Terms of Service
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”). For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”). For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”). For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”). For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”). For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”). For all of the above-described types of transfer, Avalink also offers to store the data generated by the use of the software (“application data”) on Avalink servers and to provide the customer with appropriate storage space for the agreed contract term and to enable the customer to access the application data (“hosting”).
2.2.2
2.2.1 The type and scope of the contractual services requested by the customer, especially software, type of provision and information on other services (software maintenance/support/hosting) can be found in Avalink's offer. The contract is concluded depending on the type of offer from Avalink: 2.2.1.1 All offers from Avalink are subject to change and non-binding, unless they are expressly marked as binding. This also applies if Avalink has provided the customer with catalogs, product descriptions or technical documentation in advance of the order. The order in the form of sending the customer's shopping cart to Avalink represents a binding application to conclude a corresponding contract. Furthermore, regardless of the shopping cart function and the ordering options in the online shop, the customer can approach Avalink (e.g. by telephone, email, online forms or at presentation stands) and request an individual offer for contractual services in order to then place a binding order based on the offer. After placing an order with Avalink, Avalink sends the customer an “order confirmation”, whereby the contract for the contractual services is concluded. 2.2.1.2 If Avalink makes a binding offer to the customer, this is expressly marked as a binding offer and contains information on how long the offer remains binding (“period of validity”). If the customer accepts the offer within the period of validity (“order confirmation”), the contract is concluded. If the binding offer is accepted after the expiry of the validity period, the acceptance is considered a new order from the customer in accordance with 2.2.1 and the contract for the contractual services is only concluded after the order has been confirmed by Avalink.
2.2.2 Depending on the type of contract concluded, the service content is determined accordingly from the customer's offer and the order confirmation or the binding offer from Avalink and the customer's order confirmation (each “confirmed offer”).
2.2.3 Deviating from the basic written form requirement, Avalink is entitled to issue the order confirmation in text form if the customer places an order in text form based on a non-binding offer (e.g. online shop, email). Furthermore, concluding a contract in text form is only sufficient if this has been expressly stated by Avalink in the binding offer and the customer expressly states in his order confirmation that the order confirmation represents an acceptance of the specifically named binding offer from Avalink.
Service content, availability/provision of the contractual service
2.3.1 The contractual nature of the contractual service results exclusively from the respective confirmed offer. Technical data, specifications and performance information in public statements, especially in advertising materials, do not constitute information about the quality.
2.3.2 Avalink is entitled to fulfill the contractual service with changed and/or adapted services, deviating from the confirmed offer, if and to the extent that this does not significantly impair the fulfillment of the purpose of the contract concluded with the customer and the changes are necessary in order to be able to guarantee the functionality or competitiveness of the contractual service. The user will be notified of any corresponding changes by Avalink.
2.3.3 The planning and execution of the installation/implementation of the software by Avalink will only take place in agreement with the customer if this is expressly agreed as part of a separate order.
2.3.4 Deadlines and dates announced by Avalink for the availability and provision of contractual services are always only approximate, unless a fixed deadline or date has been expressly promised or agreed in writing (in this case “performance date”). Unless otherwise agreed or stated by Avalink in the confirmed offer g, the time until the contractual services are provided is usually up to approx. 14 days. The customer is obliged to enable the contractual services to be made available from the conclusion of the contract.
2.3.5 In case of doubt, service dates are extended by the period in which the customer is in default of payment under the contract in the event of an advance payment owed or does not provide the necessary cooperation, and by the period in which Avalink is due to circumstances for which Avalink is not responsible and which were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, lack of workers, energy or raw materials, difficulties in the Obtaining necessary official approvals, official measures or the lack of, incorrect or timely cooperation of suppliers and service providers) is prevented from fulfilling the contract plus a reasonable start-up period. If such events make it significantly more difficult or impossible for Avalink to perform the contract and the hindrance is not only temporary, Avalink is entitled to withdraw from the contract. If the customer cannot reasonably be expected to use the contractual service as a result of the delay, he can withdraw from the contract by immediately notifying Avalink in writing.
2.3.6 Avalink is entitled to partial invoicing and partial services with regard to the individual contractual services, provided that Avalink does not have to assume that the customer is not interested in the partial service.
2.3.7 Service deadlines are deemed to have been met if the contractual service has been offered to the customer electronically or, if agreed, provided otherwise, e.g. on a data medium, by the end of the service deadline. If the service is not provided within the service deadline, Avalink will only be in default if the customer has unsuccessfully sent a written reminder to Avalink, setting a reasonable grace period.
2.3.8 The customer's rights according to Section 2.6 of these General Terms and Conditions and the legal rights of Avalink, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the service and/or supplementary performance), remain unaffected.
Place of performance, transfer of risk, notification obligations
2.4.1 The place of performance depends on the type of contractual service used. Unless otherwise stated in the special provisions for the respective contractual service, the risk passes to the customer when the contractual service is made available for use. If the scheduled service date is delayed at the customer's request, the risk passes to the customer upon expiry of the originally scheduled service date.
2.4.2 If a contractual service is or becomes defective, the customer must report these defects to Avalink in text form immediately after they occur, stating the information known to him and useful for detecting them. He must, within reason, take the measures that make it easier to identify/reproduce the defects and their causes. In particular, the customer must provide Avalink with screenshots of the error messages, the transmission of sample files and a description of the error message process. The customer is also obliged to provide further information to resolve the error and to answer any queries from Avalink.
Prices and payment
Unless otherwise agreed in individual cases, the prices agreed in the confirmed offer apply. All stated and agreed prices are free to the customer plus VAT at the respective statutory rate. Customs duties, taxes, fees, import and export duties are to be borne by the customer. Unless otherwise agreed in individual cases, the prices agreed in the confirmed offer apply. All stated and agreed prices are free to the customer plus VAT at the respective statutory rate. Customs duties, taxes, fees, import and export duties are to be borne by the customer.
2.5.2 Unless the contract states otherwise, payments are due without any deductions within seven days of the invoice being issued (“payment deadline”). The invoice is issued when the contractual service is made available. Discounts may only be used if they are expressly agreed to by Avalink in the invoice. The deduction of an agreed discount requires that the customer is not in default with other payments. Page 2
2.5.3 2.5.4
2.5.4 Furthermore, Avalink is entitled to demand payment from the customer before provision/making available (advance payment), provided that a corresponding reservation is communicated by Avalink in text form at the latest with the confirmed offer.
2.5.5 When the payment deadline expires, the customer is in default. The agreed remuneration is subject to interest during the delay at the applicable statutory default interest rate. Avalink reserves the right to assert further damages due to delay. The claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
2.5.6 2. 6 LIABILITY
2. 6 LIABILITY
2.6.1 Avalink's liability for damages, regardless of the legal basis, in particular due to impossibility, delay, defective or incorrect performance, breach of contract, breach of obligations during contract negotiations and tort, is limited to the extent that fault is involved, in accordance with this Section 2.6.
2.6.2 2.6.3
2.6.3 Furthermore, Avalink is not liable for simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless it involves a breach of an essential contractual obligation. Essential to the contract are the obligation to make available, the freedom from legal and material defects that more than insignificantly impair the functionality or usability of the contractual service, as well as advice, protection and care obligations that are intended to enable the customer to use the contractual service in accordance with the contract or to protect the life and limb of the customer's staff or to protect the customer's property from significant damage. In the event of a breach of essential contractual obligations that gives rise to liability, the amount of the obligation to pay compensation is limited to the damages that were foreseeable and typical for the contract at the time the contract was concluded. Indirect damages and consequential damages that are the result of defects in the contractual service are only eligible for compensation if such damage is typically to be expected when the contractual service is used as intended. If Avalink provides technical information or provides advice and this information or advice is not part of the contractually agreed scope of services owed by Avalink, this is done free of charge and to the exclusion of contractual liability
2.6.4 In particular, Avalink is not liable for errors in the contractual services: 2.6.4.1 that were caused by application errors by the customer and could have been avoided by consulting the documentation and/or installation instructions, 2.6.4.2 loss of data by the customer that could have been avoided through appropriate back-up measures by the customer, 2.6.4.3 due to virus infection or other effects for which Avalink or its vicarious agents are not responsible (e.g. fire, accidents, power outages, impacts and interventions by third parties), 2.6.4.4 which are based on the fact that the customer has changed contractual services in breach of contract.
Subcontractors
Avalink is authorized to use subcontractors. The customer can only object to the use of subcontractors for important reasons. Upon request from the customer, Avalink will disclose the subcontractors to the customer.
Data protection
2.8.1 Insofar as the customer's personal data is processed on his behalf when providing the contractual services, v. a. As part of hosting, this occurs exclusively on the customer's instructions.
2.8.2 For this purpose, the customer and Avalink must conclude an order processing agreement in accordance with Art. 28 GDPR before personal data is processed when using the application. In the event of contradictions between the order processing agreement and these terms of use, the provisions of the order processing agreement take precedence over the terms of use.
2.8.3 The customer is not entitled to use the contractual services to process personal data if this involves processing the data on his behalf by Avalink (e.g. hosting) before the contract processing agreement has been concluded.
2.8.4 To the extent that Avalink processes personal data on behalf of the customer, the customer assures that there is a legal basis for the processing of the personal data (e.g. the consent of those affected).
Secrecy
2.9.1 If the contractual partners exchange confidential information of a commercial or technical nature or such information becomes known to a contractual partner from the other contractual partner's area, which is usually regarded as a business/company secret, for example information about customers and service providers of a contractual partner, they undertake to treat this information as strictly confidential and not to make it accessible to third parties or to use it in any way outside of the implementation of the respective contract without the consent of the other contractual partner. This obligation of confidentiality applies beyond the end of the respective contract.
2.9.2 Information is exempt from the aforementioned obligation of confidentiality to the extent that it can be proven that a) it is generally known or becomes generally known without the intervention of a contractual partner; b) becomes known to a contractual partner from another party who is not obliged to maintain secrecy towards the other contractual partner; c) must be disclosed by a contractual partner to government authorities and courts due to mandatory legal provisions.
2.9.3 The customer may only make information subject to the obligation of confidentiality accessible to persons working in its sphere (employees or freelance “employees”) only to the extent that the knowledge of the employees is necessary for the use of the contractual service under the respective contract and only if the employees have previously been subjected to a corresponding obligation of confidentiality, which, if necessary, is enforced by the customer against the employee. Avalink may make the information subject to the obligation of confidentiality accessible to third parties if this is necessary in the course of providing the services owed and the third party was subject to a corresponding obligation of confidentiality before making the data available.
2.9.4 The contractual partners are obliged to return all information transmitted or generated by the other contractual partner that is subject to the obligation of confidentiality to the other contractual partner at any time upon appropriate request or to destroy it at the other contractual partner's discretion, without retaining copies or records; Irrespective of this, confidential information may be archived to the extent that this is absolutely necessary due to legal retention and proof requirements. Fulfillment of this must be confirmed to the other contracting party in text form upon request.
Miscellaneous
2.10.1 Avalink is entitled to name the customer as a reference customer in its reference list as well as on the website and other advertising and information materials.
2.10.2 The customer can only assign existing claims against Avalink with the written consent of Avalink.
2.10.3 The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Itzehoe, Germany. However, Avalink is also entitled in all cases to bring an action at the place of performance of the service (if different) or a priority individual agreement or at the customer's general place of jurisdiction. German law applies exclusively to all legal relationships, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2.10.4 If one or more provisions of the General Terms and Conditions are or should become ineffective or if this contractual text contains a regulatory gap, the legally effective provisions that the contractual partners would have agreed on in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the regulatory gap are deemed to be agreed to fill these gaps.
Special provisions for software rental
Scope and subject matter of the contract
3.1.1 The following contractual conditions apply to the software rental.
3.1.2 The subject of the software rental is the temporary provision of the software in the object code and the associated user documentation in their current version in accordance with the specifications set out in the confirmed offer and these conditions (“rental software”) as well as the granting of the usage rights required to use the rental software in accordance with the contract. The software installation, any user support such as customer-specific adjustments (customizing, parameterization, configuration), training, work services, delivery of hardware and accessories and other services that go beyond the fulfillment of the contract for the software rental are not the subject of the software rental, unless otherwise regulated in these general terms and conditions. Without a separate consulting agreement, Avalink does not owe any advice.
Condition of the rental software
3.2.1 Before concluding the contract, the customer checked that the range of functions of the rental software met his expectations and needs. He is familiar with the essential functional features and conditions of the software. There is no guarantee that the software will meet the customer's specific requirements. The customer bears sole responsibility for the selection, installation and use of the rental software as well as for the results achieved and economic success.
3.2.2 Avalink regularly updates the rental software as part of service packs and updates. The customer accepts that this may result in functional changes to the rental software that he does not perceive as an improvement. Provided this does not affect the essential functional features and conditions of the software, this does not give rise to any claims by the customer.
Principles of service provision
3.3.1 If the software rental is agreed as SaaS, Avalink will keep the rental software available for use by the customer on one or more Avalink servers via the Internet as a web application for the agreed period of the contract from the agreed point in time. The place of performance is the router exit of the data center used by Avalink to the Internet (“transfer point”). The customer's access is through provided access data and/or the provision of access software). There is no physical delivery of the rental software with SaaS (not even as a download). The customer must independently ensure the availability of the telecommunications connection between the customer and the transfer point.
3.3.2 Unless SaaS has been agreed for the software rental, the customer receives the rental software by making it available via online download, unless the handover of a data medium has been agreed. The customer can either install the rental software independently at their own expense or by commissioning Avalink separately for a separate fee.
Avalink is responsible for maintaining the contractually agreed functionality of the rental software during the term of the contract for the software rental. Avalink may make updates, upgrades, patches and new versions of the rental software available for download or, in the case of SaaS, grant the customer access to the program updates. Avalink may be required to install the updates, upgrades, patches and new versions of the Rental Software into the Customer's system. This is generally done through remote access. It is the customer's responsibility to provide Avalink with remote access for this purpose. 3. 4 E n t valid
3. 4 E n t valid
3.4.2 For the software rental, the customer pays Avalink the agreed remuneration (“license fee”) in accordance with the confirmed offer.
3.4.2 Avalink is entitled to increase the license fee at the beginning of the further contract term in accordance with 3.8.3 with three months' notice at the end of the current contract term.
3.4.3 In all cases in which the customer defaults on payments and a grace period has been set to the customer without success, Avalink is entitled to prohibit further use of the rental software without the need to set a further deadline.
3.4.4 Otherwise, the general remuneration rules and payment conditions in accordance with Section 2.5 apply.
Rights of use
3.5.1 Unless otherwise agreed in text form, upon full payment of the license fee for the contract term covered by the license fee paid, the customer is granted the simple, non-sublicensable, non-transferable right, limited to the contract term, to use the rental software for the agreed number of individual workstations in their own business operations.
3.5.2 The permitted use of the rental software, with the exception of SaaS, includes the installation of the rental software on a single workstation (a computer) of the customer, if it is a multi-user license, on the number of individual workstations determined by the license, the loading, display and use of the rental software, the creation of a backup copy and the intended use in accordance with the user documentation. Avalink reserves the right to bind the rental software to a computer ID/serial number by using a license key.
3.5.3 The permitted use of the rental software as SaaS includes, if it is a single-user license, access to the SaaS software at the customer's individual workstation, if it is a multi-user license, simultaneous access to the rental software by the number of users specified in the license as well as the loading, display and use of the rental software and the intended use of the user documentation.
3.5.4 In addition, the customer is not entitled to use the rental software, in particular to reproduce, distribute, publish, edit, decompile it or carry out other types of re-engineering of the various manufacturer levels of the rental software (“reverse engineering”), unless he is entitled to do so under the conditions of § 69e UrhG.
3.5.5 The customer is not entitled to pass on the copy of the rental software provided to him or any backup copy created to third parties. In particular, the customer is not entitled to lend, rent or sell the rental software or to grant third parties rights to use it in any other way without Avalink's written consent.
3.5.6 At Avalink's request, the customer must enable Avalink to check that the rental software is being used in accordance with the contract. Upon request, the customer will provide Avalink with information in text form within a reasonable period of time as to whether the rental software is being used by the customer in accordance with the contract, in particular whether the customer complies with the contractually agreed scope of use (e.g. with regard to the number of licenses made available) as well as the terms of use according to this section and the confirmed offer.
3.5.7 If the customer violates one of the above provisions and Avalink then exercises the extraordinary right of termination, all granted usage rights to the rental software become immediately ineffective and automatically revert to Avalink and the customer must delete the rental software accordingly or his access will be blocked.
3.5.8 If the customer exceeds the usage rights granted above, in particular by installing/using the rental or SaaS software on more workstations/computers than the number granted in the license, the customer must immediately inform Avalink of the overuse and pay a flat-rate compensation for the overuse. The flat-rate compensation is three times the license fee payable for software rental for a workstation according to the current price list for each workstation used by the customer in excess of the agreed number of workstations. The customer is entitled to prove that Avalink suffered less damage. If the flexible license model is agreed in the confirmed offer, the customer has the option of using additional workstations for a period that is shorter than the contract term. In this case, contrary to the above, if the number of workstations agreed in the confirmed offer is exceeded, the customer must pay the agreed remuneration for the flexible license excess for each workstation used in excess of the agreed number of workstations. Further claims by Avalink due to breach of contract by the customer remain unaffected.
3.6.1
If the software rental is agreed as SaaS, Avalink enables the customer to use the functions of the rental software in accordance with the contract within the times specified below (“availability”). Availability is the customer's ability to use the full functionality of the rental software at the handover point. If the software rental is agreed as SaaS, Avalink enables the customer to use the functions of the rental software in accordance with the contract within the times specified below (“availability”). Availability is the customer's ability to use the full functionality of the rental software at the handover point.
3.6.2 The guaranteed value of availability is the percentage of the availability of the rental software at the handover point as follows: In the core usage time (Monday to Friday, 5:00 a.m. to 9:00 p.m.) an availability of 99% and in the peripheral usage time (Monday to Friday, 9:01 p.m. to 4:59 a.m., Saturdays, Sundays and public holidays in Schleswig-Holstein) an availability of 98.5%.
3.6.3 The reference period for availability is the respective calendar month. Availability represents the percentage of hours in which the rental software was available during core or peripheral usage time compared to the respective number of hours of core or peripheral usage time in the respective month.
3.6.4 Available use (availability given) also includes periods during disruptions or other events for which Avalink or one of Avalink's vicarious agents are not responsible.
3.6.5 Available usage (availability given) also includes periods of planned maintenance work by Avalink, provided these periods do not exceed three hours per month. Avalink will, as far as possible, notify the customer of the period of planned maintenance work in a timely manner and endeavor to carry out planned maintenance work during the off-peak usage period. Downtimes due to planned maintenance work that exceed three hours per month are not considered availability times.
3.6.6 If unavailability occurs, the customer is obliged to document this and to inform Avalink in text form of the unavailability within three days of the respective incident. Avalink will review the notification and inform the customer within five days whether the unavailability is recognized. If Avalink was not responsible for the unavailability, Avalink will also inform the customer of this, stating the reasons for the unavailability.
The customer’s obligations to cooperate and exercise due diligence
3.7.1 It is the responsibility of the customer (exception: SaaS) to install the rental software unless Avalink expressly guarantees installation in writing and/or installation by Avalink is provided for in the confirmed offer. Instruction, introductory support or similar services are not included in the price of rental software and must be ordered and paid for separately.
3.7.2 The customer is responsible for the existence of the system requirements and hardware and software components required for the contractually intended operation of the rental software. The respective requirements can be found in the confirmed offer, the Avalink website and the user documentation and can also be requested from Avalink.
3.7.3 Contract duration and termination
Contract duration and termination
3.8.1 Unless otherwise stipulated in the confirmed offer, the contract for the software rental begins with its conclusion.
3.8.2 The software rental has a term of 24 months (“minimum contract term rental”), unless otherwise expressly agreed between the contracting parties, whereby text form is sufficient.
3.8.3 After the minimum contract term rent has expired, the contract is extended by a further 24 months (in each case “further contract term rent”), unless it is terminated with three months’ notice before the end of the respective contract term.
3.8.4 In addition, each contractual partner has the right to terminate the contract extraordinarily for good cause if it is no longer reasonable for him to continue the contractual relationship. An important reason that entitles Avalink to terminate the contract is, in particular, if the customer violates Avalink's usage rights by using the rental software beyond what is permitted under the contract or by allowing third parties to use it, or if the customer is more than two months late in paying the license fee.
3.8.5 Termination by the customer due to non-granting of the possibility of use in accordance with Section 543 Paragraph 2 No. 1 of the German Civil Code (BGB) as a result of a defect is only permitted if Avalink has been given sufficient opportunity to carry out repairs and this is deemed to have failed.
Upon termination of the contract, the customer must immediately and completely stop using the rental software, delete all copies on its systems as well as any backup copies of the rental software that may have been created and destroy the corresponding data media or hand it over to Avalink. After the software rental has ended, any further use of the rental software, including for data transfer purposes, is not permitted. Upon termination of the contract, the customer must immediately and completely stop using the rental software, delete all copies on its systems as well as any backup copies of the rental software that may have been created and destroy the corresponding data media or hand it over to Avalink. After the software rental has ended, any further use of the rental software, including for data transfer purposes, is not permitted.
Warranty for material defects
3.9.1 Avalink points out that all state-of-the-art software has a risk of technical errors. The customer expressly acknowledges that malfunctions of the rental software cannot be ruled out even with the greatest care.
3.9.2 Avalink guarantees that the rental software is free from material defects. Avalink is not liable for material defects that are due to incorrect application or that the prerequisites for using the rental software according to Section 3.7.2 have not been met or not fully met by the customer, that the rental software is used in an incorrect system environment, or that result from changes or additions made by the customer to the rental software or the system environment as well as associated software, in particular third-party software, after installation of the rental software. Something different only applies if the customer proves that the material defects were already present when the software was provided and have no causal connection with the circumstances mentioned above or that the customer is entitled to make the relevant changes to the rental software, in particular when exercising the right to remedy defects themselves in accordance with Section 536a Paragraph 2 of the German Civil Code (BGB), and that these are carried out professionally and documented in a comprehensible manner. Page 4 Claims for defects do not exist even in the event of an insignificant deviation from the agreed quality or an insignificant impairment of the usability of the rental software.
3.9.3 Furthermore, Avalink is not liable for ensuring that the existing interfaces of the rental software to third-party systems are permanently compatible with the third-party systems and that the rental software offers the interfaces required by the customer.
3.9.4 As part of the repair, Avalink is entitled, at Avalink's discretion, to remedy or circumvent the defect by eliminating the defect (“repair”), if necessary several times, or by providing replacement services. Avalink's right to refuse the chosen type of supplementary performance under the legal requirements remains unaffected. As part of the elimination of defects while maintaining the contractually intended range of functions, Avalink is entitled to provide the customer with program updates for repairs that no longer contain the defect complained of, provided this is reasonable for the customer. The customer may not enforce a reduction by deducting the agreed license fee; unless the right to a reduction is undisputed or has been legally established by a court. The right to a reduction only extends to the defective functionality of the rental software.
3.9.5 The customer is obliged to examine the rental software immediately after it has been made available and to report any material defects discovered in text form with a precise description of the error. Furthermore, every customer is obliged to inform Avalink immediately after first becoming aware of a material defect and to provide Avalink with verifiable documents about the type and occurrence of the alleged material defect. The customer also has the obligation to cooperate seriously and to the best of his ability in isolating errors and to provide Avalink with access to its IT systems and to follow its instructions for troubleshooting.
3.9.6 If, upon checking the reported defect, it turns out that there is no defect in the rental software that is subject to warranty, Avalink can demand reimbursement from the customer for the demonstrably incurred costs of the request to rectify the defect, in particular testing and transport costs, unless the absence of a defect requiring repair was not apparent to the customer. This applies in particular to incorrect operation by the customer.
Warranty in the event of legal defects
3.10.1 Avalink guarantees that the rental software is free of third-party rights that significantly restrict or exclude its contractually agreed use by the customer (“legal defect”).
3.10.2 In the event of a legal defect that has been legally established or recognized by Avalink, Avalink will, at Avalink's discretion, provide the customer with a legally permissible option to use the rental software or modify or replace it in such a way that the rights of third parties are no longer violated.
3.10.3 If a third party asserts rights against the customer against the use of the rental software, the customer is obliged to inform Avalink of this immediately in text form and to coordinate further steps with Avalink.
3.10.4 Avalink will bear the appropriate costs of the dispute as well as the legally or comparatively determined compensation amounts, insofar as these are based on legal defects that have been legally established or recognized by Avalink and that all defensive measures and settlement negotiations were reserved to Avalink. Comparisons by the customer require the consent of Avalink.
3.10.5 Avalink is entitled, but not obliged, to defend claims asserted against the customer in its own name at its own expense.
3.10.6 The warranty against defects of title only applies if and to the extent that the rental software was used in accordance with the contract and the infringement was not caused by a modification, connection or other processing of the rental software carried out by the customer himself or by a third party. Avalink is also considered a third party if it has carried out the modification or other processing on behalf of the customer.
3.11.1
3.11.1 If the customer violates a provision of these terms and conditions, Avalink has the right to block the customer's access to the rental software to the extent that the violation is remedied by this. To the extent that Avalink is entitled to block, the customer is not entitled to a refund and/or retention of the license fee owed for the period of blocking.
3.11.2 Avalink will inform the customer of the blocking and the reason for the blocking and will lift the blocking as soon as the violation has been remedied.
3.11.3 Any further claims of Avalink (in particular termination rights and claims for damages) remain unaffected.
Special provisions for software purchases
Scope and subject matter of the contract
4.1.1 The following contractual conditions apply to the software purchase.
4.1.2 The subject of the software purchase is the permanent transfer of a copy of the software in object code and the associated user documentation in the version current at the time of conclusion of the contract in accordance with the specifications set out in the confirmed offer and these conditions (“purchase software”) as well as the granting of the usage rights necessary to use the purchased software in accordance with the contract. The software installation, any user support such as customer-specific adjustments (customizing, parameterization, configuration), training, work services, delivery of hardware and accessories and other services that go beyond the fulfillment of the contract for the software purchase are not the subject of the software purchase. Without a separate contract, Avalink does not owe any advice, installation or other services not expressly stated in the confirmed offer.
Nature of the purchased software
Before concluding the contract, the customer checked that the functional scope of the purchasing software met his expectations and needs. He is familiar with the essential functional features and conditions of the purchased software. There is no guarantee that the purchased software will meet the customer's specific requirements. The customer bears sole responsibility for the selection, installation and use of the purchased software as well as for the results achieved with it and the economic success.
Principles of service provision
4.3.1 At Avalink's discretion, the customer receives the purchase software by making it available via online download or on a data carrier.
4.3.2 The risk passes to the customer when the download of the purchased software is made available or when the data medium is handed over.
Retention of title
4.4.1 Avalink reserves ownership of the software and all physical objects (especially data storage media) provided to the customer until all claims arising from the business relationship with the customer have been paid in full. The reserved goods may not be resold. A pledge or transfer of security may not take place. If third parties access the reserved goods, for example through seizure or an application to open insolvency proceedings, the customer is obliged to point out Avalink's ownership and to inform Avalink immediately in text form.
4.4.2 If the customer is in arrears with the payment of the purchase price, Avalink is entitled to demand the return of the items sold and to retain them as long as the delay in payment continues. This does not constitute a declaration of withdrawal from the contract. 4. 5 E n t valid
4.5.1 The customer is obliged to pay the purchase price agreed in the confirmed offer in accordance with the provisions in 2.5.
4.5.2 If the customer defaults on payment, Avalink reserves the right to block access to the purchase software.
Rights of use
4.6.1 Unless otherwise agreed in text form, upon full payment of the purchase price, the customer is granted the non-limited, non-sublicensable, non-transferable right to use the purchased software for the agreed number of individual workstations/users and, if agreed, on the agreed number of servers in their own business operations.
4.6.2 Permitted use includes the installation of the purchased software, if it is a single-user license, on a single workstation (one computer) of the customer, if it is a multi-user license, on the number of individual workstations determined by the license, the loading, display and use of the purchased software, the installation of the number of server instances specified in the confirmed offer, if it is a server license, the creation of a backup copy and the intended use according to the user documentation. Avalink reserves the right to bind the purchased software to a computer ID/serial number by using a license key.
4.6.3 In addition, the customer is not entitled to use the purchased software, in particular to reproduce, distribute, publish, edit, decompile or carry out other types of redevelopment of the various manufacturer stages of the purchased software (“reverse engineering”), unless he is entitled to do so under the conditions of § 69e UrhG.
4.6.4 The customer is not entitled to pass on the copy of the purchase software provided to him or any backup copy created to third parties. In particular, the customer is not entitled to lend or rent the purchased software or to grant third parties rights to use it in any other way without Avalink's written consent. This does not apply to the customer's right to permanently transfer the purchased software to a third party, taking into account the scope of the rights granted here. In this case, the customer undertakes to completely stop using the software upon conclusion of the contract and to delete all copies of the software, unless he is obliged to retain it for a longer period, in which case he may not use it for any other purpose. Avalink may request information from the customer about the implementation of the measures to be carried out in accordance with the preceding sentence.
4.6.5 At Avalink's request, the customer must enable Avalink to check that the purchased software is being used in accordance with the contract. Upon request, the customer will provide Avalink with information in text form within a reasonable period of time as to whether the purchased software is being used by the customer in accordance with the contract, in particular whether the customer complies with the contractually agreed scope of use (e.g. with regard to the number of licenses made available) as well as the terms of use according to this section and the confirmed offer.
4.6.6 If the customer exceeds the usage rights granted above, in particular by installing on more workstations than the number granted in the license, the customer must immediately inform Avalink of the overuse and pay a flat-rate compensation for the overuse. The flat-rate compensation amounts to three times the software rental for one workstation according to the current price list and the license fee to be paid for each workstation used by the customer in excess of the agreed number of workstations. The customer is entitled to prove that Avalink suffered less damage. If the flexible license model is agreed in the confirmed offer, the customer has the option of using additional workstations for a period that is shorter than the contract term. In this case, contrary to the above, if the number of workstations agreed in the confirmed offer is exceeded, the customer must pay the agreed remuneration for the flexible license excess for each workstation used in excess of the agreed number of workstations. Further claims by Avalink due to breach of contract by the customer remain unaffected.
The customer’s obligations to cooperate and exercise due diligence
4.7.1 It is the customer's responsibility to install the purchased software unless Avalink expressly guarantees installation in writing and/or installation by Avalink is provided for in the confirmed offer. Instruction, introductory support or similar services are not included in the price and must be ordered and paid for separately. Page 5
The customer is responsible for the existence of the system requirements and hardware and software components required for the contractually intended operation of the purchased software. The respective requirements can be found in the confirmed offer, the Avalink website and the user documentation and can also be requested from Avalink. The customer is responsible for the existence of the system requirements and hardware and software components required for the contractually intended operation of the purchased software. The respective requirements can be found in the confirmed offer, the Avalink website and the user documentation and can also be requested from Avalink.
4.7.3 The customer undertakes to take appropriate measures to prevent unauthorized access by third parties to the purchase software. The original files provided and the backup copy must be marked as such and stored in a location secured against unauthorized access by third parties. The customer's employees must be made aware of compliance with these contractual conditions and the provisions of the copyright law.
4.8.1
4.8.1 Avalink points out that all state-of-the-art software has a risk of technical errors. The customer expressly acknowledges that malfunctions of the purchase software cannot be ruled out even with the greatest care.
4.8.2 Avalink guarantees that the purchased software is free from material defects. Avalink is not liable for material defects that are due to incorrect use of the purchased software or because the prerequisites for use in accordance with 4.7.2 have not been met or have not been fully met by the customer. Claims for defects do not exist even in the event of an insignificant deviation from the agreed quality or an insignificant impairment of the usability of the purchased software.
4.8.3 Furthermore, Avalink is not liable for ensuring that the existing interfaces of the purchased software to third-party systems are permanently compatible with the third-party systems and that the purchased software offers the interfaces required by the customer.
4.8.4 As part of the repair, Avalink is entitled, at Avalink's discretion, to remedy or circumvent the defect by eliminating the defect (“repair”), if necessary several times, or by providing replacement services. Avalink's right to refuse the chosen type of supplementary performance under the legal requirements remains unaffected. As part of the elimination of defects while maintaining the contractually intended range of functions, Avalink is entitled to provide the customer with program updates for repairs that no longer contain the defect complained of, provided this is reasonable for the customer.
4.8.5 In accordance with Section 377 of the German Commercial Code (HGB), the customer is obliged to examine the purchased software immediately after it has been made available and to report any material defects identified in writing with a precise description of the error. If the complaint is not made within
days after the purchase software has been made available, the goods are deemed to have been approved,
unless it is a defect that was not apparent during the inspection. If such a defect becomes apparent, the purchased software is deemed to have been approved unless the defect is reported within 14 days of the time at which the defect was apparent. Furthermore, every customer is obliged to inform Avalink immediately after first becoming aware of a material defect and to provide verifiable documents about the type and occurrence of the alleged material defect (also see section 2.4.2). The customer also has the obligation to cooperate seriously and to the best of his ability in isolating errors and to provide Avalink with access to its IT systems and to follow its instructions for troubleshooting.
4.8.6 If, upon checking the reported defect, it turns out that there is no defect in the purchased software that is subject to warranty, Avalink can demand reimbursement from the customer for the demonstrably incurred costs of the request to rectify the defect, in particular testing and transport costs, unless the absence of a defect requiring repair was not apparent to the customer. This applies in particular to incorrect operation by the customer.
Deviating from Section 438 Paragraph 1 No. 3 BGB, the general limitation period for entrepreneurs for claims arising from material defects is one year from the transfer of risk. Claims according to 2.6 remain unaffected. Deviating from Section 438 Paragraph 1 No. 3 BGB, the general limitation period for entrepreneurs for claims arising from material defects is one year from the transfer of risk. Claims according to 2.6 remain unaffected.
Warranty in the event of legal defects
4.9.1 Avalink guarantees that the purchased software is free of third-party rights that significantly restrict or exclude its contractually agreed use by the customer (“legal defect”).
4.9.2 4.9.3
4.9.3 If a third party asserts rights against the customer against the use of the purchased software, the customer is obliged to inform Avalink of this immediately in text form and to coordinate further steps with Avalink.
4.9.4 Avalink will bear the appropriate costs of the dispute as well as the legally or comparatively determined compensation amounts, insofar as these are based on legal defects that have been legally established or recognized by Avalink and that all defensive measures and settlement negotiations were reserved to Avalink. Comparisons by the customer require the consent of Avalink.
4.9.5 Avalink is entitled, but not obliged, to defend claims asserted against the customer in its own name at its own expense.
4.9.6 The warranty against legal defects only applies if and to the extent that the purchased software was used in accordance with the contract and the infringement was not caused by a modification, connection or other processing of the purchased software carried out by the customer himself or by a third party. Avalink is also considered a third party if it has carried out the modification or other processing on behalf of the customer.
4.9.7 Deviating from Section 438 Paragraph 1 No. 3 BGB, the general limitation period for entrepreneurs for claims arising from legal defects is one year from the transfer of risk. Claims according to 2.6 remain unaffected.
Special conditions for hosting
Scope and subject matter of the contract
5.1.1 The following contractual conditions apply to hosting.
5.1.2 Hosting requires that the customer has concluded a software rental or software purchase agreement with Avalink.
The subject of hosting is the provision of storage space for the application data, as well as the granting of access rights to view, edit, delete, save and otherwise use the application data using the software provided. The subject of hosting is the provision of storage space for the application data, as well as the granting of access rights to view, edit, delete, save and otherwise use the application data using the software provided.
Principles of service provision
5.2.1 Avalink enables the customer to access the application data from the agreed point in time for the contract term and stores it for this purpose. Avalink stores all application data generated by the customer unless a restriction on the data to be stored has been agreed in text form. The customer is responsible for creating and storing the application data.
5.2.2 The application data is stored and made available on the server of Avalink and/or a commissioned subcontractor and can be accessed via the Internet as a web application using the software provided. The place of performance is the router output of the data center used by Avalink to the Internet (“place of performance”). The customer's access is through provided access data and/or the provision of access software. There is no physical transfer of the application data (not even as a download). The customer must independently ensure the availability of the telecommunications connection between the customer and the transfer point.
Fee
5.3.1 The amount of the hosting fee to be paid by the customer results from the confirmed offer and - if stated accordingly - can be included in the license fee or the purchase price (“hosting fee”).
5.3.2 Avalink is entitled to increase the hosting fee at the start of the further contractual hosting period in accordance with 5.7.3 with three months' notice at the end of the current contractual period.
5.3.3 In all cases in which the customer defaults on payments and a grace period has been set to the customer without success, Avalink is entitled to suspend further provision of hosting without the need to set a further deadline.
5.3.4 Otherwise, the general remuneration rules and payment conditions in accordance with Section 2.5 apply
Rights to the application data
5.4.1 The rights to the application data and the information contained therein belong exclusively to the customer. The hosting does not grant Avalink any rights to the application data, with the exception of a simple right of use limited to the duration of the hosting contract to fulfill the obligations under the hosting contract.
Availability of application data
5.5.1 Avalink enables the customer to access the stored application data using the software provided within the times specified below (“availability”). Availability is the customer's ability to access the application data at the place of performance using the software provided.
5.5.2 The guaranteed value of availability is the percentage of availability of access to the application data at the place of performance as follows: In the core usage time (Monday to Friday, 5:00 a.m. to 9:00 p.m.) an availability of 99% and in the peripheral usage time (Monday to Friday 9:01 p.m. to 4:59 a.m., Saturdays, Sundays and public holidays in Schleswig-Holstein) an availability of 98.5 %.
5.5.3 The reference period for availability is the respective calendar month. Availability represents the percentage of hours in which access to the application data at the place of performance was possible in the core or peripheral usage time compared to the respective hours of the core or peripheral usage time in the respective calendar month.
5.5.4 Available use (availability given) also includes periods during disruptions or other events for which Avalink or one of Avalink's vicarious agents are not responsible.
5.5.5 5.5.6
5.5.6 If unavailability occurs, the customer is obliged to document this and to inform Avalink in text form of the unavailability within three days of the respective incident. Avalink will review the notification and inform the customer within five days whether the unavailability is recognized. If the unavailability was not the responsibility of Avalink and/or any subcontractors commissioned, Avalink will also inform the customer of this, stating the reasons for the unavailability.
5.6.1
5.6.1 The customer is obliged to take appropriate measures to prevent access to the application data by unauthorized third parties, in particular to secure the access data from unauthorized access.
5.6.2 The customer is fully responsible for the application data and its contents generated by him, in particular he must comply with applicable law and ensure that application data and its contents do not contain any malware (e.g. viruses/Trojans).
5.6.3 The customer is responsible for ensuring that the application data and its contents do not contain any racist, discriminatory, pornographic or otherwise unlawful content and undertakes not to upload such content as application data to the servers of Avalink and/or its subcontractors.
5.6.4 The customer must ensure that when generating and storing application data, all third-party rights to the material used by him as well as the personal rights of those affected are respected. The customer must indemnify Avalink Page 6 from all claims asserted by third parties to the extent that application data generated by the customer or its contents violate the rights of third parties.
5.6.5 5.7.1
Contract duration and termination
5.7.1 Unless otherwise stipulated in the confirmed offer, hosting begins with the conclusion of the contract.
5.7.2 The hosting has a term of 24 months (“minimum contract term hosting”) unless otherwise expressly agreed between the contracting parties, whereby text form is sufficient.
After the expiry of the minimum contract term for hosting, the contract is extended by a further 24 months (in each case “further contract term for hosting”), unless it is terminated with three months’ notice before the end of the respective contract term. After the expiry of the minimum contract term for hosting, the contract is extended by a further 24 months (in each case “further contract term for hosting”), unless it is terminated with three months’ notice before the end of the respective contract term.
5.7.4 If the customer has concluded a contract for software rental in addition to hosting, the term of the hosting corresponds, contrary to the above, to the term of the contract for software rental.
5.7.5 In addition, each contractual partner has the right to terminate the contract extraordinarily for good cause if it is no longer reasonable for him to continue the contractual relationship. An important reason that entitles Avalink to terminate the contract is, in particular, if the customer violates the duties and obligations in accordance with 5.6. or if the customer is more than two months late in paying the hosting fee. Termination by the customer due to non-granting of the possibility of use is only permitted if Avalink has been given sufficient opportunity to carry out repairs and this is deemed to have failed.
5.7.6 Upon termination of the Agreement, Avalink will retain the Application Data for a period of two months to give the Customer the opportunity to download the Application Data. There is no right to receive a copy of the data. After this period, Avalink will delete the application data.
Blocking access and deleting application data
5.8.1 If the customer violates any provision of these terms and conditions, Avalink has the right to block the customer's access to the application data to the extent that the violation is remedied thereby. To the extent that Avalink is entitled to block, the customer is not entitled to a refund and/or retention of the hosting fee owed for the period of blocking.
5.8.2 5.8.3
5.8.3 Avalink will inform the customer about the blocking or deletion and the reason for the blocking or deletion and will lift the blocking as soon as the violation has been remedied.
5.8.4 Any further claims of Avalink (in particular termination rights and claims for damages) remain unaffected.
Special provisions for software maintenance
and support
Scope and subject matter of the contract
6.1.1 The following contractual terms and conditions apply to software maintenance and support (together “software maintenance services”).
6.1.2 The software for which the customer is entitled to use the software maintenance services (“maintenance software”) results from the confirmed offer.
Principles of service provision
6.2.1 As part of the software maintenance services, Avalink provides the following services, as agreed in the confirmed offer: • E-mail and telephone advice (hotline) for user advice regarding installation and functionality of the maintenance software and elimination of faults in the maintenance software, insofar as these are not part of the warranty for defects as part of the provision of the purchased or rental software (e.g. minor adjustments and corrections of user errors). The hotline is open Monday to Friday from 9 a.m. to 12 p.m. and from 2 p.m. to 5 p.m. This does not apply to national holidays. If the request cannot be answered immediately, Avalink will inform the customer about possible solutions as soon as they are available. Avalink will correct this error as quickly as possible within the means and resources available to it. Avalink response times depend on existing resources and the urgency of support. The reaction times for disruptions that prevent operations are generally shorter than for disruptions that hinder operations and are shorter than for other disruptions. • The provision of updated versions (“service packs”) for the maintenance software · The provision of further developed versions (“updates”) for the maintenance software. • The creation and storage of a backup of the application data for a period of seven days from the creation of the respective date (“data backup service”). · The possibility of using various algorithms that are executed on Avalink servers via the Internet in order to increase the functionality of the maintenance software, in particular to analyze special application data and to generate improved and/or more extensive application data based on algorithms (“business logic”).
6.2.2 The service packs or updates contain adjustments, improvements, further developments and, if necessary, error corrections. Avalink decides on the type, scope and frequency of service packs and updates.
6.2.3 Service packs and updates are made available to the customer for download on a website operated by Avalink, provided that no installation by Avalink is required. If the maintenance software is SaaS software, updates occur automatically and the customer is granted access to the adapted version of the rental software once the update takes effect.
6.2.4 6.2.5
6.2.5 It may be necessary for Avalink to require remote access to the customer's system in order to provide the software maintenance services (in particular to install certain updates, upgrades, new versions of the maintenance software and/or service packs, for remote maintenance and/or for the data backup service). It is the customer's responsibility to provide Avalink with remote access for this purpose.
6.2.6 The scope of functions of the service packs and updates results from the included supplement to the user documentation for the maintenance software and/or other information provided by Avalink.
6.2.7 The customer is only entitled to the service packs and updates to the maintenance software that are currently marketed as such being made available. However, this does not include extensions, upgrades and new versions that are marketed separately by Avalink as an independent product (e.g. independent software modules).
6.2.8 Furthermore, the following services are not part of the software maintenance services and can be obtained from Avalink by separate agreement: • Installation of the maintenance software • Correction of software errors in the maintenance software that were caused by an unsuitable system or hardware environment, improper operation or intended use / incorrect configuration / editing by the customer, influences of third parties, for example due to malware, non-installation or incorrect installation of service packs and updates provided • Instructions and training for the use of the maintenance software • Extensions, upgrades, new versions of the maintenance software that are marketed separately by Avalink or the manufacturer as an independent product • Adaptation of the maintenance software to changing legal framework conditions (mandatory laws, legal regulations, regulatory requirements) or due to changing requirements in the customer's sphere. Corresponding services can be provided by the customer against a separate agreement and remuneration from Avalink.
Fee
6.3.1 The amount of the annual fee to be paid by the customer for the software maintenance services results from the confirmed offer and - if stated accordingly - can be included in the license fee ("maintenance fee").
6.3.2 Avalink is entitled to increase the maintenance fee at the beginning of the further contract term for software maintenance in accordance with 6.5.3 with a notice of three months at the end of the current contract term.
The customer’s obligations to cooperate and exercise due diligence
The customer will immediately notify Avalink of any software errors in the maintenance software via the hotline and support Avalink in finding and eliminating errors within reason. In particular, the customer will provide Avalink with existing defect reports, error documentation and logs as well as all other information that may be relevant for troubleshooting (if possible in an electronic format) and appoint a knowledgeable employee with administrator rights as Avalink's contact person. The customer will immediately notify Avalink of any software errors in the maintenance software via the hotline and support Avalink in finding and eliminating errors within reason. In particular, the customer will provide Avalink with existing defect reports, error documentation and logs as well as all other information that may be relevant for troubleshooting (if possible in an electronic format) and appoint a knowledgeable employee with administrator rights as Avalink's contact person.
6.4.2 The customer will install and configure service packs or updates made available to him as part of the troubleshooting as instructed. The customer must take data backup measures and, if necessary, other measures communicated to him in advance of the installation in order to avoid data loss or the occurrence of software errors. To the extent necessary to provide software maintenance services, the customer will set up Avalink remote access to the system in question.
6.4.3 Otherwise, upon separate request from Avalink, the customer will provide all objectively justifiable and appropriate cooperation at his own expense. If the provision of software maintenance services fails or is delayed due to the lack of cooperation or late provision of cooperation, the customer is solely responsible for this.
Contract duration and termination
6.5.1 Unless otherwise stipulated in the confirmed offer, the software maintenance services begin with the conclusion of the contract. If the maintenance software is rental software, the term of the software maintenance services corresponds to the term of the software rental.
6.5.2 If the maintenance software is purchased software, the software maintenance services have a term of 24 months (“minimum contract term software maintenance”), unless otherwise expressly agreed between the contracting parties, whereby text form is sufficient.
6.5.3 After the minimum contract term for software maintenance has expired, the contract is extended by a further 24 months (“further contract term for software maintenance”) unless it is terminated with three months’ notice before the end of the respective contract term. The right to extraordinary termination remains unaffected.
Reference to rules for software rental and software purchase
6.6.1 Otherwise, the special provisions for software rental or software purchase apply to the maintenance software, depending on whether the maintenance software is rental or purchase software.