Terms and Conditions (T&C)
- Scope of the Terms and Conditions
- Offers, Orders, Contracts and Prices
- Performance and Deadlines
- Place of Performance, Delivery, Transfer of Risk
- Terms of payment
- Liability and Warranty
- Secrecy, Industrial property rights and Copyrights
- Place of jurisdiction
I. SCOPE OF THE TERMS AND CONDITIONS
- All our offers, deliveries and services, in particular software delivery in the form of licences, adaptation (change requests) and consulting, shall be made exclusively on the basis of the following Terms and Conditions and any other written agreements.
- These Terms and Conditions shall also apply to all future offers, deliveries and services, even if they have not been expressly agreed again. These Terms and Conditions shall be deemed to have been accepted through the initial sending, at the latest, however, with the acceptance of our services.
- Deviating Terms and Conditions of the contracting parties shall only become part of the contract if they have been expressly agreed to in writing beforehand.
II. OFFERS, ORDERS, CONTRACTS AND PRICES
- All offers, price lists, advertising brochures and similar are subject to change and non-binding. Prices are based on the hourly rates or fixed amounts agreed in writing in the offer. Unless otherwise stated, they do not include the VAT applicable at the time of delivery or at the time of a partial delivery with its own invoice.
- The order is a binding offer, irrespective of whether it is placed in writing or electronically (e.g. by E-mail). Acceptance by us shall take place within four weeks either by the sending of an order confirmation, by the sending of a countersigned order, by the sending of a contract or by the delivery of the service.
- If an order or an order is placed electronically, a confirmation of receipt shall only constitute acceptance of this order or this order if this is expressly stated in the confirmation of receipt. A confirmation of receipt does not in itself constitute acceptance of the order or the order.
- In the event of a change in our costs during the order period (time between conclusion of the contract and delivery) which directly or indirectly affects our services, we shall be entitled to adjust our prices accordingly.
- In the event of delivery of our services without confirmation from the customer, the contract shall be concluded by acceptance of the service under these Terms and Conditions of Business.
- Obvious errors in invoices already issued entitle us to correct them.
- In the event that the customer withdraws from the contract for reasons for which we are not responsible, the customer shall compensate us for the damage incurred. In case of doubt, this shall amount to 20% of the gross order value. In particular, services already rendered shall be compensated in an appropriate amount.
III. PERFORMANCE AND DEADLINES
- Unless expressly stated as binding in a written commitment, delivery periods and dates are only approximate. The periods shall commence upon receipt of our order confirmation, but not before clarification of all details of execution. Partial deliveries or services are permissible and may be invoiced separately.
- If an agreed deadline is not met through our fault, the customer/client is entitled to withdraw from the contract, but only after expiry of a reasonable period of grace set for us, together with a declaration of non-acceptance of the service after expiry of the deadline. If the customer/client suffers damage due to a delay or non-delivery due to our fault, our liability shall only extend to cases of intent or gross negligence.
- Events of force majeure, traffic and operational disruptions, strikes, lock-outs and unforeseeable difficulties on our part shall lead to a reasonable extension of the delivery and performance period. We shall not be liable for the fault of other suppliers. By notifying the customer/client, we are entitled to extend the deadlines by the duration of the hindrance. Both contracting parties have the right to withdraw from the contract if the extension of the delivery period is more than three months for one of the aforementioned reasons.
- The customer/client shall not be entitled to any other or further claims in the event of delivery deadlines being exceeded.
IV. PLACE OF PERFORMANCE, DELIVERY, TRANSFER OF RISK
- The place of performance is Lehrte.
- In the case of deliveries by post, the risk shall pass to the customer/client when the delivery leaves our premises. This also applies to partial deliveries, subsequent deliveries and rectifications.
V. TERMS OF PAYMENT
- Invoices are to be paid within 14 days of receipt without deduction, unless an alternative agreement is stated in the invoice.
- Cheques shall only be accepted by us on account of performance following prior agreement.
- The granting of a payment term requires a special written agreement.
- In the event of default in payment, we shall be entitled to charge all expenses and costs arising therefrom, in particular for reminders, debt collection and extrajudicial legal costs as well as interest on arrears customary in banking up to an amount of 15% p.a. Furthermore, in the event of default in payment, we shall be entitled to suspend the services until full payment has been made. . This does not, however, release the client from his payment obligation.
- In the event of non-compliance with the terms of payment or if we become aware of circumstances which, according to our dutiful commercial judgement, are capable of reducing the creditworthiness of the customer/client, all payment obligations arising from the business relationship with us shall become due and payable immediately, irrespective of the term of any bills of exchange accepted and credited. We shall then also be entitled, without prejudice to further statutory rights, to deliver outstanding deliveries only against advance payment/pre-payment or to demand corresponding securities. Furthermore, we are entitled to withdraw from contracts which we have not yet fulfilled by setting a deadline of two weeks together with the threat of withdrawal in the event of non-fulfilment of all due payment obligations. Further claims remain unaffected.
- We are entitled to issue an invoice after delivery of each individual unit or provision of a partial service.
VI. LIABILITY AND WARRANTY
- Claims for defects by the client/customer presuppose that the client/customer has properly fulfilled his/her obligations to inspect and give notice of defects in accordance with §377 of the German Commercial Code (HGB).
- The customer/client shall notify the contractor of any defects that occur in all recognisable details. The warranty shall not apply if the customer himself/herself or a third party makes changes to software created by us. Warranty rights with regard to defective software do not affect other services already rendered. Services already rendered shall be remunerated in an appropriate amount.
- In the event of a defect in a service, the client/customer shall be entitled to choose between subsequent performance through rectification of the defect or delivery of a new, defect-free item.
- The limitation period for all warranty claims for software is one year and begins with the delivery or provision (as well as notification of the licensee thereof) of the contractual objects; the same period applies to other claims, regardless of their nature, against the licensor. We shall be liable without limitation in accordance with the statutory provisions for damage to life, limb and health caused by our negligent or intentional breach of duty, as well as for damage covered by liability under the Product Liability Act, and for damage caused by our intentional or grossly negligent breach of contract and fraudulent intent.
- We shall also be liable for damages caused by simple negligence, insofar as this negligence relates to the breach of such contractual obligations, compliance with which is of particular importance for the achievement of the purpose of the contract (material contractual obligations). In the event of a breach of material contractual obligations due to simple negligence, liability shall be limited to the typically foreseeable damage from such breaches of obligations.
- Liability for indirect damages, consequential damages or losses, such as loss of income, loss of use, loss of production, capital costs or costs associated with an interruption of operations, is excluded.
- Any further liability for damages is excluded, irrespective of the legal nature of the asserted claim. Insofar as liability is excluded or limited on the basis of the above provisions, this exclusion or limitation shall also apply accordingly to legal representatives, vicarious agents and assistants.
- No liability is assumed for loss of data. The customer is responsible for timely data backup.
- Unless otherwise provided for above, liability is excluded.
- Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents..
VII. SECRECY, INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHTS
- Both parties are obliged to treat information concerning business and trade secrets with confidentiality.
- The customer is responsible for ensuring that documents, calculations and test settings produced by us within the scope of the projects are only used for his/her own purposes and that they are not made accessible to third parties.
- The customer’s obligation to maintain secrecy and to protect copyrights also includes, without limitation, the obligation to take appropriate steps to ensure that the obligations to maintain secrecy and to protect copyrights are also observed by his/her employees.
- The customer acknowledges that in the event of a breach of confidentiality and copyright, he/she shall bear all legal risks and consequences himself/herself.
XIII. PLACE OF JURISDICTION
The place of jurisdiction for both parties, insofar as agreed, is Lehrte.
- The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
- The parties are responsible for compliance with all relevant statutory data-protection provisions, in particular the General Data Protection Regulation (GDPR) and the Bundesdatenschutzgesetz (German Federal Data Protection Act, BDSG), as well as for the lawfulness of the data transfer and data processing of personal data. The parties undertake to process personal data provided by each other exclusively in a lawful and transparent manner and exclusively for the purpose of providing the contractual services.
- Should any of the above provisions be or become invalid, the invalid provisions shall be replaced by provisions that most closely approximate the economic purpose of the contract while reasonably safeguarding the interests of both parties.
Terms and Conditions (movizon GmbH)
Status: April 2021