All our offers, orders, products and services – including future ones – (hereinafter referred to as “Services”) are provided subject exclusively to our Terms and Conditions (hereinafter referred to as “Terms”). The Terms form part of all contracts made with us; they apply even if not specifically referenced.
Our Terms only apply to companies [“Unternehmer”] (German Civil Code [BGB] § 14, § 310). Our Terms apply exclusively. The customer’s terms and conditions do not apply, even if we do not object to them separately. They do not become part of the contract even if the order is accepted or filled without reservation.
a) Our offers are non-binding unless expressly stated otherwise. We can accept the customer’s orders within 15 business days. A contract is not formed, even if the order is given verbally, until we confirm the order or start providing the Service, whichever comes first. Oral and phone agreements are only legally valid if we confirm them in writing.
b) The order confirmation exclusively governs the scope and subject matter of the Service. If the order confirmation contains changes to the customer’s purchase order, the customer is deemed to have consented to them if the customer unconditionally accepts the Service and does not object in writing within a reasonable period of time.
a) We provide services for our customer in accordance with BGB § 611 unless expressly stipulated otherwise in an individual contract. We reserve the right to rescind the contract if the customer is in default in accepting performance or delivery or if the customer violates his contractual cooperation obligations (e.g., failing to meet stipulated deadlines). We may claim damages in such cases.
b) All activities governed by this contract are performed during customary business hours (Mo – Fr, 9 am to 5 pm). The place of performance is our business premises unless otherwise agreed. Any Service deadlines that we may provide are only approximate unless we have expressly agreed to a fixed Service deadline. Service deadlines start running when we receive the order, or once all technical and commercial questions have been resolved, whichever comes last. If the Customer fails to discharge his own cooperation obligations on time, the Service deadlines will be extended accordingly.
Any obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not give grounds for any claims. We only undertake contractual guarantees [“Garantie”] that we have explicitly identified as such in writing.
c) If the customer changes or expands the order after the order has been confirmed, we are entitled to adjust prices and extend Service deadlines.
Unless otherwise agreed, we are not liable to provide instruction or advice. If we provide advice or technical information that is not included in the agreed-upon scope of Service, the advice or information will be provided without any liability whatsoever. We are only liable for willful misconduct and gross negligence with respect to training/advice that is provided free of charge.
While providing the Service, if we realize that the Service cannot be provided due to technical or process reliability constraints or that specific Service requirements have to be modified, we will notify the customer and suggest alternatives wherever possible (change request). We will provide the customer with a supplementary offer in this regard. The customer must notify us in writing whether he consents to the change; notification must be given without undue delay, but no later than within 10 business days of receiving the offer. Either party can rescind the contract if no agreement is reached. The customer must reimburse all the expenses that we have incurred up to that point. The customer is expressly prohibited from claiming damages as a result.
d) Force majeure events, government actions, and other circumstances for which we are not at fault – for example, strikes, operational upsets, inability to procure permits, difficulties in procuring materials, civil unrest, embargoes, travel warnings issued by the German Federal Foreign Office – that render our performance or that of our suppliers impracticable or impossible other than temporarily, exempt us from our obligation to perform for the duration of their effects. We are not liable for impossibility or delays due to such events. We may partially or completely withdraw from the agreement if we cannot be reasonably expected to perform for the reasons stated in this section; this does not entitle the customer to damages. In this case, the customer is exempted from his obligation to render counter-performance. The customer may rescind the contract after fixing an additional period of time for us to perform our obligations if he can no longer be reasonably expected to accept the delivery for the reasons stated in this section.
a) The customer will support us in performing the Service at his own expense by, without limitation, promptly and adequately providing the rooms needed to provide the Service (if provided at the customer’s premises) and the requisite tools and resources (including hardware and software access and permissions, remote access where appropriate, telecommunications, sites of use, intended number of users, information on the extent and structure of the required data, etc.). He will also answer any questions, cooperate on tests and review work results wherever necessary. Wherever possible, the customer will provide us with a test environment that is separate from the customer’s production system.
Among other things, the customer will give us the names of up to three appropriately qualified contacts with decision-making authority. The customer will keep us fully and extensively informed; in particular, he will spontaneously notify us in writing of any changes. We can rely on the completeness and accuracy of the customer’s information without verifying it ourselves and base our Services on this information.
b) The Customer is responsible for regularly – generally daily – backing up his data. In addition, the customer will back up his data immediately before and immediately after any change that we make to the computer system to avoid data loss.
c) If the customer fails to perform his cooperation obligations and this results in a delay, the customer will bear the resulting costs, even if a flat fee has been agreed on. In such a case, we are entitled to perform – or have performed – the action owed by the customer at the customer’s expense. This does not affect our statutory rights.
a) Our list prices apply, as they may change from time to time. Our prices are listed in EUR, but do not include any necessary incidental costs or statutory value-added tax.
Travel time is charged as working time. Our employees’ waiting time is charged as working time if the customer is responsible for the waiting time. We will also charge as working time any time that the customer has confirmed and thus blocked in our schedule, but then cancels or postpones with less than 5 days’ prior notice unless we are able to put our employees to work for other customers. If the customer causes an agreed-upon appointment to be postponed or delayed, he will have to refund any incurred travel expenses and booking, rebooking or cancellation charges.
b) Unless otherwise agreed, time and materials will be charged monthly in arrears.
Time spent preparing repair expense quotes / cost estimates is considered working time. The costs will be applied later if an order is placed. Please note that phone consultation time is considered working time.
If we agree on a budget with the customer, but discover that it is impossible to perform the work within the stipulated budget, we will notify the customer in the course of filling the order and make an agreement with him either to place an order above and beyond the original stipulated budget or to abandon the work and charge the costs incurred up to that point.
Unless otherwise agreed, invoices are due immediately without discounts. In determining timeliness, payment is deemed to be made when our account is credited. A cash discount may only be applied with our express prior written consent. A default in payment automatically voids any rebates, cash discounts and other incentives; interest amounting to 8 percentage points above the base interest rate (German Civil Code [BGB] § 288) will also become due.
The customer may only exercise a right of retention or a right of set-off if his claims against us are undisputed, upheld by final and absolute judgment or based on defects.
If the agreed Service deadline is more than four months away, we reserve the right to make reasonable adjustments to our prices with one month’s prior notice if cost reductions or increases result after the contract has been formed, including, but not limited to, reductions or increases resulting from collective bargaining agreements, changes in production costs, or changes in market prices for comparable products. We will provide evidence of the factors that led to the increase at the customer’s request. The customer can rescind the contract if the price rises more than 20 %.
c) Unless otherwise agreed, license prices are exclusive of additional services such as installation, implementation, introduction, training, maintenance, out-of-pocket expenses, travel costs, and other expenditures.
In the event of the sale of goods, we retain title to the Service until all payments owed under the business relationship have been received. The following applies during the retention of title:
– The Service remains our property. Goods are always processed or modified for us as the manufacturer, without us incurring any obligation thereby. If our ownership ceases to exist due to combination, the contracting parties now hereby agree that our resulting (co-)ownership of the unitary item will transfer to us in proportion to the pre-tax invoiced value. The customer holds our (co-owned) property in safe custody free of charge.
– The customer keeps the Service in good condition. The customer insures the Service for our benefit at the customer’s expense against theft, breakage, fire, water and other perils to the extent that the customer can be reasonably expected to do so. Proof of insurance must be presented on request.
– The customer has a revocable right to sell and process the Service in the ordinary course of business, provided he is not in default. The Service may not be pledged or assigned as security.
– The customer now hereby assigns to us, as security, claims arising from the resale of the Service, in lieu of the Service, or otherwise in respect of the Service (e.g. insurance, tort), including all ancillary rights, regardless of whether or not the Service is processed before it is resold. We hereby accept the assignment.
– The customer has a revocable right to collect the claims assigned to us in the customer’s own name and for our account. Our right to collect the claims ourselves remains unaffected thereby. We have the right of disclosure.
– If third parties attempt to attach the Service, including, but not limited to, by means of enforcement measures, the customer will inform the third party of our ownership interest and notify us forthwith. The customer will reimburse us for the costs of our intervention if we cannot recover the costs from third parties.
We may withdraw from the contract and require the customer to immediately restore the Service to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments or filing for bankruptcy (enforcement event). The customer has no right of retention in this case. This is without prejudice to claims for damages, including claims for compensation of lost profits. We can satisfy the debt owed by selling the repossessed Service by private contract.
We reserve the right to revoke the possible grant of usage rights to the customer if the customer is more than one month in default of payment.
a) If the customer is a merchant, he must carefully inspect the received Service without unreasonable delay upon completion / receipt. If no notice is given, the Service is deemed to be free from defects and in conformity with the purchase order, unless the defect in question was not detectable during the inspection. Notice of such defects must be given immediately after discovering them.
Any negotiation on our part about notices of defects does not constitute a waiver of the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects.
We provide our Services with the care of a prudent technical consultant or service provider based on the facts available at the time of Service provision. We apply customary standards of care and expertise. As such, we can only guarantee that our advice is accurate to the extent that we were given complete, adequate documents for assessing the scope and substance of the consulting services.
b) If a Service is defective and we are required to remedy the defect, we may satisfy this requirement by, at our option, repairing the defective Service or replacing it with a non-defective Service. The customer must give us the requisite time, opportunity and access to remedy the defect; otherwise, we are exempted from all liability for the resultant consequences.
The Customer is entitled to correct the defect himself, or to have it corrected by third parties, and to demand reimbursement of the necessary expenses from us, solely in emergencies that jeopardize operating safety, or to avert unreasonably severe damage or loss, in which case we must be notified immediately.
If the customer or a third party performs an improper repair without first giving us an opportunity to cure the defect, we assume no liability for the resultant consequences. This also applies to modifications made to the Service without our consent.
c) We have unlimited liability as provided for by statute for personal injuries, or in accordance with the German Product Liability Act [Produkthaftungsgesetz], or if we have guaranteed certain characteristics or have concealed defects with intent to deceive, or if losses are based on willful misconduct or are covered by our commercial general liability insurance.
We are also liable for grossly negligent breaches of duty as provided for by statute; only if the grossly negligent breach of duty pertains to an immaterial contractual obligation is our liability limited to the foreseeable losses which are typical for the contract.
In cases of slight negligence, we are liable for material contractual obligations, but only for three times our consulting fee. Material contractual obligations are obligations (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer does and may reasonably rely. We assume no liability whatsoever in any other case. This limitation does not apply if greater losses are covered by the existing commercial general liability insurance policy. The customer will notify us in writing if he could sustain a loss in excess of this liability limitation by using our Service. In this case, we will make the customer an offer to take out additional insurance to cover the additional risk.
The liability exclusions and limitations also apply to our directors, officers, legal representatives, employees, and other agents for whom we are vicariously liable.
d) The limitation period for claims for defects not based on a willful or grossly negligent act and/or liability claims for damages due to injuries to life, limb or health expires one year after the statutory commencement of the limitation period; no claims are allowed if the Service is used. The statutory limitation period applies in all other regards.
e) We are not liable for products or services provided by third parties who do not work for us as subcontractors or as agents for whom we are vicariously liable. We are only liable for losses caused by the customer’s employees if they were acting on our explicit instructions.
The customer shall maintain insurance in the scope customary for the customer’s industry and structure (e.g. business interruption insurance in particular).
The customer is liable for any unjustified notices of defects if the defect’s cause lies within the customer’s area of responsibility and the customer acted at least negligently in failing to recognize this fact. We will bill for any expenses not attributable to us under our liability for defects in accordance with our current list prices.
Contributory fault by the customer reduces our liability accordingly.
The customer is responsible, without limitation, for regularly backing up his data (also see § 4). We are not liable for any damages or losses arising from data loss due to negligence if the customer failed to ensure that the data could be restored with reasonable effort and cost from data material kept in machine-readable form. In all other regards, liability is limited to the typical restoration costs that would have been incurred if daily data backups had been performed or double the relevant order value, whichever is less, and no more than twice this amount per calendar year. We are only liable for losses caused by the customer’s employees if they were acting on our instructions.
f) Any further claims or claims not governed by these Terms that the customer may have due to a defect are excluded.
We maintain commercial general liability insurance for personal injury, property damage and pecuniary losses with a limit of at least € 1.0 million.
a) Unless otherwise expressly agreed in writing, the customer is responsible for the unrestricted legality of any alterations / changes made to existing software. The customer is also responsible for ensuring that any Service results that he may require do not violate any third-party rights, including, without limitation, rights granted under trademark, copyright or competition law.
The following applies wherever we modify or create software components in the course of Service provision: If using the Service infringes on domestic industrial property rights or copyrights, we shall, at our expense and option, either procure a license for the customer, modify the Service to be non-infringing, or replace the Service with a non-infringing Service. If this is impracticable for us, the customer can assert all statutory rights. This obligation only exists if the customer notifies us of asserted claims without undue delay, refuses to acknowledge the infringement and we retain all options to defend ourselves. If the customer stops using the Service to reduce damages or for other good reasons, the customer must advise the third party that this suspension of use does not constitute an acknowledgement of infringement.
Our Services may only be used abroad by prior express agreement.
The customer may not assert claims for infringements which are its responsibility or which are caused by the customer’s special requirements, by a use which we could not foresee, or by the customer changing the contract subject matter or using it with services which we did not supply. The customer hereby holds us harmless from all third-party claims and will pay reasonable court costs, our reasonable attorneys’ fees and the third party’s reasonable attorneys’ fees as demanded by third parties due to the violation of third-party rights.
b) The customer will keep all the contents of the contract strictly confidential, including, but not limited to, prices, discounts, know-how and other business secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express written approval. This does not, however, apply to contents which are publicly known without violating the non-disclosure obligation. The customer will impose the same non-disclosure obligation on his employees and associate companies and on third parties to whom the contents are disclosed.
The customer consents to our processing his data (communication data, responsible employees, nature and extent of the customer’s purchase orders, etc.) for contract administration and execution. We may also use the data to inform the customer about our products and Service if they are typically used in connection with the products and Service that the customer has purchased from us.
c) If we alter or create software, we will upon payment of the software Service grant the customer a non-exclusive, non-transferrable contractual right to use the software on one computer in his company for his own business purposes, unless otherwise agreed. We retain all other rights in and to the software including related materials (source code, update, documentation) and any copies made thereof, even if the customer makes changes to it or combines it with his own software or that of a third party. The customer must not grant sub-licenses.
The customer must not reverse-engineer or decompile the software or cause the software to be reverse-engineered or decompiled except and to the extent expressly permitted by law or contract, wherever we have rights in and to the software.
The customer may only copy the software for backup and archiving purposes. The software must not be otherwise distributed, copied, translated and/or altered in any way other than for necessary error corrections without our prior written consent. Our copyright notices and marks must not be removed.
Software may only be passed on with our prior written consent. This consent will be given if we are certain that (a) the customer will cease using the software, (b) the scope of use will not be greater with the new user, and (c) the new user respects the license restrictions and our rights in and to the software.
The Terms also apply to associate companies of the customer within the meaning of German Stock Corporation Act § 15 [AktG]. The customer will bind his associate companies to observe these Terms.
Amendments and modifications hereto that are not based on an individual agreement must be made in written form (including fax). This also applies to a waiver of the written form requirement. If provisions of these terms are or become invalid, the validity of the remaining terms will be unaffected thereby.
The customer may not assign to third parties any rights granted in this contract without our consent. German Commercial Code [HGB] § 354a remains unaffected thereby.
German law applies unless national law inevitably conflicts with it.
Unless otherwise agreed, the place of our registered office is the place of performance and jurisdiction, including with respect to warranty claims. The place of our registered office is the sole place of jurisdiction if the customer is a merchant or a legal entity constituted under public law. We are, however, are entitled to bring action against the customer at the court that has jurisdiction over the place of the customer’s residence.
October 8, 2015
