or controlling companies, members of a group, companies with cross-shareholdings or parties to a company agreement. It does also not comprise PIT US’s suppliers or subcontractors.
SaaS: Software as a Service, it includes the Use of the Software for a limited period of time and of cloud capacities provided by a third-party supplier.
Software: The standard software “mySalesDrive.com” as well as customized versions and all trade and service marks used by PIT US 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. “Software” does not include any third party software components not developed by and not constituting intellectual property of PIT US.
Update: Slight improvements or bug fixes of the Software.
Upgrade: A new version of the Software comprising new functionalities.
Use: The installation, loading, display and running of the Software on the user’s system pursuant to the Agreement as set forth herein.
3. Subject Matter of Agreement/Scope of Service
The subject of this Agreement is granting a simple, non-exclusive, non-transferable, temporally limited right to use the Software (SaaS). Details such as number of licenses, software profile, price or period of Use can be found in the Order Sheet. As far as L acts as Distributor, he has the right to sublicense.
Additional services, including but not limited to customizing, installation, configuration of the Software will be negotiated and charged separately.
For Distributors PIT US will –on demand- provide a customized Software with the Distributor’s logo in a dedicated area of the user interface of the Software. The Distributor 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-, scanning- and other IT systems. 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 his portfolio.
PIT US 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 Agreement).
The Use must be in accordance with the Agreement and the Order Sheet.
Third party software or third party services are subject to the respective agreement between the third party and L. PIT US 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, which shall in no respect be the subject of the Agreement.
4. Technical Support
For system requirements of “mySalesDrive.com” see www.mySalesDrive.com. If there will be changes PIT US will –if possible- announce those 3 weeks in advance.
Temporal and Contentual Scope
Support times shall be Monday-Friday 9.00-5.00 EST, there is no support on American public holidays.
Support is provided in English language.
Support is offered by telephone, email and remotely via e.g. Teamviewer.
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 to the user in advance.
Support services are limited to help desk services and periodical Updates.
Upgrades will be offered to L when they are available and will be charged.
Technical support means support for technical functionality only, no support concerning commercial matters.
Support is provided for the Software only. Not included are services concerning configuration, installation or bug fixing of third party hard- or software. PIT US is not able to influence a loss of performance resulting from third party hard- or software or services.
Proceeding concerning support requests:
Each Support request that can’t be solved at once, should be confirmed immediately. PIT US will send an answer without any further request.
In this answer, PIT US should have recognized and evaluated the bug. The support staff 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, PIT US will inform about the further process by providing a time schedule.
As bug fixing PIT US will provide a solution which solves the problem.
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 isn’t functional 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 the product are not fully available. The bug does not concern essential functions which are necessary for further Use. The user is very much restricted in his work flow.
response within: 1 working day
bug fixing within: 10 working days
severity code 3 (S3): slight bug
The product shows a slight bug which does not restrict the essential functions. 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 which can be implemented within the next Update.
response within: 10 working days
bug fixing within: 30-40 working days
The monthly remuneration shall include the user’s fee, support up to the agreed extent and update of the Software. The costs for the usage of the cloud are charged additionally, according to the Order Sheet either as volume related prices or as a package price.
The currency is $.
All prices shall be strictly net exclusive of applicable statutory VAT and any other additional costs including but not limited to Upgrades of the Software, training, web sessions, necessary hardware, licenses of third party software e.g. Microsoft Office, costs for telecommunication services, etc.
Taxes, tariffs and other levies (if any) are to be borne by L. To the extent permissible under applicable law L shall indemnify and hold harmless PIT US 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.
Default interest and its accrual on payments under the Agreement shall be in accordance with the statutory provisions.
PIT US may require an amendment of the remuneration at PIT US’s reasonable discretion. The respective communication shall be made to L at minimum 4 (four) weeks prior to their coming into legal effect. In this case, L shall be entitled to terminate the Agreement effective as of the date on which the amended conditions would have taken legal effect. If no rejection from L is received by PIT US within the pre-notice period of four weeks, the amended conditions shall be deemed implemented into the Agreement.
In the event of any payment default on L’s side, PIT US shall, save for any other legal entitlements and remedies available to PIT US, be entitled to suspend its services under the Agreement, in particular to close L’s account, cancel L’s log-in details and block access immediately without any warning or prior notice being required. PIT US shall use commercial reasonable efforts to inform L by e-mail in due time on any such measure.
L accepts that PIT US’s obligations under this Agreement are not done by PIT US itself/not on PIT US’s own system and infrastructure, but that PIT US is entitled to elect and to change one or more service providers, subcontractors, etc. with which PIT US may conclude respective contracts providing services (e.g. server and CPU capacity for the performance of PIT US’s services under the Agreement, etc.). PIT US is entitled to elect any service providers/subcontractors at PIT US’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 (currently Amazon Web Services Inc., USA). The costs for the usage of the cloud are charged to L according to the Order Sheet either as volume related prices or as package price 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 L, it is a mere web solution.
An availability of the Software of 97% in the annual average relating to a time slot of Monday to Friday 9.00 - 5.00 EST excluding American Public holidays can be confirmed.
Additionally there must be a deduction of the availability for software related 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.
8. Right of Use
Conditioned upon the timely payment of the remuneration, L shall be granted a simple, non-exclusive, non-transferable right of using the Software. According to the Order Sheet, the right is limited in time to the duration of the running time of the contract and with regard to licenses, the contractually agreed number of named users applies. Sub-licensing or otherwise enabling Use by other than the named user is expressly prohibited, unless L is a Distributor.
Without the prior written approval of PIT US L is not allowed to modify, change, adapt, reproduce, translate, sub-license, distribute or otherwise make available/disseminate, to copy, reverse engineer or decompile the Software or part of it, except within the strict limits for interoperability and other protected purposes set forth in the German Act on Copyrights (UrhRG), L’s mandatory rights under which act shall remain unaffected.
L is also not allowed to copy, distribute or change/amend the user’s manuals. This does not apply for Distributors as far as they have a contractual right or a written permission of PIT US to do so.
9. Data Security/Backups
Any kind of data security and data backup are L’s sole responsibility. It is, therefore, recommended that L performs backups on a regular basis in accordance with his business requirements using the SalesDrive front end functionality in the user interface of the Software. Any liability of PIT US 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 L’s side. In the latter event, the limitations of liability under the Agreement shall apply. The burden of proof for a due state of the art data backup measures shall exclusively vest in L.
Important note for the user regarding data security in connection with the Capture IT App provided by PIT US via App Store:
PIT US strongly recommends that the user switches off the automatic update feature (Settings > iTunes & App Store > Automatic Downloads for Apps/Updates) on his iPad device for the period from the beginning to the end of the onsite survey including the upload of all his data from the local iPad storage to the cloud solution.
The user has also to make sure that he has performed all offline backups of his iPad device incl. all apps and their data before activating the automatic update again or updating the capture IT app manually. Otherwise he would run the risk of losing his locally stored project data if something will go wrong during the update process of this offline application.
The user is solely responsible for backups of his iPad. Even if he is benefitting from a framework agreement where PIT US 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 the user’s own responsibility and PIT US has no obligations to assist him in performing and concerning these offline backups any liability of PIT US is expressly excluded.
10. Term of Agreement / Termination
The 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 Agreement for good cause with immediate effect 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, all entered data will be deleted from PIT US’s and its providers’ systems within 30 days. At L’s request and expense, the data will be handed over to him on a storage media complying industry standards and to be elected by PIT US at its reasonable discretion. Any such request for the production of data must be made within one week from the date of expiration. PIT US does not guarantee a correct inclusion of the data into the software/platform/system of any new supplier.
12. Web sessions / training events
PIT US offers both L and other interested parties product- and industry-related training events. They can take place online as web sessions or on site, either at PIT US’s site or at a defined location.
For on-site events, travel-, accommodation-, food and other costs either of the participants or the trainer of PIT US will arise. These costs are borne by L.
If an event is booked bindingly, a free-of-charge cancellation is possible up to 6 weeks before the start of the event. Within 6 weeks before the start of the event, the cancellation fee is 30% of the event price, within 4 weeks before the event 50% and within 1 week before the event 80%. L will be given the opportunity to prove that a lesser degree of damage has occurred in individual cases.
13. Intellectual property rights
PIT US’s and its providers’ trademarks and all other intellectual property rights to the products – in particular the Software under this Agreement - shall remain solely in PIT US’s or its providers’ ownership, as the case may be. They may not be used by L or third parties without PIT US’s or its providers’ prior written approval.
It is also acknowledged by the parties that PIT US is free to sell, license and otherwise market the Software to third parties during the running time of the contractual relationship.
14. Confidential Information
„Confidential information” shall mean all information (whether written or in other form) provided to L / the user by PIT US under or in connection with the contractual relationship.
Confidential Information shall include (however, without any limitation), the existence and the commercial conditions of the Agreement itself or any order there under as well as information PIT US may, at PIT US’s reasonable discretion, deem to be proprietary or confidential (including but not limited to PIT US’s trade secrets, know-how and information relating to employees of PIT US, as the case may be).
L / the user shall keep any such documents, data or information received from PIT US in written, electronic or other form strictly confidential and shall refrain from any disclosure or other dissemination to third parties. Furthermore L / the user must inform PIT US about all change in those circumstances that entitle him to receive such information.
No confidentiality obligation shall exist with regard to information, which (i) upon the conclusion of the Agreement was in the public domain or which has become known to the public thereafter other than due to a breach of the 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 L / the user is obliged to mitigate the damage from such potential disclosure with commercially reasonable efforts and (iii) information which was known to L / the user upon the conclusion of the Agreement other than due to a breach of the Agreement or any other law or regulation.
Any Confidential Information shall be disclosed to L’s employees on a strict need-to-know-basis and shall bind his employees in accordance with the foregoing provisions to the extent permissible under employment law. Confidential Information shall be passed to L’s consultants only, if such consultants are bound by a statutory professional secrecy obligation as (or reasonably comparable) to attorneys-at-law, tax advisors or Certified Public Accountants.
The foregoing obligations shall not be limited in time and shall survive the termination or other expiration of the Agreement for an indefinite period of time.
15. Place of Performance
License keys will be provided in the current version of the Software within 10 days after the order has been received and accepted by PIT US.
PIT US 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.
16. Export regulation
L undertakes to ensure 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 Agreement shall be concluded under condition that the use of the Software is in full compliance of such laws.
Warranty and strict liability for defects of the Software existing upon the conclusion of the Agreement shall be –to the extent permitted by law- expressly excluded.
This notwithstanding, PIT US 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 PIT US in due time from their reporting by L. Any defects must be reported by L without undue delay and in the written form.
18. Limitation of Liability
PIT US shall only assume full liability for any damage suffered by L / the user which is caused intentionally or by gross negligence on the part of PIT US 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 –to the extent permitted by law-, the limitations set out below shall apply:
- In cases involving material breach of contract due to simple negligence, PIT US will only be liable for typically foreseeable direct damages to a maximum of (i) EUR 5,000 for damages to property and (ii) EUR 1,000 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.
- PIT US will not accept liability for any damage if L interferes with the work performed by PIT US. This is equivalent to interventions attributable to L.
- L’s 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 L for and in connection with the loss of data unless regular backup copies have been created on separate data carriers by L at least on a daily basis.
- PIT US 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.
- The limitation of liability herein shall apply likewise to all employees, executives and affiliates of PIT US and any parties called in by, and assisting, the latter in contract performance.
19. Indemnity for IP/Copyright Violation
L agrees to indemnify and hold harmless PIT US, its affiliates, subsidiaries, officers, agents, partners, employees and licensors from and against all losses, damages, actions, suits, claims, demands, penalties, liabilities, costs or expenses, settlements, judgments, awards and actions of whatever kind or nature, including but not limited to reasonable attorney's fees and costs, including, but not limited to actual and consequential damages that may be suffered or incur arising out of or in connection with the infringement of the rights (including any Intellectual Property Rights) of PIT US or any third party.
20. Choice of Law, Jurisdiction
This Agreement shall be governed by and construed in accordance with Pennsylvania law, without regard to its conflicts of law provision. Each Party a) agrees that any litigation, action or proceeding relating to this Agreement must be instituted in any state or federal court in the State of Pennsylvania, in Bucks County; and b) waives any objection which such Party might have with respect to jurisdiction, venue or forum.
Modification of the Agreement
All messages, changes, amendments and notices concerning this Agreement and the waiver of the written form requirement 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 PIT US is free to transfer any rights, claim, entitlements, etc. under the Agreement to third parties, including, but not limited to the transfer of accounts receivables for refinancing purposes.
Retention and Set-Off
A right of set-off or retention exists only 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.
The masculine personal designations used in the Agreement should be construed as gender-neutral.
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