For contracts for goods and services between GEDYS IntraWare GmbH and its Customers the following terms and conditions shall apply exclusively insofar as no supplementary conditions of contract are included in the Contract. These terms and conditions apply to all future business even if not expressly and separately agreed. The conditions are considered to be accepted no later than upon receipt of the goods or services. Alternative terms and conditions from the Customer and which are not expressly recognized in writing by GEDYS IntraWare GmbH are in all cases non-binding. To be binding, all agreements require written confirmation from GEDYS IntraWare GmbH.
2 Ordering, Award of Contract
GEDYS IntraWare GmbH accepts verbal and written orders. The risk of errors in transmission with regard to verbal orders is borne by the Customer. A Contract does not however come into existence until an order has been confirmed in writing, normally within two weeks. All quotations drawn up by GEDYS IntraWare GmbH are subject to change without notice and are non-binding. Goods or services combined within a quotation shall only be viewed as belonging together when this is expressly agreed. The creation of product manuals must be specified separately in the order
3 Assumption of Risk and Delivery
Even where it has been expressly agreed to bear the costs of shipping, GEDYS IntraWare GmbH shall deliver at the sole risk of the Customer; the risk is transferred to the Customer at the point at which the goods are transferred to the Customer or to a person carrying out the shipping. In the event of accidental loss, accidental damage or the loss of the goods, the Customer must pay the full purchase price. The place of performance is the headquarters of GEDYS IntraWare GmbH. The arrangement of shipping insurance is at the discretion of the Customer. The Customer also bears the risks of shipping for the arrival of goods returned to GEDYS IntraWare GmbH.
4 Partial Services, Partial Payments
GEDYS IntraWare GmbH is entitled to make partial deliveries, which may be settled in each case after execution. GEDYS GmbH expressly reserves the right to demand advance payments. This is especially true in the cases where the contract also includes the adaptation of the software for the customer or the creation of a special software system.
5 Periods of Delivery
The delivery period for ordered goods is approximately 3 weeks subject to punctual delivery by our suppliers. At the request of the Customer, a longer delivery period can also be agreed. If this delivery period is exceeded by more than 2 weeks, the Customer must grant GEDYS IntraWare GmbH a grace period of 2 weeks starting from the date on which GEDYS IntraWare GmbH is notified. Upon expiry of this grace period, the Customer can withdraw from the Contract by means of registered letter. In this event claims for damages made by the Customer arise only if GEDYS IntraWare GmbH has caused damage to the Customer deliberately or by means of gross negligence; additional claims for damages by the Customer is – insofar as is legally permitted – excluded.
6 Prices and Payment
All of the prices specified by GEDYS IntraWare GmbH are net prices excluding sales tax; sales tax at the appropriate statutory rate shall be added unless the prices are expressly indicated as being gross prices including sales tax at the relevant statutory rate. Unless otherwise agreed, the costs of special packaging and shipping are to be borne by the Customer. The prices of equipment do not include the costs of installation and training nor any software adjustments; likewise the prices for software do not include the cost of installation, training and any necessary adjustment to other hardware and/or software. The Customer must order such services separately, which will then be charged separately; information for which a separate charge is made describes the most important performance features of a delivery item, without being a substitute for a detailed training course. For such services, GEDYS IntraWare GmbH offers the Customer separate service, maintenance, and training agreements. If the Customer fails to make a payment on time, GEDYS IntraWare GmbH shall be entitled to charge interest at the rate usually charged by commercial banks for open current account advances, but no less than – insofar as a consumer is not involved in the legal transaction – 8% above the base interest rate. Where a higher interest rate can be demonstrated, GEDYS IntraWare GmbH shall be entitled to charge this percentage rate. This shall not affect proof of further damage. If the Customer’s check or bill is not honoured, GEDYS IntraWare GmbH shall be entitled to make the entire remaining debt payable immediately, even where other checks or bills have been received. In such cases, GEDYS IntraWare GmbH shall be entitled to demand from the Customer advance payments or deposit payments for all other contractually agreed services and, following an appropriate grace period, to withdraw from these Contracts and/or, where legally permissible, to demand compensation for non-fulfillment.
7 Retention of Title
All of the goods supplied to the Customer by GEDYS IntraWare GmbH remain the property of GEDYS IntraWare GmbH pending full settlement of all receivables pertaining to the entire business relationship. The Customer may neither pawn nor otherwise transfer ownership of goods under the retention of title of GEDYS IntraWare GmbH, nor otherwise resell or pass them on. The Customer may dispose of the objects subject to retention of title only to the extent that they are to be processed, installed or resold during the course of normal business. The handling or processing of goods subject to retention of title shall not place us under any obligations. In the event of resale, any claims on the part of the Purchaser against the Seller are hereby transferred to GEDYS IntraWare GmbH. Where the property of GEDYS IntraWare GmbH is forfeited by merger, confusion, processing or by any other means, it is hereby agreed that the title of the Customer to the new uniform object is transferred to GEDYS IntraWare GmbH according to value percentage (accounting value of the goods).
The Customer shall keep this (joint) property safe free of charge for GEDYS IntraWare GmbH. The Customer hereby transfers to the Seller the receivables arising from the resale, including the insurance payment, in the appropriate amount. If the value of the goods or receivables of the Customer entered as simple or extended retention of title exceeds by more than 20 percent the value of the receivables owed to GEDYS IntraWare GmbH by the Customer, the Seller shall, at the request of the Buyer reduce the over-collateralization such that the security rights exceed the claims of GEDYS IntraWare GmbH by more than 20 percent.
The Purchaser is obligated to communicate immediately and in writing any distrainment or other access by third parties to the goods of GEDYS IntraWare GmbH supplied under retention of title.
He is obliged to make available to GEDYS IntraWare GmbH all of the necessary information that is required to assert the rights under § 771 ZPO (Code of Civil Procedure). He is also obliged to notify those third parties who have access to goods supplied under retention of title immediately of the property of GEDYS IntraWare GmbH. The Customer must keep safe the goods supplied to him under retention of title and insure them against all risks at his own expense. The Customer hereby relinquishes to GEDYS IntraWare GmbH any future claims arising from the insurance contracts with regard to the goods supplied and subject to retention of title. The Customer shall bear the cost of all measures that serve to preserve or secure the property of GEDYS IntraWare GmbH. This also applies where such a measure fails, while appearing impartially to be necessary. In the event of behaviour by the Customer contrary to the Contract, especially late payment, GEDYS IntraWare GmbH is entitled to demand that the goods supplied under retention of title are returned, without grace period or notice of withdrawal. The Customer must then release the goods immediately. Withdrawal from contract by GEDYS IntraWare GmbH exists only if GEDYS IntraWare GmbH has expressly declared withdrawal from the contract in writing.
8 Warranty and Liability
As part of the regulations below, GEDYS IntraWare GmbH shall ensure that for the duration of the warranty period, goods and services are free from errors in the sense of the law relating to warranties. The Parties agree that software cannot be free from errors under all conditions of application. Notification of obvious defects must be made in writing no later than 14 days following receipt of delivery. In commercial trading and in accordance with §§ 377, 378 HGB (German Commercial Code), it is necessary that the commercial customer has met in the proper way his obligations to check for and provide notification of a defect and that they notify GEDYS IntraWare GmbH immediately and no later than 8 days following delivery or recognition of the fault. The warranty period is one year from the date on which the goods are transferred to the Customer or, in the event of shipping, from the date of transfer to the shipping company. The warranty is honoured by means of repair or replacement, at the Customer’s option. Where repair or replacement shipment fails twice, the Purchaser shall be entitled to an appropriate reduction of the purchase price or alternatively to cancel the purchase contract. The precondition for this is that the Customer has granted GEDYS IntraWare GmbH a grace period of at least four weeks by registered letter. Further claims due to incorrect delivery or failure to comply with contractual secondary obligations by GEDYS IntraWare GmbH are, insofar as legally permissible, debarred; this applies both to damages and to consequential harm caused by a defect.
In the event of bodily injuries and breach of a main (cardinal) duty, GEDYS IntraWare GmbH shall be liable in accordance with the legal regulations. Otherwise liability extends only to deliberate acts and gross negligence. When and insofar as liability of GEDYS IntraWare GmbH is debarred, this also applies to the personal liability of salaried staff, waged staff, employees, representatives and vicarious agents of GEDYS IntraWare GmbH. This shall not affect the regulations of the ProdHG (Product Liability Act).
A guarantee that the object of purchase will work free of errors in conjunction with other products is not given. The warranty claim may not be asserted if operating or maintenance instructions are not adhered to, where changes are made to the delivered goods, parts are replaced or consumables are used that do not comply with original specifications. In the event of a warranty claim and at the request of GEDYS IntraWare GmbH, the Customer must bring the goods in question to the headquarters of GEDYS IntraWare GmbH and provide detailed information about the complaint and the invoice number.
GEDYS IntraWare GmbH shall refund the costs arising insofar as these costs relate to the costs for transfer from the original place of fulfillment to the headquarters of GEDYS IntraWare GmbH. The Customer and GEDYS IntraWare GmbH agree that software programs cannot be free from errors under all conditions of application. In the event of a warranty claim additional services on site are also to be refunded. By “additional” is meant here all services not covered by the warranty.
9 Standard Software
GEDYS IntraWare GmbH sells software (standard software) as merchandise. The Customer hereby acknowledges the conditions of supply and contract of the software manufacturer and software suppliers and the copyrights of the software manufacturer and the license holder respectively. This also applies if the software has been adapted to or developed on the customer’s system.
10 Patent and Copyright Laws
GEDYS IntraWare GmbH reserves the right of ownership and copyright to the software, circuit diagrams, drawings, blueprints, descriptions, plans, concepts and similar documentation it creates. Access may not be granted to third parties without the written consent of GEDYS IntraWare GmbH. Copying is forbidden without the express permission of GEDYS IntraWare GmbH. Documentation must be returned immediately to GEDYS IntraWare GmbH on request insofar as this does not contradict other usage agreements. In the event of non-compliance, GEDYS IntraWare GmbH shall be entitled to claim for damages. GEDYS IntraWare GmbH cannot be held liable for the infringement by the Customer of any patent or other property rights. The Customer shall to this extent exempt GEDYS IntraWare GmbH from any claims by third parties.
11 Return of Goods/Exchange
Goods returns are permissible only with the express prior agreement of GEDYS IntraWare GmbH. In the event of agreement to return of goods, a lump sum to cover costs shall be charged. Returned goods that arrive “freight collect” at GEDYS IntraWare GmbH shall not be accepted. In the event of an incorrect order by the Customer, the goods must be returned to GEDYS IntraWare GmbH “carriage paid”, the risk of transportation to be borne by the Customer.
12 Place of Jurisdiction, Place of Fulfillment and Application of Law
The law of the Federal Republic of Germany shall apply to all disputes arising out of this Agreement.
For any disputes with GEDYS IntraWare GmbH arising from a business relationship or its initiation, the place of jurisdiction is the headquarters of GEDYS IntraWare GmbH insofar as is legally permissible. The place of fulfillment is the headquarters of GEDYS IntraWare GmbH.
13 Partial Inefficacy
The inefficacy of individual points of these conditions shall not affect the efficacy of the remaining conditions. In place of an ineffective provision shall apply the valid provision the commercial effect of which is as close as possible to that of the ineffective provision.
The inefficacy of individual points of these terms and conditions shall not affect the efficacy of the other terms and conditions.