General Conditions for Supplies of SmartRay, Version 11-14-2012
1. General Conditions.
The scope, quality and all terms and conditions of the supplies or services (hereinafter called “Supplies”) shall be exclusively defined by the written declarations of both parties and by the written provisions of these conditions (hereinafter called “Contract”).
General terms and conditions of the Purchaser shall apply only where expressly accepted in writing by SmartRay GmbH (hereinafter called “Supplier”).
The Contract shall be deemed to have been concluded upon Supplier’s acceptance of the order.
For cost estimates, drawings and other documents (hereinafter called “Documents”), the Supplier reserves all rights, title and interest in all intellectual property rights including but not limited to copyright in the Documents.
Such Documents may not be made available to third parties without the prior consent of the Supplier and they shall, upon request, be immediately returned to the Supplier if he is not awarded the Contract.
Sentences 4 and 5 shall apply vice versa to Purchaser’s Documents; however, these may be made available by the Supplier to his sub-contractors and sub-suppliers who were permissibly engaged by the Supplier.
The Supplier shall be entitled to provide partial Supplies.
2. Prices and Terms of Payment
Prices shall be ex works (Incoterms 2010) excluding packing and any and all taxes, duties or imposts payable under applicable law.
The Purchaser agrees to pay or reimburse Supplier for any such taxes, duties or imposts which Supplier or his subcontractors or sub-suppliers are required to pay. Payments shall be made free to the bank account or payment office notified by the Supplier. The Purchaser may set off only those claims that are undisputed or have been finally determined in a legally binding manner. Unless otherwise agreed to in writing or expressly stated on the face of this document, terms of payment shall be 50% prepayment and 50% net thirty (30) days from the date of invoice.
If the Purchaser is in default with respect to the agreed terms of payment, he shall be liable, without reminder, to pay default interest, from the 31st day counting from the date of the invoice, at a rate exceeding by 8 % the current base rate of interest issued by the European Central Bank.
The Purchaser shall be liable for all costs, fees and expenses incurred by the Supplier in collection of delinquent accounts.
The Supplier may change the payment terms prior to the delivery and request advanced payments and guarantees if this is reasonable as a result of the situation of the Purchaser, the transport situation or the place of delivery.
3. Retention of Title.
Title to the Supplies shall remain with Supplier until each and every claim against the Purchaser to which the Supplier is entitled under this business relationship has been duly satisfied.
If the combined value of the Supplier’s security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.
Upon entering into the Contract, the Purchaser authorizes the Supplier to enter or notify reservation of title in the required form in public registers, books or similar records, all in accordance with relevant national laws, and to fulfill all corresponding formalities, at Purchaser’s costs.
For the duration of the retention of title, the Purchaser shall be prohibited from giving the Supplies in pledge or as security, and resale shall be permissible only in the ordinary course of business and subject to the condition that the Purchaser either receives payment from its customer or retains title so that the property is transferred to the Purchaser’s customer only after fulfillment of his obligation to pay.
In case of seizure of the Supplies or similar acts or interventions by third parties which may result in the Supplier loosing title to the Supplies, the Purchaser shall inform the Supplier immediately thereof in writing.
In cases of fundamental non-performance of contractual obligations by the Purchaser, especially a delay in payment, the Supplier shall be entitled to take back the Supplies. The Purchaser shall be obliged to return the Supplies. The taking back, the assertion of the retention of title or the seizure of the Supplies by the Supplier shall not mean termination of the Contract and restitution, unless expressly stated by the Supplier.
4. Time for Delivery and Delay.
Performance of the stipulated time for delivery is subject to the timely receipt by the Supplier of all documents, necessary permits and releases, as well as fulfillment of the agreed terms of payment and other obligations by the Purchaser.
To the extent said conditions are not fulfilled on time or if the non-performance of the time for delivery is due to force majeure, the time for delivery shall be extended accordingly unless the Supplier is responsible for the delay.
Force majeure events shall include but are not be limited to mobilization, war, civil insurrection, terrorism, acts of government, strike, lock-out, raw material shortages, lack of transportation, interruption of electricity and forces of nature, impediments arising out of national, EU or international foreign trade and customs requirements or any embargos or other sanctions or similar causes for which the Supplier is not responsible.
If the Supplier is responsible for a delay in delivery, the Purchaser who can prove that he suffered a loss from such delay may claim damages but in no event shall the aggregate of such damages exceed a total of 5 % of the price of those Supplies which, because of the delay, could not be put to the intended use.
This shall also apply after expiry of a period granted to the Supplier for delivery of the Supplies. Purchaser shall only be entitled to terminate the Contract for delay provided an adequate extension of time granted to the Supplier has not resulted in delivery.
Any further rights and remedies of the Purchaser than those as per this Section 4 based on a delay, in particular Purchaser’s right to claim damages exceeding the limits specified in this Section 4, shall be excluded.
If dispatch or delivery is delayed at Purchaser’s request by more than one month after notice was given of the readiness for dispatch by the Supplier, the Purchaser may be charged storage costs for each month thereafter up to the amount of 0.5 % of the Contract price of the Supplies but in no event shall the aggregate storage charges exceed a total of 10 % of the total Contract price.
In the event the Purchaser suspends the provision of the Supplies the Purchaser shall reimburse the Supplier all additional cost and expense incurred due to such suspension.
5. Transfer of Risk.
The risk of loss shall pass to the Purchaser upon delivery.
If the dispatch or the delivery is delayed for reasons within the Purchaser’s responsibility, or if the Purchaser has failed for other reasons to accept delivery, the risk of loss shall pass to the Purchaser on the date when it would have passed but for such failure of Customer.
Software (including firmware) provided hereunder (collectively, the “Software”) is provided to Purchaser under license only.
Supplier grants to Purchaser a non-exclusive license to use the Software in accordance with the applicable license terms of the Supplier which must either be accepted upon opening of the Software (“Shrink Wrap”) or upon first installation of the Software (“Click Wrap”).
The Purchaser acknowledges that the Software qualifies as original works and constitutes copyrighted material, and that (except under certain circumstances provided for by law) it is strictly forbidden, directly or through other persons (a) to make or distribute unauthorized copies of the Software; or (b) acquire any ownership rights in the Software; or (c) to decompile the Software.
Except as expressly licensed to Purchaser hereunder, all rights, title and interests to and in the Software and all extensions, enhancements and modifications thereof shall remain at all times with Supplier and any third party holding a valid interest in the Software.
In case of any transfer of the License to a third party, the PURCHASER shall ensure that any such third parties shall be bound by the terms and conditions of the license terms.
The Purchaser shall not refuse acceptance of the Supplies for minor defects.
8. Defects Liability.
The Supplier shall be liable to the Purchaser for defects including the non-compliance with express warranties or the failure of the Supplies to meet guarantees as follows:
The Supplier shall, upon written request of the Purchaser at his option, repair any defect or replace any Supplies which turn out to be defective within the defects liability period for any defect, which is due to circumstances that existed before the transfer of risk occurred.
Insofar as defective parts have to be replaced, such defective parts shall pass into ownership of the Supplier. The defects liability period shall be 12 months from the date the transfer of risk to the Purchaser occurred or respectively completion of the respective Supply.
The Purchaser shall immediately inspect the Supplies and shall immediately notify the Supplier in writing of any defects.
If the Purchaser does not notify the Supplier in writing, the Supplies are deemed to have been accepted with respect to such defects.
The Purchaser may withhold payments on account of defects only if the legitimacy of the asserted defects liability claim is established by the Purchaser beyond reasonable doubt.
The Supplier shall be given adequate time and opportunity to remedy the defect.
The Purchaser shall at his expense and upon request of Supplier send the defective parts to Supplier.
If an adequate extension granted to the Supplier expires without the defect being remedied, the Purchaser shall have the right to a reduction of the Contract price or, if the portion of the Supplies which is not defective is of no use for the Purchaser, to terminate the Contract and obtain restitution.
The Supplier shall not be liable for defects which only insignificantly impair the use of the respective Supply, unsubstantial deviations of the Supplies from the specification of the Supplies, natural wear and tear or damage, arising from particular external influences in the Supplies or which were not assumed under the Contract.
Furthermore, the Supplier shall not be liable for defects caused by the Purchaser or by third parties not engaged by the Supplier particularly but not limited to faulty or negligent handling, excessive strain, , defective installation, improper modification or repair not carried out by the Supplier, inappropriate foundation or.
Any further rights and remedies of the Purchaser than those as per this Section 8 based on a defect shall be excluded.
9. Industrial Property Rights and Copyright.
Unless otherwise agreed upon in writing between the parties, the Supplier shall provide the Supplies solely free from such third parties’ industrial property rights and copyrights (hereinafter called “Intellectual Property Rights”) existing in the country in which the Purchaser has its seat or registered office.
In the event a third party, because of an infringement of Intellectual Property Rights by the Supplies asserts legitimate claims against the Purchaser, the Supplier shall be liable to the Purchaser as follows: The Supplier shall at his own option and expense either (a) obtain a right to use the Supplies, or (b) modify the Supplies so as not to infringe the Intellectual Property Rights; or (c) replace the relevant Supply.
If this is not reasonably possible for the Supplier, the Purchaser shall be entitled to terminate the Contract whereupon the Supplier shall take back the relevant Supply and refund the Contract price for such Supply concurrently.
Supplier’s aforesaid obligations shall exist only provided the Purchaser has immediately notified the Supplier in writing of the claims asserted by the third party, the Purchaser has not acknowledged an infringement and all countermeasures and settlement negotiations are reserved to the Supplier.
If the Purchaser stops using the Supplies to reduce the damage or for other important reasons, he shall be obliged to make it clear to the third party that the suspended use does not mean acknowledgment of an infringement of Intellectual Property Rights. Claims of the Purchaser shall be excluded if he is responsible for an infringement of Intellectual Property Rights.
Claims of the Purchaser shall also be excluded if the infringement of Intellectual Property Rights was caused by specific demands of the Purchaser, by a use of the Supplies not foreseeable by the Supplier or by the Supplies being altered by the Purchaser or being used together with products not provided by the Supplier.
Further rights and remedies of the Purchaser than those as per this Section 9 based on an infringement of third parties Intellectual Property Rights, in particular the Purchaser’s right to claim damages, shall be excluded.
10. Impossibility of Performance / Adaptation of Contract.
If it is impossible for the Supplier to carry out the Supplies for reasons for which he is responsible, the Purchaser shall be entitled to claim damages.
The Purchaser’s claim for damages shall be limited to 10 % of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use.
The Purchaser shall have no additional rights, in particular neither right to rescind from nor to terminate the Contract nor to reduce the remuneration nor to claim damages.
If unforeseeable events in the context of Clause 4 substantially change the economic implication or content of the Contract or have a substantial impact on Supplier’s business, the Contract shall be adapted appropriately and in good faith.
Where this is not economically reasonable, the Supplier shall have the right to terminate the Contract. Notwithstanding any other provision in this Contract, the Supplier shall be entitled to terminate the Contract when a force majeure event has continued for more than 180 days.
If the Supplier wants to make use of this right of termination, he shall notify the Purchaser in writing immediately after becoming aware of the force majeure event.
This notification requirement shall apply even where at first an extension of the time for delivery had been agreed between the Parties.
11. Further Liability.
Unless otherwise stipulated in these General Conditions, the Purchaser shall have no Claim for Damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.
The aforesaid limitations shall not apply if liability is mandatory,
e.g in cases of a breach of guarantee or in the event of intent, gross negligence by directors and officers of the Supplier , in case of a breach of a fundamental contractual obligation (“wesentliche Vertragspflicht”) or in the case of willful hiding of a defect.
The liability for the breach of a fundamental contractual obligation is, however, limited to the typical foreseeable damage unless another case of exclusion of the limitation of liability hereinabove applies.
Any information made available to the Purchaser by the Supplier in connection with this Contract shall be treated as confidential. The Purchaser shall use the information only for the purposes specified in this Contract. This confidentiality obligation shall not apply to information which Purchaser can demonstrate a) is already in the public domain or becomes available to the public through no breach by Purchaser of this confidentiality undertaking or b) was in Purchaser’s possession prior to receipt from Supplier without a confidentiality undertaking or c) has been legally obtained by third Parties without confidentiality obligation or d) is independently developed by the Purchaser without any use of the information received hereunder.
The obligations set forth in this Section 12 shall survive any termination of the Contract.
13. Dispute Settlement / Applicable Law.
As far as the Purchaser is merchant, the exclusive place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship, is the place of Supplier’ registered office. The Supplier, however, shall be authorized to institute proceedings at the place of Purchaser’s registered office.
This Contract shall be subject to German law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
Mistakes, unintended gaps and contradictions in the Contract are to be treated and construed in accordance with the spirit of this Contract on the basis of mutual trust and of the mutual interests of both parties. In the event of legal invalidity of individual stipulations, the other parts of this Contract shall remain valid. The aforesaid shall not apply where compliance with the terms of this Contract would constitute unacceptable hardship for either party.