General Terms and Conditions of License and Sale (»GTLS«) of DELTA LOGIC Automatisierungstechnik GmbH (»DELTA LOGIC«)
Date: 23rd October, 2023
IMPORTANT: Please read the terms and conditions of this Agreement carefully before using the standard software of DELTA LOGIC. Call attention to the fact, that DELTA LOGIC 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 DELTA LOGIC by customers in terms of § 13 BGB in circulation is prohibited. DELTA LOGIC is willing to license to you the standard software as company, legal entity or as businessman ("the Customer") that will be utilizing the standard software only on the condition that you accept the terms of this Agreement. This is a legal and enforceable contract between you and DELTA LOGIC. By opening this package, breaking the seal, clicking the "accept" or "yes" button or otherwise indicating assent or loading the software, you agree to the terms and conditions of present GTLS. If you do not agree on present GTLS, click the "I do not accept" or "no"-button or otherwise indicate refusal, make no further use of the software and contact your DELTA LOGIC assistant for information on how to revoke the License Agreement, to obtain and refund of the license fees paid for the software (less shipping, handling and applicable taxes).
In case if you do not use standard software but if you order goods, individual software or if you ask DELTA LOGIC for other services, the GTLS shall be included in such contract after you agreed like outlined above.
The following terms and conditions apply to the selling of goods, software licensing and delivery by DELTA LOGIC, services rendered and work performed by DELTA LOGIC 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 DELTA LOGIC 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 DELTA LOGIC performs such orders without expressly objecting to such conditions.
2. Offers and Conclusion of Contract
DELTA LOGIC intends to enter into a contractual commitment within the scope of application only with entrepreneurs within the meaning of § 14 BGB. A contract according to the following conditions is therefore only concluded if the customer fulfills this qualification (condition for the conclusion of the contract).
Offers made by DELTA LOGIC are not binding. Agreements only become effective upon DELTA OGIC's written confirmation of the Customer's order, by performance of services or by delivery by DELTA LOGIC. Verbal commitments constitute no guarantee and are only binding if confirmed in writing by DELTA LOGIC.
3. Prices, Maturity and Terms of Payment
3.1 If prices are not stipulated individually, DELTA LOGIC'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 DELTA LOGIC 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, DELTA LOGIC is allowed to add an extra charge of up to Euro 50.00 on such orders which are below Euro 200.00 net and which shall be delivered in Germany. For orders below Euro 500.00 net to be delivered outside Germany, DELTA LOGIC may add an extra charge of up to Euro 75.00.
3.5 Invoices are payable 30 days after receipt.
3.6 If the Customer does not pay upon maturity, Customer shall without reminder by DELTA LOGIC fall into arrears. DELTA LOGIC may charge default interest of 10% above the base rate of the European Central Bank, unless the Customer proves that the loss suffered by DELTA LOGIC 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 DELTA LOGIC starts upon reception of such performance. DELTA LOGIC has the right to partially deliver and perform and the right to use third parties for performance.
4.2 If DELTA LOGIC 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 DELTA LOGIC 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 DELTA LOGIC. In case of force majeure or lack of cooperation by the Customer, DELTA LOGIC may deliver and perform after the obstacle has ceased to exist, if such obstacle started when DELTA LOGIC 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 DELTA LOGIC 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 DELTA LOGIC, DELTA LOGIC 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, DELTA LOGIC's goods are sent out without any insurance ex works (EXW Incoterms 2000). If a transportation insurance is bought, DELTA LOGIC shall invoice to the Customer 0.5% of the total value of the goods for such insurance.
5. Delivery of Software
5.1 For standard software of DELTA LOGIC, the Customer receives a non-exclusive, non transferable right to use the software and documentation for an indefinite period of time. For third party software, the license terms of these third parties shall apply which are attached to the third parties software or which is included or has to be downloaded.
5.2 The Customer shall start to use the delivered standard software only after full payment and the respective delivered dongle has been installed or after full payment and if the Customer has made his electronic fingerprint in advance. The Customer himself then has to check the software for usability, practicality and operational use without undue delay upon receipt at Customers own expense. The Customer is obliged to report any dysfunctions to DELTA LOGIC without delay, not later than 12 days. If DELTA LOGIC has not given a written confirmation to the continuation of the software or goods after notice of the dysfunction by the Customer, the continuation is at the Customers risk. The Customer is obligated to maintain accurate records which document the version, the place where it is installed or located and the number of copies made of the standard software and Customer will submit such records to DELTA LOGIC upon request.
5.3 DELTA LOGIC allows the Customer to use the standard software only in its object code and only on one electronic data processing system at a time and only to fulfil the tasks the standard software is designed to fulfil. If not explicitly permitted by law, the Customer may not decompile the standard software or reverse engineer it and may not produce derived products of the software or translate, change or produce derived products of the documentation. The Customer is not allowed to remove proprietary, originator or copyright notices, labels or marks.
None of the software delivered by DELTA LOGIC shall be used in nuclear power plant applications, aircrafts or vehicles, in applications for the planning, construction, production or delivery of aircrafts or vehicles or parts therefore, for navigation, for the production of weapons of any kind or for medical applications which may lead to personal injury.
5.4 The Customer may copy the standard software to the extent as necessary for the permitted use, in particular for safe guarding. Upon delivery of software - including updates and upgrades - the Customer shall make a copy for safe guarding without undue delay. Further duplications, including printing the program code and copying the documentation, are only allowed with the prior written consent of DELTA LOGIC. On all complete or partial reproductions, the Customer shall attach the copyright notice and all other remarks concerning commercial protection rights in the same manner as these are contained in the original version of the standard software.
5.5 DELTA LOGIC may terminate its right of use if the Customer - despite a warning - after a period of 30 days continues to violate the conditions of use. Upon termination of his right of use, the Customer shall either return the original and all copies or partial copies of the software to DELTA LOGIC or destroy them within 30 days. DELTA LOGIC has to be notified of such destruction without delay in a plausible manner. Upon written approval of DELTA LOGIC, the Customer may keep a file copy.
5.6 DELTA LOGIC brings special attention to the fact that it is not possible, at the state of the art, to produce computer programs, if standard or individual, which work free of errors in all applications and combinations. For this reason DELTA LOGIC is not responsible for damages which occur on basis of software or hardware from DELTA LOGIC and which is running in an environment that is not delivered or installed by DELTA LOGIC.
6. Performance of Service and Work, Installations
6.1 When performing services DELTA LOGIC shall advice and support the Customer in reaching the contracted performance goals. As far as necessary, the Customer shall provide DELTA LOGIC with auxiliary means and sources of information.
6.2 If the Customer fails to contractually cooperate and consequently delays or additional expenses occur, DELTA LOGIC 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), DELTA LOGIC shall produce the work. After completion of the work or at another agreed date DELTA LOGIC 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 DELTA LOGIC 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 nonperformance of such work has to be borne by Customer. The Customer shall inform DELTA LOGIC about all reasons which could complicate its installations in a timely manner without request by DELTA LOGIC.
7. Duly to Inspect and Object, Warranty
7.1 Upon delivery, the Customer shall inspect the goods and shall immediately notify DELTA LOGIC 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 DELTA LOGIC 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 DELTA LOGIC shall on its own choice have the right, at the place of the Customer or at DELTA LOGIC'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 DELTA LOGIC 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 DELTA LOGIC 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. DELTA LOGIC is authorized to refuse delivery in case of cash on delivery or not prepaid delivery.
7.4 If DELTA LOGIC delivers standard or individual software, the precondition for claims is the proper handling and an adequate use of the goods and a save and appropriate place. The Customer's claim is excluded for work or goods which Customer changes or interferes with in some other way without DELTA LOGIC's written approval. The same applies if goods are handled improperly or in a way which does not conform to the requirements for repair.
7.5 If the examination of a notice of defect shows that there is no defect on the Individual or standard software, the costs for such examination will be charged to Customer at the applicable hourly rates. The Customer is further obliged to support DELTA LOGIC when an examination is made free of charge.
7.6 The limitation period for warranty claims is one year.
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, DELTA LOGIC 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 DELTA LOGIC. Expressly in reference to provision 5.6.
8.2 If DELTA LOGIC violates essential contractual obligations, DELTA LOGIC 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 DELTA LOGIC is limited to the amount refunded by DELTA LOGIC's employers' liability insurance if such insurance covers the typical risk of damage. If the employers' liability insurance is not obliged to refund DELTA LOGIC at all, the liability of DELTA LOGIC shall be limited to the typical and foreseeable damage.
8.3 For the delivery of standard and individual software, the Customer accepts as a main obligation to save the data created by it in intervals which are adequate to the foreseen application, but at least once a day. In case of a loss of data for which DELTA LOGIC is responsible, DELTA LOGIC shall only be liable for the restoration to the extent necessary the data saving have been effected according to the present terms and conditions.
8.4 If the Customer receives standard software as a demo version with a temporary key and not paying a consideration, the liability of DELTA LOGIC shall be deemed to be excluded until the parties enter into an agreement. After receiving said demo version and before a definitive agreement, the Customer is obliged to release DELTA LOGIC from any third party claims arising out of the use of the demo version.
9. Ownership, Rights and Rights of Utilization
9.1 DELTA LOGIC 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 DELTA LOGIC 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 DELTA LOGIC 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 DELTA LOGIC all future payment claims from the resale of the goods delivered under retention of title. DELTA LOGIC 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 DELTA LOGIC the name and address of his customer. In the event of any third party action against goods delivered by DELTA LOGIC under retention of title, the Customer shall inform DELTA LOGIC about such action, notify the third party about the rights of DELTA LOGIC and support DELTA LOGIC in claiming its rights.
9.3 Where claims of DELTA LOGIC 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 DELTA LOGIC.
9.4 The results of work such as program material, documentation, drawings in written or machine-readable form owed by DELTA LOGIC as a debtor, DELTA LOGIC will hand over to the Customer after completion, acceptance and payment. DELTA LOGIC may retain copies of these data for documentation purposes.
9.5 DELTA LOGIC 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 DELTA LOGIC, especially to copy, to adapt and to exploit. Also the rights to design, know-how and working methods remain with DELTA LOGIC.
9.6 Inventions made by employees of DELTA LOGIC during the execution of an order may be claimed by DELTA LOGIC 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 DELTA LOGIC 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, DELTA LOGIC may send emails without securities to the address of the Customer.
11.2 If DELTA LOGIC 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 DELTA LOGIC shall give the Customer the possibility to download the content of the agreement and the present GTLS and save them in reproductive form.
11.3 DELTA LOGIC 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 DELTA LOGIC'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. DELTA LOGIC 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 October 23, 2023. In cases of doubt the German version shall prevail.
DELTA LOGIC Automatisierungstechnik GmbH
Stuttgarter Strasse 3
73525 Schwäbisch Gmünd
|+49 7171 916-120
|+49 7171 916-220