Maintenance and Support Contract


by and between
   
GRAU DATA GmbH,
Marie-Curie-Straße 19,
D-73529 Schwäbisch Gmünd

hereinafter referred to as GRAU

and

the end user using the software “OpenArchive”

hereinafter referred to as the Customer

1.    Scope of the contract


1.1    The following provisions apply to the “OpenArchive” software product (hereinafter referred to as the Product), which GRAU has delivered to the Customer or which the Customer has downloaded from the www.OpenArchive.net homepage.

1.2    GRAU is obliged to provide support and maintenance services, provided that the Products are installed at the installation location which the Customer has specified no later than upon conclusion of this Contract. In the event of a system removal, a simple notification, e.g. via e-mail, is sufficient.

1.3    Maintenance does not apply to the Customer’s own hardware and/or software, nor does it apply to third parties’ hardware and/or software, even if it has been installed along with the Product.

2.    Subject matter of this contract


2.1    GRAU is responsible for the rectification of technical failures that arise during normal system operation. The Customer is obliged to operate the system in accordance with documented and/or trained procedures and in a version which is currently provided by GRAU for downloading on the OpenArchive website.

2.2    The Customer receives from GRAU a code number which identifies him as GRAU’S client. The support personnel of GRAU are obliged to check the code in advance before commencing any sort of maintenance.

2.3    Maintenance covers updates, upgrades and new releases of the Product. Support is provided by GRAU via email or telephone hotline according to GRAU’s best judgment.

2.4    All services provided by GRAU on the basis of its obligations resulting from the following items are not included in the remuneration for the services referred to in paragraphs 2.1 to 2.4 and must be paid for separately. In particular, these include:
  • Work intended to rectify failures in devices, in the event that such failures are the result of incorrect operation on the part of the Customer or a third party or are the result of external circumstances such as fluctuations in power supply and air conditioning or other conditions of installation or operation that are contrary to the specification;
  • Maintenance services provided outside the agreed service period at the request of the Customer;
  • Modifications to the configuration originally put into operation, requested by the Customer.

Remuneration for these services will be charged according to the amount of time expended (see paragraph 3.2) and according to the cost of materials incurred by GRAU.

2.5    Maintenance services can only be provided if the Costumer runs the Product under a regularly working Linux System as defined on the GRAU OpenArchive Manual or Internet website.

2.6    The Customer is obliged to specify in “Terabytes” the exact capacities managed by the product. Maintenance prices are defined according to the managed capacities as outlined in the maintenance pricelist (see website )

3.      Maintenance availability


3.1    GRAU shall provide the following services according to this Contract:

3.1.1  Maintenance Contract, “OPEN SOURCE”
  • Services are provided from Monday to Friday from 8:00 a.m. to 6:00 p.m. CET except for bank holidays at the location of GRAU in Schwäbisch Gmünd (For bank holidays in Baden-Württemberg, please refer to www.feiertage.net/frei-tage.php)
  • GRAU is obliged to respond no later than the next business day (response time)
  • GRAU will perform its maintenance as Remote Support (including Remote Alerting)
3.2    Surcharges for the provision of services outside the periods of maintenance. Availability is to be agreed upon and paid separately. Outside the agreed Maintenance Contract – Monday to Friday: € 180.00 per hour. Saturdays, Sundays and holidays: € 250.00 per hour.

4.    The Customer’s assistance

 
4.1. The Customer will activate a remote access to the system, upon consultation with GRAU, to implement failure-rectification measures. (Remote access using standard components).

4.2.  As long as GRAU is obliged to render maintenance services to the Customer, all maintenance and other service work concerning the Products shall only be performed by GRAU or with GRAU’s consent. 

4.3.  The customer shall specify a contact person to coordinate maintenance activities with GRAU.

5.     Duration of the maintenance contract


5.1.  The Maintenance Contract begins with receipt of payment. The Maintenance Contract automatically ends at the end of the 12th month after that date.

5.2.  One month before the Maintenance Contract expires, the Customer shall receive an invoice to extend the contract for the next 12-month period. Only if the Customer pays this invoice, will the Maintenance Contract be extended for the ensuing 12 months.

6.    Prices and payment terms


6.1  Remuneration for the provision of maintenance services shall accord in accord with GRAU’s pricelist, which is published on the www.OpenArchive.net/pricing website. Remuneration shall be based on the date of completion of the Maintenance Contract.

6.2   Maintenance fees are payable in advance.

6.3   Maintenance fees do not include value added tax (if applicable )

7.    Warranty and liability


7.1    Nothing in this Agreement shall limit or exclude any party’s liability for fraud or for death or personal injury resulting from negligence, or to the extent otherwise not permitted by law.

7.2    For all events and circumstances, GRAU’S liability shall be limited only to the amount of payments received from the Customer under this Agreement in that year and the previous year.

7.3    In no event will GRAU be liable to Customers or their affiliates for:
any claim based upon a third-party claim; any incidental, consequential, special, indirect, and exemplary or punitive damages or for any damages arising out of or in connection with this agreement or order forms, falling within the following categories:
Loss of data, loss of profits, loss of savings, loss or interruption of service, loss of business or anticipatory profits, loss of use or downtime, loss of or corruption to data or other information or loss or damage to software.

7.4    In the event of a faulty provision of services by GRAU, the Customer is obliged to notify and reprehend such a failure without delay. GRAU is obliged to rectify the failure within a reasonable period of time. If the repair or replacement should be unsuccessful, the Customer may demand an annulment or reduction.

7.5    GRAU is liable for damages which have been caused intentionally or due to gross negligence and for which GRAU is liable according to the product liability law. In the event of loss or damage to data carriers, the replacement obligation does not cover expenditures for the recovery of lost data.

8.    General provisions


8.1    This Contract is governed by German law. Schwaebisch Gmuend is the place of exclusive jurisdiction.

8.2    Any general terms and conditions of parties to this Contract do not form a part hereof. Any amendments or extensions hereof must be made in writing. This also applies to waiving the requirement of written form.

8.3    Should individual provisions hereof become invalid or should there be any loophole in the Contract, the remaining provisions remain in full force and effect. The invalid provision shall be replaced with another one that comes as close as possible to the meaning and purpose of the invalid provision. In the case of a loophole in this Contract, such provisions remain in force which the parties would have agreed upon had they taken that loophole into consideration in the first place.

8.4    By clicking the “accept button” in the order applet on www.OpenArchive.net/order (i.e. the GRAU OpenArchive Internet website), the Customer agrees to accept the content of the Maintenance Contract and the pricelist.          

Version 1.1, February 2017