General Terms & Conditions
1. Scope. These general terms and conditions (“General Terms and Conditions of Business”) shall apply exclusively to all legal relationships between FORCAM and the client (“Client”) which involve (i) the transfer and/or the customization of software and/or hardware, (ii) consulting services, or (iii) care and maintenance services by FORCAM (“FORCAM Deliverables”) even if the parties do not make any express reference thereto upon entering into an individual agreement.
1.1. These General Terms and Conditions of Business as currently amended shall also apply to any future agreements between FORCAM and the Client without FORCAM having to make reference thereto in each and every individual agreement. FORCAM shall inform the Client of any amendments to the General Terms and Conditions of Business.
1.2. Any contrary, supplemental, and/or divergent terms and conditions of the Client shall not apply in relation to the FORCAM Deliverables, even if FORCAM does not expressly object to the applicability thereof in the individual case, independently of any knowledge by FORCAM of contrary terms and conditions or of the performance of FORCAM Deliverables without reservation by FORCAM. FORCAM expressly objects to any form–based reference to the Client’s own terms and conditions of business.
2. Definitions. For the performance of FORCAM Deliverables, the following definitions shall apply:
2.1. “Workstation” means so-called business objects for which data are recorded, processed, and stored. Any object set up shall be a Workstation requiring a license. Whether the Workstation is recorded purely manually or (half) automatically shall not be relevant for this purpose. For assembly lines, this shall mean that also for subordinate aggregate objects as Workstations, a duty to pay license fees shall
exist, in case a separate operating state, a separate work process, or a product mix is recorded.
2.2. “Workdays” means the weekdays of Monday to Friday (8:00 a.m. to 5:00 p.m. Central European Time) apart from the statutory holidays in the German Federal State of Baden-Wuerttemberg and 24 and 31 December.
2.3. “Software” shall designate the FORCAM Software (as defined below) and Third-Party Software (as defined below) which shall constitute the purpose of each respective individual agreement.
2.4. “Change Request” shall be an amendment to the scope, type, or duration of the FORCAM Deliverables.
2.5. “Third-Party Software” means (i) any and all standardized software products and the documentation appurtenant thereto as well as content which were developed for or by companies other than FORCAM and are not FORCAM Software; (ii) any and all new versions (including, but not limited to, releases, updates, patches, and corrections) of this Third-Party Software and (iii) any and all complete or partial copies thereof.
2.6. “IP Rights” means all patents and other rights without reservation to inventions, copyrights, trademarks, registered design and other intellectual property rights, and all rights of use and exploitation being connected therewith.
2.7. “Works” or “Craft” means a logical works.
2.8. “Modification” means every adaptation and/or customization of FORCAM Software which the Client or a third party commissions.
2.9. “FORCAM ASP” means the provision of Software specified in the Individual Agreement for FORCAM-ASP by way of the application service providing (ASP).
2.10. “FORCAM Software” means any and all (i) standardized software products and the documentation appurtenant thereto, which were developed for or by FORCAM or by their affiliates; (ii) new versions (including, but not limited to, releases, updates, patches, and corrections) of this FORCAM Software, and (iii) complete or partial copies thereof.
2.11. “FORCAM Hardware” means the hardware specified in the Individual Agreement for FORCAM Hardware.
2.12. “FORCAM Services” means the services specified in the Individual Agreement for FORCAM Services.
2.13. “FORCAM Maintenance” means the maintenance services specified in the Individual Agreement for FORCAM Maintenance.
2.14. “Documents” shall consist of all analyses, conceptions, outlines, drafts, models, reports, plans, drawings, lists, calculations, data and other work product produced by FORCAM, independently of whether they are deemed confidential information or are protected by intellectual property rights.
2.15. “FORCAM ADV” means the written commissioned data processing agreement as contemplated under Sec.11 of the Federal Data Protection Act.
3. Individual agreement. The respective scope of performance of the FORCAM Deliverables shall be governed in an individual agreement. The individual agreements, together with these General Terms and Conditions of Business and all documents of the parties appurtenant thereto, shall form the agreement between the parties. In the event of contradictions between these General Terms and Conditions of
Business and an individual agreement, the provisions of the individual agreements shall take precedence. There shall be no claim for entering into an individual agreement.
4. Terms and conditions for affiliates. Companies having their seat in Germany and affiliated with the Client as contemplated under § 15 et seqq. of the Stock Corporation Act shall have the right, but shall not be obligated to, enter into individual agreements with FORCAM at the respectively applicable terms and conditions with the Client. If not expressly stipulated otherwise, then exclusively the Client or the respective affiliate shall be the party having the right thereto arising from an individual agreement.
5. Time of performance; place of performance. FORCAM shall render the FORCAM Deliverables at the seat or at the distribution center of FORCAM as of the stipulated date during Workdays. FORCAM shall be able to comply with delivery times only if the Client renders all of its assistive services in a timely and complete manner.
6. Terms and conditions of payment; default. FORCAM shall invoice the FORCAM Deliverables strictly net, directly upon the rendering of such services or upon transfer of the Software, but by no later than on a monthly basis. The amounts billed shall be payable immediately without any deduction.
6.1. The Client shall be in default of payment if it does not pay FORCAM the invoiced amount by no later than within fourteen (14) days of receipt of the invoice. No separate notice shall be required. In the event of default, FORCAM shall have the right to suspend rendering of the FORCAM Deliverables for the default period.
6.2. The Client shall have the right to set off only with such receivables which are acknowledged by FORCAM in writing or which have been recognized in a final legally binding way.
7. Change requests. The Client shall be able to order a change request. FORCAM shall review the change request for feasibility and shall submit an offer to the Client to carry out the change request. If the Client accepts the offer by sending back the countersigned offer, then the change request shall be binding.
8. Liability. FORCAM shall be liable pursuant to this clause exclusively. Any liability of FORCAM apart therefrom shall be excluded.
8.1. FORCAM shall have unlimited liability for any damages arising from injury to life, body, or health, which injury is based upon a breach General Terms and Conditions of Business of FORCAM GmbH, An der Bleicherei 15, D-88214 Ravensburg, Germany, (“FORCAM”) dated March 2016 of duty by FORCAM, or by a legal representative of or by a vicarious agent of FORCAM, and (ii) for damages which were induced due to the lack of a guaranteed quality of a particular nature or in the case of any malicious conduct by FORCAM.
8.2. FORCAM shall have unlimited liability for any damages which were caused maliciously or due to gross negligence by FORCAM or by its legal representatives or vicarious agents.
8.3. In the event of a breach of material contractual obligations caused by slight negligence, FORCAM’s liability shall be limited—except in the cases covered under clauses 8.1., 8.2, or 8.4—to the extent of contractually typical foreseeable damages. ‘Material contractual duties’ shall be such abstract duties (i) the fulfillment of which makes the proper execution of the Agreement possible in the first place and (ii)
upon whose compliance the contracting parties may rely in due course.
8.4. Liability under the Product Liability Act shall not be affected.
8.5. The limitation period for compensatory damages claims against FORCAM shall be one (1) year except in the cases covered under clauses 8.1, 8.2, or 8.4.
8.6. In the event of data loss, FORCAM’s liability shall be limited to the extent of the damages which is necessary for recovery for cases in which the data are properly secured by the Client.
9. Service level. The service levels shall determine the respective response times in accordance with the error categories.
9.1. ‘Response time’ means the time between (i) receipt of an error message in the ticketing system of FORCAM with all details requisite for the reproduction of the fault provided by the Client and (ii) the confirmation of the receipt of the error message by an employee of FORCAM. If any required details are missing, then billing of the response time shall commence upon receipt of the requisite missing
9.2. The response time shall apply only during Workdays, and in the event it extends past the Workday, it shall continue on the following Workday. For faults in error category 1, a response time of sixty (60) minutes shall apply. For faults in error category 2, a response time of five (5) hours shall apply. For faults in error category 3, a response time of twenty-four (24) hours shall apply.
10. Error Categories. The following error categories shall apply to determine the respective response times, whereby for the respective response time within the framework of the respective individual agreement, only those errors which are the purpose of the individual agreement (Software or hardware) shall be dispositive. FORCAM shall make the assignment to an error category.
10.1. Error category 1 (urgent; the flow of operations is interrupted): the affected system is not usable due to a fault in the Software or in the hardware.
10.2. Error category 2 (high; the flow of operations is deleteriously affected): the functioning of the affected system is deleteriously affected due to a fault in the Software or in the hardware or there are malfunctions in the Software or in the hardware.
10.3. Error category 3 (low; the flow of operations is not deleteriously affected; all other calls): it is possible to work with the affected system, even if not consistently within the stipulated parameters, due to a fault in the Software or in the hardware. Any malfunctions in the Software or hardware can be circumvented.
11. Support. Insofar as FORCAM provides support services as a part of an individual agreement, during Workdays the Client shall be able to contact FORCAM by telephone, e-mail, and other means of longdistance communications and to obtain the stipulated support services.
12. Travel expenses and out-of-pocket expenses. If a FORCAM employee is required to travel to a place other than to the seat of FORCAM as part of rendering the FORCAM Deliverables, then said travel expenses and out-of-pocket expenses shall be reimbursed by the Client in accordance with the Individual Agreement for FORCAM Services.
13. Assistance. The Client shall support FORCAM in rendering the FORCAM Deliverables by means of appropriately qualified staff, including, but not limited to, compliance with necessary operational safety regulations of the Client.
13.1. The Client shall ensure FORCAM, to the extent necessary, access to the IT systems and facilities of the Client, including remote access as specified by FORCAM. The Client shall also ensure that all remaining assistive services of the Client necessary to render the stipulated FORCAM Deliverables are rendered in a timely and complete manner and without any expense to FORCAM. If the Client does not perform these assistive services, then any increases in expenses or postponements resulting therefrom shall be at the expense of and chargeable to the Client.
13.2. The Client shall be obligated to regularly—however, at least daily—to perform data backups in accordance with manufacturer guidelines of the respective Software or in accordance with recognized principles of data processing, in any event prior to the commencement of work by FORCAM on the Client’s IT system. Moreover, the Client shall be obligated to ensure that the IT security of its IT systems meet the state of the art.
13.3. The Client shall appoint a contact person for FORCAM for all concerns in connection with the FORCAM Deliverables. If the contact person should change, then the Client shall have to send FORCAM the name and the contact information of the new contact person without undue delay.
13.4. If the FORCAM Deliverables pertain to a certain hardware or Software configuration, then the Client shall be obligated to inform FORCAM in a timely manner of every change to the configuration, so that FORCAM shall be in a position to render the FORCAM Deliverables.
13.5. If training sessions are stipulated as a FORCAM Service, then the Client shall provide appropriate premises and technical equipment after arranging such with FORCAM. In the event of a training session held at another location, the Client shall rent the premises and shall provide the requisite hardware and Software on site. The Client shall consult with FORCAM to see to it that appropriate training systems are
14. Documents. FORCAM shall hold the exclusive rights and title to the Documents. The Client shall receive a right of use in the Documents only when such is expressly granted in writing. The Client shall be obligated to hand the Documents unsolicited to FORCAM after use, by no later than upon end of the Agreement. The Client shall not have any security right of the lessor or any other right of retention in this regard.
15. Third-party intellectual property (IP) rights The Client shall indemnify FORCAM from all claims of third parties due to any infringement of IP Rights not transferred by FORCAM to the Client as part of FORCAM Deliverables. In the event of such an infringement of intellectual property rights, FORCAM shall be released from the duty to perform services.
16. Confidential Information. The parties have entered into a separate non-disclosure agreement, which is a component of the Agreement.
17. Data protection. Insofar as and to the extent that FORCAM processes the Client’s personal data or obtains access to the Client’s personal data within the course of rendering the FORCAM Services, General Terms and Conditions of Business of FORCAM GmbH, An der Bleicherei 15, D-88214 Ravensburg, Germany, (“FORCAM”) dated March 2016 the FORCAM ADV shall apply, which shall become a component of the Agreement.
18. Term of this Agreement, termination. The period of this Agreement shall be determined in accordance with the individual agreement and with the special terms and conditions.
19. Amendment. FORCAM shall reserve the right to effect amendments to or restatements of these General Terms and Conditions of Business, the individual agreements as well as to other agreements and processes concerning the FORCAM Deliverables, to the extent (i) that such appears necessary to FORCAM and (ii) that the Client is not placed at a disadvantage against good faith. FORCAM shall make any such amendments or restatements known to the Client by means of a notification using the text-form, and such shall be deemed as approved if the Client does not file a written objection thereto within one (1) month of said notice being made.
20. Final provisions. Any amendments to and restatements of the Agreement governing the FORCAM Deliverables shall be effective only in the written-form and are to be signed by both sides. No verbal side agreements shall be entered into.
20.1. FORCAM shall have the right to employ qualified external employees and sub-contractors in order to render the services.
20.2. The Client shall not be entitled to any retention rights insofar as such originate from counterclaims arising from other transactions with FORCAM. The Client shall be able to offset only with such receivables that are undisputed or have been recognized in a final legally binding way.
20.3. The Client shall be allowed to assign or to transfer receivables, rights, or duties arising from the Agreement with FORCAM only after prior written consent of FORCAM.
20.4. All legal disputes between the parties shall be conclusively decided, to the exclusion of ordinary legal recourse, by the Chamber of Commerce of Lake Constance-Upper Swabia (Industrie- und Handelskammer Bodensee – Oberschwaben), in accordance with its arbitration rules.
20.5. For all legal relationships between the parties, including all legal disputes between the contracting parties occurring in connection with the arising and handling of such relationships, the law of the Federal Republic of Germany shall apply exclusively, even to the exclusion of any conflicts-of-law provisions and the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention
or CISG) dated 11 April 1980.
20.6. The specific jurisdiction shall be at Ravensburg, Germany. § 40 para. 2 of the Code of Civil Procedure shall not be affected thereby.
20.7. Should individual provisions of the General Terms and Conditions of Business or of an individual agreement (i) be legally ineffective or (ii) lose their legal effectiveness due to circumstances subsequently arising, or should a loophole evince itself in the General Terms and Conditions of Business or in an individual agreement, then the legal effectiveness of the remaining provisions shall not be affected thereby. The contracting parties shall be obligated to stipulate in lieu of the ineffective provision to an effective provision which approximates as closely as possible the economic purpose of the ineffective provision.
21. Special terms and conditions for the Software.
The terms and conditions regarding the transfer of the FORCAM Software shall be conclusively governed in the individual FORCAM Software agreement.
22. Special terms and conditions for the FORCAM Maintenance.
FORCAM shall render FORCAM Maintenance in accordance with the Individual Agreement for FORCAM Maintenance.
22.1. A precondition for FORCAM Maintenance shall be the maintenance of the IT systems (hardware and Software) of the Client on which the Software is used by qualified personnel trained by FORCAM. The IT systems shall have to meet the respective requirements communicated by FORCAM.
22.2. The FORCAM Maintenance shall be confined to sufficiently licensed Software. The Software to be maintained shall have to satisfy the system and environmental prerequisites contained in the corresponding product specifications.
22.3. The FORCAM Maintenance shall encompass exclusively the maintenance services in accordance with the Individual Agreement for FORCAM Maintenance.
22.4. The optional maintenance services shall have to be compensated for separately in accordance with the silver, gold, or platinum support levels of the Individual Agreement for FORCAM Maintenance.
22.5. FORCAM shall not be obligated to render FORCAM Maintenance services which are triggered by causes not included by the FORCAM Maintenance. FORCAM shall be authorized to bill this service requirement separately.
22.6. FORCAM shall grant the customer in the Software transferred in the course of the FORCAM Maintenance exclusively the rights which the Client has obtained as part of the Individual Agreement for FORCAM Software.
22.7. The parties shall enter into a separate agreement for any Third Party Software.
22.8. The FORCAM Maintenance shall be entered into for an indefinite period and shall be billed for the first time upon the delivery of the Software to the customer. The parties shall be able to terminate the FORCAM care and maintenance at any time with a notice period of three (3) months as of the year’s end. The right to terminate for cause shall not be affected thereby.
23. Special terms and conditions for the FORCAM Hardware. The Client shall acquire from FORCAM exclusively the FORCAM Hardware.
23.1. FORCAM shall supply FORCAM Hardware ex works together with documentation. The Client shall bear risk and the expense of the delivery.
23.2. FORCAM shall install the FORCAM Hardware upon request and shall prepare the hardware to ready it for operation.
23.3. Upon delivery of the FORCAM Hardware, the invoice for the purchase of the FORCAM Hardware shall be issued.
23.4. If the Client has acquired maintenance services of FORCAM together with the acquisition of the hardware, then in the event of a withdrawal from the purchase of the FORCAM Hardware, the Client shall also be able to withdraw from the Individual Agreement for FORCAM Maintenance.
23.5. In the event of any defects in FORCAM Hardware, FORCAM shall have the right to remedy the defect by—at its choice—subsequent improvement or replacement delivery. Any claims due to defects shall lapse within twelve (12) months commencing on the day of the transfer of the FORCAM Hardware to the Client. The statutory limitation periods shall apply: (i) in the event of malicious conduct, (ii) in the absence of a quality of a particular nature guaranteed by FORCAM, (iii) in cases of injury to life, body, or health for which FORCAM is culpable, and (iv) to any damages caused by FORCAM’s gross negligence.
24. Special terms and conditions for the FORCAM ASP. The terms and conditions concerning the rendering of services as part of FORCAM ASP shall be governed conclusively in the FORCAM ASP agreement.
General Terms and Conditions of Business of FORCAM GmbH, An der Bleicherei 15, D-88214 Ravensburg, Germany, (“FORCAM”) dated March 2016
25. Special terms and conditions for FORCAM Services.
25.1. FORCAM shall render FORCAM Services in accordance with the Individual Agreement for FORCAM Services.
25.2. FORCAM Services shall be retained in advance by the Client for at least thirty (30) days.
25.3. Payment shall be effected based upon the skill levels of the FORCAM employees in accordance with daily rates. Partial days shall be fully compensated.
25.4. Any FORCAM Services performed outside the Workdays shall have to be stipulated separately, and shall be compensated in accordance with the Individual Agreement for FORCAM Services.