General Terms and Conditions and Sale | General Terms and Conditions and Sale |
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General Terms and Conditions and Sale (»GTS«) of DELTALOGIC Automatisierungstechnik GmbH (»DELTALOGIC«) Date: 01st March, 2010 IMPORTANT: Call attention to the fact, that DELTALOGIC does not sell or deliver to customers in terms of § 13 BGB but exclusively to customers in terms of § 14 BGB. The customer is liable to submit the verification that he is a customer in terms of § 14 BGB. The use and to put goods and software delivered by DELTALOGIC by customers in terms of § 13 BGB in circulation is prohibited. 1. Scope The following terms and conditions apply to the selling of goods by DELTALOGIC, services rendered and work performed by DELTALOGIC as well as to other services and deals. They apply correspondingly to other transactions if there are no special conditions. All services performed for Customers by DELTALOGIC are rendered exclusively on the basis of these terms and conditions. Diverging terms and conditions posed by Customers shall not become part of the agreement, even when such conditions are attached to a Customer's order and DELTALOGIC performs such orders without expressly objecting to such conditions. 2. Offers and Conclusion of Contract Offers made by DELTALOGIC are not binding. Agreements only become effective upon DELTLOGIC's written confirmation of the Customer's order, by performance of services or by delivery by DELTALOGIC. Verbal commitments constitute no guarantee and are only binding if confirmed in writing by DELTALOGIC. 3. Prices, Maturity and Terms of Payment 3.1 If prices are not stipulated individually, DELTALOGIC's list prices shall apply as valid at the time of confirmation of the order plus postage, freight, insurance and delivery fee. 3.2 In addition to the prices the value added tax shall be payable at the applicable rate. 3.3 Depending on the volume of the order DELTALOGIC may invoice the Customer up to 50% of the value of the order in advance either at the placement of the order or at partial delivery. 3.4 In addition to clause 3.1, DELTALOGIC is allowed to add an extra charge of up to Euro 50.00 on such orders which are below Euro 500.00 net and which shall be delivered in Germany. For orders below Euro 1,000.00 net to be delivered outside Germany, DELTALOGIC may add an extra charge of up to Euro 100.00. 3.5 Invoices are payable 30 days after receipt. 3.6 If the Customer does not pay upon maturity, Customer shall without reminder by DELTALOGIC fall into arrears. DELTALOGIC may charge default interest of 10% above the base rate of the European Central Bank, unless the Customer proves that the loss suffered by DELTALOGIC was lower. 4. Delivery period, Delivery duties, Passing of the Risk, Taking Delivery 4.1 The delivery period and performance starts at the date of the confirmation of the order. If the Customer is obliged to perform in advance, the period of delivery and performance for DELTALOGIC starts upon reception of such performance. DELTALOGIC has the right to partially deliver and perform and the right to use third parties for performance. 4.2 If DELTALOGIC fails to deliver or perform until the agreed date in a guilty manner, the Customer may rescind the agreement after a grace period communicated in writing to DELTALOGIC has elapsed. The Customer has no right to seek compensation for breach of contract or default unless in cases of wilful misconduct or gross negligence by DELTALOGIC. In case of force majeure or lack of cooperation by the Customer, DELTALOGIC may deliver and perform after the obstacle has ceased to exist, if such obstacle started when DELTALOGIC was still permitted to deliver and perform. 4.3 Every good sent or returned shall in any event be transported at the risk of the Customer. The risk shall pass according to § 447 subparagraph 1 German Civil Code when DELTALOGIC has handed over the goods to the carrier, forwarder or other person responsible for transportation. 4.4 If the Customer refuses to accept the goods sent or if he failed to collect the goods from the plant of DELTALOGIC, DELTALOGIC is authorized to withdraw the contract if the goods are remain uncollected upon expiration of a given 7 days extension of time. The damages shall not apply if the Customer can prove that there is no damage. 4.5 In principle, DELTALOGIC's goods are sent out without any insurance ex works (EXW Incoterms 2000). If a transportation insurance is bought, DELTALOGIC shall invoice to the Customer 0.5% of the total value of the goods for such insurance. 5. Delivery of Software 5.1 The use of software is subject to the General Terms and Conditions of License and Sale (GTLS) of DELTALOGIC, which are attached, are included or has to be downloaded. The Customer is only allowed to install and to use the software if he accepted the license agreement in advance. 5.2 Beside the license agreement, present agreement shall apply in addition. In cases of discrepancy when licensing software, the GTLS of DELTALOGIC shall have the priority. 6. Performance of Service and Work, Installations 6.1 When performing services DELTALOGIC shall advice and support the Customer in reaching the contracted performance goals. As far as necessary, the Customer shall provide DELTALOGIC with auxiliary means and sources of information. 6.2 If the Customer fails to contractually cooperate and consequently delays or additional expenses occur, DELTALOGIC may - without prejudice to further rights - demand accordingly changes in the time schedule and prices. 6.3 If the delivery of a work is owed (individual software), DELTALOGIC shall produce the work. After completion of the work or at another agreed date DELTALOGIC will demonstrate to the Customer the execution conforming to the contractual specifications by set terms of acceptance or by data derived from tests supplied by the Customer. After successful demonstration the Customer shall accept the work. Minor divergences from agreed features or terms of acceptance do not give the Customer the right to refuse the acceptance. 6.4 If DELTALOGIC renders services by installing in the offices of the Customer, Customer shall be responsible to meet the required conditions. Electro installation and the laying of cable have to be provided by the Customer. Additional costs arising out of the non-professional performance or non-performance of such work has to be borne by Customer. The Customer shall inform DELTALOGIC about all reasons which could complicate its installations in a timely manner without request by DELTALOGIC. 7. Duly to Inspect and Object, Warranty 7.1 Upon delivery, the Customer shall inspect the goods and shall immediately notify DELTALOGIC in writing about defects. Notice of obvious defects of the goods shall be made in writing immediately after receipt, but not later than one week after receipt. Hidden defects shall be reported in writing to DELTALOGIC immediately after their discovery, but not later than one week after discovery. If the Customer fails to notify at all or in due time, the goods shall be deemed to be accepted with such defects. 7.2 DELTALOGIC shall on its own choice have the right, at the place of the Customer or at DELTALOGIC's place, to correct a defect or to deliver a new good without defects (post-performance). If the defect cannot be corrected after a second try or if DELTALOGIC does not try to perform in due time, the Customer is allowed to reduce the payment for the respective goods or to rescind the respective agreement. If DELTALOGIC does not default by deliberate action or by gross negligence or did not violate essential obligations, all further rights of the Customer arising from of the Flawed goods or performances hall be excluded. 7.3 The reshipment of goods is at Customers expense, even where goods are damaged. DELTALOGIC is authorized to refuse delivery in case of cash on delivery or not prepaid delivery. 7.4 The limitation period for warranty claims is one year. 8. Liability 8.1 For damage of rights and goods and for damage, which occur not to outside the contractual goods and rights, regardless of its legal or factual reason, DELTALOGIC is liable only for damage caused by wilful misconduct, caused by gross negligence by bodies and its managing staff, the violation of life, body or health in a guilty way and for fraudulence concealing of a defect, or if its absence was guaranteed in writing by DELTALOGIC. Expressly in reference to provision 5.6 of the General Terms and Conditions of License and Sale (»GTLS«). 8.2 If DELTALOGIC violates essential contractual obligations, DELTALOGIC shall be liable also for gross negligence of non-managing staff. If the non-managing staff violates such essential obligations by slight negligence, the liability of DELTALOGIC is limited to the amount refunded by DELTALOGIC's employers' liability insurance if such insurance covers the typical risk of damage. If the employers' liability insurance is not obliged to refund DELTALOGIC at all, the liability of DELTALOGIC shall be limited to the typical and foreseeable damage. 9. Ownership, Rights and Rights of Utilization 9.1 DELTALOGIC retains all ownership title to goods, including all documentation and data media, on which software is delivered, until the purchase price for the good or performance has been fully paid and all trade accounts receivable concerning the current transactions have been fully paid. 9.2 The use of goods subject to retention of title by the Customer is only permitted after full payment. Until full payment of goods subject to retention by the Customer DELTALOGIC is not issue a guarantee or underwrite the liability for damages for the time period between delivery and full payment. The Customer shall have the right to dispose of the goods delivered by DELTALOGIC in the ordinary course of business. The authority granted hereunder shall not include the right to pledge or chattel mortgage. The Customer hereby assigns to DELTALOGIC all future payment claims from the resale of the goods delivered under retention of title. DELTALOGIC shall only disclose such assignment if the Customer fails to pay in due time. In such a case, the Customer is obliged to reveal to DELTALOGIC the name and address of his customer. In the event of any third party action against goods delivered by DELTALOGIC under retention of title, the Customer shall inform DELTALOGIC about such action, notify the third party about the rights of DELTALOGIC and support DELTALOGIC in claiming its rights. 9.3 Where claims of DELTALOGIC shall be secured through the assignment and retention by more than 125% undoubtedly, any surplus of receivables or good delivered under retention of title shall, upon demand of the Customer, be released in accordance with the choice of DELTALOGIC. 9.4 The results of work such as program material, documentation, drawings in written or machine-readable form owed by DELTALOGIC as a debtor, DELTALOGIC will hand over to the Customer after completion, acceptance and payment. DELTALOGIC may retain copies of these data for documentation purposes. 9.5 DELTALOGIC grants the Customer the right unrestricted in terms of time and territory, to duplicate, process and combine the work with other works created in execution of an order for the purpose of the Customer's enterprise. The passing of the work wholly or only in parts to third parties is not allowed. If the Customer receives standard software, all rights which are not granted to Customer in Number 5 above shall remain with DELTALOGIC, especially to copy, to adapt and to exploit. Also the rights to design, know-how and working methods remain with DELTALOGIC. 9.6 Inventions made by employees of DELTALOGIC during the execution of an order may be claimed by DELTALOGIC in its name for filing an industrial property right. 10. Setoff, Right of Retention, Right of Terminate without notice 10.1 The Customer may setoff counter claims only if they are undisputed or finally awarded by a court. The Customer has a right of retention only if based on the contractual relationship. Every order is considered to be a separate contractual relationship. 10.2 DELTALOGIC has the right to terminate an agreement with the Customer without giving due notice as far as the Customers financial situation had deteriorated considerably or the enforcement of insolvency proceedings over the Customers property has been requested for. 11. Electronic Transactions 11.1 For correspondence and delivery, DELTALOGIC may send emails without securities to the address of the Customer. 11.2 If DELTALOGIC decides to use a tele- or mediaservice it shall not be obliged to fulfil the responsibilities of information. The Customer waives his right to receive information imposed by law. But DELTALOGIC shall give the Customer the possibility to download the content of the agreement and the present GTS and save them in reproductive form. 11.3 DELTALOGIC is not liable for damage caused by the use or in connection with such software, documentation or other online-services, which can be used in or downloaded from DELTAGLOGIC's website. 12. Final Provisions 12.1 All contractual relationships between the parties shall be governed by the Laws of Germany, excluding the UN Convention (CISG) on the International Sale of Goods, dated 11th April, 1980. 12.2 The agreed place of performance is Schwäbisch Gmünd. The courts of Schwäbisch Gmünd have jurisdiction over all claims of the parties. DELTALOGIC may start legal action at the Customer's legal seat as well. 12.3 Should any of the provisions of these General Terms and Conditions be or become in invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision should be replaced by a provision whose economic success is approximating possible to the invalid provision. This is a translation of the German version of 01st November, 2007. In cases of doubt the German version shall prevail. DELTALOGIC Automatisierungstechnik GmbH Stuttgarter Strasse 3 73525 Schwaebisch Gmuend
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