General Terms and Conditions of Business of ViCon GmbH, Hanover
I. Applicability
1. These General Terms and Conditions of Business are applicable to all transactions entered into by ViCon GmbH – hereinafter referred to as “ViCon” – for application software (standard software, customized standard software and custom-made software). These GTC shall also apply to future transactions, with no express agreement required.
2. Differing terms, in particular other general terms and conditions of business of the customer, even when not expressly objected to by ViCon, shall only be deemed to have been agreed to if expressly confirmed by ViCon in writing.
II. Offers; contract formation
1. Unless expressly agreed otherwise, offers by ViCon are subject to change.
2. Figures, drawings and technical data in offers, brochures or other informational material represent only approximate values and need not conform to the respective state of the art. Consequently, they neither constitute guaranteed features nor are they relevant for a determination of the contractual goods and services. Regarding changes due to technological progress, ViCon is authorized to change the program specifications if this does not lead to any material change in software functionality. ViCon reserves title to and copyright over offers, drawings and other documents; they may not be made available to third parties.
3. Orders become binding for ViCon only upon written confirmation unless ViCon executes the order beforehand.
4. Except as otherwise agreed or indicated in offers, the prices specified by ViCon are net prices, excluding packaging and postage, freight and insurance. They do not include either value added tax or other taxes, duties, fees or government charges connected with product purchases by the customer.
III. Delivery
1. Except as otherwise agreed or indicated in offers, delivery is made, at the customer's expense, from the domestic production or storage site. The risk passes to the customer upon transfer to the carrier or other person or establishment contracted for transportation; the same is also true of deliveries with carriage prepaid. ViCon may – but absent express written instructions from the customer need not – insure the transportation at the customer's expense.
2. Time periods for delivery and delivery dates specified in the order do not represent fixed deadlines. Insofar as preparatory measures by the customer are required for delivery to be carried out, the time period for delivery starts only when these measures are concluded.
3. Upon request, the customer shall confirm in writing its readiness to take delivery as well as the completion of any required pre-delivery measures. If it refuses to do so or declines to take possession of the programs delivered, a default of acceptance thereby takes place.
4. ViCon is authorized to make partial deliveries.
5. It is up to the customer to arrange for the prerequisites for installation.
6. Even when binding delivery deadlines have been agreed to, ViCon shall not be responsible for delays in delivery owing to force majeure, or because of official changes to the licensing and legal situation, business disruptions, labor disputes and problems in materials procurement, including when they take place with upstream suppliers. In such cases, the agreed delivery date shall be tacitly extended by the reasonable time period needed for the impediment to be eliminated. Damages claims by the ordering party are in any event barred insofar as the delay is not due to intentional wrongdoing or gross negligence by ViCon.
7. If ViCon defaults, the customer may rescind the agreement in accordance with statutory provisions if it has allowed ViCon, in writing, a grace period of at least 4 weeks.
8. If the customer defaults in accepting, ViCon may, at its discretion (cf. Section 315 of the German Civil Code (Bürgerliches Gesetzbuch) (BGB)), define a new delivery deadline after taking its other delivery obligations into account.
IV. Reservation of title
1. As against general merchants (Vollkaufleute), title over goods delivered is reserved until payment in full of all claims under the business relationship with the customer. If the customer is not a general merchant, goods delivered remain the property of ViCon until settlement in full of all payment obligations under this agreement.
2. If the customer defaults in payment, it shall be obligated, upon request, to delete the software without undue delay and return it. A request for return shall only be deemed a rescission of the agreement if ViCon expressly so states in writing. Otherwise, property subject to the reservation of title shall be realized upon otherwise, with the proceeds being credited against ViCon's claim against the customers.
V. Copyright
1. If application software is delivered, ViCon, upon the payment of all invoices under the order, grants the customer a single non-exclusive and non-transferable right to use the programs delivered.
2. The Customer acknowledges that the application software delivered contains or embodies patents, trademarks, trade secrets, know-how and other intellectual property and that these rights belong to ViCon or its upstream suppliers. The customer expressly acknowledges that these rights do not pass to the customer upon the sale or delivery of products.
VI. Infringement of property rights
1. ViCon warrants that, to its knowledge, the software delivered is free of third-party rights and its use in accordance with the agreement does not infringe on the property rights of others.
2. Should third parties bring claims against the customer for the infringement of a property right due to use of a product delivered by ViCon, the customer shall notify ViCon hereof without undue delay. At its discretion ViCon shall, at its expense, satisfy or defend against these claims or end the dispute by settlement. The customer shall provide ViCon with all reasonable support in defending against the claim. The customer grants ViCon sole authority to make decisions on the legal defense and with regard to the settlement negotiations. It shall provide ViCon with the powers of attorney needed for this purpose in particular cases.
If ViCon should become convinced that a product may possibly be the subject of a property rights complaint, at its option it may
- at its own expense, obtain for the customer the right to continue to use the product,
- at its own expense, replace or alter the product to a reasonable extent such that it no longer infringes third-party rights,
- take back the software or portions thereof and reimburse the customer for the purchase price, less a reasonable usage fee.
3. The foregoing obligations shall not affect ViCon if the goods or programs delivered, or portions thereof, were altered by the customer or were combined with programs or data not provided by ViCon and third-party claims arise therefrom.
VII. Acceptance
1. The functionality of application software is determined by a test run. If ViCon receives no notice otherwise from the customer within 14 days (of installation), the software shall be deemed accepted. An acceptance stated to the manufacturer or supplier shall also apply in relation to ViCon. This shall not apply if, prior to the expiration of the two-week period, the customer, stating reasons, asserts in writing that the delivery was not as agreed.
2. By acceptance, the customer acknowledges that the programs delivered comply with its order. A delivery deviating from the order is approved by acceptance and acknowledged to be in accordance with the agreement. The warranty period begins to run upon acceptance.
VIII. Payment terms
1. Except as otherwise agreed in writing, all prices are understood to be strictly net, free place of shipment. All shipment costs, including packaging, transportation costs and transport insurance, as well as statutory value added tax, are charged to the ordering party. All subsequent charges allowable for the time of delivery, such as additional fees, public charges, increased customs duties and newly added taxes, all being factors that may not have been taken into account, shall be deemed to have been agreed to.
2. Except as otherwise agreed in writing, invoices are due, without deduction, 14 days after receipt. A default occurs beginning on the 15th day after receipt of the invoice, without requiring any notice to pay from ViCon. ViCon may demand late payment interest of 4 percent over the relevant Deutsche Bundesbank discount rate insofar as it does not demonstrate any greater damages from delay.
3. Upon the customer’s default in acceptance, all claims arising from the delivery that it has defaulted to accept are due, irrespective of the still outstanding delivery.
4. Drafts and checks are accepted upon separate agreement and only as performance. Discount costs and bank expenses are charged to the customer. Payment shall be deemed to have been made only when the amount remitted has been irrevocably credited to an account of ViCon. With multiple claims against the customer, ViCon may freely determine against which of several undisputed claims incoming payments are to be applied, insofar as the customer makes no designation.
5. If the customer falls behind in payment, ViCon may withhold delivery under other orders of the customer. Insofar as payment of delinquent amounts is made, ViCon may determine a new delivery time at its discretion, taking its other delivery obligations into account.
6. Only undisputed claims, or those finally determined as legally valid, may be offset against amounts due to ViCon.
7. Under BGB section 273, a lien may only be exercised for existing claims under the same legal relationship. Customers are not entitled to a commercial lien under BGB section 369.
IX. Warranty
1. ViCon will forward program errors in standard software not developed by ViCon to the respective manufacturer. Error removal and all associated obligations are the responsibility of the manufacturer and not of ViCon.
2. Program errors in ViCon-developed software must be reported in writing, and specified and documented in such a way that a substantive review is possible. The customer is aware that, in accordance with the start of the art, program errors cannot be completely prevented from appearing. Hence, they do not represent defects in the legal sense. During the warranty period ViCon will eliminate program errors at no cost, and once it expires for a fee.
For the rest, ViCon does not warrant that programs will run without problems, with the agreed program functions and features, on every possible hardware and software combination.
3. In principle, the warranty for application software is limited to correction (i.e., ViCon is authorized and obligated to eliminate defects in the programs). If the correction fails when repeated and if it is unreasonable to expect the customer to accept further corrections, it may reduce the purchase price by written declaration or may cancel the agreement. ViCon may have the correction or redelivery work done by third parties.
4. Absent agreement to the contrary, the warranty period is 24 months. Any warranty claims cease if the customer, either itself or through third parties, takes measures which interfere with the application software without express agreement with ViCon.
If the products sold are used goods, the warranty period is reduced to 12 months.
5. If no quality defects, bugs or program defects reported by the customer are present, the customer shall bear the costs incurred in the review, as appropriate based on ViCon's cost rates in effect at a given time.
6. For corrective work or replacement parts, ViCon shall be liable to the same extent as for the original item(s) delivered, and only until expiration of the warranty applicable to the original item(s) delivered.
X. Liability
Damages claims of whatever kind, whether sounding in tort, under this agreement or based on pre-contractual liability, shall only lie against ViCon if an intentional or grossly negligent breach of obligation has occurred, unless primary contractual duties or other cardinal obligations were breached. To the extent that liability for damages is, accordingly, a possibility for ordinary negligence as well, the amount of damages is limited to the simple amount of the customer's consideration.
XI. Export control provisions
1. If the goods offered and/or delivered are exported outside the economic area of the Federal Republic of Germany, the buyer agrees not to breach the statutory provisions in effect at the time of export.
2. Insofar as the buyer is to export goods procured from ViCon outside the economic area of the Federal Republic of Germany, it shall, at its own expense and risk, arrange to obtain all licenses required for that purpose and to fulfill all conditions. Particular attention is to be paid to the issuance of export licenses and re-export licenses for items requiring approval.
3. If required approvals or licenses are not issued or if necessary conditions are not fulfilled without any contributory negligence of the supplier, this shall not affect the buyer's contractual relationship with the supplier. No rights against the supplier may be derived herefrom.
XII. Concluding provisions
1. The agreement associated herewith (including these General Terms and Conditions of Business, the order confirmation and all other documents to which the agreement makes reference) represents the entire agreement between the customer and ViCon regarding the sale of products.
2. Additions and amendments to these agreements, as well as a waiver of rights under this agreement, shall require written form. This also applies to an amendment to the provision in the preceding sentence.
3. This agreement is subject to the law of the Federal Republic of Germany. U.N. sales law does not apply.
4. The place of performance for all obligations hereunder is Hanover.
5. Venue for all disputes in connection with this agreement, for general merchants, is Hanover. In addition, ViCon may bring an action against the other party at its primary place of business or at the place of business of the branch to which the items acquired hereunder are delivered.
6. Should a term of this agreement be or become invalid or unenforceable, this shall not affect the validity of the remainder of the agreement. The invalid or unenforceable term of the agreement shall be deemed to have been replaced by that valid and enforceable provision which most closely approximates the economic purpose of the invalid or unenforceable clause. The same is true of gaps in the agreement.