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Systeme und Informatikanwendungen Nikisch GmbHsysGen GmbH - Am Hallacker 48a - 28327 Bremen - firstname.lastname@example.org
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Terms and Conditions
TERMS & CONDITION
These general terms and conditions apply to all business transactions of our company (delivery of computer systems, repairs, installations, consultations, deliveries and services of another kind), in particular they are part of all offers and contracts, also in current and future business relations. The general business relations shall apply to all future transactions unless they are expressly amended or excluded in whole or in part. We do not accept deviating terms and conditions of our contractual partners, even if we do not expressly object to them.
Other terms and conditions of the customer have no legal validity, without it being our express objection, unless otherwise agreed. The non-recognition of our terms and conditions must be indicated immediately and expressly. If the customer does not contradict also after the confirmation of order given by us, this is considered as agreement with our terms and conditions.
An acceptance of the delivery is considered in any case as agreement with our terms and conditions.
sysGen is entitled to assign the claims from the business relationship.
All our offers, cost estimates, price lists and other advertising documents are subject to confirmation unless they are expressly designated as binding in writing. The order shall only become binding upon our written confirmation. We reserve ownership and copyright to all our documents (offers, cost estimates, price lists and other advertising documents). Without our consent, these documents may not be used elsewhere, in particular not copied or made accessible to third parties. (Our representatives and travelers have no power of attorney to conclude contracts).
DELIVERY TERMS AND DATES, TRANSFER OF RISK
Unless we have expressly agreed a delivery time, all details are only approximate based on the circumstances known at the time the order was placed; the delivery time is stated to the best of our knowledge, but is non-binding. We are entitled to make reasonable partial deliveries to the customer without this affecting the customer's rights in the event of a delay in delivery. Delays in delivery and performance due to force majeure and due to events which make delivery significantly more difficult or impossible for us - this includes in particular natural disasters, strikes, lockouts, cancellation of flights or flight quotas, official orders, etc. - shall not affect the rights of the customer. - even if they occur at suppliers of us or our sub-suppliers, we shall not be responsible even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or - insofar as the delay is not due to strike or lockout - to withdraw from the contract in whole or in part because of the part not yet fulfilled. If the hindrance lasts longer than three months, the buyer is also entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery period is extended or if we are released from our obligation, the purchaser may not derive any claims for damages from this. We can only invoke the aforementioned circumstances if we inform the buyer immediately.
The goods are always shipped at the expense and risk of the buyer. We are not liable for damage and loss during transport. If the buyer wishes a special shipping method, additional costs will be borne by him, costs for collection by the buyer will not be reimbursed. The goods to be transported will only be insured if this has been specifically agreed, and even then only at the expense of the customer.
DELIVERY TERMS AND DATES, TRANSFER OF RISK
Our prices are quoted in Euro (€) plus value added tax, costs of packaging, delivery, insurance and installation and other ancillary costs as well as customs duties ex warehouse Bremen. If the prices of our suppliers increase in the period between conclusion of the contract and delivery - also due to exchange rate fluctuations - sysGen shall also be entitled to increase the prices accordingly.
Our invoices are due 10 days after invoice date, payable in Euro ( € ) without any deduction - first customer business against advance payment. If the customer is in default with his payment obligation, we are entitled to charge default interest of 2% above the respective discount rate of the Deutsche Bundesbank without the need for individual proof, unless the customer proves a lower damage to us. We reserve the right to assert a demonstrably higher claim for damages.
The set-off against our claims is only permissible with undisputed or legally established counterclaims. The same shall apply to the assertion of rights of retention.
The acceptance of payment substitutes (bills of exchange, cheques), to which we are not obliged, does not constitute fulfilment or deferment of our claim. Credits on bills of exchange and cheques shall be made subject to receipt and with value date of the day on which the amount was credited to our account or on which we can dispose of the equivalent value. The costs of custody and redemption, in particular discount charges, shall be borne by the purchaser.
If the deferment of payment or the acceptance of bills of exchange is agreed with the buyer, our total claim shall become due regardless of this agreement and the term of the bills of exchange, if the buyer defaults on the agreed payments or if the redemption of payment substitutes fails for reasons for which the buyer is responsible, if the buyer's financial circumstances deteriorate considerably, if the buyer disputes our claim or otherwise endangers it. In the event of a deterioration in the financial situation, we shall also be entitled to make services not yet rendered dependent on the prior payment of the purchase price or the provision of securities. If the buyer does not comply with the obligation to perform in advance due to deterioration of his financial situation, we may withdraw from the contract after setting a reasonable grace period and threatening to refuse performance or demand damages for non-performance. Payments of the buyer are always credited in accordance with § 366 BGB, if there are cost or interest claims in addition to a principal debt, the performance is always credited first against the costs, then against the interest and only afterwards against the principal claim.
We reserve the title to all delivered goods until full payment of all claims arising from the business relationship. In the case of a current account, the reservation of title shall be deemed as security for the respective balance claim. If the value of the items delivered under retention of title serving as security and of our other securities exceeds our total claim by more than 20%, we shall be obliged to release securities of our choice at the request of our contractual partner.
If our goods are transformed or processed, mixed or combined with other objects and our ownership of the reserved goods (§§947, 948, 950 BGB) expires as a result, it is hereby agreed that the ownership of the buyer in the mixed stock or the uniform item shall pass to us to the extent of the invoice value of our reserved goods and that the buyer shall store these goods for us free of charge. The goods resulting from the processing or from the combination or mixing are goods subject to retention of title within the meaning of these provisions. The combination, processing or transformation of the goods subject to retention of title shall take place exclusively for sysGen without any obligation on its part. The purchaser is obliged to take out an appropriate insurance policy for the reserved goods.
In the event of breach of contract by the purchaser, in particular default in payment, we shall be entitled to take the goods subject to retention of title as security for the value of the due claims without this constituting withdrawal from the contract. After taking back the goods, we shall be entitled to sell them. The proceeds from the sale less reasonable costs of sale shall be set off against the Buyer's liabilities. The purchaser must inform us immediately in writing of any attempts at seizure or other interventions by third parties in the reserved goods so that we can take countermeasures. If such notification is culpably omitted, we shall be entitled to withdraw from the contract. The purchaser must object to any attempts to seize the goods with reference to our reservation of title. As far as the costs of a possibly necessary third party action are not recoverable, the buyer has to reimburse us these costs.
The buyer may resell the reserved goods, as long as he is not in default of payment, in the ordinary course of business to his general terms and conditions.
The buyer hereby assigns to us in full all claims and ancillary rights arising from the sale of the reserved goods against his buyer or third parties, irrespective of whether the sale is to one or more buyers. If the reserved goods are sold after transformation, combination, mixing or processing with other goods not belonging to us, the assignment shall only be made to the amount of our co-ownership share in the sold item or the sold inventory.
The buyer is entitled to collect the claims assigned to us until revoked, without this affecting our authority to collect the claim ourselves. However, we undertake not to collect the assigned claims ourselves as long as the purchaser meets his payment obligations from the proceeds received, is not in default of payment and no application has been made for the opening of bankruptcy or composition proceedings or payments have not been suspended. If, on the other hand, the aforementioned conditions are met, we shall be entitled to revoke the purchaser's collection authorisation and demand that the purchaser informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors of the assignment. We may also be entitled to notify the debtors ourselves.
sysGen does not guarantee the resaleability of the sold items or their suitability for a specific purpose. sysGen shall only be liable for defects and the absence of expressly warranted characteristics in accordance with the following provisions:
The customer must inspect the goods immediately after delivery for obvious deviations in quantity or defects and report such defects in writing within one week. If the notification is omitted, the purchaser can no longer derive any rights from the defect.
If components of third-party manufacturers become unusable as a result of a defect already existing within six months of delivery, in particular faulty manufacture or design, the purchaser shall first grant the manufacturer or sysGen the opportunity to repair or replace them. Only when these warranty actions have finally failed may the purchaser demand a reduction of the purchase price (abatement) or rescission of the contract (rescission). sysGen shall only be liable for damages if the delivered items lack an expressly warranted characteristic at the time of delivery.
In addition to the warranty for defects, sysGen is liable for all other legal grounds - including pre-contractual fault - for damages only in the case of its own intent, fault or serious organisational fault as well as in the case of intent and gross negligence on the part of executive employees. sysGen shall also be liable on the merits in the event of breach of material contractual obligations due to its own slight negligence or gross negligence on the part of vicarious agents. In such cases, however, liability shall be limited to the amount of our liability insurance. We grant customers access to the policy upon request. Liability for simple negligence is excluded for consequential damages insofar as these exceed the damage typically to be expected. The personal liability of employees who act as vicarious agents of sysGen is excluded to the extent that they can only be accused of simple negligence.
SPECIAL CONDITIONS SOFTWARE
These provisions supplement the general terms and conditions insofar as sold software is installed by sysGen or manufactured by sysGen on behalf of the customer.
The Principal shall provide sysGen with all support necessary for the execution of the order and in particular shall provide sysGen with documents, information and other material on the agreed dates and in the agreed manner. sysGen shall use such material carefully and treat the information contained therein confidentially, unless it is obvious. sysGen may assume that the documents, information or other materials made available are correct and complete. sysGen is only obliged to demand or correct if the documents made available by Customer are obviously incorrect or incomplete. If errors occur in the software to be produced or set up by sysGen due to material which is not obviously defective or incomplete, no liability shall be assumed for such errors. Delays caused by incomplete or delayed material shall be at the expense of the Principal, whom sysGen will inform about the occurring delay and the necessary additional expenses.
The tested programs (standard packages or individual software) shall be demonstrated to the customer and made available to him after readiness for operation. Standard software must be accepted immediately, individual software at the latest after practical testing within a period of two weeks by written declaration. If the declaration is omitted, the software shall be deemed to have been accepted at the latest three weeks after delivery.
Supplementary to clauses 6 and 7 of the General Terms and Conditions, the following shall apply: sysGen shall not be liable in the event of simple negligence for data losses suffered by the client because the client can insure himself against this risk by producing backup copies of his data, which is necessary anyway in the case of constant EDP use. sysGen rejects warranty claims if the client or third parties have interfered with programs and errors are caused by such interferences. sysGen shall not be liable for the profitable usability of the software through rationalisation success.
The maintenance of programs is only performed by sysGen on the basis of special maintenance contracts.
Upon delivery of the work results and payment of the full remuneration, Customer acquires a non-transferable, non-exclusive right of use to the work results. Any further use, in particular commercial exploitation of originals, copies or know-how, requires the prior consent of sysGen. sysGen retains the copyright and exploitation rights to the work results. If the client violates these agreements, he shall owe sysGen an additional usage fee in the amount of the price paid for the software without the requirement of an individual proof. sysGen reserves the right to prove higher damages as well as the right to prove lower damages in individual cases.
SPECIAL CONDITIONS HARDWARE
The installation of hardware by sysGen shall take place exclusively under the following conditions and at the expense of the Customer, unless expressly agreed otherwise:
The prerequisite for installation is the timely provision of the installation space for the devices in accordance with the installation instructions of sysGen and the timely notification of sysGen. The provision of the room within three months after delivery shall be deemed to have been made in due time, in the case of dispatch within three months after notification of readiness for dispatch. If the provision is delayed, sysGen shall no longer be bound by the agreed installation dates.
The customer has to take care of the house transport of the devices himself. Unpacking and installation of the devices including accessories must be carried out under the supervision and guidance of an employee of sysGen. The prerequisite for installation by sysGen is that the devices are not modified, exposed to extraordinary physical or electrical or electro-magnetic loads, improperly handled or otherwise damaged without the written consent of sysGen.
sysGen recommends concluding a separate maintenance agreement between the customer and sysGen for the delivered computer systems including system expansion from the installation date. If such a maintenance agreement is concluded up to the time of installation, the installation and commissioning shall be free of charge.
The liability is governed by Clauses 6 + 7 of the General Terms and Conditions and Clause 4 of the Special Conditions for Software accordingly.
The place of performance and jurisdiction shall be Bremen, Germany. German law shall apply to all contracts. The validity of third-party rights is excluded, as are the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG). The invalidity of any provision of these General Terms and Conditions shall not affect the validity of the remaining provisions.