Terms & Conditions for Provision of Database Listing Services
1.1 In these Conditions:
"Confidential Information" means proprietary secret or confidential commercial financial or technical information and other information whatsoever in whatever medium whether disclosed orally or in writing together with all reproductions in whatsoever form or medium and any part or parts thereof;
"HMS" means HMS Service GmbH, Hittendahl 2, 21447 Handorf, Germany
"Contract" means the Contract between the Client and HMS consisting of the Client’s Order, these Terms and any other documents (or parts thereof) specified in the Order
"Force Majeure" any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Contract;
"the Fee" part or all the fees payable by Client to HMS for the Services as set out in the Order
"Order" means a properly authorised order for services issued by the Client to HMS authorising HMS to proceed with the provision of Services, the Fee payable and any terms applying to the provision of Services which are additional to these terms and conditions;
"Client" means the person or organisation ordering the Services
2.1 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of HMS and the Client.
3. GENERAL DUTIES OF HMS
3.1 HMS shall provide the Services to the Client in a professional manner with due care and diligence.
3.2 HMS shall not be restricted in providing similar services to third parties.
4. PRICE OF SERVICES
4.1 The price of the Services shall be as stated on the Order or on fund-services.biz / fund-service.net and shall be:
4.1.1 exclusive of any applicable value added tax which shall be payable by the Client (subject to receipt of a VAT invoice) at the rate prevailing at the relevant point; and
4.1.2 exclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of any Materials to HMS.
4.1.3 inclusive of all databases mutually agreed upon. Services provided for additional databases (at the request of the client) will be charged separatly at the price stated on the Order or on fund-services.biz.
5.1 Unless otherwise agreed in writing by HMS, payment of the Fee for the complete service period (Clause 13) together with any applicable Value Added Tax will be made by the Client in advance after receiving an invoice from HMS.
6.1 The Services shall be performed at HMS’s premises unless otherwise stipulated within the Schedule of Services and in either case during HMS’s usual business hours.
7.1 Any materials supplied to HMS for use in the provision of the Services shall be delivered to HMS at the Client’s expense and shall remain the property of the Client.
7.2 The Client warrants that the materials it supplies in accordance with Clause 7.1 above are fit for purpose and are free of any contaminants or other harmful properties unless so advised. If the materials delivered to HMS prove faulty or otherwise unfit for purpose, HMS shall notify the Client and the Client shall supply alternative Materials. The Client warrants that all material or information supplied is true
7.3 On completion of the Services all materials supplied by the Client shall be returned to the Client at the Client’s request and expense unless the Client authorises otherwise.
8.1 Subject to the provisions of Clause 9, HMS agrees to indemnify the Client against all actions, claims, proceedings, costs, expenses, loss or damage of whatsoever kind (including legal fees) sustained by the Client in respect of or arising out of any breach of HMS’s obligations pursuant to this Contract.
8.2 Subject to the provisions of Clause 9, the Client agrees to indemnify HMS against all actions, claims, proceedings, costs, expenses, loss or damage of whatsoever kind (including legal fees) sustained by HMS in respect of or arising out of any breach of client’s obligations pursuant to this Contract.
9. LIMITATION OF LIABILITY
9.1 HMS shall not be liable to the Client in contract, tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Client may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of this Contract by HMS its servants or agents, in a sum which is greater than the total price of the Fee.
9.2 HMS shall not be liable to the Client in contract, tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Client may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of this Contract by HMS, its servants or agents.
9.3 The Client shall not be liable to HMS in contract, tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which HMS may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of this Contract by the Client its servants or agents, in a sum which is greater than the total price of the Fee.
9.4 The Client shall not be liable HMS in contract, tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which HMS may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of this Contract by the Client, its servants or agents.
9.5 Nothing in this Contract shall operate so as to exclude:
9.6 Either party’s non-excludable liability in respect of death or personal injury caused by its negligence or the negligence of its servants or agents;
9.7 The application of Section 12 of the Sale of Goods Act 1979; or
9.8 Liability for fraudulent misrepresentation.
10. FORCE MAJEURE
10.1 If either party is affected by Force Majeure it shall forthwith inform the other party in writing of the matters constituting the Force Majeure and shall keep the party fully informed of the continuance and of any change of circumstances whilst such Force Majeure continues
10.2 If the Force Majeure continues for longer than 3 months either party may at any time whilst such Force Majeure continues by notice in writing to the other terminate this Contract.
10.3 Save as provided for in this Clause Force Majeure shall not entitle either party to terminate this Contract and neither party shall be in breach of this Contract, nor otherwise liable to the other party, by reason of any delay in performance or non-performance of any of its obligations due to Force Majeure.
11.1 Notwithstanding any other provision of the Contract or these Terms and Conditions, either party shall be entitled by written notice to the other to terminate the Contract forthwith if the other party (the Default Party):
11.1.1 commits a material breach of any provision of the Contract which it does not remedy (where remedy is possible) within a period of 30 days of receipt of a written notice from the non-default party specifying the breach and requiring remedy.
12. CONSEQUENCES OF TERMINATION
12.1 The Client shall pay HMS the Fee properly due to HMS in respect of Services delivered up to and including the date of termination.
12.2 Termination shall not affect any remedies of either party which have accrued prior to the date of termination.
12.3 If HMS terminates the contract according to Clause 11.1.1 any Fees paid in advance are non-refundable
13. SERVICE PERIOD
13.1 The Client agrees that HMS will provide the Services for a minimum period of one year (12 months) starting from the receipt of the order form.
13.2 If the Contract is not terminated 30 days prior to the end of the first Service Period by email, fax or letter, it automatically renews for another period of one year (12 months).
14.1 HMS cannot guarantee that a fund gets listed on every database mentioned on our website, due to individual requirements set forth by the database providers. HMS has no influence over these requirements.
14.2 Reduced Fees
14.2.1 Included in the monthly fee is a listing on all databases agreed upon, including those where the client has already been listed before ordering our service. If a fund or investment program cannot be listed on some of those databases, HMS provides, in consultation with the Client, a listing in other suitable databases. If HMS is not liable for rejected listings and no agreement on alternative database listings can be made, fees will not be reduced or reimbursed. It is in the sole discretion of HMS if fees will be refunded or reimbursed.
14.3 HMS reserves the right to reject any order.
15. CONFIDENTIAL INFORMATION
15.1 The parties agree that both during and after the termination of the Contract they will not, whether by themselves, their employees or agents or otherwise (except in the proper course of the Contract) use, copy, divulge or communicate to any person, firm, company or organisation any Confidential Information of the other party.
15.2 The obligations of confidentiality in this Clause 14 shall not extend to any matter which is in or becomes part of the public domain otherwise than by reason of a breach of the obligations of confidentiality in the Contract or these Terms and Conditions or which it can show was in its written records prior to the date of disclosure of the same by HMS or which it receives from a third party independently entitled to disclose it.
16. LAW AND JURISDICTION
16.1 The Contract shall be governed in accordance with the laws of Germany.
17.1 All notices under this Agreement shall be in writing and may be served by post or facsimile transmission addressed to the other party at the addresses given in the Order and/or offer, or at such other address as a party shall from time to time by notice in writing give to the other party for the purpose of service of notices under this Agreement, and every such notice shall be deemed to have been served if served by post, at the expiration of two days after posting; or if sent by facsimile transmission, at ten hundred hours local time on the next normal business day of the recipient following despatch and in proving service it shall be sufficient to show in the case of a letter, that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission, a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and Bank Holidays shall not in any event be treated as days on which service is effected, and service shall be deemed to take place on the next normal business day of the recipient.
17.2 Any failure or delay on the part of either party to exercise any of its rights under the Contract or these Terms shall not operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by either party of any breach by the other party of any of its obligations under the Contract shall not affect the rights of that party in the event of any further or additional breach or breaches.
17.3 Headings are for ease of reference only and shall not affect the interpretation of the Contract.
17.4 The Contract shall not create or evidence, nor be deemed to create or evidence any agency, partnership or relationship of employer and employee between the Client and HMS.
17.5 The Contract and these Terms set out the entire agreement between the parties with respect to the subject matter of the Contract and supercedes all previous agreements and understandings between the parties with respect thereto and may not be modified except by an instrument in writing duly signed by the authorised representatives of the parties.
17.6 If any provision of the Contract or these Terms and Conditions is found to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Contract or these Terms and Conditions, which shall remain in full force and effect.
17.7 For the avoidance of doubt save as expressly provided herein nothing in the Contract shall confer on any third party any benefit or the right to enforce any provision of this Contract.
17.8 HMS reserves the right, at our sole discretion, to change, modify, add, or delete these Terms and Conditions at any time without further notice. When we change the Terms and Conditions, we will post the changes to this Terms and Conditions on this page and indicate the date that these alterations were applied, at the top of the page.
Terms and Conditions as of 09/2012