Allgemeine Geschäftsbedingungen der 42 GmbH
STAND OKTOBER 2013
As of October 2013
§ 1 Scope of terms and conditions
1. These Terms and Conditions apply to all contracts concluded with 42 GmbH unless there are other considerations due to the substance of a contract, specific contractual terms for 42 GmbH (maintenance or rent), or individual agreements. The Terms and Conditions also apply to all future commercial relationships, even if there is no additional, specific agreement. The customer’s Terms and Conditions do not apply, even if 42 GmbH has not explicitly raised any objection.
2. These Terms and Conditions also apply when 42 GmbH unreservedly executes a delivery or performs a service, knowing that the customer’s Terms and Conditions may conflict with or deviate from these Terms and Conditions. In these cases, if the customer accepts a service, this implies that both these Terms and Conditions have been accepted and that the Terms and Conditions of the customer have been waived in advance.
3. Any additional spoken agreements shall only apply if 42 GmbH has confirmed these in writing.
§ 2 Offer and conclusion of contract
1. The offers made by 42 GmbH are subject to change and non-binding. Acceptances and any orders are only legally valid if they have been confirmed in writing by 42 GmbH. This also applies to additions, amendments or supplementary agreements. If 42 GmbH performs a service without the customer receiving confirmation of the order beforehand, then the contract shall take effect with the start of the supply of the service or the execution of the delivery.
2. If 42 GmbH installs equipment or instructs operating personnel, the customer shall bear the cost. We shall use our price lists to calculate the costs of these services.
3. 42 GmbH employees may not make additional spoken agreements or give spoken assurances which go beyond the scope if the written contract.
4. Information provided by 42 GmbH about items and services included in the catalogues, prospectuses, promotional materials and price lists only constitute descriptions, labeling and reference values. They are subject to correction.
5. 42 GmbH expressly retains all titles, copyright and other rights to any documentation provided to the customer in connection with contract negotiations, especially cost calculations and costings. The customer may not disclose these documents to third parties or reproduce these documents for third parties.
§ 3 Duration and termination
1. Apart from when a purchase has been made or when there are different individual agreements, contracts are concluded for an indefinite period of time and may be terminated by either party to the contract, with a 3 month notice period until the end of the calendar year.
2. Both parties have the right to terminate long-term contracts prematurely and without notice if there is a compelling reason. For 42 GmbH, a compelling reason particularly exists if:
– The customer is more than two months in arrears with payments, or
– The customer has made changes to software or hardware without consulting 42 GmbH beforehand.
3. All notices of termination are to be made in writing.
§ 4 Prices/price maintenance
1. Unless otherwise agreed, the prices included on the 42 GmbH price lists at the time of the written confirmation of the order shall apply.
2. 42 GmbH shall adhere to the prices included in its quotations for a period of 30 days from their date of issue. Unless otherwise stated, prices shall be in euros from Hanover/Langenhange, plus packaging, respective statutory sales taxes and statutory delivery charges.
3. 42 GmbH can appropriately increase the usual or listed prices for the contracted services to offset increases in the cost of staff or other items. Periods of time that the customer has already paid for are not subject to price increase.
§ 5 Delivery and performance period
1. As a basic principle, 42 GmbH delivery deadlines and dates are non-binding unless 42 GmbH has made a written commitment expressly stating that these are binding. Delivery deadlines start when the order confirmation has been received, but not before all technical issues have been clarified and the customer has properly fulfilled all obligations. We reserve the right to the defense of lack of performance of contract. Partial deliveries are permitted and shall be invoiced separately.
2. 42 GmbH shall not be held responsible for delivery or performance delays due to force majeure or events that make delivery much more difficult or impossible (this particularly includes strikes, lockouts, insufficient raw materials, traffic disruptions, the impact of weather, administrative orders, power outages and disruptions or destruction of pathways carrying data) even if these affect 42 GmbH suppliers and if there are contractually agreed deadlines and dates. 42 GmbH shall then be entitled to postpone the delivery or the service for the length of time of the disruption plus a reasonable start-up time, or partly or fully withdraw from parts of the contract that have not yet been fulfilled.
3. If 42 GmbH is to be held responsible for failing to observe agreed deadlines and dates or for being behind schedule, the customer is entitled to claim for compensation for the delay in the amount of 0.5 % of the delivery value for each complete week of delay, but no more than 5 % of the invoice value for the deliveries or services affected by the delay. Any additional claims on the part of the customer are excluded, unless the delay is due to the gross negligence of 42 GmbH, at the very least.
4. If 42 GmbH exceeds a delivery time for which there is a legal commitment, it is entitled to offer the customer replacement equipment with comparable features by way of a loan, within a reasonable period of time. There shall only be a charge for the provision of replacement equipment if the customer has requested it even though the legally binding commitment has not been exceeded. In this case, the handling costs shall be calculated according to our current price lists for equipment lease agreements, unless otherwise agreed.
§ 6 Transfer of risk
1. Upon handover to the carrier or the forwarding agent etc., the risk shall be transferred to the customer. When we make the delivery, the risk is transferred to the customer when the goods are unloaded from the transporting vehicle. If the customer is responsible for a delayed delivery, the risk shall be transferred on the day that the goods are ready for delivery.
2. Transport insurance policies can be taken out if the customer requests this and shall be charged to the customer.
§ 7 Special Terms and Conditions for the purchase of hardware and software and their installation
1. The special Terms and Conditions apply to contracts relating to the permanent assignment of hardware and/or software, its installation and customization. Due to the complexity of the installation, these represent a primary obligation in the form of a purchase contract and subject to works contract provisions.
2. Assignment of rights
a.) Unless otherwise agreed, the customer shall have the simple right to use the software provided, within the scope agreed in the contract.
b.) This does not include additional rights, especially the right to duplicate the software beyond the extent necessary for contractual use. Back-up copies and reproductions of the software may be made within the scope of customary data backups or backups suggested by the software manufacturer.
Complaints about material defects, shortfalls or incorrect deliveries shall promptly be made in writing within a week of receiving the goods, starting with the date on which the delivery is received by the customer. Notification about defects that are not evident should occur within a week of their discovery. The customer is obliged to check the identity of the goods as soon as they have been delivered. If the customer fails to promptly notify 42 GmbH, this implies that the delivery has been approved. This does not affect the obligations to examine goods according to section 377 HGB (German Commercial Code).
4. Retention of title
a.) All goods supplied remain the property of 42 GmbH (goods subject to retention of title) until all requirements have been fulfilled, regardless of the legal basis and including claims arising in future or conditional claims as well as from contracts concluded at the same time or at a later date. This even applies if payments have been made for especially designated claims. In the case of current billing the reservation of title acts as security for the balance of the invoice.
b.) The customer must immediately notify 42 GmbH if delivered merchandise that is still the property of 42 GmbH has either been forfeited or taken into possession. The customer shall bear all costs incurred in connection with releasing the products.
c.) The customer is entitled to sell the retained goods in proper business transactions as long as the customer is not in default. Pledges or security transfers are not permitted. With respect to the reserved goods (including account balance receivables), the customer shall immediately fully assign all receivables arising from the resale or any other legal grounds (insurance or tort etc.) by way of seurity to 42 GmbH, who will accept the assignment. The Customer authorizes 42 GmbH to collect the assigned claims for its own account and in its own name.
a.) Acceptance of a service requires a functional test. A functional test will have been conducted successfully if there are either no defects, or if the defects are insignificant, or if all the agreed acceptance criteria have been fulfilled.
b.) If the customer does not provide a written acceptance within 2 weeks of delivery or write to 42 GmbH listing defects that need to be corrected, this is equivalent to acceptance.
c.) The customer may only use the software for testing purposes until it has been accepted. If the customer uses the software for operational purposes, this implies a tacit acceptance.
§ 8 Payments
1. Unless otherwise agreed, the invoices issued by 42 GmbH are to be paid strictly net cash and without any deductions.
2. 42 GmbH is entitled to offset the customer’s payments against older debts first, even if the customer’s regulations state otherwise. The customer shall be informed about the accounts that have been settled. If costs and interest have been incurred, 42 GmbH is entitled to use payments to offset the costs first, followed by the interest and then finally the principal claim.
3. Should the customer be in default with payment, 42 GmbH is entitled to charge 8 percentage points above the base interest rate, starting from the date in question. In addition to this, 42 GmbH is entitled to charge the customer a EUR 10.00 processing fee for every reminder due to a default of payment. This shall not affect the right of 42 GmbH to claim for additional damages which have arisen.
4. The customer may only use legally enforced and undisputed counter claims to assert a right of retention.
§ 9 Data protection and data privacy
1. It is always the customer’s responsibility to ensure that data is protected, especially with respect to any legal obligations relating to the storage of data. Data protection includes both saving data onto external, secured data carriers and protecting data against third party access, for example, by means of sufficiently secure internet connections.
2. If the customer knows that 42 GmbH has pending work to rectify or eliminate faults, the customer must check that there is a current backup available. It is also the customer’s responsibility to check that data has been backed up.
3. Both parties shall comply with the respective data protection regulations that particularly apply in Germany, and oblige any employees working in connection with this contract to commit to data confidentiality according to section 5 BDSG (German Privacy Act) if they have not already made a general, corresponding commitment to do so.
4. If the customer collects, processes or uses personal data or data provided by 42 GmbH, then the customer guarantees that the customer is entitled to do so according to applicable regulations which particularly relate to data protection law, and shall release 42 GmbH from the claims of third parties in the event of any violation.
5. When establishing the business relationship, the customer’s data, which may also be personal data, will be stored internally and used to process the application/contract manually if necessary, or in an automated process. The customer has agreed to this.
§ 10 Duty to cooperate
1. The customer shall appoint a knowledgeable employee to work with 42 GmbH. This employee shall provide the information necessary for carrying out contracts that have been concluded and be able to take decisions or delegate these.
2. The customer will assist during the installation and configuration of software, especially by providing the information about the customer’s operational needs that is needed for installation work.
3. Furthermore, the customer shall provide the 42 GmbH employees with rooms and telecommunication services and bear the cost of these if they are needed when providing the services due, as well as conduct necessary test runs and communicate these results immediately.
4. The customer shall make a written complaint containing a clear account of any error symptoms relating to existing or occurring defects.
5. Other duties to cooperate may occur in good faith and due to prevailing practice.
6. Failure to cooperate is equivalent to the customer taking an action that the customer is obliged not to take.
7. Due to the importance of the duty to cooperate with respect to the smooth performance of the contract, this duty is to be classified as a contractual obligation rather than just an obligation, and violation of this obligation may result in rights of retention or claims for damages from 42 GmbH.
§ 11 Guarantee
1. 42 GmbH shall be liable for defects of goods or title within the scope of the legal provision and according to the contract that has been concluded unless otherwise indicated in the following regulations or contractual conditions. However, warrantee claims for material defects will only exist if these can be reproduced. There is no supplementary guarantee providing cover beyond that which is included in the regulations on material defects.
2. The warrantee shall not apply to defects that can be attributed to the fact that the customer has had additional devices installed that we have not approved, or has had work carried out by people who were not authorized by us or the manufacturer of the goods, or defects that have actually modified or extended the customer’s contracted items, unless the customer can provide evidence that these modifications/extensions had not caused the defects.
3. The warrantee for defects does not cover items that are subject to natural wear and tear, such as, for example, rubber components, fuses and batteries etc.. Neither does it cover damage occurring after the risk has been transferred and resulting from improper or negligent handling, excessive use, unsuitable operating equipment or chemical, electronic and atmospheric conditions.
4. If there is a material defect, 42 GmbH may select to remedy this by rectifying the defect or by supplying a new, fault-free item. If the defect is to be rectified, 42 GmbH shall bear the related costs, especially the travel and transport expenses, as well as work and material costs. This also applies when alleged defects are repaired, unless the customer knew or negligently failed to know that there was no defect and the cause of the problem the customer is complaining about actually lay in the customer’s own sphere of responsibility. The customer must therefore examine in a reasonable manner whether the problem the customer is complaining about can be attributed to a cause that is not within the sphere of responsibility of 42 GmbH. In this case, the customer is to bear the necessary costs.
5. If the customer does not give 42 GmbH the opportunity to verify whether or not there is a material defect, 42 GmbH has a withholding right with respect to any claims for damages.
6. 42 GmbH is entitled to refuse to rectify a defect if the customer has failed to meet obligations towards 42 GmbH.
7. External guarantees offered by the manufacturer do not constitute an obligation for 42 GmbH. It is therefore the responsibility of the customer to create the conditions to exercise claims under the guarantee and to bear the cost for this. The customer shall particularly bear the cost of the transport to and collection from the manufacturer, the cost of assembly and dismantling as well as the cost of a substitute device. 42 GmbH is prepared to conduct the above work on behalf of the customer. This will require a separate service contract for the customer and this contract will be charged separately.
8. There is a 12 month time limit for claims for defects, calculated from when the risk is transferred. This does not apply to claims for damages due to defects.
§ 12 Liability and damages
1. In the case of intent or gross negligence, 42 GmbH shall be liable for all damage that it, its legal representatives or its vicarious agents have caused, and damage as a result of injury to life, body or health in the case of slight negligence.
2. Moreover, 42 shall only be liable if it has been in breach of an essential contractual obligation (cardinal duty). In these cases, liability is restricted to the reimbursement of the foreseeable damages that typically occur.
In this sense, essential contractual obligations are obligations that are essentially important to properly perform the contract in the first place and the contracting party may assume in good faith that they have been complied with.
Liability for any one case of damages according to no. 2 shall be limited to the contractual value and if fees are currently being paid, to the amount of the fees per contractual year, but not less than € 1,000. There is no liability for indirect damage and, in particular, for loss of profit.
3. This shall not affect liability according to the provisions in the German Product Liability Act.
4. The employees at 42 GmbH provide advice and information to the best of their knowledge, but this is not binding and not subject to liability.
5. 42 shall only be liable for the recovery of data if it has caused the loss of this data through intent or gross negligence, and if the customer has ensured that this data can be reconstructed without unreasonable waste of time and money from data material kept in machine-readable form.
6. There is no additional, non-contractual liability.
7. Claims for damages expire one year after the risk has been transferred, unless liability is based on section 11 no. 1.
§ 13 The transfer of rights and obligations
1. The customer may not transfer the rights and obligations arising from the respective contract to a third party without consent from 42 GmbH.
2. 42 is entitled to engage a subcontractor with the appropriate skills in order to fully or partly fulfill the obligations arising from the respective contract.
3. 42 GmbH can transfer its rights arising from the respective contracts, especially for refinancing purposes.
§ 14 Export controls
The customer agrees abide by all the export regulations that apply in Germany or the customer’s registered office when exporting 42 GmbH goods. If there is a breach of these rules, 42 GmbH can, but is not obliged to, terminate all business relations with the customer and all supply contracts that have already been concluded without notice.
§ 15 Applicable law and place of jurisdiction
1. These Terms and Conditions and all legal relationships between 42 GmbH and the customer are only subject to the laws of the Federal Republic of Germany; the UN Convention on International Sale of Goods (CISG) does not apply.
2. It has been agreed that Hanover shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship between 42 GmbH and the customer, to the extent permitted by law. However, 42 GmbH is entitled to bring an action against the customer at the court that is local to the customer’s registered office.
§ 16 Invalidity of provisions
If one provision in these general and specific Terms and Conditions is fully or partly invalid, the provision that may be invalid should be reformulated, supplemented or replaced so that the invalid provision achieves the desired economic purpose. The same applies to any loopholes that there may be in the regulations in this agreement. This shall not affect the validity of all the other rules or agreements.