O&O Software GmbH General Terms and conditions as amended June 21, 2011
1. General, scope, definitions
1.1. These available sales and delivery conditions apply for all deliveries and services; variable supplements from the party placing an Order will not form part of the contract.
1.2. The subject of the Contract accords to the written Agreement. Further Agreements are not affected. Contract amendments or supplements are only valid when we confirm them in writing.
1.3. “Goods” in terms of this Contract are all agreed upon items including software provided to the ordering party, including goods made available electronically.
2. Offer, Offer documentation, Quotation
2.1. Our offers are subject to change. Offers of the ordering party are accepted when we confirm them in writing or carry out delivery or service. Verbal sub-agreements have no validity.
2.2. All documentation provided to the ordering party, particularly storage volumes, documents, images, designs, calculations remains our property and copyright; they may not be used for purposes not specified in the contract, or be passed on to third parties, and must be returned to us immediately on termination of the contract or when the purpose of their usage under the contract has been fulfilled. This applies in particular to documents and information marked “confidential”. We have the Right to request the return of documentation when confidentiality is not guaranteed.
2.3. If software is included in the delivery or service, these Rights are retained by us, particularly copyright. The purchaser has the Right to use the software on a computer system in one location. Any variation on this rule is defined in the respective software license contract. In the absence of our specific written agreement, the purchaser has no Right to duplicate or change the software, or to pass it to an unauthorized third party.
2.4. The Delivery Contract is considered closed when we confirm the order in writing. In the case of special arrangements, the order is valid upon our written confirmation and cannot be annulled or amended. Measurements, weights, descriptions, specifications, flowcharts and images are only binding for the order when we specifically confirm them as such.
2.5. Once an installation is carried out through us, the costs are transferred to the purchaser. Installation work is calculated at the appropriate rate and offset against the appropriate rates for overtime, weekend work, night work and public holiday work. Reimbursement of travel, catering, accommodation, telephone and transport expenses for the installation is calculated separately.
2.6. Orders on demand must be made in writing 8-10 weeks before the desired delivery date. For orders not carried out within an on-demand order period, we reserve the Right to deliver and invoice the Goods after the given time period.
2.7. If a software delivery contains a license agreement, this is considered valid upon acceptance of the Goods. Should the purchaser object to the license agreement, the Goods are to be returned to us free of charge.
2.8. We have the Right to issue sub-orders.
3. Condition of Goods or Services
3.1. The features mentioned in our public announcements in, for example, catalogues, circulars, newsletters, adverts, images and price lists only form part of the condition of Goods when they form part of the contract. Public announcements from other manufacturers or associates only form part of the condition of the Goods when contractually agreed or where we have given our consent publicly and in writing.
3.2. We reserve the Right up until delivery to make customary technical amendments, particularly improvements, when only non-essential amendments to the condition subsequently occur, and the purchaser is not unacceptably hindered as a result thereof.
3.3. If Goods are created or changed according to a purchaser’s specifications, in the absence of a special agreement, we are not obliged to check these specifications. The purchaser can make no claims due to defects that occur as a result of these specifications, or defects arising from third party hardware or software used by the purchaser.
4. Supplementary Terms on Condition of Software
4.1. Contract-based Software, unless otherwise specifically agreed, is Standard Software that is not individually produced to fit a purchaser’s individual requirements. Delivery contracts for software are therefore purchase contracts. The parties agree therein that it is technically impossible to develop faultless Standard Software for every application purpose.
4.2. If we are obliged to install software, the purchaser must ensure that the requirements we communicate to him regarding hardware, the specific IT environment, particularly connection to the computer network, are all met.
4.3. During trial runs and the installation, the customer guarantees the presence of competent and trained employees, and the adjustment of other computer work to accommodate said trial runs and installation. The customer is responsible for backing up all his data prior to installation.
5.1. Unless otherwise stated, all prices are displayed in the currencies listed on the website.
5.2 Unless specified otherwise in the order confirmation, our list prices, or alternatively our usual prices apply.
5.3 Spelling errors and other omissions are excepted from all displayed prices. Unless specified otherwise, the quoted prices are including VAT but excluding postage or transport costs to the agreed place of delivery (shipping costs are on the website and are listed separately in our calculations). The customer agrees to the payment of such delivery or transport costs as specified by us at the beginning.
6. Payment Conditions, Pre-service Obligations
6.1. Unless specifically stated otherwise, invoices are payable immediately and without discount. If a payment date has not been agreed, then statutory legal regulations apply by default.
6.2. Timeliness of payments by Bank transfer is measured by the time the money is available to us. Checks are valid from the time of redemption, for the sum stated minus any payment charges. We are not responsible for the timely presentation of checks.
6.3. We have the Right to offset payments against the oldest open invoices of the party placing an Order, and to include Interest.
6.4. We have the Right to charge Interest for delayed payments at 2% above the bank rate set by the European Central Bank (ECB). The Right to claim for further damages is also reserved.
6.5. We reserve the Right to stop further deliveries to the ordering party whose payments are in arrears, even when a delivery contract has been signed.
6.6. We have the Right to assign our demands to an appointed third party.
7. Offset and withholding Rights. Assignment, Partial Service.
7.1. The ordering party only has the Right to offset undisputed or legally established claims. The ordering party may only exercise withholding Rights for undisputed or legally established claims arising from the same legal relationship.
7.2. Claims against us may not be assigned to third parties.
Partial delivery and partial service and appropriate charges are admissible providing they are not unacceptable to the ordering party.8. Delivery, Passing of Risk.
8.1. All deliveries are carried from the house. We assume no responsibility for the cheapest shipping method.
8.2. We adhere to our delivery deadlines to a reasonable extent, although such deadlines in dealings with traders are noncommittal; they are only binding with traders if they are confirmed by us as being explicitly binding; in these cases the delivery deadline shall be considered met if the goods are sent in good time.
9. Service Impediments, Default of Acceptance.
9.1. Events not caused by us can lead to a delay, and extension of delivery time. This applies particularly to Acts of Violence, War, Acts of Terror, Natural Catastrophes, Transport or Operational disturbances, hampered import, an energy and raw material deficit, a lack of energy and resources, governmental/official action and workers strikes. We have the Right to withdraw from a contract when the impediment of service is stretched over an unknown period of time and the contract purpose is endangered. If such an impediment lasts longer than two months, the customer can withdraw from the part of the contract not fulfilled, providing a right of withdrawal is not excluded from the contract as a whole. In business dealings with Traders, additional claims as a result of our delay may not be made. Withdrawal from the contract or waiving of delivery is also not permitted. Statutory legal regulations apply otherwise.
9.2. Our compliance with our delivery obligations is conditional upon the ordering party fulfilling their obligations timely and correctly.
9.3. Should the ordering party not accept Goods on the due date, then we have the Right, subject to all other Rights, to set an appropriate extension of time. Within the realms of a claim for compensation, we are entitled to request 10% of the agreed price without tax, providing it cannot be established afterwards that the actual damages are substantially less. If damages are actually higher, we reserve the Right to claim such higher damages.
10. Endangered Claims.
10.1. Should after closure of the Contract our claim to reciprocated service be endangered due to a performance deficit on the part of the ordering party, then the ordering party is obliged to provide advance payment where our contractual obligation consists of work, service or delivery in the form of Goods that are otherwise no longer marketable.
10.2. If payment by installments is agreed upon, then the entire amount is due should the ordering party fall behind in part or full with two consecutive installments. Deferral Agreements become invalid if an ordering party falls in to arrears or the conditions contained in § 321 BGB come into force.
11. Title Retention.
11.1. We retain the Title to the Goods we deliver until full payment is received.
11.2. In the event of seizure or other third party interference, the ordering party must inform us in writing without delay, so that we may submit a claim in line with §771 ZPO. Should the third party not be in a position to reimburse our court and out-of-court costs in line with a claim under §771 ZPO, then the ordering party is liable for the shortfall incurred by us.
12. Limit of Liability: Claim for Damages, Compensation for Expenses.
12.1. Limit of liability as a result of: claim for damages or compensation for expenses due to unfulfilled obligations, or when the service provided by us is not provided, or not provided as described, due to delay or deficit, then the ordering party is only entitled to
12.1.1. Damages arising out of death, injury to body or health as a result of due to a neglect of duty on our part or a deliberate or negligent breach of duty by our legal representative or Servant,
12.1.2. other Damages, due to a gross neglect of duty on our part or gross neglect of duty by our legal representative, executive Staff or servant or negligent breach of contractual obligation (Cardinal Obligation) on our part or negligent breach of duty by our legal representative, executive Staff or Servant and
12.2. Limit of liability in amount: for our liability for simple negligence and gross negligence in relation to our Servant, not being a legal representative or executive Staff, and not excluded in line with Paragraph a, we are only liable for the typical damages expected after contract closure and compensation for expenses only to the amount that would have been received under the Contract. For data loss or damage, we are only liable for the costs of recovering available security copies.
12.3. Liability for pre-contractual obligations and business contacts: the preceding paragraphs also apply to claims for damages from the ordering party for obligations arising from contract negotiations, initiation of a contract or similar business contacts. Should a contract arise between us and the ordering party, claims for damages from the ordering party are waived when they would not have been included in an existing contract in accordance with the above preceding Conditions.
12.4. Claims from Transferred Right: the preceding conditions also apply to claims from the ordering party made valid by a Transferred Right. An ordering party may only call upon a foreign Right when the preceding conditions here, and the general contract conditions, would also have entitled him to such a claim.
12.5. Limited Liability to third parties: where our liability is excluded or limited, then this applies also to the personal liability of our employees, staff, jobholders, representatives and servants.
13. Claims of the Ordering Party due to defects (material and Rights defects)
13.1. Inspection and defect notification obligations: the ordering party’s Rights due to material defect are in line with the Proviso for Inspection and Reproof (§ 377 HGB).
13.2. Remedy: If the customer is a consumer, he has the choice as to whether a remedy takes place through repair or replacement. O&O is entitled to refuse the remedy selected if it is only possible when involving disproportionate costs, and when the other type of remedy is possible without significant disadvantages for the consumer. If subsequent remedy fails, the customer may demand either a lowering of the purchase price (reduction) or a cancellation of the contract (withdrawal). If the customer is a business, then we are entitled to either remedy any defect or effect a replacement in accordance with § 439 BGB. After one year upon receiving such a service, their warranty claims for repair or for current value credit become restricted to one of our choice.
13.3. Limitation of actions as a result of defects, providing they are not excluded through these conditions:
13.3.1. The Statutory period of limitation applies to claims for damages as a result of defects and claims arising out of unauthorized actions.
13.3.2. All other claims of the ordering party as a result of material defects, particularly remedy, own costs of reclamation, withdrawal, reduction and lost costs of reclamation become time-barred after one year.
13.3.3. The same applies for claims arising as a result of defective Title with the following exception: claims due to a defect that by Right are due to a third party, and where such a claim can be transferred to the third party, become time-barred after five years.
14. Defects: Cooperation of the ordering party.
14.1. For any remedy, the ordering party must provide us with a fault diagnosis and detailed information, and a trained and competent employee must be made available over remote data transmission or telephone. With on-site remedies, we must have unhindered access to the defective Goods and where necessary other work on the hardware or across the network must be adapted to accommodate our work.
14.2. The ordering party is obliged to present in detail, and in replicable form, an established defect.
14.3. Should an ordering party make a claim for remedy and it is later established that the claim for remedy is not valid (i.e. user error, incorrect handling of the Goods, no defect) then the ordering party is obliged to reimburse us all costs arising from checking of the Goods and providing the remedy.
14.4. Should the ordering party receive a claim for damages from a third party or as a result of negligent further use of the delivered Goods, then the ordering party must inform us without delay.
Within the terms of the applicable Contract, both parties are obliged to maintain strict confidentiality regarding all business and operational information of the other party.
16. Data Protection
We have the Right to process data from the ordering party in relation to business dealings, including instances where this data originates from a third party, in line with the Federal Data Protection Act. This replaces the notice given in the Federal Data Protection Act, namely that personal data from the customer will be saved and processed using data processing means.
17.1. It should be noted that export of the delivered Goods may only take place when official, regulatory agreement is given in advance. Information in this regard is available from the Federal Office for Industry, Eschborn/Taunus. The ordering party must obtain Declarations of Consent prior to transporting the Goods.
17.2. Suspension of Limitation Period during negotiations: A suspension of the Period of Limitation for claims made by the ordering party during negotiations can only occur where we have declared ourselves in writing as willing to negotiate. The suspension ends 3 months after our last written statement.
18. Place of Fulfillment, Applicable Law, Contract Language, Jurisdiction
18.1. Place of Fulfillment for contracts with trading partners for both parties is the domicile of our company.
18.2. These business conditions and the entire legal relationship of the parties are subject to the material German Law. German Law also applies without restriction to deliveries to foreign recipients. The United Nations Agreement regarding contracts for international sale of Goods is excluded.
18.3. If the ordering party is a tradesman, a corporate body under public law or a special Fund under public law, then the exclusive jurisdiction for all disputes arising out of the contractual relationship is the domicile of our company, whereby we have the Right to sue the ordering party in another jurisdiction. For all other ordering parties, jurisdiction is our domicile for all disputes arising out of the contractual relationship, just in case the parties to the action entitled to claim change their residence or usual abode to a location outside of Germany, or their address during the coiurse of the action is not known.
18.4. Should a condition(s) in this contract, or other conditions agreed by both parties, become invalid, this has no effect on validity of the remaining conditions in the General Terms and Conditions or other Agreements. All parties are obliged to replace the invalid condition with a condition that resembles as closely as possible the purpose of the invalid condition.
O&O Software GmbH, Am Borsigturm 48, 13507 Berlin, Germany
Tel +49 30 991 91 62 00, Fax +49 30 991 91 62 99
E-Mail: firstname.lastname@example.org, Web: http://www.oo-software.com