1. Scope of application
The general terms and conditions apply to all contracts of FMP software & process engineering GmbH, Bietigheim-Bissingen (hereinafter FMP), especially purchase and delivery of goods, maintenance and repair, consulting and other services.
The general terms and conditions of FMP take precedence over the general terms and conditions of the customer, unless the parties agree otherwise in writing.
Verbal subsidiary agreements or promises are only effective if they are confirmed in writing by FMP.
2. Subject matter of the contract and delivery disturbances
Assumed delivery obligations are – even if a delivery date is agreed – subject to our own timely delivery. Delay does not occur in the case of force majeure or due to events that make delivery or performance significantly more difficult or impossible for FMP. In the case of a delay in delivery or service for which FMP is not responsible, FMP is entitled to postpone the delivery or service for the duration of the hindrance or to withdraw from the contract in whole or in part, without further claims for damages by the customer.
a. Trade goods
The object is the sale of computers, standard software, peripheral equipment, computer accessories, printing and copying systems and other movable property by FMP. The development and transfer of individual software is not covered by these conditions.
The object is the provision of services to the customer in connection with the installation, configuration, repair, training and support as well as other support services for hardware and software systems by FMP. This also includes consulting and support services by FMP for software projects planned at the client’s site.
Within the scope of purely consulting activities, FMP does not assume any obligation with regard to the suitability of selected devices for the purposes and interests of the customer.
FMP’s services are performed according to empirical values in such a way as they are deemed technically necessary from FMP’s point of view. If the customer deems other working methods to be necessary, the customer must bear any additional costs incurred for this. At the request of the customer, FMP will prepare an estimate of the costs prior to the commencement of the service provision, against separate invoicing.
FMP will act exclusively as a service provider for the client, whereby FMP is only responsible for the service and the client is responsible for the overall result when providing its services.
c. Special provisions for software licensing
In the case of delivery of standard software, the customer shall receive, unless otherwise requested by the purchaser, the version of the software current at the time of delivery. FMP provides the customer with the software by means of a data carrier, which may have to be ordered separately or is provided by the customer. The documentation can be delivered either printed or electronically stored, at FMP’s discretion. Upon request, FMP will support the customer in the installation, introduction and training of the software in its operation by rendering services against separate payment. The customer is responsible for the backup of the programs and data of the installed software.
FMP grants the customer the non-transferable, non-exclusive and time-unlimited right to use the software in the previously determined purpose and scope by himself. According to the respective contract, the right of use applies only to one device or central unit and the specified number of users. The making of copies, transcriptions or reproductions of the provided software and documentation is permitted exclusively for own use, in particular for backup and archiving purposes. The transfer of the software to third parties is prohibited.
The ownership and all rights to the delivered software and documentation remain with the author. Notices of property rights and other notices of rights holders on the data carriers, documentation or other material may not be removed. Changes, extensions or other interventions of any kind in the software are not permitted. The retranslation of the software into other code forms (decompilation, etc.) is not permitted.
If the customer violates any of the above provisions for software licensing, FMP may terminate the right of use granted to the customer with immediate effect in writing, without affecting the other provisions of the contract and without refunding the license fee.
In principle, the license and usage conditions of the respective manufacturer apply.
3. Duties to cooperate
The client shall provide the FMP employee(s) with a workstation for the specified period of time, if required. To implement the hardware components or software solutions, the workstation should have a connection to the company network and the Internet. During the project, a competent employee or group of employees must be named by the customer as contact person and must be available on call.
The components and software solutions to be installed within the scope of the provision of services shall be provided by the customer if not supplied as the subject of the contract. Furthermore, for each software to be distributed / installed in the project, the customer shall name one employee who is familiar with the program as a “product expert” and who can answer any questions the FMP employee may have. FMP assumes no liability for insufficiently licensed or faulty software.
4. Termination of contracts
If a contract does not concern a one-off service, the contract period is 12 months and begins on the first day of the following month after receipt of the agreed service by the customer. Ordinary termination is permissible with a period of notice of three months to the end of the contractual term. The contract is automatically extended at the end of each term by a further term of 12 months if it is not terminated in writing by the customer in due time before the end of the term.
FMP reserves the right to change the prices or price structures on which the contract is based at any time by written notice with a period of notice of 3 months to the end of the calendar quarter (change period). If the price increase does not exceed 5% per contract year, the customer has no special right of termination due to this price increase. In the event of a price increase of more than 5 % per contractual year, the customer is entitled to terminate the contractual relationship with a notice period of 2 calendar months to the end of the change period. Otherwise, the changed prices shall be deemed to have been agreed after the end of the period of change. Claims for compensation against FMP cannot be derived from such a price increase.
If the customer cancels the contract before delivery, installation or use of a service, he is obliged to pay 10% of the order amount to FMP. The customer is entitled to prove that FMP has incurred no or lower costs. FMP is entitled to prove that FMP has incurred higher costs. These costs are then borne by the customer. If the customer cancels the contract, the customer shall return the provided items in the condition in which they were delivered, taking into account the wear and tear caused by the contractual use, in accordance with the underlying contract. If the customer does not comply with this obligation after termination of the contractual relationship, FMP may continue to demand the agreed remuneration as compensation for the duration of the withholding.
FMP expressly reserves the right to assert further claims. The rights to terminate the contract without notice remain unaffected by these provisions.
5. Retention of title
FMP reserves the right of ownership of goods delivered by it until all claims against the customer have been settled, even if the delivered goods themselves have already been paid for. In case of a possible over-securing, securities are to be released until the over-securing is eliminated.
The customer shall inform FMP immediately of any enforcement measures taken by third parties against the goods subject to retention of title. The duty to inform also exists in case of impairments of any other kind. Any assignment of the reserved goods as security in favour of third parties is invalid without FMP’s consent. The customer must inform third parties in advance of FMP’s existing rights to the goods. In the case of resale or leasing of the goods subject to retention of title, the customer assigns to FMP as security the claims against his customers arising from the resale or leasing of the goods until all claims of FMP arising from the business relationship have been fulfilled. As long as the retention of title exists, the equipment may only be used within the Federal Republic of Germany. Without prior written consent of FMP, the customer may not dispose of the equipment beyond the usage.
6. Terms of payment / invoicing of services
All prices are in Euro and are to be paid without deduction. The statutory value added tax will be charged separately. The prices published by FMP are non-binding and only become valid upon acceptance of the order by FMP. FMP is bound to the prices and conditions stated in offers for two weeks. This also applies to prices and conditions contained in FMP order confirmations that deviate from the customer’s previous order.
The prices do not include travel, accommodation and expenses. These will be charged separately according to FMP’s current price lists. The services are invoiced according to the actual work performed. In the case of extensive service projects, a weekly interim invoice is issued.
Agreements on dates and deadlines shall be made in writing. If more than 6 months elapse between the conclusion of the contract and the agreed date of performance, the list prices valid at the time of performance of the service shall be deemed agreed. Furthermore, compliance with the service obligation on the part of FMP presupposes the timely and proper fulfilment of the customer’s obligations.
Claims are to be settled within 14 days from the date of their invoice without any deduction. Rent and leasing instalments are to be paid in advance by the 3rd working day of the period of time according to which they are due. A payment is only deemed to have been made when it has been credited to the account of FMP or, in the case of payment by cheque, when it has been credited without reservation. The customer may only set off counterclaims if they have been legally established or are undisputed.
A right of retention can only be asserted if it is based on the same contractual relationship. If the customer is in arrears with a due payment or if his financial circumstances or his solvency deteriorate, or if FMP becomes aware of this only after the conclusion of the contract, FMP may demand payment for the outstanding deliveries of goods or services before delivery of the goods or before provision of the service, or withdraw from the contract in whole or in part without setting a time limit.
If the customer is in default of payment after expiry of the above-mentioned payment periods, FMP is entitled to charge consumers interest on arrears at a rate of 5 percentage points above the base rate, otherwise at a rate of 8 percentage points above the base rate. FMP reserves the right to claim further damages.
7. Acceptance of services
If legal regulations or contractual agreements between FMP and the customer stipulate that services are to be accepted, the following applies:
A functional test is carried out by the customer when the work results are handed over. After successful functional testing, the customer must declare in a final protocol that he accepts the work results as contractually agreed services (acceptance). The functional test shall be deemed successful if the work results meet the contractually stipulated requirements in all essential points. Insignificant deviations of the work results from the contractually stipulated requirements do not entitle the customer to refuse acceptance; they will be recorded as defects in the final protocol and eliminated within a reasonable period of time. If the customer does not immediately declare that he will accept the work results as services in accordance with the contract, FMP may set a two-week deadline in writing for the submission of the declaration. Acceptance shall be deemed to have taken place if the customer does not respond within this period or does not specify the reasons for refusing acceptance in writing.
8. Third party rights
The customer assumes responsibility for the fact that FMP is entitled to process, change and/or use products provided for the execution of the order. The customer shall indemnify FMP against all claims asserted by third parties due to the processing, modification and/or use of the products provided.
Unless otherwise agreed in the following, FMP is liable according to the legal regulations for claims for damages based on intent or gross negligence. In the case of simple negligence, FMP is only liable in case of violation of an essential contractual obligation, whereby in this case, the liability for damages is limited to the foreseeable, typically occurring damage. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
To the extent permitted by law, FMP’s liability is otherwise excluded. As far as the liability of FMP is excluded or limited, this also applies to the personal liability of all persons who work for FMP as workers, employees, freelancers, commercial agents, subcontractors or in any other way. The customer indemnifies FMP from all claims of third parties, especially contractual partners of the customer, which exceed the liability according to these conditions.
FMP warrants that its deliveries and services have the contractually agreed quality and are usable in accordance with the descriptions and documentation valid at the time of delivery. An insignificant reduction in usability is not taken into account.
In the case of a warranty claim, the customer is obligated to provide FMP with verifiable documentation on the type and occurrence of defects and to cooperate in their containment. FMP will remedy any defects by supplementary performance. In this case, FMP is entitled to carry out the supplementary performance in case of defects of software components by delivering new editions and/or additions of the license material, which are not to be paid separately, and the supplementary performance in case of hardware components by delivering defect-free hardware components.
The Customer shall be responsible for the installation and, if applicable, integration of such new editions or additions to the Licensed Material. The same shall apply to hardware deliveries under warranty.
If the rectification of defects fails in spite of a reasonable deadline set by the customer, the customer shall be entitled to reduce the agreed remuneration. Further warranty claims are only valid if FMP is responsible for a defect. In all other respects, the regulations on liability apply to claims for damages.
The warranty period for all deliveries and services is 12 months and begins with the handover of the deliveries and services to the customer, unless otherwise agreed.
There are no further warranty obligations. In particular, there is no guarantee that the deliveries and services meet the special requirements of the customer. The customer bears sole responsibility for the selection, installation and use of the deliveries and services as well as for the results intended thereby. The warranty does not extend to defects caused by deviations from the conditions of use intended for the deliveries and services and/or specified in the respective documentation. Furthermore, there is no warranty for modified or edited versions of a software component, unless it can be proven that existing errors are in no way connected with the modifications or edits. If FMP distributes software components that have been manufactured by third parties, their liability for material defects is replaced by FMP assigning all warranty claims against the manufacturer to the customer. Only if the customer cannot enforce the rights assigned to him against the manufacturer, his rights against FMP will be revived.
11. Data protection and confidentiality
The customer agrees to the collection, storage, use, transfer and, if necessary, modification of his personal data, as far as this is necessary for the execution of the contract with FMP. In particular, FMP is entitled to pass on customer data to service partners, if the processing of the order requires it. The customer data will not be passed on for any other purposes. The customer can revoke his consent at any time, in whole or in part, with effect for the future. In this case, FMP undertakes to delete the personal data immediately as soon as the contractual relationship has been completely processed.
The parties shall use all documents, information and data they receive for the execution of the contract only for the execution of the contract. As long and as far as they have not become generally known, they are to be treated confidentially. This obligation remains in force even after the execution of the contract.
12. Final provisions
German law applies exclusively to contracts with FMP. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Exclusive place of jurisdiction for all disputes of the parties arising from or in connection with a business relationship is – as far as accessible by agreement – Stuttgart.
Changes or additions to the contractual agreements must be made in writing. This also applies to a waiver of the written form requirement itself. Should individual provisions of the contract be invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a replacement provision which comes as close as possible to the purpose intended by the invalid provision.
Amendments to these General Terms and Conditions will be offered to the customer by FMP in text form at least 4 weeks before the proposed date of effectiveness. The customer is deemed to have given his consent unless he has given written notice of his rejection before the proposed date of entry into force of the amendments. FMP will inform the customer of this approval effect in its offer.