General Terms and Conditions for Babtec Informationssysteme GmbH, as of 22.07.2019
§ 1 – Scope
- Our conditions only apply to commercial undertakings within the meaning of Art. 310 of the German Civil Code (BGB).
- Our terms and conditions apply to all contracts, deliveries, and other services, insofar as they are not changed or excluded with our express written consent. They also particularly apply in the event that we perform the delivery/service without reservation, despite having knowledge of differing conditions of our Contractual Partner. Our Contractual Partner’s general terms and conditions only apply if we have confirmed them in writing.
- Our conditions apply to all future contracts, deliveries, and services, even if their content is not re-sent to our Contractual Partner along with our offer or our order confirmation.
§ 2 – Offer and conclusion
- Our offers are always subject to change. If our contractual partner places an order related to said offers, this merely represents a contractual offer made by our contractual partner, which they are bound to for one (1) month upon our receipt of their order. Contracts and other agreements only become binding upon our written confirmation or our delivery/service. Our written confirmation defines the scope of the delivery/service. We reserve the right to change the scope of delivery/service due to official or legal directives. We also reserve the right to change the construction and implementation if this is necessary for technical reasons or does not impact the functionality or value of the scope of delivery. If the change in the scope of delivery is significant and unreasonable, our Contractual Partner is entitled to withdraw from the contract with the exclusion of additional claims and rights.
- All agreements between ourselves and our Contractual Partner must be put into writing on the conclusion of the contract.
- Our managing directors are authorized to represent our company, as are employees whose power of representation has either been registered in the Commercial Register (power of attorney) or who have submitted a corresponding proxy in writing that has been signed by one of the aforementioned persons who are authorized to represent our company. An authorization to represent the company due to apparent authority or agency by estoppel is excluded. Agreements made between our employees or representatives and our Contractual Partner on or after conclusion of the contract therefore must be confirmed in writing by a person authorized to represent our company in order to be valid.
§ 3 – Prices, Price Increases, and Payment
- Our prices apply to deliveries/services from our registered office, unless agreed otherwise, and are always subject to packaging, freight, postal charges, and the legal value added tax in the amount applicable on the day of delivery/service as well as potential, country-specific fees for deliveries/services abroad. If our service is performed at our Contractual Partner’s registered office and unless agreed otherwise, we will charge travel expenses in addition to the payment; the time spent traveling is considered work time. If the agreed prices are list prices, the corresponding list prices applicable on the day of delivery/service apply. If no payment has been defined for a delivery/service, the prices and daily rates applicable at the time of the conclusion of the contract apply in accordance with the price list we generally apply and/or the most recent update thereof. If resource-related payment has been agreed, we are entitled to demand installment payments. Our Contractual Partner must pay the respective installment payment and the final invoice in full after the invoice has been issued, unless we have agreed otherwise. We will install the software on our Contractual Partner’s premises against separate charge, whereby our Contractual Partner will provide the necessary, operational hardware, operating system software, and the specialists required for the duration of the installation. If our purchasing prices increase and/or a valid wage agreement leads to an increase in salary costs for orders that we must fulfill more than six (6) weeks after the contract has been concluded, we are entitled to demand a price that has been increased accordingly and reflects the percentage of the purchasing price and/or the salary costs of the initially agreed price. For rental and/or leasing transactions, this also applies to changes in the interest rate situation on the capital market between conclusion of the contract and commencement of the contract’s term.
- We reserve the right to only deliver concurrently (“Zug um Zug”) against payment of the agreed prices. Furthermore, our invoices are due and payable net in full immediately on receipt, unless otherwise agreed in writing. Deducting a discount is not permissible. We are entitled to offset payments made by our Contractual Partner in accordance with Art. 366 Sec. 2 and Art. 367, Sec. 1 of the German Civil Code (BGB). This also applies in the event that our Contractual Partner has determined deviating charges.
- Once the payment deadline has passed, we are entitled to interest at a rate of 9 percentage points above the current base rate, without having to issue any further reminder. If our Contractual Partner is in default, they must pay interest to the amount of our credit costs, however at least to the amount of nine (9) percentage points above the current base rate. Further claims remain unaffected.
§ 4 – Offset, Right of Retention
- Offsetting with counterclaims that we dispute and that are not enforced by law is not permitted. Asserting a right of retention due to claims that are not based on the same contractual relationship is excluded if we do not recognize these claims and if said claims have not been legally established.
- Our Contractual Partner is only entitled to retain payments due to a defect complaint if there is no doubt as to the justification of said defect complaint. In addition, our Contractual Partner must only retain payment in a proportionate scope to the defects that have occurred.
§ 5 – Place of Fulfillment, Dispatch and Transfer of Risk, Insurance
- The place of fulfillment for all our deliveries/services is our registered office or the registered office of the branch with which our Contractual Partner has concluded the contract.
- In all cases the risk is transferred to our Contractual Partner upon the dispatch of the delivered goods, regardless of the place of dispatch. This also applies if we must install the delivered goods at the client’s point of use, insofar as we do not use our own staff to dispatch the goods to the point of use.
- If our Contractual Partner does not supply shipping instructions or supplies incomplete shipping instructions or if we deem a deviation of said shipping instructions necessary, we will dispatch the goods to the best of our judgment without being obliged to select the cheapest or fastest shipping method.
- We will only insure the delivered goods against every risk on our Contractual Partner’s request, provided the risk is insurable and requested by our Contractual Partner, including but not limited to insurance against theft and damages in transit. Our Contractual Partner must notify us immediately of any damages in transit. On delivery, the recipient must furthermore ensure that the respective claims and reservations are expressed towards the carrier.
- If shipping is delayed on our Contractual Partner’s request or for reasons attributable to our Contractual Partner, the goods will be stored at our Contractual Partner’s expense and risk.
- Our Contractual Partner bears the costs for shipping the goods. If software is delivered by remote data transmission, our Contractual Partner shall bear their share of the costs for the connection as well as of the fees incurred for transmitting the software.
§ 6 – Default of Acceptance by Our Contractual Partner
If our Contractual Partner comes into default, either fully or partially, with the acceptance of our services, we are entitled to either withdraw from the contract or to demand compensation instead of the services, following the fruitless expiry of a reasonable grace period that we shall set. In the event of default of acceptance by our Contractual Partner, our legal rights remain unaffected.
§ 7 – Delivery Periods, Deliveries/Services on Demand
- Delivery periods and dates are only binding if we have confirmed them in writing. Delivery periods have been met if the delivery/service has been dispatched from our registered office or if we have announced readiness for shipment before the delivery period expires. On-demand deliveries and services must be accepted within six (6) months after we have issued our order confirmation, whereby we must be informed of the desired delivery date in writing in due time, but at least twelve (12) weeks in advance. If the order contains the delivery of software as well as services, the services must be accepted at the latest within six (6) months after the agreed software delivery date. Any deliveries/services which are not called off must be paid for once the call-off period has expired.
- Delivery periods will extend—even within a default—appropriately in cases of force majeure and unforeseen hindrances and hindrances that have occurred after the contract was concluded and that we are not responsible for, provided such hindrances verifiably have a significant impact on the delivery/service. Strikes and lockouts always count as actions that we are not responsible for within the meaning of this section. The aforementioned regulations also apply if the delaying circumstances occur with our supplier or their sub-supplier. If delays caused in such a manner last longer than six (6) weeks, our Contractual Partner is entitled to withdraw from the contract and demand reimbursement of any payments that have already been made with the exclusion of additional claims.
- Delivery periods are extended by the period in which our Contractual Partner is in default with their obligations. Within an ongoing business relationship, this includes obligations arising from other contracts.
- We are entitled to carry out partial deliveries/partial services and to invoice these separately, provided the delivery/service allows.
§ 8 – Default, Exclusion of the Obligation to Perform
If we are in default with the delivery/service or if our obligation to perform is excluded, our liability is fundamentally determined in accordance with Art. 9 Sec. 6 with the following stipulations:
- If we are in default with the delivery/service and if this is merely a case of slight negligence on our part, our Contractual Partner’s claims for compensation are limited to a lump sum default compensation of 0.5% of the delivery value for each full week of default, but no more than a maximum of 5% of the delivery value, whereby we reserve the right to prove that no or only slight damage has occurred as a consequence of the delay in delivery.
- Our Contractual Partner is only entitled to claim compensation for damages if they have set an appropriate deadline of at least four (4) weeks to deliver/provide the services beforehand, whereby they reserve the right to grant us a deadline of less than four (4) weeks if a deadline of at least four (4) weeks to deliver/provide the services is unreasonable in individual cases.
- If we are in default with the delivery/service, our Contractual Partner is entitled to withdraw from the contract, if they have set an appropriate deadline of at least four (4) weeks to deliver/provide the services beforehand, whereby they reserve the right to grant us a deadline of less than four (4) weeks if a deadline of at least four (4) weeks to deliver/provide the services is unreasonable in individual cases.
The Contractual Partner’s right to withdraw from the contract generally only applies to the part of the contract that has not yet been fulfilled, unless the Contractual Partner has no reasonable interest in the part of the contract that has already been fulfilled.
- Any claims for damages brought against us due to defaults or exclusion of our obligation to perform must be brought forward within be one (1) year of the beginning of the legal statute of limitations.
- These liability limitations in accordance with the aforementioned regulations and Art. 9 Sec. 6 do not apply in cases that concern damages resulting from damage to our Contractual Partner’s life and limb or if the damages result from deliberate acts or gross negligence by us, our legal representatives or vicarious agents. Moreover, they do not apply in the event of default if we agreed delivery by a fixed date.
§ 9 – Liability for Defects and Damages
- Our Contractual Partner’s right to assert claims due to defects requires fulfillment of their obligation to duly examine and give notice of a defect according to Art. 377 of the German Commercial Code (HGB), whereby the notice must be given in writing. If our Contractual Partner fails to give notice duly and in good time, they are no longer entitled to assert claims resulting from the reported circumstances, unless we have acted fraudulently.
- If a delivery/service is defective, our Contractual Partner’s rights shall be based on legal regulations provided that our Contractual Partner grants us a reasonable period of time of at least eight (8) weeks for the subsequent performance, whereby they reserve the right to grant us a period of time of less than eight (8) weeks if a period of at least eight (8) weeks for the subsequent performance is unreasonable in individual cases. If only part of the delivery/service is defective, our Contractual Partner’s right to request rescission of the contract is limited to the defective part, unless said limitation is impossible or unreasonable for our Contractual Partner.
- Our Contractual Partner must bring forward any claims against us due to defects within one (1) year after the delivery/service has been provided. However, the statutory period still applies to claims for damages and reimbursement of expenses in accordance with Art. 437 Sec. 3 and Art. 634 Sec. 4 of the German Civil Code (BGB) in cases that concern damages resulting from damages to our Contractual Partner’s life and limb or if the damages result from deliberate acts or gross negligence by us, our legal representatives or vicarious agents. The statutory period of limitation shall apply even if we fraudulently concealed the defect. The cases referred to in Art. 478 and Art. 479 of the German Civil Code (BGB) are subject to the regulations stipulated in said articles, however, in the event of claims for damages, the foregoing Sections 1, 2, and 3 also apply. Furthermore, our Contractual Partner’s claims for damages are limited to the scope resulting from the following paragraphs.
- The warranty does not apply to deliveries/services, including but not limited to software that our Contractual Partner has modified or expanded, unless our Contractual Partner proves that such modifications or expansions did not cause the defect.
- If the contract between ourselves and our Contractual Partner essentially stipulates that we must transfer software, interfaces or other goods following payment of the distribution costs (e.g., postage, costs for duplication), we do not warrant that such products are defect-free.
- Our liability for damages that result from damage to our Contractual Partner’s life and limb that in turn are based on a culpable breach of duty on our part, is neither excluded nor limited. We are only liable for other damages of our Contractual Partner if these are attributable to an intentional or grossly negligent breach of duty. If the damage was only caused by slight negligence on our part, we are only liable if this is an infringement of fundamental contractual duties, furthermore limited to reasonably foreseeable damage that typically occurs within the framework of such a contract. Furthermore, our Contractual Partner’s claims for damages due to breach of duty, hindrance of performance, illegal acts or other legal grounds are excluded. The aforementioned limitations of liability do not apply in the event that warranted characteristics are missing, if and insofar as the warranty served to protect the Partner against damages that did not occur on the delivery/service itself. Insofar as any liability of ours has been excluded, this also applies to the personal liability of our salaried employees, workers, contributors and vicarious agents.
- The aforementioned exclusions of liability always apply to consequential damages. The aforementioned exclusions of liability do not, however, apply to claims in accordance with the German Product Liability Act (Produkthaftungsgesetz).
- The Contractual Partner is obliged to make security backups in regular intervals that correspond to their own interest in maintaining and securing said data. If they breach this obligation, in the event of data losses we will only assume liability for the damage that would have occurred if they had carried out proper and regular data security backups.
§ 10 – Retention of Ownership
- The delivered goods remain our property until all claims resulting from the delivery have been settled.
- Our Contractual Partner is entitled to sell the goods that are subject to retention in the proper course of business. In doing so, our Contractual Partner already assigns all claims that result from said sales or any other legal reason concerning the goods that are subject to retention to us, either entirely or in proportion to our joint ownership of the sold item. The assignment shall have priority over all other debts. We hereby grant our Contractual Partner the revocable authorization to collect the assigned claims. Our Contractual Partner must transfer the collected claims to us immediately, insofar as and as soon as our claims are due. Insofar as our claims are not yet due, our Contractual Partner must record the collected amounts separately. Our right to collect the claims ourselves remains unaffected. However, we undertake to not collect the claims ourselves, provided our Contractual Partner fulfills their payment obligations that result from the collected proceeds, does not come into default and, in particular, has not filed a petition for the institution of insolvency proceedings or stopped payments. However, if this should be the case, our Contractual Partner is obliged to announce the assigned claims and their debtors to us, to hand over the related documents to us and to provide us with all information that we need to collect the claims as well as to inform the third-party debtors of the assignment, whereby we are entitled to inform the debtors of the assignment ourselves. If our Contractual Partner stops payments or files a petition to institute insolvency proceedings, their rights to sell, process, mix or install the goods that are subject to retention expire, as does the authorization to collect the assigned claims, even without our objection.
- Our Contractual Partner must inform us immediately if a third party has access to the goods that are subject to retention and the assigned claims. Our Contractual Partner must bear potential costs arising from interventions or their legal defense.
- Our Contractual Partner is obliged to treat goods that are subject to retention with care, including but not limited to insuring said goods against damage due to fire, water, and theft at the original value and at the Contractual Partner’s own expense.
- In the event that our Contractual Partner breaches the contract – particularly due to default of payment – we are entitled to retrieve the goods that are subject to retention at our Contractual Partner’s expense or to demand the assignment of their claim for surrender against third parties. In the event that we take back or seize the goods that are subject to retention, this does not imply our withdrawal from the contract, unless we expressly declare our withdrawal from the contract in writing.
- If our retention of ownership should become invalid due to deliveries abroad or other reasons or if for any reason we should lose the ownership of the goods that are subject to retention, our Contractual Partner is obliged to immediately grant us another security concerning the goods that are subject to retention or any other security for our claims that is valid in accordance with the law applicable at the Ordering Party’s registered office and that comes closest to the retention of ownership according to German law.
§ 11 – Assignment
Our Contractual Partner is only entitled to assign any claims against us with our express written approval.
§ 12 – Final Provisions, Place of Jurisdiction, Applicable Law
The exclusive place of jurisdiction for deliveries and services including lawsuits concerning checks and bills of exchange as well as all disputes that arise between the parties is Wuppertal, Germany, whereby we are also entitled to file a suit against our Contractual Partner at a different place of jurisdiction that applies to our Contractual Partner in accordance with Art. 12 ff. of the German Code of Civil Procedure (ZPO). The relationship between the contracting parties is governed exclusively by the law valid in the Federal Republic of Germany with the exclusion of international law on sale of goods, including but not limited to the United Nations Convention on Contracts for the International Sale of Goods and other international conventions harmonizing the law on sale of goods.