§ 1 Scope of Application and Subject Matter
1) During the term of the Agreement GP+S shall provide the Customer with the Software in the current version for use against payment on the basis of the following provisions. The functional scope of the Software is defined in the service description on the GP+S website at https://www.gps-consulting.com/leistungen/software-capamap/.
(2) Deviating terms and conditions of the Customer shall not apply unless GP+S has expressly agreed to them.
§ 2 Services
(1) Customer shall receive from GP+S the access data for the Software including storage space for its own data on a server for use via the Internet. The source code of the software is not part of the agreement.
(2) During the term of the Agreement (§ 12) GP+S shall provide the following additional services:
(a) Support (§ 6)
(b) Troubleshooting (§ 7)
(3) GP+S shall only provide additional services on the basis of a special agreement and in return for additional remuneration (§ 9).
(4) GP+S shall be entitled to have individual Services performed by third parties. To the extent necessary for the proper fulfillment of the contractual obligations, these third parties may be given access to documents, information and data of the Client within the framework of the data protection regulations.
(5) If required, Customer shall name persons who are authorized to call up services and who can be contacted by GP+S in case of queries. Changes to the contact data shall be updated by Client in a timely manner.
§ 3 Use of the Software
§ 3.1 Requirements for use
(1) The Customer shall ensure that it meets the technical and legal requirements in order to be able to use the Software.
(2) For access via the Internet, one of the following browsers must be used in its current version: Google Chrome, Mozilla Firefox, Microsoft Edge or Apple Safari.
(3) If Customer wishes to use its own Microsoft Azure Active Directory, it must be configured so that it can be used as an authentication service for the Software. Reference is made to the CAPAMAP guide for setup.
§ 3.2 Right of Use
(1) The software is protected by copyright. Furthermore, the logo and the designation of the Software are subject to trademark protection as a German word/figurative mark No. 30 2018 217 603.
(2) GP+S grants the Customer the non-exclusive and non-transferable right to use the Software for its intended purpose during the term of the Agreement. Unless expressly agreed, the right of use shall not extend to companies affiliated with the Customer pursuant to §§ 15 et seq. AktG (German Stock Corporation Act).
(3) The Customer shall not be entitled to make the Software or parts thereof available to third parties against payment or free of charge and shall prevent unauthorized access by taking appropriate precautions. The Customer shall notify GP+S immediately if it becomes aware of such access attempts or other data manipulations. If a suspicious report later turns out to be unfounded, the Customer shall not be liable.
(4) Content provided by GP+S in the Software (e.g. blueprints, templates, tutorials, manual) may not be published without the explicit consent of GP+S.
(5) Upon request, a test version of the Software may be made available for a limited period of time. GP+S shall provide services regarding support (§ 6), error correction (§ 7) and updates (§ 8) of the test version to the best of its ability, but without being obligated to do so. By using the test version, the Customer consents to GP+S employees having access to the test version in order to advise the Customer in the best possible way on the use of the software during the test phase and to support the Customer with questions regarding the functionalities of the software. The Client’s consent shall expressly apply only to the time-limited test period and not to licenses acquired against payment.
(6) The Customer shall be liable for all damages incurred by GP+S due to an infringement of copyright or trademark rights.
§ 3.3 Scope of use
(1) The maximum number of permitted users of the Customer shall be determined by the offer.
(2) If Customer exceeds the limits of its current license, it shall notify GP+S without being requested to do so. GP+S reserves the right to review the Customer’s users.
(3) An adjustment of the permissible scope of use initiated pursuant to Section 2 shall regularly be made in the course of the annual renewal of the Agreement (Section 12, Paragraph 2) and shall be taken into account accordingly in the remuneration obligation (Section 11). In individual cases, GP+S reserves the right to make adjustments during the year and to demand additional license fees.
§ 4 Use of the Work Results
(1) The Customer shall have a limited, irrevocable right of use to the work results (e.g. capability descriptions, capability maps) created by it with the Software only in accordance with the following paragraph. Processing of the work results is only possible with the Software and requires a continuing right of use (§ 3.2 para. 2). Without this, only a machine-readable data export is possible.
(2) If the Customer publishes work results created by him with the Software, he must make their origin recognizable with a suitable reference to the Software (e.g. “Created with CAPAMAP”).
§ 5 Availability of the Server
(1) The availability of the Server shall be 99.9%, on a monthly average (operating time 365 days, 24 hours). Periods during which access to the server is restricted due to maintenance work (e.g. updates or bug fixes) or GP+S non-attributable disruptions shall not be counted towards this value and thus shall not be considered downtime.
(2) Maintenance work is usually performed during the hours from Monday to Thursday, 18:00 to 20:00, as well as Friday, 18:00 to Monday, 7:00. GP+S shall, if possible, inform the Customer by email three days in advance about planned maintenance work including the reason and expected duration. Users shall receive corresponding information on the user interface of the software.
(3) The measurement of the downtime shall start from the point in time when the server is no longer accessible or no longer responds to requests. The downtime ends as soon as GP+S has eliminated the disruption and the server is available to the Customer again. There shall be no express notification of the elimination of the malfunction.
(4) For each month in which the availability according to paragraph 1 is not achieved, the Client shall be credited upon request with an amount equal to 50% of the remuneration owed for that month according to the offer commissioned.
§ 6 Support
(1) GP+S shall keep qualified personnel available for inquiries of the Customer from Monday to Friday from 9:00 a.m. to 6:00 p.m. – except on holidays in Hesse, Germany – in order to support the Customer in case of problems and questions regarding the operation of the Software.
(2) Inquiries are to be sent by e-mail to the address . They will be processed as soon as possible after receipt within the service hours (para. 1). Unless it is a case of error correction (§ 7), the solution of a problem within a certain time cannot be promised.
(3) GP+S shall not be obligated to answer inquiries of the Customer,
– (a) that are obviously based on the fact that the minimum system requirements specified in the documentation for the software are not met,
– (b) which relate to products or operational problems which are obviously not related to the Software and the requirements necessary for its operation, e.g. virus scanners or other security software,
– (c) the contents of which reflect the Customer’s wish to implement additional functions or design options not available in the Software and not promised in the documentation for the Software, e.g. application developments or user configurations,
– (d) which have arisen due to the fact that the Customer has carried out unauthorized installations or configurations of the Software or undocumented interventions, e.g. when manually changing files.
§ 7 Troubleshooting
(1) GP+S shall eliminate faults in connection with the Software that occur during the term of the Agreement with regard to their severity, whereby the simultaneous occurrence of several faults may constitute a fault of the next higher category:
(a) Critical Disruption (High Priority): A malfunction that causes the software or significant parts of it to fail, so that use is completely or almost completely impossible – for example, the software does not start or crashes.
(b) Major Incident (Medium Priority): Malfunction that impairs the use of the software to such an extent that reasonable work with it is no longer possible or is only possible with a disproportionately large effort – example: suggestions in the duplicate check for capabilities only work to a limited extent.
(c) Other fault (low priority): Malfunction that is annoying but does not or only insignificantly affect the use of the software – example: display problems in the user interface.
(2) The Customer shall report malfunctions immediately after their occurrence by e-mail to the address . The notification shall contain a classification of the malfunction in accordance with Paragraph 1 with regard to the feared effects on the Customer’s business operations. It must be precise enough to enable GP+S to start troubleshooting in a targeted manner. The fault report must contain the following:
– Description of the error symptoms
– Screenshots of the error message
– Time of the error
– Steps to reproduce the error
– Description of the customer’s IT system (operating system and browser)
– Contact details for queries via telephone or video conferencing tool (preferably MS Teams)
(3) GP+S shall provide an initial response to a fault report that meets the requirements of Paragraph 2, taking into account the classification according to Paragraph 1 (“Response Time”) and shall eliminate the fault (“Correction Period”). Periods outside the service times pursuant to § 6 (1) shall not be included in this calculation.
(a) Critical Incident: Response Time 2 hours, followed by notification of progress in remedying the Incident every 2 hours, Remedy Period 8 hours
(b) Major incident: response time 4 hours, elimination period 24 hours
(c) Other Disruptions: response time 8 hours, removal period 48 hours
(4) If it is foreseeable for GP+S that a Critical or Major Disruption cannot be remedied within the foreseen remediation period, GP+S shall first provide a workaround and then remedy the Disruption as soon as possible.
(5) If the alleged disruption is not verifiable, reproducible or not attributable to GP+S, GP+S reserves the right to charge the Customer for the incurred remediation costs.
(6) In the absence of a special agreement (§ 9), GP+S shall not be obligated to remedy malfunctions that are due to improper operation of the Software by the Customer, force majeure or intervention by third parties.
§ 8 Updates
(1) GP+S shall provide the Customer with updates as far as possible, which shall be automatically installed on the server after their release. Information about the current release including a description of new and modified functions can be viewed via the user interface of the software.
(2) With the help of the updates, the software is continuously improved, adapted to the general technical development and the requirements of the users. After an update, therefore, new functions of the software may be available and previous functions may be different, e.g. in their sequence or in the user guidance.
§ 9 Additional Support Services
(1) The parties shall be free to agree on additional support services for the Software beyond the services contractually owed by GP+S in return for separate remuneration.
(2) Such additional services may in particular be:
(a) elimination of malfunctions caused by improper operation of the Software by the Client, by force majeure (Section 14 para. 4 sentence 2), intervention by third parties or by other circumstances not attributable to GP+S
(b) consulting and training of Customer’s employees in the use of the Software
(c) Advice on content and structure when setting up a Map
§ 10 Cooperation Duties of the Customer
(2) The Customer shall ensure that its users responsibly exercise the graded powers for working with the Software (viewer, editor, administrator).
(3) Customer shall provide GP+S with all necessary information, documents and data in case of support requests and error messages. If necessary for the analysis or elimination of errors, Customer shall grant GP+S temporary access to its hardware and software infrastructure.
(4) If the Customer fails to comply with its obligations to cooperate, GP+S shall not be liable for any loss of data or other damage suffered by the Customer. GP+S also reserves the right to charge the Customer for any resulting expenses and to postpone any agreed performance dates accordingly. Other claims and rights of GP+S shall remain unaffected.
(5) Customer is obligated to report security incidents or security-relevant events of which it becomes aware and which may have a direct or indirect influence on the CAPAMAP application provided by GP+S in a timely manner to GP+S via the following email address: .
“False reports” of events that subsequently do not turn out to be incidents shall not entail any negative consequences.
§ 11 Remuneration and payment terms
(1) The remuneration owed by the customer results from the commissioned offer.
(2) The remuneration for the use of the software (§ 2 para. 1 p. 1) and the associated maintenance services (§ 2 para. 2) shall be paid annually in advance. Any support services (§ 9) and other services shall be invoiced on a time and material basis.
(3) Travel costs and expenses shall be invoiced separately. For travel time, half of the agreed hourly rate shall be charged. If Client cancels agreed on-site appointments less than 48 hours prior to the start of the appointment, GP+S reserves the right to invoice Client for the costs incurred for travel and accommodation or cancellation fees.
(4) The remuneration shall be due for payment without deduction 30 calendar days after the date of the invoice after a proper invoice has been sent by email or by post to the address of the Client named in the offer.
(5) GP+S reserves the right to adjust prices at the turn of the year if necessary. GP+S shall inform the Client of this intention in good time so that the Client can exercise its right of termination (Section 12 para. 2) without delay.
(6) Customer may only set off claims against GP+S that are undisputed or have been legally established. Outside of Section 354a of the German Commercial Code (HGB), the Customer may assign claims arising from its agreement to third parties only with the prior written consent of GP+S. The Client shall only be entitled to a right of retention or the defence of non-performance within the respective contractual relationship.
§ Section 12 Contract Term, Termination and Data Management after Termination
(1) The contract shall initially be concluded for one year. It shall commence four weeks after the Client has commissioned the offer. GP+S’s obligation to perform (Section 2) shall commence as soon as Customer has made the necessary arrangements for the connection of its Microsoft Azure Active Directory or Customer has notified GP+S of the users or user data (business email address) to be authorized for the use of CAPAMAP.
(2) The Agreement shall be renewed for a further year in each case if it is not terminated in writing by one party with three months’ notice to the end of the term.
(3) The mutual right to extraordinary termination for good cause shall remain unaffected. Good cause for GP+S shall in particular consist in the fact that the Customer
a) infringes its copyright to the Software or
b) is in default of payment of the remuneration owed pursuant to Section 11 for more than two months.
(4) Regardless of the reason for the termination of the Agreement, GP+S shall delete all data assigned to the Customer on the Server after 30 calendar days. Within this period the Client may request in writing the return of the data in machine-readable format.
§ 13 Warranty for Defects
(1) GP+S warrants that the Software has the agreed quality as soon as it is made available to the Customer (transfer of risk). It shall not be defective in such a way that the value or the suitability for the usual use or the use assumed under the contract is nullified or reduced.
(2) Upon transfer of risk the Customer shall immediately inspect the Software for defects and notify GP+S thereof in writing within a period of ten calendar days. If the Customer fails to notify GP+S in due time, the Software shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise the Software shall also be deemed approved in this respect.
(3) GP+S shall immediately remedy any defects notified in due time within the scope of its technical possibilities. The specific type of defect removal shall be at the discretion of GP+S.
(4) The Customer shall support GP+S in the analysis of defects and the elimination of defects in accordance with Section 10 para. 3.
(5) Any warranty claims shall expire within one year from the transfer of risk.
(6) If GP+S provides services in the search for or elimination of defects without being obligated to do so, GP+S reserves the right to charge the Customer for the resulting expenses. This shall apply in particular if a defect cannot be proven, reproduced or attributed to GP+S.
§ 14 Liability
(1) Both parties shall be liable for damages due to the breach of contractual obligations insofar as they are at fault.
(2) The amount of liability for simple negligence shall be limited to the damage typically foreseeable for the damaging party at the time of the breach of duty, but to a maximum amount of 50% of the annual remuneration per contractual year. Liability for loss of profit is excluded.
(3) The non-contractual liability remains unaffected.
(4) Both parties shall be released from their respective performance obligations insofar as they are unable to fulfill them due to force majeure. Force majeure refers to circumstances beyond the control of the affected party, such as strikes, epidemics, natural disasters, failures of the energy supply or technical infrastructure as well as riots, terrorist attacks or acts of war.
§ 15 Third Party Rights
(1) If third parties assert claims against the Customer due to alleged infringements of intellectual property rights by the Software provided for use, GP+S shall indemnify the Customer against such claims. This is subject to the condition that the Customer informs GP+S immediately about the claim and takes any action against the third party only in consultation with GP+S.
(2) If third parties assert claims that prevent the Customer from exercising the right to use the Software granted to it, the Customer shall inform GP+S immediately.
§ 16 Data Protection
GP+S shall comply with the statutory provisions on data protection when processing the Client’s personal information. This also includes state-of-the-art technical security measures (Art. 32 DSGVO) and the obligation of employees to maintain data secrecy (Art. 28 para. 3 lit. b DSGVO).
§ 17 Data collection and processing
(1) In order to continuously improve the software and to prevent license misuse, GP+S collects the following statistical data during its use by the User:
– Number of maps, objects, data fields & views
– Number of registered & active users
– Calling of individual functions
– Occurrence of technical problems
(2) The aforementioned data is not personal data in the sense of Art. 4 No. 1 DSGVO, as no individual users are identified and they cannot be identified by means of the collected data.
§ 18 Confidentiality
(1) The parties shall keep confidential all confidential information, in particular business or trade secrets, of which they become aware in the course of their business relationship and shall neither disclose nor exploit such information in any other way.
(2) The obligation to maintain confidentiality shall not apply if the information in question must be disclosed by virtue of a court order, an order of a public authority or a law. The party so obligated shall promptly notify the other party of the disclosure and shall disclose the information in a manner that preserves confidentiality to the extent possible.
§ 19 Referencing
Unless Customer expressly objects, GP+S may list Customer as a reference in its sales and marketing documents. The Client’s logo may also be used and a link to the Client’s website may be provided.
§ Section 20 Final Provisions
(1) Unless otherwise provided, declarations between the parties shall be made in writing, whereby e-mail shall suffice.
(2) German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) Place of jurisdiction is Bad Homburg v.d.H.
(4) Should one of the above provisions be or become invalid or should a provision that is necessary in itself not be included, this shall not affect the validity of the remaining provisions. The parties shall endeavor to find a mutually agreeable provision in this case.