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
FLS Nederland B.V.
van den Bergsweg 7
7442 CK Nijverdal
Telefoon: +31 548 850190
§ 1 Scope of Application
1.1 Scope of Application
These conditions apply to supplies, services and licenses of any kind rendered by FLS GmbH (hereinafter referred to as FLS) to their clients. These conditions are part of the agreements concluded by FLS and the client, unless they contradict the individually concluded provisions of the contract. These General Business Terms only apply, if the client is a corporate body under private or under public law, a public-law special fund or another person or a body of persons, who conclude the contract as an entrepreneur, that is within the frame of a commercial or independent professional activity.
Unless agreed otherwise in writing, the supplies and services of FLS are rendered exclusively according to the General Business Terms as below. Conditions of the client or of any third party conflicting with or deviating from these GBT are not accepted, unless FLS has expressively approved of them in written form in particular cases.
1.3 Conclusion of Contract, Written Form
The offers of FLS are subject to change and nonbinding. Cost estimates are nonbinding and only contain requests for quotations by the client. It is presumed that contract documents signed by both parties reflect the agreements of the parties correctly, completely and conclusively.
§ 2 Nondisclosure, Depositing, Data Protection
Both parties mutually undertake to keep secret all information, documents and data revealed to them throughout the pre-contractual phase and the execution of business relations, which are marked as confidential (“Confidential Information“) and to exclusively use them for the purposes of the contract. This restriction does not apply to such information, which is generally public or already known to the recipient at the point of time it was made available, or information, which was published after being made available to the recipient as far as the recipient is not by virtue of such disclosure in breach of any obligation of confidentiality. Both parties make available the Confidential Information only to those employees, vicarious agents and consultants (staff or partners of FLS), who are authorized due to their job-related tasks to receive this information. They instruct their employees, who officially have access to these objects, about their confidentiality obligation in written form. The client deposits and saves the information in such a way it cannot be misused by third parties. In case the client breaches its nondisclosure obligation, FLS is entitled to an indemnity claim of a flat rate of 25,000 EUR for every case of noncompliance. The client can prove a smaller loss and FLS a greater one. Both parties ensure and guarantee that all persons who are entrusted with the performance of the service or gain knowledge of the same, adhere to the legal provisions regarding data protection and use the information received from the other party only for the purpose of performing the contractual services and not to pass it on to third parties or to use it otherwise. This also applies to the time after the contractual relationship between the party and such persons has been terminated. The recipient informs the holder without delay, if the information transferred to him by the holder was already known to him, or if information, which is considered to be confidential by the holder, has become known, or if he is requested by a court, an authority or a third party to disclose Confidential Information. The effectiveness of the nondisclosure clause remains unaffected by the termination of the contract.
§ 3 Obligations of FLS
3.1 Times for Delivery and Performance
Times for delivery and performance are in principle non binding guidelines with respect to time, unless firm dates have expressly been agreed upon in written form. The client has to fulfill all terms of delivery and performance in order to enable FLS to adhere to the firm dates. FLS reserves the right to partial deliveries as well as to correct and timely self-supplies. Impediments to or difficulties with the performance of services not caused by FLS, result in a reasonable delay of the announced or agreed times for delivery and performance.
3.2 Changes in Performance
Taking into account the progress made in a particular project FLS is willing to consider any change requests in the service performance on an individual basis. If the customer’s change requests require substantial examinations by FLS regarding the feasibility and conditions for the changes, FLS is entitled to claim a reasonable compensation for these examinations. If the client’s change requests result in a modification of the originally agreed processing effort and lead to changes in the originally agreed times for delivery and performance, FLS and the client will conclude a respective supplementary agreement, which reflects such changes. In case FLS informs the client that the client’s requirements, which are subject of the service specifications, are incomplete or unsuitable for other reasons, the client will immediately complete or change the requirements or inform FLS of any other decision in written form.
3.3 Contractor, Third Party Service Providers
FLS is entitled to engage subcontractors. FLS will inform the client about the engagement of subcontractors. If FLS names or recommends a third party as a service provider to the client, such third party will not be considered as vicarious agent of FLS.
§ 4 Involvement of the Client
4.1 Documents, Materials, Human Resources
The client undertakes to support FLS in effecting the contractually agreed performances to the extent necessary. In particular, the client provides FLS with all documents and materials such as hardware, communication systems, data storage devices and basic programs, which are required or useful for the completion of the contractually agreed services, regardless of whether they are specified in the service specifications. The client is responsible for the correctness and consistency of the provided documents and material. The client has to effect all duties of involvement mentioned herein free of charge. If the client ascertains that the analyses of demands, functional specifications or service specifications do not comply with the actual requirements of the client, the client will inform FLS without delay and submit alternative proposals. Both parties will then mutually agree on an addition or modification of the requirements. If FLS informs the client about incorrect or incomplete details or information or details or information that are unsuitable for the performance of the task, the client will immediately decide about changes resulting from this information, as far as they do not concern the software-build. Immediately after concluding the contract each party appoints an expert to the other party, who is entitled to take decisions concerning the production of the contract products and who is entitled to represent the interests of the respective party regarding the cooperation within the frame of the contract.
4.2 Omitted Involvement
If the client does not fulfill his duties of involvement as agreed upon, the agreed terms of execution extend reasonably. FLS informs the client about the omitted involvement by pointing out a possible change of the terms of execution. Additional expenses that arise from the omitted involvement by the client have to be compensated by the client in accordance with the prices recently agreed upon with FLS.
§ 5 Acceptance
5.1 Execution and Terms
Work performances require the written acceptance of the client. FLS will inform the client in written form after the completion of the entire or the agreed partial performance about their readiness for acceptance. The client has to perform and complete the acceptance of the due performances or partial performances within 4 weeks after receiving the written note. If the client does not effect acceptance within the mentioned term, the acceptance is deemed to be effected unless any defects impeding the acceptance according to paragraph 5.3 are presented. The same applies, if the client puts the committed parts of the data processing system into productive use without waiting for the formal acceptance. The client sees to that the conditions regarding the data protection regulations are fulfilled for the application of the software. Missing requirements regarding the data protection regulations do not entitle the client to refuse acceptance.
5.2 Protocol of Acceptance
FLS and the client record the process of acceptance in a joint protocol of acceptance. It is issued by the client and has to be signed by both parties.
5.3 Defects at Acceptance
Incompletenesses or defects detected during the acceptance test shall be corrected by FLS at short notice. The acceptance is deemed to be successful despite of defects, which do not considerably influence the functionality and interaction of the performances or partial performances, irrespective of FLS’ obligation to remedy. In case of grave defects the acceptance test has to be repeated after remedying those defects according to the aforementioned provisions.
The delivery of licenses, such as standardized software or additional licenses, which is not connected with other services of FLS, i.e. particularly without customizing, does not require an explicit acceptance.
§ 6 Hindrance and Disruption of Performance by Force Majeure
If FLS is not able to perform the contractual services due to legal industrial dispute, legal lock-out, force majeure, war, riot or other events, FLS is not responsible for or which are not attributable to FLS, the agreed execution terms are prolonged to a reasonable extent. The same provision applies to subcontractors of FLS, if the hindrance or disruption occurs due to the abovementioned reasons. In the case of a permanent impossibility of performance due to the reasons mentioned in sentence 1 FLS is released from its contractual obligations. Partial work performed has to be compensated by the client at a reasonable rate in relation to the stipulated total performance in due consideration of the usability.
§ 7 Prices and Terms of Payment
7.1 Invoicing, Maturity, Payment
The client has to pay the due remuneration to FLS at the agreed dates of payment. The payment becomes due upon performance of the services. All payments by the client have to be made plus VAT within 14 days upon receipt of the invoice. Even without reminder the client is in default of payment after expiration of the abovementioned payment term. If the compensation of the performance of FLS is paid according to the time and effort involved, FLS will settle within the agreed periods. Travelling times are regarded as working times. Expenses, travel costs and other expenditures have to be compensated separately, unless otherwise stipulated in individual cases.
If the client defaults with one of the owed payments, FLS is entitled to charge a default interest at the basic interest rate applied by the European Central Bank plus 8 points. The right of FLS to prove and claim a higher damage on an individual basis remains unaffected hereof.
7.3 Right of Retention, Offset
The client is only entitled to claim a right of retention or to offset due claims, if and provided that the respective counterclaims, which are set off or which are object of the right of retention, have been legally established or are undisputed.
§ 8 Retention of Title
All products and services rendered under the contract provided to the client by FLS within the frame of the contractual performance remain the property of FLS until the final and complete settlement by the client of the remuneration agreed and payable to FLS (“products under retention of title”). The client shall not encumber the products under retention of title of FLS with any rights of third parties or sell them to third parties without the prior written agreement of FLS. The client undertakes to inform FLS without delay about every access of third parties to the products under retention of title, in particular about foreclosure or other sequestrations and about all damages to the products under retention of title. In case the products under retention of title are installed in a country, where the abovementioned retention of title is not effective to its full extent, the client undertakes to provide FLS with an equivalent security. If the client is in delay with the payment of his due compensation by more than four weeks, FLS is entitled to claim restitution of the products and services rendered under the contract from the client. The execution of this claim of restitution shall not be nor be deemed to be a withdrawal from contract concluded with the client.
§ 9 Rights of Usage, Property Rights of Third Parties
9.1 Right of Usage, Licenses
The client receives the simple, non-exclusive and non-assignable right to use the computer software products including the user documentation (“software products”), services, concepts and written documents (all together: “products and services rendered under the contract “) supplied by FLS according to the contract. The client does not receive any rights of usage in procedures or development tools developed and applied by FLS. The client’s right to use the works protected by copyright embodied in the products and services rendered under the contract, in particular computer software programs, inventions, semi-conductor topographies, suggestions for technical improve, and other work results, regardless of whether they are protected or may be protected as patent, registered design, utility model, semi-conduct topography, brand or by copyright or whether they represent a company secret (all together “intellectual property”), is limited to the internal corporate purpose of the client and is exclusively defined by the contractual agreements concluded between FLS and the client.
All other rights are reserved. The client undertakes not to use any of the intellectual property, which is not expressively permitted according to the contract or these terms. Depending on the number of licenses the client acquires, he has the right to implement software products delivered by FLS at the respective number of workstations in a local network. The assessment basis for this is the number of software products the client has acquired. Workstations within the network also include home offices, portable computers, which are temporarily connected to the network, as well as remote workstations. The usage rights are only assigned after the final installment of the client. If the client seriously breaches the agreed usage rights and/or the intellectual property, FLS may extraordinarily cancel the usage rights in the concerned software products after an unsuccessful warning with an appropriate period. In this case FLS reserves the right to claim compensation from the client due to the violation of the contract. Each license is clearly assigned to at the most to one person belonging to the company of the client or working by order of the client. FLS is entitled at any time to claim evidence of this assignment by the client. The licenses for the FLS-license products are named-user licenses, which means that the respective license can be reassigned to a new user within the same company and used by him, if the original user (natural person) leaves the client’s company. A parallel or alternating usage of the license by several persons (“concurrent user“) is expressively excluded.
The software products supplied by FLS are protected by copyright. Unauthorized copying of the software or of the written material (complete or extracts) is explicitly prohibited. As far as not otherwise explicitly agreed it is also forbidden to make the software available for usage in a network or to make it available by other means with or without payment.
9.3 Property, Copyrights, Source Code
The client does not acquire any copyrights and/or other property rights in the software products and services supplied by FLS, even though the client may change them or combine them with his own programs and/or with programs of a third party. In case of such changes or combinations and if he makes copies of the software, the client adds a respective copyright notice.
9.4 Reverse Engineering
The client must not decompile, analyze, disassemble the software products supplied by FLS or change them into a form, which is comprehensible for human beings.
9.5 Modification of the Software
The client is not entitled himself or by the help of a third party to make modifications, adaptations, translations or other interventions in the software product supplied by FLS, neither for the purpose of eliminating possible software bugs. Furthermore the client must not produce works derived totally or in part from the services rendered under the contract.
9.6 Software Products of Third Parties
FLS does not assume liability for a possible burden with other industrial property rights or copyrights of software products acquired from third parties delivered to the client by FLS without FLS being reseller or producer of the products acquired from third parties. The client undertakes to inform FLS without delay about all claims asserted against him for this reason.
§ 10 Defects of Material and of Title
10.1 Warranty Claims
FLS explicitly points out that today’s technology makes it impossible to develop software that works error-free under all imaginable application conditions. Thus FLS only assumes liability for defects insofar as the agreed requirements, assurances and – provided that no specification sheet is existent – the performance features essential for the assumed or usual usage are fulfilled. If the products supplied by FLS within the contractual frame show reproducible errors, which essentially constrict, affect or preclude the usage (defect), FLS is obligated to remedy the defect on the client’s request. The liability for defects of title is excluded, if it refers to rights only effective outside the European Union (e.g. patents issued only in a third country) and insofar as the client does not completely entrust FLS on its demand with the defense and grants all necessary authorizes to FLS.
10.2 Notice of Defects, Remedy
The client undertakes to inform FLS in written form without delay, but not later than 2 weeks, about detected defects of the products and services rendered under the contract, to exactly describe the defect and to provide FLS with all documents and information necessary for the examination of the defect and for the exclusion of a handling error. FLS undertakes to immediately examine an announced notice of defects and to initiate remedy. In the case of a delayed notice of defects all warranty claims of the client are absolutely barred, unless FLS has wilfully deceived the clients with respect to the absence of the defect.
10.3 Statute of Limitations
Warranty claims are subject to a limitation period of 12 months from the point of time of delivery or of the point of time of acceptance of the services, if any. The limitation period is not extended through the acquisition of further rights for the usage of already installed software products. Any claims for damages based on willful misconduct or gross negligence or in case of an injury of the body and/or health will be governed by the statutory limitation periods.
10.4 Expense Compensation
If FLS proves that an asserted defect of the products and services rendered under the contract reprehended by the client is no actual defect, particularly that the products and services rendered under the contract have been provided by the client’s statements based on the specification sheet or other orders of the client himself, the client is obligated to compensate all expenses generated by the examination of the notice of defects. The compensation of the expenses depends on the prices recently contractually concluded with FLS.
If the client makes changes in the products or services rendered under the contract with FLS or instructs third parties to do so, the liability for defects of FLS becomes ineffective, unless the client proves that the incurred defect is not to be attributed to the respective modification.
§ 11 Liability and Breach of Duty
FLS is liable for all incurring and reproducible defects of the products and services rendered under the contract provided that they have been exclusively used under the system requirements approved by FLS according to the following provisions. FLS is only liable for the loss of data, if it could not have been avoided by a daily, alternating data back up. In the case of liability the liability for data loss is limited to the typical restoring effort. FLS is not liable for those defects either, which have incurred by products and services rendered under the contract, as far as these defects could have been avoided by an examination of the work results of the products and services rendered under the contract. Possible product liability claims remain unaffected of the abovementioned limitations.
11.1 Willful Misconduct and Gross Negligence
FLS is liable for damages resulting from willful misconduct and gross negligence according to the statutory provisions. In cases of ordinary negligence FLS is only liable, if FLS violates an essential contractual obligation (cardinal obligation) and as far as the damages are typical and foreseeable due to the contractual use of the products and services rendered under the contract. In such a case the liability of FLS is limited to an amount of the compensation agreed in the contract. FLS is not liable for indirect damages, in particular not for the compensation of loss of profit or other consequential financial damages. The liability for the missing of a guaranteed condition due to fraudulent intent, for personal injuries, defects of title and according to the product liability law remains unaffected.
11.2 Contributory Negligence
In the case of FLS filing a claim, a contributory negligence of the client has to be considered to a reasonable extent. Contributory negligence is given in particular in the case of insufficient error messages such as inadequate insight permission in error logs and log files, or in the case of insufficient data back up. An insufficient data back up is particularly given, if the client has failed to make provisions by adequate state-of-the-art back-up measures against intrusions from outside, especially against computer viruses and other phenomenon, which can jeopardize individual data or an entire data pool. The client himself is responsible for the implementation of a current and convenient data back up and for a prompt and economical restoring of lost data.
The client holds FLS harmless from all claims of third parties, which are being raised on the basis that the services or products generated by FLS within the frame of the contract violate the rights of third parties or that the client has failed to comply with the statutory provisions, which apply to his business operation, in particular the provisions regarding competition, administrative and data protection regulations.
§ 12 Reference
FLS is entitled to use the performance rendered for the client as a reference for own purposes in compliance with the confidentiality and data protection according to § 2.
§ 13 Miscellaneous
13.1 Place of Performance, Transfer of Risks
Place of Performance for all services owed under the contract by FLS is Heikendorf. In the case of the supply of physical devices such as data carriers the risk of accidental destruction is transferred to the client when the devices are properly delivered to the person responsible for the transport of the devices to the client or to the carrier assigned by the client or by FLS.
13.2 Application of Law
This contract is subject to German Law. The application of the United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.
13.3 Jurisdiction Clause
In the event of any legal dispute arising from or in relation with the business relations between FLS and the client shall submit to the exclusive jurisdiction of the Regional Court (Landgericht) Kiel.
Should any part of this General Business Terms be or become completely or partially invalid, void or inexecutable the effectiveness of the remaining General Business Terms shall remain unaffected hereof.