§1 Scope of the conditions
§2 Offers, orders, contracts and prices
§3 Service performance and dates
§4 Place of performance, delivery, transfer of risk
§5 Terms of payment
§6 Liability and Warranty
§7 Confidentiality, intellectual property rights and copyrights
§8 Place of jurisdiction
I. SCOPE OF THE CONDITIONS
1. All our offers, deliveries and services, in particular software delivery in the form of licenses, customization (change requests) and consulting, shall be based exclusively on the following terms and conditions and any other written agreements.2. These terms and conditions shall also apply to all future offers, deliveries and services, even if they have not been expressly agreed again. These terms and conditions shall be accepted upon first dispatch, but at the latest with acceptance of our services.
3. Divergent general terms and conditions of the contracting parties shall only become part of the contract if they have been expressly agreed to in writing previously.
II. OFFERS, ORDERS, CONTRACTS AND PRICES
1. All offers, price lists, advertising brochures and other similar items are subject to change and non-binding. The prices are based on the hourly rates or fixed amounts agreed in writing in the offer. Unless otherwise stated, prices are exclusive of VAT applicable at the time of delivery or at the time of partial delivery with own invoice.
2. The order is a binding offer, regardless of whether it is submitted in writing or electronically (e.g. e-mail). Acceptance by us shall take place within four weeks either by sending an order confirmation, by sending a countersigned order, by sending a contract or by delivering the service.
3. If it is an order or an electronic order, a confirmation of receipt shall only constitute acceptance of this order if this is expressly stated in the confirmation of receipt. A confirmation of receipt does not constitute an acceptance of the order.
4. Should there be a change in our costs during the order period (time between conclusion of contract and delivery) which has a direct or indirect effect on our services, we shall be entitled to adjust our prices accordingly.
5. Should the delivery of our services take place without a confirmation from the customer, the contract is concluded by acceptance of the service under these terms and conditions.
6. Obvious errors in invoices already issued entitle us to correct them.
7. If the customer withdraws from the contract for reasons for which we are not responsible, he must compensate us for the loss incurred. In case of doubt, this shall amount to 20% of the gross order value. In particular, services already rendered shall be remunerated to an appropriate amount.
III. SERVICE PERFORMANCE AND DATES
1. Delivery periods and dates are only approximate, unless expressly stated as binding in writing. The delivery periods shall commence upon receipt of our order confirmation, but not before all details of execution have been clarified. Partial deliveries or services are permissible and may be invoiced separately.
2. If an agreed deadline is not met through our fault, the customer/client shall be entitled to cancel the contract, but only after expiry of a reasonable grace period granted to us, together with a declaration of non-acceptance of the service after expiry of the deadline. If the customer/client suffers a loss as a result of a delay or non-delivery based on our fault, our liability shall only extend to cases of intent or gross negligence.
3. Events due to force majeure, traffic and operational disruptions, strikes, lockouts and unforeseeable difficulties on our part shall lead to a reasonable extension of the delivery and performance period. We shall not be responsible for the fault of other suppliers. By notifying the customer/client, we are entitled to extend the deadlines by the duration of the hindrance. Both contracting parties have the right to cancel the contract if the extension of the delivery period is more than three months for one of the foregoing reasons.
4. The customer/client shall not be entitled to any other or further entitlements in the case of exceeding the delivery period.
IV. PLACE OF PERFORMANCE, DELIVERY, TRANFER OF RISK
1. Place of fulfilment is Lehrte.
2. In the case of deliveries by post, the risk shall pass to the customer/client when the delivery leaves our premises. This also applies to partial deliveries, subsequent deliveries and corrections.
V. TERMS OF PAYMENT
1. Invoices are to be paid within 14 days of receipt without deduction, unless otherwise agreed on the invoice.
2. Cheques shall only be accepted by us upon prior agreement on account of fulfilment.
3. The granting of a term of payment requires a special written agreement.
4. In the event of delayed payment, we shall be entitled to additionally charge all resulting expenses and costs, in particular for warnings, debt collection and extrajudicial lawyer's fees as well as customary bank delay interest of up to 15% per annum. In addition, we shall be entitled in the case of delay in payment to suspend performance until payment has been made in full. However, this does not release the client from his payment obligation.
5. If the terms of payment are not fulfilled or circumstances become known to us which, according to our obligatory commercial discretion, are suitable to reduce the solvency of the customer/client, all payment obligations arising from the business relationship with us shall become due and payable immediately, regardless of the term and credited change. We are then also entitled, without prejudice to further statutory rights, to deliver outstanding deliveries only against advance payment or to demand appropriate guarantees. Furthermore, we shall be entitled to cancel contracts which we have not yet fulfilled by setting a deadline of two weeks in connection with the threat of cancellation in the event of non-fulfilment of all due payment obligations. Further entitlements remain unaffected.
6. We are entitled to issue an invoice after delivery of each individual unit or partial performance.
VI. LIABILITY AND WARRANTY
1. Warranty demands of the customer/client presuppose that he has properly fulfilled his inspection and complaint obligations according to §377 HGB.
2. The customer/client shall notify the contractor of any defects in all recognisable details. The warranty does not apply if the customer himself or a third party makes changes to the software created by us. Warranty rights with regard to faulty software shall generally not affect other services already provided. Services that have already been provided shall be charged at an appropriate rate.
3. If there is a fault in a service, the client/customer is entitled, at his discretion, to subsequent performance by removing the fault or to delivery of a new faultless item.
4. The limitation period for all warranty claims for software is one year and begins with the delivery or provision (as well as notification of the Licensee of this) of the contractual objects; the same period applies to other claims of any kind against the Licensor. We shall be liable without limitation in accordance with the statutory provisions for damage to life, limb and health caused by our negligent or intentional breach of duty and for damage covered by liability under the "Product Liability Act" and for damage caused by our intentional or grossly negligent breach of contract and fraudulent intent.
5. We are also liable for damages caused by simple negligence, insofar as this negligence relates to the breach of such contractual obligations, the observance of which is of particular importance for the achievement of the purpose of the contract (essential contractual obligations). In the case of a breach of contractual obligations due to ordinary negligence, the liability is limited to the typically foreseeable damage resulting from such breaches of duty.
6. Liability for indirect damages, (deficiency) consequential damages or losses, such as loss of income, loss of use, loss of production, capital costs or costs associated with a business interruption, is excluded.
7. Any further liability for damages - regardless of the legal nature of the asserted title - is excluded. Insofar as liability is excluded or limited on the basis of the above provisions, this exclusion or limitation shall also apply accordingly to legal representatives, fulfillment and vicarious agents.
8. No liability is assumed for loss of data. The customer is responsible for a timely data backup.
9. Unless otherwise agreed above, liability is excluded.
10. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
VII. CONFIDENTIALITY, INTELLECTUAL PROPERTY RIGHTS AND COPYRIGHTS
1. Both parties are obliged to treat information about trade and business secrets confidentially.
2. The customer is responsible for ensuring that documents, calculations and test positions produced by us within the scope of the projects are only used for his own purposes and are not made accessible to third parties.
3. The customer's obligation to maintain secrecy and copyright protection also includes, without limitation, the obligation to take appropriate steps to ensure that the secrecy obligations and copyright protection are also maintained by his employees.
4. The customer acknowledges that he carries all legal risks and consequences himself in the event of an offence against industrial property rights and copyrights.
XIII. PLACE OF JURISDICTION
The place of jurisdiction for both parties, if agreeable, shall be Lehrte.
1. The law of the "Federal Republic of Germany" shall apply. The provisions of the "UN Sales Convention" do not apply.
2. The parties are responsible for compliance with all relevant statutory data protection provisions, in particular the "Basic Data Protection Ordinance" (DSGVO) and the "Federal Data Protection Act "(BDSG), as well as for the legality of data transfer and data processing of personal data. The parties commit themselves to process personal data made available to each other exclusively in a lawful and transparent manner and exclusively for the provision of the contractual services.
3. Should any of the above provisions be or become invalid, the invalid provision shall be replaced by a provision that comes closest to the economic purpose of the contract while adequately ensuring both parties' interests.
General terms and conditions (GS FLEETCONTROL GmbH)
Release January 2019AGBs PDF