§ 1 – Validity

Our conditions are valid only with regard to business persons in the sense of § 310 BGB (German Civil Code).

The following General Terms and Conditions are valid for all our contracts, deliveries and other services, assuming that they have not been altered or excluded without our express written permission.

They are also valid, in cases where we execute a delivery or service without explicit reservations, knowing that our customer has its own diverging terms and conditions of business. General terms and conditions of our contractual partners are only applicable, if they are confirmed by us in writing.

Our terms and conditions are also valid for all future contracts, deliveries and services, even if we do not mail the text again to our contractual partner with our offers or conformations of orders.

 

§ 2 - Offer and conclusion of contracts

Our offers are non-binding and subject to confirmation. Contracts and other agreements will only become binding by our written confirmation or through the actual delivery of goods/ services.

All agreements between our customers and us are to be documented in writing when a contract is concluded Agreements made upon or following conclusion of contract, between our employees or representatives and our customers, require our written confirmation to become valid. The representative authority of our employees and representatives is therefore limited.

 

§ 3 - Prices, price increases and payments

  1. Our prices are always to be understood as net prices: packaging, freight, postage and the statutory value added tax applicable on the date of delivery/service provision will be added.
  2. For orders which are to be carried out 6 weeks or more after the conclusion of a contract, we reserve the right, in the event of an increase in our purchase prices and/or applicable payroll expenses, to increase the agreed price by a reasonable amount equivalent to the percentage of the purchase price and/or payroll expenses in relation to the agreed price.
  3. We reserve the right, to deliver contemporaneously against payment of the agreed prices.
  4. Our invoices are due for payment, net without deduction, immediately following receipt. A cask discount is not permitted.
  5. For payments in arrears we may charge an interest rate of 8% above the current official base lending rate without any further reminder. If our contractual partner default on its payments, we will charge it the amount of our actual credit costs, however at least 8 % above the base lending rate.
  6. This shall not affect our right to asset further claims.
  7. Our invoices are considered accepted, if the customer does not dispute them in writing within 30 days after receipt of said invoice. We will advise the customer of this with every invoice.
 

§ 4 - Settlement, right of retention

  1. Our invoices may not be offset against counterdemands which are disputed by us and/or not legally established. The right of retention of payment which does not derive from the same contract may be not claimed unless such claims were recognised by us and legally established
  2. In the event of a complaint, our customer may only withhold payment if legitimacy of the complaint is beyond doubt, and only to the value of the defect which occurred.
 

§ 5 – Deterioration of the financial situation of the contractual partner

We are entitled to demand advance payment of the agreed price from our customer if one of the following incidents occurs after or already exists before conclusion of the contract and is made known to us only afterwards: Insolvency or composition proceedings (either in court or out of court) are filed against the assets of the contractual partner or the instigation of such proceedings has been refused due to lack of assets, or a written credit reference from a bank or credit bureau proving the credit unworthiness exists.


Should our contractual partner not fulfil our rightful demand for advance payment within an reasonable period of grace set by us although we have advised it that after the end of the deadline we will refuse acceptance of further order from it, we have the right to withdraw from the contract or demand compensation for default.

 

§ 6 - Dispatch, transfer of risk, insurance

  1. All risk is transferred to the customer with the dispatch of the goods, irrespective of the place of dispatch, and also applies if we are required to install the object(s) of delivery at the premises of the customer, unless the dispatch to the customer’s premises is executed by our own personnel.
  2. In the absence of forwarding instructions from our contractual partner or it appears necessary to deviate from these instructions, we will forward the goods according to our best judgement without being obliged to use the cheapest or fastest way.
  3. We will insure the forwarded goods against every insurable risk, in particular against theft and transport damage, only at the explicit request and instructions of our contractual partner and at its expense.
  4. We must be informed of transport damages immediately. Furthermore, the recipient is to ensure that the respective claims and reservations are made against the freight forwarder immediately upon delivery.
  5. If the forwarding of the goods is delayed at the request of our contractual partner or for reasons attributable to our contractual partner, the goods shall be stored at the risk and expense of our contractual partner.
  6. Our contractual partner pays the expense for the dispatch of goods. For programs delivered via electronic data transmission our contractual partner pays its share of the connection costs as well as the fees incurred for the transmission of the programs.
 

§ 7 - Delay of acceptance by our contractual partner

  1. Should our contractual partner delay the acceptance of our services either in whole or in part, we may either withdraw from the contract or claim compensation in lieu of contractual performance after the expiry of a reasonable grace period set by us. This shall not affect our legal rights resulting from delayed acceptance.
  2. The customer must reimburse us for storage costs, storage rent and insurance costs for goods that are due for delivery but are not accepted by it. We are not obliged, however, to insure goods placed into storage.
  3. If delivery is delayed at the request of the customer, or the customer has delayed acceptance of the goods, we may charge storage fees in the amount of 0.5% of the invoice total for each commenced month of the delay, commencing one month after announcing the readiness for delivery. In this regard, we reserve the right to assert claims for greater damage that may actually have occurred, unless the customer submits in written proof that no storage fees were incurred or not in the minimum amount demanded.
 

§ 8 - Delivery time

  1. Delivery deadlines or dates are only binding, if confirmed by us in writing.
  2. Delivery deadlines may be extended within reason, in the case of force majeure or unpredictable impediments occurring after the conclusion of the contract and not lying within our responsibility, insofar as such impediments demonstrably delay delivery of the sold object, even in cases of delay. Strikes and lockouts are to be considered occurrences beyond our responsibility in any case. The above regulations also apply if the delaying circumstances occur at our suppliers or sub-suppliers.
    If such delivery delays last more than six weeks, our contractual partner has the right to withdraw from the contract and demand the return payments it has already made, to the exclusion of any further claims.
  3. Delivery deadlines will be extended by the period of default on the part of our contractual partner – within an ongoing business relation, this applies also for delays resulting from other contracts.
 

§ 9 - Delay, exclusion of the obligation to deliver

If our delivery is delayed or the obligation to deliver is excluded, our liability is generally as per § 11, no. 5 with the following qualifications:

  1. If our delivery is delayed, the claims for damages by our customers are limited to a flat-rate compensation of 1% of the delivery value for every completed week of the delay, with a maximum limit of 8% of the delivery value, whereby we reserve the right to prove that no or only slight damage has occurred as a result of the delivery delay.
  2. The customer can only claim compensation in lieu of delivery, if it has previously granted us an acceptable grace period of 4 weeks for delivery. The customer reserves the right to set an appropriate deadline, shorter than 4 weeks, if in agreed special cases an extension of the delivery time of 4 weeks is unacceptable to him.
  3. If our delivery is delayed, our customer has the right to withdraw from the contract it has previously granted us an acceptable grace period of 4 weeks for delivery. The customer reserves the right to set an appropriate deadline, shorter than 4 weeks, if in agreed special cases an extension of the delivery time of 4 weeks is unacceptable to him.
    A customer’s right to withdraw from the contract applies only to the unfulfilled part of the contract, unless the partial fulfilment is agreed to be of no use to the customer.
  4. Compensation claims against us due to delayed delivery or exclusion of the obligation to deliver shall fall under the statute of limitations one year after the statutory period of limitation has started.
  5. The above liability restriction and § 11 no. 5 are not applicable in the event of loss of life, physical injury or damage to the health of our contractual partner or in case of damages due to a intentional breach of duty or gross negligence on our part or on the part of one of our legal representatives or vicarious agents, or, in case of delayed delivery, if the transaction involved delivery by a fixed date.
 

§ 10 - Cancellation of contracts, acceptance of returned goods, compensation in lieu of performance/delivery

In cases where we agree at the request of our customer to cancel a given contract or where we agree to take back goods that were delivered by us and returned for reasons beyond our control and where we exempt the customer from its acceptance and payment obligations, or, where we have the right to claim compensation in lieu of performance, we can demand 20% of the contract price for the relevant part of the delivery item as compensation, with no obligation of proof on our part. The customer reserves the right to prove that no or only lesser damage has occurred. Our right to claim an actual damage exceeding this basic amount remains untouched.

 

§ 11 - Liability for defects and compensation

  1. Damage claims may only be asserted by our customer, if he has correctly observed his obligation to inspect and give notice of defects as described in §§ 377 and 378 HGB (German Commercial Code). Notice of defects must be issued in writing.
    If the customer fails to submit a correct and timely notice of defects, he may not assert claims due to the notifiable circumstances, unless we have acted fraudulently.
  2. If a product delivered or produced by us is defective, the rights of our customer are as defined by the legal regulations, on the condition that our customer grants us an acceptable grace period for subsequent performance of at least 4 weeks. The customer reserves the right to set an appropriate grace period for subsequent performance shorter than 4 weeks, if in agreed special cases a grace period for subsequent performance of at least 4 weeks is unacceptable for him.
    The grace period for subsequent performance shall not under any circumstances start before the customer has returned the defective goods to us. We will in this case assume the cost of returning the goods.
    If only a part of the goods delivered by us is defective, the right of the customer to withdraw from the contract is limited to the defective part unless such limitation is considered impossible or unacceptable.
    Any claims made by the customer owing to defect to goods or products delivered or produced by us shall fall under the statute of limitations one year after delivery/acceptance of such goods. Regarding damage claims and the claim for compensation of costs, the legal terms apply in the event of loss of life, physical injury or damage to the health of our contractual partner or in case of damages due to an intentional breach of duty or gross negligence on our part, on the part of one of our legal representatives or vicarious agents, as well as in a case where we fraudulently concealed the defect.
    Apart from this, claims for compensation on the part of our contractual partner will be limited to the amounts described in the following under no. 5.
  3. The guarantee is not valid for programs or program segments that have been altered or expanded by our customer, unless our customer proves that such alterations or expansions are not the reason for the fault.
  4. If a contract between us and our contractual partner merely requires us to supply software programs, interfaces or other third-party goods to our contractual partner against reimbursement of distribution costs (e. g. postage, duplication expenses), we shall not assume any guarantee that such products are free of defects.
  5. Our liability for damage due to loss of life, physical injury or damage to the health of our contractual partner due to n culpable breach of duty on our part is neither excluded nor limited. For other damages to our contractual partner, we shall only liable in the event of an intentional breach of duty or gross negligence case. If the damage was caused by ordinary negligence on our part, we shall only be liable in the event of the breach of essential contractual obligations. Said liability is limited to reasonably foreseeable damages that are typical for contracts of this kind.
    Other compensation claims on the part of our contractual partners for reasons of breach of duty, impairment of performance, tort or other legal reasons are excluded.
    The above limitations of liability do not apply if warranted qualities of our delivery are lacking, if and insofar as the warranty served to protect the partner against damages not sustained by the delivered goods themselves.
    Wherever our liability is excluded or limited this also applies for the personal liability of our salaried employees, workers and vicarious agents.
    The above liability exclusions are in any case also valid for subsequent damage.
    However, the above liability exclusions are not applicable to claims resulting under product liability law.
  6. The customer is obliged, in its own interest of data storage and security, to back-up data at appropriate regular intervals. If they fail to do so, we are only liable for damage that would also have occurred in spite of correct and regular preparation of data backups.
 

§ 12 - Manufacturer's liability

Irrespective of any other rights of exemption and/or compensation for damage, particularly according to §§ 437, 440, 478 BGB (German Civil Code) or for other legal reasons, our contractual partner is to exempt us from all compensation claims asserted against us by third parties due to tort or product liability laws for defective goods produced and/or delivered by us, insofar as damages could also be claimed against our contractual partner or are no longer valid merely because they have meanwhile become statute barred. Under such conditions, our contractual partner must also exempt us from the costs of legal disputes that may be filed against us in connection with such claims.

The above-mentioned regulations are not valid, in the case of criminal intent or gross negligence on our part with regard to the defect or fault.

 

§ 13 - Reservation of title

  1. Delivered goods remain our property until all current or future obligations on the part of our contractual partners are fulfilled. We may agree to waive this security upon request, if its nominal value permanently exceeds our claims by in excess of 20 %.
  2. Any processing or remodelling of goods shall always take place on our behalf in our capacity as manufacturer, yet without any obligation on our part. If goods delivered by us are comingled with other items not belonging to us, we shall obtain co-ownership of the newly created product in proportion to the invoice value of the goods delivered by us relative to the invoice value of the other goods at the time of reprocessing.
    In cases where our products are combined with other movable goods, resulting in a new product, and the new product is to be regarded as the main product, our contractual partner shall transfer to us proportional co-ownership, insofar as the main product belongs to him. Any transfer of the goods necessary for us to obtain ownership or co-ownership shall be replaced here and now by the agreement to the effect that our partner shall safeguard the product for us like a borrower or, if he does not own the product, Assignment its right to the product to us.
    Products/Goods to which we have a right of (co-) ownership according to the above regulations will be referred to as “reserved goods” hereafter.
  3. Our contractual partner has the right to sell reserved goods in the ordinary course of business or to combine them with other items. Our partner herewith assigns any claims resulting from the sale or combination of the reserved goods or other legal reasons relating thereto to us, completely or in proportion to the (co-)ownership ratio. If such claims are included in open invoices, the assignment shall also include all balance claims. The assignment shall take priority over other claims.
    Reserving the right of revocation, we authorise our contractual partner to collect the assigned claims on our behalf. Our contractual partner is obliged to transfer any collected amounts to us immediately, insofar and as soon as our claims are due. Insofar as our claims are not due our partner shall document the amounts collected by it and belonging to us separately.
    We reserve the right to collect the claims directly. We agree not to collect such debts as long as our partner fulfils its payment obligations resulting from the collected payments and does not fall into arrears and, in particular, no petition for insolvency or composition proceedings are filed and payments are not suspended. In this case, however, our partner is obliged to notify us of the assigned claims and the debtors, to give us the relevant documents and to inform us about all facts necessary for the collection of the payments. They are also obliged to inform the third party debtor about the assignment of the claim (We shall also be entitled to inform the debtor of the assignment). The rights of our partner to re-sell, process, comingle, or install the reserved goods and to collect the assigned claims shall lapse upon suspension of payments, the filing for or the instigation of insolvency proceedings or judicial or extrajudicial composition proceedings without our explicit revocation of these rights.
  4. Our contractual partner must immediately inform us if third parties attempt to claim any rights to the reserved goods or the assigned claims and must pay for any costs of intervention or defence.
  5. Our contractual partner must handle reserved goods with care, and in particular adequately insure them at its own expense at their original value against fire, water, or theft.
  6. If our partner acts in breach of contract – particularly in the case of default of payment – we have the right to take back the reserved goods at its expense or to request the assignment of its rights to possession against third parties. The taking back or attachment of reserved goods by us shall not constitute withdrawal from the contract, unless we explicitly state so in writing.
  7. Should our reservation of title lose its validity because the product is sold abroad or for any other reason, or should we lose our ownership of the reserves goods for any other reason, our contractual partner is obliged immediately to grant us another way of securing the reserved goods or another kind of security which is valid in the country of the purchaser, and comes as close as possible to German law.
 

§ 14 - Assignment

Assignment of any kind of claims against us is only permitted with our written consent.

 

§ 15 - Software rights

  1. Our contractual partner is granted a non-exclusive and non-transferable right to use the products and the accompanying documentation as well as any subsequent amendments in-house. We reserve all other rights concerning programs and their documentation including copies and subsequent amendments. Our contractual partner shall ensure that programs and their documentation are in no way made available to third parties without our prior written consent. Our customer may only request copies for archiving or replacement purposes, or for error detection. The provision of source codes requires a specific written agreement.
  2. Our contractual partner undertakes to treat all programs, program sections and information contained in the programs or required for their use in the strictest secrecy for an unlimited period, and - insofar as this is not necessary to fulfil the purpose of the contract --not to record, distribute or make commercial use of them. The customer is to ensure that its employees and/or representatives refrain from all personal use, redistribution or unauthorised recording by means of appropriate contractual agreements with these persons.
  3. Contractual Penalty
    For each culpable violation of obligations set out the clauses 1 and 2 above, our customer shall owe us a contractual penalty of 10 % of the contractual amount. In case of such violation, fault shall be assumed, unless the customer can prove that the violation occurred unintentionally. We reserve the right to assert claims above and beyond this.
  4. Installation
    We will install the programs for our customers for a separate fee; the customers must supply the necessary operational hardware, operating system software and the necessary specialist personnel for the duration of the installation.
  5. We guarantee that using the software in accordance with the contract does not violate the copyrights of third parties. We exempt our customers from claims for compensation in cases where the contractually-compliant use of the programs violates the third-party copyrights.
    Both we and the customer will inform each other immediately if a third party claims a violation of copyrights. The customer entrusts us with the decision about legal defence measures or settlement proceedings.
    Taking the customer's particular situation into consideration, we have the option to obtain the license, to alter, or if necessary, replace the software in case the contractually-compliant use of the software impedes third-party copyrights. If we cannot clarify the third-party rights, for whatever reason, the customer has the right to cancel the contract or reduce the price.
 

§ 16 - Program alterations

We reserve the right to alter, develop, and improve the programs or to replace them by new developments. We are prepared, but not obliged, to carry out alterations or adjustments. Should the customer desire alterations or adjustments, we have the right to charge a reasonable fee.

 

§ 17 - Software return and deletion

If the software contract or the right of use ends, the customer must delete all programs given to it within one month, including adjusted and altered versions as well as copies and all documentation and return all data carriers provided. The customer must confirm to us in writing the completed deletion.

 

§ 18 - Secrecy

  1. The customer undertakes to observe the strictest secrecy for an unlimited period regarding all information, documentation, business or company secrets obtained from us in connection with the contract between it and us, whether they are known or otherwise accessible or becoming accessible.
    Such information may not be recorded, distributed or otherwise utilised, insofar as this is not necessary to fulfil the purpose of the contract. This shall not apply to information forming part of the general level of technology, information which is otherwise generally available, or information already in the legal possession of the customer or which it rightfully obtained from third parties.
    The customer is obliged to ensure by means of appropriate measures that its employees, representatives or vicarious agents, its independent sub-contractors or suppliers also uphold the aforementioned secrecy agreement, insofar as they have access to information, documents, business and company secrets through their work.
  2. For each culpable violation of obligations set out the clauses 1 and 2 above, our customer shall owe us a contractual penalty of 10 % of the contractual amount. In case of such violation, fault shall be assumed, unless the customer can prove that the violation occurred unintentionally. We reserve the right to assert claims above and beyond this. .
 

§ 19 - Place of performance, place of jurisdiction, applicable law

  1. The place of performance and exclusive place of jurisdiction for deliveries and services including complaints regarding cheques and bills of exchange as well as all possible disputes arising between the contractual parties is the registered office of Riege Software in Germany. However, we reserve the right to bring action against our customer at another venue having jurisdiction over it in accordance with § 12 ff. ZPO (German Code of Civil Procedure).
  2. The relations between the contractual partners are exclusively governed by the laws for the Federal Republic of Germany to the exclusion of the international sales laws, in particular United Nations Convention on Contracts for the International Sale of Goods (CISG), and other international agreements for the standardisation of sales law.