Supplementary Terms and Conditions of GlobalLogic Germany GmbH for the provision of Third-party Software
Third-party Software supply and related services
- Scope of application
These Supplementary Terms and Conditions (“GTC”) apply to contracts between GlobalLogic Germany GmbH (“GlobalLogic”) and its customers (each one of them, “Client” or “Customer”) for the supply of standard software and licenses (“Third-party Software” or “Software”) which GlobalLogic obtains from a third party who supplied the Software to Global Logic, usually the manufacturers of the software, (collectively, the “Manufacturer”).
- Contract conclusion
The obligation of GlobalLogic to provide the Software arises exclusively to the extent that a corresponding contract is concluded between GlobalLogic and the Client, which must at least be in text form (“Agreement”).
- Provision of Services
3.1 Insofar an Agreement is entered into by the parties and in such Agreement is agreed that GlobalLogic provides consulting, training or other services (“Services Agreement”), those services shall be subject to the terms of such Services Agreement and provided by qualified personnel with due diligence, taking into account the state of the art. However, GlobalLogic assumes no warranty or liability for a specific success of the services.
3.2 Software is generally delivered by enabling a download by way of remote data transmission. The Customer must ensure that the appropriate Internet access is available and that the hardware and software environment requirements communicated to him are met. Furthermore, certain cooperation by the Customer, such as the establishment of an electronic customer account, may be required. GlobalLogic does not supply in principle its own documentation in relation to Third-party Software. The Customer has to fall back in this respect on the Manufacturer documentation, in the form as the Manufacturer makes it available. A delivery of the source code does not take place, unless otherwise agreed.
- Warranty
4.1 Subject to the following provisions, the scope of warranties provided by GlobalLogic for the Third-party Software shall correspond to the warranties as provided by the Manufacturer to GlobalLogic, provided that if the Manufacturer does not provide a warranty that complies with the legal minimum requirements, the statutory warranties shall apply.
4.2 Claims for defects shall be excluded in the event of improper use by Customer, failure of components of the system environment, non-reproducible software errors or software errors that cannot otherwise be proven by the Customer or in the event of defects that arise due to unusual external influences that were not expected under the Agreement (including these GTC). This also applies in the event of subsequent modification or repair by the Customer or third parties, unless such modification or repair does not complicate the analysis and elimination of a defect.
During the term of the respective warranty period (clause 4.5), GlobalLogic has the right, at its discretion, to deliver new Software free of defects or to remedy the defect by rectification. In the event of rectification, the following provisions of clauses 4.3 and 4.4 apply.
4.3 If the parties have entered into an agreement regarding the provision of support services with respect to the Software which includes the elimination of defects, the relevant provisions under that agreement shall apply mutatis mutandis to the manner of reporting the defect or error, its handling and elimination (rectification) and the cooperation required from the Customer.
4.4 Unless otherwise agreed, and during the respective warranty period, the Customer shall immediately notify any defects in the Software in a comprehensible and detailed manner in text form / by email, stating the information required for defect detection and analysis. In particular, the work steps that led to the occurrence of the defect, the appearance and the effects of the defect are to be indicated. In addition, the Customer must also support GlobalLogic as far as necessary in the elimination of faults.
4.5 The warranty period for material defect claims corresponds to the term of the warranty granted by the Manufacturer provided that in no event the warranty period shall be less than one (1) year from the date the Software was delivered to the Customer.
4.6 The Customer undertakes and warrants that it, as well as its affiliates, employees, directors and contracting parties will at all times comply with terms and conditions imposed by the Manufacturer, which have been made available to the Customer.
- Support
The following terms shall apply in case Customer and GlobalLogic have entered into a Services Agreement pursuant section 3.1 and during the term agreed in such Services Agreement:
5.1 To the extent and as long as the provision of support services has been contractually agreed and no other provisions have been contractually agreed, the support services shall - during the agreed term - include the elimination of errors or other malfunctions in the form described below (hereinafter referred to as “fault management”) and the delivery of updates and upgrades for Software purchased from GlobalLogic.
5.2 GlobalLogic shall, within the scope of the fault management, during its usual business hours receive proper fault reports from the Customer under assignment of an identifier and carry out the agreed measures for the analysis and rectification of faults. At the request of the Customer GlobalLogic shall confirm the receipt of the fault report under communication of the assigned identification. The fault report is made via a ticket system provided by the Customer, otherwise by email to an email address to be named by GlobalLogic. The fault report must contain a comprehensible description of the fault. GlobalLogic can specify a certain format for fault reports. The Customer must ensure that the appropriate Internet access is available and that the hardware and software environment requirements communicated to the Customer were met.
5.3 GlobalLogic will provide the Customer with measures to avoid or rectify a properly reported malfunction, such as instructions for action or changes to the Software, or will send the malfunction report together with its analysis results to the distributor or Manufacturer of the Software with the request for a remedy. The support service can also be implemented with the help of remote maintenance access. For this purpose, the Customer shall provide a corresponding secure access. If contractually agreed, the Customer may also be granted direct access to the Manufacturer's support.
5.4 The Customer shall immediately implement the measures to avoid or rectify malfunctions and immediately report any remaining malfunctions to GlobalLogic again.
5.5 The Customer must always ensure that its data is properly backed up, in particular prior to the implementation of fault management measures or the installation of updates or upgrades.
5.6 GlobalLogic will process proper fault reports within a reasonable time. However, the Customer acknowledges that certain malfunctions can only be remedied by the Manufacturer of the Software and, if applicable, only within the scope of a general Software update provided by the Manufacturer.
5.7 Further services for incident management and with regard to the implementation of measures for incident prevention/removal, such as different response times or lower response times or preventive monitoring and investigation, shall be agreed in writing in a separate contract, e.g. in a Service Level Agreement (SLA).
- Liability
For any claims for damages, warranties, indemnification or compensation, regardless of the legal reason, GlobalLogic shall have liability only in accordance with the following provisions:
6.1 GlobalLogic is liable without limitation a) for damages caused intentionally or by gross negligence by it and its legal representatives and agents, b) for damages for which liability is mandatory under the Product Liability Act and c) for damages resulting from injury to life, body or health for which GlobalLogic, its legal representatives or agents are responsible.
6.2 Except in the cases according to clause 6.1, GlobalLogic is liable in case of slight negligence only if GlobalLogic, its legal representatives or agents have violated an essential contractual obligation (so-called cardinal obligation), the fulfillment of which makes the proper execution of the contract possible in the first place or the violation of which endangers the achievement of the purpose of the contract and on whose compliance the Customer may regularly rely. In the case of damages to property and financial loss, this liability shall be limited to the foreseeable damage typical for the contract.
6.3 Liability for lost profits or other remote consequential damages is excluded.
6.4 Liability according to clause 6.2 is limited to the payments received by GlobalLogic under the contract, in respect of the Software, during the contract year in which the damage occurred and up until the point in time when the damage occurred. The contracting parties may agree in writing on further liability upon conclusion of the contract, usually against separate remuneration.
6.5 In the event of loss of data, GlobalLogic is liable in accordance with clause 6.2 and only for that expenditure which would have been necessary for the restoration of the data in the event of proper data backup by the Customer.
6.6 For claims for reimbursement of expenses of the Customer against GlobalLogic, the provisions of this clause 6 apply accordingly.
6.7 Customer shall indemnify and hold harmless GlobalLogic for any losses, damages, claims and other disadvantages suffered by GlobalLogic as a result of a breach by Customer of its obligations pursuant to clause 4.6, clause 6, clause 8 or as a result of an infringement of intellectual property rights of the Manufacturer or the Software distributor by Customer or any of its affiliates, employees, directors, or contracting partners in relation to the Software, or as a result of any intentional or grossly negligent breach of any other obligation pursuant to the Agreement or the GTC.
- Rights of use, property rights of third parties
7.1 Unless otherwise expressly stipulated in these GTC or in the Agreement, the respective terms and conditions of the Manufacturer apply to the Third-party Software with regard to the rights of use, their type, duration and conditions as well as the other license regulations, which are described in more detail in the Agreement. A link to Manufacturer’s terms and conditions will be included in the relevant Agreement.
7.2 Furthermore, to the extent allowed by the terms and conditions of the Manufacturer, GlobalLogic grants the client a non-exclusive, non-transferable right for an unlimited period of time to use work results for the contractually intended purpose, insofar as work results are created within the scope of its own services.
- Confidentiality
8.1 Either GlobalLogic or Client (the “Discloser”) may disclose to the other party (the “Recipient”) information pertaining to these GTC, the Agreement or the agreed services that the Discloser considers and holds as proprietary and/or confidential (“Confidential Information”). GlobalLogic and the Client undertake to treat as confidential the information received or accessible in each case, insofar as this is either marked as confidential or it is clear from the circumstances that the information is of a confidential nature. In particular, GlobalLogic and Client will not pass on Confidential Information to third parties or make it accessible in any form.
8.2 GlobalLogic is, however, entitled to disclose Confidential Information to subcontractors, affiliated companies or third parties (in particular the Manufacturer), provided this is in connection with the provision of these GTC, the Agreement or the agreed services. In such cases, GlobalLogic must ensure that these companies are equally obligated to treat the information received confidentially.
8.3 Information in the sense of this clause 8 includes all types of information (technical, commercial and company-related information, documents, data sets, meeting contents, presentation documents, etc.), whether in written, oral, electronic or other form.
8.4 Confidential Information does not include information that: (i) was known to Recipient without restriction before receipt from Discloser; (ii) is, or subsequently becomes, publicly available through no fault of Recipient; (iii) is rightfully received by Recipient from a third party without a duty of confidentiality; or (iv) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information. The recipient shall also be entitled to disclose Confidential Information if ordered to by a court or a public authority.
- Data Protection
9.1 The parties shall observe the applicable data protection regulations, in particular the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR). GlobalLogic will oblige the persons working on its side to comply with data secrecy and confidentiality in the sense of Article 28 paragraph 3 b) GDPR.
9.2 Insofar as GlobalLogic processes personal data of the Customer, GlobalLogic will use or handle the personal data only within the scope of the respective Agreement and according to the instructions of the Client in accordance with the provisions of data protection law. If necessary, the contracting parties will conclude a separate agreement on commissioned data processing.
- Other Provisions
10.1 These GTC and any related Agreement or Services Agreement, are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties. No modification of or amendment to these GTC or the related Agreement or Services Agreement will be effective unless in writing and signed by each of the parties. This shall also apply to this requirement of the written form itself.
10.2 Client may only transfer the rights and obligations resulting from the contract to third parties with the prior written consent of GlobalLogic. Client is not entitled to assert a right of retention or set-off against any due amount to GlobalLogic, unless the Customer’s claims are confirmed by a court or undisputed.
10.3 If a provision of these GTC is legally invalid, the remainder of these GTC remains in effect. However, the contracting parties undertake to immediately replace the legally invalid provision by a legally permissible provision which comes as close as possible to it in economic terms.
10.4 These GTC shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of jurisdiction is Berlin.