General terms and conditions of business of SP softwarepartner GmbH (referred to hereinafter as SP)
1. Scope of the general business relations
These general terms and conditions of business apply to all contracts entered into between SP and the purchaser as well as all other agreements that are made within the framework of the business relationship. General terms and conditions of business of the customer expressly do not form part of the contractual contents, even if they are not expressly objected to by SP. In the event that the customer does not want to recognise the validity of the following general terms and conditions of business, it must notify this to SP in writing in advance.
2. Terms and conditions of payment and prices
All invoices issued by SP are payable within ten days from the date of invoice. The key date is the date that the payment is received by SP. In the event of default, SP is entitled to withhold further deliveries and services. In the event of default in payment by the customer, SP is entitled to charge interest of 5% above the base rate applicable at the time in question. All prices are subject to the relevant statutory value added tax. SP is entitled to perform partial deliveries.
3. Delivery and dispatch
All offers are subject to change. Deliveries are made subject to availability. All delivery dates stated by SP are non-binding delivery dates, unless a delivery date has been expressly agreed as binding in writing. If the purchaser requests amendments or additions to the order after it has been issued or if other circumstances arise that make it impossible for SP to comply with the delivery date, even through SP is not responsible for these circumstances, the delivery time will be postponed by a reasonable period. If SP is prevented from fulfilling the contract on time, e.g. as a result of disruptions to procurement, manufacture or delivery at SP or its suppliers, the general legal principle shall apply subject to the proviso that the customer can set a grace period of six weeks after one month has elapsed. If the failure to meet a binding delivery date can be verifiably attributed to mobilisation, war, civil commotion, strike or lockout or to other circumstances for which SP is not responsible in accordance with general legal principles,, the delivery time will be extended appropriately. The customer can rescind the contract if it sets SP a reasonable grace period after the extended time limit has expired. The rescission has to be notified in writing if SP does not fulfil its obligations within the grace period. If it is impossible for SP to fulfil the contract in full or in part for the above-mentioned reasons, it is released from its obligation to deliver. The costs for shipping and the transport insurance are to be borne in principle by the customer, where the selection of the mode and method of shipping is at the discretion of SP. The customer is required to examine the goods immediately they arrive and to report visible transport damage as well as any damage to the packaging to SP immediately in writing. The same shall apply for concealed damage. If SP is deprived of its claims against the insurers or the sub-supplier on account of the failure of the customer to fulfil this obligation, the customer shall be liable for all costs that result from this breach of duty. The risk is transferred to the customer as soon as the goods leave the works or the warehouse of SP.
4. Retention of title
The delivered goods remain the property of SP until all claims of SP arising from the business relationship with the customer relating to principal and secondary matters have been paid in full. The customer is required to properly insure the objects subject to the retention of title of SP (i.e. theft, fire, water and electronics insurance) and to furnish proof of such insurance to SP upon request. In the event of damage, the insurance claim of the customer is deemed to have been assigned to SP. The customer is not authorised to dispose of the objects subject to retention of title. In the event of distraint or confiscation, the customer has to inform SP of this immediately in writing and has to inform third parties of the retention of title by SP immediately in suitable form. In the event that the customer nevertheless disposes of the delivery items and if SP should approve this, the customer already assigns all claims against its customers to SP when the contract is entered into. The customer undertakes to issue to SP all information necessary for it to assert these rights and to perform the necessary acts of co-operation.
5. Limitation of liability
SP shall be liable for wilful intent and gross negligence in accordance with the statutory regulations. In the case of slight negligence, SP shall be liable only if a material contractual obligation (material obligation) is breached or a case of default or impossibility is present. In the event of liability arising from slight negligence, this liability is limited to damages that are foreseeable or typical.
Liability for the absence of warranted properties, on account of fraud, for personal injury, defects in title, in accordance with the Produkthaftungsgesetz (German Product Liability Act) and the Bundesdatenschutzgesetz (German Federal Data Protection Act) remain unaffected. In the event of a claim against SP based on the warranty or liability, any contributory negligence of the customer has to be taken into appropriate consideration, especially in the event of inadequate defect reports or inadequate data protection. Inadequate data protection is present in particular if the customer has failed to take precautions through appropriate security measures in line with the state of the art against external impacts, especially against computer viruses and other phenomena that may put the individual data or an entire data set at risk.
6. Hardware warranty
SP warrants that the goods are free of defects that nullify or reduce the value or the suitability for standard use or for use provided for by the contract. SP and the customer agree that statements and descriptions both of the hardware and of the software that are contained in the manual and/or in the price list do not represent any warranty of specific properties. The warranty period is twelve months and starts on the date of delivery. If the customer is a consumer within the meaning of the Bürgerliches Gesetzbuch (German Civil Code), the warranty period is two years. The customer has to report any defects arising during the warranty period to SP immediately in writing. The warranty does not cover the rectification of defects that arise as the result of normal wear and tear, external influences or operating errors. The warranty lapses if the customer itself modifies or arranges for third parties to modify devices, elements or peripherals without the approval of SP, unless the customer furnished full proof that the defects still at issue were not caused either in full or in part by modifications of this kind and that the rectification of defects will not be complicated by the modification. If the notification of defects proves to be substantiated, the customer shall set SP a reasonable time for subsequent performance. The customer shall inform SP of the kind of subsequent performance – rectification of the object that has been delivered or delivery of a new, defect-free object. SP is entitled, however, to reject the subsequent performance that has been selected if this can only be carried out at disproportionate cost for SP and if the other type of subsequent performance would not entail any significant disadvantages for the customer. SP can furthermore refuse to perform the subsequent performance as a whole if it can be carried out only at disproportionate cost for SP. SP is entitled to make two attempts within the period set by the customer to carry out the subsequent performance for the same or directly related defects. After the second failed attempt at subsequent performance, the customer can rescind or reduce the contract. The right of rescission or reduction can already be exercised after the first unsuccessful attempt at subsequent performance if a second attempt cannot be reasonably expected of the customer within the time limit that has been set. If the subsequent performance has been rejected under the conditions specified above, the customer is entitled to the right of rescission or reduction immediately. Rescission on account of a minor defect is excluded. If a defect arises that is the consequence of a driver that is not correct or that has not been updated, the customer shall grant SP the right to supply a functional driver within ten days from notification to SP. If the customer has asserted a warranty claim against SP and it turns out that either a defect is not present or the asserted claim does not require SP to perform work under the warranty, the customer has to reimburse all expenses incurred by SP if the customer is responsible for asserting the claim against SP based on gross negligence or wilful intent. The supply of operating instructions in English is permitted if the subject matter of the contract has not yet been fully localised for the market in question. The same shall apply if the subject matter of the contract can generally be supplied in an English-language version.
7. Software warranty
The customer shall inspect the software immediately after it has been delivered and notify the seller immediately in writing of obvious defects. SP warrants for a period of twelve months from the time of delivery that the software functions essentially in accordance with the description of the program in the accompanying written documentation. If the customer is a consumer within the meaning of the Bürgerliches Gesetzbuch (German Civil Code), the warranty period is two years. If a defect occurs, the defect and how it manifests itself is to be described in a written notification of the defect in such detail that a review of the defect (e.g. submission of the error messages) is feasible and it is possible to rule out an operating error (e.g. indication of the work steps). If the notification of defects proves to be substantiated, the customer shall set SP a reasonable time for subsequent performance. The customer shall inform SP of the kind of subsequent performance – rectification of the object that has been delivered or delivery of a new, defect-free object. SP is entitled, however, to reject the subsequent performance that has been selected if this can only be carried out at disproportionate cost for SP and if the other type of subsequent performance would not entail any significant disadvantages for the customer. SP can furthermore refuse to perform the subsequent performance as a whole if it can be carried out only at disproportionate cost for SP. SP is entitled to make two attempts within the period set by the customer to carry out the subsequent performance for the same or directly related defects. After the second failed attempt at subsequent performance, the customer can rescind or reduce the contract. The right of rescission or reduction can already be exercised after the first unsuccessful attempt at subsequent performance if a second attempt cannot be reasonably expected of the customer within the time limit that has been set. If the subsequent performance has been rejected under the conditions specified above, the customer is entitled to the right of rescission or reduction immediately. If a defect arises that is the consequence of a driver that is not correct or that has not been updated, the customer shall grant SP the right to supply a functional driver within ten days from notification to SP. Rescission on account of a minor defect is excluded. If the customer has asserted a warranty claim against SP and it turns out that either a defect is not present or the asserted claim does not require SP to perform work under the warranty, the customer has to reimburse all expenses incurred by SP if the customer is responsible for asserting the claim against SP based on gross negligence or wilful intent. No liability is assumed to the effect that the software is suitable for the customer’s purposes and will work together with other software present at the customer. The supply of manuals and documentation beyond the written material/program description supplied with the software and the user guide and/or online help implemented in the software, or instruction is only undertaken to be provided if this has been expressly agreed in writing between the parties. In the event of an express agreement of this kind, no requirements are set concerning the contents, language and scope of a manual expressly to be delivered and/or of documentation, and the delivery of a quick start guide is sufficient, unless the parties have agreed other specifications in writing. The supply of operating instructions in English is permitted if the subject matter of the contract has not yet been fully localised for the market in question. The same shall apply if the subject matter of the contract can generally be supplied in an English-language version
8. Confidentiality
SP and the customer undertake mutually to keep all business and trade secrets of the other party in strict confidence indefinitely and not to disclose these to third parties or exploit them in any other way. The other party to the contract may use the documents, drawings and other information that it receives on account of the business relationship only in the context of the relevant purpose of the contract.
9. Evidence clause
Data that is stored in electronic registers or otherwise in electronic form by SP is regarded as permissible evidence for furnishing proof of data transmissions, contracts and executed payments between the parties.
10. Property rights
The purchaser is not permitted to export the goods acquired from SP to countries outside the EU without the expression consent of SP. In addition, the purchaser has to comply with all relevant export regulations, especially those under the Außenwirtschaftsverordnung (German Foreign Trade and Payments Ordinance) as well as any regulations under US law.
11. Export
The purchaser acknowledges that the resale of any products imported from the US are subject to the export control regulations of the United States of America, which limit the export and re-import of hardware, software, technical data storage media and direct products of technical data storage media, including services that are connected with the use of these products. The purchaser agrees that it will not export or re-export related products, information or documentation imported from the US either directly or indirectly to any countries or to any end users without having obtained in advance the approval of the competent authorities that is required for this. The approval of the US Department of Commerce, Bureau of Export Administration, or a comparable agency is required. The same shall apply for all uses on the part of the end user, which are restricted by US regulations. The regulations refer in particular to countries to which the restrictions apply: Cuba, Haiti, rump Yugoslavia (Serbia and Montenegro), Iran, Iraq, North Korea, Syria and Vietnam; End users to which the restrictions apply: all end users where the purchaser knows or has a reasonable belief that the products that are imported from the US will be used to design, develop or produce rockets or in rocket technology, in connection with nuclear weapons or in chemical and biological weapons; End uses to which the restrictions apply: any use of products that have been imported from the US in connection with the design, development or production of rockets or in rocket technology, in connection with nuclear weapons or weapons technology or for chemical and biological weapons.
12. Other provisions
Should individual provisions of these general terms and conditions of business be or become invalid in full or in part, this shall not affect the validity of the remaining provisions. Rather, the void provisions shall be replaced by provisions that most closely approximate the intended purpose. No side agreements have been made. Additions to the contract take legal effect only if they are confirmed in writing. The customer can assign its rights arising from a business relationship with SP only with the written consent of SP. A set-off against the purchase price claim is possible for the customer only with counterclaims that have been recognised or established by final legal decision. If permitted by law, the venue is the seat of SP (headquarters) in the Federal Republic of Germany. Exclusively German law shall apply