General Terms & Conditions for Sale Contracts
COMSOFT GmbH General Terms & Conditions for Sale Contracts
Status: December 2011
Contents
1 Parties
In this document, "Comsoft", refers to COMSOFT GmbH, 76627 Karlsruhe, Germany. The terms "you" and "your" refer to our clients.
2 General
(1) The terms and conditions set out below form part of any contracts concluded with Comsoft in respect of supplying you with goods or services (sales contract). These terms and conditions apply only if you are a German or foreign public legal entity or fund or if you are a "business client". For the purposes of these terms and conditions, a "business client" is a client (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or its self-employed professional activity (Section 14 (1) of the German Civil Code (BGB)).
(2) In particular, these terms and conditions govern the sale and delivery of software and hardware products ("goods") used for navigation and air traffic management systems or for industrial communication products, and technical support or other services. They apply in accordance with the most recent version and to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction.
(3) These terms and conditions apply exclusively. Differing or contrary terms do not apply except if expressly agreed upon, even in the case that Comsoft performs delivery despite our knowledge of differing or contrary terms.
(4) Any references to legal regulations and statutory laws are made for reasons of clarity and transparency only. Legal regulations and statutory laws generally apply without limitation except if and insofar as these terms and conditions expressly change or exclude them.
3 Offers; Orders
Comsoft offers are not binding. By placing an order, you make a binding offer to purchase goods or services from Comsoft. Comsoft may accept your offer within two weeks. Your offer shall be deemed to be accepted by Comsoft either upon written acceptance of the order or on dispatch of the product by Comsoft.
4 Subject Matter of Contract
(1) All business relations between the parties shall be governed by the contents of the written contract only, including these terms and conditions. The written contract, including these terms and conditions, constitutes the complete and final agreement between the parties and supersedes all prior discussions or understandings between them except in the event that the latter were expressly declared to be binding.
(2) In general, any product specifications, technical drawings and images provided by Comsoft are intended for informational purposes only. They are only binding if exact compliance with the product specifications is required for the goods to be usable for their intended purpose. Comsoft goods are subject to variations recognized by trade practice. Comsoft may substitute parts of goods as long as the end product fulfills its intended purpose.
5 Export and Import Licenses
(1) Comsoft will do its utmost to obtain any export licenses required by law. However, Comsoft does not guarantee that the required export licenses will be granted. The client is responsible for obtaining the required export licenses for Comsoft. The client is also responsible for stating with binding effect if the client uses Comsoft goods exclusively or if Comsoft goods are intended to be passed on to third parties (e.g. to the end user). In the event that our goods are intended to be passed on to the end user, you are obliged to provide us with all documents or information (e.g. company profile, end-use certificate) which the authorities demand for the purpose of export licenses. If these documents or information cannot be provided even after a reasonable period of time has been set and finally expired, Comsoft is entitled to rescind the contract.
(2) You shall be responsible for obtaining any import licenses that might be required.
6 Prices and Payment
(1) Prices are calculated in EURO. Prices are CIP as defined by INCOTERMS 2010, i.e. they include carriage and insurance to the place of destination. Prices are exclusive of the respective statutory VAT and possible expenses. Any customs duties, levies, public fees and charges, including those charged for export licenses, shall be borne by you. If the place of destination is outside Germany, you shall also bear any taxes charged by the country of destination.
(2) If prices are based on the Comsoft list prices and the delivery of goods is to be executed four months or later after the conclusion of the contract, prices are subject to change according to the Comsoft current price list valid at that point. The new prices will take into account any discounts previously agreed on.
(3) The purchase price is due and payable net within 30 days from the date of invoice. Failure to pay within this time period shall be considered default. From the default date, default interest in the amount of 8 percentage points above the respective base interest rate p. a. shall accrue. If you are a corporation, limited liability company, commercial partnership or otherwise operate a commercial business ("Kaufmann" within the meaning of Section 1 (1) of the German Commercial Code (HGB)), the afore-mentioned default interest shall accrue from the due date. Comsoft reserves all rights to claim further damages caused by your default.
(4) If, after conclusion of the contract, any incidents which give rise to doubts about your creditworthiness shall occur and which endanger your payments to Comsoft, Comsoft may choose to defer further shipments or services and demand prepayments or a security deposit prior to resuming Comsoft shipments or services. If you do not comply with Comsoft's demand for prepayment or for depositing a security within a reasonable period of time which shall be set by Comsoft, Comsoft shall be entitled to rescind the contract and claim damages for non-performance by you.
(5) Invoices are payable by bank transfer (wire transfer). Comsoft will not accept any other methods of payment unless otherwise explicitly agreed in writing by Comsoft.
(6) Without prejudice to section 9, paragraph (4) of these terms and conditions, you shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by Comsoft or been determined by a final and binding decision.
7 Place of Performance, Delivery, Risk of Loss
(1) Unless otherwise agreed, place of performance shall be Karlsruhe, Germany.
(2) Unless otherwise agreed, delivery shall be CIP as defined by INCOTERMS 2010. Comsoft may opt to select the mode of transportation, including the carrier, the method of shipping, and the packaging.
(3) The risk of loss or damage to the goods shall pass to you upon delivery at the latest. The goods shall be deemed delivered if you are in delay of acceptance. If delivery is CIP as defined by INCOTERMS 2010, the risk of loss or damage to the goods and the risk of delay in delivery shall pass to you upon delivery to the first carrier. The same applies in case of partial delivery.
(4) If delivery is CIP, as defined by INCOTERMS 2010, Comsoft will obtain insurance that covers damages to the products caused by water, fire, breakage, or improper transportation, at Comsoft's expense.
8 Time for Delivery, Delay
(1) The delivery period for the goods and for full performance of the contract (herein together referred to as "time for delivery") shall be expressly agreed on or otherwise determined by Comsoft at the time of acceptance of your order. The delivery period shall not begin until Comsoft has been granted the required export licenses, and after Comsoft has been furnished with all documents required to fulfil your order, such as governmental authorizations or clearances from your country. The same applies as long as you do not pay a deposit if payment of such deposit has been agreed. Delivery shall not be deemed delayed if we dispatch the goods or notify you that the goods are ready for dispatch within the agreed time for delivery.
(2) The time for delivery shall be extended for the period of delay in case of any delay for which Comsoft is not responsible according to the following rules.
(3) Comsoft's delivery shall be deemed delayed at the time determined by the applicable laws. In all cases, Comsoft's delivery shall not be deemed delayed until we have received overdue notice from you. Comsoft shall not be responsible for delays, failures or omissions under this contract due to any cause beyond Comsoft's control, including labour disputes, war, mobilization, political disturbances, governmental intervention of various kinds, including any delay in issuance or denial of any required licenses, in particular export licenses, riots, fires, earthquakes, floods, storms, lightning, epidemics, power cuts, interference with transport, extensive operational breakdowns, or by deficient or delayed performance on the part of Comsoft suppliers, except if such event is due to Comsoft's own misconduct.
(4) If Comsoft is unable to perform within the agreed time for delivery due to causes for which Comsoft is not responsible (unavailability of delivery), Comsoft will give you prompt notification and inform you of the anticipated time for delivery. If by the latter time the delivery is still unavailable, Comsoft may rescind the contract in whole or in part. In this event, Comsoft will reimburse you any payments made to Comsoft for the delivery. In particular, the delivery shall be deemed unavailable if (1) Comsoft's suppliers fail to perform in time and (2) the contract with Comsoft's supplier to deliver its goods provides the same security for delivery in comparison with Comsoft's contract with you (at least the same goods and volume).
Comsoft's statutory rights to rescind the contract shall remain unaffected. In the event that Comsoft doesn't fulfill their duty to perform, for example if performance is impossible or unreasonable, the statutory laws on the implementation or liquidation of the contract shall remain unaffected.
Your rights to rescind the contract pursuant to section 9 of these terms and conditions shall also remain unaffected.
(5) In case of default in acceptance, any other breach of duty by you, or any other event that causes a delay in delivery for which you are responsible, Comsoft is entitled to claim any resulting damage. These include, but are not limited to, additional expenses, in particular expenses for the storage of Comsoft goods. In compensation for these damages, Comsoft may charge you a fixed rate of 0.5 % of the invoice amount per month, starting one month after Comsoft have given you notification that the goods are ready to dispatch. Further damages remain unaffected; but any fixed rate payments shall be discounted. Comsoft's statutory rights remain unaffected, including Comsoft's right to terminate the contract. You may provide evidence that Comsoft did not suffer any damages at all or that the damage suffered by Comsoft is significantly smaller than the fixed rate.
(6) Our delivery is conditional upon timely and proper performance of all your contractual duties.
(7) Comsoft is entitled to make partial deliveries only if (1) the goods can be used separately, and (2) the partial delivery does not cause you any additional costs or expenses (except if Comsoft has agreed to compensate you for these additional costs and expenses).
9 Warranty
(1) Warranty for defective goods shall be based primarily on the agreement of the condition of the goods. If the condition of the goods has not been agreed upon, it shall be determined in accordance with section 434 paragraph 1 of the German Civil Code (BGB) whether Comsoft's goods are defective or not.
(2) Precondition for any warranty claim is your full compliance with all requirements regarding inspection and objection established by sections 377 and 381 of the German Commercial Code (HGB).
The goods shall be inspected immediately upon delivery by the client. Complaints regarding any defects or shortcomings in the goods, including incorrect delivery, shall be made promptly in writing, specifying the nature and extent of the defect or shortcomings in reasonable detail. Complaints shall be considered as prompt if the complaint is sent within seven days after the goods have been delivered or, if a defect occurs at a later time, within seven days after the defect has been detected.
If you fail to inspect the goods and notify Comsoft of defects or shortcomings in time, all your rights with respect to any claims against COMSOFT arising from the defect or shortcomings shall be completely waived.
(3) In the event that there is a defect or shortcomings in Comsoft's goods for which Comsoft is responsible and you have complained promptly, Comsoft shall, choose to either remedy the defect (e.g. by repair or reprocessing) or, after the return of the defective goods to Comsoft, to deliver new, conforming goods (replacement).
Comsoft shall not be held responsible for defects caused by negligence or mistreatment of the goods on your part, excessive wear and tear, or failure to observe Comsoft's maintenance, servicing and cleaning instructions.
(4) Comsoft may suspend remedying the defect or replacing the goods until you pay the purchase price for these goods. However, you are entitled to retain a reasonable part of the purchase price, which shall be in proportion to the defects of the goods.
(5) If Comsoft's goods are in fact defective, Comsoft shall pay any costs required to remedy the defect or replace the goods, including any transportation costs for return and reshipment, labour and materials. You shall reimburse Comsoft, however, for all costs incurred by trying to remedy the alleged defect or replacing the goods if your complaint was unfounded.
(6) Comsoft is entitled to deliver the goods or to remedy the defect by replacing a subcomponent of Comsoft goods - which Comsoft's supplier does not deliver or not deliver on time - with a suitable subcomponent from another supplier or manufacturer, which is considered equal to or better in terms of quality.
(7) If remedying the defect or replacement has failed or not been made in time, you are entitled to reduce the purchase price or to rescind the contract at your option. You may not rescind the contract, however, if the defect is insignificant.
(8) Any claims for damages and reimbursement of expenses shall be excluded except as regulated by section 10 of these terms and conditions.
10 Liability
(1) Comsoft shall be liable for breach of contract and tort according to the statutory laws except if otherwise provided for in these terms and conditions.
(2) In case of intent or gross negligence on Comsoft's part Comsoft shall be liable for any claims for damages, whether based on tort, warranty, contract or any other legal aspect, according to the statutory laws. In all other cases, Comsoft shall be liable only for damage to life, body or health or in case of breach of fundamental contract obligations (i.e. obligations that are a prerequisite for correct performance; at the same time, the other party may rely on the debtor's compliance with them), but Comsoft's liability shall be limited to the typically predictable damage.
(3) Paragraph (2) shall not be applicable if Comsoft fraudulently conceals a defect in Comsoft's goods or if Comsoft guarantees the condition of the goods. Also, Comsoft's liability under the German Product Liability Act (ProdHG) shall remain unaffected by paragraph (2).
(4) Except in the event that Comsoft goods are defective, you may only rescind the contract if Comsoft culpably breaches a duty. Other than that, the statutory laws shall apply.
(5) Paragraphs (1) to (4) of this section shall also apply to the liability of our workers, employees, agents or assistants in performance.
11 Period of prescription
(1) Warranty claims shall become time-barred 12 months after the delivery of the goods. However, section 438 paragraph 1 No. 1, section 438 paragraph 3 and section 479 German Civil Code (BGB) shall remain unaffected.
(2) Paragraph (1) shall apply to any claims for damages, whether based on tort, warranty, contract or any other legal aspect if the damage is caused by a defect in Comsoft's goods, except if the period of prescription pursuant to section 195, 198 German Civil Code (BGB) is shorter. If the damage is not caused by a defect in our goods, any claims for damages pursuant to section 9 of these terms and conditions shall become time-barred according to statutory laws.
In any case, the period of prescription determined by the German Product Liability Act (ProdHG) shall remain unaffected.
12 Intellectual Property Rights
(1) Comsoft grants you the non-exclusive right to use any software delivered with the product for use in connection with the product.
(2) You may not make copies of the software, except for the purpose of the use of the software pursuant to paragraph (1) or for backup purposes.
(3) You may transfer the software rights to any third party only if we have given our explicit consent in advance and in writing.
(4) In no event shall Comsoft be required to make available the source code of the software.
(5) Comsoft reserves all rights to the documents Comsoft provides you with, in particular to cost estimates and technical drawings, and in the information contained therein. You may not improperly use, reproduce, or otherwise disclose such material to third parties.
13 Assignment
You may not assign any claims arising from transactions with Comsoft without Comsoft's explicit consent in advance and in writing.
14 Retention of Title
(1) The following retention of title agreement shall secure all existing and future claims which Comsoft may have against you by virtue of any legal basis founded on the business relationship between the parties, including any balances from a current account relationship which is limited to this business relationship.
(2) Comsoft retains title to the goods until complete payment of all secured claims has been received. The goods as well as all goods replacing the goods which are subject to the retention of title pursuant to this provision are referred to in the following as "goods subject to retention of title".
(3) You shall deposit the goods subject to retention of title on Comsoft's behalf and without consideration.
(4) You may neither pledge the goods subject to retention of title nor create security interests unless Comsoft gives explicit consent in advance and in writing. In the event of pledges, seizure or other disposals or interventions concerning the goods subject to retention of title by third parties, you must inform the third party of Comsoft's property rights and inform Comsoft thereof without delay. All costs and damages caused thereby shall be borne by you.
(5) If you do not comply with your contractual duties, Comsoft may rescind the contract and demand that the goods subject to retention of title be returned to Comsoft. In particular, a delay in payment will be regarded as non-compliance.
(6) You may process and sell the goods subject to retention of title in the course of normal business. In this event, the following supplementary terms and conditions apply:
(a) Processing or modifying the goods subject to retention of title shall always be carried out on Comsoft's behalf as producer within the meaning of section 950 of the German Civil Code (BGB). An obligation on Comsoft's side, however, shall not be created thereby. In the event that the goods subject to retention of title are processed, modified, connected to or mixed with other goods which do not belong to Comsoft, it is hereby agreed that Comsoft will acquire co-ownership of the new goods based on the relation of the value of the goods subject to retention of title to the goods processed, modified, connected or mixed at the time of the processing, modification, connection or mixture.
(b) For security purposes, you hereby assign all receivables (including all balances from the current account) which result from the sale of the goods or from any other legal basis (insurance, tort law) with regard to the goods subject to retention of title to Comsoft. Comsoft agrees to this assignment. Your duties outlined in paragraph (4) of this section also apply with respect to the receivables.
(c) Comsoft authorizes you to collect the assigned receivables in your own name on Comsoft's behalf. Comsoft may, however, revoke such authorization at any time if you do not properly fulfil your payment obligations. In this event, you must inform Comsoft of the receivables assigned, the respective debtors, and any other detail necessary for the collection of the receivables. You must also hand over the relevant documentation and inform the debtors of the assignment.
(d) Where Comsoft claims are secured through the assignment and retention by more than 120 %, Comsoft will, upon demand, release any surplus of receivables or, at Comsoft's option, any surplus of goods subject to retention of title.
15 Compliance
(1) You guarantee that - in the event that you pass on the goods to third parties -, you comply with all applicable laws, with laws concerning export control and in particular with all current embargoes.
(2) If you do not comply with such applicable laws, Comsoft is entitled to claim damages, rescind the contract and to terminate other existing contracts with immediate effect.
16 Applicable Law, Jurisdiction
(1) The laws of the Federal Republic of Germany shall exclusively apply to these terms and conditions and to any transactions concluded by you and Comsoft. International purchase laws do not apply. In particular, the UN Convention on the International Sale of Goods (CISG) does not apply.
(2) The courts in Karlsruhe, Germany, shall have exclusive jurisdiction concerning all disputes arising out of or in connection with the relevant contract. However, Comsoft may also choose the courts that are authorised near your domicile.
17 Privacy
(1) Comsoft may save and process any data relating to you, to the extent necessary for the purpose of the execution and implementation of the contract and as long as Comsoft is required to keep such data in accordance with applicable laws.
(2) Comsoft shall have the right to submit personal data relating to you to credit agencies, to the extent necessary for a credit check, subject, however, to your consent in each individual case. Comsoft shall not make available any of your personal data to other third parties without your express consent, except to the extent that Comsoft is required to disclose any data pursuant to applicable laws.
(3) Comsoft shall not be permitted to collect, submit to any third party or otherwise process your personal data for any purpose other than those set forth in this section.
