I. General

  1. The following terms and conditions apply to the MKW service agreements "MK|Ware“.
  2. The object is the provision of services for the software product "MK|Ware" through MKW.
  3. The services to be provided by MKW shall consist of services relating to the diagnosis and elimination of errors in the "MK|Ware" software as well as the preparation of service calls within the contractually specified response times, provided that this is possible with the aid of remote maintenance or remote diagnosis.

 

II. Service provision

  1. MKW will provide the services according to the respective state of proven technology.
  2. MKW will only use qualified and reliable personnel. He will only use proven procedures, tools and tools whose suitability he knows, whose execution he masters and which correspond to the applicable state of the art.

 

III. Troubleshooting

  1. MKW will respond to the notification of a defect by the Customer, according to the deadlines concluded in the Service Agreement.
  2. MKW will provide a service hotline (telephone hotline) for the contact person designated by the Customer to receive the Customer's reports. The hotline is manned around the clock, 7 days a week. The telephone support will be provided in German and English.

 

IV. Service hours

  1. MKW will provide the services within the service times agreed in the service contract.
  2. MKW cannot provide services outside the agreed service times, even if the malfunction that has occurred objectively does not tolerate any delay.

 

V. Other troubleshooting and customization services, consulting

  1. MKW shall, at the Customer's request and on the basis of a separate order, perform other troubleshooting and adjustment services, in particular:
    - Changes to the software, in particular adaptation to new products and services and to changes in the customer's operating procedures;
    - Adaptation of the software to a changed hardware and/or software environment of the customer, including new program versions (e.g. new releases, updates/upgrades) of third-party software used in the system;
    - Elimination of malfunctions caused by improper operation of the software by the customer, by force majeure, intervention by third parties or by other effects not caused by MKW;
    - Other adaptations, additions and extensions to the software as requested by the customer;
    - Consulting Services.
  2. A claim for remuneration by MKW requires a written order by the Customer.
  3. MKW may refuse to provide other error correction and adjustment services as well as consulting services only if the performance of such services is demonstrably unreasonable within the scope of MKW's operational capabilities.

 

VI. Cooperation of the customer

  1. Defects in the software must always be reported by telephone via the service hotline. In the case of a report that is not made via the service hotline, the customer waives the contractually agreed response time. The notification by telephone shall include the Customer's name, the name of the contact person as well as a callback number. A short description of the error can also be given.
  2. The Customer shall grant MKW on-site access to its own premises during its regular business hours and to the necessary extent and access to the hardware and software required for the provision of the service as well as provide the necessary technical equipment. If required by the urgency of the respective service, access shall also be granted outside the Customer's regular business hours. MKW shall ensure that the Customer's business operations are disturbed as little as possible by its activities on site.


VII. Remuneration

  1. The customer will pay for the services of MKW, according to the contractually agreed service, on a monthly basis plus the statutory value added tax. The due date is measured by the contractually agreed period.
  2. A separate remuneration shall be due for the services to be provided in accordance with item V. This remuneration shall be determined in accordance with a separate offer by MKW. The Parties are free to agree on a different remuneration model for these services.


VIII. Defects of quality and title

  1. MKW warrants that the services owed under the contract are free from defects and from third party rights.
  2. In the event that the contractual services should infringe the property rights of third parties, the customer shall immediately notify MKW in writing and provide MKW with the information and other appropriate support required to defend itself against such infringement.
  3. MKW shall, at its own expense and at its own discretion, either procure the necessary rights of use for the Customer or modify the contractual services in such a way that they no longer infringe third-party property rights but continue to comply with the contractual agreements. In the latter case MKW shall carry out all necessary conversions, changes, adaptation of documentation, training, etc.. If MKW is not able to grant the necessary rights of use or to modify the contractual services accordingly, the Customer shall be entitled to terminate the contract immediately. The Customer's right to assert claims for damages in excess thereof shall remain unaffected.
  4. In case of infringement of property rights of third parties, MKW shall indemnify the customer from all resulting claims and claims for damages as well as from the costs of legal defense in an appropriate amount against proof. The indemnification is subject to the condition that the customer will only settle or acknowledge the claims asserted by the third party with the prior written consent of MKW.


IX. Liability

  1. MKW has unlimited liability
    - in the event of intent or gross negligence,
    - for injury to life, limb or health,
    - in accordance with the provisions of the Product Liability Act as well as
  2. In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), MKW's liability shall be limited to the amount of damage that is foreseeable and typical according to the nature of the transaction in question.
  3. Any further liability of MKW does not exist.
  4. The above limitation of liability shall also apply to the personal liability of MKW's employees, representatives and bodies.


X. Term and termination

  1. The contract begins when the customer places an order with MKW. The order must be received before the beginning of the respective month and runs for a period of one month or 12 months.
  2. The customer is entitled to terminate the 12-month contract already during the fixed term at the end of a month, in each case with a notice period of 4 weeks. In the event of premature termination, the discount granted in advance will be charged for the actual contract term.
  3. The right of both parties to extraordinary termination for good cause shall remain unaffected. Good cause shall be deemed to exist in particular if
    - if the financial position of the other party deteriorates significantly,
    - if insolvency proceedings are opened against the assets of the respective other party or the opening of such proceedings is rejected for lack of assets, or if the underlying service agreement is terminated by notice of termination, rescission, avoidance or in any other way.
  4. Any termination must be in writing.


XI. Confidentiality

  1. "Confidential Information" shall mean all information and documents of the respective other party which are marked as confidential or which are to be regarded as confidential due to the circumstances, in particular information on operational processes, business relations and know-how, as well as - for MKW - all work results.
  2. The parties agree to maintain confidentiality about such confidential information. This obligation shall continue for a period of 5 years after termination of the contract.
  3. Such confidential information is exempt from this obligation,
    a) which were demonstrably already known to the recipient at the time the contract was concluded or subsequently become known to it from a third party, without this violating a confidentiality agreement, statutory regulations or official orders;
    b) which are public knowledge at the time of the conclusion of the contract or are made public thereafter, insofar as this is not based on a breach of this contract;
    c) which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obligated to disclose shall inform the other party in advance and give it the opportunity to object to the disclosure.
  4. The parties will only grant access to confidential information to consultants who are subject to professional secrecy or who have been previously imposed obligations corresponding to the confidentiality obligations of the contract. Furthermore, the parties will only disclose the confidential information to those employees who need to know it for the performance of the contract and will also oblige these employees to maintain confidentiality to the extent permitted by employment law for the time after their departure.
  5. Any culpable breach of the above confidentiality obligations and/or resulting from corresponding statutory provisions (e.g. §§ 17. 18 of the German Unfair Competition Act), the party responsible for such breach promises to compensate the disclosing party for the damage demonstrably incurred. Further claims of the parties remain unaffected.

 

XII. Data protection and information security

  1. MKW shall observe all relevant laws and regulations on the protection of personal data when providing the contractually owed services.
  2. MKW has taken appropriate and state-of-the-art organizational and technical measures to ensure the availability, integrity, authenticity and confidentiality of its information systems, components and processes used in the context of the provision of services and of all data provided or otherwise made accessible by the Customer. These requirements shall also apply to communication and cooperation with the Customer. When using systems not subject to its access, it shall impose corresponding obligations on its contractual partners and regularly monitor compliance with such obligations MKW shall further be obliged to regularly back up data to the extent required.
  3. The customer is entitled to check compliance with the data security requirements at any time after prior written notice of at least 14 working days. For this purpose, MKW shall grant him access to its business facilities relevant for the inspection, in particular the EDP facilities, during its usual business hours.


XIII. Other

  1. In case of contradictions with the contracts already concluded between the Parties, the provisions of the "MK|Ware" service contract shall prevail.
  2. The customer may transfer claims against MKW based on the contract to third parties only with the written consent of MKW.
  3. Each contracting party may only set off against claims of the other contracting party that are undisputed or have become res judicata.
  4. Amendments and supplements to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
  5. General terms and conditions of both parties shall not apply.
  6. The contract concluded shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention). The parties are aware that IT services may be subject to export and import restrictions. In particular, licensing requirements may exist and/or the use of the Software or related technologies may be subject to restrictions abroad. MKW shall comply with the applicable export and import control regulations of the Federal Republic of Germany and the European Union, as well as all other relevant regulations. The fulfillment of the contract by MKW is subject to the proviso that no obstacles due to national and international regulations of export and import law as well as no other legal regulations prevent the fulfillment.
  7. Place of performance is Wuppertal. The exclusive place of jurisdiction is Wuppertal, provided that each party is a merchant or a legal entity under public law.


MKW GmbH Digital Automation Derken 15
42327 Wuppertal
Status: January 2021

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