Jan 10, 2015 Page 1 of 5 D.31.0146
Contents
1. a quotation beforehand setting out the payment due for performance of this work provided that TomTec is not responsible for such impossibility CUSTOMER S DUTIES TO COOPERATE The customer will permit TomTec to perform software maintenance by way of remote access to the customer s IT system Remote mainte nance enables rapid response times and speedy fault diagnosis with no requirement to attend the customer s site If attendance on site is nevertheless required the customer warrants that it will grant TomTec s service personnel access to its computers and will allocate them the required computer time free of charge The customer is responsible for taking and checking back ups Stored data and programs must be backed up at regular and frequent inter vals It is sensible to do this daily If it is determined that an error reported by a customer does not exist or cannot be attributed to the licensed software false error the cus tomer will bear the costs incurred by TomTec in the course of error analysis and other error handling work in accordance with TomTec s current price list unless the customer was unable to identify the pres ence of such false error despite applying the necessary care CONTACT SERVICE AND RESPONSE TIMES All service and support requests must be submitted and all errors and malfunctions reported to TomTec either by telephone 49 89 32175 740 by email support tomtec de or by fax 49 89 32175 750 The c2. by TomTec and the customer has ensured that the data destroyed can be reconstructed at reasonable expense from data held in ma chine readable format Liability for loss or damage resulting from force majeure affecting the customer is excluded Liability for further claims for damages is ex cluded MISCELLANEOUS The laws of the Federal Republic of Germany apply the German conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods CISG are excluded The place of performance and jurisdiction for the resolution of dis putes is the registered office of TomTec if the customer is a merchant Kaufmann or does not have a place of general jurisdiction in Ger many or is a legal person under public law TomTec is also authorised to bring proceedings in any other jurisdiction provided for in law The customer may set off claims only if such claims are not disputed by TomTec or have been established as valid by a court The customer may withhold performance under the contract only if its counter claim is based on the same contractual relationship Amendments additions and subsidiary agreements to these General Terms and Conditions must be made in writing Any agreement to dispense with this requirement for the written form must also be made in writing Should one or more provisions of these General Terms and Condi tions be found to be invalid in whole or in part the validity of the re mai
3. in particular copyright rights in or to inventions and technical IP rights reside ex clusively with TomTec This also applies to adaptations of the soft ware products created by TomTec The customer s ownership of the relevant data media remains unaffected The customer is not authorised to remove or amend TomTec copy right notices or numbers in the software products The customer must inform TomTec within 14 days of any infringement of intellectual property rights such as patents or copyrights asserted by third parties as a result of use of TomTec software The customer must also provide reasonable assistance to TomTec in defending its rights Section 8 of the general section of these General Terms and Condi tions applies mutatis mutandis in respect of warranty of title and the limitation period for defects in title CONFIDENTIALITY AND DATA PROTECTION The customer is obliged to treat as confidential sensitive information disclosed to it in the course of its dealings with TomTec Such infor mation must not be disclosed to third parties Sensitive information in cludes in particular product specifications technical information doc umentation and information identified as sensitive The following information is not deemed to be sensitive i information which was already accessible to the general public at the time it was disclosed ii information which is made accessible to the general public after it is disclosed unless suc
4. the conditions of use set forth in Appendix to these General Terms and Conditions The text of the licences for the Third Party Software Components will be provided to the customer with the copyright notices disclaimers and other no tices together with the software product The customer is also entitled to use the Third Party Software Compo nents to the extent described in these General Terms and Conditions The customer may acquire further rights of use in the Third Party Software Components from the right holders by entering into licence agreements with those right holders under the terms of the relevant open source licence In this event use of the Third Party Software Components will be governed not by these General Terms and Condi tions but exclusively by the relevant open source licences RESTRICTIONS The customer is not authorised to a sell give away loan let or otherwise transfer to third parties the software product and the rights of use granted therein without the prior written consent of TomTec b reverse engineer decompile or disassemble the software product except to the extent expressly permitted under applicable law and only if TomTec has failed within a reasonable period after being requested in writing to do so to provide the customer with data and or information for the purpose of ensuring interoperability of the software product with other software products c modify expand or otherwise adapt the software
5. 1 2 1 3 1 4 2 2 2 3 2 4 3 2 3 3 3 4 TomTec Imaging Systems GmbH GENERAL TERMS AND CONDITIONS OF TOMTEC IMAGING SYSTEMS GMBH SCOPE The following General Terms and Conditions hereinafter referred to as General Terms and Conditions apply to companies in respect of all goods and services supplied by TomTec Imaging Systems GmbH hereinafter referred to as TomTec Differing contractual arrange ments take priority over these General Terms and Conditions if ex pressly agreed The applicable version of the General Terms and Conditions is that in force at the time the contract is entered into These General Terms and Conditions will also apply to future transac tions entered into by TomTec and the customer even if not expressly agreed beforehand Conflicting terms and conditions of our customers or third parties will apply only if we expressly agree to this in writing If the customer does not agree to this it must notify us in writing immediately In this case we reserve the right to withdraw offers we have made no claims of any kind may be asserted against us as a result We hereby expressly reject any reference to another party s own pre formulated terms and conditions Depending on the subject matter of the contract the Special Terms and Conditions for the Licensing of Software Appendix the Special Terms and Conditions for Software Maintenance Appendix II or the Special Terms and Conditions for Train
6. additional load resulting from the software products is the sole responsibility of the customer Information on the required hardware and software environment is described in the doc umentation and can be requested from TomTec Any disadvantage suffered or additional costs incurred by reason of breach of these duties will be borne by the customer LIABILITY TomTec will be liable only for damage caused intentionally or by gross negligence by its statutory representatives or vicarious agents This limitation does not include liability for damage resulting from the culpable breach of a material contractual obligation Material contrac tual obligations are understood to be obligations the fulfilment of which enables due performance of the contract and on the fulfilment of which the customer can particularly rely However this liability is lim ited to foreseeable and typical loss only TomTec will be liable without limitation for loss of life physical injury or damage to health This also applies to liability under the German Product Liability Act Produkthaftungsgesetz in case of fraudulent concealment by TomTec of a defect if a warranty of quality is provid ed and in other circumstances where liability is prescribed by law TomTec accepts liability for loss destruction of data to the extent that such loss or destruction is caused intentionally through gross negli gence or as a result of the breach of a material contractual obligation
7. and upgrades which are pro vided free of charge unless it cannot reasonably be expected to do so The customer must notify TomTec without delay in writing if this is the case If the customer is not obliged to use the most recent version of the licensed software TomTec s obligations to rectify errors and faults in accordance with section 3 of Appendix Il to these General Terms and Conditions will be suspended As soon as a situation is established in which the customer can rea sonably be expected to use the most recent version of the soft ware the obligations to rectify faults and errors will be reactivated The customer is responsible for providing the operating environ ment needed for the updates and upgrades to run d Access to the TomTec Academy The TomTec Academy offers free web training courses for the customer in operation of the TomTec software The customer will be provided with additional training documents in respect of up dates and upgrades Remote Software Maintenance TomTec will perform the software maintenance activities described herein remotely via data transfer e g via a VPN connection or remote desktop sharing The flat rate payment arrangement does not cover services at the customer s site If remote data transmission is not possible and on site attendance is D 31 0146 02 4 2 4 3 4 4 5 2 5 3 7 2 7 3 9 2 9 3 Date Jan 10 2015 required as a result the customer will receive
8. art of TomTec The customer is obliged to ensure that staff working with the software products supplied are familiarised with the relevant documentation The obligation to provide a warranty for defects in quality or title pre sent at the time of passing of the risk will lapse within 12 months of the passing of the risk If a defect is fraudulently concealed by TomTec TomTec will be liable for an unlimited period The statutory limitation periods apply in re spect of warranty claims In case of more extensive claims in particular in case of claims for compensation by the customer the restrictions set forth in section 10 of the general section of these General Terms and Conditions apply mutatis mutandis TomTec may demand remuneration at its usual rates for work it per forms without being obliged to do so in the course of error diagnosis or correction activities This applies in particular if a defect cannot be verified or is not attributable to TomTec TomTec will decide at its sole discretion whether to comply with any requests by the customer for product improvements If TomTec does perform such work the cus tomer will receive a quotation beforehand setting out the payment due DUTIES TO COOPERATE AND PROVIDE INFORMATION Insofar as TomTec is obliged to provide further services in addition to the provision of software products e g installation and training the customer will cooperate in such activities to the extent necessa
9. ed automatically by the TomTec archiving system the customer is responsible for counting the DICOM studies and informing TomTec of this number on request If it is determined that the number of DICOM studies in accordance with section 5 2 of Appendix to these General Terms and Conditions has been exceeded and the customer has not purchased any addi tional DICOM studies TomTec will unless otherwise agreed invoice the customer for these studies in accordance with the current price list APPENDIX II SPECIAL TERMS AND CONDITIONS FOR SOFTWARE MAINTENANCE SCOPE The following special terms and conditions apply exclusively for the maintenance of software products provided by the TomTec company DEFINITIONS Licensed software means a copy of the software or for modular software products a copy of the software with the appropriate mod ules enabled in accordance with the order to which the customer has acquired rights of use by way of software licensing Hotfix means a temporary workaround for an error in the licensed software Update means a copy of a software program containing an individ ual bug fix or a bundle of bug fixes for the licensed software and minor additional features for the licensed software For modular software products bug fixes and or additional features may concern one or more modules Upgrade means a copy of a software program constituting an up graded version of the licensed software i e a ver
10. eral Terms and Conditions Depending on the type of software maintenance agreement entered into TomTec offers the following additional services a Troubleshooting During the software maintenance period TomTec will endeavour to rectify within a reasonable time errors and faults in the li censed software which materially affect use of the licensed soft ware provided that the customer has complied with the require ments regarding error and fault analysis set forth in section 3 1 c of Appendix II to these General Terms and Conditions This does not apply to enhancements incorporated by the customer over and above the interfaces and functions of the licensed software it self TomTec does not guarantee that it will rectify errors or faults or that it will do so within a particular time frame There is also no obligation to ensure any particular level of availability for the li censed software Rectification of the following errors and faults is not included in the software maintenance activities errors and faults that are at tributable to i improper handling or use contrary to the contract of the licensed software and or ii use of the licensed software in an operating environment other than that agreed and or iii the actions of third parties force majeure or other influences for which TomTec is not responsible However TomTec can rectify such er rors and malfunctions on request and against separate payment TomTec will at its
11. expenses e g hotel costs meals incurred for the purpose of the training will be invoiced separately as a flat fee and are not covered by the training fee A flat fee is payable for each day s training provided where training courses are held over multiple non consecutive dates an additional day s fee is payable for each unit of training The fee and the flat rate travel charge cover all services under section 2 and 5 in Appendix III of these General Terms and Conditions DELAY IN ACCEPTING PERFORMANCE If the customer is late in accepting performance by failing to accept the training offered to it TomTec can demand payment of the fee agreed in respect of the training not given without being required to render performance subsequently CANCELLATION The customer may cancel the training order without charge six weeks prior to the start of the training If the training is cancelled later than this the customer must pay TomTec the following proportion of the net fee plus VAT as follows a less than six weeks before the agreed training date 50 b less than three weeks before the agreed training date 75 Travel costs will be invoiced to the customer in the amount incurred All claims of TomTec will be satisfied by the above payments TomTec must be notified of such cancellation in text form TERMINATION A training order is not subject to ordinary termination other than by cancellation in accordance with section 10 of Appendix Ill
12. h disclosure results from a breach of contract by the customer iii information which had come into the customer s possession in written form in the course of its day to day business prior to disclosure or iv information received by the customer following its disclosure from a third party which had lawful possession thereof Such information does not include information re ceived as a result of breaches of contract or of statutory or fiduciary duties The customer must inform its employees of the confidential nature of the information under section 7 1 of the general section of the General Terms and Conditions and place them under an obligation to treat this information as confidential TomTec will ensure that its agents comply with the provisions of data protection law and will in particular place them under an obligation to observe data confidentiality TomTec does not intend to process or use any personal data on behalf of the customer Personal data will be transferred in exceptional cases only as an incidental consequence of the performance by TomTec of its contractual obligations TomTec will handle personal data in compliance with the provisions of data protection law Page 1 of 5 8 2 8 3 8 4 8 5 8 6 8 7 8 8 8 9 8 10 8 11 9 2 9 3 9 4 TomTec Imaging Systems GmbH WARRANTY TomTec warrants in accordance with sales law that the purchased software and associated user documentation will be of
13. hese General Terms and Conditions in terms of volume the licence is limited to the number of DICOM stud ies purchased for each modality e g ultrasound MRI Other specific conditions for volume based licences are set forth in section 5 of Ap pendix to these General Terms and Conditions Back up copy Save for a reasonable number of back up copies as required to ensure the future usability of the software product the cus tomer is not permitted to make any additional copies of the software product This exception applies essentially to back up copies of the software product taken by automated back up systems for disaster re covery purposes Back up copies on physical storage media e g CD DVD hard drive must be labelled as such and must contain all copy right notices found on the original data media Intended Use The software product was developed for the purpose specified in the section entitled Indications for Use or Intended Use of the software product documentation The customer may use the software product for this purpose only Rights are granted subject to the condition precedent of payment in full of the purchase price Until such time TomTec consents to use of the software in accordance with the provisions above THIRD PARTY SOFTWARE COMPONENTS The software product contains components licensed as open source software referred to here as Third Party Software Components and components which may only be used under
14. ing Services Appendix Ill may also apply in addition to the General Terms and Conditions The Special Terms and Conditions prevail over the General Terms and Conditions GOODS AND SERVICES PROVIDED TomTec offers permanent licences for standard software for medical applications Additional installation and software maintenance ser vices in accordance with Appendix II to these General Terms and Conditions must be commissioned separately for a fee for each soft ware package TomTec offers further services such as software user training in accordance with Appendix IlI to these General Terms and Conditions for a separate fee The customer will acquire the software specified in the order and the attendant user documentation subject to the terms of use described in Appendix to these General Terms and Conditions Unless otherwise agreed in the order the current version of the software will be sup plied The goods and services to be provided do not include the source code of the software The properties of the software products supplied by TomTec are as set forth in the specification in force at the time the software is sup plied and provided to the customer prior to conclusion of the contract see user documentation No other properties will apply unless ex pressly agreed in writing DELIVERY TERMS Software will be delivered as follows a TomTec will supply the software and attendant user documenta tion electronically TomTec
15. ing the software product over a network on the customer s other computers A single floating li cence for the software product may not be used by or shared among multiple computers simultaneously If the customer wishes to use the software product on multiple computers simultaneously it must pur chase the appropriate number of floating licences It is possible for the customer to assign the floating licences to individual computers or us ers Site licence If the customer has purchased a site licence TomTec grants the customer a non exclusive perpetual licence to store or in stall a copy of the software product on a storage medium such as a network server for the sole purpose of installing or operating the soft ware product over a network on the customer s other computers A site licence may be used by an unlimited number of users per network server simultaneous use Additional site licences are required for each additional storage medium Evaluation licence also called demonstration licence If the cus tomer has purchased an evaluation licence TomTec grants the cus tomer a non exclusive non transferable time limited licence to use the software product for evaluation purposes as specified by TomTec The licence may be used for a limited period as specified by TomTec Volume based licence If the customer has purchased a volume based licence TomTec grants the customer a licence in accordance with section 5 of Appendix to t
16. later than one calendar month following receipt by the customer of the pro grams program elements supplied The customer is entitled to take a copy of these programs program elements for archiving purposes PURCHASE OF ADDITIONAL SOFTWARE LICENCES Additional software licences or DICOM studies ordered by the cus tomer under a volume based licence will be provided in accordance with section 2 1 of the general section of these General Terms and Conditions in conjunction with software maintenance only The scope of the existing maintenance contract will be extended to include the additional licences or volumes number of DICOM studies A fee will be charged for this extension PAYMENT TERMS The software maintenance fee will be invoiced annually in advance any additional services commissioned will be invoiced following per formance Further software purchased will be incorporated into the current soft ware maintenance agreement automatically The agreed sum for maintenance of such new software will be added to the annual fee for the current agreement One separate pro rata invoice will be issued to cover the period until the next annual invoice This pro rata invoice will fall due for payment after the software is duly installed The software maintenance fee may be subject to adjustment Howev er adjustments may only applied after a year has passed The cus Page 4 of 5 10 11 11 1 2 2 2 3 2 4 3 2 5 2 5 3 T
17. ning provisions will not be affected thereby Such invalid provi sions will be replaced with retrospective effect by a provision as simi lar as possible in content and intent to the invalid provision APPENDIX SPECIAL TERMS AND CONDITIONS FOR THE LICENSING OF SOFTWARE SCOPE The following special terms and conditions apply exclusively for the supply and licensing of software products by the TomTec company Third party products are supplied and licensed on the basis of the conditions of use of the relevant software producer EXTENT OF USE TomTec grants the customer the following rights of use depending on the type of licence purchased unless otherwise specified in the order the licences are floating licences Standalone or single seat licence If the customer has purchased a standalone licence TomTec grants the customer a non exclusive per petual licence to install and use one copy of the software product on a single workstation or single virtual machine This licence may be used by only one person at a time Page 2 of 5 2 2 2 3 2 4 2 5 2 6 2 7 2 8 3 2 TomTec Imaging Systems GmbH Floating licence also called a concurrent user licence If the customer has purchased a floating licence TomTec grants the cus tomer a non exclusive perpetual licence to store or install a copy of the software product on a storage medium such as a network server for the sole purpose of installing or operat
18. nless otherwise agreed invoices for software will be issued following confirmation of the order invoices for services will be issued after the services have been performed TomTec may issue separate invoices in respect of work provided in instalments If the customer is late with payment TomTec is entitled to apply de fault interest of 8 above the base rate If the customer is repeatedly late with payment TomTec reserves the right to fulfil some orders against advance payment only All other claims will remain unaffected DUTY OF IMMEDIATE INSPECTION AND NOTIFICATION OF DEFECTS The customer is obliged to inspect the software supplied without delay following delivery Obvious defects in particular the absence of data media if requested or documentation and significant easily visible damage to the data medium must be reported to TomTec in writing with the minimum of delay following the inspection Latent defects must be reported to TomTec upon discovery If the duty of inspection and notification of defects is breached software products supplied will be deemed to have been accepted in respect of the defect in ques tion INTELLECTUAL PROPERTY The software products supplied by TomTec are the intellectual proper ty of TomTec and are protected by copyright patents and other intel lectual property rights Unless expressly granted to the customer all rights in the software products and the copies thereof created by the customer
19. omTec Imaging Systems GmbH tomer will be informed of the new fees three months beforehand If fees are adjusted by more than 10 the customer will have a right of extraordinary termination which it may exercise within three months of the announcement of the new fees LIABILITY FOR DEFECTS Material defects reported to TomTec during the software maintenance period will be remedied by TomTec under the troubleshooting ar rangements in accordance with section 3 2 a of Appendix II to these General Terms and Conditions or under the warranty arrangements in accordance with section 8 of the general section of these General Terms and Conditions No further claims for remedial action to correct material defects during the software maintenance period are possible TERM AND TERMINATION Entry into Force Unless otherwise stipulated the software mainte nance agreement will take effect when the software is duly imple mented in the customer s system The minimum term for the agree ment is twelve 12 months If it is not terminated the software maintenance agreement will be automatically renewed for further sub sequent one year periods Termination The software maintenance agreement can be terminated at the earliest at the end of the initial term or at the end of a renewal period Notice of three months must be given Either party may termi nate the agreement for good cause at any time Notice of termination must be submitted to TomTec in text fo
20. osts of doing so will be borne by the customer TomTec provides service from 9am to 5pm Monday to Friday each week except on public holidays at the location of TomTec s offices Any other service times must be agreed separately in writing and are not covered by the maintenance fees TomTec will respond to service and support requests and error and fault reports at the latest by the working day following the request or report in question DELIVERY OF PROGRAMS TomTec will provide hotfixes updates and upgrades to the customer in object code form at TomTec s option i as a download ii by elec tronic data transmission or iii on a suitable data medium Categorisa tion of a program version as a hotfix update or upgrade is at the reasonable discretion of TomTec RIGHTS IN SOFTWARE PRODUCTS TomTec grants the customer the non exclusive right to use the up dates upgrades and other programs program elements and the asso ciated documentation in accordance with the underlying terms of use as set forth in Appendix to these General Terms and Conditions The customer has a right of use in the programs program elements supplied only if it has a valid right of use in the licensed software The right to use programs program elements which are superseded by programs program elements supplied in the course of software maintenance will expire within two weeks of the customer first using the programs program elements in production but no
21. own reasonable discretion determine the meth od of error and fault rectification to be used Minor errors in the li censed software will be rectified in a new update or upgrade to the licensed software If TomTec is not able to rectify an error or fault within a reasona ble period TomTec will provide the customer with a hotfix pro vided that this is financially reasonable for the customer TomTec will still endeavour to rectify the error of fault permanently Response and service times are specified in section 5 of Appen dix II to these General Terms and Conditions b Preventive System Surveillance TomTec offers a preventive system surveillance service which monitors product specific functions in and interfaces to the li censed software and reports malfunctions automatically c Updates and Upgrades TomTec will inform the customer of the release of updates and upgrades to the licensed software and depending on the software maintenance contract in place will offer these to the customer ei ther free of charge or for purchase at a discounted price For updates and upgrades provided free of charge the service covers initial installation The customer must contact TomTec to arrange an appointment for such installation If re installation is required for reasons for which TomTec is not responsible the customer may commission TomTec to perform such re installation against payment of a separate fee The customer must accept updates
22. product except to the extent permitted under applicable law and only if before cor D 31 0146 02 5 2 5 3 5 4 2 2 2 3 2 4 Date Jan 10 2015 recting an error the customer permits TomTec to correct the error itself d divide the software product into individual components for use on more than one computer e copy or reproduce the software product and the attendant docu mentation save as expressly permitted in these General Terms and Conditions VOLUME BASED LICENCES AND RIGHT OF AUDIT The one time licence fee for a volume based licence is calculated according to the number DICOM studies purchased per modality Each DICOM study received stored and or archived by the TomTec archiving system e g TomTec Arena server Image Arena or an ar chiving system directly connected to the TomTec software whether or not it is subsequently deleted is counted If the customer exceeds the number of DICOM studies purchases by more than 10 it must purchase additional DICOM studies from TomTec to the value of the additional DICOM studies performed Each DICOM study is counted by the TomTec archiving system auto matically Once per year the customer will permit TomTec to inspect the TomTec archiving system preferably remotely via data transfer to check whether the number of DICOM studies purchased corresponds to the number of DICOM studies performed per year and per modality If the DICOM studies cannot be count
23. riods during which the training can take place To ensure that the software is used correctly training must take place within six months of installation of the software on the customer s sys tems At least 30 calendar days must be available between the time the training is scheduled and the date of training because the content of the training is individually prepared for the customer TomTec and the customer undertake to comply with the dates sched uled Should one or other of the parties experience or anticipate de lays it must inform the other party immediately of the extent and dura tion of the actual or anticipated delay If TomTec is unable to give the training on the agreed dates due to force majeure illness accident strike or other reasons for which it is not responsible it must inform the customer of this without delay TomTec and the customer will together determine how to proceed Claims for compensation by the customer are excluded in this case unless TomTec fails to inform the customer without delay POSTPONEMENT The customer is entitled to postpone the training once for any reason whatsoever In this case the customer will endeavour to offer an alter native date in consultation withTomTec If the training is postponed less than four weeks prior to the agreed training date the customer must compensate TomTec for any loss in curred as a result of the postponement PAYMENT AND TRAVEL COSTS Travel costs and other
24. rm APPENDIX Ill SPECIAL TERMS AND CONDITIONS FOR TRAINING SERVICES SCOPE The following special terms and conditions apply exclusively for the provision of product training by the TomTec company SERVICE SPECIFICATION TomTec will design and provide training for the customer in use of the TomTec software products Training courses are prepared individually for the customer The objective of the training is inter alia to provide instruction in the functioning of the software and present clinical appli cations As well as user training TomTec also offers training for ad ministrators The maximum number of participants is 5 Further training units must be booked for participants in excess of this number One day s training comprises eight hours A half day s training com prises four hours Training will take place either at the customer s premises or remotely e g via electronic communications services ORGANISATION OF TRAINING The customer is responsible for organising training For training car ried out at the customer s premises this includes providing space for training and making available adequate facilities e g PC overhead projector whiteboard flip charge other hardware and software For training given remotely the customer is responsible for arranging the services required by it to enable the training to take place FREEDOM FROM INSTRUCTION BY THE CUSTOMER TomTec will not be bound by instruction FROM the c
25. ry by providing e g personnel workspaces hardware and software and da ta and telecommunications facilities free of charge For the purposes of error diagnosis and rectification work the cus tomer will give TomTec access to the software products at the cus tomer s option either directly or remotely via data transfer TomTec is authorised to verify whether the software products are being used as stipulated in these General Terms and Conditions and the documenta tion For this purpose TomTec may require the customer to provide information in particular concerning the duration and extent of use of the software products and may inspect the customer s books rec ords hardware and software To this end TomTec must be allowed access to the customer s business premises during standard office hours The customer must take appropriate precautions against improper use of part or all of the software products e g by taking daily backups performing fault diagnosis carrying out regular checks on data pro cessing outputs Unless expressly advised otherwise by the customer beforehand TomTec can assume that all customer data that it may come into con tact with are backed up D 31 0146 02 9 5 9 6 10 10 1 10 2 10 3 10 4 10 5 11 11 1 2 1 Date Jan 10 2015 The establishment of a functioning and adequately dimensioned hardware and software environment for the software products which can also accommodate the
26. sion comprising fea tures which have been substantially enhanced and modified For modular software such enhancements may concern one or more modules SCOPE OF SERVICES PROVIDED BY TOMTEC Beyond its warranty obligations TomTec provides the following soft ware maintenance services provided that the customer uses the most recent version of the licensed software a Hotline Application Support TomTec provides a customer support hotline i to receive error and fault reports ii to provide maintenance and advice services and iii for application support purposes These services offer additional assistance to the customer but are not intended to re place user training and study of the user manual b Maintenance of Interfaces TomTec will endeavour to adapt to changed conditions interfaces with external systems which were established when the software was commissioned measured value transmission data formats TomTec does not offer any guarantee regarding the adaptation of interfaces c Error and Fault Analysis Page 3 of 5 3 2 3 3 TomTec Imaging Systems GmbH TomTec will endeavour to analyse errors and faults in the li censed software provided that the customer logs any errors and faults arising including the circumstances in which they occurred clearly and adequately and makes these documents available to TomTec for the purpose of error and fault analysis as set forth in section 5 of Appendix II to these Gen
27. the agreed quality Warranties as to characteristics and statements of guarantee made by TomTec must be expressly agreed in writing In the event of defective performance by TomTec TomTec will be required to take remedial action such remedial action may consist in the supply of non defective software or in the correction of defects in the software supplied If remedial action is unsuccessful or TomTec declines to take remedial action due to excessive cost or TomTec cannot reasonably be ex pected to take remedial action the customer will be entitled at its op tion to rescind the contract or to demand a reduction in price Until such time as remedial action proves unsuccessful the customer is not entitled to remedy defects itself and require TomTec to com pensate it for necessary costs A warranty by TomTec is excluded in the following cases a malfunctions caused by force majeure or other external influence b malfunctions resulting from improper use of the product in partic ular failure to observe warnings given in the documentation fail ure to use the product as intended and failure to comply with the technical specifications e g operating environment c malfunctions resulting from unauthorised operations e g altera tions additions or deletions carried out by the customer d malfunctions resulting from repairs carried out by the customer or third parties e malfunctions not attributable to any fault on the p
28. to these General Terms and Conditions Either party may terminate the training order without notice for good cause Page 5 of 5
29. ustomer in re spect of the performance of its activities and organisation of its work ing hours WORKING PAPERS AND RIGHTS OF USE Preparation of training documents is the responsibility of TomTec and part of the training service After completion of training TomTec will make training documents available to the customer in electronic format The customer is author ised to duplicate the training documents at its own expense TomTec grants the customer a non exclusive but perpetual and worldwide right to use in any form all copyrightable works prepared by TomTec in connection with the training presentations videos text training documents The customer may not modify these works TRAINING DATES TomTec provides training during its hours of business These are 9am to 5pm Monday to Friday each week except on public holidays at the location of TomTec s offices Training may be provided outside D 31 0146 02 6 2 6 3 6 4 6 5 7 2 8 2 10 10 1 10 2 10 3 10 4 11 11 1 Date Jan 10 2015 TomTec s hours of business by express agreement only and may be result in additional costs which must be discussed with the customer beforehand Dates for training must be agreed between TomTec and the customer immediately after the training is commissioned TomTec will offer the customer various possible training dates If none of the dates offered is suitable for the customer the customer must offer TomTec various pe
30. will inform the customer when the software is available and how it can be accessed The customer may use the software only in accordance with the terms of use described in Appendix to these General Terms and Conditions b If desired by the customer and expressly ordered from TomTec TomTec will provide the customer with a copy of the software on machine readable data carrier and or a printed version of the software documentation Postage and packaging costs will be charged to the customer Dates specified by TomTec for delivery of goods and performance of services will not be binding unless this is expressly agreed TomTec is entitled to make deliveries in instalments to an extent rea sonable for the customer In addition to the electronic version of the software documentation supplied or the hard copy version supplied in accordance with section 3 1 b of the general section of these General Terms and Conditions if desired in accordance with Commission Regulation EU No 207 2012 of 9 March 2012 the software documentation will also be made available to the customer to download from the website www tomtec de D 31 0146 02 4 2 4 3 4 4 4 5 6 2 6 3 6 4 6 5 7 2 7 3 7 4 Date Jan 10 2015 PAYMENT TERMS All prices are exclusive of statutory VAT The prices are specified in the quotation provided by TomTec The invoice amounts will fall due for payment without deduction on receipt of the invoice U
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