§ 1 Validity of the General Terms
(1) The General Terms and Conditions of Business (GTCB) given below are
valid in respect of all current and future deliveries and services provided
to our customers in every section of each contract.
(2) Any deliveries, services and offers made by FORGIS are made on the
basis of these General Terms and Conditions. FORGIS does not recognise
any conflicting conditions of purchase or other conditions of any kind
made on the part of their customers. Any statements to the contrary on
the part of the customer in respect of the customer's conditions of business
and/or conditions of purchase are hereby contradicted.
(3) The particular services and deliveries to be performed shall be agreed
in self-contained contracts, of which these General Terms and Conditions
are hereby made the basis. These contracts shall be made in writing.
§ 2 Offers
(1) Any offers made by FORGIS shall always remain without obligation and
subject to confirmation.
Only following confirmation in writing from FORGIS shall any orders be
deemed to have been accepted.
(2) FORGIS hereby reserves the right to introduce deviations, both in
technology and in design, from the descriptions and specifications given
in catalogues, brochures and written documents, and also to introduce
alterations in the course of making technological improvements or in the
event of an alteration in the market situation. The customer shall not
be entitled to derive any rights against FORGIS as a result of any such
alterations or deviations.
§ 3 Conditions of payment
(1) All prices are valid as of the business seat of FORGIS.
(2) The legally-applicable value added tax at the time of the conclusion
of any given contract shall be added to all prices quoted. In the event
that ongoing services shall be required under a contract, the value added
tax rate applicable at the time at which each respective account shall
become due shall be the determining one.
(3) Subject to a term of three months and by providing written notification
to its customers, FORGIS shall be entitled to raise the charges for usage
payable at regular intervals. In the event of a rise in such charges of
more than ten percent, the customer shall be entitled to terminate the
contract in the proper manner and subject to the termination period. At
least twelve months must elapse between two such rises.
(4) Payment shall become due at each respective payment date and/or at
the time of delivery. Payments shall be made at the time when they become
due and without any deductions.
(5) FORGIS shall be entitled, even if this contradicts any other provisions
on the part of the customer, to set off payments by the customer initially
against the oldest debts on the part of said customer. In the event that
costs or interest shall have arisen, FORGIS shall be entitled to set off
these payments initially against the costs, then against the interest
and lastly against the principal amount.
(6) The customer shall be entitled to charge up against any given claims
on the part of FORGIS only such counterclaims as shall be undisputed or
legally binding. The customer shall not, in relation to this contractual
relationship, be entitled to assert any rights of retention arising out
of any other contractual relationship with FORGIS.
(7) FORGIS shall be entitled to refuse the acceptance of bills of exchange
or cheques. Any acceptance of cheques or bills of exchange shall take
place only for payment. Any discount and bill of exchange charges shall
be borne by the customer and shall be due immediately. Bills of exchange
shall be accepted without any warranty being made in respect of the correct
presentation and protest.
(8) Any payments arising out of incomplete or incorrect statements on
the part of the customer, any costs in respect of special performance
or costs in respect of non-verifiable claims on account of defects or
inappropriate use of systems shall be borne by the customer. In the absence
of any explicit agreement to the contrary, data carriers and any other
accessories shall be charged for separately at their respective list prices.
(9) For the purposes of financing, FORGIS shall be entitled to assign
its rights arising from deliveries and services.
(10) In the case of commissions whose content shall be the development
of new software or an individual alteration in existing software, or any
engineering service that shall not fall within the field of software development,
the following method of payment shall, in the absence of any written agreement
on any other method, be deemed to have been agreed:
- 30% of the amount payable in respect of the commission shall become
due directly upon the signing of the contract;
- 40% of the amount payable in respect of the commission shall become
payable at the end of one half of the estimated duration of the project;
- The remainder payable in respect of the commission shall become payable
following the delivery of the closing report.
§ 4 Default in payment
(1) In the event that the customer shall fall into default in respect
of payment, FORGIS shall, without prejudice to any of its other rights,
be entitled to take back its hardware and software and to dispose of them
(2) As of the point in time at which the said default shall first arise,
FORGIS shall be entitled to demand interest to the amount of the rate
of interest charged by the commercial credit institutions in respect of
overdrafts, however, at least 4 % above the respective discount rate of
the Deutsche Bundesbank, plus the statutory value added tax applicable
at that time. Any interests shall become due immediately.
(3) In the event that the customer shall fall into default in respect
of a payment, or that there shall be concrete indications that the customer
may shortly become incapable of payment, FORGIS shall be entitled to discontinue
any further work on all commissions given it by the customer. FORGIS shall
further be entitled to demand the immediate payment in advance of all
amounts receivable, including bills of exchange and deferred amounts due,
or to demand the appropriate securities.
(4) In case acceptance is delayed the risk of accidental damage and deterioration
passes to the buyer.
§ 5 Retention of title
(1) Any performance arising out of this contract shall remain the property
of FORGIS until such time as all sums receivable under this contract and
out of the business relationship with the customer as a whole, including
those receivable in the future shall have been paid. The software delivered
shall, until payment shall have been made in full – and in the event
of payment by cheque or by bill of exchange, this shall mean until discharge
– remain our property. This retention of title shall also extend
to copies of programmes that shall be delivered on data carriers or transmitted
online, and shall equally be valid in respect of all accompanying materials.
In the event that only rights of usage shall have been granted in respect
of software, the aforegoing provision shall accordingly remain valid in
respect of the data carriers that shall have been delivered.
(2) The customer shall, over the regular course of business dealings,
be entitled to alter or process the goods to which this retention of title
applies, or to adapt them to suit his/her needs in various other ways.
This right shall, however, apply only if the customer shall not have fallen
into default and if the terms of the licence from FORGIS shall not be
opposed to this. The goods to which this retention of title applies may
not be pledged or assigned as a security. As a security against this,
the customer hereby assigns to FORGIS, in advance and in their entirety,
any and all receivables that may arise out of the selling-on of the goods
to which this retention of title applies or out of any other cause in
law (insurance, unauthorised activities) in respect of said goods.
(3) In the event that any third party or parties shall gain access to
the goods to which this retention of title applies, in particular by virtue
of distraint, the customer shall draw the attention of such third parties
to the title retained by FORGIS, and shall thereupon inform FORGIS without
delay. Legal, extra-legal or other expenses arising out of such an access
shall be borne by the customer. The customer hereby assumes responsibility
in full for any possible loss or damages.
(4) In the event that the customer shall behave in a manner contrary to
the contract, or shall fall into default with his/her payments, FORGIS
shall be entitled to take back, at the customer's own expense, the goods
to which this retention of title applies, or, as the case may be, to demand
the relinquishment of the claim for return from the customer in respect
of the third parties. This withdrawal or distraint by FORGIS of the goods
to which this right of retention applies shall not, subject to any legal
provisions that may determine otherwise, amount to any withdrawal from
(5) In the event that the goods delivered shall be processed or remodelled
by the customer, this shall be done on behalf of FORGIS as manufacturer.
However, this shall not give rise to any obligations on the part of FORGIS.
In the event that the title or joint ownership of FORGIS in respect of
said goods shall become extinguished by means of this interlinkage, the
signing of the contract shall be deemed to provide in advance that the
customer's title or joint ownership in the entire item(s) shall be proportionately
(in terms of invoice value) transferred to FORGIS. The customer shall,
free of charge, preserve the title or joint ownership of FORGIS against
such an event.
(6) Any hardware and/or software that shall have been delivered for the
purposes of testing and demonstration shall remain the property of FORGIS.
The customer shall only be entitled to make use of such items within the
framework of a special agreement with FORGIS, and such an agreement may
be limited in duration. Following the expiration of the temporary right
of usage, all parts of such hardware and/or software shall be returned
to FORGIS without the need for further demand and at the customer's own
(7) In the event that copies shall have been prepared of the software
made available to the customer, such copies shall be destroyed following
the expiration of the right of usage. This provision shall also apply
in the event that a limited right of usage (leasing, rental) shall have
been granted under the contract.
§ 6 Deliveries
(1) With the handing-over to the customer of the hardware and software,
inclusive of all accompanying materials, both delivery and the passing
of the risk shall be deemed to have taken place. In the event of that
the hardware and software shall be shipped, the risk shall be deemed to
have been passed to the customer at such time as the shipment shall have
been transferred to the carrier. In the event that, without any culpability
on the part of FORGIS, such shipping shall be delayed or shall become
impossible, then the risk shall be transferred to the customer at such
time as the communication of readiness to dispatch the goods shall be
sent to the customer. Insurance of the hardware or software against damage
suffered in transit shall only be taken out at the express wish of the
customer and at the customer's own expense.
(2) Any deadlines and time periods named by FORGIS for deliveries shall
be without obligations, always provided that no express agreement shall
have been made to the contrary. The delivery deadlines shall only be valid
to the extent that FORGIS itself shall receive the correct supplies in
a timely manner. Deadlines and time periods shall begin on the day on
which the commission shall be confirmed by FORGIS and shall, subject to
all the rights of FORGIS, be extended by any period during which the customer
shall be in default in respect of payment. Within the framework of the
contractual relationship, partial deliveries shall be permissible, always
provided that the acceptance of such deliveries shall not give rise to
disproportionate expenses on the part of the customer.
(3) Concerning the time period for engineering services, the written declarations
made by both parties in this respect shall be authoritative. In the even
that a contract shall have been concluded without the presence of such
declarations, authority in respect of this shall rest either with the
written confirmation of the commission by the party providing the services
or, in the event that such a document shall not have been created, with
the written commission of the customer.
(4) The customer shall be under an obligation to take receipt of the hardware
and software on the due date.
(5) In the event that the customer shall not have fulfilled his/her obligations
to co-operate under § 9 herein, the time periods for the performance
of services and for deliveries shall be extended accordingly. In the even
that the customer shall, despite the appointment of a date and the threat
of termination, continue not to fulfil his/her obligations to co-operate,
FORGIS shall then be entitled to terminate the contract. FORGIS shall
then be released from its contractual obligations in respect of deliveries
and services. Further to the above, FORGIS shall also have the right to
invoice the customer for all expenses that shall have been incurred up
to the point of said termination.
(6) Even in respect of time periods and deadlines that shall have been
agreed as binding, delays in respect of deliveries and/or services by
reason of force majeure, or by reason of occurrences that render delivery
by FORGIS significantly more difficult or indeed impossible, shall not
be deemed to be the responsibility of FORGIS. Such occurrences shall include
industrial disputes, disruption of operations, requirements issued by
official bodies or difficulties in the procurement of the necessary materials,
even if they shall take place on the part of delivery companies or between
companies supplying FORGIS. FORGIS shall in such an event be entitled
to postpone the performance of the service and/or the delivery for a time
equal to the duration of the hindrance, plus an appropriate time period
for resuming work. Further to the above, FORGIS shall, by virtue of the
portion of the service that shall not have been performed, be entitled
to withdraw from the contract.
(7) Only when the customer has written to FORGIS demanding performance
of the service in question, giving an additional grace period of four
weeks, shall FORGIS be deemed to have fallen into default. In the event
of such a default, the customer shall be entitled to assert a claim for
compensation in respect of default to the amount of 0.5 % of the value
of the commission per full week of the default. In total, however, this
compensation in respect of default shall not amount to more than 5 % of
the value of the commission. Any further claims, and in particular any
claims for damages, are hereby excluded, always provided that the default
shall not be the result of gross negligence or worse on the part of FORGIS.
(8) Any subsequent desire on the part of the customer to have the contract
altered or supplemented shall have the result of extending the delivery
§ 7 Guarantee
(1) The current state of technology does not make it possible to exclude
entirely the possibility of errors within EDP programmes. The hardware
and software delivered is free of manufacturing deficiencies and other
errors impairing its usage.
(2) The contractual guarantee shall be limited to six months from the
point of delivery and/or the point of receipt, whichever shall have been
agreed. Any claims against FORGIS in respect of guarantees shall be the
entitlement of the direct customer only and shall not be transferable.
(3) In the event that FORGIS shall pass on to the customer the standard
software of third parties, the corresponding guarantee bond shall become
part of the present agreement. The customer shall therefore also be entitled
to assert against third parties any claims arising out of these guarantee
bonds. Any guarantee or liability extending beyond the content of the
guarantee bonds provided by such third parties is hereby excluded.
(4) As soon as deficiencies in either the hardware or the software shall
become apparent, the customer shall inform FORGIS without delay, together
with a short description of the nature of the deficiency. The customer
shall be under an obligation to examine the hardware and software delivered
to him/her with a view to ascertaining any self-evident deficiencies.
Any self-evident deficiencies and/or significant and easily-visible damage
shall, within a week of delivery, be reported in writing and complained
of as deficiencies. The nature of such deficiencies shall be reported
in writing and as precisely as possible.
(5) Such deficiencies shall be remedied by FORGIS within a reasonable
period of time by means of the delivery and installation of new hardware
components and/or of a new version of the relevant programme. It shall
be a precondition of the above that the deficiencies shall have been reported
and shall be reproducible. In the event that it shall not be possible
to ascertain upon examination any deficiencies reported, the customer
shall bear the costs of said examination. Equally, in the event that the
deficiencies that shall have become apparent shall have been caused by
incorrect usage or by interferences that shall not be the responsibility
of FORGIS, here too the costs of the examination shall be borne by the
(6) In the event that the hardware or the software shall be augmented
or altered by the customer or by third parties, the guarantee shall thereby
be extinguished. However, in the event that the customer shall be able
to demonstrate that the respective alteration or augmentation was not
the cause of the deficiency, either in whole or in part, the guarantee
shall remain in force.
(7) Any liability on the part of FORGIS in respect of normal depreciation
is hereby excluded. Any errors or malfunctions that shall have been caused
by improper usage, abnormal operating conditions or the use of unsuitable
operating facilities shall exclude any claims in respect of the guarantee.
(8) The customer shall be entitled to cancel the contract in the event
that repeated attempts on the part of FORGIS to remedy deficiencies shall
have met with no success and unacceptable disadvantages would be caused
to the customer by accepting further versions of the programme(s) or further
hardware components. Before the reimbursement of the purchase price, payment
shall be made to FORGIS in respect of any usages that shall have been
made prior to the cancellation of the contract, and in respect of such
payments FORGIS shall have a right of retention.
(9) The commercial duties on the part of the customer to examine and to
give notice of non-conformity shall remain unaffected by the aforegoing
§ 8 Liability
(1) FORGIS hereby accepts the liability for any intentional or gross negligence
and for default, impossibility of performance, for any initial incapacity
and for the existence of guaranteed characteristics with reference to
its central obligations in respect of the contract. This liability shall
be limited to foreseeable damages. It shall also apply to any vicarious
agents. Any more extensive liability is hereby excluded, and this shall
apply also to consequential damages and to losses of data.
(2) FORGIS shall only be liable in respect of a data reconstruction if
the relevant data shall have been safeguarded by the customer, fully and
in a sufficiently up-to-date – that is to say, on a daily basis.
Such a reconstruction must be possible by means of a justifiable expenditure.
§ 9 Obligations of the customer
(1) The customer hereby undertakes to treat with confidentiality all information
in respect of the hardware and the software, in addition to all the correspondence
prior to the contract, all the contractual correspondence over the entire
duration of the period of usefulness, and also following the termination
of said period. Such information shall not be made accessible to any third
party. All employees of the customer shall be placed under a corresponding
(2) The customer hereby undertakes to make available in a timely manner
all documentation, necessary authorisations, clearances, timely clarification
and authorisation of plans, and the adherence to payment conditions and
other obligations, that shall be necessary for the timely performance
by FORGIS of its deliveries and services. In the even that these preconditions
shall not have been fulfilled, the time period shall be extended accordingly.
(3) The hardware and the software shall be protected against any unauthorised
access or access on the part of third parties. This obligation shall apply
to the purchaser and any other contractual partner of the customer, and
shall extend to cover the entire company.
(4) Target concepts, organisational concepts, suggestions or software
shall be formally accepted by the customer without delay following their
delivery or creation. In the event that the customer shall make use of
the hardware and software delivered to him/her, or that four weeks shall
have elapsed following the delivery of the hardware and/or software without
any notification having been given of any deficiencies, said acceptance
shall be deemed to have taken place.
(5) FORGIS shall at any time during the normal hours of business be entitled
to demand access to the software entrusted to the customer in order to
prepare a copy of the programme. The client shall be under an obligation,
insofar as no contractual provision to the contrary shall have been agreed,
to create the system specifications that make up the basis of a programme
development. By means of signing these specifications, the customer shall
confirm that the entries in respect of quantities and times and any and
all further information contained within the specifications are complete
(6) The customer hereby accepts liability for any infringement of these
contractual conditions. This liability shall also extend to cover the
unauthorised usage of any programme copies created in breach of the contract,
the repeated use of such copies or the delivery of such copies to third
§ 10 Enticement of employees,
(1) Both during and following the performance of the contract, both parties
to the contract hereby undertake in respect of each other that each will
not entice away any current or former employees of the other, either through
their own actions or through third parties. FORGIS reserves the right
to assert claims for damages in the event of infringements of this provision.
(2) The customer hereby undertakes, in the event of a resale of the purchased
hardware and/or software, to notify FORGIS in writing of the name and
the full address of the purchaser of said hardware and/or software.
§ 11 Data protection
In the event that during the course of the activities of FORGIS, personal
data shall be processed, FORGIS shall observe the applicable data protection
laws. In addition to the above, the necessary security measures shall
be undertaken or agreed with the customer in order to guarantee the necessary
§ 12 Trademark rights of FORGIS
(1) Any existing distinguishing marks, notations of trademark rights or
other indications of property supplied by FORGIS within the hardware and/or
software shall not be removed by the customer and shall also be incorporated
into any copies of the programmes that shall be prepared.
(2) FORGIS is and shall remain the proprietor of all rights in any of
its software that shall have been delivered to the customer. This provision
shall also apply in respect of any portions of the software or to any
software that shall be derived from this software, either in whole or
in part, including any accompanying materials. Even if the customer shall
alter the software within the parameters permissible within the contract
and combine it with the customer's own software or with the software of
a third party, FORGIS shall remain the proprietor of all rights. A corresponding
provision shall apply in respect of the purchased hardware.
(3) In the event that infringements of trademark rights shall be asserted
by third parties in respect of any programmes of FORGIS, FORGIS shall
be entitled to carry out, at the premises of the customer but at its own
expense, the necessary alterations to the software, and the customer shall
not be entitled to derive any further contractual rights from this. The
customer hereby undertakes to notify FORGIS in writing and without delay
in the event of any third party asserting any breach of any commercial
trademark right or copyright.
(4) The hardware and software shall only be deployed for the customer's
own purposes, always assuming that no provision stating otherwise shall
have been agreed in the contract. The deployment of a programme on multiple
computers shall require special authorisation within the contract.
(5) The customer shall only be entitled to create copies of programmes
and of portions of programmes for backup purposes. Copies of accompanying
materials shall only be created with the prior written agreement of FORGIS.
(6) The customer hereby indemnifies FORGIS against any and all losses
that shall arise out of any infringement of the aforementioned obligations
on the part of the customer.
§ 13 Transfer of rights
(1) The customer shall only be entitled to transfer to any third parties
any rights arising out of the contract with the prior agreement of FORGIS.
(2) FORGIS shall be entitled to transfer to third parties the obligations
incumbent upon it and the rights accruing to it under the contract. It
shall also be entitled to cause any and all of its obligations to be carried
out by third parties within the framework of the contractual relationship.
The customer shall then accept the services performed as being services
performed by FORGIS.
(3) A replacement of the contractual partner on the part of FORGIS shall
be permissible. In the event that the contractual obligations shall be
taken over by a third party, the customer shall have an extraordinary
right of termination. However, this right of termination shall then be
exercised by the customer within four weeks of his/her becoming aware
of the change of the contractual partner. Following the expiration of
this period of time, the contractual relationship shall then continue
with the third party.
§ 14 Duration of the contract,
(1) The customer shall only be entitled to give notice of termination
or of a withdrawal from the contract in the event that the contractually-agreed
period for performance of an obligation on the part of FORGIS to deliver
and/or to perform a service, having already been extended, shall have
been exceeded. Furthermore, in order for the termination or withdrawal
to occur, an appropriate period of grace must have been set by the customer
and have elapsed without a successful result.
(2) In the event that no termination period shall have been expressly
agreed within the contract, a period for termination of at least three
months prior to the end of a quarter shall apply.
§ 15 Place for performance, court
(1) The place for the performance of all services agreed under the contract
shall be Saarbrücken, Germany.
(2) In respect of commercial customers (in the sense of the HGB (Handelsgesetzbuch
= German Commercial Code)), the court of Saarbrücken shall be deemed
to be agreed as the court of jurisdiction.
§ 16 Applicable law
(1) The export of goods produced by FORGIS into non-EU countries shall
require the written consent of FORGIS.
(2) The law governing all the affected contractual agreements shall apply,
and supplementing this, the law under the BGB (Bürgerliches Gesetzbuch
= German Civil Code). The provisions of the uniform international law
on sale of goods are hereby waived insofar as such a waiver is permissible.
In other respects, the legal relationship between the customer and FORGIS
shall be governed by the law of the Federal Republic of Germany.
§ 17 General Contractual Provisions
(1) Supplementary oral agreements shall not be made by the contracting
parties. Subsequent addenda or alterations to the agreements already concluded
shall require the written form. Any oral agreement to waive the requirement
for the written from is hereby excluded.
(2) In the event that one or several provisions of these Terms and Conditions,
and/or of any further Terms and Conditions and/or agreements basing themselves
upon these Terms and Conditions, shall be or shall become invalid, or
in the event that a loophole should become apparent in these Terms and
Conditions, the validity of the remaining provisions shall not be affected
by this; and in the place of the invalid provision or in order to fill
in the loophole, an appropriate and permissible provision shall be substituted
that shall have been desired by the parties concluding the contract or
that shall reflect what would have been desired by the parties in terms
of the actual purpose of these provisions, had the parties taken into
consideration the invalidity or loophole.