1. Application area
The following conditions of sale and delivery apply for all the performances rendered by BECOM Software AG including sales, service, production of programs, consultancy and project planning.
If the customer should not accept the following terms then it requires an express written agreement for its amendment. Oral agreements do not alter these general terms and conditions and are not binding for BECOM Software AG.
Potential general terms and conditions that oppose these general terms and conditions shall only applied if these are recognised in writing by BECOM Software AG. Supplementary general terms and conditions of a customer can also become the object of the contract without written acknowledgement.
2. Conclusion of the contract / Offers
With the exception of cash business deals a contract shall only come into effect by means of a written confirmation of an offer by BECOM Software AG. Offers of BECOM Software AG are non-binding until they have been confirmed in writing and do not oblige BECOM Software AG to render the performance.
After the customer has signed an offer BECOM Software AG is entitled to cancel the agreement within four weeks of the receipt of the signed offer. The statement of reasons is not required for this. The right to cancel applies in particular if suppliers of BECOM Software AG change their prices within four weeks of producing an offer or delivery problems arise.
Following the written confirmation of the offer by BECOM Software AG it shall be bound by the prices stated for a duration of 14 days. If a delivery cannot be performed within this period for reasons that are not the fault of BECOM Software AG then BECOM Software AG shall be exempted from liability due to delayed delivery. However, BECOM Software AG declares that it is prepared to support the client when it enforces its claims against the delivery company and if necessary to assign its own claims due to the delayed delivery against the supplier to the customer.
After the expiry of a term of 14 days BECOM Software AG is entitled to change the prices calculated in the offer if BECOM Software AG has other prices charged to it by the supplier.
3. Delivery / acceptance of the performance
The delivery / acceptance of the performance shall be exclusively performed at the premises of BECOM Software AG. If the customer demands delivery to another location the delivery shall be performed at the customer"s own expense and risk. This also applies if BECOM Software AG delivered the performance itself to the customer at its request and did not commission a haulier. In all cases the risk of the accidental destruction of the performance shall be transferred to the customer as soon as the handing over of the performance is not performed at the premises of BECOM Software AG.
At the customer’s demand the performance shall be transported by a haulier and the performance shall be insured against destruction for an additional charge. If the customer does not expressly demand this form of delivery BECOM Software AG can also deliver it itself without being obliged to insure the performance.
The customer is obliged to accept the performance at the latest two weeks after receiving notification of its provision.
Following the expiry of this term BECOM Software AG is entitled to demand a late fee of € 5.00 for each day of non-acceptance. No contract of deposit comes about as a result of this, BECOM Software AG cannot accept any liability for damages incurred to the performance or its complete destruction during the period of the delay in acceptance. Upon the onset of the default the customer shall then also be liable for the accidental destruction of the item if it is a performance in terms of its type that can be determined and justified. The same applies to the destruction or damage of the performance due to negligent actions on the part of BECOM Software AG.
If the customer has not accepted the performance after 4 weeks have passed since being notified of the provision of the performance then BECOM Software AG is entitled in addition to enforcing the aforementioned late fees to cancel the contract and to demand compensation due to non-fulfilment, in which case BECOM Software is entitled at its own choice to enforce a flat compensation rate of 25% of the counterperformance or the actual loss that has been incurred.
The payment of the performance must be made at the latest four weeks after the complete delivery by BECOM Software AG, in the case of the delivery of partial performances that can be used independently four weeks following invoicing with respect to the part performances.
BECOM Software AG is entitled in the event of delayed payments to demand 5% above the respective discount rate of the Bundesbank without providing documentary evidence of the actual rate of interest.
In the case of performances with a value of more than € 2,500.00 BECOM Software AG is entitled to demand 20% of the value of the performance as an advance payment if BECOM Software AG has provided written confirmation of the order.
Setting off with counterclaims or retention of the purchase price by the customer are only possible if the reason that justifies the setting off or retention has been established by law or has been recognised by BECOM Software AG in writing.
5. Defects / Warranty
The customer must immediately provide notification to BECOM Software AG of evident defects in the performance as well as damage to packaging or at the latest 10 days after becoming aware of it. In the case of defects for which notification was provided later despite knowledge of the defect BECOM Software AG is entitled to demand guarantees.
The rights of the customer resulting from a faulty performance are limited to the right of the rectification of defects. Cancellation of sale and reduction of purchase price shall be excluded unless BECOM Software AG is unable to rectify the performance despite making three attempts to do so.
During this statutory warranty term BECOM Software AG shall grant free guarantees and extending beyond this guarantee performances if the manufacturer has also granted a more far reaching guarantee.
The warranty commences on the day of the delivery and in the case of dependent part deliveries on the day the part performance can be used for the intended purpose.
Guarantee claims shall expire in each case if the customer has itself interfered with the subject of agreement, in particular in those cases when guarantee and safety seals were damaged by the customer.
The guarantee performance shall be rendered at the premises of BECOM Software AG. It is the task of the customer to dispatch the faulty performance. The aforementioned clause in item 3 shall apply for the acceptance of the faulty performance at the customer"s site and the dispatching of it to the premises of BECOM Software AG.
The customer"s right to compensation due to a faulty performance and due to consequential damages, in particular the enforcement of lost profits due to the deficiency of performance or the loss of data shall be restricted to actions with intent or grossly negligent actions on the part of BECOM Software AG.
7. Retention of title
The performance supplied by BECOM Software AG shall remain the property of BECOM Software AG until it is paid in full. This shall also if the customer resells the performance rendered by BECOM Software AG to third parties. In this case the customer to inform the third party of the existing reservation of title and BECOM Software AG of the sale to a third party as well as its name and address. If the customer does not meet this obligation BECOM Software AG is entitled to enforce all the resulting damages against the customer or immediately cancel the contract.
Claims on the part of the customer resulting from the resale of the performance shall now already be assigned to BECOM Software AG in full until the performance has been completely paid for.
8. Agreement on the place of jurisdiction
In the event of disputes relating to performances to business people Weimar shall be deemed to be the agreed place of jurisdiction.
9. Severability clause
If individual provisions here should be ineffective this shall not affect the effectiveness of the remaining provisions.
As at: 10/2010