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General Terms and Conditions of FIS-ASP GmbH for Conulting Services and Operation Services
Document for download
These General Terms and Conditions and the provisions of the FIS-ASP Lists of Prices and Conditions valid from time to time apply exclusively to every contract by which FIS-ASP provides services for a customer as far as no divergent individual contractual agreements have been made.
Services of FIS-ASP are in particular:
– Technical services like installation of software and upgrade support for software programs;
– Modification and enhancement of software, or support for such activities;
– Consulting in the areas workflow, Office applications, and communication technologies for the connection of application systems.
It is not important whether the services are provided on site or via remote communications, or by means of any other communication media.
No conflicting or other conditions, notably the customer’s general terms and conditions, form any part of the contract, even where FIS-ASP has performed a contract without expressly rejecting such conditions. Neither the fact to make no comment on the sending of conditions nor the execution of an order without a murmur are considered as acceptance.
2 Provision of services
2.1 FIS-ASP provides the services agreed in written form with the customer; changes and completions of the scope of services need the written agreement between the customer and FIS-ASP.
The customer submits the tasks in form of individual orders.
2.2 When fulfilling a task FIS-ASP shall pay attention to the requirements of the customer and shall provide the services in accordance with the rules valid from time to time of the data processing.
FIS-ASP shall try to produce the best possible result by using its experience and knowledge.
2.3 FIS-ASP may make records of any discussions detailing or amending contractual provisions, in particular the subject matter of the contract. These ones shall become binding for both sides if FIS-ASP passes them on to the customer and he does not suggest alternatives in writing within 2 weeks.
2.4 FIS-ASP may refuse the provision of services if it seems impracticable to meet the requirements.
3.1 The customer and FIS-ASP nominate a competent employee as contact person who is able to give the information necessary for contract performance, and to make necessary decisions or ensure that they are made without delay. It must be ensured that the contact person is reachable.
3.2 FIS-ASP is dependent on the support free of charge of the customer for the provision of services. Therefore, the customer shall support FIS-ASP to the best of his ability in connection with service provision, he shall especially provide FIS-ASP without delay all information and data necessary for the provision of services, fix requirements exactly and in writing, answer immediately to questions as well as execute the intermediate examination of the work results and the necessary tests.
3.3 If the customer violates his cooperation or provision duties, he shall be obliged to pay damages. The additional expense on employees arising due to this at FIS-ASP shall be invoiced according to the rates in accordance with the prices agreed between the customer and FIS-ASP, and in lack of such agreements on the basis of the FIS-ASP List of Prices and Conditions valid from time to time.
3.4 If the customer provides software programs, information and/or data in connection with the contract, the customer shall be responsible for having all necessary permissions and authorizations so that the transmission and usage by FIS-ASP shall not violate third-party rights.
4.1 FIS-ASP alone is responsible for the use of its employees.
4.2 After informing the customer in advance FIS-ASP can replace any employee at any time by a different employee of the own company who meets the professional requirements, by a self-employed person or by an employee of another company charged by FIS-ASP. As far as an “employee of FIS-ASP” or an “FIS-ASP employee” is mentioned in these General Terms and Conditions, a self-employed person or an employee of a different company charged by FIS-ASP are meant by this, too.
4.3 Even where works and services are provided at the customer’s facility, FIS-ASP shall have sole managerial authority over its employees. Employees shall not be included in the customer’s business operations. They shall not be employed by the customer. The employees of FIS-ASP are alone responsible for the planning of the working hours in accordance with the requirements. The customer shall issue wishes/instructions regarding the services, which have to be provided, only to the contact person named by FIS-ASP. The customer is not authorized to issue directives vis-à-vis FIS-ASP employees.
5 Time and date
5.1 Dates and times are nonbinding except where something different has been agreed in the individual case.
5.2 FIS-ASP shall try its best possible to provide the services and works agreed within the delivery time and time for the provision of services agreed.
FIS-ASP shall inform the customer immediately about foreseeable delays.
5.3 If FIS-ASP gets behind, the customer can rescind the contract entirely or in part after two notices fixing the time limit for performance. The customer’s reminder notice and notice fixing the time limit for performance must be in writing. The importance and the size of the order have to be considered for the calculation of the time limit. The time limit for performance however shall be not less than 12 working days. Works and services already performed shall be subject to charge and invoiced in accordance with sect. 6.
5.4 If FIS-ASP has to wait for necessary cooperation or information from the customer or is otherwise hindered in the performance of its contractual duties, times for delivery and provision of services shall be extended by a period equaling the duration of the hindrance and by a reasonable start-up period after the end of the hindrance.
6 Price and payment
6.1 Unless otherwise agreed upon in writing in individual cases, FIS-ASP will invoice the services rendered according to working, traveling and waiting time and, if necessary, according to material (e.g. documentation) and computer usage time in accordance with the FIS-ASP List of Prices and Conditions valid at the time of service provision.
Furthermore, the Ordering Party shall pay for additional costs such as accommodation and traveling costs according to expenses and for other expenses according to the rates of the valid FIS-ASP List of Prices and Conditions.
Time spent traveling, and travel and accommodation expenses are invoiced according to the FIS-ASP’ employee’s normal place of work.
6.2 All prices are subject to statutory sales tax/VAT except where exempt.
6.3 Invoicing rates (according to the FIS-ASP List of Prices and Conditions) for services which shall be provided within three months after conclusion of the contract shall be unaffected by a change of the FIS-ASP List of Prices and Conditions meanwhile.
6.4 Accounts shall be made monthly on the basis of the activity reports of the FIS-ASP employees signed by the customer.
6.5 Payments shall be due upon submission of invoice. No cash discount is granted. FIS-ASP shall charge –irrespective of further rights- interest at the statutory rate of penal interest beginning 14 days after the due date for payment, at the rate of 8 per cent over the basis interest rate of the ECB at the moment.
6.6 FIS-ASP is entitled to require full or part payment in advance if there is no prior business relationship with the customer, if delivery is to be made outside Germany, if the customer’s registered office is outside Germany, or if FIS-ASP has any reason to doubt that the customer will render payment punctually. If after conclusion of contract grounds to doubt the solvency of the customer become apparent, FIS-ASP is entitled to withdraw from the originally agreed payment schedule and instead require immediate payment.
6.7 The customer is entitled to offset only claims that are uncontested or ordered by a court of law. Without prejudice to the provisions of the German Commercial Code, section 354 a, he shall not assign his claims to a third party.
6.8 If services cannot be provided for reasons that FIS-ASP is not responsible for, the times agreed upon shall nonetheless be invoiced unless the FIS-ASP employees concerned could be assigned elsewhere or the Ordering Party was able to cancel a service agreed upon in writing and in good time, i.e. 14 days at the latest before the performance date stipulated.
7 Confidentiality and data protection
7.1 The customer and FIS-ASP undertake to maintain strict silence on all confidential information and business secrets of the other acquired in connection with contract performance, also after the completion of the order. Thes information must neither be made accessible to third parties nor be used for other purposes outside the contract without the written agreement of the other party to the contract.
This is not valid for information which are or become known in general between the customer and FIS-ASP without the breach of contractual agreements, or which the receiving party to a contract has already known on receipt without such a breach, or which become known afterwards from third side without such a breach.
7.2 Customer shall inform in writing all persons who he instructed to provide services and works of FIS-ASP’ rights in the subject matter of the contract and of their duty to observe confidentiality and procure that they undertake to observe their duty of confidentiality.
7.3 The parties to the contract are authorized to process personal data they have been entrusted with in order to carry out the contract in compliance with the provisions of the data protection or having processed them by third parties.
7.4 The customer shall carefully safeguard the subject matter of the contract, in particular without limitation any source code and documentation that has been made available to the customer, to prevent its misuse.
8 Usage of works
8.1 Between the customer and FIS-ASP all title to and rights in the works vest in FIS-ASP exclusively, notably copyright and rights of authorship, and including without limitation works created to the specification of or in cooperation with the customer. The customer shall however have the nonexclusive and non-transferable right to use the works and the documents and programs made by FIS-ASP in order to provide services for contractual purposes.
8.2 The customer is only permitted to copy the passed on documents and software programs in order to back up data, to eliminate defects in software programs and to produce interoperability of the programs (temporarily or permanently). Copies shall bear the same copyright and authorship notices, registration numbers and other identifications.
8.3 FIS-ASP is authorized to give a report on the provision of services for the customer with a view to references.
9 Force majeure
9.1 If FIS-ASP is hindered in the performance of its contractual duties by disruptions due to force majeure, FIS-ASP shall be relieved from statutory or contractual sanctions. Times for meeting the contractual duties shall be extended by a reasonable period. In sect. 6.8 is valid correspondingly for disruptions due to force majeure on the part of the customer.
9.2 Disruptions due to force majeure are disruptions justly non-foreseeable by and unusual for the parties to the contract and independent of their will like e.g. floods, earthquakes, explosions, strikes or lockouts at FIS-ASP, at the customer or at subsuppliers which have an essential and non-avoidable -on the basis of reasonable standards- influence on meeting of the contractual duties.
9.3 The party to the contract who refers to the existence of disruptions due to force major shall be obliged to inform the other party to the contract in writing without delay, within ten days at the latest after having known the situation, about the beginning and the ending of the disruptions due to force majeure and shall submit as soon as possible a confirmation of the local Chamber of Commerce. The exoneration reason shall take efficiency as soon as the disruptions shall occur, or , if information is not made in time, with information.
9.4 If the disruptions due to force majeure cover a period of more than six months, the parties to the contract shall try within further four months to find a solution acceptable for both sides. If this does not turn out well, each party to the contract shall be authorized to terminate the contract without keeping to a period of notice.
10 Material defects and defects of title
10.1 FIS-ASP does not undertake any liability for information, data, programs etc. provided by the customer in connection with service performance.
10.2 FIS-ASP warrants that the works and service have the expressly agreed qualities, or, where no qualities have been agreed, that the service is suitable for the use set out in the contract or otherwise for ordinary use, and that it has qualities that are ordinary for deliveries and services of this type and the ordering party can expect from deliveries and services of this kind, and that no third-party rights are infringed by the grant of authorizations to the customer.
The customer shall bear the risk that the works and services provided under the order do not meet the customer’s wishes and requirements. In case of doubt, the customer should obtain advice from employees of FIS-ASP or third-party experts in time.
Undertakings of any kind that require FIS-ASP to act beyond the provisions of these General Terms and Conditions require express written confirmation from FIS-ASP. Warranties, like e.g. the agreement of qualities, are validly given only with the express written confirmation of FIS-ASP management.
10.3 The customer shall notify FIS-ASP in writing without delay if he identifies defects and shall include a precise description of the problem and useful information for eliminating the defect (duty to give notice of defects pursuant to the German Commercial Code, section 377, 378). Only the contact person (sect. 3.1) is authorized to give notice of defects. The customer’s duty to cooperation according to sect. 3 is also valid for remedy.
10.4 In case of defects FIS-ASP shall first have the possibility to remedy the defect within a reasonable period of time. The importance and the size of the order have to be taken into consideration for the calculation of the time limit. The time limit for performance however shall be not less than 12 working days. In this context FIS-ASP can also offer alternative solutions.
If remedy finally fails or if FIS-ASP does not remedy within a reasonable time limit fixed by the customer, the customer may reduce remuneration or terminate the contract.
Claims are barred after a period of one year after the begin of the statutory warranty period.
Sectl. 11 is valid for damages. Other claims are excluded, e.g. to expense remuneration in case third parties should have eliminated the defect.
10.5 It shall be for the customer to prove that any impairments or defects are not brought about by inappropriate operation, by the customer’s intervention, or by the system environment. Services that FIS-ASP performs but has not undertaken to perform shall be invoiced in accordance with sect. 6.
10.6 FIS-ASP declares that it does not know any rights of third parties concerning the services performed.
If a third party claims that a service of FIS-ASP infringes his rights, the customer shall fully inform FIS-ASP in writing without delay.
The customer now authorizes FIS-ASP to conduct the defense against claims at its own expense. The customer must not recognize the claims of third parties without FIS-ASP consent. FIS-ASP can conduct the dispute with the third party both in court and out of court, can meet the claims of the third party or replace the affected things by other things to fulfill the contract.
This rule shall not be valid if the infringement on protection rights of third parties is based on the customer having used the software products contrarily to the terms of the contract.
In all other respects, the statutory provisions for defects of title apply with a warranty period of one year.
11.1 FIS-ASP shall only be liable in contract or in tort, or otherwise arising out of or in connection with the contract, subject only as follows:
– In cases of intent liability extends to full damages; in cases of gross negligence liability is limited to the amount of foreseeable damage that would have been prevented through the exercise of due care; in cases of absence of a warranted quality liability is limited to the amount of foreseeable damage that would have been prevented by the presence of the warranted quality;
– in other cases: only for breach of a major obligation where the breach jeopardizes the purpose of the contract, for delay and impossibility, – liability in all of these cases is limited to 0.5 % of the order value for each workday of the delay, in all of these cases however limited in total to 5% of the order value at the most up to an amount of EUR 25,000,- at the most for all claims arising out of the contract;
– Furthermore: For damage against which it is insured, FIS ASP’ payment of damages shall be limited to its insurance cover and contingent upon payout by insurer.
FIS-ASP reserves the right to claim contributory negligence (see for example sect. 3 and 10). The limits of liability do not apply to liability for personal injury and to liability under German product liability legislation.
11.2 If the customer desires a larger protection against cases of damages, the parties to the contract shall take care of it by individual agreements.
11.3 All claims against FIS-ASP for liabilities of FIS-ASP in contract, tort, or otherwise arising out of or in connection with the contract, are barred after a period of one year –except in cases of intent or personal injury. The time bar period shall begin at the point in time specified in the German Civil Code, section 199 (2), It shall begin at the latest on expiry of the maximum period specified in the German Civil Code, section 199 (3) and (4). The expressly provided time bar for claims resulting out of material defects and defects of title (sect. 10) is unaffected by the provisions of this paragraph.
12 Miscellaneous provisions
12.1 German law without UN sales laws and without laws about international commercial transactions shall apply exclusively to contractual relationships between the customer and FIS-ASP.
12.2 The sole place of jurisdiction for all differences arising out of the contract between the parties to the contract shall be –as far as it is permitted- Schweinfurt, Germany. The parties to the contract are expected before all legal proceedings to try to solve the matter out of court, if necessary by involving third-party experts, unless such an attempt does not seem to be successful.
12.3 Before passing on rights and duties arising out of the contract between the customer and FIS-ASP, the written consent of the other party to the contract is required.
12.4 Amendments and additions of contractual agreements between the customer and FIS-ASP shall be made in writing. This is also valid for the annulment/amendment of the need of the written form.
12.5 If a party to the contract omits or waives to practice or to assert whatever right, this shall not be considered as disclaimer to whatever other right.
12.6 If some individual contractual rules between the customer and FIS-ASP are or become null and void entirely or in part the validity of the other rules shall not be affected hereby. The parties to the contract undertake to replace the null and void rules by effective rules without delay so that the economic purpose desired with the null and void rule is achieved if possible. This is also valid in case of a possible loophole in the contract as far as no corresponding legal rules are relevant for this.
13 Further Obligations of FIS-ASP
The service obligations of FIS-ASP arise from the service specification of the respective product. Other commitments, service promises or additional agreements shall only be effective if they are confirmed in writing by FIS-ASP.
FIS-ASP is authorized to enhance its services, adapt them to technical progress and/or improve them. This particularly applies if an adaptation appears necessary in order to prevent misuse or if FIS-ASP is obliged to adapt its services due to statutory provisions.
If FIS-ASP provides additional services free of charge, customers have no claim for performance as to the provision of such services. FIS-ASP is authorized to discontinue such services provided free of charge so far within a reasonable period of time, to change them or offer them against payment only. In such cases, FIS-ASP will inform its customers in good time.
FIS-ASP is obliged to provide technical support for its customers only within the scope of the provisions contractually agreed upon. Furthermore, FIS-ASP will not grant its customers any support services free of charge. FIS-ASP will not provide direct support for its customer’s customers unless other agreements have been made in writing.
If the customer has been provided with fixed IP addresses, FIS-ASP reserves the right to change the IP address(es) assigned to the customer if this is necessary for technical or legal reasons.
14 Further Obligations of the Customer
Customers commit themselves not to use the resources provided by FIS-ASP for activities violating legal prohibitions, public morality or the rights of third parties.
This includes the following activities in particular:
(a) unauthorized intrusion into third-party computer systems (e.g. hacking);
(b) impairment of third-party computer systems by sending/forwarding data streams and/or e-mails (e.g. DoS/DDoS attacks/spam/mail bombing);
(c) search for open accesses to computer systems (e.g. port scanning);
(d) sending of e-mails to third parties for advertising purposes unless an explicit consent of the recipient or any other statutory permission has been given;
(e) the forging of IP addresses, mail and news headers as well as the distribution of malware. If the customer infringes one or more of the obligations mentioned above, FIS-ASP will be authorized to immediately discontinue its services. Claims for damages are expressly reserved.
If the transmission of a specific data volume per settlement period has been agreed upon with the customer, the customer will monitor this limit. If the data transfer volume (traffic) alloted to the customer’s quotation exceeds the maximum quantity agreed upon with the customer for the respective period of time, FIS-ASP will charge the amount for the excessive volume to the customer at the prices agreed upon.
If the customers themselves manage, install or distribute licenses on the servers, they shall be exclusively obliged to perform a correct licensing.
15 Special Conditions for Hosting Products, Dedicated and Virtual Servers
The customer explicitly asserts that the provision and publication of the website or data contents placed online neither infringe German nor any other relevant national law, particularly copyright, trademark right, right to a name, data protection law and competition law. FIS-ASP reserves the right to temporarily block contents that appear dubious in this respect. The same shall apply if FIS-ASP is asked by a third party to change or delete contents on hosted websites because they allegedly violate third-party rights.
If customers endanger the security, integrity or availability of networks, other servers as well as software and data of third parties or of FIS-ASP by means of their own servers or if they are suspected of this offense on the basis of objective factors, FIS-ASP is authorized to temporarily block the server. This shall also apply in particular to so-called denial-of-service attacks (DoS attacks) executed by customers via their servers and also in the case that customers are not responsible for the detrimental act or the server’s state, if, for instance, the customers’ servers have been manipulated and used by third parties.
A deliberate act of the customer shall entitle FIS-ASP to terminate the contractual relationship without notice and without prior warning.
If spam e-mails (see paragraph “Special Conditions for E-Mail Services”) are sent via the server, FIS-ASP shall also be authorized to temporarily block the server.
Unless otherwise agreed, FIS-ASP is not obliged to backup customer data. If FIS-ASP is tasked by the customer with data backup, the customer is obliged to check the data backed up by FIS-ASP for completeness and suitability for data reconstruction promptly and in regular intervals. Irregularities have to be immediately reported to FIS-ASP by the customer.
FIS-ASP shall be authorized to perform audits to check the compliance of the customer’s servers with the contractual agreements and provisions, particularly license terms. Within the scope of these audits, FIS-ASP shall be authorized to check whether the customer has obtained a sufficient number of software licenses. The customer is obliged to participate in these audits.
Customers are obliged to take account of the usual principles of data security, e.g. to keep passwords and access data secret, not to pass them on to third parties, to protect them against unauthorized access by third parties and to make sure that they are changed if necessary as well as to prevent the misuse of their computer system by third parties. The user shall immediately inform FIS-ASP if there are indications that access data/passwords are known to unauthorized third parties. Customers are obliged to change their passwords regularly – at least every 6 months.
17 Use of Virtual Servers
A significant subject matter in the use of virtual servers is the provision of memory space in the FIS-ASP server systems for the customer with the purpose of operating a virtual server. Additional services rendered in connection with virtual servers – particularly consulting, support, software installation and/or configuration – shall be subject to a separate agreement between the customer and FIS-ASP.
FIS-ASP shall make the server contractually agreed upon available to the customer in its server systems. The customer is authorized to freely use this server within the scope of the contract purpose and in accordance with the following provisions.
Unless otherwise agreed, the customers themselves shall be responsible for the installation of data and software.
Furthermore, customers shall freely choose the operating and application software to be installed and bear sole responsibility for their licensing. FIS-ASP shall undertake to provide and establish a connection to the Internet to make sure that the virtual server can be addressed for inbound requests and the customer data can be retrieved (data downstream) and stored (data upstream).
FIS-ASP points out that undisturbed access to the Internet cannot be ensured due to limited performance capacity and transmission speeds. Therefore, FIS-ASP assumes no obligation to provide an Internet connection at any time or to ensure a specific data transmission speed at any time. Access impairments at usual levels do not constitute a breach of service obligations by FIS-ASP.
The customers themselves shall be responsible for uploading (storing) their data to (on) the virtual server. For this purpose, the customer is given the Internet address and the password.
18 Use of Server Housing Rackspace
FIS-ASP shall rent Rackspace to the customer in the FIS-ASP data center for the system described in the individual contract. Unless otherwise agreed, the customer system shall be arranged in a server room along with the systems of other customers. Type, size and quality of Rackspace, maximum power consumption and heat output as well as other relevant ambient conditions have been described in the individual contract.
The customers themselves shall be responsible for uploading (storing) their data to (on) the system.
As a system administrator, the customer bears sole responsibility for the system’s security against unwanted access and manipulations by third parties via the Internet. FIS-ASP has no regular possibility to determine the system’s content, particularly no administrative access. If FIS-ASP discovers that the system is misused by third parties to a considerable degree, FIS-ASP shall be authorized to disconnect the system from the network without prior notice.
General Terms of Sale of FIS-ASP GmbH for hardware and service providing Document for download
1.1 These General Terms are exclusively valid for all our con-tracts (even for the future) and miscellaneous services (called “service provision” in the following). These can be altered at any time for future service provision. Other Terms than those specified are not valid even if we do not explicitly contradict; they are only valid when being confirmed in writing for the special case.
1.2 The invalidity of single stipulations does incidentally not prejudice to the validity of these conditions.
1.3 Customers in the sense of these General Terms are indi-vidual persons not acting in the exercise of their commercial or self-employed activity when the contract is concluded. Con-tractors in the sense of these General Terms are individual persons or legal entities or incorporated partnerships acting in the exercise of their commercial or self-employed activity when a legal transaction is concluded.
2 Offer, sales documentation and prices
2.1 Our offers and price lists are subject to change and are non-binding. A contract will only accomplish by our written confir-mation.
2.2 Verbal agreements prior to or upon conclusion of a contract with FIS-ASP staff – as far as those persons have been con-ceded a corresponding legal authorisation – are subject to a written confirmation by FIS-ASP to become valid. After con-clusion of a contract verbal modifications and enhancements shall be confirmed in writing by FIS-ASP.
2.3 We reserve the property and copy right as far as illustra-tions, charts, calculations and miscellaneous documents are concerned; these may only be made accessible to third parties on our approval.
2.4 Unless otherwise stipulated, our prices will be valid in EUR ex works, packing and transport charges excluded; these will be charged separately. The legal V.A.T. is not included in our prices; V.A.T. of legal amount will be separately disclosed in the invoice upon issue. Our prices will only be valid for men-tioned services, special services are separately charged.
2.5 Increases in raw material, wages, energy and cost which we could not anticipate and thus which we are not responsible for entitle us to adjust our prices accordingly.
2.6 If scale prices are agreed upon in the order, we will be entitled to make a subsequent charge in the amount of the difference resulting from the scale offer in case the ordering party has not accepted the respective quantity the scale has been based on.
3 Execution and quantity
3.1 Discrepancies as to material, colour, weight, dimensions, technical design or similar characteristics will be reserved as far as the object of service providing can thus be reasonably imposed to the ordering party.
3.2 As far as contractors are concerned, all quantities, measures and technical details are to be understood on the basis of standard tolerances.
4 Delivery and delivery time
4.1 The start of the stipulated delivery time requires the punctu-al and due completion of obligations by the ordering party, such as e. g. the provision of technical data and documents, approvals as well as a downpayment or the handing over of a payment guarantee. Belated requests of modification or en-hancement by the ordering party extend the delivery time in appropriate manner.
4.2 Temporary impediments to performance caused by force major extend the delivery time by the duration of their exist-ence. This will also be valid for miscellaneous unforeseeable impediments to performance that we cannot be made respon-sible for, especially in case of fire, flood, measures against industrial action, scarcity of energy and raw materials or offi-cial measures.
4.3 In case of claims for indemnity due to neglect of duty, the liability is limited to foreseeable typical damages if we or our legal agents or vicarious agents can be charged with slight negligence. Damages that are based upon intention or gross negligence, this limitation of liability will not be valid for. A legal right of withdrawal on the part of the ordering party will remain unaffected as far as the corresponding preconditions are given.
4.4 Partial deliveries are admissible.
4.5 If it comes to default of acceptance by the ordering party or miscellaneous obligations to co-operate are injured, we will be entitled to claim for the replacement of incurring damage including potential additional expenditure; further claims will be reserved. The risk of accidental loss or incidental deterioration of the purchase object will devolve to the ordering party in case of §1 at that time the latter has got into default of delivery / default of acceptance. After unsuccessful expiry of an appro-priate period of grace, we will be entitled to claim for indemnity instead of service performance in the amount of 25% off the total order value; the right of asserting a higher actual claim will be reserved. However, the ordering party will be entitled to satisfactorily prove that no damage or a considerably lower damage has occurred.
5 Place of fulfilment and transfer of risk
5.1 Unless otherwise stiuplated, our place of business will be place of fulfilment.
5.2 For contractors should apply the following:
Shipment will be effected at the ordering party’s risk. As soon as the goods are ready for dispatch and shipment is delayed for reasons that fall beyond our responsibility, the risk will be devolved to the ordering party upon notification of readiness for dispatch. Claims due to transport damages are to be as-serted by the ordering party. The ordering party is obliged to arrange for an immediate assessment of damages at the responsible authority’s as otherwise possible claims towards the forwarding agent or an insurance company might not apply.
5.3 If required by the ordering party, we will cover the shipment by a transport insurance; expenses incurred will have to be borne by the ordering party.
6 Terms of payment
6.1 Unless otherwise stipulated, our invoices will have to be settled within a fortnight from date of invoice without deduc-tion.
6.2 A deduction of a cash discount is subjected to special writ-ten agreement.
6.3 A credit note for cheques and bills will only be accepted under reserve of the correct receipt of the full payment amount. We reserve the right of approval of external or inter-nal accepted bills. Discount charges and miscellaneous ex-penses will have to be borne by the ordering party. We as-sume no responsibility for presentation and protest. In case of protesting of internal bills, of the ordering party’s or of not immediate covering of protested external bills, we will be entitled to return all current bills. Simultaneously, all our claims will become due. We will not accept predated cheques.
6.4 Payment will only be considered as effected as soon as we dispose of the full payment amount. The risk of the respective method of payment lies upon the ordering party. In case of delayed payment on the part of the ordering party, we will be entitled to charge interest for the duration of the delay towards contractors in the amount of 8 percentage points and towards consumers in the amount of 5 percentage points above the base rate of the European Central Bank. The right of asserting further claims for damages will not be restricted thereby.
6.5 If we are notified of circumstances that challenge the order-ing party’s credit worthiness after conclusion of the contract, especially in case a cheque or a bill is not cashed or the order-ing party suspends payment, we will be entitled to make the full remainder of the debt due even if cheques or bills have been accepted. Besides we will be entitled to make further shipments as part of this contract or other agreements depend on a prior collateral security or delivery versus payment. If the ordering party does not comply with our request of advance payment or collateral security within an appropriate deadline, we will be entitled to withdraw from the contract and to charge the ordering party for all our expenses incurred as well as for lost profit.
6.6 The ordering party will only be entitled to an offset of pay-ments if their counterclaim is not undisputed or legally estab-lished. This will also apply to contractors, even in terms of the right of retention.
6.7 An assignment of claims that the ordernig party may be entitled to because of a mutual business relation, does not apply.
6.8 With the effect of discharging the contract, payments can only be effected to the account that we stipulate upon issue of invoice or to employees of our company that have been given power for collection.
7 Reservation of proprietary rights
7.1 We reserve the proprietary right of all delivered goods until full payment of the purchase price. Towards contractors the following conditions will be valid:
7.2 We reserve the proprietary right of all delivered goods until all obligations, even limited ones incl. incidental claims which arouse from our business relations against the purchaser have been settled as well as issued bills of exchange and cheques have been cashed. This will moreover be valid for future claims. As far as pending invoices are concerned, the reserva-tion of proprietary rights will serve as security of the corre-sponding payment balance request. This will also be valid if payments from the purchaser are made to balance certain claims. With the reservation of proprietary rights we are not only entitled to accredit and abstract final balance, but also to causal balance. The purchaser will transfer us claims on this balance in the amount of our due claims in the sense of § 355 German Commercial Code.
If the purchaser falls behind schedule with the accomplish-ment of existing claims from said business relation, we will be entitled to exert proprietary rights over our goods. Specifically the taking back and the attachment of delivered goods cov-ered under proprietary law shall be considered as a rescission of contract. After taking back the object of purchase we will be entitled to its assignment; the proceeds of the sale will be credited against the claims of the purchaser less adequate assignment fees.
7.3 The purchaser will be obliged to carefully treat the goods covered under proprietary law and shall insure them at re-placement value against fire, water and theft in sufficient manner at their own expense. As far as maintenance and inspection works are required, these will have to be effected in due time by the purchaser at their own expense.
7.4 The purchaser will be obliged to immediately notify us of an attachment or miscellaneous intervention of third parties in written form so that we can take action in the sense of § 771 Code of Civil Procedure. As far as a third party will not be capable of compensating us for the judicial and extrajudicial expenses of a claim according to § 771 Code of Civil Proce-dure, the purchaser will be made liable for any loss incurred.
7.5 Further processing and alteration of the object of purchase will only be made for us. If the object of purchase is further processed together with miscellaneous externally processed objects, we will be jointly entitled to the new object of purchase in relation of the value of the object of purchase to miscellane-ous processed objects at the time of processing. If the object of purchase is inseparably compounded with miscellaneous externally processed goods, we will be jointly entitled to the new object of purchase in relation of the value of the object of purchase to miscellaneous compounded objects at the time of compounding. If compounding is effected in a way that the object of purchase is to be considered as main object, it will be agreed upon that the purchaser will transfer us a joint proprie-tary right. The purchaser will keep the resulting sole proprie-torship or joint proprietary right for us.
7.6 The purchaser will be entitled to resell the goods we sup-plied as well as objects resulting from their further processing in the regular course of business; claims of the purchaser from a resale of goods covered under proprietary law are assigned by now to us. They serve as security in the same scope as the goods under proprietary law. As far as the goods have been compounded or further processed, assignment will be made in relation of reservation of properietary rights to the total goods value.
If the purchaser has sold the claim in the scope of mere factor-ing, he will be obliged to assign the superseding claim to us against the factor.
7.7 Even after assignment the purchaser will be authorized to collect these claims. Our competence of collecting the claim by ourselves, will remain unaffected. However, we commit ourselves to hold up the collection of said claim as long as the purchaser fulfills his payment obligations from collected reve-nues, is not in default and particularly the opening of insolven-cy proceedings has not been applied for or stop payment instructions have not been given. If this case comes into force, however, we shall demand that the purchaser informs us about the assigned claims as well as about their debtors, makes all necessary specifications for collection, hands out the corresponding documents and notifies the debtors (third parties) of the assignment.
7.8 If the realizable value of all existing securities exceeds our claims by more than 10 %, we shall be obliged insofar to release securities on demand of the purchaser at our own choice.
8.1 If the purchaser is merchant, his warranty claims will pre-suppose that he has fulfilled his legal examination and notice of non-conformity in due form.
8.2 Contractors that are not merchants shall be obliged to notify us visible defects within a period of two weeks after receipt of goods in written form. Otherwise the assertion of a warranty claim will be excluded. To meet the deadline, timely mailing shall suffice. The contractor shall carry the full burden of proof for all conditions to assert claims, in particular for the defect itself, for the time from which on the defect has been deter-mined and for the timeliness from the notification of defects.
8.3 Towards contractors the warranty period amounts to 1 year from goods delivery. Towards consumers and in case of claims for damages that we, our legal representatives or vicar-ious agents are responsible for as far as death or bodily inju-ries are concerned, the legal warranty period will be valid. The purchaser will only be entitled to claim for indemnity due to the lack of a guaranteed feature if the acceptance of a guarantee shall secure the purchaser particularly against the damage incurred. Miscellaneous claims for indemnity from warranty (not included claims for damages that we, our legal represent-atives or vicarious agents are responsible for as far as death or bodily injuries are concerned) will be excluded if we, our legal representatives or vicarious agents are charged with slight negligence unless foreseeable, typical damages from infringements of fundamental obligations are concerned; not excluded will be claims for indemnity if we, our legal repre-sentatives or vicarious agents are charged with gross negli-gence or intention.
8.4 As far as contribution claims of the purchaser are con-cerned in accordance with the rules of consumer goods pur-chase, the conditions of no. 2 and 3 will only be valid with regards to claims for indemnity.
8.5 We cannot be held liable for damages resulting from im-proper utilization and storage, inaccurate installation or wear and tear. For repairs or miscellaneous interventions carried out by the purchaser or third parties without our approval, warranty of any kind from our side will be excluded.
9.1 Claims for indemnity from breach of duty or without permis-sion will be excluded against us, our legal representatives or vicarious agents unless foreseeable, typical damages from infringements of fundamental obligations are concerned or the damages result from grossly negligent or intentional infringe-ments of obligations by us, our legal representatives or vicari-ous agents. Unaffected from this nonwarranty clause remain claims for indemnity as far as death or bodily injuries are concerned which we, our legal representatives or vicarious agents are responsible for.
9.2 Unaffected from this nonwarranty clause remain claims in accordance with the Produkt Liability Act.
10 Export control clause
We explicitly point our that the goods we deliver may be sub-mitted to German or foreign export clauses. The purchaser is responsible for the compliance with these export clauses up to the final consumer. He commits himself explicitly to dispose of the received goods only pursuant to the legal regulations.
11 Applicable law, court of jurisdiction
11.1 As far as these terms and conditions and the overall privi-ties of contract between us and our contractual partner are concerned, the jurisdiction of the Federal Republic of Germany will be applicable.
11.2 If our contractual partner is merchant in the sense of the German Commerical Law, a legal entity of public law or spe-cial assets under public law, Schweinfurt will be exclusive court of jurisdiction for all disputes resulting directly or indirect-ly from the contractual relationship. However, we will be enti-tled to sue the purchaser even at courts being responsible for his domicile.
Schweinfurt will also be court of jurisdiction if the contractual partner transfers his domicile or haunt beyond the area of application of the Federal Republic of Germany after contract conclusion. This will also be valid if the residence, registered office or haunt of the contractual partner is not known at the time of taking action.
General Terms and Conditions of FIS-ASP GmbH for Software Licensing Document for download
1 Application of Contractual Terms, Contractual Object and Contract Conclusion
1.1 FIS-ASP distributes software products, predominantly for commercial application areas. Delivery and licensing to the Ordering Parties are exclusively based on the following agreements in the specified order:
the respective software licensing and software maintenance contract;
the General Terms and Conditions of FIS-ASP GmbH for Software Licensing and Consulting Services;
the rules of the generally valid FIS-ASP List of Prices and Conditions.
Other terms – particularly the General Terms and Conditions of the Ordering Party – shall not become contents of the contract, even if FIS-ASP does not expressly contradict.
Generally, software is licensed according to contract type “Purchase” and against one-off payment. Data carrier and documentation shall become the property of the Ordering Party. Other contract types (e.g. lease contracts) have to be agreed upon in individual contracts in each case.
1.2 In part, non-SAP software is delivered in combination with the FIS-ASP software products. For this software, FIS-ASP only imparts the rights required for using the programs in combination with the FIS-ASP software. The copyright for non-SAP software is not held by FIS-ASP. In part, other licensing and contract rules than those for FIS-ASP software shall apply. Generally, these rules do not include a right to alter this software or pass it on. The provisions for the licensing of non-SAP software arise from the contract concluded for this software.
1.3 For FIS-ASP or third parties, the software consisting of programs and written documents is legally protected by copyright, the protection of trade and business secrets, partially by the patent law and, furthermore, by the competition law as well as by trademarks and trade dress rights.
A breach of these rights involves claims for damages, claims for injunctive relief and claims to information and may be subject to prosecution. The protection shall apply without any special agreement, worldwide and to anyone. If the Ordering Party breaches property rights to the software products, FIS-ASP shall be authorized to revoke the Ordering Party’s right of use.
1.4 Changes and enhancements to the software shall be made by the Ordering Party at its own risk and only if it is technically able to do this without unauthorized decompiling. Herewith, FIS-ASP explicitly points out risks and disadvantages in terms of operational safety, warranty (see sect. 5.8, 2nd subparagraph) and software maintenance to the Ordering Party. FIS-ASP does not have the authority to permit the Ordering Party to change or enhance non-SAP software.
FIS-ASP shall not be prevented by developments of the Ordering Party from particularly merchandising, completing or changing the product, not even if the Ordering Party was involved in the development.
1.5 FIS-ASP may demand written contract declarations of the Ordering Party. In case of doubt, the FIS-ASP quotation and order confirmation or the contract concluded shall apply.
1.6 Contractual objects, documents, proposals, test programs etc. are the intellectual property of FIS-ASP (see sect. 4) and must not be copied and made available to third parties. If no contract is concluded, they must be returned and deleted and must not be used.
2 Selection of Products and Services
The essential functional characteristics of the software are known to the Ordering Party; it shall bear the risk whether the software corresponds to its wishes and requirements. In questions of doubt, the Ordering Party must seek the advice of FIS-ASP employees or competent third parties before the contract is concluded. Specifications of the Ordering Party are to be made in writing. For a possible liability of FIS-ASP, sect. 13 shall apply.
3 Delivery Item
3.1 FIS-ASP shall deliver the software according to the product description or the manual. FIS-ASP does not owe any further functionality of the programs. The descriptions in the manuals, in test programs, in product and project descriptions etc. do not guarantee any specific characteristics.
Commitments of whatever kind that entail further warranty obligations of FIS-ASP than those specified in these Terms and Conditions shall require the express and written confirmation of FIS-ASP. Guarantees such as the agreement of specific characteristics shall require the express and written confirmation of the FIS-ASP Executive Board.
In the absence of any other agreement, the software will be delivered in the current version at the date of delivery. In this respect, deviations from the product description or the manual may arise.
3.2 The technical applications and conditions of the programs (e.g. concerning database, operating system, hardware and data carrier) shall be communicated on request.
4.1 All rights to the software, particularly the comprehensive copyright with all rights concerning all programs, documents and information licensed within the scope of contract initiation and implementation including warranty, support and maintenance shall be the exclusive property of FIS-ASP in its relationship to the Ordering Party even if these objects have arisen from specifications or cooperation of the Ordering Party. The Ordering Party shall only have the non-exclusive entitlements to these objects mentioned in sect. 5 to 7.
4.2 In particular, any kind of software copying that is not expressly permitted, any instance of software distribution that is not explicitly allowed and the development of similar software by using the FIS-ASP software as a template shall be prohibited by law and by contract.
5 Rights of Use
The Ordering Party is obliged to observe the following rules:
5.1 For software products to be delivered, FIS-ASP assigns a unique license number in each case. Software products with an identical license number must only be used in one installation, in one live computer system and at one specific installation location (main installation) at the same time. Settlement is also based on the license number. The Ordering Party has to specify the license number to obtain a warranty and maintenance services.
5.2 For each live installation with its programs, the Ordering Party establishes four other installations at the most for continuous testing and for internal training sessions (“test installations”). An installation is the sum of all components accessing a set of databases indirectly or directly or interoperating with a set of databases. A set of databases is determined by the fact that each database table is not contained more than once.
5.3 In a live system, the software is only used for handling your own business transactions and those of such enterprises affiliated to the Ordering Party according to sect. 15 of the Stock Corporation Act (group companies). This shall also apply to test installations. An operation in data centers is not allowed.
5.4 All data processing equipments (e.g. hard disks and central processing units), where the programs are copied to in whole or in part, temporarily or permanently, shall be found on the Ordering Party’s premises and is directly owned by it. The user databases belonging to a specific installation are saved on data storage devices that can be only be found at one location in the country where the contract has been concluded.
5.5 The Ordering Party is authorized to backup its data according to the generally accepted rules of technology and to create backup copies for the intended use of the software products to the necessary extent. Each backup copy on a removable medium has to be labeled as such and needs to be provided with the copyright notice of the original data carrier. The Ordering Party must not remove or change FIS-ASP copyright notices.
5.6 In the absence of express written instructions, FIS-ASP employees can always assume that all data they might get in contact with has been saved.
5.7 In the event that the software does not work properly as a whole or in part, the Ordering Party shall take adequate measures (e.g. by means of data backups, fault diagnoses, regular checks of the results). It is the responsibility of the Ordering Party to ensure the proper operation of the required work environment of the software by concluding maintenance contracts with third parties if necessary.
5.8 According to sect. 69 c no. 2 UrhG (“German Copyright Act”), the Ordering Party is authorized to alter the programs for its own purposes and to change and enhance the software.
FIS-ASP does not grant any warranty for a software product changed by the Ordering Party unless the Ordering Party proves that the changes are in no way causally linked with the error occurred.
5.9 Before a decompilation of the programs, the Ordering Party shall request FIS-ASP in writing and with a reasonable deadline to make the information and documents available that are required to achieve interoperability. Only if this request has remained unsuccessful in spite of setting a deadline in writing, the Ordering Party will be authorized to decompile the programs within the bounds of sect. 69 e UrhG (“German Copyright Act”). Prior to the involvement of third parties (e.g. according to sect. 69 e para. 1 no. 1, para. 2 no. 2 UrhG), the Ordering Party shall provide FIS-ASP with a written declaration of the third party concerned saying that it undertakes to comply with the rules defined in sect. 4 to 7.
5.10 Upon delivery of the software due to the purchase order of the Ordering Party or due to the software licensing contract signed by the OP, the entitlements of the Ordering Party shall commence upon receipt of the software. For software that the Ordering Party does not obtain due to its first purchase order but, for instance, within the scope of rectification or maintenance, these entitlements shall commence as soon as the programs are saved on a hard disk or processed in a CPU. As soon as the new programs are used in a live system, the Ordering Party’s entitlements concerning the programs that have been licensed before and have now been replaced shall expire according to sect. 5 to 7. However, the Ordering Party is authorized to use the new programs as a test system for three months. For returns, sect. 15 shall apply.
5.11 Any use of the programs beyond the rules stipulated in these Terms and Conditions or in the generally valid FIS-ASP List of Prices and Conditions requires the prior written consent of FIS-ASP. If the programs are used without this consent, FIS-ASP will invoice the amount incurred for further use as a compensation according to the generally valid FIS-ASP List of Prices and Conditions. The right to assert claims for higher compensation remains reserved.
5.12 The Ordering Party is obliged to notify FIS-ASP in advance and in writing of any change affecting its right of use or payment and, if necessary, to obtain the written consent of FIS-ASP.
5.13 In case of contract type “Purchase”, the Ordering Party generally obtains the rights for an unlimited period.
6 Configuration, Obligation to Notify
6.1 From a technical and legal point of view, the Ordering Party is free to enlarge its installation at any time. If the installation is enlarged, FIS-ASP will not grant any warranty for the software product unless the Ordering Party proves that the enlargement of the installation is in no way causally linked with the failure or defect.
6.2 The Ordering Party shall permit FIS-ASP to check each installation once a year, i.e. to ascertain the compliance with the present purchase order and the contractual agreements, calculate the value according to the generally valid FIS-ASP List of Prices and Conditions and claim a possible value difference. By request of FIS-ASP, the check is replaced by the written notice of the Ordering Party concerning the current installation data.
6.3 It is not possible to return the usage authorization or change it in case of a lower actual use. However, the Ordering Party is authorized to reduce the maintenance services.
7.1 The Ordering Party may only pass on the software it has acquired under contract type “Purchase” to third parties by reselling it (i.e. not by leasing it for instance) and only by discontinuing its use. A prerequisite for resale is the prior written consent of FIS-ASP that FIS-ASP will not refuse unreasonably. With its request for consent, the Ordering Party shall submit a written declaration of its purchaser with the purchaser binding itself to the currently valid FIS-ASP rules for usage and resale.
7.2 The third party concerned is not authorized to exercise the contractual rights of use before the Ordering Party has assured FIS-ASP in writing that it has passed all original program copies on to the third party and has deleted all copies created by itself. Sect. 15 shall apply accordingly.
8 Cooperation of the Ordering Party
8.1 To ensure an on-time delivery, the Ordering Party is obliged to make the data required for delivery available to FIS-ASP in good time (installation type, computer type).
8.2 The Ordering Party shall provide for the work environment of the software. In doing so, the specifications of FIS-ASP and the specifications in the manual have to be observed comprehensively and in particular.
Especially the dimensioning of hardware components is the responsibility of the Ordering Party.
8.3 The Ordering Party shall support FIS-ASP with fulfilling the order to the required extent and free of charge by providing, for instance, employees, work spaces, hard- and software, data and telecommunication equipment and by contributing to specifications, tests, acceptances etc.. It grants FIS-ASP access to hard- and software directly and via remote data transmission and shall bear the costs incurred. The Ordering Party’s essential interests have to be preserved here; FIS-ASP shall pay particular attention to data protection. If easy technical access by means of telecommunication equipment is not possible or not granted, the Ordering Party shall bear all adverse consequences (e.g. additional costs incurred by FIS-ASP).
8.4 The Ordering Party shall name a contact person who acts as a dialog partner for FIS-ASP, makes the necessary decisions or immediately brings them about. The contact person provides for good cooperation with the FIS-ASP account manager. The availability of the contact person must be ensured.
8.5 The Ordering Party shall test each program thoroughly for freedom from defects and for usability in the respective situation before it starts the operational use of the program. This shall also apply to programs the Ordering Party obtains within the scope of warranty and maintenance.
8.6 In the event that the software does not work properly as a whole or in part, the Ordering Party shall take adequate measures, e.g. by means of data backups, fault diagnosis, regular checks of the results etc..
9 Delivery, Delivery and Performance Period
9.1 The software is delivered by providing the program that can be run on a computer and the manual to the Ordering Party by handing over data data carriers, by import into the computer or by means of remote data transmission. The Ordering Party shall be responsible for the installation and start-up of the software; the Ordering Party can assign this task to FIS-ASP.
9.2 FIS-ASP shall deliver software in the current program release within one month, software in an older program release within two months from contract conclusion or on demand. Earlier delivery dates require the explicit written consent of FIS-ASP. FIS-ASP shall not be held responsible for disturbances caused by strikes, lockouts, official interventions, fires and other unindebted circumstances.
9.3 If FIS-ASP has to wait for participation or information of the Ordering Party or is otherwise involuntarily impeded in the execution of the order, delivery and service deadlines shall be considered as extended by the duration of the impediment and by a reasonable start-up period after the end of the impediment. FIS-ASP shall inform the Ordering Party of the impediment.
9.4 FIS-ASP shall only be in default due to a reminder. All reminders and deadlines of the Ordering Party require the written form to be effective. When fixing the deadlines, the significance and the scope of the order must be considered. However, periods of grace must be at least twelve working days.
10 Price, Payment, Proviso
10.1 The price valid at the time of conclusion of the contract shall apply; price changes until delivery shall not be considered. In addition, increases and reductions of the generally valid FIS-ASP List of Prices and Conditions shall apply. All prices do not include the currently valid V.A.T.
10.2 Each individual delivery or service shall be invoiced separately. Payments shall be due after issuing of the invoice. A discount shall not be granted. From 14 days after the due date, FIS-ASP – without prejudice to further rights – shall charge interest in the amount of the currently valid statutory default interest rate, i.e. currently in the amount of 8 percentage points above the base interest rate of the European Central Bank
10.3 FIS-ASP shall be authorized to demand down payments or full payments in advance if there is no business relation with the Ordering Party yet, if a delivery is to be made abroad or the Ordering Party is located abroad or if there are reasons to doubt the punctual payment by the Ordering Party. If doubts as to the Ordering Party’s ability to pay arise after contract conclusion, FIS-ASP shall be entitled to revoke payment terms granted and to declare all claims due for immediate payment.
10.4 The Ordering Party may offset payment only against uncontested or legally established receivables. It is not authorized to assign its claims to third parties – without prejudice to the provision of sect. 354 a HGB (“German Commercial Code”).
10.5 FIS-ASP shall retain ownership to the contractual objects (e.g. data carrier and manual) until all its claims under the contract have been completely settled. In the event of access to the reserved property by third parties, the Ordering Party shall be obliged to notify FIS-ASP immediately and in writing and to inform the third party concerned about the rights of FIS-ASP.
11 Obligation to Examine and Give Notice of Defects
11.1 The Ordering Party shall assume an obligation to examine and give notice of defects concerning all deliveries and services of FIS-ASP according to sect. 377, 378 HGB (German Commercial Code).
11.2 To the Ordering Party, “give notice of defects” means giving an exact description of the problem, also in written form at the request of FIS-ASP. Only the contact person named by the Ordering Party (sect. 8.4) shall be authorized to give notice of defects.
12 Defects of Quality and Title
12.1 For information, data, programs etc. made available by the Ordering Party for service provision, FIS-ASP assumes no liability.
12.2 FIS-ASP guarantees that the contractual object has the specific characteristics explicitly agreed upon or, if no specific characteristics have been agreed upon, is suitable for the contractually stipulated use or, otherwise, for normal use and has characteristics that are customary for deliveries and services of this kind and that the customer can expect for deliveries and services of this kind and that the transfer of the entitlements agreed upon to the Ordering Party shall not conflict with the rights of third parties.
The Ordering Party shall bear the risk that the contractual object meets its wishes and needs. In questions of doubt, the Ordering Party must seek the advice of FIS-ASP employees or competent third parties in good time.
Commitments of whatever kind that justify further obligations of FIS-ASP than those specified in these Terms and Conditions require the express and written confirmation of FIS-ASP. Guarantees such as the agreement of specific characteristics shall require the express and written confirmation of the FIS-ASP Executive Board.
12.3 The Ordering Party shall immediately report any defects occurring to FIS-ASP in writing including an exact description of the problem and the information required for troubleshooting (see sect 11). Only the contact person named by the Ordering Party (sect. 8.4) shall be authorized to give notice of defects. The Ordering Party’s obligation to co-operate shall also apply for rework according to sect. 8.
12.4 In the event of defects, FIS-ASP shall initially be given the opportunity to remedy the defect within a reasonable period. When fixing the deadlines, the significance and the scope of the order must be considered. However, deadlines must be at least 12 working days. Defects shall be remedied by troubleshooting, by providing a new program release or by FIS-ASP showing reasonable possibilities to avoid the effects of the error. The Ordering Party is obliged to accept a new program release unless this leads to inappropriate adjustment and reorganization problems. In this context, FIS-ASP may also offer alternative solutions.
If the rework finally fails or FIS-ASP does not remedy the defect within a reasonable period set by the Ordering Party, the Ordering Party shall be authorized to reduce payment or withdraw from the contract.
Claims shall expire within one year after the beginning of the statutory warranty period.
For damages, sect. 13 shall apply. Other claims shall be excluded, e.g. claims for reimbursement of expenses if defects have been remedied by third parties.
12.5 The Ordering Party shall bear the burden of proof that limitations to use or deficiencies are not (partially) caused by improper operation, by an intervention of the Ordering Party or by the system environment. Services that FIS-ASP renders without being obliged to, have to be paid as follows:
Unless otherwise agreed upon in writing in individual cases, FIS-ASP will invoice the services rendered according to working, traveling and waiting time and, if necessary, according to material (e.g. documentation) and computer usage time in accordance with the FIS-ASP List of Prices and Conditions generally valid at the time of service provision.
Furthermore, the Ordering Party shall pay for additional costs such as accommodation and traveling costs according to expenses and charges based on the rates of the generally valid FIS-ASP List of Prices and Conditions.
Generally, traveling and additional costs are charged as of the consultant’s location.
All prices do not include the respective statutory V.A.T.
12.6 FIS-ASP declares that it is not aware of any third-party rights concerning the services rendered.
If a third party claims towards the Ordering Party that an FIS-ASP service infringes its rights, the Ordering Party will inform FIS-ASP immediately, comprehensively and in writing.
The Ordering Party shall immediately authorize FIS-ASP to reject the claims asserted at its own expense as far as it is permissible. The Ordering Party must not admit such claims on its own responsibility. FIS-ASP is authorized to conduct extra-judicial or judicial disputes at its own discretion with the third party concerned, fulfill the third party’s claims or replace the questioned objects by other contractual objects.
This provision shall not apply if the infringement of property rights of third parties is based on a use of the software products by the Ordering Party that is contrary to the contract.
In all other respects, the statutory provisions concerning defects of title with a warranty period of one year shall apply.
13.1 In all cases of contractual and extra-contractual liability, FIS-ASP shall only pay damages or compensation for futile expenses
a) in full in the case of intent; in case of gross negligence and in the absence of a specific characteristic that FIS-ASP has assumed a guarantee for, damages shall only be paid in the amount of predictable losses that were to be prevented by the breached obligation or guarantee;
b) in other cases, only due to the breach of an essential obligation if the purpose of the contract is thus impaired, due to default and due to impossibility, always limited to 0.5 % of the order value for each work day of the delay, all in all however, to a maximum of 5 % of the order value in all cases up to a maximum amount of EUR 25,000,- of the individual contract.
c) Furthermore, as far as FIS-ASP is insured against the damages occurred, in the amount of insurance coverage and subject to a condition precedent due to the insurance payment.
The objection of contributory negligence (e.g. under sect. 5 and 8) shall remain open. The statutory liability for personal injury and under the German Product Liability Act shall remain unaffected.
13.2 If the Ordering Party wishes a more comprehensive insurance against cases of damage, the parties shall make individual arrangements.
13.3 For all claims for damages of the Ordering Party against FIS-ASP or compensation for futile expenses in case of contractual and non-contractual liability, a limitation period of one year shall apply, except for in cases of intent or personal injuries. The limitation period shall begin with the date defined in sect. 199 para. 1 BGB (German Civil Code). It shall take effect at the latest upon expiry of the maximum periods specified in sect. 199 para. 3 and 4 BGB (German Civil Code). The deviating limitation period for claims for defects of quality and title (sect. 12) shall remain unaffected by the provisions of this paragraph.
14 Secrecy and Safekeeping
14.1 FIS-ASP undertakes to treat all information received by the Ordering Party as confidential. FIS-ASP will observe the data protection law. FIS-ASP shall be allowed to machine the Ordering Party’s data.
14.2 The Ordering Party commits to keeping all contractual objects secret from third parties. Employees and third parties who have access to contractual objects have to be informed in writing about the FIS-ASP copyright and their obligation to maintain secrecy, which they must undertake to observe.
14.3 The Ordering Party shall keep the contractual objects – particularly source programs and documentations provided – carefully in a safe place to preclude misuse.
15 Expiration of the Right of Use
15.1 Upon expiration of the right of use, the Ordering Party shall return all deliveries and copies and delete stored programs unless it is legally obligated to a longer retention period. The Ordering Party shall assure FIS-ASP in writing of the fulfillment of these obligations.
15.2 The secondary obligations under this contract (e.g. under sect. 5 and sect. 14) shall persist in the long run.
16 Software Maintenance
16.1 Within the scope of software maintenance to be agreed upon, FIS-ASP shall render the services specified in the generally valid FIS-ASP List of Prices and Conditions. The services shall only be rendered in relation to the software version delivered last and the penultimate version. The Ordering Party is obliged to have all its installations maintained completely or has to terminate the maintenance as a whole.
16.2 For performance impairments within the scope of software maintenance, the same provisions as for software purchases shall apply under this contract. Rescission of the contract (sect. 12.4) shall be replaced by extraordinary termination.
16.3 The software maintenance agreement can be terminated by giving three months notice to the end of a calendar year, however, upon expiration of two full calendar years at the earliest. Any termination shall require the written form to become effective. In particular, FIS-ASP reserves the right to extraordinarily terminate the agreement if the Ordering Party repeatedly or grossly breaches its contractual obligations according to sect. 5 to 7 or sect. 14 or if it is in arrears with the payment of maintenance fees.
16.4 The services of FIS-ASP within the scope of software maintenance have to be paid separately. Basically, payment shall be made according to the generally valid FIS-ASP List of Prices and Conditions.
If the payment of software maintenance has been stipulated as a percentage of the purchase price of the software, FIS-ASP is authorized to change the percentage with a two months written notice to the end of the calendar year. If the Ordering Party does not terminate the maintenance agreement to the end of the calendar year within two weeks from receipt of the notification, the new payment specification shall be considered as agreed upon. FIS-ASP will advise the Ordering Party of this provision in the notification.
16.5 If the Ordering Party does not immediately order software maintenance as of the date of its delivery, but at a later date, it is obliged to pay the software maintenance fees it would have had to pay for software maintenance agreed upon as of the date of its delivery in order to achieve the current software status.
The same will apply if the Ordering Party intends to acquire the current software version of a specific product that it does not want to conclude a software maintenance contract for from FIS-ASP.
Support services and other services that are not covered by the explicit service descriptions of the purchase and maintenance contracts have to be separately agreed upon (see also sect. 12.5) and shall be paid according to the generally valid FIS-ASP List of Prices and Conditions. As to these services, the “General Terms and Conditions of FIS-ASP GmbH for Consulting Services and Operating Services” shall apply.
18 Export Licenses
The export of contractual objects and documents might be – due to their nature or their intended purpose for instance – subject to an approval requirement. The Ordering Party undertakes to adhere to all relevant statutory provisions. On demand of FIS-ASP, the Ordering Party commits in writing to leaving the software products in the country of installation.
19.1 The contractual relationships between the Ordering Party and FIS-ASP shall be subject to German law. The applicability of laws concerning the International Sale of Goods or the CISG (United Nations Convention on Contracts for the International Sale of Goods) shall be excluded.
19.2 The exclusive place of jurisdiction for all disputes arising from and in the context of this contract between the Contracting Parties shall be Schweinfurt, as far as it is permissible. Prior to any legal proceedings, the Contracting Parties hereto shall be obliged to attempt to settle the dispute out of court, employing the services of competent third parties if necessary, unless such an attempt is likely to be unsuccessful.
19.3 Rights and obligations arising from contractual relationships between the Ordering Party and FIS-ASP may only be conferred after the prior written consent of the other Contracting Party.
19.4 Changes and amendments of contractual agreements between the Ordering Party and FIS-ASP are to be made in writing. This shall also apply to the cancellation/modification of the requirement of written form.
19.5 If one Contracting Party refrains or renounces from exercising or asserting a specific right, this shall not be considered as a waiver of any other right.
19.6 If individual contractual provisions between the Ordering Party and FIS-ASP are or become ineffective in full or in part, the validity of the remaining provisions shall remain unaffected. The Contracting Parties undertake to immediately replace the invalid provisions by valid provisions in such a way that the intended economic purpose of the ineffective provision is achieved as far as possible. This shall also apply in case of a contract gap, as far as no respective statutory provisions are applicable.
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