DAIMLER GROUP NORTH AMERICAN COMPANIES
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1 DAIMLER GROUP NORTH AMERICAN COMPANIES General Purchasing Conditions for IT Part G Lease of Standard Software 1 Subject Matter / Scope of Performance 1.1 General The terms and conditions of this Part G of the GPC- IT, and any amendments thereto existing as of the Effective Date, (collectively, "Part G"), are hereby made a part of the Contract, together with Part A of the GPC-IT; the Customer's General Terms and Conditions of Purchase; and the applicable Purchase Order, and shall apply to Contractor's lease of software to Customer as set forth in the Purchase Order and the Contract. All capitalized terms not otherwise defined in this Part G shall have the meanings set forth in Part A of the GPC-IT. 1.2 Software Contractor shall deliver and license to Customer and its Affiliates for the term of the Contract, the software and accompanying Documentation as set forth in the applicable Purchase order and this Contract (the "Software"). The Software shall conform to the current Standards of Service during the term of the Contract. Contractor shall provide maintenance for the Software as set forth in the applicable Purchase Order and this Contract 1.3 Documentation Contractor shall supply Customer with all Documentation necessary and appropriate for the Software including, but not limited to, installation, use, operation and maintenance Documentation, which shall be in English and in both printed and printable forms. To the extent required for use of the Software in accordance with the Contract, Customer may make copies of the Documentation. The Documentation must be of sufficient quality to enable a user to install and use the Software without support or assistance from Contractor. In addition, all operating manuals must be of sufficient quality to enable an IT specialist (as such term is commonly understood in the industry) to operate and maintain the Software without support or assistance from Contractor. Contractor shall provide Customer with a sufficient quantity of updated Documentation as necessary for all authorized users to use the Software in accordance with the Contract and generally accepted standards in the industry. 1.4 Instruction Contractor shall instruct and support Customer to the necessary extent in Customer's the test and trial operation of the Software. 1.5 Software maintenance During the term of the Contract, Contractor shall perform the Services necessary to maintain the Software in a condition that is suitable for use as contemplated by the Contract and as defined more fully in the Purchase Order or as otherwise agreed upon by the parties Rectification of malfunctions During the term of the Contract, Customer may report to Contractor Malfunctions that occur during Customer's use of the Software. A "Malfunction" is present when the Software does not conform to the requirements and specifications set forth in the Contract, including the Documentation; or produces incorrect results; or uncontrollably terminates processes; or does not function properly in any other way; or cannot be operated in the way described in the Documentation. Malfunctions are also present when information security vulnerabilities of the Software become apparent. Contractor shall locate, analyze and rectify all such Malfunctions. After becoming or being made aware of a Malfunction, Contractor shall inform Customer of how long it will take to rectify the Malfunction taking into account agreed upon time frames and any specified service levels. Contractor shall remedy Malfunctions within the agreed upon time frames and/or service levels, or if none are specified then within a reasonable time, provided, however, that Malfunctions related to information security vulnerabilities in the Software are to be rectified immediately by Contractor. If Contractor s analysis of a Malfunction reveals that correction of the Malfunction will be very time consuming, Contractor shall consult with Customer and provide at the least a temporary replacement or workaround, so that significant disruptions to the
2 business operations of Customer can be avoided while the correction is implemented. The duty to rectify the Malfunction completely within the agreed upon time frames or service levels or, if none are specified, within a reasonable time limit remains unaffected by provision of the temporary solution Software updates / delivery of new versions As part of the Services, Contractor shall provide Customer with all corrections, patches, updates, upgrades, new versions, or any similar software, and updated documentation, (collectively, the "Updates"), on a regular basis, but not less than once per year. Upon the delivery of the Updates to Customer, Customer shall have the right to use the Updates in the same manner and to the same extent as the Software. Contractor shall not be entitled to any additional payment unless otherwise agreed to in writing by Customer. Updates shall be delivered by transmitting or delivering machine-readable codes on commercially available data storage media or transmitted by electronic data transfer or as otherwise agreed to by the parties. Contractor shall provide Customer the accompanying updated Documentation in both printed and printable form. Contractor is obligated to adapt the Software to comply with any new governmental rules or regulations; this obligation is fulfilled when the ability to use the Software is not restricted under the new governmental rules or regulations or is restricted only as necessary to comply with the governmental rules or regulations while still providing the primary functionality of the Software. Updates are to be installed within a maintenance window pursuant to Clause 4 of this Part G. Customer may refuse Contractor's rectification of Malfunctions and/or refuse Updates if they do not exhibit essentially the same compatibility and functionality as the part of the Software that is replaced or otherwise negatively impact Customer's use of the Software Modified system requirements Contractor is entitled to perform modifications to the Software if it serves to protect and further develop the functionality of the Software, but Contractor may not require Customer to implement such modifications. Previous system requirements are always to be taken into consideration in the further development of the Software. Updates of the Software may not require system specifications that are significantly different from the previous versions, and Updates must work with all data generated or saved by the previous versions Observance of service levels Contractor shall rectify Malfunctions within the agreed upon times and service levels and if there are no agreed upon times or service levels then within a reasonable time. 1.6 Installation If requested by Customer, Contractor shall assemble, install, integrate and/or configure the Software such that the Software is ready for use immediately upon delivery to Customer. If requested in writing by Contractor prior to the Effective Date, Customer shall be responsible for providing the system requirements necessary for the installation of the Software as specified in writing by Contractor. 1.7 All Services Included All services and actions required to perform the Services specified in Clauses 1.2 through 1.5, and, if installation services are included in the applicable Purchase Order, in Clause 1.6, and the Contract, are included in the lease payments specified in the applicable Purchase Order. 1.8 Additional services At the request of Customer, Contractor shall provide additional software modules or programs pursuant to a separate purchase order. Clauses 1.2 through 1.5, and if installation services are included in the applicable Purchase Order, Clause 1.6, and all other terms of the Contract shall apply to the additional software or programs. On request of Customer and for a separate fee, Contractor shall conduct training for Customer's employees of Customer on the use of the Software. Contractor shall not be required as part of the Services to rectify Malfunctions resulting from the use of force or improper handling or improper use by Customer. At Customer's request, Contractor shall rectify such Malfunctions and invoice Customer for such services separately, provided a purchase order for these has been issued by Customer.
3 2 Provision, Acceptance of the Services Contractor shall deliver the Software to the agreed place of performance (place of use) on the agreed date. Unless stated otherwise in the Purchase Order, the place of performance shall be Customer's facilities. Before the Software is delivered to Customer, Contractor shall check that the Software fulfills the Contract requirements and includes the functions stated in the product description and specifications. The Software is to be delivered in operational condition complete with the agreed scope of functions, the Documentation, and all other documents and accessories required for its intended use. Contractor agrees that the Software and the Services shall be subject to acceptance and testing procedures as set forth in Part A of the GPC-IT. If the parties agree that the Services include the source code of the Software, then Contractor shall deliver the source code of the Software, together with the complete development documentation and the development tools in conjunction with the Software. The Software shall then be deposited in a source code escrow in accordance with the terms set forth in the appendix entitled Deposit Agreement. If the source code is not included in the Services, then Contractor shall take reasonable measures to ensure that the Contract is fulfilled. 3 Rights of Use 3.1 Temporary granting of rights Upon delivery of the Software to Customer, Contractor shall grant Customer a non-exclusive right to use the Software which shall not be restricted by place or content but limited to the term of the Contract. Unless otherwise agreed to in writing, Customer's rights shall commence on the date that Customer confirms receipt of the Software. This right and license shall include the right to make copies of the Software for use in accordance with the Contract, and Customer's right and license shall also encompass storage, including necessary installation on computer systems, loading, execution and processing of Customer s own data sets. This right and license shall also include the right to engage third parties to process and develop programs for use with the Software for the Customer's benefit, and to create compatibility with adjacent systems and programs. 3.2 Affiliate companies Customer is authorized to grant a nonexclusive sublicense to the Software or individual programs to Customer's Affiliates for such Affiliate to use in the same manner and subject to the same terms as Customer. Customer may also allow a third party at a different location, and on systems that do not belong to Customer or an Affiliate, to use the Software together with the Documentation for Customer's or Affiliates' purposes; for example, to operate the Software from an external data server. Customer's rights as set forth in this Clause 3.2 shall not result in Customer s usage of the Software exceeding any contractual limitations regarding usage, including, but not limited to, the contractually permitted number of users and the contractually permitted number of installations. 3.3 Accession to the contract Affiliates of Customer may join an existing contract, e.g. by placing an order with reference to such contract. Customers may withdraw from a contract if Affiliates who remain customers take over the withdrawing customer's obligations. Contracts may also be transferred between Affiliates of Customer. If necessary or requested by Customer, Affiliates of Customer and Affiliates of Contractor located in the U.S. or in countries other than the United States may contract with each other under this Part G by referencing this Contract and the GPC-IT in their agreement and, as applicable, including a Local Amendment specifying any changes necessary to comply with local laws. 3.4 (RESERVED) 3.5 Rights in work results All materials in whatever from, that emerge during or in connection with Customer's use of the Software, including, but not limited to data and reports (the Work Results ) shall be and remain the exclusive property of Customer, subject to Contractor's, its subcontractors', or suppliers' right to use the same to perform the Services under this Contract. To the extent necessary to ensure Customer s ownership rights, Contractor hereby
4 assigns all right, title and interest in and to the Work Results, including, without limitation, all copyrights, patent rights, and other intellectual property and trade secret rights in such Work Results, to Customer. Contractor agrees to execute all documents and to take all steps requested by Customer, at Customer's expense, which Customer deems necessary or desirable to complete and perfect Customer's said ownership and Customer's property rights in said material. Contractor shall ensure that its subcontractors and agents do the same. 3.6 Special access licenses Contractor shall supply, at Contractor's expense, any and all special access tools, devices, or licenses that may be necessary for Customer's use of the Software, unless agreed to otherwise in writing by Customer. 3.7 Backup copy / archiving Customer shall have the right to produce and use copies of the Software to the extent necessary for backup and archiving purposes. Customer shall have the same rights to all copies of the Software, regardless of the form in which the Software was provided or the form in which the copy is stored. 3.8 Processing rights Contractor shall ensure that the Software meets all compatibility requirements as specified in the Purchase Order. Contractor, at its own expense, shall be responsible for all interfaces necessary to ensure that the Software is compatible with any commercially available software packages. In the event that Customer requires compatibility with a custom piece of software, development of the first interface shall be included in the pricing set forth in the Purchase Order and governed by the terms of Part H of the GPC-IT. Thereafter, if changes to the Software require development of further custom interfaces, Contractor shall develop such interfaces in accordance with the terms of Part H of the GPC- IT, and Contractor shall be entitled to an equitable adjustment in the pricing set forth on the Purchase Order to reimburse Contractor for the time and materials involved in development of the additional custom interface. If Contractor is unable, after a reasonable time, to develop a fully functional custom interface, Contractor shall be entitled to any and all remedies available under this Contract, including, without limitation, termination for cause. 3.9 Third-Party Software To the extent the Software includes any third party software, Customer's use of the third party software shall be subject to the terms and conditions of the applicable third party supplier, provided that Contractor provides Customer with a copy of the third party supplier's terms and conditions, in printed and printable form, with Contractor's proposal prior to the Effective Date. If Contractor fails to comply with these requirements, Customer's use of the Software shall not be subject to the third party supplier's terms and conditions and this Part G shall apply exclusively Support periods for older software versions After an Update has been published, the Services shall be continued for the old version of the Software as set out below. Older versions of the Software shall be supported for a period of at least two years from the time that the latest version of the Software becomes available. If Customer cannot be reasonably expected to accept the Update, especially if the acceptance is associated with conversion costs or other conversion risks (e.g. system instability), then Customer can request that maintenance of the version that Customer is currently using be continued, however for no longer than three more years beyond the period stated in the previous sentence and Contractor will provide such maintenance. Contractor shall provide simultaneous maintenance for an older version and the respective updated version for a transition phase of a minimum of three months. Customer is entitled to use the versions simultaneously within a parallel operation during this transition phase. 4 Maintenance Window / Job Planning Contractor has to plan the Services and coordinate with Customer in such a way that the use of the Software by Customer is not adversely affected by the Services. If the Services cannot be avoided during the regular operating hours of the Software, Contractor shall inform Customer of the reason and cause and the parties shall agree upon a maintenance window no later than two weeks before the Services are carried out in order to avoid or minimize any disruption of Customer s operations.
5 5 Data Protection, Information Security and Data Backup Measures Contractor shall comply with the generally accepted principles of data processing when performing the Services. These include, for example, protection against malware (e.g. Trojan Horses, viruses, spyware, etc.), information security and data backup measures, compliance with data protection regulations and all precautions and measures in accordance with the Standard for Services in information and communication technology. If data backup by Contractor is also included in the Services, then Contractor must carry out suitable measures for backing up and restoring data. The data shall be backed up at regular intervals in such a way that it is possible to recover the data in a reliable manner, and subject to adequate data security measures. Contractor shall provide for suitable and reasonable measures to recover the Software in the event of a Software failure. The appendix Data Protection and Information Security for the GPC-IT Hardware Maintenance, Hardware Lease, Software Maintenance and Standard Software Lease shall additionally apply for data protection and information security. 6 Place of Performance and Modification of the Installation The Services shall be performed at the Customer s facilities. If necessary, Contractor may carry out the Services in one of its facilities. Customer shall grant Contractor access to the Software at Customer's facilities by means of remote maintenance access (remote access), and Contractor shall be required to comply with Customer's system landscape and security regulations. If the Software upon which Contractor is providing maintenance is to be installed or implemented at a place of performance other than that stated in the Contract, Contractor should be notified in writing, and Contractor shall continue to provide the Services at the new location. If the new location has a material effect on the cost of performing the Services, then Contractor can request an appropriate adjustment of the pricing and the parties will enter into a written agreement documenting a price adjustment. 7 Defects and Impairment of Performance The Services are defective if Malfunctions or defects are not rectified, not rectified to the required extent, or not rectified in the agreed upon time frames or services levels or, if none are agreed upon, within a reasonable time. Contractor may rectify defects that Customer agrees are insignificant in the course of the next regular services but all other defects must be promptly rectified. The Documentation is defective if a user with the knowledge generally to be expected in the application of the Software is unable, with reasonable effort and after consulting the Documentation, either to work out how to operate individual functions or to solve problems that arise, without support or assistance from Contractor. If Contractor provides a workaround for Malfunctions, this shall not be regarded as defective Services provided the workaround is replaced by a fully functional, permanent solution within the agreed upon time frames or service levels or, if none are agreed upon, within a reasonable time. Contractor may, in consultation with Customer, make temporary changes to the configuration of the Software if and insofar as the operability of the Software is restored within the agreed upon time frames or service levels or, if none are agreed upon, within a reasonable time. A Malfunction is first rectified, however, when the workaround is replaced by a complete rectification of the Malfunction within the agreed upon time frames or service levels or, if none are agreed upon, within a reasonable time. In the event of Malfunctions that are not solely caused by the Software, the costs incurred for troubleshooting, analysis and repair shall be reasonably allocated or reimbursed in accordance with the respective contributions to the cause of the malfunction. The remuneration rates agreed for services on a time and materials basis shall apply to the repair of the Malfunction, prorated based on the cause of the Malfunction. All repairs made in accordance with this provision shall be invoiced to Customer at the agreed upon rates. 7.1 Reduction If Contractor does not rectify a Malfunction in the agreed upon time frame or services levels or, if none are agreed upon, within a reasonable time, and if the efficiency of the Software or parts of the Software is reduced as a result, then Customer's
6 maintenance fee for this period shall be reduced on a pro-rata basis. If it is not possible to use the Software or individual parts as anticipated by the Contract as a result of the Malfunction, Customer shall be exempted from paying a maintenance fee for this period. This provision shall apply when the use of the Software in accordance with the Contract is totally or partially impaired because of a conflict with the rights of third parties. 7.2 Re-performance / termination Contractor is obligated to re-perform the Services in the event the Services are defective. If such re-performance is not successful and the defective performance or the unsuccessful rectification of the defect significantly restricts the use of the Software, Customer may terminate the Contract or the applicable Purchase Order pursuant to Clause 11 of Part A. 7.3 Default If Contractor does not perform in response to a notification of a Malfunction from Customer within the agreed time limit or, in the absence of an agreement, within a reasonable time, Contractor shall be in default. 7.4 Retention and setoff of payments If Contractor does not fulfill its duties, Customer can withhold payment for the Services until Contractor has fulfilled its duties in full in accordance with the Contract. Customer can deduct its claims against Contractor for breaches of contract from payments to Contractor. 8.2 Termination Either party may terminate this Part G in accordance with the termination rights set forth in Part A of the GPC-IT, Clause 11. Any termination has to be made in writing in order to be effective. 8.3 Completion Should it not be possible for Customer to transfer the Services to a third party at the end of the Contract or to integrate them in its own business operations without any adverse affects, Customer can request Contractor to continue the Contract beyond its date of termination in order to maintain the business operations of the division affected. This shall apply until such time as full continuation is ensured either within the business operations of Customer or by a third party, however for no longer than six months after the date of termination. The parties shall endeavor to reach a mutual agreement on a solution that ensures a suitable transition, but in no event shall Contractor be entitled to stop providing the Services. If the parties are unable to agree on terms for the six month extension, the terms of this Contract shall continue to apply. The above regulations shall also apply in the event of extraordinary termination. 8.4 Return Following termination of this Agreement, Customer shall surrender and return to Contractor, the Software, including data carriers and Documentation supplied to Customer, upon Contractor's request. 7.5 Further Claims The rights in this Clause 7 shall not limit or supersede Customer's right to assert any other claims or causes of action it may have under the Contract and common law. 8 Term, Termination and Completion 8.1 Term The Services shall commence on the date set forth in the applicable Purchase Order. The Contract ends automatically at the end of the fixed term agreed to in the applicable Purchase Order, unless earlier terminated pursuant to Clause 11 of Part A.
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