General terms and conditions
General terms and conditions for customers of FTAPI Software GmbH, Steinerstr. 15f, 81369 Munich, HRB 189499, represented by its managing director Daniel Niesler. Last updated: 01.05.2020
1. Contractual relationship
1.1 All contracts are concluded exclusively with FTAPI Software GmbH (hereinafter the “provider”), which offers highly secure business data transfer and storage solutions.
1.2 These terms and conditions apply to all services provided to customers during the term of the contract, but in particular the provision of FTAPI OnDemand or OnPremise, hereinafter referred to as “FTAPI” (see Section II for more details about OnDemand and Section III about OnPremise). Leasing of OnPremise software is regulated under Section IV.
1.3 The provider’s services and these terms and conditions are aimed exclusively at legal entities, partnerships, and entrepreneurs, defined in §14 of the German Civil Code (BGB) as natural persons with unlimited legal capacity acting as part of their commercial or independent professional activity. We expressly reject contracts with consumers as defined in §13 BGB.
1.4 Unless otherwise regulated herein, customers are not granted any further rights to the provider’s services or brand. In particular, they are not entitled to the provider’s source code.
1.5 In the event of any contradictions, the following order of priority applies for the interpretation of the parties’ contractual relationship:
- Job orders based on offers
- These terms and conditions
- Price list
The parties are subject to direct performance obligations from these terms only in connection with a job order on the basis of an offer from the provider.
1.6 We hereby expressly object to any customer terms and conditions that contradict these terms. Their application is expressly and fully excluded, even if their applicability is referenced in the order or order acceptance. Any inclusion of customer terms and conditions that deviate from ours requires our express written consent. This applies both to conditions that deviate from these terms either in whole or in part.
Unless otherwise stipulated in Sections II, III or IV below, customers enter into a contract with the provider when they accept the provider’s binding offer in writing. If they fail to accept the offer, it shall nonetheless be deemed to have been accepted when they make use of the service(s) provided.
3. General provider obligations
3.1 The provider will provide the services defined in more detail in the offer, these terms and conditions, and the FTAPI service description.
3.2 The right to select the personnel commissioned with the execution of the services (including the contact person for the customer) and the right to issue instructions to them belongs exclusively to the provider.
3.3 Unless otherwise stated in the offer, the provider is free to choose the work equipment required to provide the contractual services.
3.4 The provider is entitled to provide the services only in part, provided that they can be used independently.
3.5 Dates and deadlines are only binding if the provider expressly confirms them in writing and customers have met all of their obligations to cooperate as agreed and in good time.
3.6 If the offer stipulates that FTAPI is being provided for test purposes, it may then only be used for demonstration, test, or evaluation purposes. In this situation, any productive use for business purposes and the use of real data are both prohibited.
Customers are particularly obliged to cooperate with the provider as follows:
4.1 Customers will grant the provider access to their premises to the extent necessary to provide the contractual services. In addition, they will provide those persons deployed to fulfil the provider’s contractual obligations and whose presence is required at the customer’s locations with the space and work equipment necessary to provide said services.
4.2 Customers will name a contact person authorised to take decisions such as may be necessary as said services are provided.
4.3 Customers will immediately provide the provider with all information required to provide the agreed services upon request. Information that customers recognise or ought to recognise as important for the provision of the services should be given to the provider even without request. This applies in particular to changes made by customers to their technical systems, insofar as these can affect the services to be provided.
4.4 If customers receives passwords from the provider to access the servers, etc., these must be kept secret and disclosed only to a limited group of people to the extent absolutely necessary. If they can, customers will change the standard passwords given by the provider immediately after they have been transmitted and at regular intervals thereafter. If customers become aware that the passwords are known or could be known to unauthorised third parties, they must notify the provider immediately.
4.5 Unless expressly agreed that the provider is to back up customer data, customers shall ensure that their data is backed up regularly and in line with their assessed risk, but at least once a week, so that the data can be reconstructed if lost. Regardless of any existing agreement for provider backups, customers are responsible for ensuring compliance with any archiving obligations, e.g. those set forth in the Commercial or Tax Codes.
4.6 Customers will immediately notify the provider of any circumstances that are likely to affect the operations of its computer centre or other facilities or those of other customers.
4.7 Insofar as customers ask the provider to save log files or create usage reports or to store or otherwise make such data available that would allow conclusions to be drawn about the usage and behaviour of their authorised users, they are responsible for ensuring that this does not violate employee rights, in particular their right to participate in collective bargaining efforts. Customers are expressly advised to review the provision in §87 para. 1 no. 6 of the Works Council Constitution Act (BetrVG).
4.8 Customers must immediately notify the provider in writing of any change to their legal form, address, telephone number, or bank details as well as any fundamental changes to their financial circumstances (e.g. application to open insolvency proceedings, insolvency). Customers shall reimburse the provider for any costs incurred due to their culpable delay in the transmission of such data.
4.9 Further obligations to cooperate can result from the service description.
4.10 Customers shall meet these duties free of charge to the provider.
4.11 These duties constitute their primary contractual obligations.
5. Provision of material
Insofar as it has been agreed that customers must provide infrastructure, hardware and/or software in order for the service to be provided, it must be provided on time, free of charge for the provider, and in the contractually agreed condition. Customers warrant that they are entitled to provide the same for purposes in line with the contract.
6. Third-party use
Customers are not permitted to share the contractual services with third parties without the prior written consent of the provider.
7.1 Customers are obliged to pay the fees for the services commissioned as specified in the offer and without deduction. The agreed fees do not include the applicable statutory value-added tax. Each invoice is to be paid without deduction. Any discounts require a special written agreement. Customers shall pay in advance. Failure to make payments in full entitles the provider to withdraw from the contract after issuing a warning and setting a deadline for remedy of the default. In the event that advance payments are not made in full, the provider is entitled to withhold performance until payment has been made. The provider is under no obligation to provide its services in advance.
7.2 One-time licensing fees for the provision of FTAPI OnPremise (see Section III) are due upon conclusion of the contract.
7.3 Recurring license fees are due upon conclusion of the contract and then in advance for the agreed term.
7.4 Other fees are charged when the agreed services are made available or, at the latest, when the agreed services are used for the first time; this also applies to services only provided or used in part.
7.5 All fees are without deduction of any source taxes or other tax withholding set by a foreign tax authority or other sovereign and/or are owed on the basis of legal provisions (hereinafter collectively “tax withholding”). If customers are subject to said taxes, this does not affect the amount owed the provider. The provider will support customers appropriately with a related refund of such source taxes, provided they cover any costs that may arise.
7.6 The fees for time and material agreed in the offer apply for the period between 8:00 am and 6:00 pm Monday to Friday with the exception of national public holidays (“regular business hours”); 50% of the travel times to and from customer locations are invoiced as labour hours. If customers request services outside regular business hours, the fees will be increased as follows:
- by 25% on business days between 6:00 pm and 11:00 pm and between 6:00 am and 8:00 am;
- by 50% on business days between 11:00 pm and 6:00 am and on Saturdays;
- by 75% on Sundays; and
- by 100% on public holidays.
Services billable on an hourly basis plus materials will be invoiced by the full hour.
7.7 Insofar as customers have agreed to direct debit, the fees will be debited using the SEPA direct debit procedure from the account they have specified no earlier than ten (10) days after the invoice has been sent by the provider. Customers are obliged to ensure that there are sufficient funds in the specified account.
7.8 Customers shall reimburse the provider any fees and processing costs resulting from the chargeback of a direct debit, but at least €20.00, if the chargeback is due to causes within their area of responsibility. The provider is free to provide evidence that the chargeback incurred higher costs and customers are free to provide evidence of lower costs.
7.9 If customers revoke their consent to the direct debit procedure, the provider will charge an appropriate processing fee.
8. Term and termination
8.1 These terms and conditions apply until all services commissioned by the customer have been completely terminated.
8.2 The contract is concluded when both parties sign the offer.
8.3 The minimum contract term for the provision of FTAPI OnDemand (see Section II) or a contract concluded within the framework of FTAPI OnPremise (see Section III, Clause 6 ff.) is stated in the offer. For all contracts that are not terminated with three (3) months’ notice prior to the end of the minimum contract term, the term is automatically extended by a further twelve (12) months. If a software maintenance contract or FTAPI OnDemand is not terminated with three (3) months’ notice prior to the end of each extension, the term will be automatically extended by an additional twelve months.
8.4 The aforementioned minimum contract periods begin once the contract is signed.
8.5. The right of the parties to exercise termination for cause remains unaffected.
8.6 For the provider, such cause for extraordinary termination applies after the customer fails to meet a reasonable deadline to remedy one of the following situations:
- the customer violates the provisions agreed in §12, or
- the customer is in default of payment for more than 14 days and, despite a corresponding request, has not provided adequate security within the period set by the provider, or
- if the provider has made use of such security previously provided by the customer and the customer has not adequately replenished it within the deadline set by the provider.
8.7 Cause for extraordinary termination without notice without need for a further deadline exists in particular if
- the customer is in arrears for two (2) consecutive months with payment of the respective invoice or a significant portion thereof or is in arrears over a period of more than two months with payment of fees equal to or higher than two (2) months’ average invoice amounts. The average invoice amount is based on the invoices issued to the customer in the six (6) months before the occurrence of the initial default or, if invoices have not yet been issued for a period of six (6) months, the average amount of the invoices issued before the initial default occurred. Instead of termination without notice, the provider can demand that the customer provide appropriate security in accordance with §19 or
- if the required security according to §19 is not provided by the customer or
- if the customer is insolvent or over-indebted or
- an insolvency proceeding against the assets of the customer is rejected or discontinued due to a lack of assets to cover the costs of such proceedings, or
- the customer has voluntarily or involuntarily initiated a procedure for its dissolution, liquidation, or shutdown of its business.
8.8 Notice of termination must be expressly made in writing within the meaning of §126 I BGB or an email with a digital signature. A simple email is not sufficient. A fax is only sufficient for meeting deadlines provided that a signed original is sent without delay.
8.9 If the contractual relationship is terminated prematurely by extraordinary termination and if this termination is based on customer behaviour contrary to the contract, the customer is obliged to pay 50% of the contractual remuneration that would have been paid until such time as an ordinary termination could have ended the contractual relationship. The total amount of the remuneration payable becomes due when the notice of termination takes effect. Both parties are free to prove that the provider has suffered more or less damage due to the premature termination.
8.10 Partial terminations, i.e. the termination of individual add-ons, are excluded. Customers have the option of terminating the entire contract and signing a new one at the current list price.
9. Service disruptions
9.1 The provider will eliminate errors in the services provided as well as disruptions, provided they are within its area of responsibility, in accordance with the provisions in Section II, §§3 and 4 (for FTAPI OnDemand) and Section III, §5 ff. (for FTAPI OnPremise).
9.2 Customers are obliged to notify the provider immediately of any recognisable errors or malfunctions and provide troubleshooting support to a reasonable extent.
9.3 Only the provider or third parties it has commissioned to do so may remedy errors or disruptions in the services provided to customers.
9.4 If the investigation of an error or disruption report shows that there was no such error or no disruption in the provider’s services, customers must reimburse the provider for the costs incurred for said investigation if it had been reasonable for them to recognise that the error or disruption was not caused by the provider.
9.5 The provider cannot undertake to ensure that the encryption procedures and any other security solutions provided (virus protection, firewalls, spam filters, etc.) will provide complete protection for customer data or infrastructure. The provider uses known or best practices or tools that are updated regularly. Nevertheless, the provider cannot rule out the possibility that, for example, a new attack method could reach customer data or networks and the connected components before the publisher or manufacturer of the practices or tools in question have issued an update that detects this method of attack. This is because there is naturally always a certain period of time between the occurrence of a new attack method and the reaction of the publisher or manufacturer. Therefore, the provider cannot commit to the absolute security of customer data or infrastructure.
9.6 The provider is not responsible for eliminating errors or disruptions
- in products it has not provided;
- if hotfixes, patches, updates, or releases are available for the error in question;
- if updates of user-specific adaptations, changes, and extensions become necessary after an update;
- if the errors are the result of unpermitted changes or adaptations;
- if caused by software other than that produced by the provider;
- if based on improper or unauthorised use or operating errors caused by a failure to follow the FTAPI manual or service description;
- if based on software products or systems from other manufacturers connected by customers to the services it has provided;
- caused by any hardware defects;
- when used in hardware and operating system environments other than those specified in the service description.
9.7 The provider is entitled to invoice services commissioned by customers in accordance with §9.6 of this section in accordance with the agreed fees for services based on time and material.
10. Special regulations for the provision of work services
If the parties agree on services that are subject to the law on contracts for work and services, the following provisions apply:
10.1 The provider is only responsible for achieving a certain level of success to the extent that
- the relevant criteria in terms of scope and effect were specifically and conclusively defined and agreed upon conclusion of the contract, and
- customers have met their duties of cooperation in a timely and proper manner unless these have no effect on the provision of services.
10.2 The provider is obliged to notify customers of a work product’s readiness for acceptance at least in text form. Unless otherwise agreed, customers will begin the acceptance process no later than five (5) working days after such notice and carry out said process together with the provider. The work is deemed to have been accepted if customers use the services as intended or if they fail to provide written notice of any error class 1 defects within four (4) weeks from the date on which they received notice of readiness for acceptance.
- Error class 1: Appropriate use is impossible or severely restricted, for example due to malfunctions, incorrect work results, or excessively long response times;
- Error class 2: Appropriate use is not impossible or severely restricted, for example due to malfunctions, incorrect work results, or excessively long response times, but the restriction of use is nevertheless not insignificant;
- Error class 3: Any errors that cannot be assigned to error classes 1 and 2
10.3 The final assignment of these errors to one of the above error classes is made by mutual agreement between the parties. §640 para. 1 clause 2 BGB remains unaffected.
10.4 Customers must notify the provider in writing of any defects. If the services were defective when the risk passed to the customer, the provider shall either remedy these defects or produce a new work (“supplementary performance”); creating a reasonable workaround of the defect represents sufficient supplementary performance. If the provider does not succeed in supplementary performance twice by an appropriate deadline set in writing, customers may assert their claims in accordance with the legal regulations, but the customer right to do make the remedy themselves under §637 BGB is excluded. Insignificant defects do not entitle customers to withdraw from the contract; this does not affect their right to demand a reduction in price.
11. Data transfer
In order to improve the services, the provider may collect and use technical information from customers and the hardware they use in connection with the provider’s services in a manner that does not allow any conclusions to be drawn about user identities. The provider is entitled to analyse this information in order to improve its services and/or to pass it on to third parties so that they can improve the interaction of their products and services with the provider’s services. Customers agree to grant the provider access to their data and systems for these purposes.
12. Conditions of use and prohibitions of abuse
12.1 Customers agree to use the contractual services only in the manner described in the offer and service description.
12.2 Customers are obliged to use the contractual services properly as intended and within the framework of applicable laws.
12.3 The services provided by the provider may contain technical measures that prevent or detect unlicensed use. Bypassing these technical measures is prohibited unless expressly permitted by mandatory legal provisions.
12.4 Customers may, to a limited extent, make changes to the web interface and the email templates of FTAPI in order to adapt their appearance to their existing corporate image. This includes adjustments to stylesheets (CSS), graphics, and templates. Changes that extend or limit the functions of FTAPI are not permitted. Changes may only be made to the files that are explicitly listed for this purpose in the FTAPI manual (http://docs.ftapi.com).
12.5 In particular, customers are prohibited from
- removing, changing, or covering up trademarks or other references to trade and intellectual property rights;
- providing or granting FTAPI licences to third parties;
- offering FTAPI for download, copying, sale, or rent.
If and to the extent that the provider does not provide any publicly accessible telecommunications services within the meaning of the Telecommunications Act (TKG) (see §14), its liability is limited as follows:
13.1 The provider is liable without restriction if it makes an express and written guarantee or accepts procurement risk; it is also liable without restriction for any material or financial damage as well as any injury to life, limb or health resulting from its intentional or grossly negligent actions.
13.2 The provider’s liability under product liability law remains unaffected.
13.3 In the event of a slightly negligent breach of duty, the provider is only liable for those essential contractual obligations, the fulfilment of which is necessary for the proper execution of the contract and the breach of which endangers the achievement of the purpose of the contract and upon which the customer regularly relies (so-called cardinal obligations, e.g. a culpable breach to deliver an agreed availability). However, the provider’s liability is limited to such damages that are typical of contracts such as these and that were foreseeable at the time the contract was signed.
13.4 The provider’s liability under §13.3, if any, is also limited to €15,000 per incident and €30,000 per contract year.
13.5 If the creation of data backups is not a service expressly assumed by the provider, it is only liable for the loss or damage of data and programs and their restoration insofar as this loss would not have been avoidable with appropriate precautionary measures, in particular daily backups.
13.6 Any liability for defects already present when the contract was signed (§536a BGB) is excluded. The provisions of §§13.1 to 13.4 remain unaffected.
13.7 Insofar as liability is effectively excluded or limited above, this shall also apply to the personal liability of the employees, other workers, bodies, representatives, and vicarious agents of the provider.
14. Liability according to the TKG
If and to the extent that the provider provides publicly available telecommunications services within the meaning of the Telecommunications Act TKG), the provider is liable, §13 notwithstanding, for financial losses arising from its negligent or grossly negligent breach of duty in the provision of such telecommunications services, but such liability is limited to a maximum of €12,500 per customer, whereby the liability regardless of the type of damage is limited to a maximum of €10 million vis-à-vis all injured parties in a given incident. If the amounts to be paid to several customers due to the same event and due to a breach of duty in the provision of publicly available telecommunications services within the meaning of the Telecommunications Act exceed the maximum limit, the compensation will be prorated to comply with the cap on all claims for compensation. This limitation of liability does not apply to claims for damages resulting from default in payment of damages.
15. Limitation period
Customer claims are forfeited if not asserted within twelve months after they became known and/or no later than 36 months after the time at which the service in question was provided or the breach of duty in question was committed. In addition, the statutory time limitation applies to damages resulting from wilful and grossly negligent acts and to claims resulting from wilful or negligent injury to life, limb, or health, fraudulent deception, or under the Product Liability Act.
16. Force majeure
16.1 Neither party is responsible for delays in delivery or disruptions in performance due to incidents caused by force majeure.
16.2 Such incidents include, in particular, strikes, lawful internal industrial action, war, terrorist attacks, riots, natural disasters, fire, sabotage attacks by third parties (such as denial of service attacks), or the loss of regulatory permits. Each party will notify the other in the event of such an incident.
17. Offsets, right of retention
17.1 Customers can only offset or withhold payments for defects if actually entitled to monetary claims due to material or legal defects in the service. For other claims for defects, customers may only withhold payments in proportion to the defect.
17.2 Customers have no right to retain payment if their claim for defects has expired. Customers may only offset claims or exercise rights of retention for undisputed or court-approved claims.
18.1 The provider is entitled to demand security from customers after the start of the contract if they are in default of payment for more than 14 days. If the security is not provided within a further 14 days after said request, the provider is entitled to extraordinary termination in accordance with §8.7.
18.2 Upon request by the provider, the security is to be made in cash without prejudice to other legal and contractual rights or through an absolute, unlimited, and irrevocable bank guarantee from a German bank payable to the provider in an amount equal to the total of the invoices for the four (4) months before the default, whereby the bank must waive the defences under §§768, 770 para. (1), and 771 BGB.
18.3 If the contract volume increases, the provider has the right to request a corresponding adjustment to the security provided.
18.4 The security will be returned after termination of the contract once there are no more claims against the customer. The provider is entitled to satisfy its claims from the security in the event the customer is in default of payment. In this case, the customer is obliged to restore the security to the original amount within a period of two (2) weeks.
19.1 Confidential information within the meaning of this agreement is all information related to this contract and its purpose made available to customers by the provider in oral, written, electronic, or other form before or during the term of this agreement. This also includes all documents, data carriers, and other media created by the other party.
In particular, confidential information includes, but is not limited to, the following:
- all business, financial, legal, technical, personal and other information and trade secrets, in particular the content of the offer, these terms and conditions, and the service description; and
- any provider documents and information that are the subject of technical and/or organisational secrecy protection measures and are designated as confidential or are to be regarded as confidential due to the type of information or the circumstances of the transmission.
- Confidential information within the meaning of this agreement includes its existence and content as well as all other information concerning the status and implementation of the planned acquisition, including the fact that negotiations about the same taking place and the status of said negotiations.
19.2 The parties will treat such information as strictly confidential, take appropriate protective measures, and use the information only for the purpose of executing the contract.
19.3 All confidential information will be kept secret by the other party, marked as secret, protected from third-party access, and not used for any purpose other than that specified in §20.2. Confidential information will only be passed on to employees of the other party or of affiliated companies as required to fulfil the purpose of this contract. Customer employees and those of affiliated companies are to be placed under corresponding obligations to maintain the confidentiality of such information. A transfer to third parties is only permitted with the consent of the disclosing party. In this case, the third parties shall be bound to maintain the same level of confidentiality as stipulated herein.
19.4 Information is not confidential if
- it was known to the public before disclosure or was generally accessible, or becomes so after disclosure without any breach of this agreement by the receiving party, or
- the receiving party receives from a third party not subject to an obligation of confidentiality, unless the receiving party is aware that said disclosure violates a confidentiality obligation, or
- it was known to the receiving party prior to receipt from the other party or
- it was developed independently by an employee of the receiving party who had no knowledge of the subsequently disclosed information. This provision continues to apply for a period of two (2) years after any termination of this contract.
20. Data protection
21.1 The provider has the right to change these terms and conditions, provided that this does not affect the essential provisions of the contractual relationship and such changes are necessary to adapt to developments that were not foreseeable when the contract was concluded and the non-consideration of which would noticeably disturb the balance of the contractual relationship. Essential regulations are in particular those concerning the type and scope of the contractually agreed services and the duration of this agreement, including regulations on its termination. Further adjustments and additions to these terms and conditions can be made, insofar as this is necessary to eliminate difficulties in the execution of the contract due to necessary provisions having inadvertently been omitted herein. This can be the case in particular if case law changes and one or more clauses of these terms and conditions are affected.
21.2 The provider has the right to change the FTAPI service description if this is necessary for a valid reason and if customers are not objectively placed in a worse position than the service description included at the time the contract was signed (e.g. changes designed to retain or improve functionalities) and that such changes do not constitute a significant deviation from the original service description. A valid reason exists if there are technical innovations on the market for the services owed or if third parties, from whom the provider obtains services necessary for the provision of its services, change their range of services.
21.3 The provider will send the revised general terms and conditions, service description, and price lists to customers by email. These will be deemed to have been accepted if customers fail to object to their validity within 14 days of receipt. The objection must be in text form (e.g. by email). Customers will be especially notified in the email about their option to object, the deadline to make such objections, and the consequences of inaction. In the event of an objection, the provider has the right to terminate this contract within a period of 2 weeks from receipt of the objection and with one month’s notice effective the end of a calendar month.
21.4 The provider has the right to increase the prices set forth in the price list once per calendar year by a maximum of 5% to compensate for demonstrably increased costs. This is the case, for example, if third parties from whom the provider obtains services necessary to provide its contractual service increase their prices. The provider will send the new price list to customers by email. These will be deemed to have been accepted if customers fail to object to their validity within 14 days of receipt. The objection must be in text form (e.g. by email). Customers will be especially notified in the email about their option to object, the deadline to make such objections, and the consequences of inaction. In the event of an objection, the provider has the right to terminate this contract within a period of 2 weeks from receipt of the objection and with one month’s notice effective the end of a calendar month.
21.5 Irrespective of section 22.4, the provider has the right to increase the prices regulated in the price list to compensate for increased costs without observing the deadlines and caps in §22.4. Customers will be informed in writing of this price increase at least six (6) weeks before it takes effect. Customers have a special right of termination at the time the changes take effect. If they do not terminate the contract within six weeks after receiving notification of the price change, the changes will become part of the contract at the time they come into effect. Customers will be specifically informed of this consequence in the notice.
22. Fair use, additional charge for excessive traffic
Customers acknowledge the principles of fair use with regard to the amount of data transfers they can initiate and agree to refrain from excessive use of the facilities and capacities of FTAPI. As a rule, excessive use has taken place if the system is used for illegal activities or if monthly data transfer volumes significantly exceed the average monthly data transfers of comparable offers. Specifically, this means that every customer who uses an OnDemand service (regardless of whether as a single user or with an FTAPI OnDemand server) receives 1,000 GB of free outgoing traffic and 5,000 GB of free ingoing traffic per month. If customers have more than 1,000 GB of outgoing traffic and 5,000 GB of ingoing traffic in a month, there will be no automatic throttling, but €50 will be charged separately for each additional 1,000 GB or part thereof.
23. Final provisions
23.1 This contract is subject to the law of the Federal Republic of Germany to the exclusion of IPR and the United Nations Convention on the International Sale of Goods (CISG). In dealings with consumers, the law of the consumer’s place of residence is applicable, provided it includes mandatory consumer law provisions that work to their advantage.
23.2 The exclusive place of jurisdiction for disputes arising from or in connection with this contract is Munich, insofar as the parties are merchants or legal entities/special funds under public law and no other exclusive place of jurisdiction has been established.
23.3 Subsidiary agreements, changes, and additions as well as rescissions of this contract in whole or in part including its annexes must be in writing. This also applies to changes to this written form requirement.
23.4 The parties are not entitled to transfer rights and obligations from this contract to third parties without the prior written consent of the other party.
23.5 The parties are only permitted to use the other party’s name, logo, or other identifying designation or as a reference with the latter’s express written and revocable consent. In particular, each party reserves the right to use its own name, company logos, registered trademarks and/or models.
23.6 Should one or more provisions of this agreement be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. The same applies in the case of an essential provision inadvertently omitted herefrom. The ineffective or unenforceable provision or loophole is to be replaced by one that comes as close as legally possible to the business effect that the parties would have wanted.
II. FTAPI OnDemand
1.1 This part of the terms and conditions regulates the provision of FTAPI OnDemand. In addition, the general regulations in Section I. apply to FTAPI OnDemand.
1.2 The provision of FTAPI OnDemand includes the provision of the latest version generally approved by the provider and any further bookable add-ons. In this context, customers accept changes provided they are reasonable for them by continuing to use and operate FTAPI OnDemand.
2.1 By paying the licensing fees, customers receive the right to use FTAPI OnDemand for their own purposes. Such purpose includes communication among their employees and between their employees and their customers and partners.
2.2 If the provider also provides customers with software in connection with FTAPI OnDemand that must be installed on their systems, the provider grants them the non-exclusive, non-transferable right to use the object code for this additional software, such right being limited in time to the contract period and only to enable storage on their systems. The licence is limited to the customers’ own purposes; §2.1, clause 2 above applies accordingly.
2.3 The use is limited to the functionalities of FTAPI OnDemand listed in the service description agreed with the customer. The provider is entitled to demand additional fees for functionalities that go beyond the agreed service description.
2.4 The use of FTAPI OnDemand is limited to the number of users listed in the offer. Customers are entitled to exceed the agreed number of users by up to 10% for a maximum period of 30 (thirty) calendar days (“soft licensing”). If customers fail to request a corresponding increase in the number of users before the aforementioned period has expired, the provider is entitled to use technical means to limit the use of FTAPI OnDemand to the agreed number of users. Other provider claims remain unaffected.
3. Service Level Agreement
3.1 FTAPI OnDemand will be available at least 98% of the time on average each year. Availability refers to the availability of FTAPI OnDemand at the provider’s transfer interface to the public internet. FTAPI OnDemand is also considered available if the functionalities owed according to the service description are ready to run through a previous version or a workaround of the software used.
3.2 The availability is calculated as follows: % availability = (1 less (the total minutes for which FTAPI OnDemand was fully unavailable within a year divided the total number of minutes in a year)) x 100. For this calculation, the year is the calendar year.
3.3 Scheduled maintenance work for which notice is provided to the customer, shutdowns not the fault of the provider, as well as shutdowns due to delays in troubleshooting for which the provider is not responsible, are not included in the calculation of availability.
4. Third-party components
If the provider also provides customers with software that must be installed on their systems in connection with their use of FTAPI OnDemand, this software is being distributed together with Open Source components. The use of the open source components is not covered by these terms and conditions or other contractual agreements between the provider and customers. Rather, the open source components are licensed by their rights holders in accordance with the open source licence applicable to the respective component and can be used by customers accordingly. The documentation provided with the additional software contains a list of all open source components supplied and the applicable open source licences. With regard to the open source components, they may be changed for customer use and reverse engineering to correct defects in such processing.
5. Support services
The provider will support customers in eliminating potential faults or errors in FTAPI OnDemand (see Section I, Item 9). General training measures, telephone support, and visits to customer locations are excluded from the scope of services.
5.1 The provider’s customer support ticketing system is available 24 hours a day at http://support.ftapi.com. All customer enquiries and notifications must be communicated using this system.
5.2 Support services are limited to the support of customer system administrators. Customers must provide support to their own users.
5.3 The provider will answer support enquiries within a reasonable turnaround time within business hours (Monday to Friday, excluding public holidays in the Free State of Bavaria, from 8:00 a.m. to 6:00 p.m., hereinafter referred to as “business hours”). Support enquiries are usually answered via the ticketing system.
5.4 If premium support is also purchased, the provider will provide additional telephone support during business hours. Premium support services are billed according to the agreed fees.
III. FTAPI OnPremise
The provisions of this Section III apply to the provision of FTAPI OnPremise and the associated add-ons that can be booked separately. The provisions of Section I also apply.
2.1 With the payment of the licensing fees, customers receive the right to use FTAPI OnPremise for their own purposes. Such purpose includes communication among their employees and between their employees with their customers and partners.
2.2 The provider grants customers a non-exclusive, non-transferable, and time-unlimited right to use FTAPI OnPremise in the object code. Customers also have the right to install one (1) copy of FTAPI OnPremise on one (1) server. If there are virtual server instances, customers may install one (1) copy of FTAPI OnPremise on this instance. Customers may swap out the server or server instance on which FTAPI OnPremise was installed, provided that FTAPI OnPremise is completely removed from the original server or instance.
2.3 A copy of FTAPI OnPremise is made available by delivery to an email address provided by the customer or by downloading it from a web server operated by the provider.
2.4 The license is granted solely for the use of the functionalities of FTAPI OnPremise as listed in the service description agreed with customers. The provider is entitled to demand additional fees for functionalities that go beyond the agreed service description.
2.5 The licence is limited to the number of users listed in the offer. The customer may exceed the agreed number of users by 10% for a maximum period of 30 (thirty) calendar days (“soft licensing”). If the customer fails to increase the number of users before the aforementioned period has expired, the provider is entitled to use technical means to restrict the use of FTAPI OnPremise to the agreed number of users. Other provider claims remain unaffected.
3. Freedom from third-party rights
3.1 If intellectual property or copyright claims are asserted against customers, the provider is obliged to indemnify them from claims set by a court or within a settlement agreement. Customers, however, are not entitled to make such settlement agreements with the third party without the provider’s consent. The latter does not apply if the provider refuses to comply with customer requests for indemnification. Customers agree to notify the provider immediately in writing if claims are made for such infringements of third-party rights. Customers are obliged to provide adequate support to the provider when contesting such claims or in settlement negotiations.
3.2 If the contractual use of FTAPI OnPremise is impaired by third-party property rights, the provider has the right to purchase the corresponding licences on behalf of customers, to change OnPremise, or to exchange the software in whole or in part for equivalent software at its own discretion and expense.
3.3 The provider is not obliged to release, change, exchange, or acquire licences unless it is responsible for the infringement of property rights. This is particularly the case with violations of property rights that are based on
- a use of FTAPI OnPremise by customers that goes beyond the provisions of these terms or the service description or
- a change in FTAPI OnPremise made by or as ordered by customers or
- a combination of FTAPI OnPremise with third-party products and services that have not been approved by the provider for use with FTAPI OnPremise.
3.4 If claims are asserted against the customer for infringement of property rights with regard to third-party components within the meaning of §4 below, the respective regulations of the manufacturer or distributor for indemnification apply further to any indemnification obligations of the provider, in deviation from §§3.1 and 3.3 above. If, in such a case, a claim is made against the customer by a third party due to an alleged infringement of property rights in connection with the transfer of FTAPI OnPremise, the provider, manufacturer, or distributor is responsible for undertaking a legal defence, negotiating a settlement, or conducting any legal disputes. Customers will only acknowledge claims asserted against them after receiving the written approval of the provider. Customers must provide appropriate support in the conduct of legal disputes and settlement negotiations.
4. Third-party components
FTAPI OnPremise is sold together with open source components. The use of these open source components is not subject to these terms and conditions or other contractual agreements between the provider and customers. Rather, the open source components are licensed by their rights holders in accordance with the open source licence applicable to the respective component and can be used by customers accordingly. The documentation provided with FTAPI OnPremise contains a list of all open source components delivered with FTAPI OnPremise and the open source licences that apply to them. With regard to the open source components, they may be changed for customer use and reverse engineering to correct defects in such processing.
5.1 Any defects in FTAPI OnPremise that exist at the time of transfer of risk will be remedied by the provider within a reasonable period of time either by delivering a defect-free version of FTAPI OnPremise or by correcting the defects.
5.2 Claims due to defects are forfeited within twelve (12) months after the transfer of risk; Section I §13 remains unaffected. Unless otherwise regulated here, customers remain entitled to statutory claims for defects.
6. Software maintenance
The provider will provide the following maintenance services to customers that have concluded an FTAPI OnPremise software maintenance contract with the provider.
6.1 The provider provides customers with updates of FTAPI OnPremise in the form of hotfixes, patches, updates, and version releases as part of a software maintenance contract as soon as these are approved by the provider and made available to other customers. Customers are responsible for the timely installation of the updates announced at www.ftapi.com/Release-Notes. In this context, customers accept changes provided they are reasonable for them by continuing to use and operate FTAPI OnPremise. In particular, customers are responsible for updating their systems as necessary to continue operating FTAPI OnPremise.
6.2 In detail, the provider will provide the following update services for the current version:
- Provision of known error corrections by providing available updates (bundling of several error corrections in one version) for download via the internet,
- Provision of available minor updates (version with additional/extended functions) for download via the internet,
- Provision of available major updates (version with a greatly expanded range of functions) for download via the internet,
- Provision of available patch updates (version with bugfixes) for download via the internet,
- Provision of available patch updates (version with bugfixes) for download via the internet,
- Updates to the FTAPI manual for minor and major updates.
The provider will provide notice of new releases at www.ftapi.com/Release-Notes. Older versions are excluded from update services.
6.4 The regulations in §§2 and 4 of this section apply to all hotfixes, patches, and updates provided by the provider.
6.5 The provider will support customer in eliminating potential defects in FTAPI OnPremise (see Section I, §9). General training measures, telephone support, and visits to customer locations are excluded from the scope of services.
6.6 The provider’s customer support ticketing system is available 24 hours a day at http://support.ftapi.com. All customer enquiries and notifications must be communicated using this system.
6.7 Support services are limited to support for customer system administrators. Customers must provide support to their own users.
6.8 The provider will answer support enquiries within a reasonable period within business hours (Monday to Friday, excluding public holidays in the Free State of Bavaria, from 8:00 a.m. to 6:00 p.m., hereinafter referred to as “business hours”). Support enquiries are usually answered via the ticketing system.
6.9 If premium support is also purchased, the provider will provide additional telephone support during business hours. Premium support services are also billed according to the agreed fees.
6.10 The provider agrees to troubleshoot and correct documented and reproducible errors in FTAPI OnPremise. “Error” in this sense is any defect in FTAPI OnPremise reported by the customer which results in the software’s quality or functionality deviating significantly from the FTAPI manual and service description and
- has a more than insignificant effect on its usability or
- corruption or loss of data processed or generated with FTAPI OnPremise.
If a defect cannot be reproduced either by the provider or by customers, it is not considered an error.
6.11 Instead of correcting the error, the provider is entitled to provide a workaround provided that it is reasonable for customers. In particular, the provider is entitled to change FTAPI OnPremise, provided that the agreed functions are not significantly impaired.
6.12 Error corrections are provided by the provider both with regard to FTAPI OnPremise and with regard to the FTAPI manual.
6.13 For the period of the provider’s liability for defects in accordance with §5 of this section, the provisions in this §6 apply as an extension of the provider’s liability for defects.
7.1 Support enquiries require an exact description of the problem, in particular with regard to the operability of the system and the (individual) functionality concerned. In the event of an error message, customers will immediately provide the provider with all documentation, logs, sample outputs, and other information relevant to troubleshooting.
7.2 If necessary, customers will grant the provider with remote access to the system on which FTAPI OnPremise is installed.
7.3 Customers shall designate a maximum of two (2) system administrators who are authorized to contact the provider in the event of support requests (see §6.7 of this section).
IV. FTAPI OnPremise with time restriction
The provisions of this Section IV apply to the provision of FTAPI OnPremise, provided that a pro rata payment and a limited term have been agreed. In addition, the regulations in Sections I and III apply.
2. Payment date
2.1 The agreed price is due in advance once the contract is signed and must be received in the provider’s account no later than the third working day of each month.
2.2. If the term is extended due to a lack of explicit notice, the price for the extension period of 12 months is due in advance at the beginning of the new term.
3.1 The contracts begin when signed and have a minimum term of either 12 or 36 months as selected by the customer.
3.2 After the minimum term has expired, the contracts are automatically extended by a further twelve months, unless they have been terminated in writing at least three months prior to the end of the term.
4.1 In deviation from the regulation in III.§2, the license is limited in time; otherwise the provisions of Section III§2 apply.
4.2 The provider grants them the non-exclusive, non-transferable right to use the object code for FTAPI OnPremise, such right being limited in time to the contract. Customers also have the right to install one (1) copy of FTAPI OnPremise on one (1) server for the duration of the contract. In the case of a virtual server instance, the customer is entitled to install one (1) copy of FTAPI OnPremise on this instance for the duration of the contract. Customers may swap out the server or server instance on which FTAPI OnPremise was installed, provided that FTAPI OnPremise is completely removed from the original server or instance.