B. Special Conditions for Enterprise support services
§ 1 Subject and content of Software support
1. The Licensor – if so agreed – provides additional Software support in the form of Enterprise support services alongside his warranty obligations. Enterprise support services contain error-analysis, elimination of Software failures and the creation of updates and new versions.
2. Support services relate to the current version of the Software and the two respective preceding versions.
3. Support services do not contain the provision of new Software releases (i.e. a new Software version with considerable changes to the range of functions), individual enhancements or adjustments of the Software for the Licensee, services for any products other than the Software, installation or implementation of the Software on or into the hardware environment of the Licensee, changes to the hardware or operating systems or introductions or trainings for the Licensee’s personnel.
4. Support services shall not be rendered with respect to Software that the Licensee uses in conflict with instructions given by the Licensor regarding its use and programming or Software that the Licensee has or had modified without prior consent by the Licensor, unless the Licensee can prove that such modifications do not affect the required effort for the provision of support services in an unreasonable manner.
§ 2 Support-hours/Support
Support services shall be provided by the Licensor’s support-team during Support-hours by means of SAP OSS.
§ 3 Error classes and response time
1. The parties mutually determine error classes of errors to be potentially reported in accordance with the following criteria:
Category 1: Critical Error: Material loss of functionality or performance of the Software leading to the inability to use the Software.
Category 2: Substantial Error: Considerable loss of functionality or performance of the Software that can be circumvented with organizational or other reasonable measures so the Software can be used continually.
Category 3: Miscellaneous Errors: Negligible loss of functionality, reliability, performance or quality of the Software.
2. The Licensor provides the following support services:
Category 1: Accelerated error-analysis and commencement of troubleshooting procedures within four work-hours after receiving notice. In case notice is received after 2 p.m. (Central European Time), only the period until the end of Support-hours shall count; the remaining response period starts running again at the beginning of the next Support-hours window.
Category 2: Accelerated error-analysis and commencement of troubleshooting procedures until the end of the business day following the day the notice is received.
Category 3: Error-analysis and commencement of troubleshooting procedures are not subject of Software support services.
3. With respect to error-analysis and commencement of troubleshooting procedures, the periods described above are calculated from the time the notice of the Licensee is received; if the notice is not received during Support-hours, these periods start running at the beginning of the next Support-hours window.
4. The Licensor shall continually pursue commenced troubleshooting-procedures during Support-hours.
§ 4 Licensee’s duty to cooperate
1. The Licensee shall give notice to the Licensor by means of the Licensor’s Error-report-system via SAP OSS about all errors he wishes the Licensor to eliminate.
2. The Licensee will assist the Licensor with reasonable efforts if such assistance is beneficial to the rendering of support services. This particularly relates to the provision of all information the Licensor’s deems necessary for his performance, naming qualified contact persons and the provision of test data and test capacities.
3. The Licensee will name a contact person who is in charge of the Licensee’s systems to the Licensor promptly upon conclusion of the agreement. This does not affect the submission of error-reports; all of the Licensee’s personnel can submit such.
4. The Licensee will also grant the Licensor physical access to his system-environment where and whenever necessary.
5. The Licensee will document and promptly inform the Licensor in writing about changes within the configuration of the Software and its environment in the following cases:
- System changes
- Changes within configuration
- System-ID changes.
§ 5 Provision of updates
1. For the purposes of troubleshooting and adaption to changed system requirements or changes within the operating system in use, the Licensor will within his sole discretion, but at least twice per year, provide Minor Releases for the Licensee to download. These do not contain any new elements of performance or software-modules with new functions. The Licensee shall install such Minor Releases.
2. In case new versions or updates are released, the Licensee shall receive an amendment to the user manual and if required and initially provided, an object-code.
3. Regarding the new versions and updates, the Licensor grants the Licensee the same rights as stipulated with respect to the provision of the Software.
§ 6 Service fee
1. Support services with respect to the Community Edition can be purchased by the Licensee for a fee as specified within the license certificate. With respect to the Enterprise Edition, the fee for support services is 25% of each respective license fee.
2. In case the Licensee has purchased Enterprise support services for the Community Edition, the Licensee shall pay the fees agreed to under the license certificate in four equal rates at the end of each three-months-period and upon receipt of an invoice, plus value added tax in the amount determined by statutory law at the time the invoice is issued.
3. The fee-amount for purchased Enterprise support services is fixed for a period of 36 months. Upon the Licensor’s request, the parties will agree on an appropriate adjustment to the service fee in due time before the fixed period lapses.
§ 7 Warranty and liability limitation
1. Claims become time-barred one year after performance or, in case of work performances, after acceptance. This does not apply to claims for damages (a) in case of intendent or gross negligence, (b) injury to life, limb and health, (c) in accordance with the provisions of the German Product Liability Act (ProdHaftG) or (d) to the extent of an assumed guarantee.
2. In case support services include work performances, the Licensee shall be entitled to request rectification of defective work performances. Upon final failure of the rectification and if the work performance remains defective, the Licensee is entitled to reduce the service fee. The Licensor owes a work of average kind and quality.
3. The Licensor is, without limitation, liable for damages (a) in case of intent or gross negligence, (b) in case of culpable injury to life, limb or health, (c) in accordance with the provisions of the Product Liability Act (ProdHaftG) and (d) to the extent of an assumed guarantee.
4. The Licensor is liable for typically foreseeable damages resulting from a slightly negligent breach of his cardinal duties by himself, his legal representatives or vicarious agents. Cardinal duties are all duties whose fulfilment make the due performance of the agreement possible in the first place and on the observation of which the Licensee may regularly rely on.
5. In other cases of slight negligence, the Licensor is liable for damages up to the amount equaling five monthly service fees for each damage event.
6. In case of data-loss due to slight negligence, the Licensor is liable for damages up to the extent the damage would have occurred if the Licensee had regularly conducted data back-ups in a proper manner and under consideration of the significance of the relevant data. If in doubt, it shall be assumed that backing up data every three days is appropriate. This limitation does not apply if the Licensee was hindered or unable to conduct such backups for reason attributable to the Licensor.
7. The above exclusions and limitations of liability also apply with respect to the personal liability of employees, representatives and members of bodies of the Licensor.
§ 8 Term and termination
1. In case the Licensee has purchased Enterprise support services for the Community Edition, the term of the agreement shall be 36 months. The term is extended automatically by twelve months if no party terminates the agreement with a notice period of three months to the end of the license term.
2. Support services within the context of the Enterprise Edition are inseparably associated with the agreement regarding the provision of Software. A termination of support services is not possible.
3. The right to terminate for cause without notice remains unaffected.
4. Any termination requires written form to be effective.
§ 9 Subcontractors
The Licensor is entitled to task third parties with the provision of support services in accordance with this agreement if they have their registered office within and provide their performances from within the EU.