| Terms and Conditions |
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General Terms and Conditions of e-DATA GmbH 1. Subject Matter of the Terms and Conditions, Scope of Application 1.1. The subject matter of these Terms and Conditions are the supplies and services of the company e-DATA GmbH (hereinafter referred to as e-DATA), in particular the supply of e-DATA’s own and third party hardware products, the supply of e-DATA’s own and third party computer programs and work and services in these fields. 1.2. The following provisions form a component part of all offers by and agreements with e-DATA, in the case of an on-going business relationship also with respect to all future trans¬actions with business persons if the contract forms part of the operation of their commercial business, and with respect to public law legal entities and public law special funds. Terms and conditions of the purchaser differing herefrom only apply if they are confirmed in writing by an authorized officer of e-DATA recorded in the commercial register. This shall also apply if e-DATA has not explicitly objected to the differing terms and conditions or if the purchaser refers to differing terms and conditions in its order. 2. Concluding the Contract, Content of the Contract 2.1. All offers by e-DATA are subject to change. Contracts are not concluded until after an order has been confirmed or the order executed by e-DATA. Any additional agreements or amendments to these Terms and Conditions must be made in writing. This also applies to amending this written form requirement. 2.2. All orders, agreements, indications of characteristics, representations etc., including those made by representatives of e-DATA, must be confirmed by e-DATA in writing to become legally-valid. 3. Scope of Performance 3.1. The exact scope of performance is derived from the order confirmation by e-DATA. 3.2. Objections to the order confirmation must be notified to e-DATA in writing without undue delay. 4. Disturbance to the inherent basis of the contract 4.1. If the circumstances pertaining after the contract has been concluded have changed profoundly, or if unforeseeable circumstances such as force majeure, in particular mobilization, war, insurrection, boycott or disruptions in operations, strike or lockout, governmental intervention, power supply problems, problems in procuring materials, influence the manufacture or procurement of merchandise, the supply of products or the rendering of work or services, then e-DATA may demand that the contract be adjusted or may, at the election of e-DATA, withdraw from the contract. 4.2. If, after the contract has been concluded, it becomes apparent that e-DATA’s entitlement to remuneration is in jeopardy, then e-DATA may demand advance payment or provision of security. After expiry of a reasonable period of time set on the purchaser, e-DATA has the right to withdraw from the contract or demand compensation in lieu of performance. In this case, all of e-DATA’s claims must be met by the purchaser in full immediately, notwithstanding any payment terms agreed. 4.3. If the costs of salaries and materials increase to a not only minor extent after the contract is concluded, e-DATA may reasonably adjust the supply price or, if the purchaser objects to the increase in the supply price, e-DATA may withdraw from the contract. 5. Prices, Terms of Payment, Off-set 5.1. The prices given in the order confirmation only include the services indicated in the order confirmation. 5.2. All other services shall be charged separately. In particular the purchaser shall bear the travel costs, expenditure on installation, familiarization, training and organization discussions, the costs of data media and transport. Work and services shall be invoiced in accordance with the terms and conditions in effect at the time or at the hourly rates of e-DATA. 5.3. In the event that any taxes or public charges are introduced or levied after the contract is concluded, e-DATA has the right to pass these on to the purchaser insofar as they relate to the contractual services. 5.4. All quotations of prices are always net of the Value Added Tax applying at the time of delivery. 5.5. Claims by e-DATA fall due upon delivery unless a different due date is provided for in special terms of contract of e-DATA or in an individual case. 5.6. No discounts are granted. Any bank charges arising shall be borne by the purchaser. With effect from the 15th calendar day after the due date, e-DATA has the right to demand interest at 8% above the basic interest rate. The right to assert a claim for greater damage on account of default remains unaffected. 5.7. If the purchaser fails to comply with the terms of payment, e-DATA may demand advance payments or the provision of security. After expiry of a reasonable deadline set on the purchaser, e-DATA may withdraw from the contract or demand compensation in lieu of performance. 5.8. The purchaser may only off-set claims or assert a right of retention with respect to claims, if such claims are undisputed or recognized by final and binding judgment. 6. Reservation of title 6.1 e-DATA reserves title to the goods supplied to the purchaser pending payment in full of all claims existing at the time of supply and claims ensuing from the contractual relationship at a later date; in the event of payment by means of check or bill of exchange, pending the encashment of the check or discharge of the bill. The allocation of individual claims to a current account and the netting out of claims and recognition thereof has no affect on the reservation of title. 6.2. No pledging, transfer as security or assignment of security is permitted with respect to the goods with reserved title. In the event of an on-sale, the purchaser is obliged, as the seller of goods with reserved title, to secure the rights of e-DATA. The purchaser assigns to e-DATA in advance the claims of the purchaser from such sale. 6.3. The purchaser shall notify e-DATA without delay of any compulsory execution action by third parties with respect to the goods with reserved title and of any claims assigned in advance and provide e-DATA with the documentation required for any intervention. 6.4. In the event of default by the purchaser and in the event of a considerable breach of the duties of care and safe custody, an assertion by e-DATA of its reservation of title shall not constitute withdrawal from the contract unless e-DATA explicitly declares that it is withdrawing from the contract. 7. Delivery dates, Default 7.1. Delivery dates indicated by e-DATA are only approximate and not binding unless explicitly otherwise provided in the order confirmation. The precondition for commencement of the delivery periods indicated by e-DATA is the clarification of all technical questions, the punctual and complete performance by the purchaser of the collaboration duties of the purchaser and compliance with payment terms. If these preconditions are not met, the periods shall be reasonably extended, but at least by a period of time equivalent to the delay. e-DATA is not accountable for force majeure, in particular mobilization, war, insurrection, boycott, strike and lockout. 7.2. If, after the occurrence of default, the purchaser sets e-DATA a reasonable extended period for performance, which must be accompanied by a threat to refuse acceptance, the purchaser has the right to withdraw from the contract upon expiration of such period, or, if the default is based on intent or gross negligence by e-DATA, to demand compensation in lieu of performance. 8. Duty to examine the goods and notify non-conformity 8.1. The purchaser must examine the supplies and services without delay upon receipt, in particular with regard to the completeness thereof and the operability of basic functions, and notify e-DATA in an understandable manner by means of a registered letter of any defects ascertained. 8.2. Any defects which cannot be ascertained within the course of a due examination must be notified to e-DATA within 30 working days of discovery and in compliance with the requirements for notifying non-conformity (paragraph 1). 8.3. In the event of a breach of the duty to examine the goods and notify non-conformity, claims for warranty shall be excluded with regard to the respective defect. 9. Defects 9.1 Any exclusion of deviations customary in the industry shall require an explicit written agreement. The same shall apply to any guarantees. Minor, inconsiderable deviations in supplies and services by comparison with samples, catalogues, brochures, price lists etc. or with former supplies and services are not deemed to constitute defects. The purchaser must examine itself whether the supplies and services ordered by the purchaser are suitable for the purpose of use intended by the purchaser. Unsuitable supplies and services are only defective if e-DATA confirmed the suitability to the purchaser in writing. 9.2. The wear and tear of wear and tear parts within the course of use customary in the trade does not constitute a defect. 9.3. If installations assembly, maintenance instructions etc. are not complied with, if the products supplied are modified, parts exchanged or materials, cleaning agents or care products used which do not correspond to the manufacturer’s instructions, claims on account of defects only exist if the purchaser provides evidence that the defect was not caused by this but that the defect already existed upon the transfer of risk. 10. Warranty 10.1. e-DATA warrants that at the time of delivery its supplies and services are free of defects within the meaning of the order confirmation. Defects shall be rectified by e-DATA within a warranty period of 12 months, at e-DATA’s discretion either by means of repair, supply of a replacement or provision of new program revisions or program versions. 10.2. If e-DATA is not prepared or unable to repair the defect or supply a replacement, or if this should be delayed for more than a reasonable period of time for reasons for which e-DATA is accountable, or if the remedy of the defect or supply of a replacement should be to no avail, the purchaser may, at its election, either withdraw from the contract or assert a claim for a reduction in the purchase price. 10.3. The assertion of warranty claims has no influence on any other contracts which may exist between e-DATA and the purchaser. 10.4. If, following notification of non-conformity by the purchaser, no defect can be established at an examination, the purchaser shall bear the costs of searching for the error. 10.5. Further warranty claims are excluded. 11. Limitation of liability, Compensation 11.1. If e-DATA is in default of delivery for reasons for which e-DATA is responsible, e-DATA is liable for the damage incurred by the purchaser. The liability of e-DATA is limited to the damages typical of comparable transactions and in the event of negligence to 0.5% of the value of the delivery for each full week of delay, but not exceeding, in total, 5% of the value of delivery. 11.2. If e-DATA negligently breaches a duty material to performance of the object of the agreement, the liability of e-DATA is limited to the damages typical of comparable types of transactions which were foreseeable when the contract was concluded or, at the latest, when the breach of duty was committed, and, in an individual case, to an amount of € 1,000,000. 11.3. In all other respects claims for compensation are excluded insofar as e-DATA or its agents employed in the performance of an obligation are not liable on account of intent or gross negligence. In particular e-DATA shall not be liable either for damage occurring to the item delivered itself or for consequential damage of any kind caused by a defect, nor is e-DATA liable for lost profit or any other pecuniary losses of the purchaser. 11.4. Section 444 German Civil Code (BGB), Section 639 BGB, claims for compensation on account of fatal and physical injury, injury to health and claims pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected by these limitations of liability. 11.5. The liability of the agents employed by e-DATA in the performance of an obligation is limited in the same way. 12. Statute of Limitations The limitation period for claims asserted against e-DATA which are not based on deliberate behavior attributable to e-DATA is one year. It shall start to run when the service is rendered. 13. Infringement of protective rights If third parties should assert claims against the purchaser on account of infringements of protective rights by the programs or documentation supplied by e-DATA, the purchaser shall inform e-DATA hereof without delay. In this event e-DATA may conduct, at its discretion and expense, all negotiations on the resolution of the disputes and lawsuits resulting herefrom, or else e-DATA can support the purchaser in any defense which may be necessary. e-DATA shall indemnify the purchaser against respective claims for compensation by third parties, but does not otherwise assume, with respect to the purchaser, any liability for damage incurred from such infringements of protective rights, unless they are based on gross negligence or intent by e-DATA. 14. Obligation to reduce damage The purchaser is aware of the fact that, within the framework of its duty to reduce damage, it must, in particular, ensure that its data are saved regularly and, in the event of a suspected software error, that it must also take all reasonable additional safeguarding measures. 15. Final Provisions 15.1. e-DATA may avail itself of third parties for the performance of all obligations under this agreement. 15.2. The purchaser shall treat in confidence all the knowledge of programs and hardware of e-DATA and the know how contained therein which it obtains cognizance of in connection with the use and shall take all the necessary action to exclude third parties from use and from a utilization in breach of contract. Within the meaning of this provision third parties are persons not commissioned by the purchaser to use a program. 15.3. The laws of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods. 15.4. If one of these provisions should be or become legally invalid or unenforceable in whole or in part, a provision shall apply in lieu of such provision which approximates most closely the economic intent. The validity of the remaining provisions shall remain unaffected: The same shall apply in the event of an omission in the provisions. 15.5. In the event of all and any disputes arising out of legal relations between e-DATA and the purchaser, the courts with jurisdiction at the registered office of e-DATA shall have exclusive jurisdiction and venue with respect to the relationship with businessmen, public law legal entities and public law special funds, or, at the discretion of e-DATA, at the domicile/registered office of the purchaser. Unless otherwise provided for in the order confirmation, the place of performance is at the registered office of e-DATA GmbH. |