Terms and Conditions of Sales and Delivery
1. Scope of Application
1.1 Unless expressly agreed otherwise, orders shall be accepted and executed in accordance with the following terms and conditions of sale and delivery. This shall also apply to all subsequent orders without any special notice. Repairs and assembly shall be subject to special conditions.
1.2 We (hereinafter: EC SENSE GMBH) hereby expressly object to all terms and conditions of the orderer. Any agreements deviating from these terms and conditions must be made in writing.
1.3 Verbal agreements must be confirmed in writing without delay.
1.4 These terms and conditions shall apply to business transactions with entrepreneurs.
2. Standard Software insofar as standard software is included in the scope of delivery, the supplementary terms and conditions for application software following these GTC shall also apply.
3. Offers, Documents and Industrial Property Rights
3.1 Unless otherwise specified in the offer, offers shall be valid for a period of 4 weeks. We reserve the right to make intermediate sales. An obligation to deliver shall only be established by an express offer or order confirmation by EC SENSE GMBH.
3.2 Unless expressly declared as binding in the offer, all technical data, material specifications, etc. shall be approximations customary in the industry. Notifications in the event of changes shall only be made if a guarantee of quality is involved.
3.3 All documents made available to the customer of EC SENSE GMBH shall remain the property of EC SENSE GMBH; they may not be made accessible to third parties without the prior written consent of EC SENSE GMBH and shall be returned immediately upon request in full, including any copies made, if the order is not placed with EC SENSE GMBH.
3.4 The information contained in catalogs, brochures and other written documents shall be checked by the customer for suitability for the intended application before acceptance and use. This shall also apply to the selection of suitable materials. The Purchaser shall inform himself about the possible uses of the product.
3.5 EC SENSE GMBH shall not be obliged to check the correctness and/or legal conformity of the Purchaser’s instructions and/or specifications; the Purchaser shall be exclusively responsible for this information. This shall apply in particular to liability for any infringement of industrial property rights.
3.6 The customer warrants that the execution of the order does not involve any infringement of industrial property rights by supplied products, drawings or samples of the customer or third parties, shall conduct any defense proceedings at its own expense and shall reimburse EC SENSE GMBH for any related expenses.
3.7 Drawings, drafts and discussion contributions, which are developed within the scope of consulting services rendered in the course of the contract negotiations, shall not be binding. The Purchaser shall not be entitled to assert claims of any kind against EC SENSE GMBH and its employees based on such documents or services, unless they have acted intentionally or grossly negligent.
3.8 Requested samples shall be charged by EC SENSE GMBH on a time and material basis.
4.1 Orders shall be deemed accepted only upon their written confirmation by EC SENSE GMBH. The text of the order confirmation shall be decisive for the content of the contract thus concluded and the nature and content of the order. The customer is obliged to check all parts of the order confirmation and to notify EC SENSE GMBH immediately in writing of any discrepancies.
5. Delivery Time and Scope
5.1 Delivery times begin with the remaining technical and commercial clarification and end with the dispatch or the notification of readiness for dispatch. Compliance with the delivery time shall also be subject to compliance with the obligations of the Purchaser, in particular any payment obligations.
5.2 Changes requested by the customer shall cause the delivery period to start again with the date of the changed order confirmation.
5.3 EC SENSE GMBH shall not be liable for delays in delivery due to force majeure and similar events beyond its control and not foreseeable, such as refusal of official permits, labor disputes etc.. Delivery periods shall be extended by the period of the hindrance.
5.4 EC SENSE GMBH shall be liable in cases of non-compliance with the delivery contract or delayed delivery, even after expiry of a time limit set to EC SENSE GMBH, only in case of intent, gross negligence or breach of material contractual obligations. A change of the burden of proof to the disadvantage of the customer is not connected with this regulation.
5.5 The customer’s right to withdraw from the contract after fruitless expiry of a reasonable period of time granted to EC SENSE GMBH shall remain unaffected.
5.6 Partial deliveries are permissible as far as reasonable for the customer.
6. Place of Delivery, Transfer of Risk
6.1 Deliveries shall be made ex production site of EC SENSE GMBH at the expense and risk of the customer. The choice of the mode of shipment shall be made by EC SENSE GMBH according to its reasonable discretion, unless the customer has given instructions.
6.2 In case of delivery without installation or assembly, the risk with respect to the delivery item shall pass to the customer upon transfer of the products to the customer, the forwarding agent or the carrier, at the latest, however, upon leaving our works or warehouse, even if freight-free delivery has been agreed upon. In the event of default of acceptance on the part of the Purchaser, the risk shall pass upon readiness for shipment, even if default of acceptance only occurs after readiness for shipment. Upon request and at the expense of the customer, EC SENSE GMBH shall insure the consignment against breakage, transport and fire damage.
6.3 In the case of delivery with installation or assembly, the risk in respect of the delivery item shall pass to the customer on the day of transfer to the customer’s own company.
7.1 All prices are ex works plus freight/ postage, packaging, insurance and the applicable statutory VAT. Costs for commissioning, assembly, adjustment or similar services shall be invoiced separately. Services shall be invoiced separately.
8.1 Unless otherwise agreed, the agreed price shall be payable immediately in EURO without deduction and free of charges upon receipt of an invoice or equivalent request for payment. The risk and costs of the payment transaction shall be borne by the Purchaser.
8.2 Prices for maintenance, update or service services to be provided during the term of the contract shall be paid annually in advance, unless otherwise agreed.
8.3 In the event of default, interest on arrears shall be charged at a rate of 8 percentage points above the base interest rate pursuant to § 247 BGB (German Civil Code).
8.4 The customer shall only have the right of retention or set-off in the case of undisputed claims which are ready for a decision or which have been established by a final court decision.
8.5 Costs for securities, letters of credit for foreign business transactions or similar shall be borne by the customer.
8.6 EC SENSE GMBH shall be entitled to assign all rights arising from the business relationship, in particular all claims.
9. Liability for Material Defects
9.1 The customer shall inspect the products for any defects immediately upon receipt. Obvious defects shall be reported to EC SENSE GMBH in writing within 5 working days, hidden defects within 5 working days after discovery.
9.2 Defects which are reported to EC SENSE GMBH on the products delivered by EC SENSE GMBH within 12 months after commissioning, but not later than 15 months after transfer of risk, shall be repaired or replaced by EC SENSE GMBH at its own discretion, which it shall be entitled to do even after repeated unsuccessful repairs. EC SENSE GMBH shall be granted reasonable time and opportunity for this.
9.3 If the defect cannot be remedied within a reasonable period of time, the customer shall have the right to withdraw from the purchase contract or to demand a reduction of the remuneration (abatement).
9.4 For defects which could have been detected by the customer with reasonable effort before installation or processing, all claims based on liability for material defects shall lapse as soon as the product has been processed or installed. This shall not apply if EC SENSE GMBH’s executives or vicarious agents are guilty of intent, gross negligence, injury to life, body or health, liability for breach of a material contractual obligation or liability under the Product Liability Act (Produkthaftungsgesetz).
9.5 EC SENSE GMBH shall not assume any warranty for a certain service life of the products, in particular under difficult and unknown operating conditions. Claims for premature destruction are excluded.
9.6 For products which have been manufactured according to drawings or specifications of the Purchaser, EC SENSE GMBH shall only assume liability for defects of quality if they are manufactured according to the specifications. The mandatory liability according to the product liability law as well as for intent and gross negligence shall remain unaffected.
9.7 The liability for material defects shall not apply to natural wear and tear, to damage which has occurred after the transfer of risk as a result of incorrect or negligent handling, or as a result of use which is not in accordance with the specifications or the contract.
9.8 Liability for material defects which do not or only insignificantly impair the value or the usability shall also be excluded.
9.9 Claims under a right of recourse pursuant to §§ 478, 479 BGB (German Civil Code) shall only exist if the consumer’s recourse was justified and only to the extent provided by law, but not for goodwill provisions not agreed with the Supplier and shall require compliance with the obligations of the party entitled to recourse, in particular compliance with the obligations to give notice of defects.
10.1 Claims for damages and reimbursement of expenses by the Purchaser – irrespective of the legal basis, including claims in tort or for compensation for damage caused by defects or consequential damage caused by defects, for culpable breach of secondary contractual obligations or for loss of profit – shall be excluded. This shall not apply if EC SENSE GMBH’s executives or vicarious agents are guilty of intent, gross negligence, injury to life, body or health, if liability exists due to breach of a material contractual obligation or if liability is mandatory under the Product Liability Act.
10.2 In the event of a breach of material contractual obligations which is not attributable to intent or gross negligence and which is also not an injury to life, limb, health or a warranty of quality, liability shall be limited to compensation for the foreseeable damage typical for the contract. Material contractual obligations are obligations whose breach jeopardizes the purpose of the contract, e.g. in the event of a significant delay, a not merely insignificant breach of obligations to cooperate or provide information, or a not merely insignificant breach of obligations with which the contract stands or falls.
10.3 If the customer provides material for the production of products ordered by him, this material shall only be insured against theft by EC SENSE GMBH. Liability for the loss or deterioration of such material shall only exist in case of intent or gross negligence of EC SENSE GMBH.
10.4 Advice given by the customer, in particular regarding the use of the delivery item, shall only be binding for EC SENSE GMBH if given or confirmed in writing.
10.5 The legal regulations regarding the burden of proof shall remain unaffected.
11. Retention of Title
11.1 The delivered product (hereinafter referred to as “Retained Product”) shall remain the property of EC SENSE GMBH until full payment of all due claims EC SENSE GMBH has or acquires from the business relationship with the customer. During the period of retention of title, neither a pledge, nor a transfer of ownership by way of security, nor an assignment of the claim may be made by the customer without the consent of EC SENSE GMBH. EC SENSE GMBH shall be notified immediately of any seizure by a third party.
11.2 If the product subject to retention of title is processed by the customer to a new product, the processing shall be carried out for EC SENSE GMBH. The customer shall not acquire ownership according to § 950 BGB (German Civil Code). In case of processing, mixing or transformation of the product subject to retention of title with products not belonging to EC SENSE GMBH, EC SENSE GMBH shall acquire co-ownership of the new item in proportion to the invoice value of the products delivered by it and the other products at the time of processing. The customer shall keep the new item for EC SENSE GMBH with the diligence of a prudent businessman.
11.3 The new product shall be considered as a product subject to retention of title in the sense of these terms and conditions. The customer hereby assigns to EC SENSE GMBH his claims from a resale of these new products subject to retention of title in the amount of the value corresponding to the value share of the products subject to retention of title in the new item in the ratio of the invoice value of the products subject to retention of title to the products brought in by other parties.
11.4 If the resale takes place together with other products not belonging to EC SENSE GMBH at a total price, the customer already now assigns his claims from the resale to the amount of the share to EC SENSE GMBH, which corresponds to the value of the products subject to retention of title in the total delivery.
11.5 The customer shall also assign to EC SENSE GMBH the claims against a third party arising from the combination of the product subject to retention of title with a basic item.
11.6 The customer is revocably entitled to collect the claims arising from a resale in the ordinary course of business. EC SENSE GMBH shall have the right to collect the claims independently if the customer has violated his obligations under this contract, especially in case of default of payment. Upon request, the customer shall name the debtors of the assigned claim and notify them of the assignment. The assertion of the retention of title and in particular the surrender of the goods shall constitute a rescission of the contract.
11.7 EC SENSE GMBH undertakes to release the securities to which it is entitled at its discretion upon request of the customer to the extent that the realizable value of these securities exceeds the claims to be secured by more than 10%.
12. Place of Jurisdiction
12.1 The law of the Federal Republic of Germany including the UN Convention on Contracts for the International Sale of Goods (CISG) shall apply exclusively. The language of the contract shall be English.
12.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties, also for disputes regarding documents, bills of exchange or checks, shall be the competent place of jurisdiction of EC SENSE GMBH. EC SENSE GMBH shall also be entitled to sue the customer at any other legal place of jurisdiction.
13. General Clause
13.1 Invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the other provisions. Should a provision be or become invalid, the contracting parties shall replace the invalid provision by a valid provision which comes as close as possible to the economic and legal purpose of the invalid provision.
Supplement for Application Software
1. Scope of Application
1.1 The following supplementary clauses shall apply only to companies within the meaning of § 14 (1) of the German Civil Code (BGB), legal entities under public law and public-law special funds pursuant to § 310 of the German Civil Code (BGB). If the following provisions do not contain any regulations, the General Terms and Conditions of Sale and Delivery of EC SENSE GmbH (hereinafter referred to as “EC SENSE GmbH”) shall apply in addition.
1.2 These Terms and Conditions shall not constitute any obligation to provide updates and/or upgrades, to adapt and further develop the Software or to maintain the Software, unless otherwise agreed.
1.3 The software clauses shall apply to the provision of standard software as well as to combined software/hardware deliveries, insofar as a breach of duty or defect in performance has its cause in the software.
1.4 Within the scope of their application, these supplementary clauses shall take precedence over the General Terms and Conditions of Sale and Delivery.
2. Copyright, Subject Matter of the Contract, Release of the Source Code
2.1 The Software is protected by copyright in accordance with the provisions on the protection of computer programs. The copyright covers in particular the program code, the documentation, the appearance, the structure and organization of the program files, the program name, logos and other forms of representation within the Software (hereinafter: “Licensed Material”). EC SENSE GmbH shall be entitled to all rights resulting from the copyright.
2.2 The program shall be provided to the user on a machine-readable storage medium as “object program”. The user shall not be entitled to the release of the “source code”. The program shall be accompanied by application documentation which the user shall receive in printed form or also on a machine-readable recording medium.
2.3 The User undertakes to retain unchanged any protective notices contained in the Licensed Material, such as copyright or copy right notices, trademarks, alphanumeric identifications and other legal reservations. This also applies to complete or partial copies of machine-readable license material made by him.
2.4 EC SENSE GmbH shall only be obliged to provide the software free of industrial property rights of third parties and copyrights of third parties in the country of the place of delivery in the absence of a deviating written regulation.
2.5 EC SENSE GmbH reserves the right to collect, store and internally evaluate data streams for the purpose of optimizing the offered services.
3. Scope of Use
3.1 EC SENSE GmbH grants the user – under the condition of complete and unconditional payment of the agreed price – a non-exclusive, temporally and spatially unrestricted right to use the software in his business for his own purposes and as described in more detail in the original contract, these conditions and in the manual.
3.2 The User may – if technically provided for by the product – make a backup copy for archiving purposes for his business. This copy shall be marked as such and – as far as technically possible – shall bear the copyright notice of the original data carrier. The user manual may only be used for internal purposes.
3.3 The user may only transfer the software to a third party if the third party expressly agrees to the continued validity of these terms and conditions and if the previous user permanently ceases to use the software and does not retain any copies. The data carriers and manuals (together with all former versions of the program) are to be left to the third party in the original. The user has to inform EC SENSE GmbH immediately in written form about any transfer to a third party because of the allocation of a new license key. The name and the address of the acquirer shall be communicated. The contractual terms and conditions under which the transfer was made must also be disclosed. The user is liable for damages resulting from the violation of this obligation.
3.4 All other types of duplication or exploitation of the software, in particular the reverse translation of the program code provided into other code forms (decompilation) and other types of reverse engineering of the various production stages of the software are not permitted. Likewise prohibited is any other distribution of the Software (offline or online) as well as renting or lending for commercial purposes. The prohibition of decom- pilation does not apply within the scope of § 69 e UrhG.
4. Safety Instructions
4.1 The software may only be used in connection with the devices distributed by EC SENSE GmbH, certified or defined in the product description. The use in connection with other devices is expressly prohibited and at the user’s own risk.
4.2 The user shall receive a personalized license in connection with the first start-up of the software. If provided, it must be ensured that personal access codes cannot be used by third parties. It is recommended to change the access codes from time to time.
4.3 The safety and application regulations contained in the instructions for use apply in addition and must be strictly observed.
5.1 The parties agree that it is not possible to develop software programs in such a way that they are free of defects for all conditions of use. Defects of the delivered software (material defects and defects of title), including those in the manuals and other documents, shall be remedied by EC SENSE GMBH within a warranty period of one year – beginning with the date of installation or transfer of the equipment – after the user has given notice of defects. This shall be done at EC SENSE GmbH’s option by removal of the defect (subsequent performance) or by delivery of defect-free software (replacement delivery). The user is obliged to provide EC SENSE GmbH with all information necessary for error analysis and subsequent performance. This includes the provision of sufficiently qualified service personnel as well as the granting of unrestricted access to the software and the system on which it is installed. A notice of defect must contain information about the nature of the defect, the application in which the defect occurred, and the work performed to correct the defect. The defect must be described in such a way that it can be reproduced. Notifications of defects must be made in writing.
5.2 If the defect cannot be remedied within a reasonable period of time or if the subsequent performance or replacement delivery is deemed to have failed for other reasons, the Purchaser may, at its option, reduce the purchase price, rescind the contract, claim damages or compensation for futile expenses. The latter two claims shall be governed by clause 7 of this agreement. Withdrawal from the contract shall not exclude the right to claim damages.
5.3 A failure of the supplementary performance or replacement delivery shall only be assumed if three attempts of supplementary performance by EC SENSE GmbH have been unsuccessful or a replacement delivery has been made without the owed success being achieved, if the supplementary performance or replacement is impossible, if it is refused or unreasonably delayed by EC SENSE GmbH, if there are reasonable doubts regarding the chances of success or if it is unreasonable for other reasons.
5.4 The warranty does not cover:
- defects caused by deviations from the operating conditions intended for the program and specified in the performance specification;
- only insignificant deviations from the agreed quality or only insignificant impairments of the usability;
- damage caused as a result of incorrect operation/handling of the software or negligent handling of the data carrier;
- damage caused by special external influences which are not provided for in the underlying contract;
- to changes made to the software or hardware by the Purchaser or a third party or the consequences thereof; unless the User proves that the change is not the cause of the reported defect;
- to the software extended by the Purchaser or a third party beyond an interface provided by EC SENSE GmbH for this purpose;
- that the software provided is compatible with the data processing environment used by the customer;
- defects in the hardware, the operating system or the software of other manufacturers.
5.5 Information contained in brochures, advertisements, documentation and similar writings shall merely constitute a general description of the software and shall not contain any assurance of properties or guarantees. The assurance of properties or the assumption of guarantees shall require an express written agreement.
5.6 The supplementary performance in case of defects of title shall be effected by EC SENSE GmbH providing the user with a legally flawless possibility to use the software. EC SENSE GmbH may exchange the affected software for an equivalent software corresponding to the contractual provisions, if this is acceptable for the user. If third parties assert property rights against the user, he shall inform EC SENSE GmbH immediately in writing. EC SENSE GmbH will avert or satisfy the claims at its discretion. The user is not allowed to acknowledge claims of third parties. EC SENSE GmbH shall defend the claims of third parties at its own expense and shall indemnify the user against all costs and damages associated with the defense against claims, unless these are based on a breach of duty by the user.
6. Duty to Examine and to give Notice of Defects
6.1 The User shall be obliged to inspect the delivered Software for obvious defects that would be readily apparent to an average user. Obvious defects also include the absence of manuals as well as considerable easily visible damage to the data carrier itself. Furthermore, cases in which a different item or an insufficient quantity is delivered are also included. Such obvious defects shall be notified to EC SENSE GmbH in writing within four weeks after the date of delivery.
6.2 Defects which only become apparent later shall be notified to EC SENSE GmbH by the user within four weeks after their detection, however, at the latest until the end of the twelve-month warranty period.
6.3 In case of violation of the obligation to inspect the goods and to give notice of defects, the goods shall be deemed accepted with regard to the defect concerned.
7.1 EC SENSE GMBH shall be liable without limitation for damages due to the absence of warranted characteristics. The same shall apply to damages resulting from injury to life, body or health as well as from a negligent breach of duty by EC SENSE GmbH or an intentional or negligent breach of duty by a legal representative or vicarious agent of EC SENSE GmbH.
7.2 Apart from that, EC SENSE GmbH shall only be liable for intent or gross negligence – also of its legal representatives or executives. This limitation shall not apply if an obligation is violated, the compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligation). EC SENSE GmbH shall be liable for the fault of other vicarious agents only to the extent of the liability for the breach of cardinal obligations.
7.3 In case of violation of a cardinal obligation EC SENSE GmbH shall also be liable for slight (simple) negligence. The liability is, however, – as far as there is no intent or gross negligence – limited to such damages, which can typically be expected within the scope of a contract of this kind.
7.4 Liability for loss of data shall be limited to the typical costs of restoration that would have been incurred if data backups had been made regularly and in accordance with the risk.
7.5 Liability for defects caused by other hardware and software components affecting the functionality of the software is excluded.
7.6 Liability under the German Product Liability Act (§ 14 ProdHG) shall remain unaffected.
7.7 In case of a temporary transfer of the software the liability of EC SENSE GmbH for defects already existing at the time of the conclusion of the contract according to § 536 a para. 1 BGB (German Civil Code) is hereby excluded.
7.8 A change of the burden of proof to the disadvantage of the user is not connected with the above regulations.
8.1 The User’s warranty claims pursuant to clause 5 of this agreement shall become statute-barred within one year from the date of delivery. If the defect in title consists of a right in rem of a third party on the basis of which the Software can be demanded to be returned, the statutory limitation periods shall apply.
8.2 For other claims of the User arising from the contract and from a contractual obligation within the meaning of Section 311 (2) of the German Civil Code (BGB), a limitation period of one year from the start of the statutory limitation period shall apply. The claims shall become statute-barred at the latest upon expiry of the statutory maximum periods (§ 199 para. 3, para. 4 BGB).
8.3 The statutory limitation periods shall apply in the case of personal injury (including injury to freedom) and in the case of intent and gross negligence. The same shall apply within the scope of application of the Product Liability Act.
9. Final Provisions
9.1 Should one of the provisions of this agreement be or become invalid or should the agreement contain a loophole, this shall not affect the validity of the remaining provisions of the agreement. The contracting parties hereby undertake to replace the invalid original provision by such a clause which comes as close as possible to the sense and purpose of the invalid original provision in a legally permissible manner. The same shall apply to the filling of loopholes.
9.2 All legal relationships arising from this contractual relationship shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
9.3 The place of jurisdiction for all disputes arising out of or in connection with this contract shall be Fürth, Bavaria, if the User is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, or if the User does not have a general place of jurisdiction in Germany.