1 Scope of application
1.1 Our offers, services and deliveries are exclusively based on these terms
and conditions. These terms and conditions shall be deemed accepted at
the latest upon receipt of the goods or services. Counter-confirmations with
reference to our own terms and conditions of business are hereby expressly
rejected.
1.2 Written individual agreements take precedence over these terms and
conditions.
2 Offer
2.1 Our offers are always subject to change and non-binding.
2.2 We reserve the right to make technical and design deviations from the
descriptions and information in brochures, catalogues and written documents
as well as changes in the course of technical progress, without this
giving rise to any rights against us.
3 Prices
3.1 All prices are ex domicile Bad Saulgau. Only our legal representatives
are authorised to negotiate prices without special written authorisation, to
negotiate on the basis of a power of attorney of appearance or toleration or
according to § 50 ff. HGB is expressly not sufficient for this. Individual price
agreements made by persons not entitled or authorized in accordance with
the above sentence must be confirmed by an entitled or authorized person in
accordance with the above sentence.
3.2 In case of doubt, price quotations which are recognizably directed exclusively
at commercial customers are to be understood plus the statutory value
added tax.
4 Delivery and performance time
4.1 The dates and periods of time stated by us are non-binding, unless expressly
agreed otherwise in writing.
4.2 All delivery promises and dates are subject to correct and timely delivery
to us.
4.3 Delays in delivery and performance due to force majeure and / or due to
events which make performance considerably more difficult or impossible for
us, e.g. operational disruptions, strikes, difficulties in procuring materials, official
orders, etc., entitle us to postpone delivery for the duration of the hindrance
plus a reasonable start-up period or to withdraw from the contract in
whole or in part with regard to the part not yet fulfilled. We shall inform the
customer immediately of the hindrances and, in the event of withdrawal,
shall refund any consideration due to the customer without delay.
4.4 Otherwise, we shall only be in default if the customer has granted us a
grace period of at least 1 month in writing. In the event of delay, the customer
shall be entitled to compensation for delay in the amount of 0.5% for
each complete week of delay, but in total up to 5% of the invoice value of the
deliveries and services affected by the delay. Beyond this, claims, in particular
claims for damages of any kind, are excluded.
5 Warranty and liability
5.1 The warranty period for new goods is 24 months from the time of transfer
of risk to consumers and 12 months to companies. In the case of used
goods, the warranty to consumers is 12 months, to entrepreneurs it is excluded.
5.2 We are only obliged to repair or replace the goods if the customer has
completely fulfilled his contractual obligations.
5.3 Only organs of the company entitled to represent the company or persons
authorised by them in writing are authorised to make an appointment or
toleration power of attorney or to act on the basis of § 50 ff. HGB is not sufficient
for this.
5.4 We shall be liable for intent and gross negligence in accordance with
the statutory provisions. In the case of slight negligence, we shall only be liable
if an essential contractual obligation (cardinal obligation) is violated or in
the case of delay or impossibility. In the case of liability due to slight negligence,
this liability is limited to damages that are foreseeable or typical, but
not exceeding the agreed remuneration. In the case of liability for slight negligence,
this limitation of liability shall also apply in the event of an initial inability
on our part. A liability for a certain condition, due to fraudulent intent, for
personal injury, defects of title, according to the Product Liability Act and the
Federal Data Protection Act remains unaffected.
5.5 In the event of damage to machinery, power cuts, strikes, operational
and traffic disruptions that make fulfilment impossible or hinder it, we shall
not be liable for the duration of the disruption if the disruption was considerable
and unforeseeable.
5.6 All other and further claims of the customer against us - regardless of
the legal basis and also non-contractual claims - are excluded. This applies
in particular to any consequential damage caused by a defect, including all
losses incurred by the customer as a result of an interruption of operations
or a loss of production.
5.7 The limitation period for non-essential breaches of contract is limited to
two years.
5.8 All claims against us are not assignable without written consent and can
only be asserted by the customer himself.
6 Retention of title
6.1 We reserve the right of ownership of the delivered goods until the goods
have been paid for in full, and in relation to entrepreneurs until payment of all
claims to which we are entitled and which will arise in the future, regardless
of the legal grounds.
6.2 Processing or transformation of the goods shall always be carried out
for us, but without obligation for us. If our (co-)ownership right expires due to
combination, it is hereby agreed that the customer's (co-)ownership of the
uniform object shall pass to us in proportion to the value (invoice value). The
customer shall store our (co-)ownership free of charge. Goods to which we
are entitled to (co-)ownership, hereinafter referred to as reserved goods.
6.3 The customer is entitled to process and sell the goods subject to retention
of title in the ordinary course of business, as long as he is not in default.
Pledging or assignment as security is not permitted. By way of security, the
customer hereby assigns to us in full all claims arising from the resale or any
other legal grounds in respect of the reserved goods. We authorise the customer
in an always revocable manner to collect the claims assigned to us for
his invoices in his own name. At our request, the customer shall disclose the
assignment and provide and submit the necessary information and documents
6.4 In the event of access by third parties to the reserved goods, in particular
in the event of seizure, the customer shall draw attention to our ownership
and inform us immediately. Any costs incurred shall be borne by the
customer.
6.5 If the customer acts in breach of contract, in particular in the event of
default in payment, we shall be entitled to take back the reserved goods at
the customer's expense or, if necessary, to demand assignment of the customer's
claim for return against third parties. The taking back or seizure of
the reserved goods by us does not constitute a withdrawal from the contract,
unless the German Installment Purchase Act applies.
7 Payment
7.1 Unless otherwise agreed, our invoices are due for payment immediately
without deduction.
7.2 We are entitled, despite any provisions of the customer to the contrary,
to first offset payments against the customer's older debt. If costs and interest
have already been incurred, the payments shall be set off against the
costs, then against the interest and finally against the main claim.
7.3 If the customer is in default, we shall be entitled to charge interest at the
usual bank rate, but at least at the statutory rate, from the relevant date.
7.4 If the customer does not fulfil his payment obligations according to the
contract or if he stops his payments, or if we become aware of other circumstances
that call the creditworthiness of the customer into question, we are
entitled to make the entire remaining debt due, to demand advance payments
or the provision of security.
7.5 The customer shall only be entitled to set-off if counterclaims are undisputed,
ready for decision in an already pending court case or have been legally
established.
8 Property rights and copyrights
8.1 The ownership and the copyright of the software delivered by us, the
printed accompanying material and all copies of the software is with the software
manufacturer. The software is protected by copyright law and international
treaty provisions. The customer must therefore treat the software like
any other copyrighted material with the exception that he either (a) makes a
single copy of the software exclusively for backup or archiving purposes or
(b) may install the software on a single computer, provided that the original is
kept exclusively for backup and archiving purposes. He is only entitled to
copy the printed materials possibly accompanying the software with the written
permission of the software manufacturer.
8.2 The customer is obliged to inform us immediately and in writing if he is
notified of the infringement of industrial property rights and copyrights by a
product delivered by us. We alone are entitled and obliged to defend the
customer against claims of the owner of such rights and to settle these
claims at our own expense, insofar as they are attributable to the direct infringement
by a product delivered by us. In principle, we shall endeavour to
obtain the right to use the product for the customer. If this is not possible under
economically reasonable conditions, we shall, at our own discretion, either
modify the product so that the property right is not infringed or take back
the product and refund the purchase price less compensation for the use
made.
8.3 If the customer has modified the delivered product or integrated it into a
system, or if we have designed the product on the basis of instructions from
the customer in such a way that this results in the infringement of property
rights, the customer is obliged to defend us against claims of the owner of
the infringed right or to indemnify us.
8.4 The customer is not entitled to reverse engineer, decompile or disassemble
software.
8.5 Furthermore, he is not entitled to rent or lease the software.
8.6 The customer is entitled to permanently transfer all rights from this license
agreement, provided that he does not retain any copies and transfers
the complete software (including all components, media, printed material
and the license agreement). If the Software is an update, any transfer must
also include all previous versions of the Software.
Software
Standard software is sold according to product description without the assurance
of certain properties.
In the case of the creation of individual software, the performance owed is
determined by the specification sheet, the scope of performance, purpose of
use and conditions of use being precisely defined. This is to be prepared by
the customer before conclusion of the contract. Upon request, we will support
the customer in the creation of the specification sheet, without any obligation
to cooperate on our part within the meaning of § 645 BGB.
If the requirements specification is not completed by the time the contract is
concluded, we shall be granted a reasonable period of time for examination.
Within this period we can withdraw from the contract by written declaration
without giving reasons.
Amendments to the specification sheet or comments on it shall only become
part of the contract if they are confirmed by us in writing.
The customer must accept individual software in writing within a reasonable
period of time after delivery in order to check that it is free of defects. The
software shall be deemed to have been accepted if the software is used and
neither an acceptance nor a written refusal of acceptance due to material
defects has been made within one month of the program transfer.
Services
Projects can only be terminated in accordance with the contract at the end of
the respective project phase as specified in the service description.
Only the respective scope of services, which is set out in writing at the beginning
of the project, shall become part of the contract. Changes to the contract
are only possible with the written confirmation of the contractor. The
Contractor is not obliged to make significant changes to the contract. The
Customer undertakes to reasonably extend agreed deadlines in the event of
amendments to the contract.
9 Export
9.1 The export of our software to non-EU countries requires our written consent,
irrespective of the fact that the customer himself is obliged to observe
the statutory import and export regulations.
10 Place of performance, place of jurisdiction and applicable law
10.1 The place of performance is Bad Saulgau.
10.2 In dealings with customers within the meaning of § 310 para.1 sentence
1 BGB (German Civil Code), Bad Saulgau is agreed as the place of jurisdiction,
unless §§ 38, 40 ZPO (German Code of Civil Procedure) conflict
with this.
10.3 The law of the Federal Republic of Germany applies exclusively. The
application of the UN Sales Convention is expressly excluded.
11 Final Provisions
11.1 The obligations in electronic business transactions according to § 312e
para. 1 nos. 1 to 3 and para. 2 BGB are covered for contractual partners
who are not consumers.