§ 1 Scope

(1) The following Terms and Conditions apply to all present and future quotations provided by us and to all present and future contracts concluded by us with companies (Section 14 of the German Civil Code – BGB), legal persons under public law or special funds under public law (hereinafter referred to as “the Customer”). The Customer’s own general terms and conditions shall only form part of this contract if and to the extent that we expressly consent to this.


§ 2 Conclusion of the contract

(1) Unless stated otherwise, our quotations are subject to change and are not binding; a contract is only concluded when we confirm the order in writing or when we commence fulfilment of the order with the Customer’s knowledge. The contract terms and in particular the scope of performance shall be determined exclusively by the contents of our order confirmation. Amendments or additions to the contract must be confirmed by us in writing.

(2) We are entitled to engage third parties to help us fulfil our contractual obligations.


§ 3 Amendments to the agreed product or service

(1) If the Customer wishes to make any amendments to the agreed product or service or to amend the original quotation, they must request this in writing. We will then inform the Customer whether and, if applicable, under which conditions we can accept and implement this amendment.

(2) We reserve the right to deliver products and/or services which differ in terms of the images, descriptions, drawings, weights, dimensions and other information provided in our brochures, price lists, catalogues and quotation, provided that the products and/or services delivered are not materially different or their quality is improved and the modifications are reasonable for the Customer.


§ 4 The Customer’s particular duties of cooperation

(1) The Customer agrees to provide us in good time with all the documents we need to fulfil the order and to inform us of any events and circumstances which may be relevant to our fulfilment of the order. This also applies to any documents, events or circumstances of which the Customer only becomes aware during our fulfilment of the order. At our request, the Customer shall share information with us in writing or shall repeat in writing any information already shared with us orally.

(2) The Customer shall ensure that any software products and data storage devices provided to us have been checked for viruses and similar harmful programs using anti-virus software which is completely up to date at the time when such products and devices are handed over.


§ 5 Prices and terms of payment, offsetting and the right of retention

(1) All prices are quoted exclusive of statutory value-added tax. Unless otherwise agreed in writing, the price list valid at the time of the conclusion of the contract shall apply.

(2) Third-party services and additional services which are not included on the price list or quotation shall be paid for separately. Additional services shall be charged for at the daily rates applicable at the time when the additional service is agreed. Incidental expenses and travel expenses are also subject to our current rates.

(3) Unless otherwise agreed in the contract, the full payment shall be due without any deductions following delivery or performance of the service. The Customer shall be in arrears 10 calendar days following delivery or performance of the service, without the need for a reminder. The date of payment shall be determined by the date on which we actually receive the payment. In the event of any defaults in payment for which we are not responsible, we shall be entitled, without prejudice to any other claims for compensation, to delay performance of our contractual obligations until the overdue payments have been made.

(4) Unless otherwise agreed in the contract, where licence fees are paid monthly, the full net amount without any deductions plus any value-added tax shall be paid into our account in advance by no later than the third working day of the month.

(5) If our claims appear to be at risk due to a considerable deterioration in the Customer’s financial situation, we shall be entitled to withdraw from the contract. If the Customer is in arrears, we shall be entitled to demand immediate payment of the total amount we are owed. In such cases, we shall also be entitled to only process the Customer’s orders in return for an upfront payment or a security deposit.

(6) The offsetting of such claims against the Customer’s counterclaims or the retention of payments due as a result of such counterclaims shall only be permissible if the counterclaims are undisputed or final and absolute or if they have a reciprocal relationship with our claims.

(7) If, for reasons beyond our control, the service is performed more than six months after the conclusion of the contract, we may adjust the price in line with the price list valid on the day on which we perform the service (less an agreed percentage or fixed discount).


§ 6 Deadlines, time limits and impediments to performance

(1) Delivery deadlines and deadlines for the performance of services shall be agreed on a case-by-case basis. A delivery deadline shall be deemed to have been observed when the product to be delivered has been dispatched or is made and notified as being ready for dispatch.

(2) We shall inform the Customer without delay if we are unable to meet the agreed delivery deadline or deadline for the performance of our services for reasons beyond our control (operational disruptions, strikes, lockouts, pandemics, epidemics (incl. COVID-19), power outages, late deliveries from our suppliers, problems with third-party products, e.g. software from other manufacturers, etc.). In such cases, the Customer shall not be entitled to withdraw from the contract.

(3) Both parties may withdraw from the contract if, in the cases specified in Clause 6.2 above, it is foreseen that we will be unable to provide our services within a reasonable period of time and at the latest within four months. The same shall apply if the reasons for the delay still exist four months after we have notified the Customer thereof. If we have made partial deliveries or performed some of the services, this right of withdrawal shall only apply to the products or services still to be delivered or performed. We shall not be entitled to withdraw from the contract if we should have been aware of the reasons for the delay when we concluded the contract.


§ 7 Delivery, transfer of risk, acceptance

(1) In cases where we are delivering physical products (e.g. hardware), these shall be delivered ex works from Breisach am Rhein, Germany (Incoterms 2020). If there is a delay in the Customer accepting the products, the transfer of risk shall take place when we notify the Customer that the products are ready for dispatch. This shall apply irrespective of whether the products are dispatched from the place of performance and irrespective of who bears the transportation costs.

(2) Partial deliveries are permissible, provided that the partial delivery can be used by the Customer given the purpose of the contract, there is a guarantee that the remaining goods ordered shall be delivered and this does not result in a considerable additional workload or considerable additional costs for the Customer.

(3) If the Customer is required to or has agreed to accept the deliveries and provided that the other requirements for acceptance have been met, the Customer is also obliged to accept self-contained partial deliveries, provided that the partial delivery can be used by the Customer given its contractually agreed purpose and acceptance does not result in a considerable additional workload or considerable additional costs for the Customer. Our services shall be deemed to have been accepted once we have notified the Customer that they are ready for acceptance

(a) and if within four weeks of receiving this notification the Customer has not accepted them or has not refused to accept them by specifying a detailed description of the defects;

(b) or the Customer – or we, on behalf of the Customer – has/have thereupon made the application or parts thereof accessible to third parties without further examination for a period of four weeks, provided that the failure to accept the services is not due to a significant defect in the services rendered by us;

(c) or the Customer thereupon actively uses the services rendered for a period of four weeks, provided that the failure to accept the services is not due to a significant defect in the services rendered by us.

Any defects preventing acceptance must be reported to us without delay in writing together with a detailed description of the defects and their effects. If an acceptance test fails, the Customer is obliged at our request to provide us with the test data in an electronic form.


§ 8 Claims for defects

(1) If our products or services prove to be defective, we are initially obliged to remedy this by either rectifying the defect or making a replacement delivery at our discretion. If we choose to make a replacement delivery, the Customer may be required to accept an updated software version, unless this would have an unreasonable negative impact. If we make a replacement hardware delivery, the Customer shall be required to return the defective item to us in accordance with the statutory provisions.

(2) We shall bear all the expenses incurred as a result of remedying the defect, in particular transport, work and material costs; this does not apply if the costs are higher as a result of the delivered product being located at a place other than the place of intended use.

(3) We are entitled to make the remedying of the defect contingent on the Customer paying the purchase price due. The Customer is, however, entitled to withhold part of the purchase price to an extent which is reasonable given the defect.

(4) Except in cases of fraudulent intent and subject to Clause 9.4, the limitation period for claims for defects shall be 12 months calculated from the delivery date or, if acceptance is required, from the date of acceptance.

(5) If the defect has been caused by a defective third-party product, we shall be entitled to assign our warranty claims against our supplier to the Customer. In such cases, claims can only be made against us in accordance with the above provisions once the Customer has asserted the assigned claims against the supplier in court.

(6) Claims for defects shall be null and void if the Customer amends the delivered product or has it amended by a third party without our consent and if as a result it is impossible or unreasonable for us to remedy the defect. In any case, the Customer shall bear the additional costs incurred during the remedying of the defect as a result of such amendment.


§ 9 Liability

(1) In the event that we culpably breach our material contractual obligations, we shall be liable in accordance with the statutory provisions. Material contractual obligations are obligations which characterise the typical purpose of the contract, the fulfilment of which is essential for the contract to be duly performed and on the observance of which the other party to the contract can routinely rely. Provided that we have not acted with gross negligence or intent, we shall, however, only be liable for typically occurring, foreseeable damage.

(2) In all other cases, we shall be liable if damage has been caused as a result of one of our legal representatives or one of our vicarious agents acting with intent or gross negligence. In the event that we provide a guarantee and in the event of damages resulting from death, bodily injury or damage to health, we shall be liable in accordance with the statutory provisions.

(3) Liability in accordance with the German Product Liability Act (ProdHaftG) shall remain unaffected by this.

(4) Claims for damages asserted in accordance with Clauses 9.1 to 9.3 above shall become statute-barred in accordance with the statutory time limits.

(5) In the event of data loss caused by simple negligence, we shall only be liable for damage which would still have occurred despite the Customer following proper and regular data backup procedures which are reasonable given the importance of the data; this limitation of liability shall not apply if the data backup procedures were impeded or rendered impossible for reasons for which we are responsible. Section 14 of these Terms and Conditions shall remain unaffected by this.

(6) Claims for damages may only be made for a breach of the obligation to remedy defects in accordance with Sections 437(1) and 439 BGB if, during the 12-month limitation period pursuant to Clause 8.4, a) the Customer has requested that a defect or defects be remedied and b) we have breached our obligation to remedy the defect(s).

(7) No other claims for damages due to breaches of obligations may be made against us. In cases where software is leased, this applies in particular to liability without fault for damages pursuant to Section 536a(1) BGB for defects which already existed when the contract was concluded.


§ 10 Rights of use

(1) We shall grant the Customer a non-exclusive right of use pursuant to Section 31(2) of the German Act on Copyright and Related Rights (UrhG) to the products made available by us to the extent that this is necessary for the Customer’s contractually agreed purposes and objectives.

(2) The products provided by us may include open-source software/free software and software from third-party providers. In such cases, the Customer’s rights of use shall be determined by the applicable licence conditions.

(3) The right of use granted to the Customer shall expire if the Customer fails to pay on time the fee due in full or in part and shall only be regranted in full once the Customer makes the late payments to us.

(4) The rights of use may only be granted to third parties with our prior written consent.

(5) At our request, the Customer is obliged to inform us in writing of the extent to which they are using the product to which they have been granted right of use.


§ 11 Retention of ownership

(1) We shall retain ownership of any tangible items supplied by us (e.g. manuals, data storage devices and hardware) until all receivables arising from the business relationship with the Customer have been paid in full.

(2) The Customer is obliged to store the items to which we retain ownership separately from other items and to label them. The Customer shall insure at its own cost the items to which we retain ownership against fire, water damage, burglary and theft. On request, the Customer shall send us the insurance policy for inspection. The Customer shall assign to us in advance any future claims against the insurance provider. We shall accept this assignment.

(3) The Customer must inform us without delay if any third parties gain access to the items to which we retain ownership. The Customer shall bear any costs incurred as a result of removing access to or replacing the items delivered by us.

(4) If the recoverable value of all the security interests exceeds the value of all the secured claims by more than 10%, the corresponding proportion of the security interests shall be released at the Customer’s request. We shall be entitled to choose which security interests are released.


§ 12 Third-party rights

(1) If the contractually agreed use of the products or services is restricted by intellectual property rights or copyright of third parties and if we are contractually or legally liable for this, we have – to an extent which is reasonable for the Customer – the right, at our discretion, to either modify the contractually agreed products or services so that they no longer fall within the scope of the protection but still comply with the contractual provisions or to obtain authorisation for the products or services to be used as agreed in the contract without any restrictions or additional costs for the Customer.

(2) If this cannot be done on commercially reasonable terms or within a reasonable period of time, we shall be entitled to withdraw from the contract. In the above circumstances, the Customer may also withdraw from the contract or be entitled to a reduction in price.

(3) Subject to the provisions of Section 9 (liability), our obligations in the event of an infringement of intellectual property rights or copyright, as stipulated in Section 12, are final. These obligations only exist if

(a) the Customer informs us without delay and in writing of any claimed infringements of intellectual property rights or copyright and agrees any defensive measures and agreements made with the third party with us and

(b) the infringement of the right is not based on any programmes or data provided by the Customer or in the event that the infringement of the right does not occur as a result of contractual services and data files provided as part of these services being used in conditions not agreed to in the description of services or such services and files not being used in their valid, unmodified original version as supplied by us.

(4) If the Customer provides us with materials to assist us with the performance of the contract, the Customer shall be responsible for ensuring that these materials are free from the intellectual property rights of third parties and that there are no other rights which restrict or prevent them from being used as contractually agreed. The Customer shall indemnify us from any third-party claims relating to the infringement of any such rights for which the Customer is responsible.


§ 13 Copyright notices

(1) The Customer shall retain and not alter any protection marks, copyright notices or any other reservations of rights. This applies in particular to any copyright notices added to the programme code.


§ 14 The Customer’s duty to perform data backups and to put safeguards in place, transfer to third parties

(1) The Customer is required to adequately protect themselves from data loss. Since the installation of new software and the modification of installed software involves a risk of data loss, the Customer is obliged to protect themselves against possible data loss by backing up their data before the installation of new software or the modification of installed software.

(2) Where software is leased, the Customer is obliged to take appropriate measures to protect the software and login details against access by unauthorised third parties, to not sell the software or these details to third parties or make them accessible to third parties in any other way and to not make the software publicly available. The only exception to this is the supervised use of the software by the lessee’s employees or other third parties bound by the lessee’s instructions in accordance with the provisions of this contract and provided that the software is used as intended.


§ 15 Drawings, designs and other documents

(1) Drawings, designs, calculations and other documents, such as samples and models, which are created by us or are created in accordance with our instructions, are and shall remain our property. They may not be passed to third parties or used for other purposes without our written consent. They must be returned to us following the fulfilment of the order or on request.

(2) In the case of deliveries based on drawings, models or information provided by the Customer, the Customer shall indemnify us against all claims relating to intellectual property rights asserted by third parties. In the event of breaches of the contract by the Customer, the Customer’s intellectual property rights shall not prevent us from using the goods.


§ 16 Information and technical advice

(1) The information and recommendations we provide are non-binding and are provided without any liability, unless we have expressly undertaken in writing to provide information and recommendations. Our provision of information and recommendations does not constitute any promise as to the quality of our products.


§ 17 Confidentiality, data protection

(1) The Customer agrees to keep as confidential all information obtained as a result of the performance of the contract, not to use it beyond the scope of the contract for its own purposes or for third-party purposes, and not to make it accessible to third parties. This applies for the duration of this contractual relationship and after it is terminated. The Customer shall ensure that its employees and other authorised representatives are also bound by this duty of confidentiality and prohibition of use. Any other duties of confidentiality, arising, for example, from any confidentiality agreements concluded between the parties or any development agreements, shall remain unaffected by this.

(2) The obligation to maintain confidentiality and the prohibition of use shall not apply if and to the extent that the information provided (i) was already known to the Customer before disclosure by us, (ii) was common knowledge when the contract was concluded or thereafter becomes common knowledge, (iii) is made available to the Customer by an authorised third party or (iv) is required to be disclosed to a competent authority, a court of competent jurisdiction or on the basis of statutory obligations, provided that, if legally permissible, the Customer first informs us of this requirement without delay so that we may object to such a requirement before the information is disclosed. Section 5 of the German Act on the Protection of Trade Secrets (GeschgehG) shall not be affected by this.

(3) We shall process the Customer data (e.g. address and bank details) which we need to enter into and perform the contract in accordance with the statutory provisions.


§ 18 Final provisions

(1) Any amendments or additions to this contract must be made in writing. Any oral subsidiary arrangements, including those concerning the cancellation of this written form requirement, shall be ineffective.

(2) This contract is governed by German law. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

(3) The place of performance for all obligations of both parties to this contract is our principal place of business.

(4) The place of jurisdiction for any legal disputes arising in connection with this contract is Breisach am Rhein. At our discretion, action may also be brought against the Customer at the Customer’s principal place of business. In accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC), we also have the option for any disputes arising from the commercial relationship with the Customer to be resolved at Freiburg im Breisgau, as the place of arbitration, by one or more arbitrators appointed in accordance with these rules. If the Customer wishes to take legal action against us, we are obliged, at the Customer’s request, to exercise this right of choice in relation to a specific legal dispute within one week of receiving such a request from the Customer by declaring our choice to the Customer.

(5) If any provisions of these Terms and Conditions or of any contracts concluded on the basis thereof are or become ineffective or unenforceable in whole or in part, the effectiveness and enforceability of all remaining provisions of these Terms and Conditions or the contract shall not be affected by this. Provided that they do not form part of the Terms and Conditions, the ineffective or unenforceable provision(s) shall be replaced by the effective and enforceable provision(s) which come(s) closest to the commercial purpose of the ineffective or unenforceable provision(s) pursued by the parties to the contract. The same shall apply to any loopholes.

Last updated: February 2021

Terms and Conditions of Purchase Kaltenbach.Solutions GmbH