Commercial terms and conditions of Sage bäurer GmbH for deliveries and services
1. Scope
Sage bäurer GmbH sells, produces, delivers and installs goods, including software (subject matter of the contract), exclusively on the basis of these commercial terms and conditions. These conditions shall apply for all future business relations, even if they are not expressly renewed. Any commercial terms and conditions or conditions of purchase of the customer shall only apply if Sage bäurer GmbH has explicitly approved these in writing. Provisions of other parts of the contract (for example Sage bäurer’s project manual, the maintenance agreement, master project agreements, functional specifications or non-disclosure agreements) shall take precedence over these conditions if this is provided for in those documents, particularly a master project agreement, supplied by Sage bäurer to the customer in connection with the conclusion of the contract. These conditions shall only apply to companies, legal entities subject to public law and special assets under public law.
2. Delivery item, terms of delivery
2.1 Sage bäurer GmbH shall be authorised to deliver partial shipments. Deliveries of higher value goods and services at the expense of the customer shall only be permitted if this has been agreed with the customer in advance in writing; in the case of software projects, this shall be carried out as a change request procedure. Technical data, specifications, product and/or software descriptions, quality descriptions or other service specifications shall not constitute warranties or guarantees of quality.
2.2 The installation of the subject matter of the contract, a briefing and/or training course are not covered by the contract and are not included in the price (e.g. the price for software), unless these services have been explicitly agreed upon in writing. If, at the request of the customer, such additional services are rendered by Sage bäurer GmbH, the prices stipulated in the valid price list of Sage bäurer GmbH at the time at which said services are rendered shall apply. If any additional services are rendered, Sage bäurer shall be entitled to adjust the agreed man-days (service days) in line with the development of the project and to charge for these in accordance with the agreed price, if additional effort and expense is necessary through no fault of Sage bäurer. If possible, Sage bäurer shall inform the customer of this as part of the conclusion of the contract.
2.3 Deliveries shall be made ex works from the plant of Sage bäurer GmbH to the delivery address specified by the customer, at the customer’s risk. As an alternative, Sage bäurer GmbH shall have the right to deliver software and new program releases electronically, in particular by making them available for downloading. Delivery through telecommunications channels shall be at the customer’s risk. Acceptance of a delivery is an essential contractual obligation for the customer.
2.4 Delivery dates and terms and/or delivery periods following a specified event (delivery times) shall only be binding if they have been explicitly confirmed as binding by Sage bäurer GmbH in writing.
2.5 Our deliveries are subject to deliveries being made to us correctly and ion time.
2.6 Delivery times shall be deemed to have been complied with if the goods to be delivered are dispatched for shipment or made available for collection within the agreed delivery time. If the production of an item and/or its installation has been contractually agreed, the delivery period shall be deemed to have been complied with if said production and/or installation, depending on the agreed performance item, has taken place within the agreed period.
2.7 Delivery times shall be extended for Sage bäurer GmbH in cases where disruptions are caused by force majeure or other hindrances for which Sage bäurer GmbH is not responsible, if said disruptions or hindrances have a significant impact on the performance of Sage bäurer GmbH (for example, strikes, lockouts, war, disruptions to upstream deliveries, operational disruptions), by the same length of time as the duration of the disruption, including an appropriate recovery time (however, three business days at the most) following the cessation of the hindrance. If the delivery becomes permanently impossible or unreasonable as a result, each party to the contract shall be entitled to withdraw from the contract with immediate effect.
3. Delays in delivery
3.1 If Sage bäurer GmbH is behind schedule with a part of the delivery, the customer can only declare its withdrawal from the contract for that part, unless the remaining parts of the goods or services to be delivered are not commercially useful without the missing parts.
3.2 The customer shall be obliged, upon request by Sage bäurer GmbH, to declare within a reasonable period whether it is withdrawing from the contract because of a delay in the delivery for which Sage bäurer GmbH is responsible, whether it expects compensation for damages instead of the performance and/or a reimbursement of expenses and whether it insists on the fulfilment of the agreed delivery.
4. Prices and terms of payment
4.1 All prices specified are net prices in euros subject to the addition of the legally applicable value added tax and any other duties. A discount shall not be granted unless this has been explicitly agreed in writing.
4.2 If partial deliveries are made as outlined in item 2.1 of these commercial terms and conditions, these can be invoiced separately and independently by Sage bäurer GmbH.
4.3 The interest rate for default interest, interest on use, interest charged on deferred payment and/or interest on arrears is 8% over and above the basic rate of interest. The assertion of claims for damages which go beyond this is not excluded.
4.4 The customer may only offset claims which are undisputed or have been established with legally binding effect. This also applies equally for the customer’s right to withhold performance and right to retention, which may only be asserted if they are based on the same contractual relationship.
4.5 Sage bäurer GmbH shall be entitled to make performances subject to a partial or full advance payment towards the remuneration amount demanded by it if, following the conclusion of the contract, it becomes apparent to Sage bäurer GmbH that its claim to said remuneration is at risk due to a lack of financial capacity on the part of the customer. This shall apply, in particular, when there is some indication that the customer’s financial circumstances have worsened considerably or if the customer is fully or partially in arrears with the payment of remuneration. The legal rights of Sage bäurer GmbH shall remain unaffected in this case.
5. Reservation of proprietary rights
5.1 The subject of delivery or performance shall remain the property of Sage bäurer GmbH (goods subject to retention of title) until all claims of Sage bäurer GmbH arising from the business relationship with the customer have been paid in full. If the value of the goods subject to retention of title exceeds the secured claims by more than 20%, Sage bäurer GmbH shall be obliged upon request by the customer to release the part which exceeds 120%, at its own discretion.
5.2 If the customer breaches its obligations, in particular in the case of arrears in payment, Sage bäurer GmbH shall be entitled to demand that the goods subject to retention of title be returned and/or to withdraw from the contract, including without notice, in which case the customer shall be obliged to return the goods immediately.
5.3 The customer is not permitted to sell the goods, pledge them, assign them as security or transfer them to third parties. In the event of an intervention by a third party regarding the goods subject to retention of title, the customer shall be obliged to indicate that Sage bäurer GmbH is the owner of the goods and to inform Sage bäurer GmbH immediately of this situation in writing. The customer shall bear all costs arising from defence and legal proceedings in connection with such intervention by third parties regarding the goods subject to retention of title.
6. Utilisation rights
6.1 Sage bäurer GmbH grants the customer a non-exclusive right to use the software specified in the contract, as well as any delivered documents and any other performances protected by copyright, for its own purposes without time limitation and in the contractually agreed scope following full payment of the remuneration due. For software, unless a written arrangement has been made to the contrary, the right to use relates solely to the version and release status of the respective software specified expressly in the order confirmation or delivered by Sage bäurer GmbH. Software will only be delivered in the object code. Reverse engineering (decompilation) of the program code into another format is not permitted. The scope of any right of use granted (capacity-based and/or user-based) arises from the agreed performance specifications or, if such specifications have not been agreed, from the order confirmation issued by Sage bäurer GmbH. If such an order confirmation does not indicate any specific details concerning scope, in the case of standard software the scope defined for the remuneration specified in Sage bäurer GmbH’s price list which the customer must pay for the software according to the agreement shall apply. The customer shall not be entitled to adapt, copy or disseminate the software, to interfere with the program code or to combine it with other software.
6.2 The granting of utilisation rights for software of third parties is subject to their software conditions (licensing conditions). Where possible, Sage bäurer GmbH shall point out this fact upon conclusion of the contract and/or before the software is used.
6.3 The software may only be copied, reproduced or transmitted to another system via a computer network if this is necessary for the contractually agreed operation and/or for the purposes of archiving or backing up data.
6.4 A right to rent or lease the software or a comparable right to transfer it to third parties is not granted. A right to process data for third parties using the software is not granted.
6.5 A transfer to third parties of the rights of use granted shall require the prior written consent of Sage bäurer GmbH. Sage bäurer GmbH shall not refuse to grant such consent unreasonably. Third parties include companies affiliated to the customer.
6.6 Proprietary and copyright notices on and in the software may not be removed and must be retained for any copies.
6.7 Documents and other materials may only be copied for internal training purposes. Online help texts can also be printed out for this purpose. Reproduction of the software for this purpose is not permitted.
6.8 If the number of users falls short of the contractually agreed number, the customer shall not be entitled to a reduction in the licensing fee.
6.9 The customer has the right to permit the subsidiaries specified in the master project agreement or an appendix to the contract to use the software, provided that they undertake to comply with the conditions of use applicable to the software. However, the joint use by the customer and the subsidiaries must not exceed the overall agreed scope (capacity-based and/or user-based). If the software is consensually used outside Germany, it shall be at the customer’s own risk. In this respect, Sage bäurer GmbH accepts no liability for defects. The customer guarantees to Sage bäurer GmbH that the software will be used correctly by its subsidiaries. The customer can permit other subsidiaries to use the software, provided it obtains Sage bäurer GmbH’s approval for this in advance. Sage bäurer GmbH shall only refuse such approval for valid reasons. A valid reason shall be deemed to exist, in particular, if the subsidiaries do not offer a guarantee that they will comply with the provisions regarding usage rights or if the use would breach applicable laws, for example export regulations.
6.10 The utilisation rights specified in this item shall be granted to the user under the condition precedent that it has paid the purchase price in full.
6.11 The customer must provide Sage bäurer GmbH with at least the following information, which is usually collected in the distribution process, for the registration of the software, and in the event of a change during the business relationship it must inform Sage bäurer GmbH of the changes by notifying its contact person of them in writing, at least by e-mail:
- the name of the user and/or the company which has purchased the software in question;
- postal address;
- telephone number and fax number;
- generic permanent e-mail address (e.g. info@);
- a contact person for the department (technical of business) responsible for the deployment of the software or managing director;
- the e-mail address, telephone number and fax number of the contact person.
This information is necessary so that Sage bäurer GmbH can immediately convey important information (the identification of an infringement of third-party rights, security loopholes, errors, other important product information) to the contact person of the customer who has been assigned this role. It is also required for comprehensive customer care (see item 11 of these terms and conditions).
7. Defects in quality and defects of title
7.1 The limitation period for defects in quality and defects of title is one year from delivery of the goods, software or modification programming, unless otherwise agreed in writing. This shall not apply to injury to persons, liability under the German Product Liability Act (Produkthaftungsgesetz) or the fraudulent concealment of a defect. The obligations to inspect and give notice of defects pursuant to Article 377 of the German Commercial Code (HGB) shall remain unaffected
7.2 Warranty claims shall not exist where deviations from the agreed quality are negligible, where defects are insignificant, in the event of merely minor impairment in the usability compared with the agreed intended use and in the event of non-reproducible software defects. Warranty claims shall also not exist if the subject matter of the agreement has been altered, incorrectly installed, serviced, repaired or used or subjected to inappropriate environmental conditions by the customer or third parties, or if the customer has used the subject matter of the agreement excessively, unless the customer proves that these circumstances are not responsible for the notified defect and that remedying the defect has not been made unreasonably difficult due to this. Normal wear and tear does not constitute a defect.
7.3 The customer must notify Sage bäurer GmbH in writing, clearly and in detail, of any defects in quality that occur, including details of the circumstances in which the defects became apparent, and must describe what effect these had. Sage bäurer GmbH must also be notified immediately in writing of any defects of title asserted or assumed by the customer, and the customer must provide proof to Sage bäurer GmbH of any reprimands or claims made by third parties in connection with such defect of title.
7.4 Sage bäurer GmbH shall immediately inspect and analyse any defects for which it is liable of which it has been informed using the proper procedures and then render subsequent improvement of said defects within a reasonable period of time, unless it is entitled to refuse to carry out said subsequent improvement in accordance with the provisions of law. When assessing what constitutes a reasonable period of time, the following must be taken into consideration in particular: the severity of the defect, the complexity of the goods or services provided, the difficulty involved in remedying the defect or in delivering it free of defects, as well as the period required to render said performance and provide any additional deliveries that may be needed. The customer must allow Sage bäurer GmbH to look for and analyse the cause of the defect, provide appropriate support for this and allow Sage bäurer GmbH to inspect any documents which may shed light upon the circumstances under which a defect that has occurred or is claimed may have been caused. If a review of a complaint shows that a warranty claim is not justified, Sage bäurer GmbH shall be able to demand that the customer provide compensation for the costs and expenses incurred for this under the conditions and at the prices specified in the valid price list of Sage bäurer GmbH, unless it was impossible for the customer to recognise that no defect existed without incurring unreasonable expenses.
7.5 Sage bäurer GmbH may, at its own discretion, render subsequent improvement either by remedying the defect or by delivering an object/product that is free of defects. In the case of software, the subsequent improvement may also be rendered by supplying a new version, a modification or a new release, service packs, feature packs, patches, add-ons, hotfixes or additional packages. With regard to defects of title, Sage bäurer GmbH shall also be entitled to remedy the defect by procuring a corresponding right of use for the customer from the third party or by amending the performance in such a way that the defect of title is eliminated.
7.6 If the subsequent improvement does not succeed within a reasonable period of time specified by the customer in writing, or if setting such a deadline is superfluous or cannot reasonably be expected of the customer, the customer shall be able to reasonably reduce the remuneration, provided that the other legal requirements are fulfilled, or withdraw from the contract and demand compensation for damages instead of the performance or, instead of this, a reimbursement of expenses. The setting of a deadline shall be deemed to be superfluous, in particular, if Sage bäurer GmbH explicitly refuses to carry out subsequent improvement or if a subsequent improvement has failed. The subsequent improvement shall be deemed to have failed at the earliest after the second attempt at subsequent improvement. With respect to a defect the customer may only withdraw from the contract with regard to the defective parts of the performance, unless the other parts of the performance are not commercially useful for the customer without the missing parts.
7.7 In the event of justified notifications of defects, the payments by the customer may only be withheld to an extent which is in reasonable proportion to the defects in quality. The customer may only withhold payments if a notification of defects has been submitted the legitimacy of which is undisputable or which has been accepted by Sage bäurer GmbH in writing.
7.8 Sage bäurer GmbH shall be able to demand that the customer reimburse it for transport expenses and costs, journey times and work and materials incurred because the performance object was subsequently taken to a location other than the customer’s delivery address, in accordance with the conditions and prices specified in its current price-list, unless such relocation is consistent with the agreed use.
7.9 Any more far-reaching or different claims against Sage bäurer GmbH and its vicarious agents due to or as a result of defects in quality and defects of title other than those regulated in item 7 and item 8 here are excluded.
8. Liability
Sage bäurer GmbH’s liability arising from and in connection with the conclusion and execution of the contract is limited as follows, irrespective of the actual or legal reason for it and whether it results from the contract or from law:
8.1 In cases of wilful damage or damage resulting from gross negligence, liability for injury to persons or liability pursuant to the German Product Liability Act, the provisions of law shall apply.
8.2 In cases of simple negligence, Sage bäurer GmbH shall only be liable if the damage was caused by a breach of key contractual obligations, in cases of default or in the event of an impossibility of performance for which Sage bäurer GmbH is responsible. In such situations, Sage bäurer GmbH’s liability for financial losses or damage to property shall be limited to the typical damage which was foreseeable for Sage bäurer GmbH at the time when the contract was concluded.
8.3 In cases of liability due to the provision of a guarantee for the quality of the subject matter of this contract or if an impossibility of performance should occur while Sage bäurer GmbH is in default with respect to rendering its main services, the liability shall be limited to damage that is contractually typical or foreseeable.
8.4 Liability on the part of Sage bäurer GmbH for loss of data requires that the customer has backed up its data at appropriate intervals, with due care and at least once a day, and that that backup can be used to recover the data. Sage bäurer GmbH’s liability is limited at all times to the amount of the expenses necessary to recover the unavailable data from a correct and, in particular, machine-readable data backup.
8.5 In all cases, with the exception of what is provided for in item 8.1, the liability arising from and in connection with the conclusion and execution of the contract and irrespective of the actual or legal reasons is limited to the liability sum agreed between the customer and Sage bäurer GmbH.
9. Confidentiality
9.1 If, as part of the execution of this contract, one of the contractual parties gains knowledge of/about confidential information (in particular technical information or information concerning business or operational matters) of the other party or any vicarious agents it has engaged, said contractual party shall be obliged to treat that information as confidential.
9.2 Offers of Sage bäurer GmbH, as well as cost estimates, concepts and technical specifications or similar documents, must be treated as confidential information. These items and their content may only be passed on to third parties on receipt of the prior explicit written consent of Sage bäurer GmbH.
9.3 The obligation to maintain secrecy under this item 9 shall continue to be valid for five further years following the expiry and/or fulfilment of the contract. Protective rights (e.g. copyrights etc.) remain unaffected. Any information concerning the source code of the standard software or a modification program provided by Sage bäurer GmbH in connection with the contractual relationship must be kept secret indefinitely. Any non-disclosure agreement concluded in connection with an order shall take precedence over this item 9.
10. Other provisions
10.1 Sage bäurer GmbH may use employees, freelance employees or other vicarious agents or assistants to perform services, at its own discretion. The performance of services by subcontractors who are not affiliates of Sage bäurer GmbH is only permitted after prior consultation with the customer.
10.2 Sage bäurer GmbH is entitled to refuse to fulfil the obligations arising from the contract if this would result in an infringement of export regulations.
10.3 Unless another exclusive place of jurisdiction has been agreed upon, the place of jurisdiction for all legal disputes of a proprietary nature arising from or in connection with this contract shall be Frankfurt am Main. The place of performance for the services rendered by both parties shall be the registered headquarters of Sage bäurer GmbH in VS-Villingen.
10.4 This contract is subject to the substantive laws of the Federal Republic of Germany for domestic business transactions. The UN Convention on Contracts for the International Sale of Goods of 11 April 1980, UNCITRAL Purchase Law, is excluded.
10.5 If one of the provisions of these commercial terms and conditions or of the contract should prove to be ineffective or null and void, this shall not affect the effectiveness of the other provisions. In such a situation, the parties shall agree to effective replacement provisions which come as close as possible in their regulatory intention and commercial consequences to the ineffective provisions. The aforementioned applies accordingly to unintended regulatory loopholes.
10.6 Any and all changes or additions to the contract or these commercial terms and conditions must be made in writing to become effective. This also applies to any waiver of the requirement for written form.
11. Use of the personal data provided in connection with the registration of the software product and the initiation of the business relationship and in the course thereof.
The customer or the employee of the customer acting on its behalf agrees, to the extent legally permitted, to the personal data collected in connection with the registration and the initiation of the business relationship and in the course thereof being transmitted by Sage bäurer GmbH to the persons affiliated with it in the German-speaking countries (www.sage.de/com/standorte_anfahrt.asp) and being used by Sage bäurer GmbH and the persons affiliated with for the purpose of providing information about the products and services offered by it. This consent is also necessary from the employees serving as contact persons of the customer for Sage to ensure comprehensive support for the customer by the Sage companies operating in the German-speaking countries. The customer is aware of this fact and shall support Sage in obtaining the necessary consent.
12. Special withdrawal provisions pursuant to the German regulation on the acceptance and certification of further training qualifications of the Federal Labour Office (AZWV)
The following shall apply to initiatives financed through the AZWV:
12.1 Withdrawal from an AZWV initiative must be submitted in writing.
12.2 If said withdrawal is effected because the financing applied for has not been approved, the participant shall not be required to pay any withdrawal fee.
12.3 If a participant leaves such a course prematurely in order to enter into employment (for an indefinite period or limited to at least one year and liable to insurance deductions), the participant shall also not be required to pay a withdrawal fee.