High attention has to be paid to the wording of software support agreements

Whether and when a software manufacturer is authorized to terminate his support for customized company software, as happened in the Fischer case, has to be put down in writing in a support agreement. The agreement should be form-like or in a pre-formulated standard version.

The stipulations of such an agreement only take effect, if they do not violate the general terms of doing business (paragraphs 305 to 310 of German Civil Code), writes lawyer lawer Dr. Gero Himmelsbach in the magazine Computer im Mittelstand. If the contracting parties have individually negotiated the support agreement, the general terms of doing business do not apply which means that the parties may also agree on particularly short contract periods or periods of notice.
In the agreement concluded by agency director Fischer the contracting parties had agreed the following: Both parties shall be allowed to terminate the contract on a three months notice at the end of whatever calendar year. In the Fischer case the software manufacturer had observed the agreed period of notice, because back in 2003 he had already announced not to continue with support services from January 1st of 2005. Nevertheless Fischer had not accepted the termination. He argued that support services would have to be delivered as long as the usual life cycle of the software had not come to an end.

The court having jurisdiction over this case saw it differently. It decided that the general terms of doing business do not provide for such an obligation. Furthermore the termination was not in breach of the principle of »bona fide«. Such a violation would have been the case, if by his termination the software manufacturer had intended to avoid his obligation to provide support. This means that if, actually, the software manufacturer is not interested at all in the support of the software but only in its sale, then the termination of a support agreement may possibly be void for a software which is still on the market. GERMAN