Service Level Agreement Systrion AG
The subject matter of this SLA are the services of Systrion specified in this agreement, in particular:
- the provision of the software applications agreed in this agreement (hereinafter referred to as "software application" also in the event of more than one included application) for the use of their functionalities,
- to grant or procure rights of use to the software application by Systrion.
This Agreement is governed by the law of Germany. All legal terms are to be read in German law.
2 Provision of the software application
- Systrion will keep the software application available for use in the cloud or on a central data processing system or several data processing systems (hereinafter referred to as "server") from the initiating date agreed in the contract in accordance with the following provisions.
- Systrion grants the lessee the right to create the agreed number of users. Each user created must be assignable to an existing physical person. The creation of generic user accounts is not permitted. Systrion may carry out a check at the lessee's premises at any time if there is a justified reason, otherwise once a year, to ascertain whether the agreed scope of use is being exceeded.
- From the initiating date of deployment, Systrion shall provide storage space on the server to the agreed extent for the data generated by the lessee using the software application and/or the data required for the use of the software application (hereinafter referred to as "software application data").
- The software application and the software application data are backed up by Systrion on the server. Systrion shall ensure data backup in such a way that in the event of an error the status at the end of the previous day can be restored.
- The transfer point for the software application and the software application data is the router output of Systrion's data centre (hereinafter "transfer point"). Systrion shall not be responsible for the quality of the required hardware and software on the part of the lessee or for the telecommunications connection between the lessee and Systrion up to the transfer point.
- As far as agreed, Systrion shall provide the lessee with access software with which the lessee can access the server. If the provision of access software has been agreed, the term "application software" as defined above shall hereinafter also include the access software.
- Access to the server is exclusively via an internet connection using a browser supported by Systrion and/or - if this has been agreed - using the access software provided. The lessee shall be responsible for the functioning of the internet connection.
3 Further development of the software application
- Systrion is entitled to further develop the software application and to provide new versions of the software application from time to time (e.g., updates, upgrades).
- If and to the extent that the change in functionalities of the software application impairs workflows supported by the software application at the lessee and/or entails restrictions in the usability of previously generated data, Systrion shall notify the lessee thereof in writing at least six weeks before such change takes effect (hereinafter "change notice"). Systrion shall provide the lessee with a test environment along with the change notice within which the lessee can test and evaluate the new versions and their functions. Systrion shall draw lessee's attention to the six weeks period and the legal consequences of its expiry in the event of non-exercise of the special right of termination with every announcement of changes.
- If the lessee does not agree with the announced changes to the software application, he shall have a special right of termination at the time the change takes effect. The termination must be exercised in writing within three weeks of receipt of the notice of change.
- If the lessee does not make use of the exceptional right of termination as of 3 (3), the change to the software application shall become part of this agreement.
4 Availability, support, response times
4.1 Definition of availability
Availability means the ability of the User to use the functionalities of the relevant software application as well as the software application data at the transfer point (hereinafter "available use").
Availability is fixed and measured for each individual software application. The availability is checked and logged daily via automatic routines within the system components for which the provider is responsible.
The availability during the system runtime of the productive environments is basically 7x24 h with an availability of 99,9% over one year.
Within the system runtime, a distinction is made between core usage time and marginal us-age time as time outside the core usage time. The core usage times are in the period from 07:00 - 19:00 CET.
Available use (and thus not considered an unavailability) also includes periods while
- malfunctions occur in parts of the technical infrastructure necessary for the execution of the software application which are not to be provided by Systrion or its vicarious agents (e.g., but not limited to: availability restrictions in data transmission lines up to the transfer point, power failures outside Systrion's servers).
- malfunctions or other events occur that are not (partly) caused by Systrion or one of its vicarious agents, e.g., but not limited to: exceeding an agreed permitted load of the software application,
- an insignificant reduction in the suitability of the software application for use in accordance with this agreement occurs.
4.2 Planned unavailability
During the agreed term but excluding planned unavailability, Systrion shall make the soft-ware application available to the lessee. The system runtime less periods of planned unavailability is hereinafter referred to as the “system runtime”.
Systrion is entitled to maintain the software application and/or server, to carry out data backups or other work (hereinafter referred to as "planned unavailability"). Planned unavailabilities are to be agreed with the lessee. For important reasons, the lessee shall not unreasonably withhold his consent.
Patches, updates, and deployments may be installed at any time during the marginal usage times without notifying the lessee. In urgent cases, installation is also permitted during core usage times.
During the periods of planned unavailability, there is no legal claim to use the software application. Should the lessee nevertheless (be able to) use the software application and should the use of the software application during the times of planned unavailability result in a reduction or discontinuation of performance, the lessee is not entitled to any warranty (reduction) or damages. The same applies to any loss of data resulting from the use of the software application during the periods of planned unavailability.
- Systrion does not provide 1st level support to users, but only 2nd level support which accepts pre-qualified problem reports.
- For this purpose, the lessee will appoint two staff members as the initial contact for his users. These employees analyse emerging problems and make an initial assessment. If it appears that the problem lies in the software application or other areas for which Systrion is responsible, they are authorised to create a support ticket.
- Support tickets are always generated in writing by creating a ticket in the support portal provided by Systrion.
- If Systrion determines that tickets are created inconsiderately without a basis, it may refuse or invoice the processing after prior notice.
4.4 Response times
The response time means the elapsed time after which Systrion begins to treat malfunctions in the software application. Systrion will use its best endeavours to inform the lessee how and when a malfunction can be remedied or whether - and if so, how - the lessee can work around malfunctions and/or faults. To this end, Systrion will start analysing and/or eliminating the malfunction within the response time depending on the priority and inform the lessee immediately of the first measures of troubleshooting.
The response times defined below start with the receipt of a proper fault report by Systrion in the form of a support ticket. A support ticket is generated by the receipt of a technical fault report from the lessee, a machine error message from the server or monitoring systems installed at Systrion.
Response time (in h)
Business on the lessee side is severely impaired / stopped.
The application is not available.
Work can only continue with significant limitations.
Individual business-critical functions are not available.
Non-business critical functions are not available. Work can continue with makeshift measures.
A function cannot be performed for a particular data set.
Work can continue unhindered.
Spelling errors in the software.
Any disruptions occurring shall be classified in one of the above disruption classes by mutual agreement of both parties. If the parties do not reach agreement without delay, Systrion shall decide on the classification at its reasonable discretion.
Measurement of compliance with response times is only carried out within Systrion's general support hours. These are from Monday to Friday from 9:00 to 18:00 CET/MEZ. Saturdays, Sundays, and public holidays at Systrion's headquarter are not part of Systrion's general support hours.
4.5 Performance classes
Systrion provides the solutions on systems whose power and performance depend on the selected performance class. By default, the solutions are operated in a performance class "S". The systems are used for several solutions and lessees.
Optionally, a lessee can switch to higher performance classes by written agreement, which offers the lessee a higher performance.
4.6 Contractual penalty for non-compliance with the defined availabilities
This contractual penalty amounts to 0.5 per cent of the monthly fees (excl. VAT). It is due
- for each tenth of a percentage point or part thereof of the drop in availability below the agreed percentage in a reference period,
- for exceeding the longest uninterrupted downtime within the core usage time for each 30 minutes or part thereof,
- for exceeding the longest uninterrupted downtime within the marginal usage time for each 60 minutes or part thereof,
- for exceeding the reaction time in the event of class 1 and 2 faults within the core usage time for each 30 minutes or part thereof.
If several contractual penalties are incurred for one event, they are cumulated.
The total contractual penalty payable by Systrion is limited to 10% of the monthly fees per reference period, irrespective of whether these contractual penalties have been incurred for one or more events.
5 Warranty claims
- If Systrion is in default with the initial operational provisioning of the software application, liability shall be governed by clause 9 of the General Terms and Conditions of Systrion. In accordance with clause 11 of the General Terms and Conditions of Systrion the lessee shall be entitled to withdraw from this agreement if Systrion allows the grace period set by the lessee to elapse without providing the full functionality of the software application as agreed in this agreement and its annexes.
- If Systrion fails to comply in whole or in part with the obligations agreed in this agreement and its annexes after the initial operational provisioning of the software application and/or the software application data, the agreed monthly flat-rate usage fee shall be reduced pro rata for the time the software application and/or the software application data were not available to the lessee to the extent agreed or the storage space was not available to the extent agreed. If Systrion is culpable for the non-performance, the lessee may also claim damages in accordance with clause 9 of the General Terms and Conditions of Systrion.
6 Disclaimer / exclusion of warranty
Systrion's strict liability for damages for defects (§ 536 a BGB) existing at the time of conclusion of the agreement is excluded.
7 Rights of use, property rights, secrecy
- The lessee may only use the software application for his own business activities to the legitimate extent. Any access software provided may only be used to access the server, i.e., to use the software application on the server.
- For this use Systrion grants the lessee a simple, non-exclusive, non-sublicensable and non-transferable right of use limited to the term of this agreement. Particularly, it is not permitted to reproduce, sell, or transfer the software application for a period, not to rent or lend it.
- If Systrion makes new versions, updates, upgrades, or other new deliveries regarding the software application during the term, the above rights shall also apply to these.
- The software (programme and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other industrial property rights to the software and to other items which Systrion provides to the lessee or makes accessible to the lessee in the context of the initiation and execution of this agreement are the exclusive property of Systrion. Insofar as rights belong to third parties, Systrion has corresponding rights of exploitation.
- Contractual items, documents, proposals, test programmes etc. of Systrion which be-come accessible to the lessee before or after conclusion of this agreement shall be deemed to be intellectual property and business and trade secrets of Systrion. They may not be used in any way without Systrion's written prior consent and must be kept secret.
- The confidentiality obligation applies 24 months after the end of the contract.
8 Use by third parties in exceptional cases
The lessee is not entitled to have the software application used by third parties or to make the software application accessible to third parties.
Subject to the following conditions, the lessee is exceptionally entitled to assign usernames and user passwords to third parties, i.e., persons who are not in an employee relationship with him or with Systrion, to enable them to access the software application directly, provided that
- the third party has a business relationship with the lessee (e.g., supplier) and enabling the use of the software application serves to shorten business processes, e.g., the direct input of data, and
- Systrion is informed in advance in writing about the company, address, and contact de-tails of the third party and
- the lessee demonstrably obliges the third party to the duties and obligations of the les-see under this agreement, about compliance with Systrion's requirements for security, confidentiality, data protection and careful use of the software application and storage space as well as the software application data; and
- the lessee shall be liable for all damage caused by a non-contractual and/or improper use of the software application, the access software and/or the storage space and/or the software application data by the third party and
- indemnifies Systrion against all claims of the third party in connection with the third party's use of the software application, the access software and/or the storage space and/or the software application data; and
- the lessee acquires appropriate licences for these users and
- identifies the third party in the system as "external" according to the provided identification options. Systrion shall not be liable for any infringement of third-party rights by the lessee if and to the extent that such infringement results from exceeding the rights of use granted under this agreement. In this case the lessee shall indemnify Systrion on first demand against all claims of third parties.
9 Lessee's obligations for safe use
- The lessee shall take the necessary precautions to prevent the use of the software application by unauthorised persons. Access to the software application is exclusively encrypted via the HTTPS protocol. Passwords must meet the security requirements set by Systrion.
- The lessee shall refrain from re-engineering, de-assembling or in any way editing, translating, modifying, further developing, or otherwise redesigning the object code of programs supplied by Systrion. The lessee shall only be entitled to de-compile the object code if this is necessary to establish interoperability with other programs and Systrion has not provided the lessee with the information required to establish interoperability despite a written request. In the latter case, the lessee must limit the de-compilation work to the parts necessary for establishing interoperability.
- The lessee is liable for ensuring that the software application is not used for racist, dis-criminatory, pornographic purposes, purposes that endanger the protection of minors, politically extreme purposes or purposes that otherwise violate the law or official regulations or requirements, or that corresponding data, in particular software application data, is created and/or stored on the server.
- The lessee is liable for expenses, costs and consequential damage resulting from intentional or negligent transmission of viruses or other security-relevant data to the systems provided.
10 Blocking authority, claim for damages, extraordinary termination, contractual penalty
- If the lessee violates the provisions in section 8 or 9, Systrion may, after prior written notification of the lessee, block the lessee's access to the software application or the software application data if the infringement can thereby be remedied. Prior written notification is not required if Systrion cannot reasonably be expected to wait because of the imminent danger in the event of delayed blocking, for example because the operation of the software application is fundamentally endangered by the breach of contract (e.g. in the event of a system intervention by a third party for which the lessee is responsible), Systrion is legally obliged to block the software application or if, after weighing up all the circumstances, the immediate blocking appears to be reasonable and appropriate in view of the nature, severity and consequences of the breach of duty, the unlawfulness of the breach of duty is readily recognisable to the lessee and he could not obviously expect the supplier to approve it.
- If the lessee unlawfully infringes the above section 9 (3), Systrion is entitled to delete the data or software application data affected. In the event of an unlawful infringement by the user, the lessee shall, upon request, immediately provide Systrion with all information required to assert claims against the user, in particular name and address of the user.
- If, despite a corresponding written warning from Systrion, the lessee continues to violate or repeatedly violates the provisions in clause 8 or 9, and if he is accountable for this, Systrion may terminate this agreement extraordinary without notice period. A warning is not required in this case either if, after weighing up all the circumstances, the immediate termination without notice period appears to be reasonable and appropriate in view of the nature, severity and consequences of the breach of duty, the unlawfulness of the breach of duty is readily recognisable to the lessee and he could not obviously expect Systrion´s approval.
- If the lessee is responsible for the breach of duty, Systrion may also claim damages.
- For each case in which the lessee culpably enables the use of the software application by third parties, he shall pay an immediately due contractual penalty in each case in the amount of the agreed monthly basic flat rate. The right to claim damages is reserved; in this case this contractual penalty shall be offset against the claim for damages.
11 Adjustment of the remuneration
Systrion is entitled to increase the agreed remuneration appropriately to compensate for cost increases (personnel, other costs) with six weeks' written notice up to the following due date. Systrion shall inform the lessee in writing or by e-mail. The price increases shall not apply to periods for which the lessee has already made payments. The lessee has the right to terminate the contract within a period of three weeks after receipt of the notice with a notice period of sixty (60) days. Systrion will draw the lessee's attention to this right
of termination in any notice. If the lessee exercises his right of termination, the former prices shall be charged until the termination takes effect. If the lessee waives his extraordinary right of termination, the new prices shall be deemed to be contractually agreed. An increase of the remuneration within the first three months after provisioning of the services is excluded.
12 Duties and obligations of the lessee
- The lessee shall fulfil all duties and obligations which are necessary for the execution of this agreement. In particular, he shall:
- meet the system requirements announced by Systrion. This includes a current version of the Mozilla Firefox, Microsoft Edge or Chrome browser software and an internet access.
- license any software disclosed by Systrion, the operation of which is a prerequisite for the use of the software application.
- immediately change all usernames and passwords to names and passwords known only to him or his employees. The lessee shall keep secret the usage and access authorisations assigned to him or to the users as well as in agreed identification and authentication safeguards, protect them from access by third parties and not pass them on to un-authorised users. This data must be protected by appropriate measures in accordance with commercial diligence. The lessee shall inform Systrion immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorised persons.
- oblige its employees and any third parties to whom the lessee is entitled to grant access to the software application based on a corresponding agreement to observe the security measures agreed and provided for in this SLA regarding the usernames and passwords. To the extent that the lessee legitimately discloses usernames and user passwords to third parties (e.g., suppliers), the lessee shall, upon Systrion's request, oblige such third parties in verifiable form to comply with the duties and obligations of the lessee under this SLA. This applies regarding the duties and obligations to comply with security standards, confidentiality, data protection and the careful handling of the software application and the storage space provided by the supplier.
- create the agreed access requirements.
- comply with the restrictions/obligations regarding the rights of use pursuant to section 7, in particular
- do not retrieve or letting to be retrieved any information or data without authorisation or interfere or cause to be interfered with any applications/programs operated by Systrion or intrude or facilitate any such intrusion into Systrion's data networks without authorisation.
- within the contractual relationship and/or using the software application, to not misuse the possibility to exchange electronic messages for the unsolicited sending of messages and information to third parties for advertising purposes.
- indemnify Systrion against claims of third parties based on the unlawful use of the access software and/or the software application by him or arising from data protection, copyright or other legal disputes caused by the lessee that relate to the use of the access software and/or the software application.
- oblige the authorised users to comply with the provisions of this contract that apply to them.
- ensure that (e.g., when transmitting third party text/data to Systrion's server) he observes all third-party rights to material used by him.
- obtain the necessary consent of the respective data subject, insofar as he collects, processes, or uses personal data when using the software application and no legal permission applies.
- before sending and/or uploading data, documents, and information to the supplier or to Systrion's server, check them for viruses and use state-of-the-art virus protection programs.
- immediately notify Systrion of defects in contractual services, in particular defects in the services in accordance with sections 2 and 4. If the lessee fails to notify Systrion in good time for reasons for which he is responsible, this constitutes contributory causation or contributory negligence. Insofar as Systrion was unable to remedy the defect because of the failure to notify or the delay in notifying Systrion, the lessee shall not be entitled to reduce the remuneration owed in whole or in part, to demand compensation for the damage caused by the defect or to terminate this agreement extraordinarily without notice period on account of the defect. The lessee must prove that he did not culpably fail to notify the defect.
- when transmitting data to generate software application data using the Systrion software application, back it up regularly and in accordance with the importance of the data and make his own back-up copies to enable reconstruction of the data and information in the event of loss.
- if and to the extent that the technical possibility to do so is made available to him by mutual agreement, regularly back up the software application data stored on the server by download; Systrion's obligation to back up data pursuant to section 2 (4) remains unaffected.
- The lessee is solely responsible for the correctness, up-to-dateness and validity of the software application data used by him, the data processed, stored and/or generated by him with the help of the software application. Likewise, for the correct use and/or disclosure of the data to third parties. The lessee shall therefore check the data before, during and after input provide for corresponding business processes for review.
13 Statutory retention periods
The lessee shall be solely responsible for compliance with retention periods under commercial and tax law as well as other obligations resulting from laws, regulations, or guidelines to which the lessee is subject as a company.
14 Termination of this agreement
- Upon termination of this agreement Systrion shall make the software application data stored by the lessee and any other data stored on the mass storage device provided in accordance with section 2 (4) available to the lessee within a reasonable period by download in a then current data format.
- Alternatively, at the request of the lessee, Systrion shall make all software application data stored by the lessee available to a third party designated by the lessee on a standard data carrier or by way of remote data transmission.
- At the request of the lessee after the legal termination of this contract, Systrion shall cooperate with a third party on the instructions of the lessee for the completion of this contract. This cooperation shall be remunerated separately on a time and material
basis. Payment shall be made on Systrion´s fees effective at the time of termination of that agreement. In addition, the lessee shall reimburse Systrion for all necessary and proven expenses incurred. Such cooperation is limited to:
- the transmission of the software application data stored by the lessee,
- the transmission of other data of the lessee as instructed by him.
- Upon legal termination of this agreement, but not before Systrion has fulfilled its obligations under subsections (1) and (2), the lessee is obliged to return to Systrion all data carriers containing access software and to delete all copies of the access software on its own data processing equipment.