General Conditions for Sale and Supply from
Hitex Development Tools GmbH
All deliveries and services ("Supplies") of HITEX rendered to another
businessperson ("Unternehmer") in the sense of § 14 BGB (German Civil
Code), including but not limited to any body corporate or special fund
under public law, (hereinafter: "Purchaser") are subject to the
following General Business Terms, unless agreed on otherwise.
I. General
1. The scope of deliveries and/or services (Supplies) shall be
determined by the written declarations of both Parties. General terms
and conditions of the Purchaser shall apply only if and when expressly
accepted by HITEX in writing.
2. HITEX herewith reserves any industrial property rights and/or
copyrights pertaining to its cost estimates, drawings and other
documents (Documents). The Documents shall not be made accessible to
third parties without the prior written consent of HITEX and shall,
upon request, be returned without undue delay if the contract is not
awarded to HITEX. Sentences 1 and 2 shall apply mutatis mutandis to
documents of the Purchaser; these may, however, be made accessible to
third parties to whom HITEX may rightfully transfer Supplies.
3. Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.
II. Prices and Terms of Payment
1. Prices shall be ex works and exclude packaging; value added tax shall be added at the then applicable rate.
2. If HITEX is also responsible for any additional services, the
Purchaser shall pay the agreed remuneration and any incidental costs
required, e. g. travel costs, costs for the transport etc.
3. Payments shall be made free of HITEX paying office.
4. The Purchaser may set off only those claims that are undisputed or against which no legal recourse is possible.
III. Retention of Title
1. Items pertaining to the Supplies („Retained Goods“) shall remain the
property of HITEX until each and every claim HITEX has against the
Purchaser on account of the business connection has been fulfilled. If
the combined value of the security interests of HITEX exceeds the value
of all secured claims by more than 20 %, HITEX shall release a
corresponding part of the security interest if so requested by the
Purchaser.
2. In the event the Purchaser resells the Retained Goods prior to the
transfer of ownership of such goods, the Purchaser hereby assigns its
right to the purchase price (arising out of the resale) to HITEX in
advance. Prior to the transfer of ownership the Purchaser may not
pledge the Retained Goods or use them as security.
3. The Purchaser shall inform HITEX forthwith of any seizure or other act of intervention by third parties.
4. Where the Purchaser fails to fulfil its duties, including failure to
make payments due, HITEX shall be entitled to cancel the contract and
take back the Retained Goods in the case of continued failure following
expiry of a reasonable time set by HITEX; the statutory provisions that
a time limit is not needed remain unaffected. The Purchaser shall be
obliged to surrender the Retained Goods.
IV. Time for Supplies; Delay
1. Times set for Supplies can only be observed if all Documents to be
supplied by the Purchaser, necessary permits and releases, especially
concerning plans, are received in time and if agreed terms of payment
and other obligations of the Purchaser are fulfilled. Unless these
conditions are fulfilled in time, times set shall be extended
appropriately; this shall not apply where HITEX is responsible for the
delay.
2. If non-observance of the times set is due to force majeure such as
mobilization, war, rebellion or similar events, e. g. strike or
lockout, such time shall be extended accordingly.
3. If HITEX is responsible for the delay (hereinafter referred to as
„Delay“) and the Purchaser demonstrably suffered a loss therefrom, the
Purchaser may claim a compensation as liquidated damages of 0.5 % for
every completed week of Delay, but in no case more than a total of 5 %
of the price of that part of the Supplies which because of the Delay
could not be put to the intended use.
4. Purchaser’s claims for damages due to delayed Supplies as well as
claims for damages in lieu of performance exceeding the limits
specified in No. 3 above shall be excluded in all cases of delayed
Supplies even upon expiry of a time set to HITEX to effect the
Supplies. This shall not apply in cases of mandatory liability based on
intent, gross negligence, or due to injury of life, body or health.
Cancellation of the contract by the Purchaser based on statute shall be
limited to cases where HITEX is responsible for the delay. The above
provisions do not imply a change in the burden of proof to the
detriment of the Purchaser.
5. Upon request of HITEX the Purchaser shall declare within a
reasonable period of time whether the Purchaser cancels the contract
due to the delayed Supplies or insists on the Supplies to be carried
out.
6. If dispatch or shipment is delayed at the Purchaser’s request by
more than one month after notice of the readiness for dispatch was
given, the Purchaser may be charged, for every month commenced, storage
costs of 0.5 % of the price of the items of the Supplies, but in no
case more than a total of 5 %. The parties to the contract may prove
that higher or, as the case may be, lower storage costs have been
incurred.
V. Transfer of Risk
The risk shall pass to the Purchaser if dispatch, shipping, the
taking over in the own works or the trial run is delayed for reasons
for which the Purchaser is responsible or if the Purchaser has
otherwise failed to accept the Supplies.
VI. Software
Unless otherwise agreed in writing, the supply of software shall be subject to the following provisions:
1. HITEX shall grant to the Purchaser the non-exclusive, non
transferable, non sub-licensable right to use the supplied software as
well as any including material.
2. Notwithstanding whether the Purchaser modifies the supplied software
or parts thereof or combines the supplied Software with other Software
owned by the Purchaser or third parties, HITEX shall remain Owner of
any rights to the supplied, modified or combined Software as well as
any including material. Therefore the Purchaser shall mark the modified
or combined Software as well as any copy with a respective HITEX
copyright notice.
3. For any further license a special license agreement has to be concluded by HITEX and the Purchaser.
4. Non-licensed software may not be copied or transmitted to third parties.
VII. Receiving of Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
VIII. Defects as to Quality
HITEX shall be liable for defects as to quality („Sachmängel“, hereinafter referred to as „Defects“,) as follows:
1. All parts or services where a Defect becomes apparent within the
limitation period shall, at the discretion of HITEX, be repaired,
replaced or provided again free of charge irrespective of the hours of
operation elapsed, provided that the reason for the Defect had already
existed at the time when the risk passed.
2. Claims based on Defects are subject to a limitation period of 12
months. This provision shall not apply where longer periods are
prescribed by law as well as in cases of injury of life, body or
health, or where HITEX intentionally or grossly negligently fails to
fulfil its obligation or fraudulently conceals a Defect. The legal
provisions regarding suspension of expiration („Ablaufhemmung“),
suspension („Hemmung“) and recommencement of limitation periods remain
unaffected.
3. The Purchaser shall notify Defects to HITEX in writing and without undue delay.
4. In the case of notification of a Defect, the Purchaser may withhold
payments to a reasonable extent taking into account the Defect
occurred. The Purchaser, however, may withhold payments only if the
subject-matter of the notification of the Defect occurred is justified
beyond doubt. Unjustified notifications of Defect shall entitle HITEX
to have its expenses reimbursed by the Purchaser.
5. HITEX shall be given the opportunity to supplement its performance
(„Nacherfüllung“) within a reasonable period of time. However, if the
supplementary performance is unsuccessful, the Purchaser shall be
entitled to cancel the contract or reduce the remuneration,
irrespective of any claims for damages it may have according to Art.
XI.
6. There shall be no claims based on Defect in cases of insignificant
deviations from the agreed quality, of only minor impairment of
usefulness, of natural wear and tear or damage arising after the
transfer of risk from faulty or negligent handling, excessive strain,
unsuitable equipment or from particular external influences not assumed
under the contract, or from non-reproducible software errors. Claims
based on defects attributable to improper modifications or other work
carried out by the Purchaser or third parties and the consequences
thereof shall be likewise excluded.
7. The Purchaser shall have no claim with respect to expenses incurred
in the course of supplementary performance, including costs of travel
and transport, labour, and material, to the extent that expenses are
increased because the subject-matter of the Supplies was subsequently
brought to another location than the Purchaser’s branch office, unless
doing so complies with the intended use of the Supplies.
8. The Purchaser’s right of recourse against HITEX pursuant to Sec. 478
BGB is limited to cases where the Purchaser has not concluded an
agreement with its customers exceeding the scope of the statutory
provisions governing claims based on Defects. Moreover, No. 8 above
shall apply mutatis mutandis to the scope of the right of recourse the
Purchaser has against HITEX pursuant to Sec. 478 para. 2 BGB.
9. Furthermore, the provisions of Art. XI (Other Claims for Damages)
shall apply in respect of claims of damages. Any other claims of the
Purchaser against HITEX or its agents or any such claims exceeding the
claims provided for in this Art. VIII, based on a Defect, shall be
excluded.
IX. Industrial Property Rights and Copyright; Defects in Title
1. Unless otherwise agreed, HITEX shall provide the Supplies free from
third parties’ industrial property rights and copyrights („IPR“) with
respect to the country of the place of destination. If a third party
asserts a justified claim against the Purchaser based on an
infringement of an IPR with respect to the Supplies made by HITEX and
then used in conformity with the contract, HITEX shall be liable to the
Purchaser within the time period stipulated in Art. VIII No. 2 as
follows:
a) HITEX shall choose whether to
acquire, at its own expense, the right to use the IPR with respect to
the Supplies concerned or whether to modify the Supplies such that they
no longer infringe the IPR or replace them. If this would be
unreasonable to demand from HITEX, the Purchaser may cancel the
contract or reduce the remuneration pursuant to the applicable
statutory provisions.
b) Any liability of HITEX to pay damages shall be governed by Art. XI.
c) The above obligations of HITEX shall only apply if the Purchaser (i)
immediately notifies HITEX of any such claim asserted by the third
party in writing, (ii) does not concede the existence of an
infringement and (iii) leaves any protective measures and settlement
negotiations to the discretion of HITEX. If the Purchaser stops using
the Supplies in order to reduce the damage or for other good reason, it
shall be obliged to point out to the third party that no
acknowledgement of the alleged infringement may be inferred from the
fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if Purchaser is responsible for the infringement of an IPR.
3. Claims of the Purchaser shall also be excluded if the infringement
of the IPR is caused by specifications made by the Purchaser, to a type
of use not foreseeable by HITEX or to the Supplies being modified by
the Purchaser or being used together with products not provided by
HITEX.
4. In addition, with respect to claims by the Purchaser pursuant to No.
1 a) above, Art. VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in
the event of an infringement of an IPR.
5. Where other defects in title occur, Art. VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against HITEX or its agents or any
such claims exceeding the claims provided for in this Art. IX, based on
a defect in title, shall be excluded.
X. Impossibility of Performance; Adaptation of Contract
1. To the extent that Supplies are impossible to be carried out, the
Purchaser shall be entitled to claim damages, unless HITEX is not
responsible for the impossibility. However, the Purchaser’s claim for
damages shall be limited in any case to an amount of 10 % of the value
of the part of the Supplies which, owing to the impossibility, cannot
be put to the intended use. This limitation shall not apply in the case
of mandatory liability based on intent, gross negligence or injury of
life, body or health; this does not imply a change in the burden of
proof to the detriment of the Purchaser. The right of the Purchaser to
cancel the contract shall remain unaffected.
2. Where unforeseeable events within the meaning of Art. IV No. 2
substantially change the economic importance or the contents of the
Supplies or considerably affect the business of HITEX, the contract
shall be adapted taking into account the principles of reasonableness
and good faith. Where doing so is economically unreasonable, HITEX
shall have the right to cancel the contract. If HITEX intends to
exercise its right to cancel the contract, it shall notify the
Purchaser thereof without undue delay after having realised the
repercussions of the event. This shall also apply even where an
extension of the delivery period had previously been agreed with the
Purchaser.
XI. Other Claims for Damages
1. Any claims for damages and reimbursement of expenses the Purchaser
may have („Claims for Damages“), based on whatever legal reason,
including infringement of duties arising in connection with the
contract or tort, shall be excluded.
2. The above shall not apply in the case of mandatory liability, e. g.
under the German Product Liability Act („Produkthaftungsgesetz“), in
the case of intent, gross negligence, injury of life, body or health,
or breach of a condition which goes to the root of the contract
(„wesentliche Vertragspflichten“). However, Claims for Damages arising
from a breach of a condition which goes to the root of the contract
shall be limited to the foreseeable damage which is intrinsic to the
contract, unless caused by intent or gross negligence or based on
liability for injury of life, body or health. The above provision does
not imply a change in the burden of proof to the detriment of the
Purchaser.
3. To the extent that the Purchaser has a valid Claim for Damages
according to this Art. XI, it shall be time-barred upon expiration of
the limitation period applicable to Defects pursuant to Art. VIII No.
2. In the case of claims for damages under the German Product Liability
Act, the statutory provisions governing limitation periods shall apply.
XI. Venue and Applicable Law
1. If the Purchaser is a businessperson (“Kaufmann”, with the meaning
as ascribed to such term in Sec. 1 ff. HGB), sole venue for all
disputes arising directly or indirectly out of the contract shall be
Karlsruhe, Germany. However, HITEX is also entitled to bring an action
at the Purchaser’s place of business.
2. Legal relations existing in connection with this contract shall be
governed by substantive law of the Federal Republic of Germany, to the
exclusion of the United Nations Convention on Contracts for the
International Sale of Goods (CISG).
XII. Severability Clause
The legal invalidity of one or more provisions of this contract shall in no way affect the validity of the remaining provisions.
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