Terms and Conditions of anthesis GmbH

1. Scope

These conditions apply to all individual contracts between anthesis and customer and form together with them the master contract.

Conditions and regulations which contradict to these terms and all conditions and regulations that are not part of these terms and conditions – in particular the terms and conditions of the customer – are not part of the contract between anthesis and the customer, even if these conditions are part of the customers purchase order and anthesis executes such an order without expressly rejecting such conditions. This version replaces all previous versions of the terms and conditions.

2. Licensing Regulations for the Software SAP Business ByDesign (ByD)

2.1       Obligations

2.1.1     The customer contributes gratuitously to performing the contractual services (including troubleshooting), in particular by performing the services specified in the contract and these conditions.

2.1.2     The customer agrees to the additional obligations and conditions laid down in the ByD materials that can be downloaded in the business center. The customer shall appoint a contact person and a deputy. The persons nominated are responsible for all matters related to the execution of the contract and serve as well as an appropriate and competent system manager. The contact persons coordinate the measures which are necessary to clarify and resolve the error messages at the customer site. They are available for anthesis regarding inquiries and information relating not only to the software subject, but also on the underlying operating systems, networks, dial-up components, SAP systems and other software, hardware and system environment. They are solely entitled to deliver error messages towards anthesis or SAP.

2.1.3     The customer provides anthesis timely without being asked all the necessary information to carry out the contractual services. This obligation also extends to the provision of customer data – depending on the needs either test data, as well as real data. The data shall be provided in adequate quality and quantity, required by anthesis for carrying out the contract. Data storage media and data format are to be defined case by case.

2.1.4     The customer ensures that during normal business hours anthesis always has access to any premises and access to the customer’s hardware and software and to the system administration and data resources, to the extent necessary to carry out the contractual services. anthesis will adhere to the house rules of the customer. It is the responsibility of the customer if the provision of services is disrupted or delayed by such rules, e.g. as by safety regulations or company holiday.

2.1.5     The customer agrees that the provision of SAP ByD Solutions, SAP ByD Services and ByD materials for the customer can be directly carried out from SAP on behalf of the partner. The customer agrees that for the provision of SAP ByD Solutions, SAP ByD services and related support for the customer SAP may contact the customer and communicate with it directly.

2.1.6     Failure analysis, processing and disposal are only possible if the customer provides qualified error messages through the designated system managers and their deputies, that always contain in particular:

  • Information about soft and hardware environment of the customer; status of the installation and changes of the installation/configuration (in case anthesis does not already know). These may also comprise changes in the systems, which are linked to the software or are to be driven by this.
  • Detailed error descriptions containing corresponding error codes, error log files, configuration files, etc.

2.1.7     If the customer does not meet his contractual obligations to cooperate not, not properly or not in due time, anthesis may charge any resulting costs or additional expenditure to the current remuneration rates.

2.2       Usage Rights

2.2.1     The customer is entitled to use SAP ByD Solutions OnDemand for processing of real data from the time (productive start) after anthesis or the customer themselves have requested the production start at SAP and SAP has reviewed this and released.

2.2.2     anthesis grants the customer the right to provide remote access and remote use of SAP ByD Solutions OnDemand to persons authorized (defined users) in accordance with the relevant documentation for SAP ByD Solutions. And exclusively for the purpose and to the extent, as it is needed for accessing and entering data, managing, processing of own customer data and data from its affiliated companies (subsidiaries in which it owns more than 50% of voting rights) for internal operational purposes of the customer and its affiliates only.

2.2.3     Furthermore anthesis grants the customer the usage of the ByDesign documentation that SAP provides  through SAP ByD Solutions OnDemand or in the business center, and all related materials or software products that SAP provides as part of the SAP ByD Solutions OnDemand, for the sole purpose of the permitted usage of SAP ByD Solutions OnDemand and only to the extent necessary.

2.2.4     The customer is not entitled to license SAP ByD Solutions OnDemand and ByD materials to a third party, nor sell, lease, rent, or outsource this to make it otherwise available, except for the defined users. The customer is liable for his own acts and omissions as well as for acts and omissions of the customer affiliates and third parties, which access SAP ByD Solutions OnDemand.

2.2.5     To the extent necessary for the usage of the SAP ByD Solutions OnDemand, the customer is allowed  to make copies of the software SAP ByD Solutions OnDemand, as long as these copies are only temporary copies in the main memory of the companies´ systems.

2.2.6     The customer agrees that SAP is allowed to view and check the license agreement between anthesis and the customer.

2.2.7     The customer is obliged to comply with the terms and conditions for third party licensees of SAP, which SAP publishes respectively.

2.2.8     All claims from or with respect to the existing contractual relationship with anthesis for ByD are exclusively to be enforced against anthesis and no other party, including but not limited to SAP or to SAP SE.

2.3       Change of Fees/License Prices

anthesis is entitled to increase the agreed prices for the existing orders for SAP ByD solutions taking into account a 75-day advance notice to the customer, while referring to the change in the average gross monthly earnings of employees in trade, financial intermediation for Germany (as evidenced by the Federal Statistical Office by index). Such an increase will be effective with the start of the next renewal period of the order. The first price increase is limited to the percentage by which the index has cumulatively increased, based on the value of the index on the date of the order. All subsequent price increases are limited to the percentage by which the index has since increased cumulatively, based on the index status at the time of the previous price increase. In the event of a price increase under this paragraph, the customer is entitled to terminate the respective order that is affected by the increase within a period of 15 days starting with the date when the customer got notice of the price increase. The termination shall take effect at the end of the term of the order.

2.4       Support Services/Error Messages

2.4.1     Incidents shall be reported via the integrated help functionality, that SAP provides as part of the SAP ByD Solutions.

2.4.2     The following incident priorities apply:

Incident priority Definition Support availability Support language Initial response time
Very high The problem has severe impact on critical business processes and urgent tasks can not be performed. The incident requires immediate processing, as it may cause substancial losses. 24 hours x 7 days/week English, except Monday to Friday from 9am to 5pm local time: national language 4 hours
High One business process is disrupted and necessary tasks can not be performed. The incident requires immediate processing, because it may impact all productive business processes. Monday to Friday from 9am to 5pm local time German

(at customer site used language)

24 hours
Medium One business process can not be used as expected. The impact on productive processes is low. Monday to Friday from 9am to 5pm local time German

(at customer site used language)

3 days
Low The incident causes no or few disturbance of business processes. Monday to Friday from 9am to 5pm local time German

(at customer site used language)

none

2.4.3     SAP is entitled to permanently monitor the system as part of quality assurance by means of the so-called Health Check and to add additional resources in critical situations for project ensurance and quality management. The customer agrees with these measures and will adhere to the required process execution and usage of tools, as defined by SAP including a respective activation if necessary.

2.4.4     Questions about applications or the applicability and execution of certain functions within ByD are not accepted as incident or support case

2.4.5     If remote access to the customer´s systems from anthesis or SAP is required in order to provide support services, the customer gives his permission for such a remote access and designates a contact person who grants the necessary access rights.

2.4.6     Customer must designate a key user, who is responsible for the handling and management of business-related tasks, in particular: the support of the end-user and managing the support cases, the contribution to supporting efforts and delegation of business-related tasks among the end-users, control and monitoring of links to third-party systems, the testing of core business processes and customer-specific enhancements in the case of system updates or upgrades, and supporting the possible adaptations of the ByD Solution. A detailed description of the key user tasks can be found within the business center of the SAP.

2.5       Maintenance

2.5.1     Maintenance will be regularly performed on Sundays, between 2:00 pm and 5:00 pm local time.

2.5.2     Comprehensive upgrades are scheduled six times a year and will be conducted from Friday 10:00 pm to Monday 3:00 am local time. The customer will be informed by SAP well in advance by e-mail or other electronic means.

2.5.3     The justified interests of the client are taken into account when planning the maintenance window.

2.5.4     The monthly availability for SAP ByD is 98.5% excluding maintenance windows.

2.5.5     The availabilty is measured at the external ports of the firewall of SAP´s data center.

2.5.6     Information on the actual availability during the preceding period will be provided to the customer retrospectively. If the availability was below 98.5% in a single calendar month, the following service level credit is applied to the next quarterly statement in favor of the customer: For each percentage point by which the actual availability in a single month fell below the agreed availability of 98, 5%, the discounted monthly total fee for the following month will be reduced by 10%. However, the rebate is capped at 100% of the discounted payable monthly total fee.

2.5.7     The service level credit represents the sole and exclusive compensation claim of the customer in terms of non-compliance with the agreed system availability.

2.5.8     The service level does not apply for test, demo or trial systems.

2.6       Property Rights

2.6.1     No proprietary interest or claims for SAP ByD Solutions or SAP ByD Services will be transferred to the customer. All claims and rights to SAP ByD Solutions, SAP ByD services, supplies, work results, the technical know-how and the related trade secrets, in particular copyrights, rights to inventions and other intellectual property rights, fall exclusively to anthesis or SAP or its licensors. This includes in particular rights to all works that have emerged from anthesis or SAP or its agents or subcontractors based on specifications or with the assistance of the partner.

2.6.2     All license rights, which are not explicitly granted to the customer are reserved to SAP, its licensors and anthesis.

2.7       Obligation to Return

After commencement of the termination of an order the customer is obliged to return all BYD materials to anthesis and / or to SAP. The customer gives his consent that anthesis and SAP are entitled to remove all ByD materials – after adequate request of SAP or anthesis – from the facilities of the customer and to this end get access during the regular business hours to the facilities of the customer (the location at which the ByD materials are stored).

3. Regulations for Implementation Services and Other Services

3.1       Validity of Quotation

If not otherwise stated in writing, the quotation will be valid for 30 days starting with the creation date.

3.2       Definition of Scope of Work

The under the contract negotiations by the two parties discussed and prepared specification of services and delimitation define the scope of work agreed between the parties.

3.3       Obligations

3.3.1     The customer contributes gratuitously to performing the contractual services (including troubleshooting), in particular by performing the services specified in the contract and these conditions.

3.3.2     The customer shall appoint a responsible project leader and a team of key-users, that support the realization of the project. The effort will be done at customer´s expense.

3.3.3     The customer has sole responsibility for the roll-out and training of his end users by its key users. The effort will be done at customer´s expense.

3.3.4     According to the statements by anthesis the customer will create customized reports and forms.

3.3.5     The customer will provide the data to be migrated from the old systems into the Excel templates provided by anthesis

3.3.6     The customer will test the system in detail and provide feedback to anthesis.

3.3.7     The customer finally approves the processes.

3.4       Amendments / Change Request

3.4.1     The customer is entitled at any time during the implementation of the project until completion to express change requests (modification and extension requests). anthesis will notify the customer within a reasonable period, whether and to what extent the implementation of the services will be affected in terms of time and financial terms and whether the changes are technically feasible. The customer will inform anthesis within five working days, whether they agree with the cost and time line-up; if there is no reaction or feedback from the customer within this period, the cost and time line-up is deemed as accepted and anthesis will perform the desired changes or extensions under this agreement. anthesis points out that a rapid response of the customer is essential in order o avoid project delays and possible additional costs by standstill times.

3.4.2     If the review of the change request by anthesis exceeds one man-day, the customer is obliged to pay for this additional effort if anthesis demands that. Optionally anthesis will create a quotation and send it to the customer.

3.4.3     anthesis is only committed for the implementation of change requests if an agreement on the financial, time and technical master conditions with the customer is made. If anthesis suggests amendments on its own, the customer will be notified within a reasonable time, whether it wishes to carry out this change request. However anthesis is entitled to carry out the changes without explicit consent of the customer, if this leads to neither technical nor to time or financial disadvantages for the customer or if the modifications and extensions are needed because the customer information was incorrect or incomplete, and this could be recognized only in the course of the project. anthesis will inform the customer accordingly before implementing the changes and enhancements. If in other cases the parties came to no agreement on changes and enhancement requests, the execution of the contract shall remain unaffected.

3.4.4     As long as no agreement on the change request has been made or while SAP has not responded, anthesis will continue the commissioned service provision. However, the customer can demand that anthesis suspends the provision until an agreement is achieved. In this case, any agreed delivery times are extended by the period of suspension.

3.4.5     If it is found during the execution of the contractual services that they need to be changed or re-rendered because of false or incomplete information provided by the customer, the customer bears the associated costs of anthesis and other resultant extra work that will be billed according to the current remuneration rates.

3.4.6     If the change requests desired by the customer lead to a significant extension of the project (more than 15% of the originally planned project duration), so anthesis can make the provision of the services dependant by the conclusion of a separate second project agreement, which optionally may be carried out after completion of the current project.

3.4.7     All notices under the above mentioned regulations (Change Request, cost and time lineup, consents etc.) can be made in writing or by email.

3.5       Project Meetings and Minutes

The parties will regularly agree together on the status of the projects and the way forward and record the main points in writing.

3.6       Acceptance

3.6.1     After anthesis having notified the customer about the acceptability of the delivered service, the customer will notify in writing within 15 working days whether it accepts the work, or otherwise state the reasons why it does not  accept the work.

3.6.2     The implementation shall be deemed accepted and carried out as properly and free of defects if the customer uses the provided system for a period of more than 5 days in the production environment without written notification to anthesis.

 4. General Regulations

4.1       Conclusion of Contract

The master contract will be concluded by mutually signing the individual contract.

4.2       Dates and Timelines

4.2.1     Dates and timelines are only binding and relevant for the fulfillment of the contract if this has been explicitly agreed between anthesis and the customer.

4.2.2     In the case of non-compliance with non-binding data or schedules anthesis only is in default if there is a written dunning by the customer. In this dunning, the customer must set and grant a reasonable extension of time for provision of the service.

4.3     Renumeration

4.3.1     Unless otherwise expressly and in writing agreed, anthesis settles at cost. If a total sum is defined as compensation, then this is only an estimate if not otherwise agreed in written form. Unless otherwise agreed anthesis bills once a month the services delivered in the previous month.

4.3.2     The renumeration is always subject to statutory value added tax. Invoices are payable at once after receipt of the invoice due net if not otherwise agreed.

4.4     Technical Requirements; System Environment

The technical requirements for the proper functionality of the software are regulated in the quotation or within the presentation of the quotation. The customer is responsible for establishing and maintaining these conditions and will be made at its own expense.

4.5     Use of Logos

The customer is not entitled to use the trademark and logo of anthesis or SAP in any form, unless the use was explicitly authorized in writing by the relevant rights owner.

4.6       Term and Termination

4.6.1     The master contract has a minimum duration for a period which is determined in the individual contract.

4.6.2     Afterwards the runtime automatically extends for periods of twelve months each.

4.6.3     Each party is entitled to terminate the contract with a notice period of 120 days to the end of the initial term or the respective extension period in writing.

4.6.4     Both parties are entitled to terminate the agreement for cause.

4.7     Indemnity

4.7.1     Indemnity by anthesis

If a third party enforces claims against the customer and alleges that the SAP ByD Solutions, ByD materials or services infringe intellectual property rights of the third party, anthesis – subject to the conditions laid down in section 4.9 – will either defend or settle such claims at its own expense.

This applies only if

  1. the customer informs anthesis immediately and in detail in written form about the claim,
  2. the customer entitles anthesis to independently lead judicial and extrajudicial procedure with the third party
  • the customer provides reasonable support, so that anthesis can defend the claim
  1. the customer does not admit any infringement of intellectual property rights against the third party and does not agree to dispute resolution or comparing claims without prior consent of anthesis and
  2. if anthesis is liable for the infringement of intellectual property rights of a third party.

4.7.2     Indemnity by the customer

The customer is liable to anthesis for any damages, that arise to anthesis due to any non-conforming use of the SAP ByD Solutions, ByD materials and services or those requirements or guidelines for networks that are connected to SAP ByD Solutions, regardless of whether these damages are caused by the behavior of customers, its employees or a third party who uses the password of the customer. This does not apply if the customer can prove that he is not responsible for the damage in question.

4.8       Defects of Deliverables and Defects of Title / Warranty

4.8.1     anthesis initially provides warranty for defects of deliverables and defects of title by further fulfillment. In the case of defects, anthesis may, at its sole discretion, remedy the defects through troubleshooting or delivery of a debugged program version or of other debugged work results. If the contractual use is restricted due to defects of title (e.g. the fact that third parties claim rights to the software), then anthesis will ensure the contractual use by defense or settlement of such rights or by amending the software or other work results. anthesis can lead the judicial or extrajudicial dispute for the customer against the third party on their own. The customer shall support anthesis to a reasonable extent and free of charge.

4.8.2     The customer also has the right to withdraw from the contract after expiry of an acceptable deadline, that optionally allows several attempts for further fulfillment. Paragraph 4.9 shall apply for compensation and reimbursement. Customer shall have no further claims in case of a defect.

4.8.3     Proper performance of duties by anthesis in the case of defects assumes that the customer reports the errors immediately in writing and with a precise description of the errors by the project manager or the managers or their representatives, and requires the customer to contribute to the removal of defects to the extent applicable. In case of defects of title it is mandatory that the customer immediately informs in writing anthesis about  claimed rights of third parties against the customer and that the customer passes all necessary information and data to anthesis.

4.8.4     anthesis will assist the customer in troubleshooting even if it is not proven that it is the fault of the deliverables and services of anthesis. If in the course of troubleshooting it remains unproven that it is the fault of the deliverables and services of anthesis, then anthesis will charge the customer for the additional effort. anthesis emphasizes in this regard once again the need of appropriate trainings of the project manager and system administrator.

4.8.5     There are no obligations of anthesis in case of defects of deliverables and defects of title if the contractual items have been changed without the consent of anthesis and the customer does not prove that the defect of deliverables or defect of title is not due to this change. The same applies if the customer makes customizing settings without the consent of anthesis. Furthermore anthesis provides no guarantee, as long as the customer uses the contractual items in contrary to the usage restrictions mentioned in the project quotation or service list.

4.9       Limitation of Liability

4.9.1     In all cases of contractual and non-contractual liability, the parties shall pay damages or compensation for wasted expenditures only:

4.9.1.1  In full, in the case of intentional causation, and in the case of gross negligence on the part of an employee or senior staff.

4.9.1.2  in all other cases: only from breach of an essential obligation if thereby the purpose of the contract is endangered.

4.9.2     In the cases according to paragraph 4.9.1.2 compensation is limited to 200,000 € per event in each individual case and limited to € 500,000 per year in total during the term of the contract on SAP ByD Solutions.

4.9.3     All claims against anthesis made for damages or replacement of futile expenses expire within two (2) years from the date on which the customer has become aware of the damage. Incidentally, these claims expire after three (3) years independent of whether the customer becomes aware of them.

4.9.4     The limitation of liability in accordance with paragraph 4.9.1 to 4.9.3 shall not apply in the case of a person injury, fraudulent concealment of defects and in cases of liability under the Product Liability Act.

4.9.5     The above mentioned  limitations of liability shall also apply to claims against employees, subcontractors or attorneys of anthesis.

4.10      Secrecy/Confidentiality

4.10.1   The parties undertake to cooperate in good faith and to refrain from anything that the purpose of this agreement is contrary.

4.10.2   The documents passed to the other party and marked as proprietary or confidential may be used solely for the purposes of this contract. They shall be treated as trade secrets. Access shall be granted only to employees who need to know this information and must not be disclosed to third parties. The above confidentiality obligation does not apply, if this information and knowledge,

  • were lawful in possession of the receiving party prior to disclosure and without obligation of confidentiality, or
  • has been published without the assistance of the other party or otherwise has become generally known through no fault, or
  • – after completion of this contract – have been lawfully transmitted by one or more third parties without confidentiality obligation, thus without breach of this agreement by the receiving party, or
  • has been approved in writing by the disclosing party to the other party, or
  • has been released without corresponding obligations and restrictions by the disclosing party to a third party, or
  • are well known, or
  • have been independently elaborated by the receiving party.

4.10.3   The confidentiality obligation remains for a period of two years after the termination of this contract.

4.11      Customer Data

4.11.1   anthesis is liable for data loss (except for willful actions) only if the customer periodically performed system checks and backups (at least once a day and before any intervention such as installing new programs or program versions) and only if the data is reproducible from datasets kept in machine-readable form with reasonable effort.

4.11.2  anthesis and SAP are not responsible for ensuring that the data preservation they have undergone complies with regulatory or legal requirements that have to be followed by the customer.

4.12      Data Privacy

anthesis takes all technical and organizational measures that are required to comply with the requirements of the Federal Data Protection Act.

4.13      Changes of Conditions/Contracts

Any changes or amendments of this agreement require the written form to become effective. The Disclaimer of this requirement needs the written form.

4.14      Place of Jurisdiction

Place of fulfillment shall be the headquarters of anthesis GmbH. Place of jurisdiction for all disputes relating to the contractual relationship is – as long as the customer is a merchant, legal entity under public law or owns public law special fund or is without jurisdiction domestically – the seat of anthesis GmbH.

4.15      Applicable Law

4.15.1               German law is applicable exclusively as well as the exclusion of the UN Convention on Contracts for the International Sale of Goods.

4.15.2   Should this contract have been translated into another language, then the German version supersedes in any case of deviations from the German version or if there are any uncertainties.

4.16      Severability Clause

4.16.1   Should any provision of this agreement prove to be ineffective or unenforceable for other reasons than those mentioned in §§ 305-310 BGB, then this shall not affect the validity of the balance of the agreement, and this agreement shall be construed as if such ineffective or unenforceable provision had never been contained herein, as long as there exists no unacceptable reason for one of the parties.

4.16.2   Both parties will replace the ineffective provision by an effective provision that corresponds from a legal and business perspective to the ineffective provision and to the entire purpose of the agreement.

4.16.3  Both parties have knowledge of the jurisdiction of the Bundesgerichtshof, where the severability clause only reverses the burden of proof. It is the explicit intention of both parties to keep the effectiveness of the remaining provisions of this agreement under all circumstances and therefore waive § 139 BGB.