General Terms and Conditions

The TIS GmbH in Bocholt

For several decades now, the TIS GMBH in Bocholt develops innovative concepts and products for mobile data communication in the field of transportation of goods. What began as a sole proprietorship in 1985, has grown today into a medium-sized company with about 50 employees.

Terms and Conditions of TIS GmbH

General Terms and Conditions

 

I Preamble with contents of General Terms and Conditions

 

 

  1. Thefollowing General Terms and Conditionsregulate the contractualrelationshipsbetweenthecommercialtrading

 

TIS Technische Informationssysteme GmbH

Müller-Armack-Str. 8

D - 46397 Bocholt

 

hereinafter referred to as "TIS"

and customers.

 

  1. TISis a providerof telematics and/orwirelesssolutions and providesservicesinthis connection, which cancomplement theleadingsystems of its customersaround thearea of telematicsand /orradio. Therefore, TIScan not guaranteethe functionalityofthe customer-driven system or take the responsibility for success.

 

  1. TIS is available under the following contact data:

Phone: 02871/27 220

Fax: 02871/272 299

Email: info@tis-gmbh.de

 

  1. The Terms and Conditionsare separated into the four following sections, marked by the roman I-IV labeled sections, with associatedupper and lowerdigits:

 

I Preamble with contents of the Terms and Conditions

II General provisions for all services

  1. Contract parties
  2. Validity of these Terms and Conditions
  3. Services, promised featuresandguarantees
  4. Subject to alterations
  5. Reservation of the right to rescind
  6. Conclusion of contract
  7. Period of agreement and Termination
  8. Datesand deadlines
  9. Delivery dates / partial delivery / delivery times / risk
  10. General collaboration duties of the customer
  11. Credit analysisand provision of security
  12. Credit agency/SCHUFA/CEG/BÜRGEL
  13. DefectsClassification /ClassificationProcess /Customer Participation
  14. Liabilityfor defects
  15. Event of default
  16. Other Liabilities
  17. Rights of use
  18. Infringement of intellectual property rights
  19. limitation
  20. Retention of title
  21. Compensation
  22. Billing
  23. Privacy/ Secrecy
  24. Textual form
  25. Contractual exclusion of setoff
  26. Applicable Law, Place of Jurisdiction and Ancillary Agreements
  27. Salvatorius clause
  28. Information on third-party software and rights to use third-party software

III Special provisions for individual services

  1. Provisionsforthe transfer of software
  2. Development of softwarefor the purpose ofsubsequenttransfer
  3. Maintenance of software
  4. Hostingservices
  5. Services by TIS within manufacturer hardware-service
  6. Otherservices
  7. Transfer ofhardware
  8. Maintenance ofhardware

IV Definitions

 

  1. Contractual languageis German.

 

  1. TheseTermsareissuedfor the purposeof facilitatinginternationalunderstandingin twolanguageversions, namelyEnglish and German.In the eventof disputesthe Germanversion shall bethe Relevant, that is,in particular, thatin the eventofdisagreement onthe interpretationof individualclausesof these Conditions,the termsanddefinitionsof the Germanlaware crucial.

 

II General provisions for all services

  1. Contract parties
    • Only entrepreneurs, juristic persons or business partnerships are accepted as customers.
    • Consumerswill beexcludedas a customer.

 

  1. Validity of these Terms and Conditions
    • Theseterms and conditions applyexclusivelyto all services providedbyTIS.
    • Terms to the contrary are not recognized by TIS.
    • If the customeris a merchant, they apply for all futurebusiness relations evenifnot expressly agreed again.
    • TIShas the rightto modifyor supplementthe general terms and conditions or the special terms and condition for services at any time.
    • Customershave the rightto contradict modifications or additions.
    • Ifthe written contradiction does not take place within fourweeks after receivingthe notice of change, they will be effective according to themodification or addition.
    • Customers are reminded in the beginning of the period in written that the amendment orsupplementnotice shall be deemedacceptedif notobjectedin writingwithin four
    • If the customer exercisestherightof objection, TIShas the right to continue the contract under the same conditions or to terminate the contract at a term of one month to the end of the month.

 

  1. Services, promised features and guarantees
    • TISowes services with an industry state of the art at from time of the conclusion of contract.
    • TIS isnot committed to expand the options of use according to the technical development for free without the conclusion of a maintenance contract.
    • The performancedetailsand components are the result of the following listing (in descendingorder)

the contractual agreements,

the relevant service description,

the relevant special terms and conditions for services,

the relevant price list

the relevant specific terms of these terms and conditions

the relevant general terms of these terms and conditions.

 

  • Unless otherwiseagreed, TISowesservicesto be providedasseparate from one anotherandsinglebillableservices.
  • Ifparticularlydescribedproperties areassigned to products, these propertiesrepresent aspecificationthat cannotbe understood interms of aguaranteed propertyorquality orRelevantpropertiesare not guaranteedandappropriateguarantees are not agreed.

 

  1. Subject to alterations
    • TIShasthe right toalter thebenefits promisedordeviatefrom this, if the change ordeviation is reasonably compatible with theinterestsofTIS,forthe customer.
    • Modification orvariation is reasonable, if the customerisnot worseorbetter, ordo not deviatesignificantlyfrom theservices.

 

  1. Reservation of the right to rescind
    • TIS isentitledto withdraw from thecontractby resignationordismissal, ifthis isjustified by the facts, as far as continuing obligationsare concerned, TISisentitledto ordinary terminationwithoutgood cause. This does not affecttheright of extraordinarytermination.
    • TIS isentitledto back out frompartsof his duty to perfomby resignationordismissal, ifthis isjustified by the facts. As far as continuing obligationsare concerned, TISisentitledto ordinary terminationwithoutgood cause. This does not affecttheright of extraordinaryterminationalso.
    • Modification and variation is justified,
      • ifa third party alters or stops its service offer, whichTIS uses to provide their own services,
      • ifthe customer breachesits dutywith regard to thegoods suppliedunder retention of title,
      • if the customerprovides falseinformationabout his credit,
      • in case of impossibility, force majeure, strikes, natural disasters and
      • forbreachesof a customer unlessthe customerhas beengiven a reasonablegrace period for the
    • In the eventof unavailabilityof advance paymentTISundertakesto inform the customerimmediately about thenon-availabilityof the service and refund already made payments immediately.

 

  1. Conclusion of contract
    • Promotion of the products on the Internet or in catalogs by TIS is an unbinding request to our customers to make an offer, which is subject to change. This also applies to “non-binding offers” termed letters of TIS
    • The customercanplace anorder in writing, by telephone orin writing.
    • TIScanaccept the offereitherverballyor by written confirmationinwriting or textform, orby delivery.
    • If the order confirmation from TIS differs from the offer of the customer, the confirmation represents a new offer. The acceptance takes place by the customer referring to the order confirmation.
    • TIShasthe right to rejectan offer.

 

  1. Period of agreement and Termination
    • When there arecontinuing obligations,
      • concerning server-software, the term of the contract is initially one quarter and is extended by one quarter each, unless the contractual relationship is terminated in text form with a notice period of 4 weeks before the end of a term

7.1.2.      concerning mobile components, the term of the contract is initially one month and is extended by one month at a time, unless the contractual relationship is terminated in text form with a notice period of 4 weeks at the end of a term

The date of receipt of the notice at the contracting party shall be conclusive.

  • The parties mayterminate the contractual relationship immediately, if there is an important reason. An importantreason exists inparticular if thecustomer ispaying the system usage charge or a substantial partofmorethan 2consecutivemonths inarrearsor in aperiodextendingovermorethan twomonths,withthe payment of anamount that is reaching thesystem usage charge for two

 

  1. Dates and deadlines
    • Performance datesand deadlinesforthecommencement of servicesareonlybinding ifexpresslyconfirmedbyTISand if the customerhas met all theinfluenceconditionsfor executionof the service in time.
    • Forthebeginning andthecalculation periods, which are relatedto the termandthe endof the contract (g., minimumcontract periods), the date used in the order conformation for the first deployment of service takes effect.
    • In case of a responsible, unpredictable, unavoidableand an obstacle of service away from the influence of TIS, dates and periods move for an appropriate amount time.
    • If the service of TIS is delayed, the customer is onlyentitled to withdrawifTISis responsible for thedelay and an adequate period for the service delivery set by the customer has expired.

 

  1. Delivery dates / partial delivery / delivery times / risk
    • Delivery dates declared by the customer, require our confirmation to be valid.
    • Partial deliveriesare permissible ifthey are reasonable forthe customer.
    • Delivery is unfree ex factory.
    • The beginning of thespecified deliveryperiodrequires thatthe customerleaves allofthe information, documents and other items as agreed. The delivery period is complied if the deliveryitem has leftour factory or ourwarehouse, or we haveinformed the customer thatthegoods are ready until the deadline.
    • Thedelivery period is extendedappropriately in thecontext of labor disputes, strikes and lockouts, or government regulations or orders, or if unforeseenobstacles that lieoutside thecontrol ofassetsofTIS occur, where such obstaclesofevidenceon the production ordeliveryof theproducts to be suppliedobject have considerable influence. This applies evenif thecircumstances arisein the supply.
    • The riskof accidental lossand accidental deteriorationof the Deliverablesshall pass withthe delivery tothe carrier or anyotherpersontocarry out the shipmentto the customer. Thehandover is thesame, if thecustomer isin default ofacceptance. Moreover, the risk for Deliverables goes to the customerupon receipt ofnotice of readiness.
    • Shipping route,type andmeansof dispatchare left to TISunless otherwise expresslyagreedwithout any guarantee ofthe fastest andcheapesttransportation. Here, theinterests of the customerare adequately addressed. Upon request,TISwillinsure thegoods to be deliveredatthe customer's expenseagainsttheft, breakage, transport, frost, fire and water damage and otherhazardsto be designatedby the customer, if possible.
    • If the shipment isdelayedat the requestof the customer, TIS will begin to charge the costs of the storage one month after thechargeindicatorof readiness.

 

  1. General collaboration duties of the customer
    • The customer mustprovideall necessaryinformationand documents to TISfromhis sphere. If necessary to provide the service the customerwillprovidethe employeesofTISaccessto its premisesand /orexistinginformation technologyinfrastructure.
    • If the customer performs his obligation duties not, not in time or incomplete an is responsible for that
      • TIScanmake an offerto providetheseservices itselfinsteadof the customer,
      • the periods affected by the delay postpone adequate , if the these cannot be adhered.
      • Any claimsfor compensationfromTISand /or the righttoterminate, if necessary, or to withdraw without prejudice are not affected.
    • Specificduties of collaborationarise, unless otherwise agreed, as a supplement tothe provisionsofthe specialconditions ofcontract above.

 

  1. Credit analysis and provision of security
    • If there are founded doubts to the creditworthiness of customers before or after the conclusion of contract, because it is expected due to the subsequent upper section gathered information, that the enforcement of claims against the customer will be connected with considerable difficulties, particularly because he is in arrears with commitments from other (existing or earlier) contracts or those contracts were not settled according to the contract or similar cases are present, TIS is allowed to request a provision of adequate security in the form of an interest-bearing deposit or a several guarantee by a EU-based financial institution or limit the access to its services if the is not or not enough given or the security does not provide sufficient protection against bad debt offering (for example, if the customer has made the affidavit or has not complied with a request for their release), or another serious cause is present, such as the customer has made incorrect statements or there is a reasonable suspicion that the customer uses or intends to use the services in an improper A possibly paid provision of security will be released after completion of the contract if the customer has settled all claims of TIS.
    • TIS isentitledto set off thesecurityagainst such claims, that arenot paid by the customer in spite of reminder.
    • TIShas to grantthesecurity depositback, if the conditions above are no longer existing.
    • In addition,TIS can deny acontractdue to lack ofcredit.

 

  1. Credit agency / SCHUFA / CEG / BÜRGEL
    • TIS is entitled to obtain information from credit reporting agencies within the context of credit check. TIS is also entitled to transfer information to credit reporting agencies required for the collection of customer data due to any breach of contract (eg requested default summons in case of uncontested claims, court order for uncontested claims, established enforcement orders, compulsory enforcement measures). TIS can get information about data, if they arise from other customers relationships a fair credit reporting agency. The respective data transmission and storage is done in the context of data protection regulations and only to the extent necessary to protect the legitimate interests of TIS, a counterparty of the credit agency or the public, and thus the legitimate concerns of the customers are not affected.
    • If the consent to obtain information from the Schufa, the CEG, Creditreform or BÜRGEL was released, it has the following scope:

 

"I / We agree that TIS transmits data about the application, admission and termination of this Agreement to the SCHUFA HOLDING AG, Kormoranweg 5, 65201 Wiesbaden (SCHUFA), and / or the CEG Creditreform Consumer GmbH, Hellersbergstraße 14, 41460 Neuss (CEG), and / or the BÜRGEL Business Information Ltd. & Co. KG, Postfach 500 166, 22701 Hamburg, or any other credit agency and that TIS receives information about me / us from SCHUFA / CEG / BÜRGEL. Independently,TIS will transmit information due to failure to meet contract obligations to SCHUFA / CEG / BÜRGEL (eg, termination for default  payments, requested default summons in case of uncontested claims and compulsory enforcement measures). These messages may be purchased under the Federal Data Protection Act only after weighing all the interests involved. SCHUFA / CEG / BÜRGEL collects and transmits the data to their affiliates in the European internal market to give them this information to assess the credit worthiness of individuals. Contractors of SCHUFA / CEG / BÜRGEL are primarily banks, credit card companies and leasing companies.

In addition, SCHUFA / CEG / BÜRGEL furnish particulars on information of trade, telecommunications and other companies, that provide goods and services on credit. SCHUFA / CEG / BÜRGEL makes personal information available only if a legitimate interest in it was presented credible  in each case. To identify the debtor SCHUFA / CEG / BÜRGEL transmit personal data. SCHUFA / CEG / BÜRGEL is entitled to transmit a probability value, calculated from its database, to its contract partners (Score method).

I / we can get information from SCHUFA / CEG / BÜRGEL on my / our stored data (SCHUFA HOLDING AG, Kormoranweg 5, 65201 Wiesbaden, www.schufa.de; CEG Creditreform Consumer GmbH, Hellersbergstraße 14, 41460 Neuss , www.cegplus.de; BÜRGEL Business Information GmbH & Co. KG, Postfach500166, 22701 Hamburg)."

 

  1. Defects Classification / Classification Process / Customer Participation
    • Unless otherwise agreed, as a part as the warranty and the service a distinction is made between the following four classes:
      • A service preventing deficiency exists when the use of the respective service is impossible or severely restricted.
      • A service interference deficiency exists when the use of that service is severely limited.
      • A slight deficiency exists when the use is possible with slight restrictions.

A service preventing defect exists, even if the slight deficiencies are resulting in a considerable restriction of the use of individual services.

  • No deficiency exists, but service preventing or –interference deficiencies occur.
  • TIS decides on the classification of the limitations encountered when service preventing, service interference and slight deficiencies or defect, with due to the account of the views of the customer, with particular consideration of the following reasons:
    • TIS leaves in its function as a provider of telematics software a part of the software used by the customer.
    • Customers therefore use mainly leading third-party software, usually consisting of a freight forwarding software, an ERP system or an inventory control system, which exchanges data through a software interface with the Software of TIS.
    • The third-party software used by the customer is not able to process the data to the interfaces of the software provided by TIS or is not able to work with the data delivered from the TIS Software. In both cases, there is no shortage of services available from TIS, unless otherwise agreed.
    • The customer agrees to cooperate in finding, in particular to provide TIS the data delivered by the third party software or the data used after the delivery of the software for the purpose of verification.

 

  1. Liability for defects
    • There is basically a legal defect liability law, unless otherwise provided.
    • TIS shall warrant that the services are free of defects that prevent the suitability for the contractual use or reduce.
    • A minor defect or significant reduction in functionality is irrelevant.
    • TIS is not liable for the consequences of improper handling, use, maintenance and operation of the goods or the consequences of normal wear and tear of wearing parts such as Batteries, Screen Protectors, printer ribbons, printer, color transparencies, printer paper or the failure to follow the operating instructions.
    • Defects liability claims by the customer shall not extend to the software or hardware that was changed by the customer or that he does not use in an agreed system environment, unless the customer proves that this use is not the cause of the reported shortage.
    • The reproducibility or detectability of the defects are required for the claims of the customer.
    • The customer has to check the good immediately after the delivery by TIS within purchase agreements and contracts for work and materials if possible in the ordinary course of business and an notify TIS. The customer has to send TIS the information useful for the detection in written, if no other form is agreed. He has to meet the measures which facilitate the identification of defects and their causes. If the customer fails to report, then the goods shall be deemed approved unless there is a defect which could not be detected in the report. If such a defect is discovered later, the announcement must be made immediately after the discovery, otherwise the goods will be considered in regard to this defect as approved. If TIS has fraudulently concealed the defect, TIS can not rely on those rules.
    • Moreover, the customer has to report the defects immediately, unless otherwise agreed. to form the error message. He has to meet the measures which facilitate the identification of defects and their causes.
    • Product specific warranty provisions are also included in the special provisions for special services. They are complementary and in the event of a conflict with the terms of these general rules of priority.
    • If liability is not excluded or not excludable by law, liability is limited to foreseeable, typical damage.

 

  1. Event of default
    • In case of default, the customer can set an appropriate deadline to TIS for the service. A period is appropriate when it is measured at least 3 weeks. After this period, the customer can cancel the contract in whole or in part.
    • The customer is obliged to declare on the request of TIS, if he rescind from the contract because of the delay or if he insists of the service. This request has to be performed during the period referred to the first sub-paragraph of this section (Event of default) with a reasonable notice prior to its expiration. Until the receipt of the response at TIS, TIS is entitled to perform.

The following sub-paragraphs of this upper section (Event of default) remain unaffected.

  • If the customer is calling for compensation instead of the service and no date for the end of the loan periods is agreed in the contract, the duty of payment is limited to pay two times the monthly compensation for the affected product.
  • The right to the service is excluded if the customer has requested compensation instead of the service.
  • If there is a date for the end of a loan period provided in the contract, the compensation is limited to 8% of the total reward for the affected product.
  • Customer claims for compensation of lost profits are excluded.
  • The limitations will not apply where damages are affected from the loss of life, limb or health or claims under the Product Liability Act or guarantees are concerned. The liability for breach of duties, which makes the proper execution of the contract possible and which compliance is expected regularly by the customer shall not be affected. The same applies to breaches of TIS vicarious agents.
  • Product Specific provisions are also included in the special provisions for special services. They are complementary and in the event of a conflict with the terms of these general rules of priority.
  • If liability is not excluded or turns out to be not excludable by law, liability is limited to foreseeable, typical damage.

 

  1. Other Liabilities
    • The liabilityisfinally covered for delayunder the overallnumberofdelaysanddefectsliabilityunder theUpperSectionof liabilityfor defects.
    • Inaddition,TISshall be liable fordamagesasfollows:
      • formaterial damageup to 100,000€per contract;
      • liability forfinancial lossislimited to 100,000€per contract.
      • Claimsfor lost profits areexcluded.
      • In case of lossofdataTISis only liablefor those expenses,which isrequired atproper data securityby the customerto restorethe data.Forslight negligenceofTISthis liability occurs onlyif the customerhasperformed a proper backup immediately before theaction, leadingtoloss of data, took place.
    • Thelimitations will not applyifdamages from the loss oflife, limb or healthorclaimsunder the ProductLiability Actareaffectedor guaranteesare concerned.The liabilityfor the breachofobligations, which makes the properexecution of thecontract in thefirst place and which the customer canusually trust toshall remain unaffected. The sameapplies to breachesofTIS
    • Innegligentproperty and financiallosses, weare only liable forbreach of a contractualobligation, buttheamount is limited totheconclusion of the contractandforeseeablecontractual damage.

 

  1. Rights of use

The rights of use arise from the special provisions for special services.

 

  1. Infringement of intellectual property rights
    • Ifa third partyclaims any claims of infringementof intellectual property rightsthroughthe useof the delivered products and this willaffect or forbid the use,then TIS is liable asfollows:
      • TIS will change or replace the products at its discretion and at its expense the, to infringe the intellectual property rights, but basically match the agreed functional and performance characteristics in a reasonable manner to the customer, or dispense the customer of license fees to the patent holder or Third. If TIS fails to do so in appropriate conditions, then TIS has to take back the products with refund against the compensation minus an amount that considers the time of use. In this case, the customer is obligated to return the products.
      • Condition for the liability of TIS is that the customer notifies TIS immediately of third party claims, does not acknowledge the alleged infringement and the he either cedes all dispute including any out-of-court settlements to TIS or makes it himself only in agreement with TIS. Necessary court and legal costs of the customer caused by the legal defense shall be borne by the TIS.
      • Ifthe customer discontinuesthe useofmitigationreasons orother good reason, heisobliged to point out to the third, that an acknowledgmentof theinfringementisnotconnectedwiththe cessation of use.
      • Unless the customer is responsible for the alleged infringement itself, claims against TIS are excluded.
      • Further claims by the customer due to a violation of property rights of third parties are excluded.
    • The limitations will not apply if damages are affected from the loss of life, limb or health or claims under the Product Liability Act or guarantees are concerned. The liability for the breach of obligations, which makes the proper execution of the contract in the first place and which the customer can usually trust to shall remain unaffected.. The same applies to breaches of TIS agents.
    • The limitations and exclusions of liability do not apply if the damages are covered by public liability insurance of TIS and the insurer pays.
    • If liability is not excluded or turns out to be not excludable by law, liability is limited to foreseeable, typical damage.

 

  1. limitation

Claims under the upper digits of liability for defects, delay, other liability prescribe in a period of 3 years from the knowledge, but not later than 5 years after delivery, unless nothing else addicts from the special provisions for special services.

 

  1. Retention of title
    • Ownership of thegoodssupplied byTISuntil fullpayment of all claimsarising from the businessrelationshipwith the customer stay in the ownership ofTIS andmay notbepledged ortransferred as security.
    • In case of seizureorother interference bythird parties, thecustomer isobligedto informTISthereof immediately.
    • Thesecurities will bereleased upon requestof the customer, if the valueof the securitiesexceeds the securedclaims by morethan 25%.

 

  1. Compensation
    • The amount of compensation, the due date and billing are resulting fromthe contract andthe special provisionsforspecial achievementsof theterms and conditions.
    • Prices areex-factoryandexclude VAT.
    • Unless otherwise agreed, invoicesaredue immediately without
    • The packageis derived from thecontract.
    • If an upstream supplier of TIS increasesor decreases a price witheffectfor TIS, TIS passes it to the customer.
      • Increases areexcluded, ifdelivery dateswithin 4monthsafter the contractareagreed. If the price increase is of over 10% comparedto the previouslyprevailing price, the customer can cancelwithin 30days oftheirreleasefrom the contract.
      • Reductionsarepassed fromTISto the customer without notice.
    • If a priceadjustment isagreedwith continuous obligationsfor services, unless otherwiseagreed the following applies:
      • An increase considersearliest9 months afterdelivery of the product, furtherincreases are considering earliest 9months afterthe effective date of thepreviousincrease.
      • An increasewilltake effect threemonths afterthe announcement.
    • Insofar coast accounting on basis of actuals is agreed, daily rates are calculated by, travelcostsandincidental expensesdepend on thecurrent pricelistofTIS, unless otherwise
    • Per calendar daywill not bepaidmorethan adaily rate, unless otherwiseAn agreeddaily ratecan onlybe chargedif at least8 timehours were worked. If lessthan 8hours are done per day, they areproportionalto invoice. Commencedhours are paid asfull hours, if an hourly rate is agreed.

 

  1. Billing
    • According to 14 UStG, invoices can be sent electronically with subject to the consent of the recipient.
    • TISis entitled tosend invoicesas a pdfbillvia e-mail(e-billing).

 

  1. Privacy / Secrecy
    • The customeris responsible to provide TIS all information, legal requirements and knowledge which are required for the observanceof data protection and
    • Beforehanding overa volume toTIS, the customer is responsible for the deletion of data worth being protected, unless otherwise
    • The customerand TISensure thatallpersonsentrustedwith the processing orfulfillmentof the contract observes the legalprovisionsand the privacy. Theobligationrequired underdata protection lawon privacy has to start before thefirststart of the activities and has to be proofed if requested.
    • The customerand TISensurethat all technicaland organizational measures aretaken which arenecessary toensure theimplementation of the provisionsof the foregoingsub-paragraph, in particular in9 BDSGmentioned requirements.
    • The customer and TIS maycancel the contractin whole orin part iftheycomply withtheobligationsfaultwithin areasonableperiod orviolateprivacyregulationsintentionallyor grossly
    • The customerand TISareobliged to handle all information obtained inthe frameworkof the contractconfidentialinformation, business and tradesecretsconfidential, particularlynot to pass themon to third partiesorotherwise as tocontractual purposes.
    • TIS is allowed to include the nameof thecustomer and a briefdescriptionof the service providedin a reference list. All other advertisinginformationto the customerarediscussed in advance withhim.

 

  1. Textual form

The contract and any amendments thereto, and all contract-related statements, disclosure and documentation requirements must be in textual form, unless another additional form is agreed.

 

  1. Contractual exclusion of setoff

The customer is not entitled to set off its claims against payments due, unless the claims are undisputed or legally binded.

 

  1. Applicable Law, Place of Jurisdiction and Ancillary Agreements
    • The contract including these General Terms and Conditions is subject to substantive law of the Federal Republic of Germany. The provisions of the Vienna UN Convention dated 11th April 1980 on Contracts for the International Sale of Goods (CISG) shall not apply.
    • In case of disputes, the registered office of TIS shall be the place of jurisdiction if
      • The customeris a merchantor
      • the customer has nogeneral jurisdictionin the FederalRepublic ofGermany or
      • the customer isa legal entity underpublic law.
    • TIS isentitledto suein any otherjurisdictionprovided by law.
    • No ancillary agreements have been made.

 

  1. Salvatorius clause
    • If any provisionof thecontract or theseterms and conditions becomeinvalid,the validity of theremaining provisionsshall not be affected.
    • Theparties willcooperate toreplace invalidprovisionsby regulationswhich comply with theinvalid provisions, as far as possible.

 

  1. Information on third-party software and rights to use third-party software
    • It is possiblethat theuse of the softwarebyTIS causes with the licensing termsof thethird party softwareused by the customerthatthe customer mustpurchase additionalrights to usethis softwareof these suppliers.
    • Thecustomer is responsiblefor procuringrights to usethird party software.

 

III Special provisions for individual services

  1. Provisions for the transfer of software
    • General provisions for the transfer of software
      • Subject of the contract
        • Thefollowing conditions apply tothe transfer and useof softwareineach case the version licensed in the contract.
        • They do not applyforadditionalservices such as installation, integration, configuration and customizationof the software tomeet customer needs.
        • Properdata backupis up to thecustomer, unless otherwise agreed.

 

  • The nature and extentof theservice
    • TIS provides the software to the customerwith theprovisions of the contract.
    • The documentation of thesoftware can be deliveredin German andprinted or printableform, unless otherwise
    • The software was checkedat an appropriate timebefore eachdelivery to the customer(sothere is adelivery)with a currentanti-virusprogram. TISsaid that thereview foundno evidence ofdamage functionsin the software.

 

  • Rights of use
    • Software is protectedby copyright.
    • Software is providedto the customer forits intended use.Thescope of the intendeduseand the type andextent of therightsarise fromtheagreement and theseterms and conditions.
    • The intendeduseisdeterminedbythe system andoperational environment of thesoftwareat the timeof initialassignment. In the case ofporting softwareto hardware, purchased to a later date, itcan lead touse restrictionsthat mustbeclearedfor payment.
    • TheCustomer commits toensure the use of the software with appropriate technicalandorganizational
    • The customerisentitled to makea copyofthe softwarefor backup purposes. Theproperbackupcopiesofsoftware areservingpartof their intended use.
    • Usein a system environment different than agreed requires the consentofTIS. If a system environment defined in the contract is not operational, thetemporaryuse of another suitable one ispermitteduntil the errorin any other suitableenvironment is fixed.
    • The customeragrees, to avoid to bringthe softwareinto anothercode form, unlessthat it is allowed by thecopyright regulations.
    • TISinforms the customerabout in the softwarecopying- anduse-locks, as far asthey are known.

 

  • Special provisions for the transfer of software

 

  • Temporally unlimited transfer of software

 

  • Rights of use
    • If no other rights of use are granted, TIS grants the customer the right to use the following software:
      • the non-exclusive right of use
      • the rights of use in the system environment agreed in the contract,
      • the transferable right of use, with the restriction of sub-section 1.2.1.1.2,
      • the continuing and irrevocable right of use, with the restriction of sub-section 1.2.1.2.
    • If the customer is entitled to transfer the rights of use to a third party, and he makes this, he has to pay its obligations to the third parties. Upon such a transfer the usage rights of the customer expire. The same applies for return transfers. All existing copies of the software must be deleted or returned to TIS.

 

  • Extraordinary Termination of Rights of use
    • If the customer violates the agreed usage rights of use or rights of the owner serious, TIS can terminate the rights of use of software extraordinary.
    • In the event of termination, the customer is required to delete the original of the software affected by the termination, including documentation and all copies and return them to TIS.
    • At the request of TIS, the customer makes a statement about the cancellation.
    • The customer is entitled to retain a copy of the software for testing and archival purposes, if an agreement was reached. The other statutory provisions shall remain unaffected.

 

  • Compensation
    • The compensation in the case of a purchase contract or work contract is due immediately.
    • In the case of the conclusion of a work contract, the payment is due upon acceptance.
    • Where partial services are agreed these regulations shall apply accordingly.

 

  • Liability for defects, defects liability period
    • If the obligation of TIS for defect removal is not precluded by contract, the following applies:
      • The obligation of TIS defect removal relates to the most recent, adopted version of the software by the customer. Unless otherwise agreed, a new version is to be borne by the customer if it is used to prevent or eliminate defects. The customer is not required to adopt a new version, if it is not reasonable, because the new version differs significantly from the agreed contract specifications. If the customer dies not takes over a new version for that reason its other rights under these General Conditions remain intact.
      • On release of a new version of the software, the replaced version has to be destroyed or surrendered at the request of TIS.
      • If a new version contains more functionality or more features than the contractually owed as amended ("supererogation"), the customer has to pay a transfer fee only, if he wants to use the supererogation. An obligation to use the supererogation does not exist.
      • TIS can correct the defect at its option by removing, bypassing or replacement. Corrective action includes the delivery of a printed or printable instruction for the documentation, if necessary.
    • If TIS does not correct the defects within a reasonable time limit, the customer may set a period of grace. If the repair or replacement does not occur within the time period or if it failed for any other reason, the customer can demand a reasonable reduction in price.
    • The warranty period is 12 months after delivery, unless otherwise agreed. The warranty period for defects in subsequent performance also ends with the expiry of the warranty period referred to in the preceding sentence.

 

  • Temporary Use of Software (rent / SaaS / Test- and Demonstration-purposes)

 

  • Rights of use

If no other right if use are agreed, TIS grants the customer the following rights of use to the software:

  • the non-exclusiveright of use
  • the right of use in system environmentagreed in the contract ,
  • the non-transferableright of use
  • the temporaryandterminableright of use.
  • The same applies tothe provisionfor test and demonstrationpurposesfor the periodof testingordemonstration.

 

  • Duration and termination of rights of use
    • The duration of thetransfer of thesoftwareresults from thecontract.
    • If the customer violatesthe agreed usagerightsorrightsof the owner serious,TIScanterminatetherights of use of thesoftware affectedThis implies anunsuccessfulreminderhaving been sentaheadbyTIS.
    • In the eventoftermination, the customerisrequired to deletethe originals of the softwareaffected by thetermination, includingdocumentationandall copiesandreturn them toTIS. At the requestofTIS, the customer makes a statementabout the cancellation. The customerisentitled to retaina copyof the softwarefor testing andarchival purposes, if an appropriate agreement was reached in the contract.
    • The other statutoryprovisions shall remain

 

  1. Development of software for the purpose of subsequent transfer

 

  • Subject of the contract
    • Unlessotherwise agreedin the contract, the conditions of the uppersections 1.1and 1.2of this section shall apply.
    • In addition thefollowing provisions shall apply.

 

  • Acceptance
    • Unless otherwiseagreed, theacceptance of the software takes place in severalphases,specifically as follows:
      • Delivery to thecustomer,
      • Installation at the customerin a test environmentorin the system environment,
      • Two-weektestphaseof the customer,
      • Immediatestart of theeliminationofdefectsdiscoveredduring testingbyTIS
      • Aftercorrection of alldeficienciesTISwill request the customerto declare thedecline.
      • The acceptancecan be declaredwithin 7 workingdays. If Customerdoes not declare within thattime, thesoftware is consideredas accepted.

 

  • Compensation
    • The amount ofcompensationis determined by thecontract.
    • Unless otherwise agreed, thefeeis payableininstallments, namely
      • 50%with order,
      • 25%after the transferor deliveryorinstallation,
      • 5% aftercompletion of the testingphase
      • 20%after acceptance.

 

  • Liability for defects, defects liability period
    • If the obligation of TIS for the remedying of defects is not precluded by contract, the following applies:
      • The obligationofTIS for remedying of defects relates to themost recent, version of thesoftware adopted by the customer.
      • On release of anewversion of thesoftware,the replacedversionhasto bedestroyed orsurrenderedat the requestofTIS.
      • If a new version contains more functionality or more features than the contractually owed as amended ("supererogation"), the customer hasto pay atransferfeeonlyifhewants to usethe supererogation. An obligation to usethesupererogationdoes not exist.
      • TIScancorrect thedefectat its option byremoving, bypassingor replacement. Corrective action includes the delivery of a printed or printable instruction for the documentation, if necessary.
      • If TIS does not correct the defects within a reasonable time limit, the customer may set a period of grace. If the repair or replacement does not occur within the time period or if it failed for any other reason, the customer can demand a reasonable reduction in price.
    • The warrantyperiod is 12months from acceptance, unless otherwiseagreedandhasnotTISfraudulently concealed the defect. The warranty periodfor defects insubsequent performancealso endswith the expiryof the warrantyperiod referred to inthe preceding sentence.

 

  1. Maintenance of software

 

  • The nature and extent
    • TIS provides maintenance services for software, as agreed in the offer and by personnel who are qualified to perform the agreed maintenance services.
    • The Software version maintained is the version at the time of the delivery date under consideration of the maintenance by now, that means the existing maintenance that is owed is the maintenance  of the latest published version. Old versions should not be maintained.
      • If the customer uses the software not in the system environment declared in the offer, he is not entitled to get maintenance services.
      • If the customer uses the software not corresponding to the right of use agreements of the licensing agreement, he is not entitled to get maintenance care services.

 

  • Customer Participation
    • The customer will assist TIS in the provision of contractual services to a reasonable extent. The customer will inform TIS especially about rights of use and, if necessary, about the extent of the right to edit of third or the software specified in the order. The customer has to provide the necessary information and documentation in timely manner. Any further involvement services must be agreed separately. Contact persons are exclusively the responsible contact persons named in the contract.
    • The customer must inspect the goods immediately after delivery by TIS, to the extent feasible in the ordinary course of business, to investigate and, if he sees a defect, inform TIS immediately.
    • The customer has to advice TIS, indicating the known and reported defects with information useful for their detection, if no other form of defect advice is agreed.
    • He has to meet the measures within the reasonable, which facilitate the identification of defects and their causes.
    • Upon request, the customer must notify the system environment for the software listed in the offer.
    • The customer is obliged to inform TIS on its operating conditions and on changes on these operating conditions timely an software listed in the offer if they impact on the contractual services of TIS.
    • If teleservices are agreed, the customer will provide the necessary technical facilities and provide access to the system according to the agreement.
    • Proper data backup is up to the customer.

 

  • Customer participation in software maintenance/ reporting or defects
    • The parties to the agreement are exclusively those responsible in the contract. The customer has to take the necessary measures, which make it possible to identify deficiencies and their causes.
    • The notification of defects must always be made via the TIS ticket system as well as via the telephone number provided by trained key users. The notification shall accurately describe the deficiency (in particular, conditions under which it occurs, symptoms and effects of the defect).
    • The customer shall provide TIS on-site access to the neccesary extend to its own premises and access to the necessary hardware and software as well as the required technical facilities for its regular business hours. Insofar as the urgency of the care service requires, the access is also granted outside the regular business hours of the client.
    • The customer will appoint a qualified employee who is available as a contact person and is authorized to make the necessary decisions for the execution of the contract.
    • Upon request, the customer must communicate the system environment for the software listed in the offer.
    • The customer is obligated to inform TIS of his / her application environment as well as of any changes to this application environment and the software specified in the offer, as long as these have an impact on TIS's contractual services.
    • In the case of agreed tele services, the customer shall provide the necessary technical facilities and allow access to the system according to the agreement.
    • The customer is responsible for the proper data backup.

 

  • Servicelevelagreements
    • The customer can agree with TIS, within which time the services are to be provided.
    • Unless otherwise agreed, TIS will react to the notification of a defect by the Customer within the following time limits ( "Response Times"):
      • In the event of preventing the operatin, within 4 hours after receipt of the notification.
      • In the event of malfunctions within 8 hours of receipt of the notification.
      • For other defects within one business day after receipt of the notification.
    • Unless otherwise agreed, TIS will remedy any deficiencies within the following periods ( "Elimination Periods"):
  • Preventive defects within 2 business days after receipt of the notification.
  • Operational defects within 5 working days after receipt of the notification.
  • Other defects within 10 business days after receipt of the notification, but at the latest with the next program version of the software.
    • If it is foreseeable that a defect can not be remedied within the periods defined above, TIS will provide a workaround ("workaround") within the time limits specified therein.
    • Precondition for the beginning of the respective times is that the customer
      • uses the ticket system provided by TIS,
      • uses the provided service telephone number to display the respective defect also by telephone and
      • that the hardware on which the deficient software is located has been placed in an environment that TIS can access and update. For this purpose,
        • that the terminals are placed in a WLAN environment accessible to TIS or
        • hat the end users must participate, with the responsibility for the customer's contribution to the customer's contribution.

 

 

  • Rights of use
    • The obligation for the delivery of patches includes the obligation to grant usage rights in the nature and extent, as they exist for the software listed in the offer, unless otherwise agreed.
    • The customer shall notify TIS about changes of the rights of use and - if necessary - changes in the editing rights of third parties.

 

  • Compensation
    • A lump-sum compensation listed in the offer, is the pay for all agreed services, unless otherwise specified in the contract.
    • The monthly fee is calculated according to the proposed scope of users.
    • An compensation for expenses listed in the offer, is the pay for the time spent on care services, unless otherwise agreed.
    • Cost of materials has to be paid separately.
    • Periods of waiting of TIS, responsible by the customer, are paid as working hours.
    • Travel time, travel costs, charges and standby-fees are paid as specified in the offer.
    • The obligation to pay the flat fee will begin with delivery of the product.
    • The lump sum compensation is payable calendar quarterly in advance.
    • TIS is entitled under the general regulations to require the compensation, TIS requires for new contracts according to the price list.
    • TIS is required to pass on cuts without prior notice.

 

  • Legal Consequences for Breach of Maintenance Services
    • If the Maintenance Service is not provided under the contract and TIS is responsible for this, TIS is committed to provide the maintenance service at no extra cost to the customer within a reasonable period of time in accordance with the contract.
    • An immediate reprimand of the customer is required within 1 week after the latest knowledge.
    • If the fulfillment of the maintenance services fail in accordance with the contract because of reasons caused by TIS even within an appropriate extension set by the customer, the customer has the right to terminate the agreement for the affected software without notice.
    • Ifthe continuation of the contract is unacceptable for the customer due to thenonconforming fulfillment andupon expiryof the grace, takinginto account all thecircumstances of thecase and weighingtheinterests of both parties, the customer may terminatein whole orin part.
    • In the event of termination, TIS has the right to compensation for the service provided up to the effective date of termination. The compensation is not payable for those services for where the customer can proof within 3 weeks after the declaration of termination that they are not available to him and without interest.
    • The right of extraordinary termination for another important reason remains unaffected. TIS has in this case, the right to compensation for services provided up to the effective date of termination. The compensation is not payable for those services for where the customer can proof within 3 weeks after the declaration of termination that they are without interest.
    • If an available patch is not delivered according to contract within 4 days of disorder and TIS is responsible for this, TIS provides lump-compensation for damages from the 5th The precondition is that the software can not be used as intended in case of the error for which the patch was intended.
    • With lump-sum compensation, the amounts of compensation for damages is 5/30 of the monthly flat fee for the software for which the patch is determined. The obligation to pay for the compensation for damages shall be limited to 100 calendar days.
    • In case of compensation for expenses the amount of compensation for damages should be 0.4%, maximum 8% of the current contract value. If there is a functional relationship between the faulty software and another software in the contract and this software can not be used, too, the compensation for defects will be calculated from the monthly payable care compensation for the faulty and the other software. The precondition is that the functional relationship is specified in the offer.
    • If the customer enforces a compensation for defect, it remains by TIS to prove that no or only minor damage has occurred.

 

  1. Hosting services

 

  • performance obligations
    • TISguarantees an availability ofthe serverof 99% annual average. This does not includetimes when a serveris not reachable dueto technical or otherproblems that can notbe influencedbyTIS(force majeure, third party, etc.). TIScanrestrict access tothe services ifthedemandfor network security, the maintenance of networkintegrity, especiallythe avoidance of seriousdisturbancesof thenetwork, softwareor stored data requires it.
    • The customer has noright to havethe same IPaddress fortheentirecontract period.
    • If TIS is in default with service,the customer isonlyentitledto cancel the contractifTISdoes not meet areasonable grace periodset by the customer. Thedeadline must bein writing. The writtenformcanbereplacedby electronic form, if the customeradds hisnameto theDeclarationand providesthe electronic documentwitha qualified electronicsignature inthe Signature Act.Thegrace periodmust beat least three

 

  • Liability
    • TIS is liable fordamagesunderthe general provisionsof theseterms and conditions.
    • In thescope of theTelecommunications Customer Protection Ordinance(TKV), the liability provisions of §7 paragraph 2TKV are unaffected in anycase.

 

  1. Services by TIS within manufacturer hardware-service
    • TISprovides servicesfor the processing ofthe device manufacturerofferedhardware servicein accordance withthe service specifications.
    • TISreceives thedefective devices, checks for the presenceof a hardware failureand directs thedeviceon to themanufacturer. After therepair by the manufacturerTISinstallsthe latest software, if necessary, and returnsthedeviceto the customer.
    • The rules for other services apply in addition.

 

 

  1. Other services
    • Kind and size
      • TISprovidesother serviceson the offered terms.
      • The customer bears theresponsibility for the project and the success.
      • Properdata backupis up to thecustomer.
      • Services in the meaning of a contract to produce a workarenotincluded in the offer.
      • TISprovidesits services atthecurrent stateof the art andby qualified staff toprovide the service.

 

  • Collaboration between TIS and the customer
    • Contact persones are only the mentioned contact persons.
    • The customerwill submitrequests for theservice to the named contact person an does not give any instructions to other persons employed by TIS.
    • The persons appointed by TISdo not enterany employmentrelationship with thecustomer, even ifthey provide serviceson its premises.

 

  • Exchange of persons
    • If a person is replaced by another person and a training is required, this is at the expenseofTIS. When choosing,TISwilltake care of theinterestsof the customer.
    • The Customer mayrequest thereplacementofa person with a ground to perform the contractdemand, if the personithas failedrepeatedlyand seriously violatecontractualobligations. Thecosts associated with thereplacement costsare charged to thecustomer.

 

  • Rights embodied in the service results
    • TISgrants the Customera nonexclusive,temporary, revocable, non-transferable right to use theservices providedunder the offerto useembodiedservice results,unless this isthe purpose andapplication rangeof the offer.
    • These rightsincludethe agreedinterim results, training materials and tools.
    • Deviationsfrom these terms andregulations requirethe agreement.

 

  • Participation by the Customer
    • The customerwillassistin the provisionofTISservices
    • Hewillmake the complete and necessaryinformation anddocuments available in atimely manner.Any furtherparticipationmust be agreed separately.

 

  • Compensation
    • A compensation forexpenseslistedin the offer, is the pay for the amount of timeof the services, unless otherwise
    • Material costswill be paidseparately.
    • Periodsofwaiting caused by the customerare paidas working hours.
    • TIScreatesmonthly bills afterwards, unless otherwise
    • A compensationforexpensesisdue upon receiptof a verifiablebill, unless anotherformof service reportisThe performance recordshall alsobe approved ifand when the customerdoes notsubmitted any objections within7 calendardaysafterreceipt ofobjections.
    • Afixed priceofferedin the offer, is the pay for allcontracted services, unless otherwiseAfixed price is due after the complete renderingof the service, unless otherwise agreed.Prerequisiteforthetravel times.
    • Travelcostsandincidental expensesare reimbursedin accordance with theagreements.

 

  • Performance quality disturbance
    • If the service is not provided under the contract or is faulty and TIS is responsible, TIS is obliged to provide the services according to the contract at no additional cost to the customer within a reasonable time. A period is appropriate when it is measured at least 3 weeks.
    • The prerequisite is a reprimand of the customer, which must occur immediately, within 1 week after the latest knowledge.
    • If the offered Service fails complete or in major parts for reasons caused by TIS within an appropriate extension explicitly set by the customer, the customer is entitled to terminate the contract.
    • In this case, TIS has the right to compensation for the service provided up to the effective date of termination.
    • This compensation is not payable for those services where the customer can proof within 3 weeks after termination of the declaration that they are not available to him or without interest.
    • The right of extraordinary termination for good cause remains unaffected.
    • Further claims by the customer due to performance quality problems are excluded.
    • The limitations of liability shall not apply to intent or gross negligence and not for the injury to life, limb or health or for claims under the Product Liability Act, or if guarantees are concerned. The liability for breach of duties, which makes the proper execution of the contract in the first place and may rely on their compliance with the customer, shall also be unaffected. The same applies to breaches of TIS agents.

 

  • Changes in the service
    • The customer can demand a change of the service after the conclusion of contract as part of the performance of TIS for payment, unless this is unreasonable for TIS.
    • The amendment process must be documented, unless otherwise agreed.
    • TIS has to notify the customer within 15 days whether the change in demand for them is not reasonable or not feasible.
    • The amendment request is reasonable and practicable, TIS notifies, whether a comprehensive examination is required or not.
    • If an extensive review of the request for change is required, TIS has to simultaneously submit a corresponding test range offer with information about the compensation.
    • The customer will either accept or reject the testing offer, within 10 days.
    • If an extensive review of the requested change is not required, TIS has to present either a realization offer of quoting performance period, scheduled appointments and effects to make the payment or agree to carry out the proposed changes.
    • The customer will accept offer of TIS within the offer validity period or reject it.
    • Agreed changes to services must be documented by appropriate binding adjustments of the offer.
    • The customer and TIS may agree that the services affected by the change request will be suspended until the necessary adjustment of the contractual agreements. If the necessary adjustments of the agreements were not reached within the offered validity period of offer realization, the work shall proceed on the basis of the contract. The performance period shall be extended by the number of working days that were a result of the request for change or review of the request for change, the work stopped. TIS may require a compensation expense or an appropriate increase of the agreed fixed price for the duration of the interruption, except that employee of TIS could be otherwise used or malicious use has failed in the time of the interruption.

 

  1. Transfer of hardware

 

  • Temporally unlimited transfer of hardware (purchase)
    • The nature and extent of the service
      • TISprovidesproducts according to the offer.
      • The installationandintegrationof the hardware inthesystem environment ofthe customeris in the responsibility of the customer, unless otherwise agreed.
      • The hardware canbe suppliedwith documentationin German orinEnglish andin printed orprintable form, unless otherwise
      • The customerisobligedto dispose thehardwarelistedin the contractor recover.The customerwill disposethe packaging.
      • Properdatabackup, in case of their need, is up to the customer.

 

  • Compensation
    • Thetotalprice of the individual service “purchase of hardware” shown in the offer is the compensation for all contractualservicespurchase, unless otherwise
    • Thefeeisdue immediatelyafter deliveredorprovided.
    • Ifpartial services are present theseconditionsshall apply accordingly.

 

  • Liability for defects, defects liability period
    • If the obligation of TIS for corrective action is not excluded by contract, the following applies:
      • The obligation of TIS for corrective action relates to the most recent, adopted version of the Hardware by the customer.
      • TIS can correct the defect at its option, by removal or replacement. Corrective action includes the delivery of a printed or printable instruction for the correct documentation, if necessary.
    • If TIS does not includes the corrective action within a reasonable time limit, the customer may set a deadline. If the repair or replacement does not take place within the time period or if it failed for any other reason than the customer can demand a reasonable reduction in price.
    • If TIS is responsible for the deficiency, the customer has the right to demand compensation for defects, if the legal requirements are present.
      • If there is no date for the transfer period provided in the contract, the claim for compensation for defects is limited to two times the monthly compensation for the affected product.
      • If there is a date provided for the end of the transfer period, the claim for compensation for defects is limited to 8% of the total compensation for the affected product.
      • Customer claims for compensation of lost profits are excluded.
      • Liability limits do not apply if damage is affected from the loss of life, limb or health or claims under the Product Liability Act or guarantees are concerned. The liability for breach of duties remains unaffected, which makes the proper execution of the contract in the first place and may rely on their compliance with the customer. The same applies to breaches of TIS agents.
    • If liability is not excluded or as it turns out by law, not excludable, liability is limited to foreseeable, typical damage.
    • The warranty period is 12 months after delivery, unless otherwise agreed. The warranty period for defects in subsequent performance also ends with the expiry of the warranty period referred to in the preceding sentence.

 

  • Temporary provision of hardware (rental)
    • The nature and extent
      • TIS provides customers the hardware in the contract agreed scope and time period.
      • The installationandintegrationof the hardware inthesystem environment ofthe customeris in the responsibility of the customer, unless otherwise agreed.
      • The hardware canbe suppliedwith documentationin German orinEnglish andin printed orprintable form, unless otherwise
      • Proper data backup is, in case of their need, up to the customer.

 

  • Compensation
    • The agreed fee is payable monthly, payable by the 3rd Business day of the month (payment received by TIS).

 

  • Rights of the customers in case of defects of the rented hardware.
    • Strict liability for initial defects is excluded.
    • TIS can fix deficiencies, at its option by removing, bypassing or replacement. Corrective action includes the delivery of a printed or printable instruction for the correct documentation, if necessary.
    • An extraordinary termination of the customer for good cause for failure to grant the contractual use is only permitted if TIS has been given a reasonable opportunity to remedy the defect and latter failed.
    • A failure of the remedial measures can only be assumed, if it is impossible, if it is denied or unreasonably delayed, if there are doubts about the prospects of success ,if the customer has written set a reasonable deadline for eliminating to TIS with reference to the turnover intentions unsuccessful at spreading, or when there is any other unreasonable due for the customer. A time limit is appropriate if it is at least 3 weeks.
    • The rights of the customer due to defects are excluded, unless he changes the products and services or allow them to be changed without the prior consent of TIS, unless the customer proves that the changes will not unduly impact on TIS for analysis and disposal of the defects. The rights of the customer due to defects remain unaffected if the customer is entitled to carry out changes, especially if TIS is in delay with the removal or the immediate removal of the defect is necessary to preserve or restore the stock of the leased property. The substitute performance must be carried out professionally and clearly documented.
    • An obligation to pay compensation for defects of TIS occurs only if the customer has set TIS a reasonable deadline to remedy the situation, and this period has elapsed.

 

  1. Maintenance of hardware
    • The nature and extent
      • TISprovidesmaintenanceservicesforcontract units, as agreed in the offer andbypersonnel who arequalified toperform the agreedcare services.
      • The rectification offaults orfailurescaused byacts of violenceby third parties, force majeure, equipment not maintained by the customer or caused by impropertreatment(non-compliance with instructionsand contrary to ordinary use) by the Customer or itsemployees, is not owedbyTISas partof this contract.
      • TISreserves the right to put not contractuallyowed services by the customerbutretrievedandunused servicesintoaccountat the applicablerates of payment.

 

  • Customer Participation
    • The customerwillassist TIS in the provisionofcontractualserviceperformanceto a reasonable extent. The customerisobliged to describeerrorsand problemsas accurately aspossible. The customer provides the necessaryinformation anddocumentationcomplete and in a timely manner. The Contacts oftheparties are only the in the contract named contact persons.
    • The customer has to provide the indication, with information useful for their detection, if no other form of defect advice is agreed.
    • He has to meet within reason, the measures which facilitate the identification of defects and their causes.
    • As far asremote maintenanceispossibleanduseful, the customerwillallowaccessto the system.
    • Proper data backup is up to the customer.

 

  • Acceptance
    • TheCustomer acknowledgesTIS each individual repairwork performed on the basisof the service contractby signing the work evidencepresented byTIS Hewill test the providedrepair workhereinafterimmediately andexplainthe decrease, if theservice was renderedproperly orthere areno significantshortcomings. The customer will give notice of every defect without delay.
    • If the customer has not explained the acceptance within a periodof7 workingdaysafterproviding of the requested service, andmadenodefectclaims, thework is considered accepted. Tis informs the customerof the importanceof such

 

  • Compensation
    • A lump-sum compensation listed in the offer, is the pay for all agreed services, unless otherwise specified in the contract.
    • The monthly fee is calculated according to the proposed scope of users.
    • An compensation for expenses listed in the offer, is the pay for the time spent on care services, unless otherwise agreed.
    • Cost of materials has to be paid separately.
    • Periods of waiting of TIS, responsible by the customer, are paid as working hours.
    • Travel time, travel costs, charges and standby-fees are paid as specified in the offer.
    • The obligation to pay the flat fee will begin with delivery of the product.
    • The lump sum compensation is payable calendar quarterly in advance.
    • TIS is entitled under the general regulations to require the compensation, TIS requires for new contracts according to the price list.
    • TIS is required to pass on cuts without prior notice.

 

  • Legal Consequences for Breach of Maintenance Services
    • If the Maintenance Service is not provided under the contract and TIS is responsible for this, TIS is committed to provide the maintenance service at no extra cost to the customer within a reasonable period of time in accordance with the contract.
    • An immediate reprimand of the customer is required within 1 week after the latest knowledge.
    • If the fulfillment of the maintenance services fail in accordance with the contract because of reasons caused by TIS even within an appropriate extension set by the customer, the customer has the right to terminate the agreement for the affected software without notice.
    • Ifthe continuation of the contract is unacceptable for the customer due to thenonconforming fulfillment andupon expiryof the grace, takinginto account all thecircumstances of thecase and weighingtheinterests of both parties, the customer may terminatein whole orin part.
    • In the event of termination, TIS has the right to compensation for the service provided up to the effective date of termination. The compensation is not payable for those services for where the customer can proof within 3 weeks after the declaration of termination that they are not available to him and without interest.
    • The right of extraordinary termination for another important reason remains unaffected. TIS has in this case, the right to compensation for services provided up to the effective date of termination. The compensation is not payable for those services for where the customer can proof within 3 weeks after the declaration of termination that they are without interest.
    • If a service is not furnished according to contract within the agreed deadline plus 4 days of disorder and TIS is responsible for this, TIS provides lump-compensation for damages from the 5th The precondition is that the software can not be used as intended in case of the error for which the patch was intended.
    • Unless TIS makes a workaround available, the performance is not deficient; In this context, TIS is entitled to make changes to the configuration of the equipment, if and insofar the operability of the individual equipment or the total equipment is not affected.
    • With lump-sum compensation, the amounts of compensation for damages is 5/30 of the monthly flat fee for the hardware for which the service is determined. The obligation to pay for the compensation for damages shall be limited to 100 calendar days.
    • In case of compensation for expenses the amount of compensation for damages should be 0.4%, maximum 8% of the current contract value. If there is a functional relationship between the faulty hardware and another hardware in the contract and this hardware can not be used, too, the compensation for defects will be calculated from the monthly payable care compensation for the faulty and the other hardware. The precondition is that the functional relationship is specified in the offer.
    • If the customer enforces a compensation for defect, it remains by TIS to prove that no or only minor damage has occurred.

 

  • Servicelevelagreements
    • The customer can agree with TIS, within which time the services are to be provided.
    • Unless otherwise agreed, TIS will react to the notification of a defect by the Customer within the following time limits ( "Response Times"):
      • In the event of preventing the operatin, within 4 hours after receipt of the notification.
      • In the event of malfunctions within 8 hours of receipt of the notification.
      • For other defects within one business day after receipt of the notification.
    • Unless otherwise agreed, TIS will remedy any deficiencies within the following periods ( "Elimination Periods"):
  • Preventive defects within 2 business days after receipt of the notification.
  • Operational defects within 5 working days after receipt of the notification.
  • Other defects within 10 business days after receipt of the notification, but at the latest with the next program version of the software.
    • If it is foreseeable that a defect can not be remedied within the periods defined above, TIS will provide a workaround ("workaround") within the time limits specified therein.
    • Precondition for the beginning of the respective times is that the customer
      • uses the ticket system provided by TIS,
      • uses the provided service telephone number to display the respective defect also by telephone and
      • that the hardware has been placed in an environment that TIS can access.

 

 

IV Definitions

 

Acceptance

Acceptance in accordance with § 640 BGB.

 

Part Payment

Particial Payment of the agreed fee before before maturity. A claim for part payments may be agreed in EVB-IT system contracts.

 

Adaptation Programming

see Customizing

 

Installation of hardware

Unpacking and installing of the hardware, connecting to the grid at the customer and testing the device.

 

Decommissioning

A decommissioning occurs when the contractual hardware is not installed by Customer or its agents or operated by third parties for him.

 

User supplied system components

The user supplied system components form the entire system with the components developed or delivered by TIS. The user supplied system components can both parts of the customers existing system environment at the time of the contract conclusion as well as  later occurring components of the customer to perform its services as agreed.

 

Standby time

Times when TIS receives (error-) messages (usually the business hours of TIS).

 

Serviceability

The system or the partial delivery is contractual available to  the customer. As part of system services, the serviceability refers only to the agreed system components if the system service is not agreed for the whole system.

 

CISG

United Nations Convention on Contracts for the International Sale of Goods

 

Customizing

Customizing of software or system components to the agreed requirements for system supply or maintainance of operational readiness (eg, configuration of system components to achieve operational readiness).

 

Data protection, proper

Backup includes all technical and / or organizational measures to ensure the availability, integrity and consistency of the systems, including data stored on these systems and data used for processing purposes, programs and procedures. Proper data backup means that the measures taken permit depending on the data sensitivity immediate or short-term restoration of the status of systems, data, programs or procedures to recognized impairment of the availability, integrity and consistency due to a damage-acting event, the measures include at least the production and testing of the reconstruction capability of copies of software, data and procedures in defined cycles and generations.

 

Data loss

Loss (deletion) or loss of integrity and consistency of data.

 

Operational environment

Hardware and system software (including communication services), where the standard software is used at the customer, and their locations.

 

Remote maintenance

Services of maintenance of software and hardware with no local presence (eg, remote data transmission).

 

Warranty period

That means the statute of limitations in terms of the legal provisions.

 

Hardware

Devices or machines, including their optional add-on devices, according to manufacturer's specifications, which are listed in the contract, such equipment or machinery are specified by their manufacturers generally with part numbers (type designation may be supplemented by model name).

 

Custom Software

Software programs, program modules, tools, etc. that were created to fulfill a contract for the needs of clients of TIS including the related documentation. This includes adaptations of standard or custom software on the source-level, but not customizing.

 

Installation

All necessary measures for the introduction of the software in the agreed system environment and to achieve the agreed executability of the Software, including all necessary checks and controls to create the overall system and to achieve operational readiness.

 

Maintenance

Measures for the preservation and restoration of the target state, and to identify and assess the actual situation. The measures include:

Inspection: measures to identify and assess the actual condition,

Repair: Measures to restore the required condition,

Maintenance: Measures to maintain the required condition.

 

Integration

Integration of system components in the agreed system environment or system components and materials provided to each other.

 

Key-User

Employee of a company which launches a new software. The Key-User is specialized in the software, supervises it and trains colleagues.

 

Configuration

Parameterization of function variables and control data of system components to the agreed system environment to build the entire system and to achieve operational readiness.

 

Copying or barrier of use

Measures to restrict the copiability and / or possible use of a system component

 

Delivery

Generic term of system delivery and partial deliveries

 

Cost of materials

Expenses of TIS for the use and consumption of raw materials, supplies and other products as part of service delivery.

 

Minimum contract period

The period during which a notice of dismissal is excluded.

 

Additional costs

Expenses of TIS, which are necessary for the provision of goods and services. They are not included in the agreed remuneration and are neither travel nor material costs

 

Rights of use

Rights granted to licensee by the licenser.

 

Use of hardware, intended

A proper use of hardware is given in compliance with the particular hardware of the environmental conditions, guidelines for installation, operating and care instructions, specified by TIS.

 

Parameterization

The customization of software, most standard software on the users requirements by setting the attributes within the software.

 

Patch

Correct a deficiency and / or a disruption in the software

 

Patch

Generic term for bypass, patch, update, upgrade and release / version, including any related documentation.

 

Object code

Interim results of a compiler and source code compilation process of a program.

 

Lump sum fixed price

Includes the construction price, the bid price for system services, the bid price for the further development and adaptation of the overall system as well as the bid price for other services, in each case if a fixed price was agreed.

 

Program status

Generic term for patch, update, upgrade and release / version.

 

Source code

Code of a program in the version of the programming language.

 

Reaction time

Period to commence within TIS has to begin with the fault or defect rectification work. The period begins with receipt of the fault or defect report within the agreed service hours and will run during the agreed service hours.

 

Reaction period

Period within TIS has to begin the repair work. It begins with the receipt of fault report within the agreed service hours and takes place only during the agreed service hours.

 

Traveling expenses

Expenses of TIS for arrival and departure to the place of the agreed services, if not equal to the service office, which normally are not part of the cost of manpower. Expenses may include: travel expenses, overnight accommodation allowance, additional travel costs, etc.

 

Release / Version

New stage of development of standard software, which differs considerably from the previous release or version of the function and / or range of data (such as 4.5.7 5.0.0 Æ)

 

SaaS

Software as a Service = rent within the meaning of § 535 BGB of software

 

Defect as to quality

Definition of "defect as to quality" in § 434 BGB.

 

Compensation for damages instead of service

Instead of compensation for damages instead of performance a replacement for expenses can be d is required under § 284 BGB.

 

Damage function

Unwanted function by the user, which can endanger the availability of data, resources or services, data confidentiality or integrity of data inadvertently or intentionally.

 

Rights

Intellectual property rights or copyrights.

 

Damaging software

Software with not agreed function, which at least has the purpose to compromise the integrity of data or to interfere the availability of data, resources or services, the confidentiality of data or, for example Viruses, worms, Trojan horses e.g.

 

Service times

Times within which the customer is entitled to contractually agreed services by TIS.

 

Software

Generic term for standard software and custom software.

 

Software installation (installation)

Induction of software performance on a given hardware according to an agreed procedure.

 

Software integration (integration)

The coupling of different software systems (standard software or custom software) into an overall system between previously separate software systems, where data and information are exchanged active, process-oriented and automated.

 

Standard Software

Software programs, program modules, tools, etc. that have been developed for the needs of a majority of consumers in the market and not specifically for the clients of TIS including the related documentation.

 

Disturbance day

Everyone on the course of the reaction period following calendar day within the agreed service hours, at which the hardware and / or the software cannot be used as intended.

 

System component

Part of the system, e.g. Hardware or standard software. This includes on the basis of the contract surrendered new program patches.

 

System environment

Technical, geographic and professional organizational environment in which the deliverable system is integrated.

 

Rights

Intellectual property rights, copyrights and neighboring rights.

 

Partial delivery

Delivery of a part of the system.

 

Teleservice

Services in exercise of technical facilities for remote communication from a location outside of the location of the system.

 

Teleservice Teleservice performance

Care services that are provided by means of agreed communication facilities and appropriate communication services from a remote location and where the customer holds the necessary infrastructure (cables, modems).

 

Teleservice Agreement

The Teleservice Agreement describes the technical and organizational arrangements for carrying out maintenance work by telecommunication services across networks.

 

Textual form

Textual form for the purposes of these General Terms and Conditions, is the statement of intent in a deed or in another, for the permanent reproduction in writing appropriate manner, that makes the name of the person making the statement and the conclusion of the statement by signature or otherwise identifiable.

 

Interim solution

A solution that helps bridge the cancellation of the customers hardware and / or software to the repair of TIS. The bridge gives the customer the ability to achieve the same functional results as with the work affected by the disordered hardware.

 

Bypass

Temporary bridging of a defect in the standard software without interfering with the code (source or executable code).

 

Workaround

Temporary bridging of a defect and / or a disturbance in the standard software.

 

Hardware transfer

Shift from hardware to a new location.

 

Update

Bundling of multiple defects fixes and / or fault fixes and minor functional improvements if necessary and / or modification of the standard software (eg Æ 4.1.3 4.1.4).

 

Upgrade

Bundling of multiple defects fixes and / or fault fixes and more functional than minor enhancements and / or modification of the standard software (eg 4.1.3. Æ 4.2.0).

 

Version / Release

see Release / Version.

 

Contract completion date

Date, TIS has done everything agreed, that  the customer can explain the decrease. This means in particular that the total system is already on the date of declaration of operational readiness and essentially free of defects, providing that the customer has the time to do the functional test by the contract completion date.

 

Delay-Day

Each calendar day, with which TIS is exceeded in default after the time limit.

 

On-site Service

Maintenance services that are provided at the location of the standard software, if not agreed upon a different point of delivery.

 

Pre-installation

Pre-installation of the (standard) software on a given hardware prior to delivery.

 

Removable media

A media that can be changed according to manufacturer's specification by the user, this  includes for example Removable disks, CDs, tape cassettes / magnetic volumes, USB sticks, SD cards.

 

Tool

Tools for the development, management and maintenance of software.

 

Recovery time

Period within which TIS has to successfully complete the problem or defect rectification work. The period begins with receipt of the fault or faults message and runs only during the agreed service hours.

 

Additional delivery

Further, after the conclusion of contract agreed delivery (eg call option other hardware).

Effective 1/1/2019

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