Terms & Conditions
General terms and conditions for deliveries and services of Hönigsberg & Düvel Datentechnik GmbH
1. Extent of validity
1.1 These general terms and conditions (AGB) regulate the provision and execution of all current and future deliveries and services between Hönigsberg & Düvel Datentechnik GmbH, hereinafter called “H&D”, and their customer.
1.2 All deliveries, services and offers from H&D are based on these general terms and conditions. Contradicting purchase or other customer-owned conditions are denied by H&D. Counter confirmations of the customer with reference to their own business and purchase conditions are herewith contradicted.
1.3 The relevant services and deliveries will be determined in independent contracts to be concluded based on these terms and conditions. These contracts must be made in writing.
1.4 If a sales partner from H&D has been involved in an order, H&D will deny any objections on the part of the customer derived from an additional contractual relationship with the sales partner.
1.5 The contact partners indicated on the contract are solely entitled to make legally binding statements, including the definition of deadlines.
2. Quotations and signing of contracts
2.1 All quotations of H&D are always subject to change without notice and are not binding. Orders are deemed to be accepted only after written confirmation by H&D.
2.2 Technological and design deviations from descriptions and data in brochures, catalogues and written documents as well as model, construction and material changes in the course of the technical progress or in case of changed market situations, are reserved and will not justify claims from of the customer against H&D.
2.3 The standard software represents the non-exclusive right to use the agreed features of this software in unmodified form on the agreed devices.
2.4 H&D reserves the unlimited proprietary right and copyright resulting from concepts, offers and other documents (hereinafter called “documents”). These documents may only be revealed to third parties after prior written approval by H&D and must immediately be returned to H&D upon request if the order is not placed with H&D. The sentences 1 and 2 will be valid accordingly for the documents of the customer; however, these documents can be revealed to third parties who have been charged with allowed services by H&D.
3. Delivery, acceptance
3.1 The concepts, quotations, user documents and all other presented documents after signing the contract represent the binding description of services. H&D can modify the ordered software / services / hardware as far as those modifications are not of principle nature and will limit or modify the contractual purpose only to a minor extent.
3.2 The deadlines and dates indicated by H&D are not binding and are based on the assumption that H&D themselves are delivered correctly and on time. The dates start with the day on which H&D confirms the order and are prolonged, all rights reserved, by H&D by the time in which the customer payments are delayed. Partial deliveries are allowed unless linked with disproportionately high costs for the customer upon receipt.
3.3 The customer will work out specifications if the software products must be adapted and if individual programmes must be created.
3.4 All agreements on changes in the requirements must be made in writing. If the customer desires a modification orally, H&D can confirm this modification in writing. This confirmation will then be binding unless the customer contradicts immediately.
3.5 Later requests from the customer for modifications or amendments will prolong the delivery time within a reasonable scope. H&D cannot be held responsible for delays in delivery or services due to force majeure or because of events which make a delivery impossible or hard to fulfil such as difficulties in the procurement of materials, operational disturbances, industrial action, official regulations even if they occur with suppliers or among suppliers of H&D, even if binding deadlines and dates have been agreed. These delays entitle H&D to postpone the delivery or service by the period of hindrance plus a reasonable start-up time or to cancel the contract in full or in part because of the part of the delivery that has not yet been fulfilled.
3.6 Upon request by H&D the customer is obliged to explain within a reasonable period of time whether or not he will cancel the contract because of the delay in delivery or service, claim damages in place of the service or whether he insists on the service being provided. H&D will be entitled to provide the service until such time as the customer has presented such a statement.
3.7 The delivery and the passing on of the risk is done with the submission of the software or hardware, including accompanying documents, to the customer. The programmes to be delivered will be sent on data medium as specified on the contract. The shipping risk will be passed on to the customer as soon as the shipment has been handed over by H&D to the forwarding agent. If the shipment is delayed or made impossible, through no fault of H&D, the risk will be passed on to the customer on the date at which the delivery note is sent to the customer. The shipment is insured against transportation damages only upon explicit request of the customer and at the customer’s costs. This will also be valid in the case where prepaid delivery has been agreed.
3.8 If the customer does not fulfil his obligation to cooperate acc. to § 9 in time, the time for delivery and service will be extended accordingly. If the customer fails to fulfil his obligation to cooperate despite the setting of a time limit and after giving notice to terminate the contract, H&D is entitled to terminate the contract with the customer. H&D will then be freed from his contractual obligation to performance. In addition, H&D will be entitled in this case to invoice all resulting costs up to the time where the notice of termination was given.
3.9 All supporting services (in particular installation and demonstration of operability, instruction, training or advisory, travel and additional expenses) will be charged based on the current H&D price list unless agreed otherwise.
3.10 The customer is not allowed to reject a service because of minor defects.
4. Payment conditions
4.1 All payments must be made when they fall due without deduction.
4.2 The customer is only entitled to set off his own demands from demands of H&D if these demands have been legally proven or are undisputed. The customer’s right of retention under other contractual relationships with H&D is excluded in this contractual relationship.
4.3 The costs for services which are not provided for under this contract as well as services due to incorrect or incomplete customer information or unproven damage claims or improper use of systems, must be paid by the customer.
4.4 H&D is entitled to assign his demands from deliveries and services for financing purposes.
4.5 If the customer’s payment is delayed, H&D will be entitled to take back the software or hardware, regardless of all other rights, and to dispose of them elsewhere.
4.6 For orders whose contents represent a new development of software or an individual modification of the existing software, the following payment is deemed to be agreed unless otherwise stated in writing:
° 30% of the order value will fall due directly after signing the contract;
° 30% of the order value will fall due after installation of the first software module;
° 35% of the order value will fall due after installation of the last software module;
° 5% of the order value will fall due after termination of the test phase, at the latest, however, three months after installation of the last software module.
5. Delay of acceptance
If the acceptance is delayed, the risk of accidental deterioration and accidental destruction will be passed on to the customer. If the contractual partner does not accept the service, H&D will be entitled to claim damages amounting to 25% of the purchase price, or in case of a continuous obligation to claim up to 25% of the annual costs for the transfer of possession without being obliged to prove the damage. Extended claims for withdrawal from the contract and damage claims remain untouched.
6. Reservation of ownership
6.1 The subjects of the deliveries (reserved goods) remain in the ownership of H&D until all claims against the customer from this business relationship are fulfilled. If the value of all reservation rights of H&D surpasses the amount of all secured claims by more than 20 %, H&D will release a corresponding part of the reservation rights upon request of the customer.
6.2 As long as a reservation of ownership exists, the customer is not allowed to pledge or to transfer the ownership by way of security. A resale via resellers in normal business transactions is only allowed under the condition that the ownership is not transferred before the reseller has been paid by his customer in cash or if he reserves the right of ownership until the customer has fulfilled his payment obligation.
6.3 In case of seizure, order of attachment or other disposals by third parties, the customer must inform H&D immediately.
6.4 If the customer violates his obligations, in particular with regard to payment delays, H&D will be entitled to withdraw from the contract and to take possession of delivered goods; the customer is obliged to restore possession. The return and/or the claim for reserved ownership does not require a withdrawal of H&D from the contract; these actions or a seizure of the reserved goods by H&D does not represent a withdrawal from the contract unless explicitly stated by H&D.
6.5 Objects and software delivered for test and demo purposes remain in the ownership of H&D. They are only allowed to be used based on a separate agreement with H&D. This agreement can be for a limited time. After expiration of a limited right of use, all objects and/or all parts of the software must be returned to H&D by the customer at his own cost without being further requested to do so. Copies of the delivered software must be destroyed. The same applies if the software has been granted with a limited right of use (rental, leasing).
7.1 An “error” in the contractual software is given if the functions of the software are not executed in conformity with the contractual specifications or in the normal method of use, if incorrect results occur, if the programme run is interrupted without control, or if the use of the software is otherwise limited or hindered.
7.2 H&D is liable for the following claims:
7.2.1 All parts or services which show a quality defect within the period of limitation – regardless of the period of operation - must be repaired free of charge, be redelivered or redone as decided by H&D if the reason for this defect existed at the time when the risk was passed.
7.2.2 Claims for quality defects become statute-barred after 12 months.
7.2.3 In case of claims, payments by the customer can be retained to an amount which is adequate for the quality defect which has occurred. The customer can retain payments only if a claim has been proven. If the claim is not justified, H&D will be entitled to request payment of the resulting costs from the customer.
7.2.4 First of all, H&D must be given a chance to subsequently fulfil the contract within a reasonable period of time.
7.2.5 If this fulfilment fails, the customer can cancel the contract – regardless of any damage claims acc. to item 8 – or reduce the reimbursement.
7.2.6 Warranty claims cannot be accepted which are due only to minor deviations from the agreed quality, to minor limitation of usability, to natural wear or to damages which result after the risk has been passed due to wrong or careless handling, extraordinary high load, unsuitable resources or special influences from outside which are not a prerequisite of the contract, as well as software errors which are not reproducible.
7.2.7 If modifications or repairs are executed by third parties they have to be documented in detail. This documentation must be submitted to H&D immediately. If H&D does not receive any document of modification or repair, H&D will no longer be obliged to eliminate the error.
7.2.8 Claims from the customer due to costs in connection with the expenditure required for the later fulfilment are excluded, in particular transportation costs, travel costs, working costs and material costs, if increased costs result from the later fulfilment at a site other than the original location of the subsidiary of the customer unless the transfer is in accordance with its agreed use.
7.2.9 For damage claims, refer to item 8. Extended claims of the customer against H&D and its employees due to a quality defect, or claims other than regulated in item 7, are excluded.
7.3 H&D does not take over any guarantee for manufacture or quality acc. to § 443 BGB, unless explicitly agreed in the contract and designated therein by the term “Guarantee”.
7.4 Software or hardware defects are to be reported by the customer to H&D immediately together with a short description of the error. The customer is obliged to inspect the delivered software and hardware for visual defects which are normally obvious to a customer. Such obvious defects as well as slightly visible damage of working parts must be reported to H&D in writing within two weeks of delivery and the defect must be registered as a claim. Where the defect is only recognisable through error patterns they have to be described in writing in as much detail as possible.
7.5 If modifications or extensions result in additional costs for H&D in the search for or elimination of errors, these additional costs have to be paid by the customer. This is also valid in a case where the verification of the claim results in the fact that this error is not covered by the warranty.
7.6 The obligation of the customer to commercial investigation and to the requirements to give notice of defects remains untouched.
8. Impossibility, adaptation of contract, liability
8.1 If a service is impossible the customer will be entitled to claim damages unless H&D cannot be held responsible for that. However, the damage claim of the customer is limited to 10 % of the value of that part of the delivery which cannot be taken into the intended operation due to the inability to provide the service. This limit does not apply to mandatory liabilities such as cases of wrongful intent, gross negligence or harm of life, body or health; this does not change the burden of proof to the disadvantage of the customer. The right of the customer to give notice to terminate the contract remains untouched.
8.2 If unforeseen events result in facts of economic importance or in considerable changes of the service contents or in considerable impacts on the operation of H&D the contract will be reasonably adapted under consideration of loyalty and good faith. If this is not justified economically H&D will have the right to withdraw from the contract. If H&D wants to make use of its right of withdrawal H&D has to inform the customer immediately after the consequences of these events have become known, even if a prolongation of the delivery time has already been agreed.
8.3 Damage claims and claims for a reimbursement of costs (hereinafter called “damage claims”), regardless of legal reasons, in particular resulting from violations of obligations and illegal actions, are excluded.
8.4 This does not apply to mandatory liabilities, e.g. acc. to the product liability act, in cases of intent, gross negligence, risk of life, body or health, and because of violation of essential contractual obligations. The damage claims due to violation of essential contractual obligations, however, is limited to typical foreseeable damage unless intent or gross negligence exists or a risk exists for life, body or health. The highest liability amount in case of simple carelessness is 10 % of the contractual value – however max. 500,000.- €. The aforementioned regulations do not involve a change of the burden of proof to the disadvantage of the customer.
8.5 The liability for data reconstruction requires the data from the customer to be sufficiently updated and to be backed up completely (on a daily basis) to enable a reconstruction at reasonable costs.
9. Obligations of the customer
9.1 The essential contractual task of the customer is to take care that all agreed performances such as participating and supporting services are provided in the required quality at the agreed and/or required dates for project execution without additional costs for H&D.
9.2 The customer will treat all information about hardware, software, employed methods and processes for creation as well as the documents belonging to the programme, its contents, data medium and related mail prior to the contract, during the total period of use and after termination confidentially and not reveal them to third parties. The customer will also obligate his employees accordingly.
9.3 In addition, the customer will take all necessary actions to protect the programmes against unauthorized access or against access by third parties.
9.4 This obligation also applies to purchasers or other contract partners of the customer as well as to workgroups, subsidiaries and branches of a company.
9.5 The customer is obliged to care for all requirements which are needed to execute the contractually agreed dealer performance free of charge. These requirements include the following actions of the customer
° Provision of working rooms for employees of H&D, including all necessary tools in sufficient quantities as needed,
° Granting of unrestricted and sufficient computer time for H&D as required, under consideration of the requested priority,
° Provision of test data and other information and means required to execute the tasks,
° System operation and system maintenance (operating systems etc.),
° Delegation of employees (contact partners from the special departments, data collectors, typists) to support H&D.
9.6 Upon request of H&D, the customer will formally take over the planned concepts, organisational concepts, organisational proposals and programmes as well as hardware immediately after delivery and/or after creation at the customer. The approval is assumed to have been completed
° if the customer has not yet started with the approval within four weeks after transfer, or
° if the customer makes use of the transferred software, or
° if after transfer of the planned concept, organisational proposal, software or hardware four weeks have gone by without the customer having reported essential defects which deteriorate the usability, or
° if the customer or a third party accesses the transferred software without prior written approval by H&D.
9.7 H&D reserves the right to request access to the programme anytime within normal office hours to copy the programme, if required.
9.8 It is the duty of the customer to create the specification for the development of a programme in the absence of an agreement to the contrary. The specification for the different levels of programme development, in particular the completeness of the working functions, quantities and times required for the application, will be binding for the customer upon signing the specification.
9.9 The customer is liable without limit for the violation of his contractual obligation. This liability extends also to the unauthorized use of illegally created programme copies, i.e. their multiple use or transfer to third parties.
9.10 The customer will participate in the provision of services by H&D on time and in the required scope. H&D will instruct the customer to observe his obligation to cooperation on time. In principle, the obligations of the customer consist of the testing of the delivered software (in particular the individual software or modifications and partial deliveries) and the entry of master data.
In case the customer resells the acquired software he will be obliged to provide the name and the complete address of the purchaser of the software to H&D in writing.
11. Data protection
11.1 H&D is obliged to use personal data exclusively for administrative purposes. Personal data will not be submitted to third parties. The customer agrees to the processing of person-related data as far as this is required for the purpose of this contract.
11.2 H&D is entitled to publish the customer and the executed project as reference as long as not explicitly prohibited by the customer.
12. Protective right of H&D, failure of title
12.1 H&D remains owner of all rights of the software transferred to the customer, of all rights to parts of this software or of software derived from this software in full or in part, including the relevant documents. This also applies if the customer modifies the software within the contractually valid scope or combines it with its own software or with software of third parties. If H&D has acquired protective rights or other rights of the hardware, the regulations acc. to item 12 of these general terms and conditions apply accordingly.
12.2 The customer will not remove existing identification markings, protective right notes or ownership notes of H&D in the software and on the hardware, and will also take them over in any created copies.
12.3 H&D frees the customer from all claims of third parties against the customer resulting from a violation of protective rights of programmes developed and delivered by H&D as well as of hardware in its contractual version.
This liability demands that the customer neither gives any statements about violations of protective rights in writing nor orally to third parties, in particular that he does not recognize any rights or subjects and that he does not take over any warranty. In addition, the customer is not allowed to combine the software with foreign software without prior written approval from H&D and he must not use the software other than for the destined purpose.
12.4 H&D is entitled to execute at own costs the required software or hardware modifications at the customer based on the protective right assertions of third parties. The customer cannot derive contractual rights from this fact. The customer will inform H&D immediately and in writing if he is informed about a violation of commercial protective rights and copyrights by a product delivered by H&D.
12.5 The customer is only allowed to use the software for own purposes unless otherwise agreed. The parallel use of a programme on several computers is subject to a special contractual agreement.
12.6 The customer may copy the programme or part of it for backup purposes only. The copying of transferred documents, such as specifications, user guides etc. is only allowed after prior written approval by H&D.
12.7 The customer is liable to H&D for damages which result from the violation of the aforementioned obligations of the customer.
13. Assignment of rights
13.1 The customer can assign rights from this contract to third parties only after prior written approval by H&D.
13.2 H&D is entitled to assign all his obligations and rights from this contract to third parties. He will ensure that this does not result in disadvantages for the customer.
13.3 In addition, H&D is entitled to have all obligations executed by third parties on his behalf. In this case, H&D, as contractual partner, continues to guarantee the orderly fulfilment of the contractual obligations to the customer, and the customer will accept the provided service as performance by H&D.
13.4 A change of the contract partner by H&D is allowed. If a third party takes over all obligations, the customer has an extraordinary right to terminate the contract. The right to give notice of termination must be executed within four weeks after the change of the contract partner has become known. Thereafter, the contractual relationship with the third party will continue.
14. Contract duration, notice
14.1 The duration of the contract is defined in the individual contract which is concluded based on these general terms and conditions (AGB).
14.2 The declaration of notice of termination or withdrawal on the part of the customer prerequisites that H&D has surpassed an agreed and prolonged delivery or service obligation and that thereafter an reasonable extension set by the customer with respect to type, scope and degree of difficulty has been passed without success.
14.3 If no period of notice has been agreed in the contract then the period of notice will be 3 months to the end of the quarter of a year.
15. Place of fulfilment, place of jurisdiction
15.1 Place of fulfilment for the contractually agreed services is the head office of H&D.
15.2 For commercial customers (in the sense of HGB) the place of jurisdiction is Wolfsburg.
16. Applicable law
16.1 The export of H&D software to countries outside the EU is subject to a written approval by H&D.
16.2 For the legal relationships in connection with this contract the German substantive law applies with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
17. General stipulations of contract
17.1 Additional oral agreements have not been made by the contract partners. Later amendments or modifications of the concluded agreements must be made in writing. An oral waiver of the written form is excluded.
17.2 The contract remains binding even if individual regulations should be invalid. This is not applicable if sticking to this contract would mean an unacceptable hardship for one party.
Hönigsberg & Düvel Datentechnik GmbH, AGB, version: 24.06.2008