I. application range
1. Our agreements on software development, product deliveries and other services are governed exclusively by the following General Terms and Conditions of Sale. Any general terms and conditions established by the customer which deviate from, or go beyond, the present General Terms and Conditions of Sale shall not be applicable.
2. The present General Terms and Conditions of Sale apply exclusively to business transactions with persons acting in a merchant's or independent businessman's capacity (entrepreneurs within the meaning of section 14 of the German Civil Code) This definition shall be deemed to include public-law entities and separate property funds under public law.
II. conclusion of agreements
1. Our quotations are non-binding.
2. No agreement shall be deemed entered into until the customer has received our written order acknowledgment, or until we commence delivery of products or services.
III. scope of performance
1. The content of an agreement shall be determined by our quotation, our order acknowledgment, and the present General Terms and Conditions of Sale. No retroactive change, addition or ancillary agreement shall be valid unless agreed upon in writing.
2. Our contractual obligations do not include trial runs, the installation of hardware and software, hardware/software maintenance and upkeep, or instruction and training activities. However, we are prepared to provide such add-on services under a separate purchase order for a compensation based on actual expenditure. Valid prices shall be those set forth in our current price list.
IV. properties of our services
1. No property or feature shall be deemed an agreed quality of our products or services unless it is referred to in our quotation and/ or our order acknowledgment.
2. Any representations regarding the quality and durability of our products or services whereby we grant our customer additional rights without prejudice to his statutory remedies for defects under warranty shall not themselves constitute a warranty of quality or durability within the meaning of section 443 of the German Civil Code unless explicitly referred to as a warranty by ourselves. Customer's rights in a warranty case shall be based exclusively on the declaration of warranty. The declaration of warranty shall be set down in writing.
V. customer's duty to co-operate
1.The customer undertakes to co-operate in
• the procurement of all information we need about the customer (and, where applicable, his final customer) in order to be able to effect contractual performance;
• any expressly agreed technical trial runs, specifically by providing sufficient personnel, data, materials and product during normal working hours;
• the preparation and implementation of product and software installations, specifically by facilitating remote data transmission resources, where such installation has been expressly agreed upon.
2. Furthermore, the due and timely performance of our services is contingent on
• the use of technically skilled personnel and adequate training of customer staff so as to ensure a reliable launch and operating process;
• verification of our planning, specifications and technical statements for their suitability for customer's operational requirements; any discrepancies, irregularities or errors discovered in this process shall be reported to us without delay;
• full and sufficiently precise error reports, made available forthwith, including the provision of suitable data and reports for error analysis and the use of proper back-up routines for own data and system environments.
• due and proper care and maintenance of technical items (hardware and software) delivered by ourselves.
3. If any information or document provided by the customer is found to be faulty, incomplete or ambiguous, it shall be corrected and completed by the customer forthwith upon receipt of our request to that effect.
4. Save where we have justified cause for reviewing customer-supplied data, information or other items for completeness and correctness, we shall be under no obligation to effect such review.
5. Customer's duties to co-operate in accordance with the foregoing paras. 1 and 2 constitute material contractual obligations. In the case of non-performance thereof we cannot be held in default from the time of such breach until it is cured. If a customer's default on co-operation duties results in delay and/or additional costs we shall be entitled to an adjustment of our time schedule and pricing, without prejudice to any further statutory rights or remedies. Valid prices shall be those set forth in our current price list.
VI. customer's retroactive change requests
1. Any retroactive customer requests for changes and/or additions shall be reviewed for feasibility and necessary preconditions for implementation. Our performance and delivery obligations shall be deemed to be suspended for the duration of such investigation. If the customer's change request calls for an extensive review, we may bill the customer for the review costs. Valid prices shall be those set forth in our current price list.
2. Following our review, we shall communicate our approval or rejection to the customer without delay. However, no retroactive change or addition shall become part of the contract unless it is made the subject of an agreement which must stipulate remunerations as well as an extension of the original delivery or performance term. Any such agreement should be made in writing.
VII. delivery / passage of risk
1. If our performance is to be made at a location other than the customer's site, deliveries shall, on principle, be made on an "ex works" basis (EXW, Incoterms 2000). In this case, the risk of accidental perishing of, or accidental damage to, the goods supplied by ourselves shall pass to the customer at the time of our surrender of such goods to a freight forwarder or carrier. Transport costs shall in this case be borne by the customer.
2. If, under the terms of our agreement with the customer, our performance is to be rendered at the customer's site, the risk of accidental perishing or accidental damage shall pass to the customer at the time of the goods' supplied by ourselves arriving at the customer's premises.
3. Partial deliveries shall be permitted as long as the customer can be reasonably expected to consent thereto.
VIII. delivery time limits / obstacles to delivery / rescission
1. If our performance must be rendered at a location other than the customer's site, our delivery or performance time limits shall be deemed fulfilled if the ex-works dispatch of the deliverables has occurred within the respective time limit. If the agreement stipulates performance at the customer's site, our delivery or performance time limit shall be deemed fulfilled if the deliverables arrive at the customer's business premises within that time limit.
2. Our compliance with stipulated performance and delivery time limits is contingent on the timely clarification of all technical issues and on Customer's fulfilment of all his co-operation duties. If these preconditions are not met in a timely manner, our time limits shall be reasonably extended except where the delay is attributable to ourselves.
3. Any condition of Force Majeure (unforeseen circumstances and events that could not have been avoided even through the exercise of a prudent businessman's due care and diligence, e.g., labour conflict, war, fire, transport obstacles, shortage of raw material, interventions of public authorities) shall result in a suspension of our delivery and performance obligations for as long as it prevails and as long as is warranted given the extent of its effects. This shall also apply if our performance or delivery is already delayed.
4. The performance and delivery times quoted by ourselves are given subject to the proviso of our receiving timely and proper supplies.
5. In the case of Force Majeure or delayed or defective performance on the part of our own suppliers we shall be entitled to rescind the agreement. If this occurs, we shall notify the customer forthwith of the non-availability of the deliverables and shall reimburse him forthwith for such consideration as he may have already rendered.
IX. prices and payment terms
1. Any prices stated in our quotation or order acknowledgment are lump-sum prices only if expressly referred to as such therein. All other price information constitutes a mere cost estimate. The customer shall in these cases be billed on the basis of actual expenditure. Valid prices shall be those set forth in our current price list.
2. Our prices are given net, ex works, and exclusive of sales tax, loading, packing, freight, postage and shipping.
3. We reserve the right to change prices accordingly if, following the closure of an agreement, our procurement and delivery costs increase for reasons beyond our control (e.g, increases in collective wage/salary levels, material prices or taxes), provided always that we have notified the customer thereof before effecting delivery. The same applies if we incur additional costs due to customer's request for a change in the delivery date.
4. Save where advance payment has been agreed upon, our invoices are payable within 10 working days from the invoice date, without any deduction. Payment shall be deemed to have been made at the time of our receipt of free and clear funds. In the case of delayed payment we shall be entitled to default interest at a rate of 8 percentage points above the base interest rate.
5. If it emerges that the fulfilment of our payment claims is imperilled by customer's lack of solvency, we shall be entitled to call for immediate payment of all yet unmatured claims from our entire business relationship with that customer to the extent to which our own performance and delivery obligations underlying such claims have been fulfilled. This provision shall also apply if we have already accepted bills of exchange or cheques. Fulfilment of a claim shall be deemed imperilled if a bank's or credit reporting agency's status report suggests a lack of creditworthiness of that customer. The same applies if the customer has failed to make timely payment on at least two invoices. In this case we shall be additionally entitled to set the customer a reasonable time limit in which he shall, at his discretion, either effect payment or else furnish a security; in either of these latter cases, he shall perform pari passu with our tendering of any outstanding counterperformance. Upon fruitless expiry of this time limit we may rescind the contract. The grant of an extension is dispensable if customer has stopped payments or is excessively indebted.
6. The customer is not entitled to offset counterclaims against our own claims except where such counterclaims are uncontested or enforceable at law. The same applies to any exercise of retaining or withholding rights or liens.