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Software Maintenance Agreement

Software Maintenance Agreement

between

client

- hereinafter referred to as "client" -

and

alkima LTD, Centris Business Gateway, Level 2M, Triq Is-Salib Tal-Imriehel, Zone 3, Central Business District, CBD3020 Birkirkara, MALTA

- hereinafter referred to as "contractor" or "alkima WEB & DESIGN ®" -

Part of this agreement is the offer that "alkima WEB & DESIGN ®" submitted to the client in advance and that has been signed by the client.

- hereinafter referred to as the "offer" -

  1. Subject to the agreement

    1. The contractor takes over the maintenance of the software described in more detail in the offer, which is individually developed by the contractor or already available to the client. Significant extensions to the software (upgrades) are not part of this agreement.

    2. The maintenance includes

      1. maintaining and restoring the operational readiness of the software,

      2. updating the software,

      3. the documentation of the work carried out,

      4. advising the client in accordance with section 4.,

      5. periodic maintenance services, such as software tests.

    3. The maintenance also extends to the continuous documentation belonging to the software (user manual) as well as to files or database material, which is included in the offer.

    4. Not covered by this agreement is the initial installation of the software, the instruction and training of the client's staff, changing the hardware or the client's operating system and individual adjustments to the software. This also applies to the elimination of faults and damage caused by incorrect operation on the part of the client, defective hardware, an interruption in the power supply, the influence of third parties or force majeure. These services can be agreed and invoiced in individual cases against separate compensation according to the current hourly rates of the contractor.

  2. Scope of services

    1. The contractor is obliged to examine reproducible errors in the software reported by the client and to provide the client with information on how to eliminate the consequences of the error. An error is present in particular if the software does not or does not correctly fulfill a function specified in its service description, or if it does not behave in a functional manner in any other way.

    2. The contractor will respond to error messages communicated by the client within the times described in the offer. He will then inform him within a reasonable period about the expected duration of the error analysis and error elimination. The contractor is obliged to eliminate the error within the specified period, the reported error message.

    3. In case of significant errors in the software developed by the contractor, the contractor is obliged to eliminate the error by means of an update. In the case of software that was not developed by the contractor, the contractor will take all necessary and possible steps to eliminate these errors. An error is considered significant if it prevents the software from operating. The prerequisite for the search for and elimination of errors is the fulfillment of the client's duty to cooperate in accordance with Section 3.

    4. Other errors, including those in section 2.3, are only to be corrected if this can be done with economically reasonable effort. This is not the case if reprogramming of essential parts of the software is necessary.

    5. The contractor undertakes to inform the client or the client's staff once about the type and scope of the work carried out. The contractor will inform the client of planned updates a reasonable amount of time in advance. The same applies if a planned update is not possible on the infrastructure used.

    6. The maintenance work is usually carried out by remote maintenance. If, in exceptional cases, direct access to the data processing systems on which the software is installed should become necessary, the contractor will contact the client to clarify all the necessary details.

    7. Software maintenance is carried out exclusively by qualified personnel who are familiar with the software described in the offer. For software that was not developed by the contractor, software maintenance will only be carried out by qualified personnel.

    8. The employees of alkima WEB & DESIGN ® do not enter into an employment relationship with the client. The client will only issue instructions to the responsible employee named by the contractor.

    9. The involvement of subcontractors is only possible with the prior, express consent of the client.

  3. Client's obligations to cooperate

    1. The client will inform the contractor immediately of any errors that occur and support the contractor in the error investigation and error elimination within the scope of what is reasonable. This includes, in particular, submitting error reports in text form to the contractor at his request and providing other data and logs that are suitable for analyzing the error.

    2. If necessary, the client must allow the contractor access to the data processing systems on which the software specified in the offer is installed. The client shall provide the technical facilities (power supply, telephone connection and data transmission lines) required to carry out all maintenance work to a reasonable extent and free of charge.

    3. The client shall designate a competent employee to the contractor who can provide the necessary information required to carry out the work and make or initiate decisions himself.

    4. The client keeps precise records of the start and duration of the downtime and the maintenance service for each software specified in the offer. The contractor must confirm the recordings in text form.

    5. It is the client's responsibility to carry out proper data backups and to properly care for and maintain the software and hardware environment of the software that is not included in the offer. The client must protect the hardware and software in particular against unauthorized access by employees or other third parties, viruses, Trojans and other malware.

  4. Consultation - Telephone / Project Management Tool

    1. The person responsible for the system named by the client and his deputy or persons named by the client receive information from the contractor by telephone and via the project management tool that the contractor uses in case of software errors and operating problems.

    2. The availability can be found in the underlying offer or in the general terms and conditions of the contractor.

  5. Persons responsible for the system

    1. The client designates persons responsible for the system and informs alkima WEB & DESIGN ® of this in writing.

    2. The persons responsible for the system are the contact persons of the contractor for all questions regarding the implementation of this agreement.

  6. Compensation

    1. The remuneration and payment terms for the contractor’s services are set out in our general terms and conditions and/or in the offer.

  7. Secrecy and data protection

    1. Both parties must maintain secrecy about all business and operational matters of which they become aware, and must treat all information related to the fulfillment of this agreement as strictly confidential even after its expiry. The same applies to personal data that falls under the provisions of data protection laws. If such data is affected, the Data processing agreement by alkima WEB & DESIGN ® applies.

    2. The contractor undertakes not to collect, save or reproduce any information, documents or data within the meaning of this Section 7. Paragraph 7.1 or to use or exploit them in any other form except for maintenance purposes. The stored data must be deleted when they are no longer required. This does not apply as long as a legal regulation allows the storage of the data.

    3. The contractor undertakes to instruct its staff accordingly and to oblige them to comply with the agreement in accordance with Section 7 Paragraph 7.1 separately in text form.

    4. In the case of remote maintenance (according to section 2 paragraph 2.6 of this agreement) or the involvement of subcontractors (according to section 2 paragraph 2.9 of this agreement), suitable measures for the protection of personal data between the parties must be taken into account. The Data processing agreement by alkima WEB & DESIGN ® applies here.

  8. Warranty

    1. The Contractor warrants that the software developed by the Contractor will perform the functions of the software during the term of this Agreement.

    2. The contractor carries out the work taken on with the greatest care and in accordance with the latest state of the proven technology.

    3. If the elimination of a significant error (within the meaning of Section 2. Paragraph 2.3 of this agreement) proves to be not possible with justifiable economical means, the contractor must develop an alternative solution.

    4. If the contractor fails to meet the obligation to remedy the defect within the period specified in clause 2.2 of this agreement, the client must set a reasonable grace period. Reasonable means that it must be in the context of the software and the defect to be remedied. After that, the client can remedy the defect themselves if desired.

    5. In case of withdrawal, there is no need to set a deadline if the contractor refuses to eliminate the error, if the elimination of the error has failed three times or is unreasonable for the client.

    6. Warranty claims of the client expire within a period of one year from receipt of the notification of the error.

  9. Term of Agreement

    1. The agreement begins when it is signed by both parties, but no earlier than the time specified in the offer or as soon as the developed software is in the state of use or maintenance of the software is required.

    2. The agreement has a duration of 12 months and is automatically extended for a further 12 months, unless otherwise defined in the offer. It can be terminated by the parties at any time in text form, with a notice period of three months to the end of the agreement.

    3. The agreement can be terminated by either party without notice for any important reason. An important reason exists in particular

      1. if the contractor repeatedly exceeds the time required to remedy the defect;

      2. if insolvency proceedings are opened against the assets of the other party or rejected for lack of assets.

    4. Termination without notice is also possible if the terminating party cannot reasonably be expected to continue the agreement, taking into account all the circumstances of the individual case and weighing the interests of both parties.

    5. Any notice of termination must be in text form to be effective (section 126b of the German Civil Code).

  10. Other

    1. Should individual provisions of this agreement be or become invalid, or should an essential point not be regulated, the provisions of alkima WEB & DESIGN ®'s "Terms and Conditions" shall apply and the validity of the remaining provisions shall remain unaffected.

    2. Changes and additions to this agreement are only effective in text form and with reference to this agreement.

    3. The place of performance and place of jurisdiction is the registered address of alkima WEB & DESIGN ®. Applicable law is the law of the Republic of Malta.

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