General Terms and Conditions
This English translation of the General Terms and Conditions is provided solely for the convenience of customers. The translation is not binding on the company. The German text is the sole authoritative and binding version and prevails in case of any conflict.
1. Contract formation
1.1. Transactions shall be concluded solely on the basis of these terms and conditions. These shall also apply to all future transactions, even if they were not explicitly agreed upon again. Inclusion agreements concerning the terms and conditions of third parties are herewith contradicted with immediate effect.
1.2. Purchase orders shall only be legally effective if they are confirmed in writing. Subsidiary agreements, amendments, supplements and warranty of quality are only valid if they are confirmed by the seller in writing.
2. Subject matter of the contract
2.1. Delivery of software, hardware and accessory components for motion analysis.
2.2. Service and training for the supplied software.
3.1. The prices indicated by the seller are in EURO, exclusive of VAT. Unless expressly agreed otherwise, the prices are ex the seller’s premises, exclusive of packing, cargo insurance, custom duties, shipment and the applicable VAT.
4. Scope of performance for software
4.1. The software is provided with a user manual.
4.2. The software has to be accepted immediately on delivery by signing an acceptance certificate (delivery driver). If the acceptance certificate is not signed by the customer, the software shall be deemed to be accepted within 4 weeks after the actual delivery.
4.3. Initial training of the customer is conducted – subject to any explicit arrangement to the contrary – against invoice.
5. Cooperation duties for software
5.1. The customer is obliged to provide any information which are considered necessary by the seller for fulfillment of the contractual duties or which have been requested by the seller.
5.2. Additional charges that become necessary as a result of incorrect or incomplete information provided by the customer shall be borne by the customer. The same applies to delay.
5.3. The customer is obliged to follow the instructions concerning installation, maintenance and service; charges resulting from noncompliance shall be borne by the customer also during the warranty period.
6. License agreement / Maintenance agreement for software
6.1. License, update and maintenance agreements are regulated in the purchase agreement within the first year following the acceptance of the first delivery.
6.2. After this period, the service and maintenance agreement shall be tacitly extended for another year, unless it is terminated in writing three months before expiration of the one year time limit as described in 6.1 of the present terms and conditions.
7. Warranty and liability for software
7.1. In case the software does not meet the contractual scope of performance, the seller has to be notified immediately by the customer in writing. Warranty obligations shall be fulfilled by free subsequent improvement. The warranty period shall be one year from the date of acceptance.
7.2. In case the subsequent improvement is not successful despite two attempts, the customer is entitled to demand, at his own option, a reduction in the purchase price or a rescission of the purchase agreement for the concerned software. Due to the aforementioned rights, the customer does not have any right of retention concerning claims that do not apply to the subject matter of the contract.
7.3. Claims for damages due to impossibility of performance, nonperformance or defective performance are excluded, unless the damage is caused intentionally or grossly negligent and if it does not concern claims for damages from injury to life, body or health.
8. Warranty and liability for hardware and accessories
8.1. The clauses as described in 7 of the present terms and conditions also apply to the warranty for hardware and accessories except for the hereinafter particularities.
8.2. The warranty shall become void, if the customer mounts unauthorized ancillary equipment or has repairs carried out by unauthorized personnel. The warranty shall also expire if the customer uses hardware for the running of the software which has not been cleared by CONTEMPLAS GmbH.
8.3. The delivery has to be checked for damages in transit immediately on arrival at the customer’s premises. Any defects or losses have to be reported instantly. Visible damages have to be noted on the shipping document by the customer and confirmed by the carrier. Apart from that, obvious defects have to be notified in writing immediately or within 2 weeks after delivery at the latest. The deficient articles must be left in the original state and held ready for inspection. A violation of the abovementioned obligations shall exclude any warranty claims.
8.4. Due to the aforementioned rights, the customer does not have any right of retention concerning claims by the supplier that do not apply to the subject matter of the contract.
9.1. Delivery dates are non-binding. Partial deliveries are admissible.
9.2. The extensible warranty according to § 287 of the German Civil Code is excluded.
10. Shipment and transfer of risk
10.1. The risk shall pass onto the customer as soon as the subject matter of the contract is handed over to the carrier or as soon as it has left the warehouse for shipment. In case the delivery is being delayed at the customer’s request, the risk shall pass onto him with the announcement of readiness for the shipment.
11. Retention of title
11.1. The supplier reserves the title to the article until full payment of all claims from the business relationship with the customer.
12.1. Wherever possible, we reserve the ownership and copyrights for all presentations, logos, drafts, designs or further documents; they shall only be made available to third parties in accordance with us. Copying the data storage devices as well as distribution to third parties is prohibited.
12.2. The transfer of usage rights must be in writing.
13.1. Payment of the invoices shall become due without deduction immediately after receipt of the invoice.
13.2. For orders with hardware and software components, the proportional amount of the invoice for the hardware components has to be paid in advance.
13.3. In case of default, interest is charged at the rate of no less than 8% above the base rate for the time being. The payment of interest shall be due immediately. We explicitly reserve the assertion of further claims.
13.4. In case the customer does not meet his payment obligations or in case we become aware of circumstances which cast doubt on his creditworthiness, the entire residual debt shall be due immediately.
13.5. The customer is only entitled to an offset if the counterclaim is unchallenged or determined without further legal recourse.
13.6. For commercial transactions, the payments shall be deemed to be made the day when the amount is at our disposal.
13.7. With the signing of this agreement, the buyer warrants that he is acting commercially or for the purposes of an independent professional career and that he is fully legally competent, relevantly authorized and qualified for representation or having legal capacity in partnerships or corporate bodies.
13.8. Only when the purchase price is paid in full, the buyer acquires – without the need for a further statement by the seller and/or software manufacturer – a non-exclusive, indefinite right of use for the software to the extent agreed on at the formation of the contract. Notwithstanding the above, the terms of license of CONTEMPLAS GmbH as amended from time to time shall be deemed to continue to have an effect.
13.9. The buyer commits himself to constantly adhere to these terms and conditions, the terms of license of the software manufacturer and other national and international legislation. The buyer is not authorized to sell, transfer, rent and/or offer the acknowledged right of use to third parties for use – also joint use – in return for or without payment or to cede the acknowledged right of use in any other way than predefined in the software itself (running of a partner program).
14. Place of performance, place of jurisdiction, partial invalidity and legislation
14.1. For commercial transactions, the city of Kempten shall be agreed upon as place of performance for delivery and payment and also as place of jurisdiction. We are also authorized to file a suit at the place of the customer´s main office or the place of one of his branch offices.
14.2. In case one or more of the abovementioned terms and conditions are or become void, the legal effectiveness of the residual terms and conditions shall not be affected. The legally void clause has to be replaced by a valid one which puts its own intended commercial purpose into effect as far as possible.
14.3. Solely the law of the Federal Republic of Germany shall be applicable.
15. Other arrangements
15.1. In case individual clauses of these terms and conditions are or become void in whole or in part, the validity of the residual terms and conditions shall not be affected. The invalid terms shall be superseded by the legally valid terms that would have been agreed upon by the parties in case of doubt aware of the legal situation at the time of the contract formation in due consideration of the spirit of the law in order to effect the pursued commercial purpose.
General terms and conditions (of sale) of CONTEMPLAS GmbH
Status: 02 / 2017