I. General

1. The following terms and conditions for sale and delivery (hereinafter referred to as "General Terms and Conditions") shall apply to all deliveries and performances (hereinafter summarily referred to as "Deliveries" only) of FMB-Blickle GmbH.

2. Our general terms and conditions apply exclusively; we do not recognize the customer´s conflicting conditions or those that deviate from our conditions unless we have consented to their application previously in writing. If we unconditionally deliver goods to the customer although we are aware of the customer´s general terms and conditions of business, then there will be no acceptance of conflicting or deviating conditions of the customer. Even in this case, our general terms and conditions apply exclusively.

3. The General Terms and Conditions for Software Projects of FMB-Blickle GmbH shall apply additionally in respect of software supplied by us, even if the software is part of a product supplied by us.

4. Our general terms and conditions apply only for companies, public law bodies or public special funds as defined by section 310 (1) of the German Civil Code (BGB).

5. Individual agreements reached with the customer in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these general terms and conditions. A written contract or our written confirmation shall be decisive for the contents of such agreements.

6. Legally relevant declarations and notifications, which are to be submitted towards us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid.

II. Quote

1. Our price quotes are without engagement, cost estimates are not binding. Dimensions, package dimensions, weights, figures, simulation results and drawings are only binding if this has been explicitly confirmed in writing.

2. We reserve right of ownership to price quotes, drawings and any other documentation in respect of quotes made. To the extent that documents are copyrightable, we reserve the copyrights therein for ourselves. These documents must neither be passed on to third parties nor otherwise disclosed.

III. Prices

1. Unless otherwise agreed, invoicing shall be based on the prices valid on the date of delivery.

2. Unless otherwise stated in the quote, prices are understood for deliveries and performances ex works, excluding packaging, transport, insurance, installation and commissioning plus turnover tax as applicable on the date of delivery.

IV. Delivery

1. Commencement of the delivery time indicated by us is conditional on the clarification of all technical issues.

2. Furthermore, the fulfillment of our delivery obligation shall be conditional upon the timely and proper fulfillment of the customer´s obligations, particularly the provision of the required documents, supplies and deliveries, permits, releases, and, if applicable, the performance of any agreed down payments or the opening of a letter of credit. This shall not apply if FMB-Blickle is responsible for the delay.

3. The agreed delivery dates shall be deemed to be met upon notification of readiness for delivery, even if the items or services could not be delivered or performed in due time for reasons we are not responsible for.

4. Should delivery deadlines not be adhered to due to force majeure, strikes or other disturbances that we are not responsible for, the agreed delivery period shall be extended accordingly. This shall also apply if these disturbances occur at a time during which we are in arrears.

5. Any agreed delivery dates are subject to orderly and timely delivery to us by our sub-suppliers. FMB-Blickle shall notify the customer of any anticipated delay as soon as possible.

6. In case of a default caused by our side, resulting in damage for the customer, the customer shall be entitled to demand a flat-rate default compensation. This compensation shall be 0.5% for every full week of the delay, however, this shall, at the most, be 5% in total of the value of that part of the total consignment that cannot be used on time or in accordance with the terms of the contract as a result of the delay.
If in consideration of the statutory exceptions, the customer sets FMB-Blickle an appropriate period of grace after the due date and the corresponding deadline cannot be met, then the customer is justified in withdrawing from the contract in the scope of the statutory regulations.
Any other claims resulting from default in performance are defined solely according to section VIII. of these terms.

7. If shipment is delayed upon the request of the customer, the cost due to storage shall be charged to the customer as from one month after communicating readiness for shipment.

8. Partial shipments and corresponding invoices are permissible providing they are not unacceptable for the customer.

V. Transfer of Risk, Dispatch

1. Delivery shall take place ex works, unless explicitly agreed otherwise.

2. If by request of the customer the product is sent to another place, the method of dispatch may be determined by us, if the customer has stated nothing to the contrary. Transport insurance will only be contracted at the instruction and expense of the customer.

3. Unless covered under the liability for material defects, replacements parts deliveries and return of repaired goods shall be carried out based on appropriate delivery and packaging costs plus remuneration for the services provided by us. Returns to us and deliveries for repair work (outside of the scope of liability for defective materials) must be delivered free of charge to us.

4. Shipment of the delivery item is effected at the expense and risk of the customer. Upon transfer of the product to a forwarder or carrier, at the latest upon its leaving our warehouse or plant, the risk shall pass to the customer, even if free delivery to the place of destination is agreed. Should dispatch of the product be delayed due to an act of the customer, risk already passes upon notification to the customer of the readiness for dispatch.

5. Should delivery be delayed due to circumstances for which we are not responsible, the risk shall be transferred to the customer beginning with the day of notification of readiness for delivery.

VI. Liability for Material Defects

1. Should a defect occur within the limitation period whose cause was already present at the time of the transfer of risk, we shall be entitled to correct the defect as we see fit or deliver a defect-free item. The object of the complaint must be sent to us for repair or to the closest customer service centre recognized by us for the respective product area. The lowest costs for delivery from and to the domestic address agreed by the customer for the original product delivery shall be borne by us, provided the complaint proves to be valid. Repair of defects on-site shall only be executed within the scope of special agreements according to our applicable service conditions.

2. The liability for defects expires if the product is changed by the mounting of components of foreign origin, unless the defect is not in a causal connection with the changes as well as if agreements for shipment, packaging, mounting, treatment, use or maintenance are not followed or in case of incorrect assembly or commissioning by the customer or third parties.

3. Natural wear and tear and damage due to incorrect handling are excluded from the warranty. We are especially not liable for alterations to the condition or operations of our products due to incorrect storage, unsuitable operating materials, or climatic or other effects. This warranty does not extend to defects that involve design errors or the selection of unsuitable materials if the customer has prescribed the design or material in spite of us duly pointing this out. We do not accept any liability for parts provided by the customer.

4. The limitation period shall be stopped for the duration of the time required for the supplementary services.

5. The customer shall have the right to rescind the contract under the statutory provisions if we – allowing for the statutory exceptions – fail to meet a reasonably set period for the repair work or replacement delivery due to a material defect. If the defect is only insubstantial, the customer shall merely have the right to reduce the contractual price. If the subsequent performance fails, the customer may rescind the contract or reduce the remuneration.

6. Further claims in respect of defects – in particular contractual or non-contractual claims for damages other than those affecting the product itself – shall be determined solely according to section VIII. of these terms and conditions.

7. If the complaint due to a defect should prove to be unjustified, we shall be entitled to charge the customer for all expenses incurred by us in this connection.

8. In the case of legal defaults the provisions in sections VI. and VIII. of these terms and conditions shall apply.

VII. Intellectual Property Rights

1. For claims based on an infringement of intellectual property rights or copyright we are liable only if the intellectual property right or copyright is or was not owned by the customer or any company directly or indirectly under his control based on capital or voting rights, and the customer informs us immediately of a known infringement risk or alleged cases of infringement, and if possible, at our request, permits us to lead any judicial and extrajudicial disputes, and with the exception of copyrights at least one intellectual property right has been published either by the European Patent Office or in one of the following countries: Federal Republic of Germany, Austria or Switzerland.

2. We are entitled, at our discretion, to obtain a license for the customer for the product (allegedly) infringing a property right or copyright, or to modify it so that it no longer infringes the property right or copyright or to replace it by an equivalent substitute product not infringing the property right or copyright.

VIII. Liability

Where there has been no damage to the delivered product itself we will only accept liability – for whatever legal reasons – in the event of

- willful intent or gross negligence by our legal representatives or our employees,
- injury to life, physical injury or damage to health,
- the assumption of a guarantee,
- defects which we have fraudulently concealed,
- defects in the delivered product to the extent that there is liability for personal injury or damage to property for private use under the Product Liability Act.

In the case of culpable infringement of essential contractual obligations we shall also be liable for gross negligence by non-leading employees and for slight negligence, in the latter case limited to compensation for typical damage which can be reasonably foreseen.

Any and all other claims shall be excluded.

The aforementioned provisions shall in no way change the burden of proof to the detriment of the customer.

IX. Statutory Limitation

Any claims of the customer – on any legal ground whatsoever – shall be subject to a limitation period of 12 months. This does not apply if the defect concerns building construction or items for building construction and these have caused the material defect. In deviation to clause 1, the legal periods likewise apply to cases of entrepreneurial recourse according to sections 478 and 479 of the German Civil Code, as well as in cases of potential claims of the customer acc. to section VIII. of these terms and conditions.

X. Reservation of Ownership

1. We reserve the property on all delivered goods until complete payment of all requirements resulted from the business relation and the charges which will still occur correspondingly, unconcerned any legal reasons.

2. The customer is entitled to process or combine our products within the scope of his ordinary business operations. We shall acquire co-ownership to products that arise out of any such processing or combination for the sake of securing our claims mentioned above. The customer hereby transfers said co-ownership to us. The customer is required, free of charge, to keep in safe custody the items subject to our co-ownership as an ancillary contractual obligation. The extent of our co-ownership share shall be determined by the ratio of the value that our product has to the value that the other item has at the time that our product is processed or combined with any such other item.

3. The customer is entitled to resell products in his due course of business against cash receipt or under reservation of ownership. The customer hereby assigns to us the full amount of all of his entitled accounts receivable, plus ancillary rights, arising from resale of our product. If the products belonging to us are sold together with other products, the purchase price claim is assigned in the amount of the price of our products. The claims assigned serve as security for all claims in accordance with section X.1. The customer has the right to collect the claims assigned. The rights conferred under this section may be revoked at any time if the customer fails to properly perform his contractual duties to us, in particular if he should be in default in payment. These rights also lapse without any explicit revocation if the customer suspends his payments for more than a merely temporary period. At our request the customer must advise forthwith in writing of the customers to whom he has sold the property owned by us and of the claims to which he is entitled on the basis of such on-sale and issue to us, at the customer´s expense, publicly certified documents of the assignment of the claims.

4. The customer is not entitled to otherwise dispose of products that are subject to our ownership or co-ownership or of the accounts receivable assigned to us. The customer is required to notify us immediately of attachments or of any other legal impediments against the products that belong to us in full or in part. The customer shall pay all costs that need to be expended for abolition of third party access to our property subject to retained ownership or collateral security and for reacquisition of the product, insofar as third parties may not confiscate them.

5. In the event of default in payment or any other culpable breach of contractual duties by the customer, we have the right to demand the restitution of the goods with retained title or joint ownership. We can only make use of the foregoing right after we have rescinded the contract. If the value of our existing collateral securities exceeds our total claims by more than 10%, then we shall insofar release collateral securities at our own discretion at the customer´s request.

XI. Payments

1. Unless otherwise agreed in writing, payment shall be effected within 14 days of the invoice date with a 2% discount or within 30 days net free of charges. In case of repair work or other work services payment shall be effected within 10 days of the invoice date without any deductions free of charges. We may, however, make delivery conditional upon concurrent payment (e.g. by C.O.D. or bank direct debit procedure) or on advance payment.

2. We have the right to offset payments against the oldest claim due.

3. Payment by bill of exchange is not admissible.

4. We are authorized to assign our claims from deliveries and services for financing purposes.

5. For supplies and services to customers abroad is agreed explicitly that all costs of prosecution in the case of default in payment of the customer are charged to customer´s account, both judicial and extrajudicial.

6. The customer shall only be entitled to any set-off rights if his counterclaims are found absolutely, are undisputed and recognized by us or are ready for a decision in any proceedings pending at law. In addition, the customer is authorized to practice the right of retention insofar as his counterclaim is based on the same contractual relationship.

XII. Jurisdiction, Applicable Law

1. The courts with jurisdiction at the operating facility executing the order shall have jurisdiction and venue insofar as the customer is a registered merchant, a public law legal entity or public law special fund. We also have the right to bring legal action at the court with jurisdiction over the registered office or branch of the customer.

2. All legal relationships between us and the customer shall be bound by and construed in accordance with the substantive law of the Federal Republic of Germany excluding the United Nations Convention on the International Sale of Goods (CISG).


General Terms and Conditions for Service and Maintenance/Repair Work of FMB-Blickle GmbH

Edition: December, 2014

 

I. General - Scope of Validity

1. The following general terms and conditions for service and maintenance/repair work (hereinafter referred to as "Service Conditions") shall apply to all services and maintenance/repair work (hereinafter referred to as "Maintenance/Repair" or "Service Works") provided by FMB-Blickle on behalf of a third party (hereinafter referred to as "Customer"). These service works mainly concern inspections, repair and maintenance work, commissioning and overhaul works.

2. Our service conditions apply exclusively; we do not recognize the customer´s conflicting conditions or those that deviate from our conditions unless we have consented to their application previously in writing. If we unconditionally perform maintenance/repair although we are aware of the customer´s general terms and conditions of business then there will be no acceptance of conflicting or deviating conditions of the customer. Even in this case, our service conditions apply exclusively.

3. Our service conditions shall also be a basic agreement for all future transactions with the same customer without our being obliged to refer to them again in each individual case.

4. Individual agreements reached with the customer in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these service conditions. A written contract or our written confirmation shall be decisive for the contents of such agreements.

5. Legally relevant declarations and notifications, which are to be submitted towards us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction), require the written form in order to be valid.

6. Our service conditions apply only for companies, public law bodies or public special funds as defined by section 310 (1) of the German Civil Code (BGB).

II. Cost Information

1. At the request of the customer and/or where possible we shall state the expected repair/maintenance price when the agreement is concluded, otherwise the customer is entitled to set cost limits.
If the repair/maintenance cannot be carried out at this price or if we consider further work necessary whilst carrying out the performance of said repair/maintenance, the customer´s consent shall be sought if the given costs will be exceeded by more than 20%.

2. If binding prices are desired before the repair/maintenance is carried out, the customer shall request such explicitly. This kind of cost information shall – unless otherwise agreed – only be binding if given in writing. The cost estimate shall be subject to payment only if this has been agreed with the customer in each individual case.

3. The services rendered in connection with the provision of a cost estimate and any further time spent which must be proven (e.g. for dismantling work and error location time) shall be invoiced to the customer if the repair/maintenance is not carried out for reasons for which we are not responsible. The customer shall not be charged for the preparation of a cost estimate, where such preparation work is of use in the course of the repair/maintenance work.

4. If the customer does not place an order for repair/maintenance work after submitting a cost estimate, we must return the object of repair/maintenance to its original condition at the expressed request of the customer in return for reimbursement of the costs unless the work carried out was unnecessary.

III. Prices and Payment

1. We shall be entitled to demand a reasonable advance payment from the customer at the time the contract is entered into.

2. In invoicing the repair/maintenance, the prices for parts and materials used and other special services as well as prices for work services, travel and transport costs shall be listed separately. If the repair/maintenance work is carried out on the basis of a binding quote reference to the quote shall be sufficient whereby only deviations with respect to the scope of performance shall be listed separately.

3. All prices are quoted before statutory value added tax which is listed separately.

4. Payment shall be made in cash upon acceptance and hand-over of the object of repair/maintenance or within 14 days after the receipt of our corresponding invoice to the specified bank account, without any deductions.

5. The customer shall only have a right to retain payments or to offset with counterclaims if his counterclaims have not been disputed, have been determined by a court of law or are ready for a decision in any proceedings pending at law.

IV. Cooperation and Technical Assistance by the Customer in Connection with Repair/Maintenance Work outside FMB-Blickle Factory

1. The customer shall provide assistance to our repair/maintenance personnel at his expense in connection with the performance of the repair/maintenance.

2. The customer shall take any special measures necessary to protect persons and objects at the place of repair/maintenance. He shall also inform our repair/maintenance supervisor of existing special safety regulations to the extent that these are of significance to the repair/maintenance personnel. He shall inform us of infringements of safety regulations by our repair/maintenance personnel.

3. If necessary, the customer shall undertake to provide assistance to us or our repair/maintenance personnel, in particular to:

a) provide suitable helpers for effecting the repair/maintenance; these helpers shall follow the instructions of our repair/maintenance supervisor. Should defects or damage be incurred by the helpers due to instructions given by our repair/maintenance supervisor, sections IX and X of these service conditions shall apply.

b) provide the necessary devices and tools.

c) provide power, heating, lighting, water, including the required connections.

d) provide the required dry and lockable rooms for the storage of tools belonging to the repair/maintenance personnel as well as burglar-proof common rooms and work rooms including first-aid for the repair/maintenance personnel.

4. The before mentioned assistance by the customer must guarantee that the repair/maintenance is commenced without undue delay after arrival of the repair/maintenance personnel and can be carried out without delay until acceptance by the customer.

5. Should the customer fail to perform his duty to participate, we shall – after the unsuccessful expiring of an appropriate grace period - be entitled to carry out the customer´s obligations ourselves or have them carried out by third parties at the customer´s expense.

V. Transport and Insurance

1. Unless otherwise agreed upon in writing, the customer shall, at his own expense and risk, deliver the product to be repaired/maintained to our address and collect it there upon completion of the repair/maintenance work.

2. At the request of the customer, insurance coverage shall be taken out at customer´s expense for shipment to and return from FMB-Blickle factory.

3. There shall be no insurance coverage in force during the period of repair/maintenance. Only at the customer´s express request in writing and at his expense we shall arrange insurance coverage against usual risks.

4. If the customer delays the collection we may invoice the customer storage charges for the storage at our factory. At our discretion, the product of repair/maintenance can also be stored elsewhere. The customer shall bear the cost of storage.

VI. Time Limit for Repair/Maintenance Work

1. Any specifications regarding the time limits for the repair/maintenance or service work (hereinafter referred to as "Service Terms") are based on estimates and shall therefore not be considered binding.

2. The customer shall not be entitled to demand the agreement of a binding service term, which shall be indicated as being binding, until all preliminary work, error location times, diagnostics and the like have been completed and the scope of the work shall have been able to be precisely ascertained.

3. The said binding service term shall be deemed to have been satisfied if by expiry thereof the product to be repaired/maintained is ready for collection by the customer, where testing is contractually agreed, for performance thereof.

4. Should subsequently additional orders be placed, the order be extended or additional repair/maintenance work become necessary, the agreed time limit for the repair/maintenance work shall be prolonged accordingly.

5. Should the repair/maintenance work be delayed by industrial disputes or by circumstances we are not responsible for, the time limit for the repair/maintenance work shall be reasonably extended, provided that such impediments prove to be of considerable influence on the completion of the repair/maintenance work.

6. In case of a default caused by our side, resulting in damage for the customer, the customer shall be entitled to demand a flat-rate default compensation. This compensation shall be 0.5% for every full week of the delay, however, this shall, at the most, be 5% in total of the total repair/maintenance price. If in consideration of the statutory exceptions, the customer sets FMB-Blickle an appropriate period of grace after the due date and the corresponding deadline cannot be met, then the customer is justified in withdrawing from the contract in the scope of the statutory regulations.
Any other claims resulting from default in performance are defined solely according to section X.1 of these service conditions.

VII. Acceptance and Latest Deadline

1. The customer shall be required to conduct acceptance of the repair/maintenance work as soon as he has been notified of completion and any contractually agreed trials of the product to be repaired/maintained have been performed. Should the repair/maintenance work prove not to be in conformity with the contract, we shall remedy the defect. However, this shall not apply if said defect is attributable to circumstances for which the customer is responsible. The customer shall not be entitled to refuse acceptance should an immaterial defect exist.

2. Should acceptance be delayed through no fault of FMB-Blickle, said acceptance shall be deemed to have been effected two weeks subsequent to notification of completion of the repair/maintenance work.

3. Acceptance shall release FMB-Blickle from liability for recognizable defects unless the customer has reserved the right to subsequently assert a complaint for a specific defect.

VIII. Reservation of Ownership

1. FMB-Blickle shall reserve ownership to any and all accessories, parts or exchange equipment until any and all payments arising from the repair/maintenance contract have been received.

2. If the product of repair/maintenance is mixed with our parts or exchange equipment, such that the product of repair/maintenance is to be considered the main object, then the customer transfers to us co-ownership insofar as the main product belongs to him. The customer safeguards the co-ownership for us until any and all payments for the repair/maintenance work have been received.

IX. Defects and Liability for Defects

1. After acceptance of the repair/maintenance work we shall be liable for defects in the repair/maintenance work, to the exclusion of any and all other claims by the customer, notwithstanding sections IX.3 and X of these service conditions, in such a manner that we shall remedy said defects. The customer shall inform us immediately in writing of any defects ascertained.

2. We shall not be liable if said defect is attributable to a circumstance for which the customer is responsible. This shall apply, in particular, with respect to parts supplied by the customer. We shall not be liable for the consequences resulting from modifications performed improperly by the customer or third parties without our prior written consent.

3. With due consideration being given to statutory exceptions, the customer shall have the right to a reduction of the repair/maintenance price should we allow an appropriate term to rectify said defect to elapse. The customer shall also be entitled to the right of reduction of the contractual price in other cases of failure to rectify defects. Only if said repair/maintenance shall be evidenced to not be of interest to the customer – in spite of said reduction – the customer shall be entitled to withdraw from the contract.

4 Further claims shall be determined solely according to section X.2 of these service conditions.

X. Supplier´s Liability; Exclusion of Liability

1. Should through the fault of FMB-Blickle components of the item to be repaired/maintained not be able to be employed in the contractual manner as a result of non-execution or faulty execution of suggestions and advice, as well as other contractual subsidiary obligations – in particular operating or maintenance instructions – provided prior or subsequent to entering into the contract, the provisions set forth in section X.2 shall apply accordingly, to the exclusion of any and all other claims of the customer.

2. In the case of damages that are not incurred on the item to be repaired/maintained itself, we shall be liable – for whatever legal reasons - only

a) in the event of willful intent,

b) in the event of gross negligence of its owner or executives,

c) in the event of culpable injury to life, limb or health,

d) in the event of defects or deficiencies that we have maliciously concealed,

e) within the framework of an assured warranty,

f) to the extent liability exists under the German Product Liability Act for personal injury or property damage to privately utilized items.

In the event of a culpable infringement of major contractual obligations, we shall be also liable in the case of gross negligence on the part of non-executive employees and in the case of minor negligence, however in the latter case limited to typical damage under the contract that could reasonably be foreseen.

No further entitlements shall exist.

XI. Statutory Limitation

1. Any claims of the customer – on any legal ground whatsoever – shall be subject to a limitation period of 12 months. Claims for indemnification pursuant to section X.2 of these service conditions shall be subject to the statutory terms. Said statutory terms shall also apply in the event that we perform repair/maintenance work to a structure and is the cause of its defectiveness; the same applies to cases of entrepreneurial recourse according to sections 478 and 479 of the German Civil Act.

XII. Applicable Law and Jurisdiction

1. All legal relationships between us and the customer shall be bound by and construed in accordance with the substantive law of the Federal Republic of Germany excluding the United Nations Convention on the International Sale of Goods (CISG).

2. If the customer is a registered merchant, a public law legal entity or public law special fund, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is our place of business; the legal dispute, however, may also be pursued at our discretion at the place of performance or at the customer´s location.


General Terms and Conditions for Software Projects of FMB-Blickle GmbH

Edition: January, 2015

 

§1 Scope and Field of Application

(1) These general terms and conditions for software projects (hereinafter referred to as "Software Conditions") shall apply to all services which FMB-Blickle GmbH, Peter-Heinlein-Straße 19, 78056 Villingen-Schwenningen, Germany (hereinafter referred to as "Contractor") provides on behalf of a customer (hereinafter referred to as "Customer") in connection with the development of individual software solutions.
(2) The contractor shall only recognize the customer´s general terms and conditions that conflict with or deviate from these software conditions to the extent that he has expressly agreed to them in writing. In cases where the contractor is performing the service without reservations although being aware that the terms and conditions of the customer are contradicting or deviating from these software conditions, this does not signify consent – also in this case the present software conditions shall apply.
(3) Individual agreements reached with the customer in individual cases (including side agreements, additions and amendments) shall in all cases have precedence over these software conditions. A written contract or the written confirmation of the contractor shall be decisive for the contents of such agreements.
(4) The specific contract and these software conditions apply only for companies, public law bodies and public special funds as defined by section 310 (1) of the German Civil Code (BGB).
(5) Provided nothing contrary has been stipulated in any individual case, the software project normally consists of two project stages:
During the planning stage the contractor prepares a description of function. After completion and acceptance of this description of function the contractor develops the contractual software.

§2 Definitions

(1) The term "Contractual Software" refers to the documentation of the software to be developed by the contractor in accordance with the description of function thereof (including user documentation, interface description and installation guide, if necessary); it does not include, however, the source code and the maintenance documentation.
(2) "Confidential Information" shall mean all information and documents of the other party which are marked confidential or which are to be considered confidential from the circumstances given; in particular, this refers to information about operational procedures, business relations and expert knowledge.

§3 Object of the Contract

(1) The contractor prepares the description of function for the customer and develops and implements the contractual software according to the specifications given in the description of function.
(2) If agreed, the contractor shall take over installation, implementation and parametrization of the software on his own responsibility.

§4 Service Performance

(1) The contractor shall create the contractual software carefully in compliance with the generally acknowledged state of technology.
(2) The contractor shall prepare the documentation in German.
(3) The contractual software shall be delivered on a conventional data carrier or via e-mail.

§5 Customer´s Duty to Cooperate

(1) The customer shall be obliged to enhance the success of the project in each single phase by undertaking active and appropriate acts of cooperation. In particular, he shall provide the contractor with the information and data necessary for the proper implementation of the project and shall grant the employees of the contractor access to his business premises during office hours.
(2) Should the customer fail to perform his duty to cooperate and as a result the contractor cannot complete the project or parts thereof within the agreed time, the period set in the timetable shall be prolonged accordingly.

§6 Right to Information and Reporting

The customer shall at all times be entitled to be informed about the project progress. Upon request of the customer the contractor shall provide him with the necessary information.

§7 Change in Performance

Up to the point of acceptance the customer shall be entitled to request changes of and amendments to the performance as far as this is technically feasible and reasonable for the contractor. Any modification requires a separate written agreement which regulates the consequences of the change with regard to costs or deadlines.

§8 Development of the Description of Function

The functionalities of the contractual software to be developed shall be defined by the contractor in writing ("Description of Function").

§9 Acceptance of the Description of Function

(1) The customer shall check and give written approval to the description of function developed by the contractor. In order to examine the completeness and technical feasibility of the description of function the customer may involve an independent expert of his choice. The associated costs are borne by the customer.
(2) The customer shall not have the right to refuse acceptance due to insignificant defects.
(3) Should the customer refuse acceptance of the description of function due to significant defects, he shall inform the contractor in writing giving a description of the defect. The customer shall allow the contractor to remedy these defects within an appropriate period of time. Should acceptance fail for a second time, the customer shall be entitled to claim his legal rights, notably to rescind the contract.

§10 Development of the Contractual Software

After the acceptance of the description of function the contractor shall start developing the contractual software.

§11 Acceptance of the Contractual Software

(1) Subject of the acceptance shall be the contractual performance of the licensed software in accordance with the description of function prepared by the contractor. Acceptance can only take place if the contractor has given notice to the customer of readiness for acceptance.
(2) After that, the customer shall have 10 days to check the readiness for acceptance and to declare the acceptance in writing within ten days of the beginning of the inspection.
(3) Should the acceptance fail the customer shall submit a list to the contractor containing all defects hindering the acceptance. After the expiration of an appropriate period of time the contractor must provide a version of the contractual software or other work results without any defects and ready for acceptance. During the subsequent inspection only the recorded defects shall be checked, insofar as their functions can be tested separately.
(4) The customer shall not have the right to refuse acceptance due to insignificant defects. These defects must be listed separately in the acceptance protocol.
(5) Should the acceptance fail at least twice, the customer shall be entitled to claim his legal rights, notably to rescind the contract.

§12 Payment

(1) Unless otherwise stipulated in the individual contract, the following shall apply: For the preparation of the description of function the customer shall pay the agreed amount plus value added tax. The payment is due after the declaration of the acceptance within 30 days upon receipt of an invoice, however, no later than four weeks upon declaration of readiness for acceptance by the contractor, if the acceptance has not taken place for reasons the contractor is not responsible for.
(2) Unless otherwise stipulated in the individual contract, the following shall apply: For the development of the contractual software the customer shall pay the agreed amount plus value added tax. The payment is due after the declaration of the acceptance within 30 days upon receipt of an invoice, however, no later than four weeks upon declaration of readiness for acceptance by the contractor, if the acceptance has not taken place for reasons the contractor is not responsible for.
(3) The contractor shall be entitled to demand from the customer an adequate advance or interim payment according to §12 section (1) or (2).

§13 Granting of Rights

(1) Upon full payment the customer receives the single and temporally unlimited right to use the licensed software to the extent and within the scope of application which is granted with this contract.
The permissible use includes the installation of the licensed software, the loading into the working memory as well as the intended use by the customer.
(2) The customer shall be entitled to create a backup copy if this is necessary to safeguard the future use. The customer shall label each backup copy he makes "Backup Copy" and affix the manufacturer´s copyright notice so that it is clearly visible.
(3) The customer shall only be entitled to decompile and reproduce the contractual software, insofar as this is legally stipulated. This applies, however, only insofar as the contractor upon request has not provided the customer with the necessary information for this within an appropriate period of time.
(4) The customer shall be entitled to make the contractual software permanently available to a third party. In this case he must entirely discontinue using the program, erase all the installed copies of the programs from his computers and delete all copies of the software stored on separate data storage media or hand them over to the contractor unless he is obliged to keep them for a longer time due to statutory provisions. Upon request of the contractor the customer shall confirm in writing the fully implementation of the above mentioned measures or, if necessary, state the reasons for a longer storage period. Furthermore, the customer shall explicitly agree with the third party that the scope of the rights granted must be observed in accordance with this § 13.
(5) Should the customer use the licensed software to an extent exceeding the acquired licenses in terms of quality (regarding the nature of the permitted use) or in terms of quantity, he shall promptly purchase the licenses required for the permitted use. If he fails to do so, the contractor shall assert his rights.
(6) Copyright notices, serial numbers as well as other features that serve as product identification must under no circumstances be removed or changed.

§14 Liability for Defects

(1) The contractor guarantees that the contractual software is free of quality defects.
(2) The contractor guarantees that the work results do not violate any rights of third parties within the Federal Republic of Germany. The contractor shall be proactive in supporting the customer during the legal and out-of-court settlement of such disputes with third parties. The customer shall have the sole right to conduct cases as well as to conclude court settlements or to reach out-of-court settlements.

§15 Liability

(1) In the case of damages that are not incurred on the contractual software itself, the contractor shall be liable – for whatever legal reasons – only
• in the event of willful intent,
• in the event of gross negligence on the part of the owner/company organs or company executives,
• in the event of culpable injury to life, limb or health,
• in the event of defects or deficiencies that he has maliciously concealed,
• within the framework of an assured warranty,
• in the event of defects in the contractual software to the extent liability exists under the German Product Liability Act for personal injury or property damage to privately utilized items.
• in the event of a culpable infringement of major contractual obligations, the contractor shall also be liable in the case of gross negligence on the part of non-executive employees and in the case of minor negligence, however in the latter case limited to typical damage under the contract that could reasonably be foreseen.
No further entitlements towards the contractor shall exist.
(2) In case of a default caused by the contractor, resulting in damage for the customer, the customer shall be entitled to demand a flat-rate default compensation. This compensation shall be 0.5% for every full week of the delay, however, this shall, at the most be 5% in total of the value of that part of the total compensation that cannot be used on time or in accordance with the terms of the contract as a result of the delay.
If in consideration of the statutory exceptions, the customer sets the contractor an appropriate period of grace after the due date and the corresponding deadline cannot be met, then the customer is justified in withdrawing from the contract in the scope of the statutory regulations.
Any other claims resulting from default are defined solely according to section § 15.1 of these software conditions.

§ 16 Escalation Procedure

(1) In the event of disagreement the parties with the help of their project leaders shall endeavor to find a solution by common consent before taking legal measures.
(2) If in accordance with section 16.1 no solution can be found, the issue shall be escalated to the management level. If a solution by common consent can also not be found at the management level, the parties shall carry out a conciliation procedure according to section 16.3.
(3) In case of any differences of opinion arising under or in connection with the present terms and conditions or any supplements or additions thereto which they are unable to resolve themselves, the contracting parties agree to call on the conciliation office of the German Association of Law and Informatics (DGRI) in order to resolve the dispute fully or partially, provisionally or finally according to the DGRI conciliation rules in the version in force at the time the conciliation proceeding is initiated.
The statute of limitations for all claims arising from the matter in dispute shall be suspended from the date on which the conciliation request is filed until the end of the conciliation procedure: Section 203 of the German Civil Code (BGB) shall apply accordingly.
The parties clearly define that the prior initiation of a conciliation procedure shall be no prerequisite for a court case, no matter whether it is a proceeding before the ordinary courts or an interim proceeding.

§17 Data Protection

The contractual parties shall adhere to the relevant provisions on data protection. The contractual parties shall instruct their employees to keep personal data confidential according to section 5 of the Federal Data Protection ACT (BDSG), unless such an obligation exists already.

§18 Confidentiality

(1) The parties agree to maintain silence about any confidential information. This obligation shall remain valid for a period of eight years after termination of the contract.
(2) Exempted from this obligation is such confidential information
a) which can be proven to have been known to the recipient when entering into the contract or comes to his knowledge from some third party after that without any confidentiality agreement, statutory requirements or official decree being contravened;
b) which is or becomes publicly known when entering into the contract without any violation of this contract;
c) which must be disclosed because of statutory obligations or on the decree of a court or of an official authority. To the extent that it is permissible and possible the recipient shall advise the other contractual party in advance of any disclosure obligation and give it an opportunity to take action against the disclosure.
(3) The contractual parties shall grant access to such confidential information only to consultants who are bound by the obligation of professional secrecy or who were required to fulfill obligations complying with the confidentiality agreements of this agreement. Furthermore, the contractual parties shall make the information to be handled confidentially accessible only to those employees that need such access for the purpose of the performance of this contract and shall oblige these employees to maintain secrecy to the legally permissible extent even after they have left.

§19 Final Provisions

(1) The customer has the right to counter demands only in the case of indisputable or legally determined demands or of such demands which are ready for a decision in any proceedings pending at law.
(2) The law of the Federal Republic of Germany shall apply to these software conditions, to the exclusion of the United Nations Conventions on the International Sale of Goods (CISG).
(3) The place of fulfilment shall be Villingen-Schwenningen.
(4) Exclusive place of jurisdiction shall be Villingen-Schwenningen, provided each contractual party is a registered merchant, a public law legal entity or public law special fund or if one of the parties has no general place of jurisdiction in Germany.