of EUTECT GmbH
as at June 2016
General terms and condition of EUTECT GmbH as at June 2016
EUTECT GmbH (hereinafter EUTECT) provides all goods and services to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) only on the basis of the following General Terms and Conditions. Supplementary and deviating terms and conditions of business of the customer are not recognised. This applies even if EUTECT unreservedly provides services knowing that the contracting party has contrary or deviating terms and conditions.
2. QUOTATION AND CONCLUSION OF CONTRACT
2.1 The first quotations and draft work (sketches) are generally provided free of charge and without any liability. Additional quotations and draft work shall only be carried out free of charge once the supply contract has been concluded in a legally binding manner and remains so.
2.2 The documents belonging to the quotation such as figures, drawings, specifications of weights and dimensions, are only approximate, unless expressly indicated as binding. EUTECT reserves the ownership rights and copyrights to all cost estimates, drawings and other documents; they must not be made accessible to third parties.
2.3 A contract is only concluded when EUTECT has confirmed the customer’s order in writing or conclusively accepted it by providing the contractually agreed service or raising invoices.
3. PRICES, PAYMENT, OFFSETTING (ASSEMBLY AND SERVICE CONDITIONS PRICE LIST)
3.1 The agreed price is the relevant one in each case. If such a price is not expressly agreed, the general prices of EUTECT for the provision of goods and services at the time of the conclusion of the contract apply. Unless other specified, the prices are net, i.e. they do not include statutory VAT. Packaging, transport and insurance expenses as well as all other incidental costs must be remunerated separately.
3.2 For goods or services that are not to be delivered or provided for a period of four months after the contract has been concluded, EUTECT shall be entitled to adjust the price according to wage and material costs increases that have occurred in the meantime, provided the delay is caused for reasons that are not within the scope of responsibility of EUTECT.
3.3 Payments must be made net within 14 days after the invoice date, unless the parties have agreed another arrangement in this regard.The payment is deemed to have been made on the date on which EUTECT can draw on the amount owed. In the case of the acceptance of cheques, payment is deemed to have been made once the cheque has been redeemed within a reasonable period following lodgment and the amount has been definitively credited to EUTECT.
3.4 In the event of a delay in payment, EUTECT shall be entitled to charge default interest to the legally stipulated extent. EUTECT reserves the right to apply higher interest rates for another legal reason.
3.5 If a significant deterioration in the financial circumstances of the customer occurs after the contract has been concluded or such a deterioration of the financial circumstances becomes evident after the contract has been concluded and the payment claims of EUTECT are thus jeopardised, EUTECT shall be entitled to refuse further execution of the contract until the customer executes counterperformance or furnishes security for the payment.
3.6 In accordance with section 366 (2) and section 367 of the German Civil Code, payments by the customer are always credited to claims that are already due, unless another provision applies to the customer.
3.7 The offsetting of a customer claim against EUTECT claims is only permissible if the customer’s claim is recognised by EUTECT, is undisputed or was established in law, unless the customer claim proposed for offsetting comprises costs for eliminating defects or completion costs or compensation claims arising out of the same legal relationship from which the EUTECT claim arose.
3.8 For additional goods and services that are not based on a written quotation, the prices set out in the current Assembly and Service Conditions, which are available upon request, are deemed to be agreed.
3.9 The assignment of claims arising out of this contractual relationship is only permitted following the prior written consent of EUTECT. There is no entitlement to the granting of such consent. Section 354a of the German Commercial Code (HGB) remains unaffected.
4. TIME PERIODS AND DUE DATES
4.1 The agreed delivery periods or periods for completion only begin once all technical questions required for fulfilment of the performance have been clarified. Compliance with the agreed delivery time periods or periods for completion is subject to fulfilment of the contractual obligations on the part of the customer.
4.2 In the event of non-compliance with the agreed due dates, the customer must grant EUTECT a reasonable grace period in writing for the provision of the contractually owed performance.
4.3 In cases of force majeure, labour disputes and similar events for this EUTECT is not responsible, EUTECT’s performance deadline shall be extended to an appropriate extent. If the events impeding performance last for longer than 3 months, each party can withdraw from the contract. Before withdrawing from the contract, the parties will attempt to adapt the contract accordingly to the economic interests of the parties. Legal withdrawal rights that have already effectively arisen remain unaffected. EUTECT shall not be liable for delays in performance due to events for which EUTECT is not responsible and shall not pay compensation for any expenses or damages that occur as a result.
4.4 Subsequent changes or additions by the customer that have been agreed with EUTECT shall lead to a reasonable extension of the agreed due dates and time periods.
4.5 EUTECT shall be entitled to make reasonable partial deliveries of goods or services. Early deliveries of goods or services are permitted unless expressly otherwise agreed.
4.6 If the customer falls into default of acceptance, EUTECT may demand compensation for the usual storage costs as well as compensation for any additional expenses for storage and receipt of the contractual item. Furthermore, the risk of accidental loss or accidental deterioration during the time in which the customer is in default of acceptance is transferred to the customer. Further legal claims by EUTECT remain unaffected by this.
4.7 For debtor’s delay for which it is responsible, EUTECT shall be liable in accordance with section 7.
5. OBLIGATIONS OF THE CUSTOMER TO COOPERATE
5.1 If the provision of the agreed services requires cooperation by the customer, the customer must ensure that all of the required and appropriate information and data is provided to EUTECT in good time and in the required quality. In the case of programming work, the customer will provide the required computing power, test data and data collection capacity to EUTECT in good time and to an adequate extent.
The customer undertakes, upon first request, to provide VPN access will full access to the machine and shall ensure that this access is free of charge and in compliance with data protection regulations.
The customer undertakes, upon first request, to provide an FTP server free of charge and in compliance with data protection regulations and to operate it at its own expense. The customer shall ensure that everybody involved in a project has access to the server and that all relevant project data is stored there.
5.2 If the customer does not meet its obligations to cooperate, or does not meet these completely or in good time, EUTECT’s performance deadline shall be extended accordingly until such time as the customer meets its obligations to cooperate. Furthermore, the customer must reimburse EUTECT for expenses and damages caused as a result, unless the customer is not responsible for the breaches of duty.
6. WARRANTY AND RIGHTS REGARDING DEFECTS
6.1 Any defect claims for new issues become time-barred within 12 months after handover of the contractual object. This provision does not apply insofar as longer periods of limitation are mandatorily prescribed by law as well as in the case of liability for damages arising from injury to life, limb or health as well as for liability for any damage that is based on an intentional or grossly negligent breach of duty. The period of limitation for recourse claims in accordance with section 478 of the German Civil Code remains unaffected.
6.2 Any defects must be notified to EUTECT in writing within a reasonable time period. Otherwise, the assertion of claims for defects is excluded.
6.3 The customer can only claim compensation in accordance with the below section 7.
6.4 Product guarantees, performance commitments, performance guarantees as well as compliance and clearance certificates from the manufacturer that are passed on with the scope of delivery and whose author is not EUTECT do not constitute a guarantee declaration or commitments on the part of EUTECT.
6.5 Parts that are replaced within the scope of supplementary performance or subsequent delivery become the property of EUTECT and, upon request, the customer must return these to EUTECT at the expense of EUTECT. For compensation claims under warranty, the provisions of section 7 also apply.
7.1 EUTECT shall be liable to pay compensation for damages and for futile expenses within the meaning of section 284 of the German Civil Code (hereinafter “compensation”) on account of defects or on account of breach of other contractual or extracontractual obligations, especially tortious actions, only in the case of intent or gross negligence. The above liability restriction does not apply in the event of injury to life, limb or health, in the case of the acceptance of a warranty or procurement risk, in the case of the breach of essential contractual obligations as well as in the event of liability in accordance with the German Product Liability Act.
7.2 Compensation on account of the breach of essential contractual obligations is limited to compensation for contract-typical damages that EUTECT, based on circumstances recognisable to EUTECT, would have had to have foreseen as a possible consequence at the time of conclusion of the contract, insofar as there is no intent or gross negligence or insofar as no liability exists on the basis of injury to life, limb or health, the acceptance of a warranty or procurement risk, as well as in accordance with the German Product Liability Act.
7.3 Essential contractual obligations within the meaning of sections 7.1 and 7.2 are such obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and on which the customer regularly relies.
7.4 Contract-typical, foreseeable damage within the meaning of 7.2 comprises:
a) per claim: Damages up to a maximum of the net remuneration for the contract in question.
b) per calendar year: Damages up to a maximum of the net sales value at which the customer procured products or services from EUTECT in the previous calendar year. In the first year of the contract, compensation up to a maximum of the net sales value at which the customer had procured services from EUTECT up to the occurrence of the claim.
In any case, typical contractual damages within the meaning of section 7.2 do not comprise indirect damages (e.g. lost profit or damages that result from production stoppages).
7.5 Irrespective of section 7.3, when establishing an amount that EUTECT must pay the customer as compensation, the economic circumstances of EUTECT, the type, scope and duration of the business relationship, any contributions to the cause and/or fault on the part of the customer in accordance with section 254 of the German Civil Code and a particularly unfavourable installation situation of the contractual object must be given adequate consideration to the benefit of EUTECT. In particular, the compensation payments, costs and expenses that EUTECT has to bear must be commensurate with the value of the contractually agreed service.
7.6 All limitations of liability apply to the same extent for the vicarious agents and assistants of EUTECT.
7.7 The above provisions to not entail a change to the burden of proof to the disadvantage of the customer.
8. RETENTION OF TITLE
8.1 EUTECT shall retain title to all delivered items until all receivables arising from the supply contract have been paid in full.
8.2 Until such time as ownership has not yet been transferred to the customer, the customer is obliged to treat the contractual object with care. In particular, if the contractual object is worth more than EUR 10,000.00, the customer is obliged to adequately insure the contractual object for the new value against theft and damage caused by fire and water and to do so at its own expense. If maintenance and inspection work must be carried out, the customer must carry this out in good time at its own expense. So long as ownership has not yet been transferred, the customer must inform EUTECT immediately in writing if the delivered item is seized or exposed to other interventions by a third party. Insofar as the third party is unable to reimburse EUTECT for the judicial and extrajudicial costs of a lawsuit pursuant to section 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by EUTECT.
8.3 The customer is entitled to resell the reserved goods in normal business transactions. The customer here now already assigns to EUTECT the buyer’s receivables arising from the resale of the reserved goods in the amount of the final invoice amount agreed with EUTECT (including VAT). This assignment applies irrespective of whether the contractual object was resold with or without processing. The customer remains authorised to collect the claim even after assignment. EUTECT remains authorised to collect the claim itself. EUTECT shall, however, not collect the claim so long as the customer fulfils its payment obligations from the collected proceeds, is not in default of payment and, in particular, provided that no insolvency proceedings have been opened against the customer and the customer has not suspended payment.
8.4 The editing/processing or reconfiguration of the contractual object by the customer shall always be carried out in the name of and on behalf of EUTECT. In this case, the expectant right of the customer to the contractual object continues with the reconfigured item. If the contractual item is processed with other items that do not belong to EUTECT, EUTECT shall acquire co-ownership of the new item in the ratio of the objective value of the contractual item to the other items to be adapted at the time of the processing. The same applies in the case of mixing. If the mixing takes place in such a way that the item of the buyer is to be considered the main item, it is agreed that the customer transfers proportional co-ownership to EUTECT and retains the so created sole ownership or co-ownership for EUTECT. To secure the claims of EUTECT against the buyer, the buyer shall also assign such claims against third parties to EUTECT that accrued to the buyer from combining the reserved goods with real property; EUTECT accepts this assignment herewith.
8.5 EUTECT undertakes to release the securities to which it is entitled at the request of the customer, provided their value exceeds the claims to be secured by more than 20%.
8.6 EUTECT is entitled to all rights in respect of all descriptions, plans, drawings, and other documents or materials provided to the customer, in particular ownership rights and copyrights as well as the right of utilisation, reproduction and distribution.
9. USAGE RIGHTS TO THE SOFTWARE, INDUSTRIAL PROPERTY RIGHTS OF THIRD PARTIES
9.1 All rights to the software that is provided to the customer or created for the customer, especially copyrights, ancillary copyrights and related property rights, remain with EUTECT or the respective rights owners, unless expressly agreed otherwise in the contract. This also applies if the software was created according to the specifications of the customer or with the cooperation of the customer.
9.2 If EUTECT needs the source code of software to be provided by the customer, the customer shall make this available for use to EUTECT free of charge.
9.3 The customer is prohibited from duplicating, distributing, passing on, modifying, translating, expanding and/or making any other changes to the software supplied by EUTECT as well as from decompiling or using the software as a basis for developing similar software unless such actions are expressly permitted under the contract or the law.
9.4 Otherwise, the separate licensing terms of the respective software apply, especially for the software of third-party providers.
9.5 Unless otherwise expressly agreed in writing, the customer receives only a simple right of use to the software to the extent that is required in respect of the purpose of the contract. Any usage of the software that goes beyond the respective licensing terms of the manufacturer or EUTECT, the contractual agreement or the contractually stipulated purposes requires the written consent of EUTECT.
9.6 The customer is permitted to make the necessary backup copies, unless specified otherwise in the respective licence agreement. Backup copies on movable data media are to be labelled as such and the copyright notice of the original data media must be affixed.
9.7 For each case of unlawful use that exceeds the simple right of use granted, EUTECT reserves all claims, especially the assertion of claims for damages.
9.8 If a third party asserts claims that oppose the simple right of use granted to the customer, the customer must inform EUTECT of this immediately in writing. The customer shall not recognise the claims of the third party without the consent of EUTECT. EUTECT shall defend against the claims of the third party.
10.1 Following completion by EUTECT of the services that require acceptance, the customer must convince itself of the proper execution and sign an acceptance report upon request. The customer cannot refuse acceptance on account of insignificant defects.
10.2 By signing, the customer accepts that the agreed services have been fulfilled as per the contract.
10.3 Acceptance of the performance is deemed to be granted upon the signing of the acceptance report, at the latest, however, upon the (re)commissioning and/or use of the contractual object without any complaints.
11 EXTENDED LIEN
EUTECT is entitled, on account of outstanding receivables from the respective contract or the ongoing business relationship, to a contractual lien on items that came into the possession of EUTECT in connection with the respective contract. EUTECT may also assert the contractual lien on account of receivables from earlier services, provided these are connected with the item in question.
12 DATA PROTECTION, NON-DISCLOSURE
12.1 EUTECT points out to the customer that the data recorded within the scope of the conclusion of the contract shall, in compliance with the provisions of the Federal Data Protection Act (BDSG), be collected, processed and used by EUTECT for fulfilment of the obligations arising from the contracts concluded with the customer. For the purpose of fulfilment of the contract and credit assessment, this data may also be transmitted to affiliated companies of EUTECT or to its agents responsible for the fulfilment.
12.2 The customer is obliged to treat all commercial and technical details to which it has access or of which it becomes aware within the scope of performing the contract as a trade secret, so long as EUTECT has not made this information publicly accessible.
13 FINAL PROVISIONS
13.1 The contractual relationships are subject solely to the law of the Federal Republic of Germany, excluding conflict of law provisions. The German wording is always authoritative for the interpretation of contracts.
13.2 The place of fulfilment for deliveries and payments is the registered office of EUTECT.
13.3 The sole place of jurisdiction for all present and future claims arising out of business relations with merchants, including claims based on bills of exchange or cheques, shall be Tübingen. The same place of jurisdiction applies if the customer does not have any general place of jurisdiction in Germany or moved its place of jurisdiction outside of Germany after the contract was concluded. EUTECT is also entitled at its option to bring an action at the headquarters of the customer.
EUTECT considers people and the environment to be of paramount importance. We therefore undertake to manufacture our products in a manner that spares resources and to systematically utilise energy-saving potential during manufacturing processes and transportation. We pay a great deal of attention to environmentally-friendly alternatives in the selection of sources of energy and raw materials and to rigorous approaches to waste prevention and product recycling.