General terms and conditions
General Terms and Conditions of Sale and Delivery of contidata Datensysteme GmbH
(Status August 2021)
1.1 The following General Terms and Conditions apply to all deliveries and services of contidata Datensysteme GmbH, hereinafter referred to as Seller, including consulting services and information. They also apply to all future delivery transactions, even if they are not expressly agreed again.
1.2 Deviating conditions of the purchaser are not binding for the seller, if he has not expressly agreed to their validity.
2. Offer, Conclusion of Contract
2.1 The Seller's offers are subject to change until accepted by the Purchaser. Details in offers as well as in enclosed drawings and illustrations concerning the performance, their dimensions and weights are only approximate unless they are expressly designated as binding.
2.2 The content and scope of the agreements made shall be governed by the Seller's written order confirmation. Oral subsidiary agreements made at the time of conclusion of the contract shall only be binding on the Seller if the Seller has expressly confirmed them in writing.
2.3 The Seller reserves the right to make technical changes in design, form, material, also during the delivery period, provided that these changes are reasonable for the Purchaser.
3. Cooperation of the customer
3.1 The Customer shall promptly provide the Seller with all information necessary for the performance of the contractual services. The Customer shall nominate in good time a contact person responsible for providing binding information on organizational matters.
3.2 The Purchaser shall ensure that competent personnel trained in the operation of the equipment are available at the latest at the time of handover of the goods/program.
4.1 Unless otherwise agreed, deliveries shall be made ex works for the account and at the risk of the Purchaser.
4.2 The Seller shall be entitled to make partial deliveries insofar as they are reasonable for the Purchaser. Such partial deliveries may be invoiced separately.
4.3 Compliance with agreed dates or deadlines for deliveries shall be subject to the timely receipt of all documents to be provided by the Purchaser, necessary approvals and releases, in particular of plans, the provision of all necessary information, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if the Seller is responsible for the delay.
4.4 The Seller may also request a corresponding extension of the delivery period in the event of subsequent changes to the order at the request of the Purchaser.
4.5 If non-compliance with the delivery period is due to force majeure or other unforeseeable circumstances for which the Seller is not responsible - e.g. operational disruptions, strike, lockout, lack of means of transport, official interventions, material procurement or energy supply difficulties, even if they occur with upstream suppliers - the delivery period shall be extended to a reasonable extent. If the aforementioned circumstances render the deliveries or services impossible or unreasonable, the Seller shall be released from the delivery obligation, even if they occur during an already existing delay. The Seller shall notify the Purchaser of the beginning and end of such hindrances without delay.
4.6 If the Seller is in default with the delivery, the Purchaser may only withdraw from the contract and claim damages for non-performance if it has granted the Seller a reasonable grace period of at least three weeks in writing and this period has expired without result. The grace period shall be combined with a declaration that the Purchaser will refuse acceptance of the delivery after the fruitless expiry of the grace period. The setting of a deadline with a threat of refusal shall not be required if the Seller has previously seriously and finally refused delivery. If an impediment to delivery lasts longer than three months or if delivery becomes impossible as a result of an event of the kind referred to in No. 4.5, either contracting party shall be entitled to withdraw from the contract.
4.7 Claims for damages by the Purchaser due to delayed delivery or failure to deliver shall be excluded except in cases of intent or gross negligence on the part of the Seller's legal representatives or vicarious agents and authorized representatives.
5.1 The prices quoted by the Seller are ex works plus packaging plus the statutory value added tax applicable on the date of invoicing.
5.2 The prices quoted are binding until the expiry of the agreed delivery periods if these do not exceed eight weeks from the conclusion of the contract. If, for deliveries with an agreed delivery period of more than eight weeks after the conclusion of the contract, the acquisition or manufacturing costs for the Seller's deliveries demonstrably increase (as a result of an increase or decrease in wage costs, material prices or public charges), the Seller shall be entitled to make a corresponding price increase.
5.3 The prices estimated by the Seller are valid for the quantities and agreed conditions specified in the offer and are subject to possible adjustment in case of change of quantity or addition to the conditions.
If it turns out during the customer-specific system adaptation work that the prices are too low as a result of incorrect information provided by the customer, the seller has the right to make additional claims.
6.1 Payment term: Within 14 days after receipt of invoice without deduction.
6.2 Checks and/or bills of exchange shall only be accepted on account of payment and shall only be deemed as payment after they have been honored. Discount and other bill charges as well as the costs of collection shall be borne by the customer.
6.3 In the event of default in payment by the Purchaser, interest on arrears shall be charged in the amount of the respective interest rate of the Seller's house bank for overdrafts, but at least interest in the amount of 8% above the base interest rate p.a. 6.4 The Purchaser may only set off against the Seller's claims for payment or establish a right of retention with counterclaims that are undisputed, have been finally adjudicated, are ready for decision or are based on the same contractual relationship.
6.5 If the Purchaser defaults on a due payment or if, after the conclusion of the contract, the Seller becomes aware of circumstances that are likely to reduce the Purchaser's creditworthiness and jeopardize compliance with its payment obligations, the Seller may demand advance payment or the provision of security for outstanding deliveries and may withdraw from the contract after unsuccessfully setting a reasonable grace period for the provision of security.
7. Dispatch, transfer of risk
7.1 The Seller reserves the right to determine the mode and route of shipment at its reasonable discretion. Packaging and transport will be charged to the purchaser at the favorable house price. Transport insurance shall only be taken out on the express instruction and at the expense of the orderer.
7.2 Benefit and risk shall pass to the Purchaser at the latest when the goods leave the Seller's works or warehouse.
7.3 If shipment is delayed at the request or through the fault of the Purchaser, the goods shall be stored at the expense and risk of the Purchaser. In this case, the risk shall pass to the Purchaser upon notification of readiness for shipment.
8. Liquidated damages, returns
8.1 If the Purchaser unjustifiably withdraws from the contract or unjustifiably refuses acceptance of the delivery or service, the Vendor shall be entitled to demand 15% of the agreed price as compensation for non-performance without providing special evidence. The orderer shall be entitled to prove that the seller has suffered no or less damage.
8.2 Returns of goods will only be accepted up to 5 % of the order value once and only in original, sealed condition within six months after delivery. However, custom-made products are excluded from return. The return shipment is at the expense and risk of the purchaser. In the case of accepted returns, the purchase price will be refunded with a deduction of 15% for processing, inspection, administration and other overhead costs. Claims for defects of the Purchaser shall remain unaffected by this No. 8.2.
9. Ownership and copyright of documents
The Seller shall retain ownership, copyright and all exploitation rights to the illustrations, drawings, catalogs, brochures and other documents provided by him without restriction. They may not be made accessible to third parties without the express consent of the Seller and must be returned to the Seller immediately upon request if the order is not placed.
10. Retention of title
10.1 The goods shall remain the property of the Seller until all claims against the Purchaser to which the Seller is entitled under the business relationship, including ancillary claims and claims for damages, including claims arising from the cashing of checks and bills of exchange, have been satisfied.
10.2 Any processing or treatment of the reserved goods shall be carried out by the Purchaser on behalf of the Seller. If the goods subject to retention of title are combined with other goods owned by third parties during processing or treatment, the Seller shall acquire co-ownership of the new item in the ratio of the purchase price agreed between the parties to the corresponding purchase price for the other goods.
10.3 In the event of the Purchaser's default in payment, an application for the opening of insolvency proceedings against its assets, a transfer of the expectant right to third parties or the transfer of the Purchaser's business operations to third parties, the Seller shall be entitled to take back the Retained Goods and to enter the Purchaser's business premises for this purpose. The taking back of the reserved goods by the Seller shall not constitute a rescission of the contract unless the Seller expressly declares this in writing. After taking back the goods subject to retention of title, the Seller shall be entitled to sell them on the open market. The proceeds of the sale shall be credited against the Purchaser's liability less reasonable costs of realization.
10.4 The Purchaser shall be entitled to resell the Retained Goods in the ordinary course of business. The Purchaser's claims arising from the resale of the Retained Goods are hereby assigned to the Seller in the amount of the value of the Retained Goods together with all ancillary rights. The Purchaser is entitled to collect the assigned claims as long as he fulfills his payment obligations. In the event of default of payment by the Purchaser, the Seller shall be entitled to revoke the collection authorization. In this case, the Purchaser shall be obligated, at the Seller's request, to provide the Seller with all information necessary for collection, to allow the Seller to have the inventory of the assigned claims checked by an authorized representative on the basis of the Seller's accounting records, and to notify the debtors of the assignment.
10.5 The Purchaser is prohibited from pledging or assigning the reserved goods as security. The Purchaser is obliged to notify the Seller without delay of any pledges, seizures or other dispositions or interventions by third parties in the reserved goods or the claims assigned in advance.
10.6 The Purchaser shall be obliged to make all declarations required by law at the place of destination for the retention of title to become effective and to issue any documents required.
10.7 The Seller undertakes to release the securities to which it is entitled by virtue of the retention of title at the Purchaser's request and at the Purchaser's option to the extent that their realizable value exceeds the claims to be secured by more than 10%.
11. Claims for defects/ Warranty
11.1 The Purchaser is aware that, according to the state of the art, defects in programs and/or the goods cannot be excluded.
11.2 The Purchaser shall inspect the goods received for quantity, quality and guaranteed characteristics immediately upon arrival. Obvious defects must be notified to the Seller in writing within ten days of receipt of the delivery, hidden defects within ten days of discovery. Otherwise, the delivery shall be deemed approved.
11.3 At the Seller's request, the Purchaser shall return to the Seller goods about which a complaint has been made, carriage paid. If the notice of defect turns out to be justified in such a case, the Seller shall bear the costs of the most favorable return shipment in terms of freight.
11.4 If a defect for which the Seller is responsible cannot be determined during an inspection, the costs of this inspection shall be borne by the Purchaser. This shall apply in particular in the event of incorrect use of the goods and/or the programs or the existence of other faults for which the Seller is not responsible.
11.5 The Purchaser shall give the Seller sufficient opportunity to examine the complaint, in particular to make damaged goods and their packaging available for inspection by the Seller. If he refuses to do so, the Seller shall be released from liability for defects.
11.6 The Seller shall not be liable on the basis of public statements made in its advertising or the advertising of any other manufacturer of the delivered goods or its agents, if and to the extent that the Purchaser cannot prove that the advertising statements influenced its decision to purchase, if the Seller was not aware of the statement and did not have to be aware of it or if the statement had already been corrected at the time of the decision to purchase.
11.7 The Seller's warranty shall be limited to the fact that he shall, at his discretion, either repair free of charge or replace by new parts (replacement delivery) all parts which are proven to be unusable or considerably impaired in their usability within one year after the date of delivery as a result of a circumstance occurring prior to the passing of risk due to defective design, material quality or construction. Replaced goods shall be returned to the Seller within a period of 4 weeks. The Purchaser shall grant the Seller a reasonable period of time to carry out the repair or replacement delivery. If the Purchaser refuses to do so, the Seller shall be released from its liability for defects.
11.8 If a repair or replacement delivery is not possible or is delayed beyond a reasonable period or fails for other reasons for which the Seller is responsible, the Purchaser may, at its option, withdraw from the contract or reduce the purchase price. Claims for damages in accordance with No. 11.12 below shall remain unaffected.
11.9 The Seller shall not provide any warranty for damage caused by natural wear and tear, faulty or negligent handling or assembly, excessive stress or improper modification or repair as well as, if applicable, improper use by the Purchaser or third parties.
11.10 Within the scope of its duty of care, the Customer shall be responsible for regular data backups of both the program statuses used and the individual system settings and the current user data, as well as for regular plausibility checks of the stored data. Data backup as well as plausibility check have to be carried out by the customer at least once a day. The Seller shall only be liable for the retrieval of data if the Purchaser has ensured that this data can be reproduced with reasonable effort from data files provided in machine-readable form in the sense of proper data processing and if the Purchaser has demonstrably fulfilled its obligations with regard to data backup and plausibility check.
11.11 The above limitations of liability shall not apply to damage caused by intent, gross negligence or the absence of warranted characteristics, nor to personal injury and damage caused by the infringement of third party copyrights.
11.12 Any further claims of the Purchaser shall be excluded unless the Seller's representatives or vicarious agents and authorized representatives are guilty of intent or gross negligence, liability is given under the Product Liability Act, the defect or damage is based on the breach of a warranty or the Seller is liable for breach of a fundamental contractual obligation. This does not imply a change in the burden of proof to the detriment of the Purchaser. In cases of non-intentional or non-grossly negligent breach of an essential contractual obligation, the Seller's liability shall be limited to the foreseeable damage typical for the contract, however, not exceeding three times the purchase price of the product, program or program module which is the subject of the claim or which directly caused the damage.
11.13 The warranty period shall be 12 months after delivery of the products and transfer of the respective programs or after performance of the respective program extension or other contractually agreed service (see items 11.1 - 11.12). For exchange modules and spare parts, the Purchaser's claims for defects shall be valid for a one-time period of 6 months, this shall apply taking into account the separately described procedure in the respective valid version.
11.14 Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, the suspension of the expiry of the limitation period, the suspension and the recommencement of limitation periods shall remain unaffected. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
12. Scope of use for software
The Seller grants the Purchaser the non-transferable and non-exclusive right to use the programs provided by the Seller together with the program documentation. These programs may neither be copied nor made available to others for use. In the event of infringement of these rights of use, the Purchaser shall be liable in full for any resulting damage.
13. Final Provisions
13.1 All legal relations between the parties arising from or in connection with this contract shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
13.2 The place of performance for all deliveries, services and payments as well as the place of jurisdiction for all legal disputes, including actions on checks and bills of exchange, shall be the registered office of the Seller, provided that the Purchaser is a merchant, a legal entity under public law or a special fund under public law.
13.3 The Purchaser consents to the processing of its data as required for business purposes; the foregoing shall be deemed to be notification pursuant to Section 33 (1) of the Federal Data Protection Act.
13.4 The Seller reserves the right to amend or supplement these General Terms and Conditions should individual provisions be invalid in the opinion of the courts and should the Purchaser be unilaterally and unreasonably advantaged as a result of the invalidity. The Seller shall notify the Purchaser of any amendments or additions to the General Terms and Conditions in an appropriate form. If the Ordering Party does not agree with the changes, it may withdraw from the contract within two weeks of their announcement by written declaration to the Seller. Otherwise, the Purchaser shall be deemed to have given its consent after the expiry of this period. The Seller shall specifically draw the Purchaser's attention to the effect of an unsubmitted declaration when announcing the amendment or supplement to the General Terms and Conditions.
13.5 These General Terms and Conditions shall also apply in favor of any legal successors of the Parties.
14. Severability clause
Should individual provisions of contracts or other written agreements or these terms and conditions be invalid, this shall not affect the validity of the remainder of the contract, agreement or these terms and conditions. Ineffective or void provisions shall be replaced by provisions which come closest to the will of the contracting parties in an effective manner.