(1) The following terms and conditions only shall apply to goods and services, in particular to software and licenses supplied by us in so far as the Buyer is acting in the course of a business or is a legal entity under public law, in addition to the respective contract and the following terms and conditions in this order. These terms and conditions shall also apply to all future supplies to the Buyer.
(2) Any terms of the Buyer which contradict or deviate from the terms and conditions below or statutory provisions – in particular the Buyer’s terms and conditions of purchase, shall not apply except where we have expressly agreed to the same in writing. Any unconditional supply of goods, performance of works or acceptance of payments shall not be construed as an acknowledgement of terms which deviate from the aforesaid.
(3) Supplies of software shall not include the Source Code.
(4) The technical specification provided by the Buyer valid on the date of shipment shall be definitive in terms of determining the quality of the goods supplied by us, which is set out in the application documentation. We shall not be bound to supply goods, particularly software, of any other quality.
2. Contractual Representations
Our quotations are subject to change without notice with regard to prices, quantity, delivery date, availability, technical data, specifications and descriptions of quality. The contract of sale shall be concluded with the order acknowledgement in written or email form by us. Except where otherwise agreed the date of order acknowledgement shall be the contract date. Any changes, supplements and/or cancellation of a contract or these terms and conditions must be in written or email form. This also applies to the cancellation of this requirement.
(1) Our prices and license fees (hereinafter Prices) are EXW (Incoterms 2010) but do not include packing, insurance, VAT, installation and training which will be charged according to the price list valid at the time the contract is made.
(2) Where the delivery or performance date is more than 3 months after the contract date we are entitled upon timely notification to the Buyer and prior to delivery or performance to adjust the price in such a manner as is necessitated by any general price development beyond our control (e.g. exchange rate fluctuations, currency regulations, customs duties changes, significant increases in material and production costs) or by changes of suppliers. For supplies of goods or services within three months from the contract date the contract price shall apply in any event.
(1) Except where otherwise agreed the Buyer shall remit the invoice amount within 14 days of the invoice date without deduction. . Upon the expiration of the deadline aforesaid the Buyer shall be deemed in default of payment in accordance with section 286 sub-section 2 no. 2 of the German Civil Code (BGB). We shall be entitled to charge interest on overdue payments in accordance with section 288 of the German Civil Code (BGB).
(2) Payments for maintenance and support services are to be remitted prior to the commencement of the maintenance period.
(3) We shall be entitled to demand down payments or payment in advance.
5. Delivery, Place of Delivery, Force Majeure
(1) Except where otherwise agreed we supply our goods and services ex works our supply centre (EXW-Incoterms 2010). Part deliveries are permitted provided that important grounds exist for this and the part delivery does not harm the overriding interests of the Buyer.
(2) Except where otherwise agreed the version of the software which is current at the delivery date shall be supplied.
(3) We shall supply the software at our option either (i) by providing the Buyer with one (1) copy of the software program on an electronic data carrier together with one (1) copy of the user documentation or (ii) by notifying the Buyer of the availability of the software online together with one (1) copy of the user documentation.
(4) In terms of determining compliance with the delivery date or the passing of risk the time at which the software and the user documentation is surrendered to the carrier shall be definitive where the software is physically shipped or alternatively the time at which the software and the user documentation are made available online and we notify the Buyer of this.
(5) Where it has been agreed that we shall install or implement the software at the Buyer’s premises the definitive date referred to in sub-clause (4) aforesaid shall be the date of transmission of the software to the Buyer’s software system.
(6) The delivery date shall be extended for such period as we (i) are waiting information from the Buyer or for the Buyer to cooperate or (ii) are prevented from performing our contractual obligations due to force majeure event such as (but not limited to) strikes or lockouts at third party plants or in our own plant, intervention by governmental authorities, statutory prohibitions or other circumstances which prevent performance for which we are not responsible together with a reasonable start up period after the obstacle (“downtime”) has ceased. During such period we shall not be deemed to be in breach of our delivery obligation. We shall inform the Buyer of any such obstacle and of its anticipated duration without delay. Where the force majeure occurs without interruption for a period of more than 3 months both parties shall be entitled to terminate the contract for cause.
6. Delivery Dates; Default; Software Maintenance
(1) Any delivery date quoted by us is an approximate date only except where expressly otherwise agreed in writing. It is subject to timely supply by our sub-suppliers.
(2) The commencement of the delivery term quoted by us shall be subject to clarification of all technical matters and proper and timely performance by the Buyer of his obligations.
(3) Where we fail to deliver upon an agreed delivery date and such failure is caused solely by an act or omission on our part the Buyer shall grant us a reasonable extension in writing of not less than 2 weeks. Where upon the expiry of the grace period, delivery is still not forthcoming and the Buyer desires to rescind the contract or demand damages in lieu of performance, the Buyer shall prior thereto set a final and reasonable deadline in writing expressly indicating his intention. The Buyer is obliged where requested by us to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance or insist upon performance.
(4) We shall maintain the software only upon the execution of a separate software maintenance agreement. Except where otherwise agreed the effective date of such software maintenance agreement shall be the definitive date referred to in section 5 sub-section 4.
(5) Compliance with the service levels is 90% guaranteed (12 months’ average for all categories).
(6) If the Buyer cancels a due date for carrying out agreed A+W performances confirmed by us with the “Project Deployment Agreement (work authorisation)” due to reasons within the control of the Buyer, then we charge the following fees based on the agreed cost rates:
- Cancellation more than 2 weeks before the deployment 0%
- Cancellation less than 2 weeks before the deployment 50%
- Cancellation one day before the deployment 75%
The fees for cancelling already booked third party services such as flights or hotel reservations will be charged in full against proof. The Buyer has the right to provide proof of lesser damages.
7. License to use the Software
(1) Unless otherwise agreed, all rights to the software, including all modifications made for the Buyer, in particular copyrights, usage rights and industrial property rights, are and shall remain the property of us or our subcontractors.
(2) Except where agreed otherwise we grant to the Buyer a revocable, non-exclusive, non-transferable, perpetual license to use the software at a single or multi user workplace at the agreed place of destination where the software is to be used. Except where expressly agreed otherwise the license shall be limited only to the agreed single or multi user workplace which shall be situated in the country in which the Buyer has its principle place of business. The license to use the software shall be exercised by the maximum number of persons covered by the price paid by the Buyer under paragraph 3.
(3) The Buyer shall only use the software for its internal operations, including use in connection with companies with which it is affiliated within the meaning of paragraph 15 of the German Company Law Act (AktG) (“Group of Companies“). In particular the following are not permitted except where we have previously consented thereto in writing (i) the operation of a computer centre for a third party or (ii) the placement of the software (e.g. as application service providing) at the disposal of external companies or groups of companies or (iii) the use of the software for the training of persons who are not employees of the Buyer or affiliated companies. Any commercial subletting is generally not permitted.
(4) Reproductions of the software are only permitted for the purpose of the contract. The Buyer shall be entitled to make back-up copies to the extent required in accordance with the generally accepted rules of technology. Back-up and online copies on portable data carriers shall be marked accordingly and the copyright symbol of the original data carrier shall be attached thereto. Where the Buyer is provided with the software online by means of a download, he shall be entitled to copy the software onto a data carrier. Our rights in relation to online copies shall correspond to those of a Buyer in relation to software received on a data carrier.
(5) The Buyer shall only be authorised to change, extend or adapt the software within the meaning of section 69 c) no. 2 the German Copyright Act (UrhG) where it is deemed by law to be indispensable.
(6) The Buyer shall only be entitled to decompile the software within the constraints of section 69 e) of the German Copyright Act (UrhG) – but not before we have failed to provide the required data and/or information within a reasonable period having been requested to do so in writing – in order to establish interoperability with other hardware and software.
(7) Where we provide the Buyer with supplementary software (e.g. patches, supplements to the user manual) or a new version (e.g. an update, upgrade) which replaces software previously provided (“old software”), these shall be subject to these terms and conditions.
(8) Where we provide a new version of the software, the Buyer’s rights in relation to the old software shall cease as soon as the Buyer actively uses the new software irrespective of the absence of an express request by us for its return. We shall grant the Buyer a three month transition period during which both versions of the software can be used in parallel.
(9) Any reproduction or reworking of the user documentation is – subject to sub-sections 3 and 4 above (insofar as the documentation is integrated into the software) – not permitted.
(10) Optionally we shall provide the Buyer with database software Microsoft SQL Server 2014 Standard. This software shall be provided by third party provider “Microsoft”. Price increases by this provider shall be passed on to the Buyer. A+W reserves the right to terminate the provision of these databases within one year.
8. Retention of Title
(1) Goods sold shall remain our property until payment of all claims under the business relationship has been received.
(2) For software supplies the following shall override paragraph 1 above: The grant of license under section 7 is subject to full payment of all of our payment claims under the contract. The Buyer shall inform us without delay of any levies of execution, seizures or other court orders or third party intervention. In the event of any breach by the Buyer, in particular default of payment, we shall be entitled upon the expiration of a reasonable notice period to terminate the contract with immediate effect; the statutory provisions dispensing with a fixed period of time shall remain unaffected.
9. Cessation of the License to use the Software
In all circumstances in which the license to use the software ceases (e.g. rescission, subsequent supplies) the Buyer shall return the software supplied without delay and shall delete all copies made insofar as he is not under a statutory obligation to retain the same for a longer period. The Buyer shall confirm compliance with the aforesaid in writing. Section 7, sub-section 6 shall remain unaffected.
10. Non-Transferability of the License to use the Software
The license granted to the Buyer is not transferable except where expressly otherwise agreed in writing. The software shall not be surrendered to third parties either temporarily or permanently or used by a third party, gratuitously or non-gratuitously, irrespective of whether the software is physically or otherwise surrendered. The underlying contract may be terminated, insofar as the software is surrendered without authorisation. This shall also apply if the majority powers in the Buyer change such that a competitor of A+W directly or indirectly demands the majority of votes of the Buyer.
11. Buyer’s obligation to cooperate and furnish Information
(1) The Buyer shall inform itself as to the main functional characteristics of the software and shall bear the risk that these correspond with his requirements.
(2) The installation of an operational hardware and software environment with adequate capacity taking into account the additional load resulting from the use of the software supplied by us shall be the sole responsibility of the Buyer.
(3) The Buyer shall thoroughly test the software before putting it into operation as to the absence of defects and its operability with the existing hardware and software configuration. This shall also apply in relation to software provided under warranty or the maintenance agreement.
(4) The Buyer shall observe our instructions as to the installation and operation of the software; he shall familiarise himself regularly with current instructions given on websites accessed via www.a-w.de and shall observe the same during operation.
(5) Where the scope of our performance includes more than the simple supply of the software, the Buyer shall provide requisite assistance free of charge e.g. in the form of manpower, working space, hardware and software, data and telecommunication equipment.
(6) The Buyer shall provide us with access to the software either directly or via data transmission for the purpose of determining and remedying a fault. We shall be entitled to verify whether the software is being used in conformity with the terms of this contract by requesting information from the Buyer as to the duration and scope of use as well as access to books and documents and the Buyer’s hardware and software. To this end the Buyer shall grant us access to its business premises during normal business hours.
(7) It shall be a material obligation upon the Buyer to make back-up copies of data and programs at adequate intervals, at least once per day, in machine readable form in order to ensure that such data and programs can be reproduced within a reasonable time and at reasonable expense.
(8) We shall assume that there are back-up copies of all data provided by the Buyer, with which we come into contact, unless the Buyer expressly instructs otherwise.
(9) Any loss or expense resulting from a breach of the aforesaid paragraphs shall be borne by the Buyer.
12. Liability for Defects
(1) The Buyer shall not be entitled to make a claim based on defective delivery or performance where the reduced value or merchantability of the goods delivered or services supplied is nominal.
(2) Where the goods delivered by us are defective and the Buyer has immediately notified us of the same in writing in accordance with section 377 of the German Commercial Code (HGB) not later than 28 days after the delivery date we shall at our option and cost deliver a replacement or remedy the defect. The Buyer shall grant us a reasonable period of not less than 28 calendar days to carry out the same. This shall not apply where the limitation period set out in section 14, sub-section 1 has expired; in such circumstances any service or repair works shall be subject to payment at the rates set out in our price list current at the time of performance.
(3) The Buyer is entitled to demand reimbursement of the costs incurred by reason of the replacement delivery or remedying of the defect insofar as such costs are not increased due to the subsequent transportation of the goods delivered to a location other than the original shipment location unless the purpose for which the goods are intended requires the same. In the event that we are not in a position to remedy the defect or deliver a replacement the Buyer is entitled to terminate the contract or to demand a reasonable reduction in the purchase price. Termination of the contract is only permissible where the Buyer prior thereto sets a final and reasonable deadline in writing expressly indicating his intention.
(4) The Buyer shall retain a right of recourse against us within the meaning of section 478 of the German Civil Code (BGB) insofar as the Buyer has not agreed terms with its customer which exceed the statutory liability for defects.
(1) Except where otherwise provided below any claim of the Buyer for damages other than those claims set out in sections 6 and 12 aforesaid are hereby excluded irrespective of the claim upon which it is based. In no event do we accept liability for any damage not incurred by the goods themselves nor do we accept any liability for loss of profit or any other indirect or consequential damage suffered by the Buyer. To the extent that our contractual liability is excluded or limited, such exclusion or limitation shall apply in relation to the personal liability of employees, representatives and vicarious agents.
(2) The aforesaid limitation of liability shall not apply where the damage incurred has been caused by wilful intent or by gross negligence, where personal injury has been suffered or where the damages claim is based on product liability law. It shall further not apply where we have given a guarantee of quality in relation to the products supplied.
(3) Where we are in breach of a material term of the contract its liability to compensate damage to property shall be limited to such loss as was typically foreseeable at the time the contract was made. A material term of the contract shall be any term which places the Buyer in the legal position provided for under the contract in terms of its content and purpose and any term which must be complied with in order to ensure proper performance of the contract and upon the performance of which the Buyer relied or could be reasonably expected to rely.
(4) Any other liability in damages is hereby excluded.
(5) We reserve the right to claim contributory negligence.
14. Limitation, Assignment, Offsetting
(1) The limitation period for claims based on sections 12 and 13 aforesaid is 1 year. The limitation period aforesaid shall not apply where longer limitation periods are prescribed by law in accordance with sections 438 s. 1 no. 2 (buildings and items used for buildings), section 479 s. 1 (rights of recourse) and section 634a s. 1 no. 2 (and building defects), or in cases of injury to life, limb or health, liability for wilful intent or gross negligence and claims for damages under product liability laws.
(2) Any assignment of the Buyer’s claims provided for in sections 12 and 13 is not permitted. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
(3) The Buyer may only offset claims against us if the claims are legally established or uncontested.
(1) During the term and on termination of this contract the parties shall not give access to third parties nor shall they make any unauthorised use for their own commercial aims of any confidential information disclosed by the other party or of which it becomes aware during their cooperation. The same shall apply in relation to the execution and content of this contract. The parties shall ensure that the employees involved in the project are also bound by the aforesaid non-disclosure obligations.
(2) The aforesaid non-disclosure obligation shall not apply in relation to information which
a) was already known to the other party prior to entering into this contract;
b) was legally obtained from a third party;
c) is or becomes the state of the art or is common knowledge;
d) has been approved for release by the disclosing party.
The non-disclosure obligation for technical information shall expire 5 years after termination of this contract.
(3) Upon termination of this contract the parties shall return all confidential documents and information unrequested to the disclosing party or at their request destroy the same and provide evidence thereof. Each party undertakes to delete any software or demo versions provided by the other party without delay.
(4) The parties shall comply with data protection laws, in particular when granted access to the other party’s plant or to its hardware and software. They shall ensure that their respective vicarious agents shall also comply with the aforesaid and that in particular that they are bound to data secrecy prior to commencement of their work. The parties do not aim to process or use individual related data upon the instruction of the other party. Any transfer of individual related data shall only occur in exceptional circumstances as an ancillary product of performance by the parties of their contractual obligations. Any individual related data shall be handled by the parties in conformity with data protection laws. Data shall only be collected to the extent necessary for performance of the contract. The scope, duration and nature of collection shall be determined by the respective contract concluded.
16. Recruitment Restriction
The Buyer may not directly or indirectly recruit, employ or otherwise engage or contact any of our employees up to two years from the end of the contract between us and the Buyer, except where the contract of employment with such employee has been terminated for at least 6 months or where we have given our prior consent to such employment in accordance with section 183 of the German Civil Code (BGB).
17. Other Matters
(1) We shall have right to subcontract any part of our obligations under this contract to third parties (vicarious agents) insofar as this is unreasonable for the Buyer.
(2) If the Buyer is a merchant, legal person under public law or a special fund under public law, the place of jurisdiction shall be the registered office of our company; if we institute proceedings, the general place of jurisdiction of the Buyer shall apply.
(3) The laws of the Federal Republic of Germany shall govern all the legal relationships between the Buyer and ourselves with the exclusion of the UN Convention on the International Sale of Goods and conflict of laws rules.
(4) In the event that any provision of these terms and conditions shall be found to be invalid, the validity of the remaining conditions shall remain unaffected.
(5) The temporary, limited or specific waiver of any term, provision or condition of the contract shall not be considered a waiver of any other term, condition or provision thereof, nor of any subsequent breach of the same term, condition or provision.
(Version: 22nd August 2018)