Terms & Conditions

(The following text is a translation from the German original. In the event of any dispute, the German-language original of the General Terms and Conditions shall prevail.)

1 Validity of the Terms and Conditions

1.1 Our deliveries and other services – in particular support services and offers – shall be made exclusively on the basis of the following General Terms and Conditions (hereinafter: "GTC"), which shall also apply to future business relations, even if they are not expressly agreed again.

1.2 These GTC apply exclusively to entrepreneurs within the meaning of § 14 BGB (German civil code).

1.3 The customer's general terms and conditions shall not apply; we expressly object to their inclusion and validity.

1.4 If agreements deviating from these GTC have been made in offers or order confirmations, the conditions stated therein shall apply in the event of conclusion of the contract.

Part 1: General Provisions

2 Conclusion of contract

2.1 Our offers are subject to change and are non-binding.

2.2 A contract shall only be concluded by our written confirmation of order on the terms and conditions stated therein or by delivery of the ordered goods.

3 Dates and deadlines

3.1 Delivery dates are given with the greatest possible planning care, but are not binding. Binding agreements on dates must be made in writing and must be expressly designated as such.

3.2 Compliance with – also binding – delivery deadlines shall further require the timely and proper fulfillment of the customer's cooperation and other contractual obligations. The agreed deadlines shall be extended, without prejudice to our rights due to default in acceptance by the customer, at least by the period of time during which the customer fails to meet its obligations towards us.

3.3 In the event of a temporary and unforeseeable impediment to performance for which we are not responsible, agreed deadlines and dates shall be postponed by the period for which this impediment lasts.

3.4 Compensation (contractual penalty and/or damages) for delayed delivery shall be excluded unless previously agreed in writing.

4 Prices

4.1 Our prices are net ex works Taunusstein (EXW) plus packaging, postage, customs duty, if any, and the statutory value added tax applicable on the day of delivery.

4.2 All prices shall only include delivery without assembly and commissioning.

4.3 For assembly, support, service and consulting services, our respective valid hourly or daily rates according to the price list shall apply.

4.4 The customer shall bear the transport costs ex works Taunusstein including the costs of transport insurance. This shall also apply if we determine the carrier or forwarding agent or deliver the goods to the customer ourselves.

5 Terms of payment

5.1 Payments shall be due 30 days from the date of invoice without deductions. Discounts shall not be granted.

5.2 Payments must be made without exception by bank transfer to one of our accounts. Other methods of payment, in particular checks or bills of exchange, will not be accepted.

5.3 The customer shall be in default even without a reminder if he does not make payment within 30 days of the due date.

5.4 The customer shall pay the additional costs of monetary transactions to the extent that they have been caused by him.

5.5 All bank charges, in particular in connection with foreign transactions, shall be borne by the customer.

5.6 The customer shall reimburse all costs arising from the dishonor of a check or a direct debit that has not been honored or returned, unless the customer and its agents or vicarious agents can be shown to have exercised due care or the damage would have occurred even if such care had been exercised.

5.7 If a customer is in default, we shall be entitled to charge default interest in the amount of 8 percentage points above the applicable base interest rate from the date of default.

5.8 The assertion of further claims due to default of the customer, for whatever legal reason, shall remain unaffected.

5.9 In the event of default in payment by the customer, we may demand immediate payment of all outstanding receivables irrespective of any agreed payment terms and/or demand advance payment for all existing supply contracts – including those for which there is no default in payment.

6 Copyrights

We reserve the property rights and copyrights to drawings, illustrations or other documents.

7 Software

7.1 Insofar as software is part of the scope of our services, the customer shall be granted a simple right, unlimited in time, not subject to sublicensing, but transferable to the customer's client (hereinafter: "end customer"), to use the software specified in the individual contract for its own internal operational purposes and those specified in the individual contract.

7.2 If the Customer or the End Customer wishes to provide services within the scope of Managed Services, this shall require the conclusion of a separate, comprehensive license agreement, which shall be charged separately.

7.3 The Customer's right of use is limited to the object code of the Software. The customer may only decompile, disassemble or subject the object code to other measures of reverse engineering under the conditions specified in § 69e UrhG (German copyright law). The customer may not edit, change or otherwise rework the software.

7.4 Software provided may only be copied for the purpose of data backup.

7.5 The use of software on several devices requires a special written agreement, unless this is expressly permitted according to the intended use.

In the event of a breach of the above provisions, the customer shall be liable in full for the resulting damage.

8 Liability

8.1 We shall be liable without limitation for personal injury culpably caused by us.

8.2 We shall be liable for other damages if the damage was caused by us, our legal representatives, employees or vicarious agents intentionally or through gross negligence. In addition, we shall be liable in the event of a slightly negligent breach of material contractual obligations, the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer regularly relies and may rely ("cardinal obligations") or the breach of assumed warranty obligations, in these cases, however, limited to the foreseeable damage typical for the contract.

8.3 Liability for indirect damages, such as additional expenses, loss of profit or other financial losses as a result of defective delivery or performance, shall be excluded, unless the damage is due to intent or gross negligence or we have expressly assumed a guarantee.

8.4 Liability for loss of data shall be limited to the typical recovery costs that would have been incurred even if the customer had backed up the data regularly and in accordance with the risk.

8.5 In all other respects our liability is excluded. Liability under mandatory statutory provisions (e.g. Product Liability Act) shall remain unaffected.

9 Data protection

9.1 The customer agrees that his personal data received by us in the course of the business relationship shall be stored and automatically processed in our EDP system.

9.2 Personal data shall be processed exclusively on the basis of the provisions of the BDSG (German federal data protection act).

10 Force majeure

10.1 In cases of force majeure, we shall be released from our obligation to perform to the extent that and for as long as the prevention of performance continues. A case of force majeure shall be deemed to be all circumstances independent of the will and influence of the contracting parties which are unforeseeable, serious and beyond the control of the contracting parties and which occur after the conclusion of the contract, such as, but not limited to: Natural disasters, blockades, war and other military conflicts, mobilization, civil unrest, terrorist attacks, industrial action by third parties, interruption of power supply, seizure, embargo, official measures, failure to issue export, import or transit permits, national measures restricting trade, measures taken by airport and port operators and similar circumstances, provided that we are not responsible for them.

10.2 In cases of force majeure, we may also, at our discretion, withdraw from the contract in whole or in part.

10.3 If the event of force majeure persists for more than three months, the customer shall be entitled to withdraw from the contract in whole or in part after setting a reasonable grace period of at least two weeks.

11 Other provisions

11.1 Verbal collateral agreements, assurances, contract cancellations or amendments to these GTC shall require our written confirmation in order to be valid.

11.2 The assertion of rights of retention and offsetting against counterclaims of the customer not recognized by us in writing shall be excluded unless they have been legally established.

11.3 The law of the Federal Republic of Germany shall be exclusively agreed between the parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

11.4 The place of jurisdiction for all disputes arising in connection with our services shall be Bad Schwalbach, Germany.

Part 2: Special Provisions for Purchase

12 Scope of application

These Special Terms and Conditions for Purchase shall apply to all contracts that are partly or exclusively purchase contracts. In the event of deviations from the General Provisions, these provisions shall take precedence over the General Provisions.

13 Delivery

13.1 The type and scope of delivery shall be determined by our written order confirmation.

13.2 Drawings, illustrations, dimensions and/or other performance data shall only be binding if expressly confirmed by us in writing.

14 Passing of risk

14.1 Unless otherwise agreed in writing in an individual case, the services owed are debts to be discharged. The risk shall pass to the customer as soon as the delivery has been handed over to the carrier or forwarding agent.

14.2 We shall also deliver ourselves at our discretion. In this case, the risk shall pass when the goods are unloaded from the transport vehicle.

14.3 On the basis of a separate agreement, the customer may also collect the goods from our factory in Taunusstein himself or have them collected by a third party. In this case, the goods shall pass to the collector upon handover.

14.4 The above provisions on the passing of risk shall also apply if, by way of exception, we bear the transport costs.

15 Default in acceptance

15.1 If the customer refuses to accept the goods or declares that he does not wish to accept the goods after expiry of a reasonable period of grace granted to him, we shall be entitled to withdraw from the contract and to demand compensation from the customer for the damage incurred against evidence. We are also entitled to demand a flat rate of 25% of the agreed consideration (purchase price/remuneration) as compensation for damages. The customer shall be entitled to prove that we have incurred no damage or a lesser damage.

15.2 If the customer is in default of acceptance, the risk shall pass to the customer at that time.

16 Retention of title

16.1 All deliveries shall be made subject to retention of title. The delivered goods shall remain our property until full payment of all claims arising from the business relationship, including all ancillary claims.

16.2 The customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business as long as he is not in default. The customer already now assigns to us by way of security the claims arising from the resale or for any other legal reason with regard to the reserved goods to the full extent upon conclusion of the contract; we accept the assignment. We authorize the customer to collect the claims assigned to us for our account in its own name.

16.3 The customer may neither pledge the reserved goods nor assign them as security.

16.4 In the event of default in payment by the customer, we shall be entitled to withdraw from the contract and consequently to take back the goods after the unsuccessful expiry of a reasonable deadline set for the customer. In this case, the customer shall be obliged to surrender the goods.

16.5 If, after transfer of title, we exchange items for the purpose of executing an order of the customer or for the purpose of remedying a material defect, title to the items taken back shall pass to us and title to the exchanged items shall pass to the customer upon exchange. Clause 16.1 remains unaffected.

17 Warranty for hardware

17.1 We shall provide warranty only within the scope of the following provisions. Further warranties require a special written declaration.

17.2 For a period of 12 months from the passing of risk, we warrant that the goods delivered are free from defects which would nullify or significantly reduce their value or suitability for normal use.

17.3 If an item sold by us is defective, we shall first have the right to subsequent performance, in particular to remedy the defect or to deliver a replacement item free of defects. Subsequent performance may be carried out by us at our discretion by remote maintenance, on site at the customer's premises or at our factory in Taunusstein.

17.4 If the subsequent performance should fail within a reasonable period of time, the customer may optionally demand a reduction of the purchase price or declare its withdrawal from the purchase contract.

17.5 If the installation of the equipment is contractually owed by us, we guarantee the proper installation of this equipment.

17.6 Deviations from a property which the customer may expect according to public statements by us, our assistants or third parties, in particular in brochures, advertising, promotional product descriptions or on the basis of similar statements about certain properties, shall only be a material defect if the property is also expressly stated in the respective current documentation or specifications or if it was otherwise expressly agreed in the contract.

17.7 The customer shall notify us in writing of any obvious defects within a period not exceeding 14 days from the transfer of risk, and of any hidden defects immediately upon becoming aware thereof. The timely dispatch of the notice of defect shall be sufficient to comply with the time limit.

17.8 Excluded from any warranty are parts subject to wear and tear, as well as damage resulting from improper installation, operation, use not in accordance with the intended purpose, unusual operating conditions, third-party intervention or repair or maintenance work not expressly authorized by us.

17.9 We may refuse to accept returned equipment:

if we were not informed of the reason for the return prior to the return and were therefore not given the opportunity to check the claimed defect or damage prior to the return;
if the returned equipment is not in its original packaging or in packaging equivalent to the original packaging for safe transport.
17.10 We do not assume any liability for data on the devices to be repaired.

17.11 Warranty is excluded for the delivery of used goods and demonstration goods.

17.12 Warranty claims can be transferred from the customer to the end customer.

17.13 The customer shall pay for the rectification of defects according to expenditure, provided that there is no defect which we are obliged to rectify under the warranty. If it turns out during an inspection of the device initiated by the customer that there is no defect, the customer shall also bear the costs for the futile search for defects if he could have recognized the functionality with reasonable care.

18 Warranty for software

18.1 Our services within the scope of a sale may also include the use of software provided by us. In this case, the following provisions shall apply to the warranty with regard to the software in addition to and in derogation of Section 17 Further warranties shall require a special written declaration.

18.2 The customer is aware that software may contain programming errors. Accordingly, we do not warrant that the software provided by us is error-free or will function without interruption. Software shall be deemed to be free of material defects if, when used in accordance with the contract or the intended use, it functions in the operating environment for which it is intended as described in the respective current documentation for the software or, in the case of individual software, as described in the specifications.

18.3 No warranty shall be assumed for

• malfunctions and errors caused by the fact that software has not been used in accordance with the contract;
• malfunctions which are consequences of intentional interventions by third parties (e.g. viruses);
• incompatibility with third party software which we have expressly rejected.

If we do not expressly reject software, this does not mean that we accept this software as compatible, but merely that we are not positively aware of any obstacles to compatibility. In no case shall our silence be construed as a warranty.

18.4 If software developed by third parties (third-party software) is used within the scope of our services, the customer shall only be entitled to claims with respect to the third-party software to the extent that we are entitled to a claim against the licensor under the respective license agreement for the third-party software. We shall not assume any further warranty or liability for third-party software, but shall assign our claims against the licensor to the customer at the customer's request, unless this is excluded by the contract between us and the licensor.

Part 3: Special Provisions for the Project Business

19 Scope of application

These Special Provisions for the Project Business shall apply to all contracts which are partly or exclusively contracts for work and services. In the event of deviations from the General Provisions, these provisions shall take precedence over the General Provisions.

20 Acceptance

20.1 Special provisions for acceptance may be agreed in the individual contract, in particular acceptance procedures and/or criteria on the basis of which conformity with the agreed specifications shall be determined.

20.2 If acceptance is to take place, the Customer shall, after handover of the Services provided in accordance with the contract and after receipt of a written notice from us regarding the provision of the Services in accordance with the contract, inspect the Services for the purpose of acceptance within two (2) weeks to determine whether the Services are free of defects. We shall be authorized to participate in the acceptance inspection.

20.3 The Customer must,

• if the Services are free from defects, declare acceptance of the relevant Services in writing without undue delay;
• if the Services have only insignificant defects, immediately declare acceptance in writing and note the defects in the acceptance declaration;
• immediately notify the Supplier in writing of any defects in the Services for which the Supplier is entitled to refuse acceptance of the Services.

Our Services shall also be deemed to have been accepted if the Customer does not accept the Services within a period of two (2) weeks after receipt of the written notice of provision of the Services pursuant to Section 20.2, although they are ready for acceptance or the Customer uses the Services in productive operation.

20.4 If the Customer notes defects in the acceptance declaration or if it refuses acceptance due to defects, it shall be obliged to present the defects to us in writing at the same time and with as detailed a description of the defect as possible, provided that the Customer has the necessary know-how to describe the defects in detail. If the customer does not have the necessary know-how for the technical description of the defect, the functional effects shall be described.

21 Deviating terms of payment

21.1 Special productions within the scope of a project contract shall – in deviation from clause 5.1 – be invoiced according to the following payment schedule:

• 50% of the order sum upon order confirmation
• 40% of the order sum upon readiness for operation
• 10% of the order sum after acceptance
• Personnel deployment immediately (according to expenditure).

Part 4: Special Provisions for Service, Support and Other Services

22 Scope of application

These Special Provisions for Service, Support and Other Services shall apply to all contracts which are partly or exclusively service contracts. In the event of deviations from the General Provisions, these provisions shall take precedence over the General Provisions.

23 Support and services

23.1 Support and services shall be provided within the framework of service contracts within the meaning of § 611 BGB (German civil code).

23.2 Support and services shall generally be subject to payment unless they are provided within the scope of the statutory warranty.

24 2nd and 3rd level support

24.1 Support and services in 2nd/3rd level support shall also be provided to end customers. This shall also apply to end customers who have purchased an OEM device manufactured by us from third parties.

24.2 The receipt of services in 2nd/3rd level support requires the conclusion of a corresponding service contract. If we provide services in 2nd/3rd level support without a service contract having been concluded, we may, at our discretion, refuse to provide the services or charge for them on a time and material basis in accordance with our current price list.

Taunusstein, 15.07.2013