General Terms and Conditions of ColorLogic GmbH(Date: 01.04.2014)
§ 1 - General Terms
(1) These General Terms and Conditions are exclusive. We shall not recognize any conditions by the Contractual Partner opposed to or differing from these General Terms and Conditions unless we have expressly and individually agreed to in writing. Our General Terms and Conditions are also valid, if we fulfill the order of the Contractual Partner despite the information of differing conditions defined by them.
(2) Our General Terms and Conditions are valid for all future business with the Contractual Partner.
(3) Our General Terms and Conditions are only valid for businesses (§ 14 BGB) or legal entities as defined in § 310 Abs. 1 BGB.
(4) The current state of technology does not allow to exclude the possibility of defects in software under all circumstances of use. We will create the program using the current state of science and technology.
§ 2 - Offers, Stipulations
(1) Our offers are subject to change; they will be valid for 30 days.
(2) All stipulations, which may be defined between us and the Contractual Partner, need to be defined in writing in a separate contract if they are not already defined in the General Terms and Conditions.
§ 3 - Right of Use, Duty of Return
(1) The Contractual Partner shall be granted the non exclusive right of use of the software (computer program) covered by the contract. Contractual Partner shall be entitled to install, load, display, run and store the computer program.
(2) We retain all rights of ownership and copyright in the source codes and the documents associated with creation of the software and technology, the programming tools and the tools in the form of compilers. These items must not be made available to third parties. This shall only be allowed, if the customer has an explicit agreement in writing from us and has fully paid all defined fees.
(3) The right will only be granted for a single use. In case of a network license, the right of use shall cover the declared single licenses for the contractual local network. The Contractual Partner shall prevent any autonomous use by third parties. Third parties are also companies affiliated with the Contractual Partner, shareholders or business units belonging to the same business if actually or organizationally separated.
(4) The Contractual Partner shall be allowed to create one operational copy of the computer program by installing it properly on a mass storage device from the original data carrier and the original files. He shall only be allowed to make back-up copies of the installed computer program if these files are exclusively intended for archiving purposes and external access to the files are not possible, in particular not from public networks. Back-up copies shall be marked with copyright notes. It is not allowed to make copies of the original data carrier.
(5) The right of use shall not allow the translation, modification, leasing, multiplication and other ways of use or application, in particular through new technologies or forms of distribution. It neither allows to modify or delete serial numbers, copyright marks or any other identifications characteristics.
(6) If the Contractual Partner uses the software based on a Rent, Lease or License Agreement, he must return the software after the Agreement is terminated. If he fails to complete the return within 2 weeks after the termination of the Agreement, he has to pay a fine 12-times of the monthly license fee.
(7) The property and the copyright to the Software (computer program) will remain solely with us. They are also not effected by the regulations above.
§ 4 - Prices, Conditions of Payments
(1) We reserve the right to adapt our prices to cost changes that are beyond our control, for any orders with more than three ( 3) months delivery time agreed upon.
(2) If not otherwise explicitly mentioned, all prices are calculated without packaging and shipping., which may result in additional fees.
(3) All prices are without taxes. Taxes, if applicable, will be listed separately on the invoice and will be calculated based on legal provision.
(4) If customer is obligated to current payments due from a prior obligation and value added tax increases, we are allowed to adopt value added tax rates.
(5) All invoices are payable net within 10 working days after date of invoice. For wire transfer or checks the day of availability of payment is valid as receipt of payment.
(6) If payment is delayed we are entitled to charge interest fees at a value of 8% above the basic interest fees (see § 247 BGB).
(7) The customer has only the right of set-off, if his counterclaims have been legally determined, undisputed or recognized by us. In addition, he is entitled to exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
§ 5 - Delivery, Delivery time
(1) Day of delivery indicated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligation further requires the timely and proper fulfillment of the obligations of the customer. The objection raised by the actual contract, not fulfilled, will be reserved.
(3) If customer defaults in acceptance or misses any other obligation to cooperate, we are entitled to compensation including but not limited to any payment of development costs or other expenditures. Additional demands remain reserving.
(4) Provided that the conditions as under § 5 (3) are available, the risk of accidental loss and accidental deterioration of the goods will be risk of the customer at the time the customer defaults in acceptance or debtor‘s delay.
(5) We are liable according to the legal provisions if the delay in delivery is caused by an intentional or grossly negligent breach under our responsibility. Subject to the provisions under § 9 is to exclude our liability for the damages caused by delay if the delay in delivery is based on simple negligence or breach of duty not under our responsibility.
(6) We are also liable in accordance with the statutory provisions insofar as the default in delivery is caused by a culpable breach of a material contractual obligation under our responsibility (so-called: cardinal obligation). In this case the liability for damages is limited to the foreseeable typically occurring damage.
(7) Partial delivery and sub-services are allowed.
§ 6 - Passage of Risk
(1) Unless otherwise stated in the order confirmation delivery "ex works" is agreed.
(2) The risk of loss or deterioration by accident of the item shall pass to the Recipient at the moment the item is handed over to the shipping agent, or, at the latest, when leaving our premises, regardless of from which place the item is sent or which party bears the costs of freight.
(3) Upon customers request, we will include a transport insurance for the delivery. Any related costs will be charged to the customer.
§ 7 - Support
Support must be negotiated separately and in writing.
§ 8 - Claim for Defects
(1) The claims of the customer due to a defect of the delivered item, assumes that the customer properly fulfilled his obligations to examine and report defects in accordance with section 377 of the German Commercial Code, i.e. in writing, including a concrete description of the defects, and immediately, which means obvious defects within 5 business days after the acceptance or its detection.
(2) In case the detected defect is our fault, we are entitled, at our discretion, either to remedy the defect or replace the defect item (up to 3x). In that case we are responsible of remedying all necessary expenses, in particular transport costs, infrastructure costs, labor costs and material costs, insofar as these are not increased as a result of the fact that the subject of the contract was shipped to a place other than the place of fulfillment.
(3) If we are not willing or able to remove the defect or replace it, we deny or delay this beyond adequate time limits for reasons which we are responsible for, or replacement or removal of defects fails in other ways, the customer is entitled to cancel the contract or reduce the purchase price.
(4) If not otherwise explicitly indicated (see § 9), further claims of the customer due to a defect of the contractual object be ruled out regardless of the reason. We are not liable for damages which is not to the subject of the contract itself, in particular, we are not liable for loss of profit or other financial losses suffered by the customer.
(5) Any kind of returns require our prior written consent, in particular with regards to shipping and insurance.
(6) The claims of the customer due to a defect of the contractual object shall be barred after a period of one year after the statutory limitations period. This does not apply to claims based on §§ 438 Abs. 1 Nr. 2; 634 Abs. 1 Nr. 1 BGB. For these claims, the statutory limitation period is valid.
(7) Our liability for a defect of the subject matter hereof is dropped, if the customer modified the program by himself or a third party without our written approval. The above provision shall apply accordingly if deficiencies in the Software are caused by hardware provided by the client.
§ 9 - General Liability
(1) Our liability is not limited to damages resulting from injury to life, body or health, on the negligent breach of duty by us, or on an intentional or negligent breach of duty by our vicarious agents or our legal representative.
(2) Our liability for any other damage, based on a grossly negligent breach of duty by us, our legal representatives or our vicarious agents, is limited to an amount equal to the premises. If there is a breach of duty in a breach of cardinal obligations, our liability is limited to the typically occurring damage.
(3) For the loss of data and programs, and their recovery we shall be liable only in that amount as it is outlined in §§ 8.9 above and only insofar as this loss could not have been prevented by the customer, especially by generating daily production of backup copies of all data and programs.
(4) A further liability for compensation - if not based on the foregoing paragraphs 5 and 8, in the above points 1) and 2) or from the compulsory provisions of the product liability law - is excluded.
(5) The customer is not entitled to withdraw from the contract, if there is no breach of duty of the existing contract.
(6) A breach of obligation of the contract does not matter if the liability according to section 275 German Civil Code (BGB) is excluded.
(7) As far as our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.
§ 10 - Property Rights
Unless otherwise agreed, we take the liability that the software or technology delivered by us does not damage the copyright or intellectual property rights of third parties. The customer is obliged to inform us immediately, if he is made aware of any such violations. If the software or technology has been developed solely according to the instructions of the customer, he has to protect us from all claims arising out of infringement of copyright or other rights of third parties. In this case, customer will be responsible for any and all cost, including all legal costs and software modifications.
§ 11 - Reservation of Title
(1) We reserve the right of ownership of the object of the Agreement until the receipt of all payments from the business relationship with the customer. This does not apply to payment obligations from recurring obligations. When a breach of customer behavior occurs, in particular in the case of delayed payment, we are entitled to withdraw from contract and take back the subject of the contract.
If non-payment occurs, we reserve the right to withdraw from the contract. The customer is obliged, upon request by us, to provide all necessary information, in particular on the storage and the receipt of the reservation of title of the goods.
(2) The customer is obliged to treat the subject matter of the contract carefully. In particular, he/she is obliged, at their own cost, to insure the subject matter against fire, water and theft sufficiently.
(3) The Customer may sell conditional good in proper business transactions against payment or reservation of title. However, pledging of goods or transfer by way of security is not allowed.
(4) The customer is entitled to sell such objects of the Agreement, which he has received in an authorized transaction for the purpose of the redistribution. However, he already assigns to us all claims in the amount of the invoice (including value added tax), he will receive from the resale against his customers or any third party, irrespective of whether the subject of the contract was sold with or without further processing. For the collection of this demand the customer remains authorized, even after the transfer of a debt. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim, as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and no request for the opening of insolvency proceedings has been filed or cessation of payments is taking place. If this is the case, we can demand that the customer informs us of the assigned claims and their debtors, shares all of the information required for such collection and hands over all necessary documents and informs the debtors (third parties) of the assignment.
(5) The processing of the goods by the customer will always be the responsibility of the customer. If the subject of the contract is combined with other objects not belonging to us, we shall acquire co-ownership of the new item/s proportionately to the value of the subject. This will be in relation to other processed objects at the time of processing. The same applies for the processed object/s as it is so for the subject of the contract.
(6) If the subject of the contract will be mixed with other objects not belonging to us in an indivisible unit, we acquire the inseparably mixed co-ownership of the new item in relation to the value of the object of the contract to the other mixed objects at the time of the mixing. If the mixing is done in a way that the object appears as the principal object of the customer, it is agreed that the customer transfers proportional joint ownership to us. The customer shall keep the sole ownership or co-ownership thus for us.
(7) We commit to release securities at the request of the customer insofar as the value of our security exceeds the claims to be secured not more than 10%; the selection of the securities is up to us.
§ 12 - Governing Law, Place of Fulfillment, Place of Jurisdiction
(1) The contract shall exclusively be governed by the law of the German Federal Republic even if other state laws may be contrary to or not accept this law, to the exclusion of any provisions applicable for international sales, in particular the United Nations law on the International Sale of Goods (CISG).
(2) If not explicitly otherwise mentioned in the order confirmation, our place of business is the place of fulfillment.
(3) The place of jurisdiction for all disputes from the existing business relationship is - regardless of the size of the claim and if the customer is a merchant, a legal person under public law or special fund under public law - at our choice either the District Court in Rheine or the Regional Court in Munster. We are also entitled to sue the customer at his general place of jurisdiction.
(4) Should a part of this agreement be or become invalid, or should there be a loophole, the validity of the remaining provisions of this agreement shall not be affected thereby.
ColorLogic GmbH • Robberskamp 40 • D-48432 Rheine
Managing Director: Barbara Braun-Metz, Thorsten Braun • HRB 4846, AG Rheine • Tax-Id. DE 813 427 221