General Terms and Conditions of InfoGraph GmbH, Aachen, Germany
As of July 1, 2002
§ 1 Enforcement of Terms and Conditions, Applicable Law
The goods, services and offers of the Contractor are provided exclusively on the basis of these General Terms and Conditions. The General Terms and Conditions are therefore also valid for all future business relations even if not expressly agreed upon again. The law of the Federal Republic of Germany shall apply exclusively.
§ 2 Conclusion of Agreement
(1) All offers enclosed in brochures and advertisements and the prices quoted therein are non-binding and subject to change. The Contractor shall be bound to specially negotiated offers for a period of 30 calendar days.
(2) The Customer shall be bound to his order for a period of 6 weeks. The written confirmation of the Contractor shall be required for orders to have legal effect.
(3) Subsidiary agreements, alterations and amendments shall require the written confirmation of the Contractor in order to be valid.
§ 3 Types of Agreement
The agreements between the Contractor and Customer shall be understood as sales agreements insofar as they involve the delivery of goods. The creation, modification and installation of software shall be provided under service contracts. All mutual obligations shall arise exclusively from the following provisions which shall not be affected by any financial agreements between the Customer and a third party. In particular, the payment obligations of the Customer are upheld in full.
§ 4 Prices, Price Changes
(1) All prices are listed without statutory VAT.
(2) The prices for the delivery of goods including freight and packaging are not included.
(3) Insofar as the time between conclusion of the agreement and the agreed or actual date of delivery/service performance is more than 6 months, the prices of the Client valid at the time of delivery, provision or service shall apply.
(4) The Contractor shall charge an hourly rate for the modification, configuration or installation of software. If the Contractor carries out work on the Customer’s premises, then he shall be entitled to charge any related travel costs.
§ 5 Delivery and Performance Times
(1) In the event a delivery or service by the Contractor is in default, the Customer may withdraw from the agreement based on the following provision.
(2) The Customer shall set the extension period as prescribed by law to 6 weeks. The extension period shall begin once notice thereof is received by the Contractor.
§ 6 Shipping and Transfer of Risk
(1) The risk shall transfer to the Customer as soon as the shipment is handed over to the carrier or has left the premises of the Contractor for delivery. If shipment is delayed at the request of the Customer, the risk shall transfer to the Customer upon shipment notification.
(2) The Contractor shall be entitled but not obligated to insure shipments in the name and at the cost of the Customer.
§ 7 Software License
(1) The Contractor grants the Customer a non-exclusive, non-transferable license to use the software programs created by the Contractor in the business operations of the Customer. The license includes the right to purchase subsequent program revisions or extensions.
(2) In the case of lease installations, the right to use the licensed programs shall expire once the leasing period ends. The Customer shall be obligated to return to the Contractor all data carriers, documentation and software protection devices at his own cost and risk and delete all program copies within one week after expiry of the leasing period. If the Customer is in default in returning said items, the Contractor shall be entitled to claim the agreed leasing fees as compensation for use until those items are returned.
(3) Data carriers and devices included in the delivery for software protection purposes shall remain the property of the Contractor. If it is shown that such devices are damaged by accident, they shall be replaced with reimbursement of the costs of the Contractor. In case of willful damage or damage due to serious operating errors, the Contractor shall exercise its equitable discretion in determining the conditions for a redelivery of programs.
(4) The programs and operating instructions are protected by copyright. The programs may not be copied, altered or amended or passed on to third parties. The Customer may, however, create a backup copy of each data carrier as well as a working version of the program for exclusive use. The software protection may not be removed or disabled.
(5) If unauthorized persons are allowed to use the programs or the software protection is removed or disabled by the Customer or by a third party whom the Customer has given access to the programs, the Customer shall be required to pay a contract penalty in the amount of the licensing fee for each case of violation. The right to assert additional damages shall be reserved.
§ 8 Warranty and Liability
(1) The warranty period is 6 months and begins on the date of delivery or service performance.
(2) If the delivery item is defective or missing promised features, the Contractor shall choose to either replace or rectify the original item at the exclusion of further warranty claims by the Customer. Multiple rectifications shall be permitted. This shall also apply to the programs licensed by the Contractor. Program errors are defined as program instructions or omitted program instructions which result in incorrect results or program failure despite proper use of the program in accordance with the operating manual. The warranty rights of the Customer shall be limited to a right to rectification which is asserted by means of an exact written description of the error and situation in which the error occurred.
(3) The Customer must inspect the goods for shipping damages immediately upon arrival and notify the Contractor in writing of any damages or losses. The Contractor must also be given written notification of any obvious defects immediately or within 2 weeks of delivery at the latest. A violation of these provisions shall lead to the exclusion of any and all warranty claims against the Contractor.
(4) The Contractor shall to the best of his knowledge inform and advise the Customer regarding the use of his products. The Contractor shall only be held liable for this as set forth in the paragraph below if a special fee has been agreed for the above service.
(5) Compensation claims against the Contractor or his vicarious agents arising from impossibility of service performance, non-performance, positive breach of contract, debt at the time of contract conclusion or improper handling shall be excluded provided that such damages are not the result of willful or gross negligence.
§ 9 Retention of Title
(1) The Contractor shall retain the title to supplied goods (goods subject to retention of title) until all the demands which the Contractor is or will be legally entitled to assert against the Customer have been fulfilled. The Customer may not possess any goods subject to retention of title.
(2) In the event of improper conduct by the Customer, in particular default of payment, the Contractor shall be entitled to take back all goods subject to retention of title or revoke software licenses at the cost of the Customer. If the Contractor asserts this right, it shall not entail withdrawal from the agreement.
§ 10 Payment
(1) Sales or technical personnel shall not be entitled to cash collection. Payment with discharging effect can only be made directly to the Contractor or to one his specified bank accounts.
(2) Unless specified otherwise, the invoices of the Contractor shall be paid in net within 14 days of the invoice date.
(3) The Contractor shall reserve the right to refuse checks or bills of exchange. Acceptance shall only be given on account of payment. Discount or bill charges shall be borne by the Customer and due immediately.
(4) Under the exclusion of §§ 366 and 367 of the BGB (German Civil Code) and despite conflicting provisions of the Customer, the Contractor shall determine which demands have been fulfilled through payment by the Customer.
(5) The Customer shall only be entitled to set off payment if counter claims are determined to be indisputable or legally enforceable.
§ 11 Severability Clause
Should one or more of the provisions set forth in these General Terms and Conditions be held to be invalid, the validity of the remaining provisions shall remain unaffected thereby. Invalid provisions shall be replaced by provisions which best reflect the original intent of the contract.
§ 12 Place of Performance, Jurisdiction
The place of jurisdiction and performance for all goods and services of the Contractor shall be Aachen, Germany.