Object of these conditions is

• to describe the licensing for the use of standard software (VENTAS modules, VDC, A4GL) according to the specifications of the order confirmation;
• the development, modification and / or expansion of custom software and making adaptations of the standard software according to specifications;
• the consulting and support of the user and the granting of rights to use the software products.

a) The standard software is delivered in executable code with online help instead of a physical manual. The contractual arrangements made with the user are described in the order confirmation for standard software. The VENTAS AG may deliver software as a data carrier (CD-ROM, DVD, File), remote data transmission, web link or e-mail.
The briefing consists in a short initial training of the operating personnel of the customer in the use of programs and in the handling of related forms and media. The user is providing adequate staff available which is committed to attend the courses and seminars offered by the VENTAS AG.
b) The development of custom software may include, depending on the agreement:

• Problem analysis
• Organization / system planning
• Programming
• Program test
• Documentation
• Instruction in the use of the programs

The problem analysis is to develop a proposal due to the specifications, such as those specified by the user to be solved (rough draft).

Organization is the definition of workflows in verbal and / or graphical form in accordance with the requirements set in the rough concept. The resulting organization description(detailed design) must be signed by the user as binding (detailed concept) and serves as the sole basis for programming.

If necessary, the final system configuration should be defined.
Programming translates the conditions laid down in the organization description workflows to the corresponding programming language.

The final program testing shall be done after programming. The documentation is subject to the usual rules of the VENTAS AG and contains usually verbal description and online help. It is provided to the user once the programming was deployed. For training the VENTAS AG provides appropriate courses and seminars. The conditions referred to in paragraph 1a) with respect to the training shall also apply.

The agreements regarding the development of custom software results from the order confirmation or from the specifications.

c) Providing advice and assistance may relate to

• Problem analysis
• Programming
• Program test
• Documentation
• Transition planning
• Project management
• Briefing

Further agreements should be described in the order confirmation or in the service form.

d) A delivery of the source code as well as the programming environment (A4GL) could be agreed.

The user agrees to actively participate according to these conditions.

In addition to an eventually required submission of the specification and the acceptance of the organization concept the customer will immediately provide the VENTAS AG with all the information needed to program and implement the project. In particular, the user

• timely provide all the resources required for the necessary work. This relates to the low-level components (such as hardware, system software, network and PC’s), if the system components are not in provided by the VENTAS AG and provide the availability of his own employees. Additional expenses due to any lack or limited availability will be charged
• designate a contact person who can issue binding information and is equipped with the necessary decision-making authority. The user has to make sure that this contact person is available during 80% of his working time for the project
• provide qualified personnel that is able to use the programs in an adequate manner
• to approve the quantity framework made according to the informations given
• test the delivered solution before starting with the operational use
• if necessary, to make available its data processing system for testing purposes.

Any additional expense that VENTAS AG caused because of incomplete or incorrect information, will be charged to the customer.

The personalization of the user required documents and the corresponding adaptations of the standard documents is performed by the user. This also applies to the individual design of specific reports and lists (e. g. with Cognos products).

At project begin the project structure and the time and organizational project schedule must be defined (project plan).

The work is usually during normal working hours at the VENTAS AG (Monday to Friday from 9 to 17 clock) in the site of the VENTAS AG. In exceptional cases, they may also be carried out at the locations of the user by prior arrangement. In such exceptional cases, the travel times are part of the working time to be charged.

The VENTAS AG is entitled to transfer the execution of the work in whole or in part to any third party.

To partial services/programming and partial invoicing VENTAS AG is entitled.

Each program is delivered with the delivery note. The media required to provide the programs according to Paragraph 1a) are considered accepted by delivery. Programs according to Paragraph 1b) are to be accepted soon after delivery by the user. The acceptance is documented by countersignature of the user on the software receipt form or by Email.

If the customer does not confirm the acceptance, then the programs are considered as accepted four weeks after delivery of individual modules or two weeks after delivery of functions changed unless previously a significant deficiency is detected, which makes it impossible to use the programs. About the consequence of not accepting the program in time will VENTAS refer by delivery.

The amount of payment for product delivery results from the order confirmation. Unless otherwise agreed, the invoicing follows immediately after delivery of the software or the service.

Otherwise, it occurs for

• the deployment of standard software (Paragraph 1) at program delivery;

• the development, modification and / or expansion of custom software as well as for making adaptations for standard software (paragrahp 1b) to 50% of the amount after sending the order confirmation, 40% at delivery and 10% at acceptance;

• the consulting and support after performance, based on a service form signed by the customer or other performance evidence.

The invoicing of other services (e. g. as delivery of data volumes) follows the same principles.

All prices are net and the applicable VAT at the time will be added. Invoices are payable immediately without discount. If payment is delayed VENTAS AG is entitled to charge interest at the rate of 4% above the base rate of the European Central Bank.

The user can make a retention of a payment only if it is based on claims from the same contract. An offsetting is only possible if the VENTAS AG has recognized the counter-demand or this has been legally established.

The VENTAS AG grants a non-transferable and non-exclusive right to use the Software in accordance with the order confirmation. The user is authorized to use the unmodified Software for the in the order confirmation stated number of defined users. He is also allowed to use the software for different companies, working on the same server. The software may be used on only one logical server. The user is not allowed to decompile or reverse engineer the software products or extract any program parts.

The data model (tables and columns in the database) is part of VENTAS software and also protected by copyright. The customer is not entitled to analyze and pass to others the SQL command sequences during program execution.

The making of up to two copies is permitted for data backup. The user will keep track of the copies which can be viewed on request by the VENTAS AG. Documentation may not be copied.

The user will ensure without time limitation that the software products, whose backup copies, documentation and any screen shots are not made available to others without the written consent of the VENTAS AG.

Any other use, e. g. a use on different servers, will need the prior written consent of the VENTAS AG.

If Hardware components will be supplied with the software the license of use will end if the customer makes replacements of major parts of the hardware configuration without the written consent VENTAS AG.
If the source code is supplied, it must not be disclosed to third parties. Changes may be only used for personal use and for the agreed number of users. Changes on the source code should be made available to the VENTAS AG. VENTAS has the right to incorporate these changes into the standard software. The warranty does not apply to modules that were changed by the user. For code that is defined as open source, the license conditions are specified in the source code itself.

Compliance of Licenses
Businesses, companies and organizations agree that we – no more than once every twelve (12) months after notifying seven (7) days in advance – are entitled to assign our staff or an independent third party who is sworn to secrecy, with reviewing systems and equipment to make sure that the installation and use of any VENTAS software or services are in conformity with valid licenses. In addition, you must provide us within 30 days of a request by us, all documents and information requested to ensure that the installation and use of any Software and Services will be in accordance with valid VENTAS licenses. If the check shows that not enough licenses have been acquired for the software or services, then you purchase immediately the missing licenses, subscriptions and maintenance and support also for the previous period. If the underpaid fees exceed 5% of the value of the amount of license fees, we can invoice reasonable costs for the review.

The VENTAS AG ensures, that the goods sold as such in the Federal Republic of Germany are free from third party intellectual property rights. If third parties would make legitimate claims then the VENTAS AG will obtain a license at its option and at its costs for the customer, or replace the goods sold by such free of property rights or – if these measures are not feasible or an unreasonable economic burden – take it back for a refund of approximately the not yet used remuneration.

The VENTAS AG is liable for any further claims solely on the basis of Paragraph 11.

The delivery dates results from the project plan.

A timely and proper performance of the contract owed by VENTAS AG Services is only possible if the user fulfills its obligations to cooperate referred to in paragraph 2 in time.

If the customer wish to change the agreed scope then a new written agreement about the delivery date is needed. Any additional costs are the responsibility of the customer.

If VENTAS or the customer have a delay in the provision of services or duties, then the other partner determines a reasonable grace period – at least two weeks – and at the same time he can announce the denial of service acceptance after the grace period. After fruitless expiry of such grace period, the contractor who has set the deadline, can cancel the contract. The previously done works or services by the VENTAS AG are to be paid.
Damage claims by the user for delay or non-performance are excluded if the VENTAS AG is not guilty of willful intent or gross negligence.

If the customers delays a payment of a previous delivery work or service, then the VENTAS AG is entitled to withhold services without being obliged to compensate for any resulting damages.

Software products that are lost or damaged during shipment to the user will be replaced by the VENTAS AG free of charge. If the loss or damage occurs after delivery, then the VENTAS AG makes replacement invoicing a fee.

According to the state of the actual technology we can not exclude that deficiencies in programs and related materials may occur. Deficiencies are not insignificant deviations from the product or service description.

The warranty of the standard software product includes the error diagnosis and troubleshooting, as far as the user claims a deficiency immediately, but at latest 12 months after delivery, in case of not immediately recognizable defects – 12 months after acceptance of programs in accordance with paragraph 1b) – sending to us a support request or email.

Correction of defects occurs by delivery of a new revision level of the software. The condition is that the error is reproducible and occurs in the last change state of the software. The warranty shall be void if defects were caused by changes though the user or third parties not hired by VENTAS AG, who changed the software or its configuration or by the user though changes in the data of the database not using VENTAS software.

The VENTAS AG has the right to provide before the final resolve an interim solution to bypass the defect if this is possible with reasonable effort and if the customer can no longer work because of the error.

Fails it is not possible to solve the defect in the hardware or software products within a reasonable period of time, or if the user cannot avoid the problem with the help of a workaround, then, the user’s right to cancel the contract remains unaffected.

Further claims are excluded, unless mandatory legal provisions.

If the review by the VENTAS AG reveals that a defect is not present or that it is based on changes through to the user or though third party, the user shall bear the cost of the effort VENTAS AG incurred.

The VENTAS AG is liable for whatever legal reason – even by delay or impossibility – only for intent and gross negligence, unless there are violations of essential cardinal duties of the contract or the customer would be unfairly disadvantaged.

For damages arising from negligence when concluding the contract, on positive breach of contract, for faulty advice and assistance in using the software or software defects, the VENTAS AG is only liable on intent or gross negligence or by the absence of guaranteed properties.

In particular, for lack of commercial success, lost of profit, business interruption, indirect damages, consequential damages and claims of third parties we are not liable according to paragraph 11 section 1. The customer is expressly pointed out that he has to save the stored and processed data adequately against loss.

We emphasize that the VENTAS AG accepts no liability for any loss of data or damage resulting therefrom, if no intent or gross negligence occurs and the customer has ensured making available the data in machine-readable form that the data can be reconstructed with reasonable effort. The VENTAS AG does not replace the cost of restoring lost data.

The VENTAS AG assumes no liability for direct personal or property damage incurred by the client caused trough gross negligence caused by the VENTAS AG. Direct damage is the effort that is needed to restore the damaged goods.

Liability is limited to the amount of the order confirmation.

The VENTAS AG is committed to treat all informations and handle secrets of the customer in a confidential way and not to disclose to third parties. The VENTAS AG is also impose this obligation to their employees.

The foregoing regulations shall apply also to the customer and its employees.

All data and informations received in relation with the business relationship are processed in accordance with the german law by the VENTAS AG or its affiliated companies.

Side agreements, amendments and / or additions to the contract must be made in writing manner.

Should any of the above regulations – for whatever legal reason – be or become invalid, such invalidity shall not affect the validity of the remaining regulations.

Jurisdiction for all in connection with the contract disputes arising is Hamburg, if the user is a merchant or legal entity. However VENTAS AG is entitled to select the locally competent court if the customer is not based in Hamburg.
The law of the Federal Republic of Germany applies.

Status: March 2015

 

The following conditions apply to maintenance of software created by the VENTAS AG. For third-party software whose maintenance and conditions apply. The maintenance of foreign products is not included in the VENTAS maintenance. Third-party products are, among others, the database and the server operating system

1. The VENTAS AG takes care of the programs described in the maintenance order confirmation. The order confirmation and these conditions are both part of the contract. The following terms are defined contractually as follows:

– Error processing media / bug fix: A data media containing an error correction in machine-readable language destined to remove a fault of the program or to provide a work around. It does not provide feature enhancements.

– Update and / or upgrade, changes the state of the software: A program which contains functional enhancements and error correction and is characterized by the manufacturer of the program as an update and / or upgrade and made available for certain computer systems and sold by the VENTAS AG generally under that name.

2. The duty of care by the VENTAS AG refers only to those products indicated in the order confirmation for the maintenance programs (unmodified programs).

3. The customer is committed to assign one of his employees to designate the VENTAS AG in particular to clarify who is authorized as the person responsible solely to make demands or communications to the VENTAS AG. It is up to the customer to appoint a deputy.

4. The contractual services for VENTAS software include:

– Hotline service, handling of error messages (service request of the user)
– Product Information
– Free update service
– Discounted upgrade service

5. If the customer realizes that a reproducible problem represents a significant negative deviation of the functional capability according to the contract or from the normal standard functionality, the VENTAS AG will start solving the problem using the transmitted service request from the user or will offer a work around . The on-site troubleshooting is calculated separately. It is clarified that success can not be guaranteed if the error is caused by third party suppliers.

The maintenance obligation does not apply if defects are not reproducible or based on unauthorized changes third parties made at advice of the customer.

If a review by the VENTAS AG shows that a deficiency does not exist, or that it is based on changes through the user or by not from the VENTAS AG authorized third parties, the user shall bear the costs caused at the VENTAS AG.

The VENTAS AG is entitled to replace the products by advanced versions, unless that adoption by the user is unacceptable.

Should an exchange of products as part of the maintenance be requested will the VENTAS AG handle the installation against payment within reasonable, technical and economical limits.

To carry out the maintenance the customer allows the VENTAS AG to make use of all used programs and equipment, also from third parties if needed, together with the documentation.

The VENTAS AG can invoice separately for program change become necessary and services not included in the maintenance contract as well like :

– Services that are provided at the request of the user outside of normal business hours,

– Diagnosing and rectifying faults or damage caused by improper handling or VENTAS being not responsible of it,

– Installation of new versions of the software

– Required by the user on deployment, consulting, software engineering and support services.
Please refer to the currently valid service price list.

1. For the service performance of the VENTAS AG, the customer pays a fee on a regular basis, regardless of whether the VENTAS AG is requested to do some work or not during the contract period. The fee depends on amount on the order confirmation. If the prices would be increased, due to the general price list of the VENTAS AG, the customer will be informed in writing and invoice it accordingly.

2. The payment of the regular fee covers all services as in paragraph 1 section 5. On site services shall be charged separately.

3. The maintenance fee is payable annually in advance by direct debit. Due at the start of maintenance the amount until the end of the calendar year will be invoiced.

4. The agreed fee is to be adapted if any extension or modification of the to-maintain software programs are made.

5. The fee does not include the applicable VAT.

6. For software changes the fee will be adapted as follows: 20% to one-third of the value of the change in advance each year, beginning with the acceptance.

1. In the case the VENTAS AG does not comply its obligations corresponding to paragraph 1 section 5 the customer has to determine a reasonable grace period of at least 2 weeks. After fruitless expiry of this period, the customer may either reduce the agreed remuneration fairly or terminate the contract. The VENTAS liable within the scope of paragraph 4 of this Agreement for any damage due to delay or impossibility.

2. A support obligation on the part of VENTAS AG ends if the customer does not have a valid license or if the customer exceeds the granted right of use according to the license agreement. This is especially true for program changes and extensions.

3. Changing the software configuration, either by applying software or modifying system parameters as well as changing the hardware configuration by the customer requires the written permission of VENTAS AG. Also ends the duty of maintenance if the customer has a version level that is older than the second last version. The VENTAS AG has the right to to correct errors by delivering a next software version.

4. If the customer makes any incorrect disclosures and because of this no solution is possible, then the VENTAS AG can charge this effort to the customer in accordance with the currently valid service price list. This is especially true for false information to the software configuration, system parameters, or hardware configuration.

5. Four priority levels can be distinguished:

Priority, description

A: System shutdown, a work as a whole is no longer possible. The response time for A cases is maximum one working day.

B: System critical, a work can be realized only with significant limitations. A workaround is not possible. The reaction time for B-cases is not more than two weeks.

C: Error condition, one or more components do not operate reliably and with undue performance and / or functionality loss. The reaction time for C-cases amounts to a maximum of three months.

D: General question for example to optimize the response time of the system or about the system configuration / administration.

The service case will be closed no later than one week after sending the answer, unless objective reasons (ineffectiveness of the solution e. g.) are against it.

6. The hotline service of the support department of the VENTAS AG will be on weekdays from Monday to Thursday from 9 to 12:00 and 14:00 clock to 16.30 clock, Friday until 14.00 clock (german time and in german language). During this time the VENTAS AG takes urgent fault messages or requests that are outside of the scope of the maintenance. The VENTAS AG reserves the right, first internally route the client request to a competent employee who will begin with the work on this request later. Also, the VENTAS AG reserves the right to require the use of the service notification module or email for complex queries.

7. Questions to the hotline caused of lack of training on the program operation can be charged separately accordingly to the services price list. Error messages or problems must be sent in writing (possibly supplemented by Email or fax) using the service module provided by the VENTAS AG.

8. If the customer requests the processing of a maintenance request outside of business times of the VENTAS AG then the time will be charged.

9. The cost of communications for remote maintenance and remote support bear the customer.

1. The VENTAS AG is liable for whatever legal reason – even by delay or impossibility – only for intent and gross negligence, unless there are violations of essential cardinal duties of the contract or the customer would be unfairly disadvantaged. For damages arising from negligence when concluding the contract, on positive breach of contract, for faulty advice and assistance in using the software or software defects the VENTAS AG is only liable in the case of intent or gross negligence.

2. For lack of commercial success, lost profits, business interruption, indirect or consequential damages, including lost profit and claims of third parties we are liable only according to paragraph 4, section 1. The Customer is expressly pointed out that he has to save the data loaded and processed adequately against loss. It is pointed out that the VENTAS AG accepts no liability for any loss of data or damage resulting therefrom.

3. The VENTAS AG does not replace the cost of recovery of lost data.

4. The VENTAS AG accepts liability for any direct injury or damage incurred by the customer due to gross negligence on the part of VENTAS AG. Direct damage is one effort that is needed to restore the damaged goods.

5. The liability is limited to the amount of a year fee according to paragraph 2 section 1 of this agreement

1. The maintenance agreement is effective upon signature by the customer of the offer or order confirmation and begins from the date of the agreed contract rand uns indefinitely. If the serviceable program is delivered after the agreed start date, then maintenance begins at delivery of the program.

2. The maintenance agreement may be terminated 12 months after the start of the contract within a period of 3 months to the end of the next contract year.

3. In the case of substantial violations of contractual obligations by the customer VENTAS AG is entitled to immediately terminate the maintenance contract. As a significant non-compliance is if the maintenance fee remains unpaid more than 45 days or the brach of the contract according to paragraph 1 section 3 of this agreement.

1. In this agreement, all rights and obligations of the parties are governed, changes are only in writing with reference to this agreement and mutually sign.

2. The corresponding supplements are an integral part of this contract at the signing.

3. Place of jurisdiction for all disputes arising from this contract is Hamburg, as far as the customer is a merchant or a company.

4. If any provision of this Agreement shall not be legally effective or lose their effectiveness through a later circumstance, or should be a gap in this contract, thereby the validity of the remaining regulations shall not be affected. Invalid contractual regulations hat to be replaced in order to come closest to what the parties would have intended if they had considered this point.

The law of the Federal Republic of Germany applies.

Status: March 2015

The VENTAS cloud and all hosting services are generally available 24 hours a day, but VENTAS can not guarantee the uninterrupted availability of all services provided. It is also possible that some services or functionalities are not provided in certain countries in the case of embargo or export restrictions.

The customer will keep his password, login and all data that allow unauthorized access to its VENTAS cloud account secret and he will immediately change it or let change by VENTAS if there is reason to suspect that unauthorized third parties have gained knowledge of it . The customer is liable for third parties who use authorized or unauthorized services using his account or have used. This does not apply if the customer is not responsible for any unauthorized use. The customer has to prove that he was not responsible for such use.

As far as VENTAS provides the customer storage capacity in the VENTAS cloud, the customer is responsible for the stored contents. The customer keep VENTAS not liable for third party claims regarding the stored content (e.g. as for violation of copyright or trademark rights), unless he is not responsible.

When as a part of the services a data storage occurs, it is advisable to continue making regular backups of your content. We can set appropriate technical limitations for your content such as restrictions on file size, storage space and processing capacity, among others. We may suspend services until the specified memory limit for your account is no longer exceeded or or invoice a reasonable additional charge.

You retain all right, title and ownership of your content. We do not claim ownership of your content. You grant us access to your data, if this is necessary to provide requested services, as in the case of maintenance.

To use the software, you may have to take certain steps to activate the software or to confirm your subscription. If the software is not activated or registered or if your subscription is not confirmed or we find a fraudulent or unauthorized use of the software, then this may have the effect that the functionality of the software is limited or the software is no longer functional or your subscription will terminate or get suspended.

7.1 Responsible use.
The VENTAS community consists of users who expect a certain degree of courtesy and professionalism. You must use the services responsibly.

7.2 Misuse.
You must not misuse the Services or the Software. So for example you are not entitled to:

a) Change or copy the services provided, sublicense or resell it;

b) to use the content or software included in the services to create a database;

c) the services through any other access way than the interface provided by us or to attempt it;

d) to bypass our restrictions of access ;

e) to fake you identity or your connection to any other person or entity;

f) to try to disable the service, the software or the hardware, or impair or destroy it;

g) to participate in chain letters, unsolicited commercial mail, pyramid schemes, spam or other unsolicited e-mails using the VENTAS services;

h) promote or advertise products or services using our services and software, except as expressly authorized by us;

i) apply database analysis or similar data gathering and extraction methods in connection with our services.

8.1 Termination by you shall be in writing. The termination of your account does not relieve you of any obligations to pay outstanding fees. Cloud services can be terminated with a period of three months to the end of the year.

8.2 Termination by us
If we terminate this contract without an important reason, we will notify you at least 30 days prior to termination by notice to the email address provided by you and give you instructions on how you can retrieve your content. Unless otherwise specified in additional terms, we may terminate these contract at any time if:

a) you violate any of these regulations (or act in a manner from which it is apparent that you do not intend to, or are not able to fulfill these requirements);

b) you don’t pay fees for the software, or services, on schedule;

c) it is necessary for us for legal reasons (for example, where the provision of services or software is illegal for you or will.);

d) we decide to suspend the Services or the Software in whole or in part; or

e) if your free account is not used for a long period of time. The right to immediate termination for important cause remains unaffected, especially in violation of these terms or agreements.

8.3 Persistence
After the expiry or termination of these Terms any perpetual licenses remain granted to you, your Indemnity obligations and our warranty disclaimers or limitations of liability as well as our General Terms and Maintenance conditions remain valid. Upon expiration or termination of the services, the software can no longer be functional without prior notice, in whole or in part.

8.4 Disclosure
We can access to information about you, or your use of the services or these disclose

a) if this is required by law

b) to respond to your request supports or

c) if we consider such a step to be necessary to protect the rights, property or personal safety of us, our users or the public.

9.1 German version
With regard to the interpretation and interpretation of these terms only the German version shall prevail.

9.2 Warranty for cloud services and software
The warranty period associated with the software corresponding to the duration of your subscription. Our total liability in relation to a warranty claim and your exclusive rights under a warranty are limited at our discretion upon the support of our software on the basis of the warranty claim, the replacement of the Software or, if a support or a replacement is not feasible, the reimbursement of in advance paid subscription fees. While these provisions apply to claims for damages that you submit in connection with your use of the software, we shall be liable in the event of a breach by us for direct damages that are reasonably foreseeable. It is advisable to take all to avoid and reduce damages through adequate measures, in particular to make back-up copies of the Software and computer data.

9.3 Decompilation
Nothing contained herein restricts a non-dispensable right to decompile the software which you are entitled under the applicable law under certain circumstances.
If you are located, for example, in the European Union (EU), you may be entitled under applicable law to decompile the software if this is necessary in order to achieve interoperability between the Software and another software program, if we have not provided this information. In this case, you must request in writing to us what is necessary in order to achieve interoperability first. The decompilation may further be performed by you or by someone who is authorized to use the software on your behalf. We are entitled to set reasonable conditions before providing the information. You may use the information provided by us only for the purpose described in this section. You may not disclose to any third party or use it in any manner that infringes our copyright or the copyright of the information of our licensors.

In all other cases our General Terms and Conditions to the use and creation of application software as well as our maintenance conditions apply.

The law of the Federal Republic of Germany applies.

Status: March 2015