1. scope of application
1.1 Unless otherwise agreed in writing, Controlware's deliveries and services shall be subject exclusively to the following General Terms and Conditions of Business. Reference shall also be made to the manufacturers' license terms enclosed with the contractual products.
1.2 Other terms and conditions of the ordering party shall only be effective if confirmed in writing by Controlware.
The same shall apply to amendments and supplements to these General Terms and Conditions.
1.3 Verbal promises and collateral agreements shall require written confirmation by Controlware.
2. contract
2.1 The offers are subject to change without notice. A contract shall not be concluded until the order has been confirmed in writing and shall be governed exclusively by these terms and conditions, which shall be accepted by the customer by order or acceptance.
2.2 The customer is bound to his order. Controlware shall be entitled to accept the order within 30 working days.
or to refuse.
3. scope and delivery obligation
3.1 The written order confirmation is decisive for the scope of delivery.
3.2 The documents belonging to the offer such as illustrations, drawings and weight specifications are only approximate,
insofar as they are not expressly designated as binding. Controlware shall be entitled to deliver contractual products which deviate from the order if the product modification does not impair the technical performance and the functional capability and - if Controlware is entitled to terminate the contract by notice - if the product modification does not affect the technical performance and the functional capability.
if a certain design was agreed - the external appearance of the contract products is not affected.
3.3 The right to partial deliveries and their invoicing is reserved, unless otherwise agreed in writing.
or the customer proves that the partial delivery is of no interest to him.
3.4 The indication of measured values shall be understood without the effect of any interference or other disturbances from the environment.
4. prices
4.1 All prices are quoted ex Dietzenbach unless otherwise agreed in writing. The prices for devices include
the costs for the usual packaging. If the customer requests a special type of packaging, the additional costs shall be borne by the customer.
Loads. The packaging costs for the delivery of spare parts, accessories and consumables shall be invoiced separately.
and you've put me on the spot.
4.2 All customs duties, fees, import and export duties, etc. shall be borne by the customer.
4.3 The customer shall bear the transport costs ex Dietzenbach. Unless otherwise agreed, Controlware shall be entitled, but not obliged, to
is obliged to insure the goods to be shipped against all kinds of transport risks at the customer's expense. This, as well as a possible assumption of the transport costs, has no influence on the transfer of risk.
4.4 The delivery and installation of the equipment as well as the instruction of operating personnel shall be at the expense of the customer. The costs of installation shall be charged in accordance with the service price list.
4.5 The price offered is based on the manufacturer's price lists valid at the time of the order or on material, energy and wage costs.
If delivery of the ordered item is requested only at a time which is more than three months after conclusion of the contract
the price will be adjusted upwards on a percentage basis if these costs have increased in the meantime.
5. payment
5.1 Payments must be made within 30 days of the invoice date without deduction. In the event of late payment, Controlware shall be entitled to
to withhold further deliveries until receipt of payment.
5.2 Bills of exchange shall only be accepted after special agreement and then only on account of payment and free of costs and expenses. In the case of
the so-called cheque/bill of exchange cover, no fulfilment of the payment claim is given.
5.3 If Controlware does not become aware of the occurrence of provisional insolvency or insolvency until after conclusion of the contract, or
In the event of any other changes in the creditworthiness of the customer which jeopardise payment, performance may be refused until full payment has been made, even if special payment terms have been agreed, and immediate payment of all outstanding invoices may be demanded.
5.4 If Controlware refuses to pay despite being requested to do so, it shall be entitled to rescind the contract in whole or in part without setting a time limit and irrespective of the requirements of § 323 para. 2 BGB (German Civil Code) and to demand the surrender of all outstanding invoices.
of delivered products without prejudice to further claims for damages. If the customer does not comply with his payment obligation
in default or if he violates one of the obligations resulting from the agreed retention of title, the entire remaining debt shall become due immediately.
5.5 The assertion of rights of retention which do not result from the same contractual relationship and the offsetting of
with counterclaims of the customer are excluded. Something else shall apply if the customer's claims have been acknowledged in writing or have been legally established.
5.6 If the customer is in default of payment, the statutory interest plus commissions and costs shall be charged. We reserve the right to assert further claims for damages caused by default.
5.7 If payment by instalments has been agreed and if the customer is in default with one instalment in whole or in part for more than 14 days, the customer shall be entitled to
The entire remaining amount is due immediately and further deliveries are stopped.
6. delivery
6.1 Controlware shall only be liable for compliance with the dispatch or delivery dates or delivery periods specified by Controlware if these are
are expressly designated as binding. The indicated periods begin with the date of the written declaration of acceptance.
and confirmation of the order, but not before the provision of the documents, approvals and permits to be procured by the customer.
releases or before the creation of all other necessary prerequisites. Changes to a contract shall extend the envisaged deadlines accordingly. Agreed delivery dates shall be deemed to have been met if the contractual product has been handed over to the carrier on the agreed delivery date, unless otherwise expressly agreed in writing.
was. If the dispatch of goods ready for dispatch is delayed for reasons for which Controlware is not responsible, the
contractual products are stored at the expense and risk of the customer.
6.2 If a binding dispatch or delivery date or a binding delivery period is exceeded, the customer must provide a written notice of this in writing.
and may withdraw from the contract after its fruitless expiration or claim damages for damages for
demand non-performance. If the customer makes a claim for damages due to non-fulfilment, this will be settled in the event of simple
negligence is limited to typical, direct damages up to half of the agreed price of the undelivered or installed product. Compensation for damage caused by delay can only be claimed if Controlware has acted with gross negligence or intent.
6.3 If Controlware is not responsible for the non-delivery of a delivery, as this is dependent on the self-delivery of Controlware by a sub-supplier, and if this is not carried out for a non-temporary period despite the timely conclusion of the hedging transaction and the exercise of all available influence, Controlware shall be entitled to compensation without compensation.
Withdrawal entitled. Something else shall only apply if Controlware is responsible for the omission.
7 Acceptance, acceptance and passing of risk
7.1 In any case, the customer shall accept the delivery immediately upon request. Acceptance shall be confirmed in writing. If the ordering party does not accept a delivery, it shall be in default and shall be liable to Controlware for compensation for the damage incurred.
obligated. The customer is obliged to check the goods for completeness and conformity according to the delivery note immediately after receipt.
and order. If a complaint is not made within a period of eight days after receipt of the delivery, the goods shall be deemed to have been
delivered in accordance with the contract. If the object of Controlware's performance is an installation, Controlware shall inform the ordering party of a reasonable period for acceptance after completion. Controlware may demand partial acceptance for independent functional units. If the ordering party does not accept Controlware's performance within this period, the performance shall be deemed accepted. Reasons,
If the ordering party believes that the goods are contrary to acceptance, it must notify Controlware in writing within this period. In the case of
The installation/commissioning shall be taken over by both parties and a written acceptance protocol shall be drawn up.
7.2 If the customer does not accept the delivery despite a reminder setting a deadline of 10 days, or if the ordering party cancels a binding order, Controlware may, without prejudice to the possibility of asserting a higher actual loss, charge 10% of the purchase price for the goods delivered.
of the agreed purchase price for the costs incurred in processing the order and for the loss of profit. The compensation for damages shall be reduced accordingly if the customer proves that no damage at all or considerably less damage has been incurred.
7.3 If the shipment is delayed at the request of the customer, the storage costs can be calculated after one month after the agreed shipment date in a proven, customary amount.
7.4 The risk shall pass to the ordering party upon first handover by Controlware to a forwarding agent. In the event of own delivery by
The risk shall pass to the ordering party when the products are loaded onto the first transport vehicle of Controlware. Special agreements, e.g. means of transport, shall not affect the time of transfer of risk. If the customer defaults on acceptance, the following shall apply
the danger is upon him here as well. Upon request, appropriate insurance can be taken out at the expense of the customer.
7.5 If goods are returned to Controlware for repair or replacement within the warranty period, the warranty period shall be extended to the extent that the goods are returned to Controlware within the warranty period.
The risk for the ordering party shall pass to the forwarding agent selected by Controlware from the first handover of the ordering party.
carries Controlware. In the case of returns of goods outside the warranty period, the ordering party shall bear the transport costs itself.
and can choose the forwarder as well as the transport modalities himself.
8. force majeure
8.1 Liability for damages due to non-fulfilment or delay shall be excluded in the event of any damage occurring or known after conclusion of the contract.
of force majeure for both parties to the contract. Events of force majeure include, but are not limited to, civil unrest, operational disruptions, shortages of workers, unavoidable energy or raw materials, strikes, lock-outs, unforeseeable traffic disruptions and
official orders.
8.2 Events of force majeure shall release us from our obligation to deliver for the duration of the disruptions and their effects. These regulations apply accordingly to services. After normal circumstances have re-emerged, Controlware shall be entitled to rescind the agreed delivery period.
quantity, or to demand an appropriate postponement of the performance dates for services.
After the events have lasted for three months or in the event of permanent impossibility of performance, Controlware shall be entitled to demand a reasonable postponement of the performance dates for services.
the contract part fulfilled.
8.3 If the aforementioned circumstances occur at the purchaser's premises, these legal consequences shall apply mutatis mutandis to the obligations affecting him.
9 Retention of title
9.1 The delivered products shall remain the property of Controlware until all claims arising from the business relationship with Controlware have been satisfied in full.
9.2 The ordering party shall be obliged to store the products owned by Controlware with due diligence.
and adequately insured.
9.3 The purchaser is entitled to process and sell the products in the normal course of business. Any processing shall be carried out for Controlware. In the event of processing with third-party goods by the ordering party, Controlware shall acquire an interest in the new goods.
co-ownership in the amount of the invoice value of the reserved goods. The new object resulting from the processing shall also be deemed to be
reserved goods within the meaning of these conditions.
9.4 Any resale of the products shall be subject to retention of title until payment has been made by the final purchaser.
The ordering party hereby assigns his purchase price claim in full to Controlware by way of security and must confirm the assignment in writing upon request. If the value of the security provided exceeds Controlware's claims against the ordering party by more than 20% in total, the part exceeding the security for the claim shall be returned at the ordering party's request.
9.5 The ordering party shall be authorised to collect the claims transferred to Controlware, but not to dispose of these claims in any other way. The authorization may be revoked at any time. Each enforcement measure in the rights of Controlware
the customer has to report immediately. The customer shall bear the costs of defending against enforcement.
9.6 If the ordering party is in default with the fulfilment of claims arising from the business relationship, Controlware shall be entitled, without prejudice to the right of Controlware to
the prior setting of a deadline and to withdraw from the contract irrespective of the requirements of § 323 para. 2 BGB (German Civil Code), the rights and obligations of
from the reserved property and to claim damages.
10. warranty
10.1 Information provided by Controlware regarding the products and services shall only be deemed to be quality and content information if
Controlware does not expressly warrant or guarantee in writing specific characteristics of the product or service.
10.2 The delivered products shall be free from mechanical defects and defects in workmanship. The same shall apply if commissioned,
for the proper installation of the products by Controlware. Parts subject to wear and tear are excluded from any warranty.
as well as damage caused by typical wear and tear, improper installation, use or operation or by repair work, maintenance work or modifications not expressly authorised by us.
10.3 Products or parts thereof which exhibit defects within the warranty period shall, at Controlware's option, be repaired or replaced free of charge, provided that the ordering party has notified Controlware of the defects in writing immediately after their discovery.
The ordering party must set Controlware a reasonable period of time to remedy the defects. Insofar as subsequent performance is to be effected within the
If the delivery period has failed, the customer shall be entitled to further statutory warranty claims (withdrawal, reduction, damages) insofar as their further statutory prerequisites exist.
10.4 If the ordering party submits complaints or returns goods to Controlware, the ordering party shall be obliged to observe and comply with the RMA regulations of Controlware attached to these Terms and Conditions. This shall include in particular the provision of all necessary information on the malfunctionality of the product which is known to the ordering party. If the customer
his duty to inform and cooperate is not fulfilled intentionally or negligently, his warranty claim is suspended. Controlware
can return the goods to the customer against payment if the latter does not fulfil his obligations after setting a deadline. The
At Controlware's option, acknowledged defects shall be remedied either by Controlware, the manufacturer or a third party, or by the ordering party's company.
10.5 In the event of complaints within the warranty period, the costs of the expenses incurred for the purpose of subsequent performance shall be borne by Controlware.
costs, in particular transport, travel, labour and material costs, which may be incurred for the return and repair of the goods or for the
replacement of the goods, borne by Controlware. In the event of complaints outside the warranty period, the aforementioned
costs shall be borne by the customer.
10.6 The warranty period shall not be extended by the repair or subsequent improvement. In the event of a replacement delivery, the following shall commence
the statute of limitations.
10.7 All warranty claims shall lapse at the latest 12 months after delivery or acceptance.
10.8 Further claims or claims other than those mentioned above of the customer, regardless of the legal basis, in particular claims for compensation, are excluded.
of damages which have not occurred to the delivery item itself or to legal interests of the customer, such as e.g. lost
profit and other financial losses, shall be excluded unless Controlware acted with intent or gross negligence or fraudulently concealed the defect causing the damage or assumed a guarantee for the quality of the goods.
...has.
10.9 The warranty obligation does not apply if the delivered goods or services are modified, improperly handled, treated or processed. Proper handling includes, among other things, the necessary and by the customer to be proven
Compliance with the installation, operating and maintenance instructions.
10.10 Used items are supplied to the exclusion of any warranty.
10.11 The customer is aware that further data losses due to at least once daily data backups are avoided.
and that under no circumstances shall Controlware be liable for any loss of data resulting from failure to back up such data.
result.
11. liability
11.1 Controlware shall have unlimited liability if damage is attributable to an intentional or grossly negligent breach of duty or to the culpable breach of a contractual cardinal obligation. Controlware shall also be liable without limitation for damages arising from the
culpable injury to life, body or health. The same shall apply to damages which fall within the scope of protection of any of the following
Controlware's warranty (assurance).
11.2 Outside the cases referred to in Clause 11.1, Controlware shall not be liable for damages caused by ordinary negligence of its legal representatives, executives, employees or vicarious agents.
11.3 The obligation to pay compensation for the breach of contractual cardinal obligations shall be limited to the foreseeable damage typical of the contract. This also applies to lost profits and savings not achieved.
11.4 Even in cases of gross negligence, Controlware's liability shall be limited to the foreseeable damage typical for the contract if none of the cases mentioned in Clause 11.1 applies.
11.5 In the case of deliveries, Controlware's liability for damage caused by the delivery item to other legal interests of the Customer shall be excluded.
Customer excluded. This does not apply in the cases mentioned in clause 11.1.
11.6 Insofar as Controlware is not obliged by the foregoing provisions or by mandatory statutory provisions to provide unlimited
the liability of Controlware per claim shall be limited to € 1 million. Damages within a contractual relationship shall include
than a claim.
11.7 To the extent that Controlware's liability is excluded or limited in accordance with the above provisions, this shall also apply to
personal liability of Controlware's legal representatives, executives, employees and vicarious agents.
11.8 Mandatory statutory liability provisions shall not be affected by the above provisions.
12. software/consulting services
12.1 In the case of contracts which (also) contain software or consulting services, the following shall be agreed prior to the provision of these services, but at the latest
in the final performance phase, both parties agree on a performance specification as the basis for the services to be rendered at that time
will be. This shall apply mutatis mutandis to amendments or supplements to such contracts.
12.2 In the case of series and standard software, Controlware's delivery specification shall be deemed to be the functional specification within the meaning of the preceding paragraph.
12.3 The ordering party shall only be entitled to receive the program documentation for the user software if it has been specially prepared for him.
has been developed, he has paid the full project planning, programming and data acquisition costs and insofar as nothing to the contrary has been expressly agreed.
12.4 However, the parties are aware that, according to the state of the art, it is not possible to detect errors in the software under
to exclude all applications.
12.5 Controlware does not warrant that the program functions will meet the requirements of the ordering party or that the program functions will be available in the
the choices he's made.
12.6 The working documents and data made available to Controlware shall be kept by Controlware with due diligence, without prejudice to the ordering party's obligation to also keep data handed over to Controlware for the purpose of reconstructing them.
13. industrial property rights and confidentiality
13.1 Should a third party assert an infringement of industrial property rights against the customer with regard to the delivered products, the customer shall be obliged to notify this immediately. Controlware shall be entitled, if necessary with the support of the
The customer shall, however, at his own expense, conduct all negotiations concerning the settlement or any process arising therefrom.
13.2 If the delivered products have been built according to designs or instructions of the ordering party, the ordering party shall indemnify Controlware against all claims, liabilities, encumbrances and costs arising from infringements of patents,
trademarks or utility models of third parties. Any legal costs shall be reasonably advanced to Controlware.
13.3 Controlware undertakes to keep all knowledge of trade secrets and of
to use information to be designated as confidential only for the execution of this contract. Both parties shall treat all documents and information received by them during and in the performance of a contract as confidential for as long as they have not become generally known.
13.4 These obligations shall remain in force even after the termination of a contract and shall not apply in the event of permissible disclosure of documents and information.
information to third parties.
14. property rights
Controlware reserves ownership rights and copyrights to all documents provided by Controlware before or after conclusion of the contract; they may only be made accessible to third parties with their express consent. All such drawings and documents shall be returned unsolicited and without delay if the contract is not concluded or is terminated again.
15. services
15.1 For the performance of services such as the installation of equipment, maintenance, general overhaul and repair the
the customer to take all precautions necessary for an unhindered start and a speedy execution of the services.
are. It is the sole responsibility of the customer to ensure that any official approvals required are obtained.
15.2 The prices for the services shall be determined in accordance with the respectively valid offer conditions of Control-ware.
15.3 If Controlware terminates the service contract for good cause or if the client terminates it before expiry of the agreed minimum term, the client shall be obliged to compensate Controlware for the damage caused by the premature termination of the contract.
suffers. Without further proof, Controlware shall be entitled to damages amounting to 70 % of all contractually owed fees for the period up to and including the date of delivery.
to the next permissible date for ordinary termination, unless the client can prove that Controlware has incurred less damage in the individual case.
15.4 In all other respects, these General Terms and Conditions shall apply to the Services, in particular to warranty and limitation of liability. Any liability for consequential harm caused by a defect in services is excluded.
16 Export and Import Permits
16.1 Products and technical know-how supplied by Controlware shall not be used or used for any purpose other than that agreed with the ordering party.
agreed country of delivery. The re-export of contractual products - individually or in system-integrated form - may require approval by the customer under certain circumstances and is subject to the foreign trade regulations of the Federal Republic of Germany and/or the European Union.
of the other country of delivery agreed with the customer. The customer must independently comply with these regulations in accordance with German law.
Check the regulations with the Federal Office of Economics, 65760 Eschborn/Taunus. Irrespective of whether the customer indicates the final destination of the delivered contractual products, it is the customer's own responsibility to determine the possibly necessary destination of the delivered contractual products.
to obtain approval from the relevant foreign trade authorities before exporting such products.
16.2 Any further delivery of contractual products by the ordering party to third parties, with or without Controlware's knowledge, shall at the same time require the transfer of the export permit conditions. The ordering party shall be liable to Controlware for the proper observance of these conditions.
17. final provisions
17.1 The ordering party may only assign claims against Controlware with the express written consent of Controlware.
17.2 The invalidity of individual provisions of these Terms and Conditions shall not affect the validity of the remaining provisions. In place
of an invalid provision, the special provisions for commercial transactions as well as any commercial customs shall apply first and foremost.
17.3 The place of performance shall be Controlware Dietzenbach; the place of jurisdiction shall be Frankfurt am Main. However, Controlware shall be entitled to transfer the ordering party to
any other justified place of jurisdiction.
17.4 The contractual relationship between Controlware and the ordering party shall be governed exclusively by German law. The Uniform Law on the International Sale of Goods (EKG), the Uniform Law on the Conclusion of Contracts (EAG) and the Vienna UN Convention on Contracts for the International Sale of Goods (CISG) shall apply.
Goods traffic (UNCITRAL) is excluded.