Solutions > Support & Maintenance Conditions

Support & Maintenance of Agilo for Scrum

agile42 GmbH – Software Maintenance Agreement

Revision 1.1, February 2008

1. Contractual Basis

1.1 Preamble
agile42 GmbH (agile42) is a company providing professional services and consulting to help customers implementing or optimizing there processes adopting Agile Methods and/or improving existing Best Practices. In the intent to help companies in better support the defined process, agile42 developed a software product to help software development teams at their daily work. This product is called "Agilo for Scrum" and is distributed free of charge as an Open Source Software Product, according to the Apache Software License 2.0 (http://www.apache.org/licenses/LICENSE-2.0), agile42 offers Support and Maintenance Services related to that software.

This Agreement regulates the support and maintenance for Agilo for Scrum installed on a customer server. Any counter-confirmation or general terms and conditions of business of contractual parties are hereby explicitly objected to. The foregoing shall also apply if the submission of offers or acceptance of offers by contractual parties is made making reference to the prior-ranking applicability of the own general terms and conditions of business.

1.2 Assignment of Rights and Obligations
agile42 may transfer any of the rights and obligations under this Agreement to third parties at any time and is entitled to use agents for fulfillment of agile42 contractual obligations.

2. Content of Services

2.1 Support and Maintenance Services
agile42 shall provide the following support and maintenance services for Agilo for Scrum for the customer:

Provision of known error corrections by delivery of available patches via electronic communication and/or for download via the Internet (www.agile42.com).
Provision of available updates (bundling of several error corrections in one version) for download via the Internet (www.agile42.com).
Provision of available upgrades (version with additional / enhanced functions) for download via the Internet (www.agile42.com).
Provision of available major upgrades (version with substantially enhanced volume of functions).
Information via electronic communication (email) when new updates/upgrades are available.

The support and maintenance services listed in this clause 2.1 only comprise the product Agilo for Scrum. The granting of rights of use shall be limited to the number and type of products, as well as the terms of use thereof, for which this agreement has been concluded.

2.2 Email Support
For the term of this Agreement, agile42 shall provide email support and online support via Support Portal (https://support.agile42.com/) in the following manners:
Queries for specific technical problems and failures are possible at any time. For this purpose, the customer will generally submit a ticket to the portal or write an email message indicating the exact problem description and a classification in the following priority and error levels:

Level A: System does not work. (Blocking)
Level B: System works with limited functions. (Critical)
Level C: System basically working. Just errors/problems with specific functions. (Major)

agile42 ensures the following response times (via phone or e-mail):

Level A: Response within a half (1/2) working day (Monday - Friday, 9 a.m. until 5 p.m. local time).
Level B: Response within the next working day (Monday - Friday, 9 a.m. until 5 p.m. local time).
Level C: Response within the working day after next (Monday - Friday, 9 a.m. until 5 p.m. local time).

Exclusively applicable is the local time at the seat of agile42. Exclusively applicable regarding holidays are the legal holidays at the seat of agile42. As "Response" is intended the reply or back communication to the customer of the acknowledgement of the issue and a plan to fix it or a workaround to enable the customer to continue to work until the issue will be completely fixed. The support will communicate to the customer, case by case, the time estimated to solve the problem and will provide at regular interval update information (see also paragraph 2.4).

2.3 Subject Matter of Support Services
The subject matter of support services in clauses 2.2 above is the help with installation or operation problems and alleged program errors. Installation services or other support services at the customer's location are not a subject matter of this Maintenance Agreement.

2.4 Service Contract
Due to the complex nature of hardware and software applications, networks and specific configurations with the licensee, agile42 cannot assume liability for the successful remedy of any error, i.e. despite agile42’ best efforts it may occur that errors cannot be rectified in providing the support to the licensee. Consequently, all services are provided as a service contract to this effect.

2.5 Payments
The monthly fee, as far as there is no other agreement with the customer, amounts to: 

01-50 User = 2 Euro per user per day
51-100 User = 1,50 Euro per user per day
from 101 User up = 1 Euro per user per day

The prices are net prices. All rent, support and maintenance services under this Agreement shall be paid quarterly in advance upon invoicing by agile42.

3. Securing of Services

3.1 Customer Cooperation
To guarantee the best level of efficiency, the customer commits itself to describe the problems as exactly and detailed as possible. Especially all the questions referring to the failure should be answered as accurate as possible. Only the compliance with this obligation to cooperate as an essential contractual performance will enable the provision of all support services in a timely and due manner.

3.2 Limitation/Exclusion of Liability
3.2.1 Customer´s claims for damages or reimbursement regarding the rights in and the quality of Agilo for Scrum, or any other software supplied free of charge, are - irrespective of the legal ground - limited to the liabilities set forth in Sec. 521, 523, 524 German Civil Code.

Customer´s claims for damages or reimbursement regarding the supply of software that is not free of charge is excluded unless agile42 has deceitfully withheld its knowledge of defects in the quality of the product or has given a guarantee regarding the quality of the product.

Customer´s claims for damages or reimbursement regarding support and maintenance services are - irrespective of the legal ground - excluded unless the damage is caused by a willful or gross negligent act a breach of cardinal obligations by agile 42, its representatives or vicarious agents. Cardinal obligations are material obligations compliance with which makes fulfillment of the contract possible in the first place, especially agile42's obligations to supply the software, including the licensing/renting of rights in the software.

3.2.2 In case of simple negligence by agile42, its representatives or its vicarious agents, agile42's liabilities for damages or reimbursement are limited to the typically occurring damages.

3.2.3 The limitation and exclusion of liability does not apply to claims based on the German Product Liability Act. Further, it does not apply to damages resulting in the injury of life, the body or health caused by a negligent breach of obligation by agile42 or a negligent or willful breach of obligation by a representative or a vicarious agent of agile42.

3.2.4 agile42 is entitled to invoke contributory negligence on customer's part. Customer is especially obliged to make backup copies and to provide sufficient and up to date anti-virus protection. Backup copies have to be made regularly and to an extent that is appropriate when considering the usage and the risks, typically once a day in order to ensure restoration of data with reasonable time and effort. In case of loss of data, agile42's liability is limited to the restoration expenses that would have arisen if backup copies had been made regularly and where anti-virus protection had been in place.

3.3 Statute of Limitation
The statute of limitation is for claims of repayment due to rescission from contract or reduction of purchase price one year after delivery of the software, however for defects orderly notified no less than three months after notification of rescission from contract or of reduction of purchase price has been given; for other claims for factual or legal defects of the software one year; for other claims for damages or reimbursement of expenses two years, starting from the date customer has found out about the relevant facts or should have found out without gross negligence. At the latest, the statutes of limitation are applicable when the maximum time given in Sec. 199 German Civil Code has lapsed. The statutes of limitation by law are always applicable in case of claims for damages or reimbursement of expenses based on the German Product Liability Act, for damages resulting in the injury of life, the body or health of the customer which are caused by a negligent breach of obligation by agile42 or a negligent or willful breach of obligation by a representative or a vicarious agent of agile42. These statutes of limitation by law are also applicable in case of agile42' deceit regarding defects, or where agile42 has given a guarantee regarding the quality of a product. agile42' rectification of defects for the software does not inhibit the statutes of limitation nor do these statutes of limitation start anew in case of such rectification.

3.4 Copyright
agile42 is entitled to the copyright as well as the proprietary rights, rights of use and commercialization resulting there under to all the materials capable of being protected under copyright, which materials are provided within the frame of support and maintenance services under this Agreement. Any infringements of copyright shall be prosecuted by agile42 in terms of both civil and criminal law.

4. Performance of the Agreement

4.1 Commencement and End
This Agreement is concluded with the acceptance of the Software Maintenance Agreement by the customer. The base term is one year and commences on the date on which the Agreement is invoiced by agile42. Termination by the end of the base term is possible by giving two months' notice in writing to take effect by the end of the respective month. In the absence of termination in due time, the Agreement shall be renewed for further one year's periods each time. Termination upon the expiration of the base term is possible at any time by giving three months' notice in writing to take effect by the end of the respective month.

4.2 Termination for Good Cause
This Agreement can be terminated by agile42 for good cause if it cannot be reasonably expected to wait until statutory termination of the Agreement is possible due to the fact that the customer has committed a severe breach of the contractual covenants and the consequences of such breach, especially pecuniary damages, have not been remedied without undue delay and without the need for an explicit request in this respect; or the consequences of the breaches of the Agreement cannot be remedied due to their nature and termination for good cause has been notified no later than within three months of the date on which agile42 got knowledge thereof.

5. General Provisions

5.1 Choice of Law and Venue
This Agreement is exclusively governed by German law. Should German law make reference to foreign jurisdictions, this reference is excluded. The application of the UN Sales Convention is explicitly excluded. In case the parties are merchants, legal entities under German public law or special assets under German public law, the exclusive venue for both parties shall be agile42's seat of business. The same applies in case one party does not have a legal domicile in Germany. It is in agile42's discretion to bring charges forward also at the other party's seat of business in cases stated in this paragraph.

5.2 Written form
Any modifications of and/or amendments to this Agreement, as well as all other statements of legal import of both parties, shall only take effect if made in writing or simple text without signature (e.g. email, or facsimile). The same applies to modification of this clause; abandoning the formal requirement requires an agreement in writing or simple text without signature.

5.3 Interpretation of the Agreement
If any of the provisions of this Agreement should be or become invalid, ineffective or unenforceable, that will not affect the effectiveness of the remaining provisions. The same applies to omissions in individual provisions and/or parts of these General Terms and Conditions of Business. In such a case the parties shall replace the cancelled or incomplete provision by another, legally effective provision meeting the purpose of the cancelled provision to the largest extent possible.