General terms and conditions of delivery
of the Babtec Informationssysteme GmbH
§ 1 – Validity
- Our general terms and conditions only apply on businesses in terms of § 310 BGB.
- Our general terms and conditions apply on all contracts, agreements, orders, deliveries and other services, as long as they are not changed or excluded with our written and explicit consent. They will also apply especially, if we execute without any reservation a delivery / performance aware of differing terms and conditions of our customer. General terms and conditions of our contractual partner will only apply, if we have accepted them in written form.
- Our terms and conditions will also apply for all future and prospective contracts, agreements, orders, deliveries and other services, even if the text is not sent again to our contractual partner together with our offer or our order confirmation.
§ 2 – Offer and conclusion
- Our offers are always subject to change without notice. Our customer is bound to an own offer until at least 6 weeks. Contracts and other agreements will only become finally binding if we have confirmed them in written form or through our actual delivery / performance.
Our written confirmation determines the scale of the delivery.
Changes of the delivery are reserved which are based on regulatory or statutory arrangements or requirements as well as changes in the construction and execution which neither effect the functionality nor the value of the scale of the delivery or which are necessary for technical reasons. Excluding any further claims and rights our contractual partner is in this case only entitled to rescind the contract when the change of the scale of the delivery is material and not reasonable for him.
- All agreements between us and our contractual partners have to be documented in writing at the time the agreement is concluded.
- Agreements which are made during or after the conclusion of a contract between one of our employees or representatives and our customers, require our written confirmation to become valid; the authorisation of our employees and representatives is insofar restricted.
§ 3 – Prices, Price increases and payments
- Our prices apply on the delivery / performance from our registered office and are always understood including packaging, freight, postage and value added tax which is valid in respect of the insofar valid rate at the day of the delivery / performance. If as a price a list price was agreed upon, then those list prices apply which have been valid on the day of the delivery / performance.
For orders which are to be carried out 6 weeks or more after the conclusion of a contract and in case base prices and / or valid wages costs increase, we reserve the right to charge an increased price, corresponding with the rate of the increase of the part of the base price and / or valid wages prices in relation to the whole contract price. This applies in respect of rental and / or lease transactions also to the change of the interest situation on the capital market between the conclusion of a contract and the begin of the term of a contract.
- We reserve ourselves the right only to deliver quid per quo against payment of the agreed price. Our invoices are due for direct payment net without deduction after receipt of the invoice, if nothing else has been agreed upon in writing.
A discount for cash payment is not permitted, unless something else is agreed upon in writing and all at the point of time of the discount for cash payment open invoices are being paid at the same time. We are entitled to offset payments of the customer according to §§ 366 Sec, 2, 367 Sec. 1 BGB and even then when the customer has determined a different setting-off.
- For payments made after the due date we are allowed to charge an interest rate of 8 % over the current official interest base rate without any further reminder. If payments of the contractual partner are delayed, we are entitled to charge him the amount of our actual credits costs, at least a minimum of 8 % of the current official base rate. Any further claims remain unaffected thereof.
- Our invoices are considered as accepted, if the customer does not dispute the invoices in writing within 30 days after receipt of the said invoice. We will advise the customer of this in every invoice.
- Cheques and bills of exchange are only accepted on account of performance; we can give them back anytime; they are hold as a payment if they are honoured and irrevocably credited to our bank account. All costs and expenses incurred in this connection with the cheque and bill of exchange have to be born by our contractual partner.
§ 4 – Set-off, right of retention
Our invoices shall not be set off against counter claims which are disputed by us and / or are not confirmed in a legally binding form. The right of retention in respect of claims which do not derive from the same contractual relationship is excluded, if such claims are not accepted by us and are not confirmed in a legally binding form.
In case of a deficiency complaint our customer may only withhold payments if there is no doubt about the right of complaint and further more only to the extent which stands in an appropriate proportion of the defects which have occurred.
§ 5 – Deterioration of assets of a contractual partner
- We will be entitled to request an advance payment in the full amount of the agreed price from our customer, if an application for an insolvency process (either in court or out of court) in reference to the assets of the contractual partner has been submitted or the opening of such a proceeding has been refused due to the lack of assets, or if a written credit information of a bank or a credit enquiry agency proves the credit unworthiness of the customer or if one of these events is made aware to us after the conclusion of the contract although it was already existing at the time of the conclusion of the contract.
- If our contractual partner does not fulfil our rightful request of an advance payment within an appropriate deadline set by us, although we have advised him, that after the end of the deadline we will refuse the acceptance of further services from him, we have the right to rescind the contract or to demand claims of compensation for non-completion.
§ 6 – Dispatch and transfer of risk, insurance.
- All risk is transferred to our customer with the dispatch of the goods, independently of the place of dispatch. This also applies if we are required to assemble the object of delivery at the premises of the customer, unless the dispatch to the customer's premises is executed by our own personnel.
- In the case that dispatch instructions of our contractual partner are lacking or if it appears to be necessary to diverge from these instructions, we will send the goods to our best judgement without being obliged to use the cheapest or fastest way.
- We insure the sent goods against every insurable risk, in particular against theft and transport damages, only upon the explicit wish and request of our contractual partner and at his expense.
In case of transport damages we must be immediately informed. Besides that the recipient has to insure that the respective claims and reservations are being submitted to the freight carrier.
- If the dispatch of the goods to be sent is delayed upon the wish of our contractual partner or out of reasons caused by our contractual partner, the goods are stored at the risk and expense of our contractual partner.
- Our contractual partner pays the expenses for the dispatch of goods, in case of the delivery of programs via electronical data transmission his share of the connection costs as well as the fees occurred for the transmission of the program itself.
§ 7 – Delay of acceptance by our contractual partner
If our contractual partner causes a delay in the acceptance of our services in parts or in total, we will be entitled to rescind the contract or claim compensation instead of the contractual performance after the expiry of an appropriate deadline set by us. Our legal rights resulting from acceptance delays remain unaffected thereof.
The customer is obliged to reimburse us for storage costs, storage rent and insurance costs for goods that are due for delivery, but have not been accepted by him. We are not obliged, however, to insure stored goods in case of an acceptance delay.
If delivery is delayed by request of the customer or the customer has delayed the acceptance of goods, we are entitled to charge storage fees in the amount of 0.5% of the total amount of the invoice per month of delay, commencing one month after announcing the readiness for delivery. We thereby reserve the right to claim a higher actual amount of damages, unless the customer submits proof in writing that the storage fees has not incurred or not in the requested minimum amount.
§ 8 – Term of delivery
- Terms of delivery and delivery deadlines are only binding when we have confirmed them in writing. Terms of delivery are being met when the delivery / performance has been sent from our registered office or the readiness of dispatch has been given notice of until the end of the term of delivery.
Deliveries or performances on call have to be accepted within 6 months after the confirmation of the order, whereby the favoured date of delivery has to be announced to us in writing, at least 12 weeks before it.
Delivery deadlines are extended – even in cases of delay- in the case of force majeure or unpredictable impediments occurring after the signing of the contract and which are not lying within our responsibility , insofar such impediments prove to affect in a material way the delivery of the sold goods. Strikes and lockouts by all means are considered occurrences beyond our responsibility in the sense of this section. The above regulations also apply if the delaying circumstances occur at our suppliers or sub-suppliers.
In case such delivery delays last more than six weeks, our contractual partner has the right to rescind the contract and demand the return only of payments he has already made, while any further claims are excluded.
- In the case of the contractual partner's failure to fulfil his contractual obligations – within an ongoing business relationship, even resulting from other contracts- our deadlines will be extended until the contractual partner is no longer in delay.
- We are entitled to effect and insofar invoice partial deliveries / partial performances, as insofar the delivery / performance allows that.
§ 9 – Declaration about the choice of rights after setting a deadline for supplementary performance
In all cases in which our customer has set us a deadline for supplementary performance as result from a not or not due performed delivery and this deadline has ended, we are then entitled to request from our customer that he declares himself within an appropriate deadline whether he still claims his claim of performance / supplementary performance despite the fact that the deadline has ended or whether he switches over to the other optional offered rights. If the customer does not declare himself within the appropriate deadline, his claims of performance / supplementary performance are excluded. If the customer announces within the appropriate deadline set by us, that he furthermore requests the performance / supplementary performance, he is free to set a new deadline and to make use from his other rights after its effectless expiry.
§ 10 – Delay, Exclusion of obligation to deliver
In case our delivery is delayed or the obligation to deliver is excluded, our liability is generally ruled as per § 11 No. 6 with the following qualifications:
- In case our delivery is delayed and only a case of slight negligence is stated , the claims for damages by our customers are limited to a flat rate compensation of 0.5 % of the delivery value for every completed week of the delay, with a maximum of 5 % of the delivery value, whereby we reserve our right to prove no or only a lesser damage has occurred as a result of the delivery delay.
- The customer can only claim compensation instead of delivery, if he grants us an appropriate minimum extension of the delivery deadline, whereby he reserves the right to set an appropriate deadline shorter than 4 weeks, if in an individual special case an extension of the delivery deadline of 4 weeks is unacceptable for him.
In case our delivery is delayed, our customer is entitled to rescind the contract, if he grants us an appropriate minimum extension of the delivery deadline, whereby he reserves the right to set an appropriate deadline shorter than 4 weeks, if in an individual special case an extension of the delivery deadline of 4 weeks is unacceptable for him.
A customer's right to rescind the contract applies only to the unfulfilled part of the contract, unless the customer has no interest in the partial fulfilment of the contract anymore.
- Compensation claims against us for reason of delayed delivery or exclusion of the obligation to deliver become time-barred one year after the statue of limitation has started.
- The above liability restrictions and § 11 No. 6 do not apply, if there is a damage concerning the life, the body or the health of our contractual partner or in case of damages due to an intentional or gross negligence on our side or on the side one of our legal representative or auxiliary person or in case of delayed delivery, if the contractual relationship is based on a fixed date contract.
§ 11 – Deficiency liability and damage compensation
- Deficiency claims by our customers require that the customer has correctly followed the examination and complaint obligations described in §§ 377 HGB. The complaint must be made in writing.
If the customer fails to submit a correct and timely complaint, he cannot assert claims due to the above described conditions, unless we have acted fraudulently.
In case our performance or product is deficient, the rights of the customer are, in principle, as defined by the legal regulations, provided that he grants us an appropriate extension of 4 weeks for delivery, whereby the customer reserves the right to set an appropriate deadline shorter than 4 weeks, if in an individual special case an extension of the delivery time of 4 weeks is unacceptable for him. The term of supplementary performance does under no circumstances start before the customer has returned the deficient goods to us, whereby we have to bear the costs of the sending back of the deficient goods. If only a part of the goods delivered by us is deficient, the right of the customer to rescind the contract is limited to the deficient part, unless such limitation is considered impossible or unacceptable.
- Any claims made by the customer for reasons of deficiency of goods or products become time-barred one year after delivery / acceptance of such goods. In respect of damage claims and claims of compensation of costs according to §§ 437 No. 3, 478, 634 No. 4 BGB it remains with the statutory terms, if there is a damage to life, body or the health of our contractual partner or in case of damages due to an intentional or gross negligence on our side, on the side of our legal representatives or auxiliary person. The statutory statue of limitation also applies, when the deficiency was concealed fraudulently. In the cases of §§ 478, 479 BGB it remains with the there described regulations, in respect of damage claims the above mentioned sentences 1, 2 and 3 will apply. For the rest damage claims of our contractual partner are limited to the extent stated in the following sections.
- The warranty is not valid for programs or program segments that have been altered or expanded by our customer, unless our customer proves that such alteration or expansion are not the reason for the deficiency.
- In case a contract between our contractual partner only includes the supply of software programs, interfaces or other goods of third parties to our contractual partner simply against a reimbursement of distribution costs (e.g. postage, duplication expenses) we assume and accept no fault free warranty for such programs.
- Our liability for damages in respect of life, body or health of our contractual partner due to an intentional breach of duty on our side is neither excluded nor limited. For other damages to our contractual partner we are only liable in cases of the breach of duty by gross negligence or intentional behaviour. If we have caused the damage only by slight negligence, we are only liable in case of the breach of essential duties of the contract, limited to damages which are typical for the contract and reasonably predictable. For the rest other compensation claims and damage claims of our contractual partner for reasons of breach of duty, impairment of performance, claim in tort or other legal reasons are excluded.
The above liability limitations do not apply if guaranteed features of our delivery are lacking if and insofar as the guarantee had the purpose to prevent the contractual partner from damages other than direct damages to the delivered goods.
Wherever our liability is excluded or limited this also applies to the personal liability of our employees, agents, representatives and auxiliary person.
The above liability exclusion also applies in any case to subsequent damages
However the above liability exclusions do not apply to claims resulting from the Produkthaftungsgesetz (Law of product liability).
- The customer is obliged in his own interest of data storage and security to apply data saving procedures at appropriate regular intervals. If he fails to do so, we are only liable for damages that would have occurred in spite of correct and regular data saving procedures.
§ 12 – Producer liability
Our contractual partner shall indemnify us from all damage claims and claims of compensation of third parties raised against us due to the regulations of claims in tort, the producer liability according the Prdukhaftungsgesetz or other regulations in respect of defects or deficiencies in respect of produced and delivered goods by us or our contractual partner, insofar as damages could also claimed against our contractual partner or are no longer valid simply because they have become time-barred. Under such conditions our contractual partner must also indemnify us from the costs of legal disputes that may be filed against us in connection with such claims. If the raised claims are also valid towards us, we then have a pro-rata indemnification claim against our contractual partner which extent and amount is determined by § 254 BGB. Our indemnification claims, claims for compensation of costs and damage claims according to §§ 437 No. 3, 478, 634 No. 4 BGB or out of other legal reasons remain unaffected from the above mentioned regulations.
The above mentioned regulations do not apply in the case of intentional or gross negligence on our side in reference to the deficiency or defects.
§ 13 – Retention of title
- Goods delivered remain our property and title until all current or future obligations of our contractual partners are fulfilled. We may agree to waive this security upon request, if its nominal value is considerably higher than 20 % of the value of our claims.
- Processing or alteration always takes place for us as producer, without obligating us. In case a product delivered by us is being processed with other goods not belonging to us, we obtain co-ownership rights of the newly created product in proportion of the invoiced amounts of the delivered goods by us to the invoiced amount of the other used goods at the time of the processing. In cases where our products are being connected with other movable products to make one uniform product and if the other product is regarded as the main product, our contractual partner will transfer the ownership of his co-ownership to us as far it regards the main product and as far as he owns it. In the case that the transfer of the ownership or co-ownership requires the delivery of the goods, than this procedure will be replaced by the agreement that our contractual partner safeguards the product for us like a hirer or if he is not in possession of the product he replaces the delivery of the goods in way of the assignment of the claim of return against the possessor.
Goods to which we have a right of (co-) ownership according to the above regulations will be referred to as "retained goods".
- Our contractual partner is entitled to sell retained goods in the course of business or to use the retained goods as a component of a new product. Our contractual partner already assigns the claims resulting from the sale or assembly or from other legal reasons of the retained goods in advance to us, in total or in proportion to the (co-) ownership ratio of the sold or processed product. If such claims are included in ongoing invoices the assignation of rights must also include outstanding balance claims. The assignation outranks the rest.
Reserving the right of revocation we authorise our contractual partner to collect the assigned financial claims for us. Our contractual partner is obliged to transfer any collected amounts immediately to us, insofar and as soon as our claims are due. If our claims are not yet due, our contractual partner has to document and record the collected amounts separately.
Our right to request the claim on our own remains unaffected. We will not claim however this right as long as our contractual partner fulfils his payment duties resulting from the collected payments and there is no payment delay on his side and no application for the opening of an insolvency process has been filed or a stop of payments is stated. If this is the case however our contractual partner is obliged to make the assigned claims and the debtors known to us, to give us the relevant documents and to inform us about all facts necessary for the collection of the payments. He is also obliged to inform the third party debtors about the assignation of claims whereby we are entitled to inform them about the assignation. The rights of our contractual partner to re-sell, process, combine, connect or built in retained goods and to collect our payment claims discontinue with the stop of payment, the application for the opening of an insolvency process in or outside of court, without our explicit revocation of these rights.
- Our contractual partner must immediately inform us if third parties attempt to claim any rights to the retained goods or the assigned claims and must pay any possible costs of necessary interventions or their defence.
- Our contractual partner is obliged to handle the retained goods with care, in particular he has to adequately insure them according to their original value against fire, water or theft at his expense.
- If our contractual partner acts contrary to the contractual regulations – particularly in the case of payment delay- we have the right to take back the retained goods at his cost or to request the transfer of his right to get the retained goods back from third parties. Taking back or impounding retained goods by us does not mean we rescind the contract, unless we explicitly state so in writing.
- Should our retention of title lose its validity because the product is sold abroad or should we lose our retention of title for any other reason our contractual partner is obliged immediately to grant us another way of securing the retained goods or another kind of security which is valid in the country of the purchaser, and comes as close as possible to the retention of title in Germany.
§ 14 – Assignation
Assignation of any kind of claims of our contractual partner against us is only permitted with our written authorisation.
§ 15 – Software rights
- Our contractual partner is granted a non-exclusive and non-transferable right of use of the products and the accompanying documentation as well as the subsequent amendments within his operation only. We reserve all other rights in respect of programs and their documentation including copies and subsequent amendments. Our contractual partner shall ensure that programs and their documentation are in no way available to third parties without our written consent. Our customer may only request copies for archive, replacement or error detection purposes. The supply of source codes requires a specific written agreement.
- Our contractual partner is obliged to keep all programs, program sections and information recorded in the program secret for an unlimited time and – insofar as this is not necessary to fulfil the purpose of the contract- he shall not record, distribute or exploit them. The customer shall ensure by means of an appropriate contractual agreement that his employees and / or representatives will refrain any personal exploitation, distribution or recording.
- Contract penalty
In any case of culpable violation of the obligations in the above mentioned Sec. 1 and 2 our customer shall be liable to a contract penalty of 10 % of the contract amount. In case of such a violation the culpability is assumed, unless the customer can prove that the violation occurred inculpably. We reserve the right to claim further and exceeding damages.
We install the programs for our customers, separately invoiced; the customers must supply the necessary operational hardware, operating system software and specialised personnel for the duration of the installation.
Both, the customer and we will inform each other immediately, if a third party claims a violation of its intellectual property rights. The customer leaves the choice to us to decide about legal defence measures or settlement agreements.
In respect of the special circumstances of the customer we have the choice to obtain the licence, to alter or if necessary replace the software in case the contractual use of the software violates intellectual property rights of third parties. If we do not clear the rights of the third party, for whatever reason, the customer has the right to rescind the contract or reduce the price.
§ 16 – Program alterations
We reserve the right to alter, further develop or improve the programs or to replace them by new developments. We are prepared, but not obliged, to carry out alterations or adjustments. If the customer desires alterations or adjustments, we are entitled to charge a reasonable remuneration.
§ 17 – Return, deletion
If the software contract or the contract of use ends, the customer shall delete all programs given to him including adjusted and altered versions as well as copies and all documents within one month. He shall return all data carrier given to him. The customer is obliged to confirm to us the completed deletion in writing.
§ 18 – Confidentiality
- The customer shall keep all information, documentation, business or company secrets obtained from us in connection with the contract between him and us or have become known to him or otherwise accessible or will become accessible, secret for unlimited time. Such information may not be recorded, distributed or otherwise exploited, as far as this is not necessary to fulfil the purpose of the contract. Excepted from this is information forming part of the general level of technology, information which is otherwise generally available or information being already in the lawful possession of the customer or which he has rightfully obtained from third parties. The customer is obliged to ensure by appropriate means that his employees, representatives or other auxiliary person, his independent sub-contractors or suppliers abide the above mentioned confidentiality agreement, as far as they have access to such information, documents, business and company secrets in the course of their work for the customer.
- Drawings, organisations plan, other process planning, and connected documents remain in our ownership and can only be used by our customer for contractual purposes. A further use beyond the contractual purposes is in any case only allowed with our written consent.
- In any case of culpable violation of the obligations in the above mentioned Sec. 1 and 2 our customer shall be liable to a contract penalty of 10 % of the contract amount. In case of such a violation the culpability is assumed, unless the customer can prove that the violation occurred inculpably. We reserve the right to claim further and exceeding damages.
§ 19 – Data protection
The initiation and execution of our business and business connection with our customer is supported by data processing equipment. We collect data of the customer the business and the business connection (especially address, delivered product, delivery quantity, prices, cancellations, etc.) and record them until the end of the business connection, of which we inform the customer herewith.
§ 20 – Final clause, place of completion, court of jurisdiction, applicable law
If any provision of these general terms and conditions are invalid, then the other provisions of these general terms and conditions will remain in full force and effect. In this case the invalid general terms and conditions shall be replaced by an appropriate and valid provision coming as close as possible to the intention of the parties and the spirit and purpose of the general terms and conditions. This also accordingly applies if the general terms and conditions are incomplete or in need of amendments as well as when the general terms and conditions are not practicable or will become impracticable.
The place of completion and exclusive court of jurisdiction for deliveries, services and performances including complaints in respect of cheques and bills of exchange as well as all possible disputes arising between the contractual parties is Wuppertal, whereby we reserve the right to bring an action against the contractual partner at another court of jurisdiction which is applied to him according to §§ 12 et seqq. ZPO.
The relations between the contractual partners are exclusively governed by the laws of the Federal Republic of Germany under exclusion of the international laws in respect of sales, in particular the United Nations Convention on Contracts for the International Sale of Goods, Convention on the International Sale of Goods, etc, and any other international agreement for the purpose of the standardisation of the sales law and / or the law applicable to works and services.