1 Definitions
1.1 Agreement: agreement between supplier and customer
1.2 Software: OMD Go and/or customization and/or documentation
1.3 OMD Go: standard OMD Go as specified in the agreement
1.4 Customization: changes in OMD Go as specified in the agreement are not part of OMD Go. The agreement is specifically designed for the customer. The consignment of this customization only applies if explicitly mentioned and described in the agreement.
1.5 Documentation: online service desk and instructions regarding OMD Go. Documentation is provided in English.
1.6 Entitlement: non-exclusive and non-transferable right to use the software solely by the client, for the benefit of the client's business activities for the maximum number of users, and for the period specified in the agreement.
1.7 Version: a set of OMD Go (also called update or release), which includes any correction of detected defects and the possible addition of significant or small new features.
1.8 Maintenance: ideal tracing and restoring imperfections in OMD Go and proper documentation as well as the appendant standard modifications of the supplier; providing and documenting standard adjustments in OMD Go; providing new versions in case the conditions indicate so.
1.9 Support: providing telephonic, written, or electronic support for clients' questions concerning the usage of OMD Go.
1.10 Defects: all occurring, essential, reproducible errors and defects, as well as all substantial deviations of OMD Go identified by the user in comparison with the ascribed properties from the accompanying documentation.
1:11 Major defects: defects in OMD Go that severely hamper its usage, cause serious disruption of significant business processes, and cannot be sufficiently solved early on by any workaround.
1:12 Other defects: defects in OMD Go that do not fall under the definition of major defect.
1:13 Reaction deadline: when the supplier gets an item back from the client that indicates a defect or when the client needs support, the reaction deadline applies. The supplier must correct the defect or provide the requested support.
1:14 Incident Report (IR): a standard form for reporting defects.
1:15 Maintenance Manager: a well-trained and competent employee appointed by the client who maintains contact with the supplier, along with another expert nominated by the supplier who maintains contact with the client regarding maintenance and support.
1:16 Named user: any person employed by the client who at any time uses the software.
1:17 SaaS services: providing OMD Go as “software - as-a – service”, which is the (automatic) processing of data using software and equipment managed by the supplier.
1:18 Supplier: Optimize My Day GmbH, based in Germany, German Chamber of Commerce identification: HRB 67910.
1:19 Plan resource: entity within the software where routes or tasks can be consulted about.
1:20 Official date of receipt: the date on which the software (as part of the implementation process) is accepted by the client. The software is in any case considered to be accepted by means of projects at the time that it is taken into use in a live operating environment.
2 General
2.1 The applicability of any purchase or other terms and conditions of the client is explicitly rejected.
2.2 Should any provision of the terms of these terms and conditions be invalid or inactive, the remaining provisions of these terms and conditions shall remain in full force. The supplier and customer shall agree upon new specifications and agree on the purpose and intent of the invalid provision as much as possible.
3 Price and Payment
3.1 All prices are without taxes (VAT) and other taxes that are imposed by the government.
3.2 Two years after the official date of receipt, the supplier is entitled to adjust the applicable prices. This is only possible by means of a written notice within a period of at least six months before the price increase will be enforced. The annual price increase can never be higher than the inflation rate of the country (in connection with the price increase from the year before) where the supplier is localized, namely Germany. This applies due to the data of the federal office ''Statische Bundesamt'', see also www.destatis.de.
3.5 All invoices will be paid by the client within 30 days after the date of invoice.
3.6 If the customer challenges an invoice from the supplier in whole or in part, the customer shall notify the supplier in written form within 15 days after the invoice date. Failure to notify this proposition within the aforementioned period will be considered as acceptance of the supplier's invoice by the client. Parties will make every reasonable effort to settle any disputes. Possible invoices or parts thereof that are not challenged will be paid on time by the client.
4 Confidential information and non-recruitment
4.1 Each party warrants that all the received confidential information of the other party will remain confidential before and after the agreement. Any information will be considered confidential if designated so by one party.
4.2 During the term of the agreement and for one year following the cancellation thereof, each party shall hire members of the other party who have been involved in the execution of the agreement or otherwise let them work for the party, directly or indirectly, only after proper consultation with the other party.
5 Reservation of rights
5.1 The client receives the user's rights for the software from the moment that all amounts mentioned in the agreement, including interest and costs of collection, have been paid to the supplier.
6 Intellectual or industrial property
6.1 All rights of intellectual or industrial property, that is part of the delivered software as specified in the agreement, shall be deemed property only from the supplier or its licensors. The client only receives the user rights and powers as expressly mentioned in these terms, even if he pays a fee to the supplier for an earlier disposal of the user rights.
6.2 The client acknowledges that the software contains trade secrets and confidential information of the supplier or its licensors. The client declares not to disclose the software to third parties and to only use it for the purpose for which it has been made available to him.
6.3 The client is not permitted to remove any indication regarding copyrights, trademarks, trade names, or other intellectual or industrial property rights in the software or change any information, including statements regarding the confidentiality and secrecy of the software.
6.4 The supplier can take technical measures to protect the software. If the supplier has secured the software by means of technical protection, the customer will not be allowed to avoid or remove these measures.
6.5 The supplier shall guard the customer from any legal action based on the claim that the software infringes EU intellectual or industrial property, provided that the customer immediately informs the supplier in written form of the legal claim and leaves the handling of the case, including any settlements , entirely to the supplier.
6.6 The client shall give the required attorney's information and cooperation to the supplier, so that he can, if necessary, defend the case. This safeguard obligation shall be withdrawn if the infringement is related to changes in the software, the client himself, or third parties have caused.
7 Cooperation by the customer
7.1 The customer shall always provide the supplier with useful and necessary data or information for a proper implementation of the agreement and fully cooperate with him.
7.2 The customer is responsible for using and applying the software in its organization, the services to be provided by the supplier, as well as control and security procedures and proper system management.
7.3 If the necessary data for a proper implementation of an agreement is not timely, not in accordance with the agreement, or if the customer otherwise fails to meet his obligations, the supplier shall be entitled to suspend the execution of an agreement and charge a fee at his usual rates.
7.4 If the supplier's employees carry out work operations under the agreement at the location of the client, the client shall provide facilities desired by those employees, including - if applicable - a room with telecommunication facilities etc., for free. The customer shall indemnify the supplier against claims by third parties, including the employees of the supplier who suffer damages in connection with the execution of contract-related tasks, omissions of the customer, or of unsafe situations in its organization.
8 Time of delivery
8.1 All (delivery) dates stated by the supplier are determined on the basis of the information known at the moment of consenting to the agreement and shall be taken into consideration as much as possible; the mere fact of passing a (delivery) date shall not be in default of the supplier. The supplier is not bound to (delivery) dates that have occurred after the conclusion of the agreement and are beyond its control. If a deadline cannot be met, the customer and the supplier shall consult each other as soon as possible.
9 Cancellation
9.1 Each of the parties shall be entitled to rescind the contract only if the other party, after a proper and detailed written notice with a reasonable time period for remedying the failure, fails to fulfill essential obligations of the agreement .
9.2 The supplier may cancel the agreement, in whole or in part and without judicial intervention, by written notice with immediate effect in case the client declares bankruptcy or if his company is liquidated or terminated other than for the purpose of reconstruction or a merge of companies. The client – provisionally or not – is authorized to suspend the payment. The supplier shall never be obliged to pay any compensation due to this cancellation.
9.3 If the client, at the time of cancellation referred to in this article, has already received any performances concerning the execution of the agreement, these performances and the related payment are not subject to cancellation, unless the supplier is in default. Invoiced amounts, in connection with what has already been performed or delivered pursuant to the agreement, remain in compliance with the previous sentence and are to be paid immediately at the time of the termination.
9.4 The contract is valid for a minimum of two (2) years and will be automatically extended with another year, unless terminated by either party with a notice period of six (6) months.
10 Liability of the supplier; safeguard
10.1 The supplier accepts the liability for damages to the extent described in this article.
10.2 The total liability of the supplier for failure in the fulfillment of the agreement is limited to direct damages up to the amount of the price stipulated in the contract price (excluding VAT). If an agreement mainly represents a long-term contract with the duration of more than one year, the negotiated price will be put in the total of the fees (excluding VAT) for one year. By no means will the total compensation for direct damages exceed the amount of € 100,000 (one hundred thousand Euros).
10.3 The total liability of the supplier for death or personal injury damages or material damage to property shall in no case exceed € 500,000 (five hundred thousand Euros) per event. A series of events is regarded as one event.
10.4 The supplier's liability for indirect damages, consequential damages, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage arising from claims of customers, damages related to the customer's use of matters prescribed by the supplier, materials, or software from third parties, and damage related to the involvement of the client prescribing specific suppliers, is excluded. In addition, the liability of the supplier for the mutilation, destruction, or loss of data or documents, is excluded.
10.5 Apart from the cases mentioned in this article, the supplier holds no liability for damages, regardless of the grounds on which an action with claim insurance could be based.
10.6 The supplier's liability for failure to fulfill an agreement only applies if the customer immediately and properly notifies the supplier in written form, stating a reasonable period to correct the deficiency, and after that period the supplier continues to fail in fulfilling his obligations. The notice must contain a detailed description of the failure so that the supplier is able to effectively respond.
11 Force Majeure
11.1 Neither party shall be obliged to perform any obligation if prevented from doing so due to force majeure. Force majeure is also to be understood as a non-attributable inadequacy of the supplier's suppliers.
11.2 If the force majeure situation lasts for more than ninety days, the parties have the right to terminate the agreement. What has already been performed pursuant to the agreement will be cleared proportionately, so that neither party is indebted.
12 Outsourcing
12.1 The supplier shall be entitled to transfer his obligations with respect to this agreement to a third party. He remains responsible for the actions of such third party.
13 Applicable law and disputes
13.1 The agreements between the supplier and the customer shall be governed by German law and the EU General Data Protection Regulation. The parties agree to exclusive jurisdiction by a German court in terms of contracts.
14 Fees and payment
14.1 The client will pay for the use of OMD Go up to 12 months in advance, no later than 30 days after the official date of delivery and within 30 days after the start of each new period of 12 months.
14.2 The supplier is entitled to suspend the client's usage of OMD Go until full payment in respect of the SaaS services has been received.
14.3 If it turns out that the customer has wrongly requested support of the supplier and there is no error in OMD Go, the supplier can still charge the client for the emerged costs.
14.4 Unless otherwise agreed, a minimum of ten (10) resource licenses and two (2) planner licenses are billed monthly over the entire term of the contract.
14.5 The fee will be invoiced in advance and based on the number of users active in the previous month. In the first month, the minimum licenses are invoiced.
15 Software user rights
15.1 The supplier shall provide the client with the software user rights as specified in the agreement.
15.2 The user rights are not transferable. The client is not allowed to hire out or expropriate the software and the owners it is based on. Nor is he allowed to grant separate limited rights in any manner or for any purpose to any third party, without prior written approval of the supplier.
16 Management OMD Mobile
16.1 The client is responsible for managing the use of OMD Mobile. He is responsible for the implementation of procedures that ensure careful protection and backups of OMD Mobile and related data. The customer shall ensure timely installation of new versions of OMD Mobile.
17 Management OMD Scheduler
17.1 OMD Scheduler is using automatic planning algorithms. These algorithms are supported ‘'as is''. Customer specific activities for improvement of the performance and/or results of these algorithms and planning functionality, like changing settings and/or configuration, changing weighting factors, analyzing and advising about improvements for better results are not part of our standard support activities.
18 Execution of services
18.1 The supplier shall carefully execute the services in accordance with the established procedures and charges as specified in the agreement.
18.2 If it is agreed that the service will take place in stages, the supplier is entitled to postpone the start of services for the next phase until the customer has reported the results of the preceding phase in written form.
18.3 Geocoding and display of map material is usually outsourced to third parties and are included in the fee. Routing calculations are by default based on Euclidean distance.
19 Changes and additional work
19.1 If the supplier has performed beyond the substance or scope of the agreed services, at the request or with prior consent of the client, these activities or other services shall be reimbursed by the client with the usual rates of the supplier. The supplier is not obliged to follow such a request and may require a separate written agreement with the client for this purpose.
19.2 The customer accepts that any work or performance as referred to in this article can affect the agreed or expected time of completion of the services and the mutual responsibilities of the customer and the supplier.
20 Supplier obligations
20.1 The supplier agrees to provide maintenance and support on OMD Go during the term of OMD Go user rights. In the context of new versions of OMD Go, delivery is limited to new version modules that have been included in the user rights. New or different modules of OMD Go fall outside the scope of this agreement.
20.2 If the supplier considers it necessary, he shall correct imperfections by means of on-site support. This can take place only after an agreement with the client has been made.
20.3 The supplier provides maintenance and support during regular working days between 8:30 am and 5:00 pm of the supplier's country.
20.4 For significant deficiencies, a reaction deadline of two hours applies.
20.5 The supplier shall apply the solution of other deficiencies within reasonable time for future versions of OMD Go.
21 Client obligations
21.1 The client agrees to adequately educate all employees who use the software.
21.2 Support can only be requested by a maximum of two Maintenance Managers from the client.
22 Exclusions
22.1 Support does not include those services that result from causes not attributable by OMD Go. These causes not attributable by OMD Go include but are not limited to:
a) Accident, misuse, causes due to the malfunctioning of equipment or telecommunications, software interfaces that do not meet specifications of the supplier.
b) Improper installation by the client, or installation of equipment or system software that do not comply with the requirements of the supplier.
c) Modification or additions to the software that are not performed by the supplier or by supplier authorized third parties.
d) Other causes attributable by the supplier.
If the supplier carries out maintenance or other work in connection with the provisions of this article, he may charge the costs of that service or activities in accordance with his usual rates.
22.2 Maintenance and support is not included for the following:
a) Installation of new versions, releases, and updates of OMD Mobile on the equipment of the client. The supplier shall provide an installation procedure if it differs from previous installation procedures with each new version, new release, and update of OMD Mobile, which allows the Maintenance Manager to independently install the delivered software.
b) Any repair or reconstruction of files and other data,
c) Any conversion of data to new versions, releases, and updates.
d) Software that is not developed by the supplier.
e) Custom software developed by the supplier.
f) The adjustment of OMD interfaces to changes in the relevant third-party software.
Services related to concerns in this article will be charged by the supplier at the current rates of OMD.
23 Procedures
23.1 Regardless of any previously made telephone reports, any imperfections from the part of the client must be reported to the supplier by means of a written Incident Report (IR).
23.2 The customer appoints a Maintenance Manager. All communications regarding imperfections or matters relating to maintenance and support is performed between the supplier and the Maintenance Manager.
23.3 The communication between the client and the supplier about imperfections, maintenance, and support shall be in English.
24 SaaS services
24.1 The client is responsible for the administrative management of the user settings and the use of OMD Go. He shall also be responsible for trainings related to the usage of OMD Go for the end users. In the case of absent agreements, the client is required to install the required (support) software on his own, as well as set up, parameterize, tune and, if necessary, adjust the needed equipment for other (auxiliary) software and the operating environment, in order to achieve the desired interoperability.
24.2 The supplier shall not be obliged to perform data conversion.
24.3 The supplier shall perform the SaaS services only in the name of the customer. If the supplier, under authorized order from a government agency whether a request or in connection with a legal obligation, performs any activity including any information of the customer, its employees or users, all related costs shall be charged to the client.
24.4 The supplier may continue implementing the SaaS services with a new or modified version of the software. He is obliged to clearly communicate to the client any change in the process.
24.5 The supplier may wholly or partly shutdown OMD Go for preventive, corrective, and adaptive maintenance. He shall not prolong the shutdown for longer than necessary and, if possible, execute it outside office hours. Also, depending on circumstances, he shall start after notice has been given to the customer.
24.6 The supplier shall never be obliged to provide the client with a physical medium under the SaaS and maintain the software to be used by the service provider in the context of SaaS.
24.7 The starting point of the SaaS service is the output of the router from the data center, which is used by the supplier for the SaaS services. The client's connection to the Internet and the required hardware and software needed to use the SaaS service are not part of this agreement.
24.8 The supplier is obliged to provide an uptime guarantee. The uptime calculation is based on the following:
Within the framework of the regular working days from the client's country, the average uptime of 99,7 % per month applies.
Uptime is defined as:
The availability of the OMD Scheduler and OMD Connector using the following formula:
Uptime percentage = (Total hours OMD Scheduler and OMD Connector are available) / (Total number of hours per month subtracted by the number of hours in connection with scheduled maintenance outside of office hours)
24.9 The supplier uses an objective monitoring tool that measures the availability of the OMD Platform and will send the client an availability report if requested.
24.10 The supplier shall not be responsible for checking the accuracy and completeness of the results of the service and the data generated while using the service. The client shall regularly check the results of the service and the data generated on his own.
24.11 The customer warrants that all requirements for the lawful processing of personal data entered into OMD Go by himself are being met.
24.12 Full responsibility for the data generated while using the service lies with the client. He shall guarantee the supplier that no data is unlawful and does not infringe the rights of third parties. In addition, he shall indemnify the supplier against claims by third parties, for any reason whatsoever, in relation to the processing of these data or the execution of the agreement.
24.13 Under the legislation concerning the processing of personal obligations, the client has obligations to third parties, such as the obligation to provide information, as well as access, and to correct or delete personal data of the persons involved. Responsibility for compliance with these obligations lies fully and exclusively with the client. The parties agree that the supplier fulfills the role of a processor regarding the processing of personal data in terms of the Data Protection Act. The supplier shall, as far as is technically possible, assist in fulfilling the client's obligations. The costs associated with these tasks are not included in the agreed upon prices and fees of the supplier and must be fully paid for by the client.
25 Data protection and data security
25.1 Both contracting parties shall, to the extent applicable, observe the data protection regulations that are valid in the EU in particular, and will require their employees involved in the contract to adhere to data secrecy, unless they are already generally obligated accordingly.
25.2 In addition, both contracting parties shall observe the provisions applicable to the data center and to the contract data processing, and shall take the technical and organizational measures necessary to protect personal data pursuant to article 32 of the GDPR.
25.3 If the client – either themselves or via OMD – collects, processes, or uses personal data, then that client is responsible for ensuring that they are entitled to do so under the applicable regulations, in particular those concerning data protection, and, in the event of a breach of such regulations, the Client will exempt OMD from all third-party claims.
25.4 It will be made clear that the client remains the "owner of the data", both in general terms in the contractual relationship and as defined by data protection law. The client has sole entitlement with regards to the right of disposal and the ownership of all customer-specific data (input data, processed data, stored data). OMD carries out no controls whatsoever over the data and content stored for the customer with regards to the legal admissibility of collection, processing, and use; this responsibility is assumed exclusively by the client.
OMD is only entitled to process and / or use the customer-specific data exclusively in line with the instructions of the client (e.g. to comply with obligations regarding deleting or blocking) and within the scope of this contract. OMD is prohibited from making the customer-specific data accessible to third parties in any way without the prior written consent of the client. This also applies if the customer-specific data is changed or supplemented in this respect. On the other hand, for the time this contract is valid, OMD is entitled to process and use the client's data, provided this is carried out in line with data protection regulations.
25.5 In principle, the client is not entitled to request access to facilities with contracted software and other system components. This shall not affect the access rights of the client's data protection officer upon prior written announcement. The officer shall be entitled to check compliance with the requirements set out in the annex to article 32 of the GDPR. The officer will also be able to check whether OMD's handling of personal data is in accordance with other legal and contractual obligations within the scope of the operation of the contractual software under this contract.
25.6 With regards to all documents, information, and data that the contracting parties have obtained in the process of performing this contract, and which has been identified as confidential, the contracting parties shall only use these documents, information, and data to perform this contract, and, if such files are not in the public domain, the contracting parties will keep them confidential. The contracting parties shall impose a corresponding obligation on the employees of theirs who are affected by this contract. Upon expiry/termination of this contract, these obligations shall also remain in force for a further two years (calculated from the end of the contract).
25.7 OMD may subcontract but shall impose a corresponding obligation on the subcontractor.