GTC OF FLS GMBH
GENERAL BUSINESS TERMS & CONDITIONS
Phone: +49 431 23971-0
Fax: +49 431 23971-13
Christoph R. Hartel
Local Court Kiel, HRB 4072
Sales tax identification no.:
DE 1732 310 54
FASTLEANSMART UK Ltd.
Berkshire RG7 4AB, UK
Phone: +44(0) 1183 800189
Phone: +49 431 23971-0
Fax: +49 431 23971-13
Christoph R. Hartel
Local Court Kiel, HRB 4072
Sales tax identification no.:
DE 1732 310 54
FASTLEANSMART UK Ltd.
Berkshire RG7 4AB, UK
Phone: +44(0) 1183 800189
§ 1 GENERAL
These General Terms and Conditions of FLS GmbH (hereinafter referred to as "FLS") apply exclusively to all contracts between FLS and customers, in particular to software license purchase, software rental and software maintenance contracts as well as to contracts for the provision of software as a service. Any conflicting or deviating terms and conditions will not be accepted unless FLS expressly agrees in writing.
These General Terms and Conditions shall also apply if FLS unconditionally executes the contractually owed service in the knowledge of conflicting or deviating terms and conditions of the customer.
No oral collateral agreements exist. Agreements that deviate from or supplement these General Terms and Conditions must be made in writing. This also applies to the amendment or removal of this clause. Electronic documents in text form do not meet the requirement of written form.
§ 2 CONCLUSION OF CONTRACT
Offers from FLS are nonbinding.
FLS may accept customer orders that represent offers according to Section 145 BGB (German Civil Code), within four weeks; in particular, this also occurs if FLS performs the service during this time period.
FLS reserves all proprietary rights and copyrights to offer documents, in particular to software descriptions, license models or other documents that the customer receives from FLS. These documents and the information embodied therein are to be kept confidential and may not be disclosed to third parties without the express written consent of FLS. They must be returned to FLS immediately, without retaining any copies, if a contract is not concluded.
In case of doubt, orders only become binding upon order confirmation from FLS. This order confirmation is decisive for the type and scope of the contractual performance obligations.
§ 3 PRICES
Unless otherwise stated in the order confirmation by FLS, the prices of FLS are net plus VAT. Should a change of the statutory value added tax occur between contract conclusion and service provision, the value added tax valid on the day of delivery shall be calculated and the resulting difference will be charged or refunded to the customer.
Unforeseen changes in costs for raw materials, wages, energy and others price changes at the time of order confirmation beyond the control of FLS shall entitle FLS to adjust prices accordingly.
If, in the case of the conclusion of a software license agreement, there are more than four months between the conclusion of the contract and the handover of the contractual software, FLS shall be entitled to increase its prices in line with the respective market price by a reasonable amount, but by a maximum of 5%.
All discounts require separate written agreement.
Any costs for packaging and freight charges will be invoiced separately, unless otherwise agreed. For deliveries abroad, the customer shall bear any customs duties and / or import taxes.
For partial deliveries, each delivery can be invoiced separately.
§ 4 PAYMENT TERMS
The terms of payment are detailed in the order confirmation from FLS.
Invoices issued by FLS are to be paid within 14 days after receipt without deduction. In the case of default of payment by the customer, FLS shall be entitled to charge default interest amounting to 9 percentage points above the applicable base interest rate for the duration of the default. FLS expressly reserves the right to claim further damages.
If, after conclusion of the contract, it becomes apparent that the claim for payment is jeopardized by insufficient payment capability, in particular due to a lack of creditworthiness of the customer, FLS shall, having set an appropriate deadline, be entitled to demand immediate security or cash payment, without any deduction, for all services that have been rendered but not yet paid for, and advance payments for all services that have yet to be rendered. Should the customer fail to meet the above obligations on time, FLS shall have the right to refuse performance and to withdraw from the contract and to claim damages.
The customer may only offset with counterclaims that are undisputed, legally established or ready for decision. The customer has no retention right on account of debt claims that do not emanate from the same contractual relationship.
§ 5 PERFORMANCE AND TIME OF PERFORMANCE
The scope of performance owed by FLS results from the order confirmation. Performance requirements of the customer, which, for example, are the subject of a customer's specification sheet, are only binding if they are either the subject of an order confirmation from FLS or a separate written agreement between FLS and the customer.
FLS is entitled to partial services to a reasonable extent.
Performance dates or deadlines are non-binding unless they are expressly referred to as "binding" by FLS as part of the order confirmation.
A binding performance date or a binding performance deadline is subject to the condition that FLS itself is supplied correctly, completely and in a timely manner by any subcontractor with whom FLS has concluded a corresponding cover transaction due to the contract concluded with the customer.
The performance deadline is met if the subject matter of the contract is handed over by the expiry of the deadline in accordance with § 6.1.
The performance deadline does not commence as long as the customer does not duly fulfill its obligations, such as the provision of technical data and documents to be provided by the customer, hardware and/or software, communications equipment, data carrier and basic programs, as well as the provision of a deposit or the delivery of a payment guarantee.
Should FLS be prevented from fulfilling its performance obligation in due time by circumstances that did not become detectable until after conclusion of the contract, notably by force majeure, natural disasters, industrial action, official interventions, supply difficulties especially on data-carrying lines, traffic disruptions, exceptional traffic conditions, unforeseeable business interruptions or other similar reasons, the performance obligation shall be suspended for the duration of the hindrance and in the scope of its effect. FLS does not assume any procurement risk in this respect.
FLS must immediately inform the customer that the temporary hindrance or impossibility of providing the service has occurred, stating the reasons for this.
FLS will – as far as possible – immediately seek replacement. Should the costs increase for FLS in the event of a replacement, FLS shall be entitled to adjust the price vis-à-vis the customer. FLS shall inform the customer immediately about the possibility of a replacement and about any price adjustments in advance.
If the suspension of the performance obligation or the price adjustment set out in § 5.4.2 is not acceptable to the customer, after the elapsing of a reasonable period to be determined by it, the customer shall be entitled to withdraw from the contract. A deadline is not required in the situations mentioned in legislation (e.g. Sections 323 para. 2, 323 para. 4, 326 para. 5 BGB and Section 376 HGB (German Commercial Code)).
FLS is not responsible for failure to perform or delayed performance attributable to the above factors. A claim for damages or reimbursement of expenses is excluded in accordance with § 10. If a partial service has been effected, the customer can only withdraw from the entire contract if it no longer has any interest in the partial service.
§ 6 TRANSFER OF RISK AND ACCEPTANCE
Unless otherwise agreed, in the event of conclusion of a software license agreement, the place of fulfillment for the transfer of the contract software is the place of business of FLS. In the case of sale on a data carrier, the risk of accidental loss and accidental deterioration of the contract software is therefore transferred to the customer with transfer of the data carrier to the shipping agent, regardless of who bears any freight costs. The same applies in the case of sale by download from the Internet after notification and activation of the access data for the download area as well as by notification of the readiness for shipment of FLS to the customer, if the delivery is omitted for reasons for which the customer is responsible.
In principle, the contracts typically concluded between FLS and the customer do not require any acceptance. If, exceptionally, acceptance is necessary due to a separate agreement between FLS and the customer, the following shall apply:
The customer is obliged to accept FLS's services as contractually provided, unless acceptance is excluded according to the nature of the contractual item. Acceptance cannot be refused due to insignificant defects. If the customer does not accept the services of FLS within a reasonable deadline given by FLS, although it is obliged to do so, this shall be deemed acceptance.
If, pursuant to the parties' agreement, joint acceptance tests take place to determine whether the services provided by FLS comply with the contractual provisions, FLS shall notify the customer in writing (by email, letter or fax) of readiness for acceptance. This notification shall include a date for the acceptance which shall give the customer sufficient time to prepare for and be represented at these tests. Subject to individual contractual agreements in individual cases, FLS shall bear its own personnel costs necessary for the performance of the acceptance tests. The customer shall bear all remaining costs for the acceptance tests and, specifically and at its own expense, shall make available the staff and/or resources necessary for carrying out the acceptance tests.
If the customer is not present or represented on the date of the acceptance test despite a notification in accordance with § 6.2.2 sentence 1 or if it fails to fulfill its obligations pursuant to § 6.2.2 sentence 4, the tests shall be deemed to have been successfully completed on the day that was specified for the acceptance tests in the notification from FLS.
This does not apply if the customer objects to the assumed acceptance within a period of 14 days. The objection period starts on the day notified by FLS as the date of the acceptance tests. FLS shall inform the client at the latest with the commencement of the objection period of the intended consequences of its actions.
The performance of FLS is accepted,
- when the acceptance tests have been carried out successfully or are considered successfully completed in accordance with § 6.2.2, § 6.2.3
- when the customer – without the contracting parties having agreed on a separate acceptance test – puts the services of FLS into use as intended
The execution of the acceptance shall be documented by FLS and the customer in a joint acceptance protocol that is created by the customer and must be signed by both parties.
If the shipment or acceptance is delayed or omitted due to circumstances for which FLS is not responsible, the risk shall pass to the customer from the day of notification of readiness for shipment or acceptance.
§ 7 RETENTION OF TITLE
FLS retains ownership of the contractual software until all claims arising from the business relationship have been settled ("Reserved Goods").
In the event of breach of contract by the customer, in particular default in payment, FLS shall be entitled to withdraw from the contract after setting a reasonable deadline. A withdrawal from the contract exists in particular if FLS asks the customer to discontinue the use of the Reserved Goods immediately and completely, to immediately and completely delete all copies of the software installed on its systems and to delete or hand over any backup copies to FLS.
§ 8 OBLIGATIONS TO NOTIFY, RIGHTS DUE TO MATERIAL DEFECTS
Regarding conclusion of a software license agreement, the following applies to the warranty:
FLS expressly points out that it is not possible according to the state of the art to develop software in such a way that it functions flawlessly under all conceivable operating conditions.
Against this background, FLS warrants the agreed quality and/or that the contract software fulfills the essential performance features for the contractual or customary utilization, and that the customer can use the contract software without infringing on third-party rights. Defect-related rights do not exist in the case of insignificant deviation from the agreed or assumed quality and a negligible impairment of the usability. Without prior written agreement, the product specifications do not apply as a guarantee.
With regard to update, upgrade and new version deliveries, the claims for defects are limited to the developments of the update, upgrade or new version deliveries compared to the previous version.
The customer’s warranty claims require that it has fulfilled its inspection and complaint obligations pursuant to Section 377 HGB in a proper fashion. The customer must examine the contractual software immediately upon receipt for conformity with the contract. Short deliveries and wrong deliveries as well as recognizable defects of the contract software must be reported immediately to FLS in writing, indicating the complaint. Defects that only become apparent later must be reported immediately after they have been recognized in the manner described.
In the event of a material defect, FLS shall be initially entitled to supplementary performance, i.e. at its discretion to remedy the defect ("repair") or to deliver a replacement.
The supplementary performance may be provided by handing over or installing a new program version or a work around.
If the defect does not affect the functionality of the service or only does so minimally, FLS is entitled to the exclusion of other warranty claims to remedy the defect by delivering a new version or a new update as part of its version, update, and upgrade planning.
FLS is entitled to effect the warranty on the customer's premises. FLS complies with its obligation to repair by providing an automatic installation routine with updates on its homepage for download and by offering the customer telephone support to solve any installation problems that may arise.
If the defect is due to any fault in products delivered by one of the FLS's suppliers not acting as an agent of FLS, but FLS only passes on a third-party product to the customer, the customer's warranty claims are initially limited to the assignment of the warranty claims of FLS against its suppliers. This does not apply if the defect is due to improper handling of the supplier's product by FLS. If the customer cannot assert its claims for defects against the supplier out of court, the subsidiary liability of FLS for defects remains unaffected.
The right of the customer to reduce the purchase price or to withdraw from the contract in the event of two failures of the repair or replacement at its option remains unaffected. A right of withdrawal does not exist for insignificant defects. A right of self-remedy by the Customer shall be excluded. If the customer asserts compensation for damages or reimbursement of futile expenses, the liability of FLS shall be limited in accordance with § 10.
Warranty claims of the customer and congruent concurring claims arising from non-contractual liability expire one year from the transfer of risk according to § 6. The deadline for claims shall begin again with each delivery of updates, upgrades and new versions of the software.
With regard to claims for damages in the cases of § 10.1 sentence 1 and § 10.2 sentence 2, a statutory limitation period applies.
In the case of fraudulent concealment of defects or the assumption of a quality guarantee, further claims of the customer remain unaffected.
FLS will not be liable for defects
- which are based on the use of the contract software in a hardware and software environment that does not meet the requirements specified in the license certificate
- which are based on the customer having made changes and modifications to the contract software without being authorized by law, the software license agreement concluded with FLS, or FLS's prior written consent
- which are based on poor maintenance or faulty repair by the customer
- for the rectification of which, repair measures were carried out that were only makeshift at the request of the customer
When concluding a software maintenance contract, the provisions under § 8.1 apply accordingly, provided that the delivery of updates, upgrades and new program versions is due to a success oriented and thus contractually agreed activity, possibly with purchase contractual relations. Insofar as the activities of FLS are action oriented, and consequently a service contract activity is due, the customer's claims in the event of breach of duty are governed by the statutory provisions, with the proviso that FLS's liability for damages within the meaning of § 10 is limited.
When concluding a contract for the provision of software as a service, the statutory provisions on rental law warranties apply, i.e. in particular Section 536b BGB (regarding the customer's knowledge of the defect upon conclusion of the contract or acceptance of the contract offer of FLS) and Section 536c BGB (concerning defects arising during the contract term and concerning the notification of defects by the customer) apply. The application of Section 536a para. 1 BGB, which regulates FLS's liability for damages, as far as the law provides for no fault liability, is excluded. FLS's liability for damages is limited in accordance with § 10.
§ 9 CLAIMS FOR DEFECTS IN TITLE
The contractual software supplied by FLS on the basis of a closed software license agreement is free from third-party rights that conflict with contractual use. Excluded from this is the retention of title customary in the industry.
If third parties have such rights and assert them, FLS shall do everything reasonable to defend the contractual software against the asserted rights of third parties. The customer shall notify FLS immediately in writing if any third party asserts a claim to such rights and grant FLS all powers and authorizations necessary to defend the software against the asserted third-party rights.
Insofar as defects of title exist, FLS may choose at its discretion,
- to eliminate by lawful measures the rights of third parties, which impair the contractual use of the software, or
- to eliminate their assertion or
- to modify or replace the contractual software in such a way that it no longer infringes any third-party rights if and insofar as this does not significantly impair the contractual software's owed functionality, and shall be obliged to reimburse the costs of legal action incurred by the customer.
If an exemption pursuant to § 9.3 fails within a reasonable grace period set by the customer, the customer may, under the statutory conditions, reduce the purchase price or rescind the contract and/or demand compensation for damages. In this respect, § 8.1.6 applies accordingly.
Insofar as updates, upgrades, new program versions or other objects of purchase or services are delivered or rendered to the customer within the framework of a software maintenance contract, the customer's claims for defects with regard to developments contained therein, and which do not merely comprise troubleshooting, are also determined by § 9.1 – 9.4.
Insofar as FLS provides the customer with FLS software applications for use as part of a contract for the provision of software as a service, § 9.1 – 9.4 apply accordingly with the following proviso:
The customer is not obliged to pay if and insofar as the rights of third parties affect its use of FLS software applications.
The non-availability of FLS software applications and/or FLS software data for legal reasons shall be understood as unavailability within the meaning of the contract on the provision of software as a service.
§ 10 LIABILITY FOR DAMAGES
FLS is liable for damages, regardless of the legal grounds for this, only in the case of intent or gross negligence on the part of its organs or vicarious agents. The above exclusion of liability for ordinary negligence does not apply to the breach of material contractual obligations. In the event of a breach of material contractual obligations, liability is limited to typical, foreseeable damages.
Liability for damages due to a warranty given by FLS as well as liability under the Product Liability Act or other imperative legal standards remains unaffected by the above provisions. The same applies to injury to life, limb or health.
Liability of FLS is excluded
- for damages resulting from the fact that the subject matter of the contract is not used in accordance with the requirements of FLS, as laid down in particular in the license certificate
- for damages resulting from inadequate or missing maintenance of the subject matter of the contract, for which the customer did not commission FLS
- for damage caused by parts of the subject matter of the contract on which third parties have conducted maintenance, repairs, or other modifications and which are not proven to be due to a breach of duty by FLS
§ 11 CONFIDENTIALITY
The customer must keep confidential vis-à-vis third parties all knowledge and information of a technical and business nature received in the context of the contractual relationship, in particular with regard to the license model, the prices and other conditions, the programs and databases as well as personal data (hereinafter referred to as "confidential information"), including beyond the duration of the business relationship, as long as and to the extent that it cannot provide evidence that this confidential information was already known or obvious to the customer at the time of its acquisition or later become apparent without any fault of the customer or was provably developed by the customer completely independently or obtained by a third party without breaching the obligation to confidentiality.
FLS's proprietary information, in particular software descriptions and licensing models, which are shared as part of the collaboration, are and will remain the property of FLS and must be returned upon request by FLS at the latest upon termination of the supply or service relationship. Any kind of license regarding confidential information requires a written agreement.
The customer may only grant such consultants access to confidential information who are subject to professional secrecy or on whom the customer has first imposed an obligation corresponding to the confidentiality obligations of this contract. Furthermore, the customer shall only disclose confidential information of FLS to those employees that need to know it in order to perform this agreement and shall require them to maintain confidentiality, including to the extent permitted by employment law for the time after their departure from employment.
The customer is not entitled to a right of retention with regard to confidential information or corresponding documents and materials.
§ 12 JURISDICTION, APPLICABLE LAW, OTHER AGREEMENTS
For all present and future claims arising from the business relationship, the exclusive place of jurisdiction is Kiel. This place of jurisdiction also applies to disputes concerning the origin and validity of the contractual relationship.
For the contractual relationship, the law of the Federal Republic of Germany applies to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980).
Should parts of the above Terms and Conditions be ineffective or waived, their validity shall otherwise remain unaffected. The contractual parties are obliged to replace ineffective regulations with those which are legally effective and which correspond as far as possible to the ineffective regulations regarding sense and purpose as well as economic results.