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- NON-AUTHORITATIVE ENGLISCH VERSION –
General Terms and Conditions (AGB) (B2B)
2009 Ver. 2.0
ANDTEK GmbH
Am Söldnermoos 17
D-85399 Hallbergmoos
Deutschland
- hereinafter referred to as „ANDTEK“ -
1. Scope, Priority, Amendments
1.1. The following provisions shall be effective,
with respect to existing and future business
connections, for all contracts between
ANDTEK and the customer, as well as any
other arrangements, and pre-contractual
negotiations the parties agree upon.
1.2. Conflicting terms and conditions of the
customer will not become part of the contract,
even in case ANDTEK does not explicitly
disagree or delivers the service
without contradiction. Before the conclusion
of the relevant contract the customer
must inform ANDTEK in writing in case he
wishes to objects to these general terms
and conditions.
1.3. ANDTEK is entitled to customize these
terms and conditions, in cases of unforeseeable
circumstances which have not
been caused by ANDTEK and which cannot
be influenced by ANDTEK, also to the
disadvantage of the customer, as long as
the customization is reasonable to the customer
and the circumstances are disturbing
the relationship between performance and
counter-performance in a not inconsiderable
way. In addition to this, ANDTEK is
entitled to customize unintended omissions
incurring out of these terms and conditions
which are leading to severe difficulties regarding
the execution of the contract, in
case the customization seems mandatory.
1.4. If any customization will become necessary,
ANDTEK will notify the customer in
reasonable time about the intended customization
using electronic communication
(e.g. e-mail). The customer is entitled to
object to the customization within a period
of one month after receiving the notification.
In case the customer objects, the
original terms and conditions will stay unaffected.
ANDTEK is then entitled to terminate
this agreement with prior notice of one
month. If the customer is not objecting to
the customization within the aforementioned
term, the customized general terms
and conditions will become effective.
2. Conclusion of Contracts, Written
Form
2.1. The contract shall become effective upon
ANDTEK’s confirmation of the customer’s
order and transmission of the contractual
documents or upon delivery of the goods.
Offers from ANDTEK are subject to
change.
2.2. ANDTEK only accepts contractual obligations
when the scope and character of the
performance and counter-performance with
respect to both contractual parties are settled
in written form. Oral amendments and
customizations made hereafter will only
become effective on mutual agreement in
written form. This also applies to all expressions
of will, in particular all objections,
demand notices, and notices of defects on
behalf of the contractual relationship. In order
to be effective, both parties must reserve
contractual penalties in written form.
This provision can only be canceled
through an explicit mutual statement in
written form.
3. Priority of the Contracts, Special
Provisions
3.1. The scope of the performances owed by
ANDTEK is exclusively determined through
the contracts and agreements in written
form. To the extent to which they may be
applicable, agreements and conditions will
be effective in the following order: The
Partner Agreement, the End User License
Agreement (EULA), the General Terms
and Conditions for IT-Support Services,
and supplementary these General Terms
and Conditions.
4. Software Enhancements and Software
Customizations
4.1. The customer may separately mandate
ANDTEK to perform enhancements and
customizations to the software.
4.2. As long as nothing else has explicitly been
stipulated, the customer must formulate,
within reasonable time, his requirements
with respect to the software in an appropriate
form and manner in writing. The customer
shall provide to ANDTEK all necessary
information with respect to the creation
of the software in a well arranged
manner and shall explain this information
orally to ANDTEK upon request.
In case that the requirement analysis, specification
sheet or performance details do
not comply with the requirements the customer
actually demands, he must notify
ANDTEK without delay in written form and
offer alternative proposals. The parties will
then mutually agree on amendments or
customization to the original requirements.
To all of these duties of cooperation the
customer shall comply on his own costs.
In case ANDTEK notices that the information
or specifications of the customer are
incomplete or insufficient or unqualified for
the execution of the contract, ANDTEK will
inform the customer without delay in writing.
The customer shall immediately decide
about necessary amendments or customizations,
as far as the creation process of
the software is affected.
Both parties shall specify qualified professional
contacts, which are authorized to
make the necessary decisions with respect
to the creation of the software.
4.3. As long as the software has not been
delivered to the customer, he can request
changes to the requirements in writing, to
the extent that the request for change is in
a reasonable relation to the overall order
and is based upon objective considerations.
Unless the specific operational situation
seems unacceptable, ANDTEK shall
fulfill the customer’s request.
In case the request for change leads to an
impairment of performance and counterperformance
in a not only inconsiderable
way, the parties shall amend the contractual
provisions with respect to the essential
content of the contract (in particular fees,
compensation, and delivery date) without
delay in writing.
In case the parties cannot reach a mutual
agreement within four weeks after the request
of change, the order will be completed
without the requested changes.
4.4. With respect to the acceptance of the
software, the regulations according to sec.
5 of these General Terms and Conditions
shall apply.
4.5. The customer is granted a non-exclusive,
non-transferrable, limited right to use the
enhancements and customizations of the
software. All copyrights and other proprietary
rights remain with ANDTEK. With respect
to the remainder, the provisions of
the EULA shall apply. The parties agree
that the customer is only entitled to use the
software after declaring his consent to the
EULA.
5. Installation of ANDTEK Software
5.1. ANDTEK shall only perform installations on
separate assignment for an additional fee.
The following provisions shall be applicable
for all installations.
5.2. The customer is bound to review and test
the software installation for possible errors
after completion of the installation without
delay. ANDTEK is entitled to attend the review
or test. The customer shall declare
the acceptance of the work without delay in
writing, in case the installation is runcapable
with respect to the main functions
of the consented performances.
5.3. In case the customer denies the declaration
of acceptance, he is bound to explain
to ANDTEK the errors he complains to in
writing without delay to the extent of 10
working days. The declaration must include
a description to the customer’s best endeavors
about the errors. In case ANDTEK
does not receive any declaration within the
term of 10 working days, the installation
shall be regarded as accepted. The denial
of acceptance cannot be based upon insignificant
errors.
5.4. The customer is responsible to fulfill the
requirements arising out of any data protection
regulations with respect to the place
of the installation. The customer is not entitled
to deny the acceptance of the work in
case data protection requirements are not
met.
6. Trainings
6.1. ANDTEK offers trainings to his customers
on separate assignment for an additional
fee.
6.2. Depending on the content of the training,
ANDTEK will impart knowledge and information
to the customer regarding the requirements
and procedures when using the
delivered software on a user and/or administrator
level, and if applicable to distribute
ANDTEK software.
6.3. As far as nothing else has been agreed,
trainings shall be performed within online
sessions or at the ANDTEK training classrooms.
6.4. In case the training shall be performed in
the customer’s premises, the customer
shall take care that the required technical
equipment is held available for free.
6.5. Participants must meet the necessary
elementary knowledge requirements with
respect to IP Telecommunication.
6.6. The customer shall compensate ANDTEK
all costs with respect to accommodations
or other necessary expenses upon provision
of evidence. Travel expenses shall be
reimbursed by the customer.
7. Intellectual Property
7.1. As long as nothing else has been agreed in
writing, ANDTEK shall grant the customer
a non-exclusive, non-transferrable, limited
right to use the software as set forth in the
EULA. The customer does not gain any further
going rights. ANDTEK reserves all intellectual
property or trademark rights of
the software, including the documentation.
7.2. The customer shall only be entitled to use
the software for demonstration or testing
purposes within his own company, as far
as ANDTEK hands out demo- or test versions
of the software. For these purposes,
ANDTEK shall grant the customer a nonexclusive,
non-transferrable, and limited
right to use the demo or testing software.
ANDTEK reserves all intellectual property
or trademark rights of the software, also including
the documentation. For the remainder,
the EULA shall apply.
8. Rights of Third Parties
8.1. The customer will inform in writing and
without delay ANDTEK about all claims of
third parties with respect to the infringement
of copyright or trademark rights. The
customer shall not accept these claims and
may only take defensive actions, including
any amicable arrangement, upon ANDTEK’s
approval. ANDTEK is entitled to take
over the defense on her own costs and
own discretion.
8.2. In case the customer stops to use the
software on behalf of a damage reduction
or other important reasons, he shall notify
any third party that the dismissal does not
mean the approval of the claimed infringement.
8.3. ANDTEK is entitled to amend or change
the software upon infringement claims,
even in case the software was already paid
and delivered to the customer.
9. Cooperation Duties of the Customer
9.1. The customer is bound to comply with any
hints and notes given by ANDTEK with respect
to the description, isolation, diagnose
and notification of errors. When indicated,
the customer is bound to make use of
ANDTEK’s checklists and standard forms.
9.2. The customer shall specify to ANDTEK
contact persons for the joint work. The contact
persons must be reachable on working
days during normal business hours (Monday
to Friday, 9 am to 5 pm CET).
9.3. In case the customer intends to sell ANDTEK
products or services to an end customer,
he is bound to notify ANDTEK on
this subject matter in advance. The customer
is bound to specify the end customer
in his order to ANDTEK. ANDTEK shall license
software product or services directly
to the end customer according to the information
given by the customer. The customer
is not granted any right to use the
software or service for own operational
reasons. The customer is bound to inform
his end customer about the necessity to
agree on ANDTEK’s EULA prior to using
the software in order to be entitled to use
the software. The current EULA can be reviewed
through
http://www.andtek.com/eula.html. For the
remainder, the provision of the EULA shall
apply.
10. Confidentiality and Data Protection
10.1. Both parties agree on not revealing trade
secrets of the respective contractual partner
to any third parties and to treat these
secrets with the necessary confidentiality.
In particular, the parties agree on not utilizing
trade secrets of the respective contractual
partner for any own business purpose.
All documents, drawings or other information
received by the respective contractual
party shall only be used according to the
contractual purpose.
10.2. The customer is bound to label all confidential
information as such using a „confidential“
label.
11. Rights upon Termination
11.1. All goods received, including lent or leased
hardware shall be returned to ANDTEK on
the customer’s own expense with respect
to transport or insurance costs, after termination
of the contract(s).
11.2. In case ANDTEK granted limited rights to
use the software, the customer is bound to
delete the software which is installed on his
own data media upon termination of this
contract and to hand out ANDTEK the deletion
protocols. In case the data media belongs
to ANDTEK, he is bound to hand out
to ANDTEK the relevant data media including
the software.
11.3. All documents belonging to the program’s
documentation, - including all source programs
and development documentation,
when indicated – are to be returned to
ANDTEK in their original form, including all
transcriptions.
11.4. ANDTEK is entitled to demand an official
affirmation that the customer completely
complied with all of his returning obligations.
12. Delivery and Shipping Expenses
12.1. All statements concerning deadlines for
contractual services or performances, as
well as delivery deadlines are estimated
deadlines.
12.2. The delivery deadline shall be extended for
a reasonable time in case the customer
demands amendments or customizations
after placing his order. The same shall apply
in case of any circumstances, ANDTEK
is not liable for and upon which ANDTEK
cannot comply with agreed contractual delivery
deadlines.
12.3. For acts of god, including disruptions of
ANDTEK or her suppliers regarding the
supply, fabrication or delivery which prevent
ANDTEK from fulfilling her contractual
obligations, the regular legal provisions
shall apply, provided that after one month
the customer is entitled to set ANDTEK a
deadline of another six weeks. In case the
delay is verifiable caused due to mobilization,
war, revolt, strike or lockout or any
other cause for which ANDTEK is not liable
according to general principles of law, the
deadline shall be extended for a reasonable
time. The customer is entitled to withdraw
from the contract in case he sets a
new deadline after expiration of the reasonable
extended deadline. The withdrawal
must be declared in written form, in
case ANDTEK does not deliver within the
reasonable extended deadline. In case
ANDTEK cannot fulfill her obligations out of
the contract with respect to the aforementioned
reasons, ANDTEK shall be released
of her delivery obligations.
12.4. The customer must bear all shipment and
transport insurance costs. ANDTEK is entitled
to choose on her own discretion type
and route of the transport. The customer is
bound to examine the delivered goods with
respect to any noticeable damage in transit
or other damages to packaging and shall
notify ANDTEK in writing without delay
within 10 working days after receipt. This
shall also apply in case of any hidden
damage upon their discovery. The customer
shall be held liable for any breach of
his examination duties with respect to
ANDTEK‘s claims against the insurance or
the sub-supplier. For online delivery or
downloads, sec. 17 shall apply.
12.5. Upon leaving the plant or storage of ANDTEK
the risk of accidental destruction or
damage of goods lies with the customer.
13. Payment
13.1. Payments for services or goods are due
within 14 days after invoice, as long as
nothing else has been stipulated.
13.2. The amounts invoiced are excluding VAT,
as declared within the invoice.
13.3. In case the customer is in default with a
payment, ANDTEK is entitled to demand a
default interest of 8 percentage points
above the prime rate, as far as ANTDEK
does not prove a higher damage, or the
customer does not prove a lower damage.
14. Retention of Property
14.1. All hardware delivered remains the property
of ANDTEK until full payment of all
demands and claims arising out of the contractual
relationship with respect to both
main and minor matters.
14.2. All goods delivered with retention of property shall be properly insured by the customer
on his own costs (insurance against
theft, fire, water). The customer must provide
ANDTEK a proof of proper insurance
on demand. In case of damage the customer’s
claim against his insurance shall
be considered as transferred to ANDTEK.
14.3. The customer is not entitled to dispose the
goods within the scope of the retention of
property. In case of seizure or attachment,
the customer is bound to inform ANDTEK
in writing without delay and must inform
any third party about ANDTEK’s retention
of property in due form. In case the customer
is selling the delivered goods and
ANDTEK would approve this, the customer
is transferring all claims against the buyer
to ANDTEK already upon conclusion of the
contract.
14.4. The customer is bound to hand out to
ANDTEK all information needed for enforcement
of these rights and shall cooperate
accordingly.
15. Delay in Acceptance
15.1. In case the customer is in delay of acceptance
with respect to ordered goods or services,
ANDTEK shall set a reasonable new
deadline. If the aforementioned period
expires without success, ANDTEK is entitled
to withdraw from the contract and
claim compensation.
16. Warranty
16.1. Defects (factual and legal positions) will be
resolved by ANDTEK within one year after
delivery and a corresponding notice of the
customer. ANDTEK reserves the right to
choose at it’s own discretion between resolving
the defect of the goods delivered
(rectification of defects) and the delivery of
faultless goods (replacement). The customer
has to bear the costs of transport, in
case the return of the goods is necessary
for the replacement.
16.2. In case the defect cannot be resolved in
reasonable time, or in case the resolving
can be considered as failed, the customer
is on its own discretion entitled to reduce
the price (reduction), withdrawal from the
contract (withdrawal), claim compensation
for damages or compensation of wasted
expenses. For all claims of compensation
article 18 shall apply. The withdrawal does
not exclude the customer’s right to claim
compensation.
16.3. The rectification or replacement shall only
be considered as failed in case ANDTEK
was given reasonable time and opportunity
to attempt the rectification or replacement
and the desired results were not achieved,
in case the rectification or replacement is
impossible, in cases ANDTEK denied or
unreasonable delayed the rectification or
replacement, in case of reasonable doubts
regarding the chances of success, and in
case of unacceptability arising out of other
reasons.
17. Review and Notification Duty
17.1. The customer is bound to report manifest
defects within 10 working days after delivery.
Other defects must be reported immediately
without delay.
17.2. A violation of the review and notification
duties shall lead to the acceptance of the
concerned defect as a proper delivery.
18. Liabilities
18.1. For all cases of contractual and noncontractual
liabilities, ANDTEK shall be liable
solely according to the following limitations:
18.1.1. in case of intention of ANDTEK, her
legal representatives or vicarious
agents, for the full amount, also in the
absence of a characteristic, which
ANDTEK guaranteed;
18.1.2. in case of gross negligence of ANDTEK,
her legal representatives or vicarious
agents only to the amount of
the predictable damage, which should
have been prevented through the duty
breached;
18.1.3. in all other cases: only for the breach
of a essential contractual duty which is
of special importance for achieving the
purpose of the contract and the party
of the contract can normally rely on
(cardinal obligation) to the extent of
the typically predictable damage;
18.2. The liability limitations according to sec.
18.1. shall not apply in any case of liability
arising out of personal injury, fraudulent intent,
and in cases of liability according to
the German Product Liability Act.
18.3. In all cases according to sec. 18.1.3. the
liability of ANDTEK is limited to the extent
of the coverage of ANDTEK’s business indemnity
insurance. On demand the insurance
coverage can be raised on the customer’s
expenses.
18.4. ANDTEK reserves the right of defense of
contributory fault.
18.5. In cases of liability arising out of data loss,
ANDTEK’s liability is limited to the typical
expenses which would occur if data backups
according to the existing risks would
have been performed on a regular basis.
18.6. The aforementioned provision shall also
apply in favor of ANDTEK’s employees.
19. Set-Off and Assignment
19.1. The customer may only setoff counterclaims
in case they are undisputed, recognized
by declaratory judgment, or ready for
adjudication. With regard to such disputed
or legal unbinding counterclaims, the customer
is not entitled to retention.
19.2. The customer is not entitled to assign any
rights resulting from this contract or the individual
contracts to a third party without
prior written consent of ANDTEK. This
does not affect the assignation to affiliated
companies of the customer according to
sec. 15 German Stock Companies Act.
20. Export
20.1. The customer accepts the limitations
according to US customs regulations for
goods which have been imported from the
US. These regulations limit the export and
re-import of hardware, software, technical
data media and direct products of technical
data media including services in connection
to these products.
21. Evidence Provision
21.1. Data saved in ANDTEK’s electronic registers
or in other electronic form, shall be valid
between the parties on behalf of the
proof of data transmissions, contracts and
executed payments.
22. Applicable Law
22.1. This agreement including any privity of
contract is exclusively to be governed by
and construed in accordance to German
law under exclusion of the regulations arising
out of the Convention on the International
Sales of Goods.
23. Place of Jurisdiction
23.1. As far as the user can be classified as a
„Kaufmann“ (business man) according to
the German Commercial Code, legal entity
under public law or separate assets under
public law, the parties agree on Munich,
Bavaria, Germany as place of jurisdiction
for all disputes arising out of this agreement.
24. Language Versions
24.1. The construction and interpretation of this
agreement shall be determined exclusively
on the basis of its German language version;
only the German language version is
legal effective. Any other versions especially
this English version, are purely for the
sake of convenience and not authoritative.
25. Severability Provision
25.1. Should any individual provision in the
above provision be or become invalid, either
in part or in full, or impracticable, this
will not affect the validity of the other provisions.
The invalid or impracticable provision
will be replaced by a ruling that is as
close as possible to the intended economic
purpose.
Hallbergmoos, June 23, 2009
ANDTEK GmbH |
