Terms and Conditions
These General Terms and Conditions (the .Terms.) shall only apply in respect of individuals and legal entities acting for commercial purposes, legal entities formed under public law and special funds (Sondervermögen) formed under public law.
The following Terms shall apply for all of our products and services. They shall also apply for future business dealings, even if we have not explicitly referred to them at the time of conclusion of the agreement. We herewith reject the application and inclusion of any general terms and conditions of the customer.
Deviations from these Terms, from our written offers and other agreements with the customer shall only be valid following our confirmation. The same shall apply to any modifications or supplementary agreements.
Our employees, to the exception of managing directors and holders of special statutory authorities (Prokuristen), are not authorized to agree on any contractual provisions in deviation from these Terms or to issue binding oral or written statements or to grant guarantees (Garantien) regarding the quality of our products.
1. Offer and Conclusion of Agreement
1.1 Unless agreed otherwise, our offers shall be non-binding until receipt of our written order confirmation by the customer and may, until that moment, be withdrawn by us at any time. Contracts shall be deemed concluded only after our written order confirmation or through performance of the order.
1.2 All industrial and intellectual property rights, in particular all rights in respect of the registration of proprietary rights regarding documentation handed over in connection with this offer, shall remain with us. The customer shall refrain from making available this documentation to third parties.
1.3 We shall have the right to make constructive or other modifications, which only lead to marginal or no adverse changes of performance specifications, weight or measure of the products also after conclusion of the agreement, to the extent they are customary and reasonable for the customer. Other subsequent modifications of specifications, requirements, etc. have to be agreed in writing.
1.4 The customer shall timely inform us in writing as regards the purpose and conditions of use and his requirements prior to the conclusion of an agreement in respect of the production of customized or individual software. We shall assist the customer in this respect upon his request. Unless such assistance only requires non-substantial activities, we are entitled to invoice such services to the customer in accordance with our then-current price list.
2.1 Unless agreed otherwise, the sales price shall be our list price in effect on the day of conclusion of the agreement. All prices are EX WORKS 82152 Planegg, Germany. VAT, package and freight shall be added to those prices.
2.2 Unless fixed prices have been explicitly agreed, we shall be entitled to modify the agreed prices if, following conclusion of the agreement, reductions or increases of our costs, in particular in respect of tariff agreements, changes in the pricing of materials or modifications of our supply prices occur which, following an overall assessment, modify our general calculation of prices. We are only entitled to modify prices within this scope, i.e. only insofar as this does not lead to any additional profit for us. Upon his request, we shall prove to the customer the original and the modified prices.
Unless agreed otherwise, all payments shall be made in Euro either in cash or by bank transfer. Other payment methods are only accepted "on account of performance".
4. Conditions of Payment
Please refer to our order confirmation.
The customer.s right to set-off shall be excluded, unless his counter claims have been finally awarded by a court or are undisputed or accepted by us. The same shall apply in respect of the customer.s right to withhold payment, unless his counter claim is based on the same legal ground.
5. Periods of Performance, Delivery
5.1 Specified delivery or production dates shall be non-binding unless explicitly agreed otherwise. Binding delivery periods shall commence on the day of communication of the order confirmation, but not before the customer has provided us with all required documents, letters of credit, guarantees, permits, authorizations and has complied with all further cooperation, respectively information obligations that may have been agreed.
Our obligation to perform shall be placed under the condition of correct and timely supply from third parties. We shall inform the customer without undue delay once we are informed that we will not receive required supplies in time.
5.2 Our performance period shall be reasonably extended in the event of legal measures regarding industrial action, in particular strikes and lock-outs, and in the event of force majeure, but only by the duration of such disturbance and an additional, reasonable start-up period, to the extent such events are proven to have substantial influence on the production or handover of the products or services. This shall also apply if our suppliers suffer from such event, unless we or our suppliers are responsible therefore.
We shall not be responsible for any of the above disturbances even if they occur during an existing delay of delivery. We shall inform the customer about the start and the end of such disturbance.
In the event our contract performance is impossible or unreasonably hindered in cases such as industrial action, including strikes or lock-outs, without us being responsible for any consequences thereof, or in cases of force majeure, for a period of more than 60 days, both parties shall be entitled to withdraw from the agreement in writing. Damage claims of both parties shall, notwithstanding any claims that have arisen prior to the occurrence of such event, be excluded.
5.3 We shall be entitled to partial deliveries to the extent this is reasonable for the customer.
6. Passing of risk
6.1 The risk of accidental loss, destruction or deterioration passes to the customer once the products have been handed over to the carrier. This shall also apply in the event of partial delivery and in cases where we have agreed to render additional services, e.g. shipment of the products.
6.2 In deviation from Section 6.1, the risk shall pass to the customer at the moment he does not accept the ordered and specified products even though we are able and willing to perform, or if the delivery date is delayed upon request of the customer. We shall be entitled in either case to invoice to the customer lump-sum damages amounting to 0.5 % of the invoice amount per month for our storage costs. Further damage claims shall remain unaffected. The customer is entitled to prove that we have incurred less or no damages.
7. Retention of Title
7.1 Delivered products shall remain in our property until fulfilment of all current and future claims resulting from our business dealings with the customer. In the case of current accounts, this retention of title shall apply to the respective debit balance. If the customer purchases products subject to retention of title (.Secured Products.) for the purpose of resale, he shall be entitled to resell the Secured Products within his orderly business dealings, if the claims arising from the resale are assignable. This right may be withdrawn by us. The right to resale of the Secured Products shall cease in the event of cessation of payment by the customer and in the event insolvency or composition proceedings are filed or opened. During the period of retention of title, the customer shall be entitled to pledge the Secured Products, or to assign them by way of security or to realise any securities in the Secured Products only with our prior written consent. In the event the Secured Products are pledged to third parties, the customer shall inform such third party about the retention of title and shall notify us without undue delay in respect of any enforcement activities.
7.2 Notwithstanding any further rights, we shall be entitled to request the return of any Secured Product in the event of delay of payment or breaches of contract by the customer in respect of the retention of title. The same shall apply if insolvency or composition proceedings are opened in respect of the assets of the customer, or if the opening of such procedures is declined due to lack of assets, or if the financial situation of the customer otherwise materially deteriorates. If we request the return of the Secured Products in accordance with the above provisions, the customer shall return them to the place of fulfilment specified in Section 12.1 at his own risk. The customer shall carry all costs, e.g. freight and custom duties, arising in connection therewith.
7.3 In the event of resale of the Secured Products, the customer herewith assigns all of his resulting payment claims in the amount of the invoiced amount as regards these Secured Products (including VAT). If the customer sells Secured Products together with other goods that are not owned by us or following a combination with other goods or a processing of the Secured Products, a share of the customer.s payment claim for the combined/processed product that equals the invoice amount for the Secured Products shall be deemed assigned. In the event of an existing account current between the customer and his purchaser, this assignment shall be made in respect of the balance claim in favour of the customer. If the amount of securities exceeds our claims permanently by more than 10 %, we shall release securities in the respective exceeding amount. We shall have free discretion as to which securities will be released. The customer is entitled to collect assigned claims notwithstanding our right to withdraw this right at any time. In the event of delay of payment by customer, we shall be entitled to inform the customer.s debtor about the assignment of claims and to collect the claims ourselves, regardless whether we have withdrawn the authority of the customer to collect such claims beforehand.
7.4 In the event of processing or manufacturing of Secured Products by the customer, we shall be deemed .producers. within the meaning of Section 950 BGB (German Civil Code). We shall be the owners of the intermediate or final goods, whereas the customer shall only be their custodian. If the intermediate or final good is produced by using materials of other suppliers, we shall be deemed owners of a share of such goods corresponding to the relation of the value of our delivery to the value of the intermediate or final good.
7.5 The customer shall provide all necessary information and material to us and inform his debtors about the assignments in the event of delay of payment or withdrawal of his authorization to collect claims. We shall have the right to request the customer at any time to inform us about the disposition of the Secured Products and about the claims resulting from their resale.
7.6 In the event of an access by third parties to the Secured Products and/or to the claims assigned to us, the customer shall inform us in writing without undue delay, inform the third party about our rights and shall support us in the assertion and enforcement of our property rights and shall, in particular, take all preliminary legal remedies in order to protect our rights at his own cost.
7.7 During the period of retention of title, the customer shall exercise due care in handling the products and shall insure them appropriately against loss and damages. He shall prove a reasonable insurance through appropriate documentation. If he fails to comply with this obligation, we reserve the right to insure the Secured Products at the customer.s cost. The customer shall observe all requirements of the insurer in respect of handling of the Secured Products. The customer shall carry the risk of incidental loss, deterioration or destruction of the Secured Products for the period of the retention of title. To the extent the customer has insured the Secured Products, he herewith assigns all claims against his insurer to us.
8.1 The customer shall inspect the products in respect of completeness, transportation damages and other defects that are recognizable during a reasonable inspection following receipt of the products without undue delay, at the latest within one week. All claims of the customer with respect to incompleteness, transportation damages and other recognizable defects shall be excluded, unless the customer has notified us thereof in writing within that period. All defects which are not recognizable during such inspection shall also be notified to us in writing without undue delay, at the latest within one week after their observation. In the event the customer fails to notify us, his rights in respect of those further defects shall also be excluded.
8.2 We shall be liable for defects of quality and defects in title as regards products which we do not produce ourselves but which are supplied to us by third parties only if we have been notified properly and as stated in this Section 8.2. We herewith assign to the customer all warranty claims against our supplier. We shall provide the customer with all documentation and information required for the assertion of claims against our supplier. The customer shall only be entitled to assert claims against us in respect of defects of the products in accordance with the provisions of Section 8.3 in the event (i) our supplier rejects or culpably delays performance of the assigned warranty claims or if the assertion of claims against our supplier is futile; or (ii) the assigned and enforceable claims against our supplier fall short of the scope of warranty rights of the customer if such products would have been produced by us (cf. Section 8.3).
All warranty claims of the customer against us in respect of such products shall be suspended for the period during which our supplier agrees to examine the customer.s claims.
8.3 Subject to Section 8.2 in respect of products supplied by third parties, we shall be liable for duly notified defects of quality and defects in title during the period according to Section to 8.6, as follows: In respect of the delivery of computers, printers, displays and other IT-hardware, other standard products and standard software, the customer.s rights in respect of defects of quality and defects in title shall initially be limited to subsequent performance (Nacherfüllung) consisting of, at our discretion, either substitute delivery or remedy of defect, in respect of defects in title either by way of acquiring respective rights or delivery of an equivalent product which is free of defects in title. The customer shall enable our subsequent performance within a reasonable period, generally at least three weeks, and shall return the defective products upon our request and specify our order identification number. We shall be obliged to carry his transportation costs. In the event of final failure of subsequent performance, the customer shall have the right to either withdraw from the agreement or to reduce the purchase price. Subsequent performance shall be deemed failed if it is impossible or if we have finally and seriously refused it or if we have at least tried to remedy the defect twice. Further damage claims shall be subject to Section 9.
8.4 In respect of customized software or other deliveries based on a contract for works and services (Werkleistungen) Section 8.3 shall apply accordingly in the event of defects in title and defects of quality, unless agreed otherwise hereinafter. The parties shall perform an acceptance test following the handover of the products. The customer shall declare acceptance in writing except in the event of substantial defects. After acceptance, claims in respect of defects which have been detected during acceptance testing shall be excluded, unless the customer has reserved such claims in writing. Acceptance shall be deemed to be declared impliedly following productive use of the products for a period of at least four weeks without any notification of defects.
8.5 In the event of services (Dienstleistungen), we shall be obliged to remedy defects in deviation from Section 8.3 et seq. by way of repetition of our service. Damage claims shall be subject to Section 9.
8.6 Notwithstanding the provisions agreed in respect of damage claims in Section 9.4, all claims of the customer in respect of defects shall be time-barred after 12 months from delivery (Section 8.2 et seq.), acceptance (Section 8.4), respectively provision of the service (Section 8.5). Our activities performed in order to remedy defects shall not effect the commencement of a new warranty period.
8.7 Claims of the customer as regards defects in accordance with Sections 8.2 to 8.5 shall be excluded if the customer or a third party on commission of the customer has made changes to the products which were not required in respect of their adoption to the customer.s business dealings without our written consent, provided the defect has been caused by such changes.
8.8 If we agree to a redemption of the products outside our warranty obligations, all such products have to be in their original condition including packaging and certificate of return consignment (Rücksendeschein); the customer shall carry all costs for such return. Our RMA-procedures shall apply to all product returns.
9.1 Our liability shall be unlimited only in the event of damages to health or life and in cases of wilful misconduct or gross negligence, including of our statutory representatives, executives and vicarious agents. In the event of slight negligence, we shall only be liable in the event of non-compliance with an obligation required to enable proper performance of the agreement, if such breach puts the purpose of the agreement at risk, and if the customer generally may expect this obligation to be complied with (.Cardinal Obligation.).
9.2 In the event of a slightly negligent breach of a Cardinal Obligation we shall only be liable for reasonably expectable damages, limited to a maximum of the contract value in respect of the delivered product or provided service, multiplied by three.
9.3 Damage claims based on data loss shall be limited to the typical costs of data retrieval which would have been incurred in the event of a reasonable (at least daily during business days) data back-up performed by the customer.
9.4 Damage claims in respect of defects shall generally be time-barred within the period specified in Section 8.6. However, in respect of damage claims based on wilful misconduct or gross negligence, or in the event of damages to health or life, the statutory limitation period shall apply.
9.5 Our liability under the Product Liability Act shall remain unaffected.
10. Rights of use
10.1 Unless agreed otherwise hereinafter, all copyrights and other industrial and intellectual proprietary rights in our products and services (e.g. software, plans, drawings, etc.) shall, in relation to the customer, remain with us.
10.2 In respect of work results individually produced for the customer (customized parts of standard software, individual software, other commissioned developments), the customer is granted a non-exclusive, world-wide, perpetual and transferable right to use the work results for his own purposes at his discretion. The customer is entitled to modify, reconstruct, distribute, sublicense and otherwise use such individual work results at his own discretion. In respect of customized parts of standard software or individual software, the customer shall be entitled to receive its source code and development documentation. In the event we grant to customer an exclusive right of use in deviation from the above provisions, we shall remain entitled to a free and discretionary use of the know-how acquired during performance of the agreement and all production processes, principles, etc. on which the work results are based.
10.3 Regarding all work results not individually produced for the customer (in particular standard software) and handed over to him during performance of the agreement, the customer is granted a non-exclusive, world-wide, perpetual and non-transferable right to use the work results for his own purposes within the scope of the agreed or underlying purpose of the agreement, and to distribute and commission third parties to distribute these work results on a stand-alone basis or as part of the customer.s own products. The customer shall not be entitled to modify or reconstruct the products or to commission such reconstruction by third parties and shall have no claims as regards the source code or development documentation of software. In the event standard software or other products or services are procured by us from third parties, the license terms of such third parties under which we have been supplied with such products shall apply in the event of conflict with the above provisions.
10.4 The customer.s rights according to Sections 69 d et seq. of the German Copyright Act shall remain unaffected.
10.5 The customer shall refrain from removing or making invisible any company logos, trade marks, copyright notices, production dates or other notices attached to the products by us or our suppliers.
11. Deterioration of the Customer.s Financial Circumstances
In the event we find out about a deterioration of the customer.s financial circumstances that has occurred after conclusion of the agreement, or in the event such deterioration which has occurred prior to conclusion of the agreement becomes known to us after conclusion of the agreement even though we have reasonably tried to discover the financial circumstances of the customer, we shall be entitled to withhold our performance until the customer has fully performed his obligations. If the customer fails to perform within a reasonable period, we shall be entitled to withdraw from the agreement.
12. Final Provisions
12.1 Our place of business in 82152 Planegg, Germany, shall be the place of fulfilment (Erfüllungsort). Venue for all claims arising out of or in connection with this agreement shall be Munich. We shall also be entitled to assert claims against the customer at any court competent for his place of business or any of his branches.
12.2 This agreement and any obligations and rights arising thereof shall be subject to German law, to the exclusion of the United Nations Convention on the International Sale of Goods (UN CISG).
Atlantik Networxx Aktiengesellschaft
Phone: +49 89 89 505-0
Fax: +49 89 89 505-100