customweb Ltd. sells its software in combination with a maintenance agreement.
Parallel to the Software License Agreement the customer also receives this Software Maintenance Agreement.
customweb Ltd. and the customer (together the «parties») therefore agree to the following:
„customweb" stands for customweb Ltd. headquartered in Winterthur (Switzerland), subsequently called service provider.
An update is a delivery of an improved program version. The following cases shall be regarded as updates:
- Debugging / Modifications of the program
- Adjustments to amended legal regulations
- Adjustments to the system of the payment service provider or the shop software
- Modifications due to upgrades of the shop system (Major Release)
An upgrade is an improved program version of the service provider adding further functionalities. The provider indicates these by increasing the first digits of the version number.
Mon - Fri 09:00 – 12:00 and 14:00 – 17:00 CET. Excluded from the business hours are public holidays at the place of business of the service provider.
I. Object of Agreement
A. Maintenance Services
The Software Maintenance Agreement contains the following services by the service provider:
- During the period of contract the client gains access to the newest version of the licensed program. This includes access to updates and upgrades. The program's latest versions are made available to the customer in his or her customer account of the online shop. Information about the release of a new version is provided via the RSS-feed.
- The customer, furthermore, may contact our helpdesk for support by phone (number published on our website) during our working hours.
- The service provider provides the customer with an installation manual of the latest program version.
The debugging, installation and integration into the system of the customer is not included and will therefore have to be paid for separately.
The elimination of defects and disruptions arising due to improper usage of the software, changes in the operational environment or inappropriate system preconditions are not included in the maintenance services. Not included are, furthermore, defects and disruptions caused by environmental conditions at the place of installation, disturbances in the electricity supply or intrusions by third parties. All services included in this Software Maintenance Agreement require that the customer has installed the latest version of the program.
B. Rights to Work Products
The ownership and the the intellectual property rights to all work products created by the service provider in context of the maintenance service are accorded entirely and exclusively to the service provider. Concerning the usage of the work products, the Software License Agreement is to be applied.
C. Modalities of the Usage of Updated Program Versions
The granting of updated versions is subject to the conditions of the Software License Agreement of the service provider and concerns the latest version as accepted by the customer at the time of purchase. The usage of the updated version of the program is only permitted within the rules of the Software License Agreement.
II. Availability and Reaction Time
The service provider does not guarantee a fixed reaction time. However, the service provider strives to answer customers' questions and problems within shortest time and solve these immediately.
III. Customer's Cooperation Duties
The customer will deliver all necessary information and data for the fulfillment of the maintenance services and enable the access to his or her systems and technical environments. .
The customer is required to install the latest version of the program if he or she wishes to make use of the support services of the service provider. For all dealings with the supported products, the customer will appoint a qualified and trained employee as contact partner. Above all, the customer has to make sure that the contact partner is capable of carrying instructions and implementing solutions in a professional manner.
The customer must acquire and maintain the test environment necessary for the usage of the supported products at his own cost.
The customer must provide an adequate and functioning infrastructure for data transmission (telephone, fax, e-mail, internet connection) in order allow the service provider to implement the services. The customer must, furthermore, give the service provider all details of this infrastructure.
In case of error-reports the user must describe the symptoms in a detailed manner and state the current program version and system environment in an online-form provided by the service provider.
The customer is responsible for the securing of his or her individual data on a regular basis. The service provider points out that a data backup is a necessary precondition for any intervention with the system.
The compensation for the contract services occurs within the initial purchase of the software. For the following years the customer will receive a renewal-offer after the expiration of contract.
The service provider will deliver the services through adequately qualified personnel and with due care and diligence. Should the service be deemed defective, the customer can set an appropriate period for successful repair. Should this repair fail, the customer is allowed to appoint a third party with the inadequately implemented services and can charge the service provider the subsequent costs incurred; up to the maximum sum of the agreed upon compensation for defective maintenance services. If it is not possible to appoint a third party, the customer may withdraw from the contract and claim compensation on grounds of defective service, as far as the damage has resulted from intentional or grossly negligent conduct. The customer has no other claims on the basis of defective services. A refund of already paid out compensations is excluded in the case of withdrawal.
Each party is liable towards the other party for direct damage that has been caused by culpable neglect of duty; the maximal claim being the original market price. Indirect or consequential damages are, thereby, excluded. Limitations on and exclusion of liability shall apply to all contractual as well as extra-contractual, respectively, quasi-contractual entitlements. The liability of a party for damage resulting from intentional or grossly negligent conduct remains; as well as claims relating to product liability.
The parties commit themselves to non-disclosure of all information that has been shared, i.e. will not make information available to unauthorised people and will protect from unauthorised access. In the light of these rules, unauthorised people include employees, agents or representatives of the parties that are not part of the contract.
VIII. Period and Termination of Contract
This contract takes effect with the conclusion of contract and lasts for one, respectively two years, depending on the ordered package in the shop. The customer will be informed about the expiration of the contract in due time and will be invited to renew the contract. On the basis of a renewal, the Software Maintenance Contract is renewed for one year. The support-contract will not be renewed automatically.
B. Termination for Significant Reason
In case of significant reason, each party has the right to terminate the contract at any time and without notice. Significant reason is at hand, above all, when one party commits a fundamental breach of contract and does not remedy the violation within 10 days despite written warning.
IX. Final Clauses
Unless expressly agreed otherwise, the General Conditions of Agreement shall be applied in addition. If a part of the contract at hand turns out to be invalid or not enforceable, the validity and enforceability of the remaining contract will not be touched by this.
The rights and obligations from this contract may be neither entirely nor partially assigned nor in any way transferred to a third party without the written consent of the other party.
B. Applicable Law
This contract is subject to Swiss law, with exception of the UN-treaty concerning the international selling of goods (CISG).
C. Place of Jurisdiction
Winterthur is the exclusive place of jurisdiction for all conflicts resulting from or in connection with this contract.