1. General, conclusion of agreement, binding period
1.1 All our – including future – deliveries and services, including consulting services and other
ancillary performance, are subject exclusively to the following General Terms of Business,
insofar as the customer is a business, a legal entity under public law or a special fund under
public law. Terms of business of the customer are hereby disputed.
1.2 Any agreements deviating from these General Terms of Business require our written
confirmation. This requirement for the written form can be waived only by a written
declaration by us.
1.3 The customer is bound by his order for a period of two weeks. The contract is deemed duly
concluded when we have confirmed our acceptance of the order within this period or have
provided delivery or service.
1.4 We do not accept any guarantee or any procurement risk for the deliveries and services we
owe. All obligations on our part are subject to the condition of correct self-delivery to us. We
reserve the right to make changes in design or material as long as such changes do not
significantly alter the delivery or service and the customer can be reasonably expected to
accept the changes.
1.5 The scope, nature and quality of our deliveries and services shall be based on the contract
signed by both parties, otherwise by our confirmation of order, otherwise by our offer. Other
specifications or requirements shall become a constituent part of the contract only if we have
expressly agreed these in writing with the customer. All information contained in our product
descriptions, test programs and other documents, in particular in our brochures, catalogues,
price lists, illustrations, drawings, calculations, advertising material and in our Internet
presence are intended only to provide a general picture of the products indicated therein.
They do not contain any declarations, undertakings or guarantees on our part regarding
product characteristics and are not part of the contract.
1.6 The rights of the customer from contracts agreed with us can be ceded only when we have
confirmed such transfer in writing in advance.
2.1 All prices are quoted in EURO without discount or other rebates and before the relevant
amount of value-added tax applicable at the day of the delivery or service and before any
charges or duties imposed by customs authorities and the resulting costs, as well as before
charges for transportation costs, travelling expenses, charges, ancillary expenses and
telecommunication costs. Any additional performance also requested by the customer (e.g.
consulting and support in program installation) will be charged according to our currently valid
price list. Prices in the price list can be increased by at most 3 % per annum.
2.2 If there are significant changes in cost factors, in particular wage costs, material prices or
freight charges, we shall be entitled to adjust the agreed prices to a suitable extent in line with
the effect of the changed cost factors.
2.3 If the delivery or service is not provided by the agreed date or within the agreed period for
some reason for which the customer is responsible and if more than three months have
passed since the contract was concluded, we shall be entitled to charge our current and
applicable list prices.
3. Terms of payment
3.1 We are not obliged to provide advance performance. Our claims are due for payment when
the contract is signed.
3.2 All payments are to be made in cash or by bank transfer into one of our bank accounts,
without any deductions.
3.3 We accept bills of exchange and cheques only on the basis of written agreement, only in
settlement of debt and without any guarantee for punctual presentation or protest. Discount
charges and all other costs arising in connection with the acceptance or redemption of bills or
cheques shall be borne by the customer.
3.4 In the case of default of payment or risk to settlement of our claims due to deterioration of the
customer’s solvency situation, we shall be entitled to demand payment of all our claims,
irrespective of the term of any bills or agreed payment dates, and/or demand securities. We
shall also be entitled to provide any outstanding deliveries/performance only against advance
payment or against rendering of securities. If the customer refuses to provide payments on
account or securities, we shall be entitled to withdraw from the agreement and demand
compensation for damages. We shall furthermore also be entitled, without withdrawing from
the contract, to prohibit all use, processing, modification, combination, mixing or sale of the
products we have delivered, cancel direct debit authorisation pursuant to number 6.7 and
demand return of the products at the customer’s cost, without the customer having any right
or retention or similar rights in that regard. We shall dispose of products returned to us
through private sale and set off the proceeds from such sale, less expenses thereby incurred,
against our claims against the customer.
3.5 The customer shall have a set-off or retention right only insofar as the customer’s
counterclaims are not disputed or have been established in law.
4. Time of delivery and performance
4.1 Dates and periods for deliveries / services are to be considered approximations and binding on
us only when expressly confirmed in writing and also only when all details of the order have
been clarified in good time and the customer has punctually fulfilled all of its obligations. Any
changes to execution of our delivery or service requested by the customer after the contract is
signed and accepted by us shall entitle us to extend to a suitable extent the originally agreed
deadlines and periods for performance.
4.2 If we are prevented from performing punctual deliveries and services according to the dates
and periods agreed as being binding for reasons for which we are not responsible, the period
for delivery and performance shall be extended by the duration of the hindrance and a suitable
start-up time. Evens for which we are not responsible in the above sense include, in addition to
force majeure, in particular strikes and lockouts and incorrect or failed deliveries by our
suppliers for which we are not responsible. In such cases we shall be entitled to withdraw from
the contract in part or in full with regard to the part not yet executed. The customer shall in such
cases be entitled to withdraw from the contract after an extended suitable period of
fulfilment set in writing has expired without result subject to the statutory conditions if he
cannot reasonably be expected to accept the delivery or service due to the delay.
4.3 If we are in default, the customer shall be entitled to withdraw from the contract after an
extended suitable period of fulfilment set in writing has expired without result.
5. Delivery, performance, shipping, transfer of risk
5.1 We are entitled to provide partial deliveries and performance. The method of the delivery of
software shall be based on the agreements reached with the customer in that regard. In the
absence of agreement to the contrary, programs and manuals will be provided online. The
customer has not claim to delivery of the source program.
5.2 The customer must accept deliveries and services that we provide without delay. We shall
otherwise be entitled to store the goods to be delivered at the customer’s cost and risk
according to our own discretion. If within a suitable additional period that we set the customer
fails to accept the delivery or performance or expressly declares an intention not to accept the
delivery or performance, we shall be entitled to withdraw from the contract and/or demand
compensation for damages incurred. We can in such a case demand damages equivalent to a
fixed rate of 15 % of the order amount. The customer shall then be entitled to prove that we
have incurred lesser or no damages. We also reserve the right to furnish proof of some higher
damages incurred in some individual case.
5.3 The place of performance for our delivery and performance obligation is our place of business.
Shipping or other delivery of our product shall always be at the customer’s cost and risk. The
choice of way and means of delivery is reserved for us, unless otherwise agreed. We accept no
warranty for the cheapest or quickest form of delivery. We shall take out transport insurance
only at the express request and for the cost of the customer.
5.4 The risk, including the risk of accidental destruction or deterioration of the product, shall in the case of the customer collecting the product at the time the product is handed over to the
customer and in the case of shipping at the time the product is provided to the carrier, transport agent or some other person or institution authorised to carry out the delivery; this
shall apply irrespective of whether or not the delivery is arranged on a carriage-paid basis. If
goods that were declared to be ready for collection or shipping are not picked up or called by
the customer without delay, the risk shall be considered transferred to the customer at the
time of notification of delivery readiness. If software is provided by means of electronic
communications media (e.g. the Internet), the risk shall be considered transferred to the
customer when the software leaves our area of influence (e.g. in the case of download).
6.1 The customer must report to us in writing without delay any malfunctioning or faults coming
to his intention and describe the situation as precisely as possible (error report). The customer
must support us to the best of his ability in investigating and remedying any defect. If there is
no defect to be found in our product or our service, the customer shall compensate us for the
expenses incurred due to the error report, in particular to pay remuneration for our resulting
work. This shall be the case in particular when the false error report was due to some incorrect
operation or a problem in the software environment.
6.2 When our products are sold, there can be no warranty claims for the sale of used products.
Warranty claims due to sold new products that are found to be defect are otherwise
determined according to sections 6.3 to 6.11.
6.3 The contractual characteristics of our software is determined exclusively according to the
specifications in the documentation in the version valid at the time the contract is concluded.
Defects that lead to only an insignificant reduction in the potential use of our software shall
not be considered. Function impairments arising from the hardware and software
environment that we did not provide, incorrect operation, the use of external defective data,
faults in computer networks or some other reasons within the scope of risk of the customer or
the end user shall not constitute defects in this sense. There can be no warranty claims for
software that was modified by the customer, by the end user or by some third party, unless
the customer can prove that the modification was not the cause of the defect. There can be no
warranty claims for defects in software provided for testing or demonstration purposes.
6.4 Warranty claims can be asserted only when and insofar as the faulty product amounts to more
than 5 % of the total delivery quantity. Defects in part of a delivery cannot be taken as reason
for rejecting the entire delivery.
6.5 If the product was accepted by the customer or if it is considered accepted, the customer
cannot file complaint for any defects that could have been established at the time of
acceptance. Otherwise the period for complaint regarding (visible) defects that would have
been recognisable if careful inspection had been provided expires after two weeks have
elapsed since the product is received at the delivery destination.
6.6 The customer must properly store any product claimed to be faulty and give us opportunity to
inspect the product. All use, processing, modification, combination, mixing or sale of the
allegedly defect product must be discontinued immediately. The customer must take all
necessary and reasonable measures to prevent damage being caused by the product, in
particular ensure the safety of programs and data. The customer must furthermore make
available to us immediately on request, which we can make at any time, the allegedly defect
product or – at our discretion – provide to us samples thereof. The customer must support us
in error analysis and removing any defects by in particular describing specifically any problems
that occur, providing to us comprehensive information and allowing us the time and
opportunity necessary for removing the defect. If the customer is in breach of his obligations
under this section or under section 6.1, all warranty claims shall elapse.
6.7 The customer shall compensate us for any additional costs arising as a result of products we
deliver being modified, used outside the intended environment or operated incorrectly.
6.8 If we are responsible for some defect in a product, we shall be entitled, at our own discretion,
to remove the fault (improvement) or to deliver a fault-free product (replacement). Removal
of a defect can also be undertaken in that we provide a new program version of the software
or show reasonable opportunities of avoiding the effects of the defect. The customer shall also
be obliged to accept a new program version even if this necessitates some reasonable
adaptation effort on the customer’s part. We shall also be obliged to pay transportation costs
only insofar as these costs are not increased by the product being delivered to some
destination other than the place of performance. We are entitled to carry out removal of the
defect either on location or in our premises, according to our own discretion. We are entitled
to provide software services in the form of remote maintenance. The customer must ensure at its own cost the technical conditions necessary for our repair work and grant to us electronic
access to software after the relevant prior announcement.
6.9 If our repair efforts or replacement delivery fail, the customer is entitled to withdraw from the
agreement or reduce the purchase price with regard to the faulty product following expiry of a
reasonable period for fulfilment that the customer set in writing. The customer shall have the
same rights, including without the need to serve notice, if we seriously and finally reject
improvement or replacement delivery. Further rights on the basis of defects – in particular
claims to damage compensation within or outside the contract – are excluded within the
extent provided under number 8.
6.10 The customer can exercise statutory warranty rights without restriction if we have fraudulently concealed a defect.
6.11 The statute of limitations is (i) one year from the time the product is delivered in the case of
material defects for claims for refund of purchase price or withdrawal or price reduction, but
for correctly filed complaints not less than three months from the time the legally effective
declaration of withdrawal or reduction is issued; (ii) one year in the case of other claims from
material defects; (iii) two years in the case of claims based on defects in title, when the defects
in title are not due to some right of a third party on the basis of which the third party can
demand surrender of products or cease and desist of use of the product. The statute of
limitations shall commence at the latest when the periods determined under section 199 BGB
6.12 In the event of any defects in some works performance, we are entitled to make at least five
attempts at remedy before the customer can assert further warranty claims. The provisions
under sections 7 .1 to 7.11 shall otherwise apply accordingly. The subject of any right of
reduction is the remuneration owed by the customer.
6.13 In the event of any defects in rented products, we are entitled to make at least five attempts
at remedy before the customer can assert further warranty claims. The provisions under
sections 7 .1 to 7.11 shall otherwise apply accordingly. The subject of any right of reduction is
the rent owed by the customer. There shall be no strict liability for defects already existing at
the time the contract is signed according to section 536a (1) BGB.
7.1 For direct damage, loss of earnings, missed savings, indirect and/or consequential damage and
expenses that are incurred by the customer or a third party in connection with the
preparation, execution or termination of a contract, we shall be liable, pending the following
provisions, only if our legal representatives, executive staff or simple vicarious agents have
caused the damage and/or the expenses by malice aforethought or gross negligence, with,
however, our liability in the case of gross negligence on the part of simple vicarious agents (in
contrast to our legal representatives or executive staff) being limited to the amount of the foreseeable (typically occurring) damage or expenses. We shall bear no contractual, non-
contractual or other liability irrespective of the legal basis of the compensatory claim (in particular also due to the breaches of obligations from a contractual or statutory obligation –
such as defect or default – due to obstacles to our performance existing at the time the
contract was concluded and due to unlawful acts) when our legal representatives, executive
staff or simple vicarious agents bear no responsibility or merely simple negligence.
7.2 The above limitations of liability shall not apply (i) for injury to persons, (ii) for any producer
liability or (iii) in the case of culpable breach of certain central obligations from the contractual
relationship, when this jeopardises the achievement of the purpose of the contract in
question. In the case indicated under (iii), our liability is, however, limited to compensation for
the foreseeable (typically occurring) damage.
8. Place of performance, legal venue
8.1 Place of performance for our deliveries and services and for the customer’s payment
obligations is our registered domicile.
8.2 When the customer is a merchant, a legal person under public law or a special fund under
public law, the exclusive legal venue will be our official place of business. We are, however, also entitled to take legal action against the customer at courts of the customer’s general legal
8.3 All legal relations between us and the customer are subject exclusively to the law of the
Federal Republic of Germany applicable to the legal relations between parties within Germany.
UN Sales Law shall not apply.
8.4 If any one or more provisions of these General Terms of Business is or becomes void or
ineffective in law, this shall not prejudice the validity of the remaining provisions. The void or
ineffective provision shall be replaced by a regulation that comes as close as possible to the
commercial goal of the original invalid provision.