Questions and answers about the openDesk distributor programme

No. Authorisation under the open-house procedure is granted on standard terms and conditions that are published in advance. There are no provisions for individual special conditions for specific applicants. Comments and suggestions for improvement may be submitted. However, any adjustments must be implemented uniformly in accordance with the relevant procedural and contractual provisions.

The Distributor Agreement provides for a multi-tiered granting of rights of use. ZenDiS grants the Distributor rights which the latter may sub-license to IT partners and, through them, to end customers in accordance with the terms of the contract. The provision and transfer of licence keys forms part of the practical implementation. It does not replace the contractual granting of the necessary rights of use. This model does not provide for the mere brokering of contracts between ZenDiS and end customers.

This model does not provide for a direct end-user licence agreement (EULA) between the component manufacturer and the end customer. Rather, the relevant licence terms of the component manufacturers are to be implemented within the contractual chain.

Distributors are responsible for drafting their own contracts with IT partners. In doing so, they must take into account the requirements of the Distributor Agreement and the relevant licence terms of the component manufacturers. Distributors may use their own standard terms and conditions, provided that these meet the aforementioned requirements. Merely passing on terms and conditions is not sufficient if the distributor is required under the Distributor Agreement to ensure that they are incorporated into the contract or complied with. Any drafting guidance and model clauses provided by ZenDiS are intended as non-binding guidance and do not replace the distributor’s own independent review of the contract.

The Distributor must ensure, through contractual arrangements within its partner network, that the obligations and restrictions on use set out in the Distributor Agreement are complied with. The contract provides that the Distributor shall be liable for any use of the software components or the openDesk integration layer by affiliated IT partners that is in breach of the contract. This liability shall not apply insofar as the distributor can demonstrate that it has duly incorporated the relevant restrictions and licence conditions into the sub-licence, has informed the IT partners of the need to comply with them, and has taken appropriate remedial action without delay upon becoming aware of any breaches. In addition, there are further contractual obligations, in particular regarding the proper disclosure and use of access data and licence keys. The distributor must inform ZenDiS immediately in writing of any material breaches that come to light and must notify ZenDiS of the remedial measures taken. In the event of breaches of the minimum service levels to be guaranteed under the contract, the distributor must, in accordance with the Distributor Agreement, take steps to remedy the situation and exhaust all contractual means of enforcement at its disposal. The IT partners remain responsible for their own operational services provided to end customers.

A distinction must be made here between the Distributor Agreement and individual subscriptions. The Distributor Agreement has a minimum term of two years and is subsequently renewed for a further year in each instance, unless it is terminated by giving three months’ notice before the end of the relevant term. For individual subscriptions, however, the Distributor Agreement does not contain any general automatic renewal provision. Their term and any renewals are governed by the relevant order, licence and subscription terms and conditions at the respective contractual level. The renewal of the Distributor Agreement does not result in the automatic renewal of individual subscriptions.

Actual usage must be recorded on an ongoing basis via the IT partners and reported by the distributor to ZenDiS on a quarterly basis. In the event of excess usage of the openDesk integration layer, ZenDiS will invoice the distributor for a retrospective adjustment fee, known as the ‘true-up’ fee. If actual usage falls short of the usage volume paid for in advance, no refund will be issued. The upfront fee is deemed to be the minimum fee for the relevant quarter. In the event of excess usage of individual software components, the distributor must immediately order the additional licences from the relevant component manufacturer and pay the corresponding fees directly to that manufacturer. How these costs are passed on to IT partners and end customers is governed by the agreements made with them.

The distributor must ensure, by contract, that the actual usage can be verified with the relevant IT partner. If the verification reveals unreported excess usage, the IT partner in question shall bear the reasonable costs of the verification. Furthermore, the distributor must agree to a contractual penalty payable by the IT partner to ZenDiS for any excess usage that is not reported or is not reported in good time. This penalty shall amount to twice the licence fees attributable to the unreported excess usage. The obligation to pay the outstanding licence fees remains in force.

A distinction must be made between the quarterly usage report, the annual report and the quarterly forecast. The usage report records actual usage, including any overages, and must be submitted to ZenDiS within 14 days of the end of the quarter. The distributor must ensure, by contract, that the IT partners continuously record the necessary usage data.

At the end of each calendar year, the distributor must also provide ZenDiS with anonymised or aggregated key figures on the usage and distribution of openDesk. These include, in particular, the number of users supported via the partner network, the reported usage figures and any significant breaches by IT partners of service levels agreed with end customers that have come to light, provided that this does not conflict with any statutory or contractual confidentiality obligations towards third parties. At the end of each quarter, a non-binding forecast regarding the development of licence orders and the partner network in the following quarter must also be submitted. This forecast does not replace the binding order.

The distributor must, at the request of an Approved Partner recognised by ZenDiS, enter into a contract with that partner regarding integration into its partner network and grant the specified sub-licences. This obligation does not apply generally to all IT partners, but only to Approved Partners. According to the published model contract, refusal is only possible if the Approved Partner fails to meet the quality, security and interoperability standards specified by ZenDiS, or if the conditions for its approval are no longer met.

No. Responsibility for any obligation to put the contract out to tender remains with the relevant public-sector end customer. The distributor is merely required to ensure that the IT partners involved inform interested public-sector parties, in an appropriate manner, of any obligations under public procurement law prior to the conclusion of the contract. This provision does not impose any obligation to conduct the end customer’s procurement procedure or to guarantee its compliance with public procurement law.

The distributor orders the component licences directly from the respective component manufacturer on the basis of the framework licences acquired from ZenDiS. Under the terms of the Distributor Agreement, the distributor is permitted to sell only components from the portfolio specified by ZenDiS and subscriptions based on the specified package configurations. Ordering directly from the manufacturer therefore does not currently allow for the free selection of additional components for the openDesk offering. The distributor is responsible for the commercial structure of its offerings within these parameters.

Payment flows are divided into two parts. The distributor pays the licence fees for the individual software components directly to the respective component manufacturer on the basis of the standard price list. The fee for the openDesk integration layer, however, is paid to ZenDiS.

To this end, the distributor must order the projected volume of usage no later than 14 days before the start of the quarter. The upfront fee is due within 14 days of receipt of the invoice, at the latest by the start of the quarter. Any true-up fee settled retrospectively is payable within 14 days of receipt of the invoice.