General terms and conditions of the company ACTICON GmbH Zeiterfassungs- und Zutrittskontrollsysteme
§ 1 Sphere of application
The general terms and delivery conditions below apply exclusively - even if they are not referred to in an individual case - to all our offers, deliveries and works and services and also to future business transactions in particular. Any anomalous agreements require our written confirmation to come into effect. The cancellation of the above-mentioned written form provision can also be in written form only. Anomalous conditions on the part of the customer also apply if we do not explicitly object to them in the individual case.
§ 2 Offers and conclusion of a contract / functional specification
(1) Our offers and cost estimates are always non-binding and without commitment. Our written order acceptance is critical for the conclusion of the contract. Dimensions, weights, figures, drawings and other details are not binding on the execution of the order unless this is explicitly confirmed in writing. The technical detail of our own products and of those in our trading programme are subject to change.
(2) Our order confirmation is solely decisive for the scope of the order. Later additions, changes or other verbal agreements must have our written confirmation before they can become effective.
(3) On request, a functional specification summarising the requirements on the IT system or software is to be compiled by the customer. We shall cooperate as far as we possibly can in this matter if this should be necessary. Cooperating in drafting a functional specification shall be done on the basis of a separate payment.
§ 3 Prices
(1) The agreed prices are net prices in euros minus packaging, carriage and insurance. The statutory rate of value-added tax will be added to these prices.
(2) The quantities calculated by us are decisive for the calculation if the recipient does not immediately object.
(3) If the order-related costs change substantially after conclusion of the contract, the contract partners are obliged to agree a price adjustment. An adjustment is essential if the payments change by more than 20%. If no agreement can be reached, we are entitled to withdraw from the contract within two weeks after the failure of the negotiation.
§ 4 Payment conditions
(1) The invoice total is due for payment without deduction on delivery. Granting of rebates and discounts requires a separate written agreement. Payments are to be made by bank transfer free of cost to our business account. The payment is completed as soon as we have the credit. Cheques can be accepted only by special agreement and only by way of payment. All expenses and other costs due shall be debited to the customer. The cheque will not be considered as payment until it has been cashed.
(2) If the customer gets into arrears, we are entitled to calculate interest on arrears of to 8 percent above the basic rate of interest without any separate proof.
(3) When paying by instalments, the entire remainder is immediately due if the customer is behind with 2 instalments or if he has got behind in a period stretching over more than 2 instalment deadlines to a total amounting to one instalment.
(4) The offsetting is allowed only with undisputed or legally established claims. A right of retention on the part of the customer is excluded provided it is not based on the same contractual relationship.
(5) We are entitled to demand part payments for services provided. Similarly, we are entitled to demand suitable advance payments for our services.
§ 5 Delivery
(1) We deliver from our works or delivery depot if nothing to the contrary has explicitly been agreed.
(2) The stated delivery dates are considered only as non-binding guidelines if they have not been explicitly designated by us as binding.
(3) The delivery deadline begins with the sending of the order confirmation, but not before the submission by the customer of the documents, licenses, approvals to be procured or before receipt of the agreed deposit.
(4) The delivery deadline has been complied with if the ordered item is dispatched before it expires or the readiness for dispatch is communicated to the customer.
(5) Unforeseen events that are outside our control (e.g. production interruptions, strike, lock-out at our factory, at one of our suppliers or a transport company) will extend the delivery time accordingly. The same applies to any late amendment to the order.
(6) Correct and timely self-delivery remains an option. We are entitled to make early deliveries and part-deliveries as well as part-calculations. Furthermore, we are entitled to amend the agreed ordered item or to deviate from it if this change or deviation is reasonable to the customer in consideration of our interests.
(7) In the event of a delay in delivery the customer can, after he has set a suitable performance deadline for us, withdraw from the part of the contract that has not been fulfilled to date. The customer can only withdraw from the entire contract if he has no interest in partial performance.
(8) If the delivery is delayed at the customer's request or the customer is in default of acceptance, then the costs generated by the storage will be charged to him with effect from the calendar month following communication of the readiness of the ordered items. But we are entitled, after expiry of the set time, to dispose of the ordered item elsewhere and to make a fresh delivery to the customer with a delivery deadline extended accordingly.
(9) We are not in arrears if the customer is behind in providing information required to implement the contract.
§ 6 Transfer of risk
(1) The risk transfers to the customer when the ordered items leave our factory or our depot, irrespective if they do so with our own means of transport of those of a third party.
(2) If the delivery is delayed because of circumstances to do with the customer, the risk transfers to the customer with the communication of the provision of the ordered items. This also applies if part-deliveries are to take place or we have taken on other services, e.g. shipping costs, carriage or installation.
(3) A delivery is not insured against breakage and transport damage, fire, theft or the like without a specific request from the customer. If the customer requests that an insurance is taken out, it will be concluded at the customer's expense.
§ 7 Reservation of proprietary rights
(1) We shall retain ownership of all ordered items until all current and future claims arising the commercial connection with the customer have been paid in full. This applies without regard to the legal reasons and the time of origin of the claims, so especially also to claims arising from a cheque, remittance or from the balance to be settled by the customer from an existing open account relationship.
(2) The customer may not transfer the ordered item covered by proprietary rights or re-assign it as a security. He is to inform us immediately if it is seized, confiscated or disposed of in any other way by third parties. He may resell ordered items covered by proprietary rights only in a proper business transaction provided the claim arising from the re-sale is transferred to us. In the event of a resale the customer shall assign to us immediately his claims arising from the resale of ordered items including the appropriate claims arising from cheques with all subsidiary rights. In the event that an ordered item is sold for a total price along with other goods that do not belong to us, the assignment shall be made only to the amount that we calculated for the customer for the sold ordered item including value-added tax. A special declaration of assignment for the individual sales case is not required.
(3) The customer shall call in the claims arising from the re-sale on trust provided we agree with this. At our request, he shall inform his customers of the assignment while announcing it to us at the same time.
(4) If processing, connecting or mixing an ordered item with other items that do not belong to us, the customer hereby transfers to us a co-ownership share of the new item amounting to the sales price including VAT charged to the customer. The customer shall keep the new item free of charge for us.
(5) If the value of the securities given to us exceeds our claims by more than 20% overall, then we are obliged to release securities of our choice at the request of the customer.
e(6) If the customer infringes a duty, especially if in arrears, we are entitled to take back the ordered item after withdrawing from the contact and the customer is obliged to hand it over. The costs of the return are to be paid by the customer in this case. An amount corresponding to the current market rental price for the period of use shall be due to us for the use of delivered and returned ordered items as compensation for use and in lieu of any incurred depreciation. However, the customer shall be given proof that no loss was incurred by us or that the loss is much lower than the lump sums.
§ 8 Special information on operating and handling equipment and systems for data recording and processing
(1) The customer is advised that data records need to be backed up at regular intervals, at least once per day.
(2) The customer is also advised that software and hardware are constantly being developed and modified by the manufacturer. This is unavoidable and can lead to changes or deviations of normal operations during a change, update and the like of the hardware and/or software (e.g. different fonts, colours, display of data or valuations, etc.).
(3) For technical reasons, unlimited functionality and compatibility of state of the art software cannot be guaranteed even when the greatest care is taken.
(4) The customer is advised in addition that EDP systems or individual components of the EDP system may suffer damage from external influences (e.g. computer viruses or worms, trojans, lightning, voltage surges in the power supply) and that the data safety (destruction of or spying on data) can be adversely affected. The data safety may also be adversely affected if computers are connected to each other inside a company (network) and it is possible to access the data on other computers from one computer.
(5) The customer is advised in particular that improper change of the configuration settings can lead to damage or disruptions to the service of the EDP system; this can also happen if the cable connections of the components are made or broken during operation.
§ 9 Rules on the delivery of software
(1) When software is delivered, it is transferred on machine-readable data media. It is our decision whether the customer receives the software documentation in written and/or electronic form (online help). If necessary, we shall carry out the installation of the software on the customer's hardware for separate payment.
(2) If necessary, we shall carry out programme familiarisation when we delivery the software. The instruction shall be given for separate payment and it is our choice if it is held on our premises or those of the customer.
(3) The customer receives a non-exclusive right of use of the delivered software. The copyright of the software and software documentation delivered by us lies with the software manufacturer.
(4) The customer is entitled to create a copy of the software for backup purposes. As a copy of the leased software the backup copy is to be marked as such and show the name of the software.
(5) The customer is entitled to forward the software in total (including data media, updates, software documentation, contracts granting use) to third parties provided the third party agrees with the rules of these sections relating to the usage and copyrights, reproduction, passing on and amending of software. When he passes the software on the right of the customer to use the software becomes null and void. The customer is not entitled to rent, lend, lease the software to third parties or to make it temporarily available for third parties.
(6) The customer is not entitled to make changes to the programme sequence of the delivered software, and especially not to decompile or disassemble the software.
§ 10 Quality defects / guarantee
(1) The deadline for quality claims is one year for new items supplied and begins when the ordered items are delivered or accepted. Quality claims are excluded for used items, unless we accepted a guarantee.
(2) Obvious defects of the item itself or in the fitting instructions, if present, incorrect deliveries and quantity deviations are to be made known in writing immediately after the defect is discovered, but no later than 7 working days after receipt of the ordered items. If a defect in the meaning of this provisions is discovered later, then notification of the defect must be made immediately. Wear and tear and/or natural wear do not represent a defect and do not entitle the customer to bring defect claims.
(3) If the delivered item is defective, it is our decision whether we remove the defects on the ordered item or replace the ordered item. Replaced parts become our property. We shall not accept the additional costs for the removal of defects or delivery of replacement parts that have been caused by the fact that the customer moved the ordered item to a location other than the original delivery location.
(4) The customer is obliged to grant us the time and opportunity to remove any defects and to obtain any information required to remove the defects, and to obtain a detailed and comprehensible fault description and perform data backup if required for software faults in particular, that shall allow us to confirm it.
(5) If we have refused to remove the fault and deliver replacement parts because of unreasonable costs, or should the removal of faults or delivery of replacement parts - to be repeated at least twice if necessary - have failed or be unreasonable for the customer, then it is choice to request reduction of payment or withdraw from the contract if the fault is considerable. The more extensive claims of the customer are covered by § 12 (Liability).
(6) If a notice of defects turns out to unjustified, then the customer shall bear the costs generated for using us based on the rates calculated by us at that time.
(7) Guarantees relating to the composition and/or durability of the ordered item are not effective unless we give a written guarantee declaration. A guarantee of the usability of the goods for the purposes intended by the user is not accepted.
(8) If hardware and software are delivered together, defects to one item do not grant the customer the right to exercise guarantee rights relating to the other item delivered unless the items can only be used jointly.
(9) Rights of recourse of the customer based on § 478 BGB (recourse of the contractor [BGB = Federal Civil Code]) exist only to the extent that the customer with his customer has not made any statutory quality claims in excess of the agreement.
§ 11 Repairs
If a written cost estimate is requested before repairs are carried out, then this must be explicitly stated in writing. It is up to us if the repair is done in our own or a third-party workshop. The customer shall ship the item for repair outside the period of guarantee at his own cost and risk.
§ 12 Liability
(1) The liability for personal injury is based on the statutory provisions.
(2) Other compensation claims or claims for compensation of futile expenses on the part of the customer that are based on the infringement of our contractual or statutory obligations are excluded. We are in particular not liable for loss of profit, lost savings, other financial losses or for losses that have been caused by the ordered item itself.
(3) The above-mentioned exclusion of liability does not apply if the damage has been caused by us or by our agents deliberately or by gross negligence, if we have accepted a guarantee or a procurement risk. If we breach fundamental contractual obligations, we are liable for minor negligence unless these are losses untypical of and unforeseeable in the contract.
(4) If we have cause damage by minor negligence for which liability is not excluded in accordance with this section, the liability is limited to a total of € 500,000 per case of damage and € 1,000,000 per calendar year, the liability for financial losses is limited to a total of € 25,000 per case of damage and € 50,000 per calendar year.
(5) The right of the customer to withdraw from the contract is not limited by the above-mentioned regulations. The same applies to the liability in accordance with the product liability act.
(6) For minor negligence, the liability for data loss will be limited to the typical restoration costs that would have been generated for the regular and risk-appropriate making of backup copies. We shall not be liable for the loss of data caused by repair efforts.
§ 13 Ineffectiveness of individual provisions
The ineffectiveness of individual provisions of these terms and conditions does not affect the validity of the remaining provisions.
§ 14 Choice of law, place of fulfillment and place of jurisdiction
(1) German law is to be applied to all legal relationships made with us. German law is also authoritative for the application of these general terms and conditions. The use of the UN Convention dated 11.04.1980 on the Contracts for the International Sale of Goods (CISG - “Vienna Purchasing Law”) is excluded.
(2) In the commercial dealings with buyers, contractors, corporate bodies under law or public-legal fund assets 72474 Winterlingen is the place of fulfillment and place of jurisdiction for both parts. This applies to all present and future claims arising from the commercial connection, especially to actions brought in proceedings restricted to documentary evidence. We are also entitled, if we so decide, to bring the action at the customer's registered office.