General terms and conditions

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§ 1  General conditions

The following General Terms and Conditions of Business apply to all goods and services supplied by toolbox Software GmbH, Eschweiler (Germany), referred to hereinafter as “toolbox”, to its contractual partners, collectively referred to hereinafter as the “Customers” and individually as the “Customer”. Conclusion of contract and all side-agreements must be in written form at least, within the meaning of Section 126b of the German Civil Code (“BGB”), in order to obtain effect. The contract may be concluded or confirmed by a confirmation of order issued by toolbox. The confirmation of order describes the services performed by toolbox in their entirety; non-material contractual elements may be arranged or organised at the equitable discretion of toolbox. Terms of business used by the Customer are not applicable, even when toolbox does not separately reject them in the specific case. Even when toolbox makes reference to a letter from the Customer containing or referring to terms of business of the Customer, this shall not be construed to mean consent to the applicability of such terms of business.

 

 

§ 2  Subject-matter of the contract

(1)     If the contract relates to the provision of software, toolbox grants the Customer a simple, non-exclusive and personal right (“licence”) to use the software on a computer system in his exclusive possession. The scope of this right of use is determined by the system configuration as specified in the confirmation of order. The Customer may store the software or transfer it from one computer to another within that scope.

The right of use is limited materially to the number of software licences purchased for each branch of the Customer. The software may thus be launched on any computers within the network of the Customer’s branch, but the number of instances running simultaneously may not exceed the number of licences purchased (concurrent user licence).

The Customer is not permitted to modify the source code. Changes to the system configurations do not substantiate any copyright on the part of the Customer and simultaneously exclude any warranty claims against toolbox based on program malfunctions. Transfer of the software or the documentation to third parties, whether for a consideration or not, with complete surrender of the Customer’s right of use and his own opportunity to use the software requires the prior consent of toolbox. Such consent must be granted unless there is good cause not to, such as protection against competitors. toolbox may set and charge, at its own equitable discretion, a cost-based amount for administering the software licence, in accordance with Section 315 of the German Civil Code (BGB).

(2)     If the contract is for delivery of physical items - in particular hardware -, the Customer acquires ownership of it, although toolbox provides a warranty for functionality in conformity with contracted conditions only if associated software has been purchased and installed in accordance with the contract.

(3)     If toolbox sells, brokers or provides copyrighted software or third-party hardware as components of a system to the Customer, the Customer shall observe the associated terms and conditions of licence and use of said providers and shall hold toolbox free from any claims by the right holders due to a breach of said conditions for reasons for which the Customer bears responsibility. Conversely, toolbox shall hold its customers free from any third-party claims due to infringement of intellectual property for which toolbox bears responsibility. toolbox may modify the program, or acquire rights of use for the Customer, on account of such infringements of intellectual property.

(4)     The Customer bears liability towards toolbox for any copyright infringements or exceeding of the agreed right of use to the software provided by toolbox. In such cases, the Customer shall pay liquidated damages equal to three times the contractual price for each program that is copied or passed on in breach of contract. toolbox reserves the right to sue for greater damages over and above the liquidated damages. The liquidated damages are due and payable even if the Customer transfers the program to a third party and surrenders his own right of use thereby and fails to involve toolbox in the transfer in accordance with Section 2 (1) of these Terms of Business.

 

§ 3  Duties of the Customer

The Customer shall provide toolbox with full support during installation of the system. He shall inform toolbox about the exact configuration of his computer hardware and software. He shall add to or replace the system or components when so requested by toolbox, if this is necessary for proper operation of the program. Immediately after conclusion of contract, the Customer shall name a project manager with power of representation who shall be available during installation and who may provide any information that may be required and who may make statements on behalf of and with effect for the Customer.

Any essential installation rail systems, electrical cabling, network cabling and the like) shall be provided by the Customer in a timely manner before the agreed date for implementation of the system, in accordance with the installation instructions and block circuit diagrams provided by toolbox. If a software program made by a different producer is used, the Customer shall obtain the necessary interfaces to said software product at his own risk and expense, in accordance with toolbox stipulations.

If a system component is supplied by the Customer to toolbox for maintenance, repair or warranty work, the Customer shall be responsible for backing up all data and settings beforehand at his own expense. toolbox will not accept any liability for loss of data or damage to data, or for any costs incurred for reinstallation.

 

§ 4  Place of delivery and period of service

Physical items are delivered “EXW Eschweiler” (Incoterms 2010), unless contractually agreed otherwise. The same apples to software provided by remote data transmission.

If a particular period is agreed as the period of service, any service-related activities shall be carried out no later than the last working day of the period of service, and any activities in support thereof shall be carried out immediately on request. Any delays from the sphere of either party shall prolong the negotiation deadlinesfor the other party unilaterally by the corresponding duration. The same principle shall apply to delays that are beyond the control of toolbox. If the Customer fails to provide due assistance or to accept products or services, the entire contractually agreed payment shall be due immediately.

 

§ 5  Retention of title

toolbox retains ownership of all physical items and data storage media until full payment of the contractually agreed price. In the event of any default on payment, toolbox has the right to take back the system by way of security, with de-installation of the software if necessary, until the contractually agreed price has been paid in full; this shall not be deemed as withdrawal from the contract.

 

§ 6  Payment and terms of payment

(1)     The due date for payment is based on the contractual agreements and shall be no later than the date of delivery of physical item or than the acceptance date of a system or than the date on which the Customer is deemed to default on acceptance. Secondary services provided by toolbox, such as installation, instruction and training, shall be paid in accordance with the toolbox list of fees unless said services are contractually owed. If costs are incurred for performing such secondary payable services, toolbox may charge said costs to the Customer.

(2)     The Customer may not exercise a right of retention unless the respective claims derive from the same contractual relationship.

(3)     The Customer may not setoff his own receivables against claims for payment by toolbox unless said receivables have been acknowledged by toolbox or determined by a final court decision.

(4)                   If the Customer defaults with a payment by more than 14 days in the case of an agreed date for payment, the entire contractual amount shall become immediately due in case of any doubt.

(5)                   If, in the case of a leasing transaction, the lessor requires that the lessee, as customer of toolbox, declare before paying the contractually agreed price to toolbox that it has accepted the products being leased, the customer shall be obligated, in its legal relationship with toolbox, to sign such a declaration when the system is accepted or when it has been delivered in accordance with the contract, and to send the signed declaration to its lessor without delay. If there is any delay in payment for the leased item by the lessor to toolbox, due to any delay in sending the declaration, in breach of this obligation, the customer shall owe the damages incurred as a result of the delay, namely the damages for default.

 

§ 7  Collateral and withdrawal

In the event of a deterioration in the financial situation of the Customer, toolbox has the right to require Customer to provide collateral. In such a case, toolbox may make the honouring of its obligations conditional on prior provision of collateral. If the Customer is unable to provide the collateral within a reasonable period, toolbox shall have the right to withdraw from the contract. In such a case, toolbox may require that a lump-sum compensation amounting to 10% of the contractual price be paid, in addition to the return of goods services already rendered. toolbox reserves the right to claim greater damages; the Customer has the right to prove a lower amount of damage.

 

§ 8  Warranty

(1)     As a basic principle, toolbox provides a two-year warranty for the hardware and software it supplies. The warranty is for one year in the case of hand-helds and printers, with consumable and wearing parts being excluded from the warranty. The warranty period begins when the system is delivered ready for operation, or, in exceptional cases in which customised programming is carried out, when the system has been accepted by the Customer.

(2)     When second-hand hardware is supplied, the warranty period is six months. toolbox has the right, if the event of a warranty claim, to provide remedy by delivering equivalent second-hand hardware.

(3)     Any software to be supplied by toolbox is standard software which can be parameterised. As part of the warranty, toolbox undertakes to supply functioning software in accordance with the offer or confirmation of order and, if so agreed, to install the software so that it is operational. Any customised program functions beyond the standard functions are not covered by the warranty unless these functions are contractually agreed. Descriptions and performance specifications in public statements and in advertising are not guaranteed properties. The warranty does not cover minor inadequacies that do not disrupt operation of the main program functions or which are typical of any software as a product which is continuously being developed. The Customer shall notify toolbox immediately of any defects or bugs and shall to the best of its endeavours provide toolbox with documentation of any defects or bugs, in which at least the effect of the defect or bug is precisely described. The Customer shall properly document any bug or defect reports and shall provide them to toolbox without delay.

(4)     toolbox has the right to make any adjustments to the program by remote maintenance or by providing a data storage medium. If the Customer does not provide remote access to his system, the warranty obligations of toolbox shall be limited to supplying a data storage medium containing a program to be run.

(5)     If interfaces to the software of other providers are used, toolbox provides a warranty for functions of its own system only to the extent that is explicitly agreed by contract. If a proprietary interface is supplied, the functionality to be provided by the software supplied by toolbox shall be limited to the processing of data provided at the interface and to the provision of own data at the interface. No warranty is provided for program functions that are absent from third-party software.

(6)     Technical advice and information provided by toolbox beyond the agreed scope of service is given for no consideration and with exclusion of any warranty.

 

§ 9   Liability

(1)     Without prejudice to statutory liability for personal injury to life, body and health, or for material breaches of contract, toolbox bears no liability for other damage to the rights and legally protected objects owned by the Customer and other persons in his care unless such damage was caused by wilful action or gross negligence on the part of toolbox.

(2)     If toolbox is objectively liable for damages, such liability shall be limited to damages that were predictable at conclusion of contract as a potential consequence of the breach of contract, or which should have been predicted under the known circumstances. Consequential damage resulting from defects in the contractual items cannot be compensated only if such damage can typically be expected when the items are used in the intended manner.

(3)     In the event of liability for ordinary negligence, the obligation of toolbox to pay compensation for damage to property and personal injury shall be limited to an amount of EUR 1,000,000 per claim, even if the damage was caused by the material breach of contract.

(4)     toolbox will not accept any liability if the damage was primarily caused by improper handling of files (inadequate backups of data, unauthorised interference with program operation).

(5)     The above limitations of liability do not apply in cases of wilful action on the part of toolbox, to guaranteed features, to personal injury to life, body or health, or to liability under the Product Liability Act.

 

§ 10  Non-severability

(1)     Any amendments or additions to the contract must be in written form to obtain effect.

(2)     If any provision of the contract is invalid, this shall not affect the validity of the remainder of the contract. The Parties shall close any gaps by a mutual arrangement that comes closest to the business purpose of the contract. If the Parties fail to reach such agreement within a reasonable period, toolbox may exercise its equitable discretion in accordance with Section 315 of the German Civil Code (BGB).

(3)     The Parties are agreed that substantive German law shall apply. If German international private law refers to the UN conventions on contracts for the international sale of goods (CISG) with regard to any collision of laws, the latter conventions shall not apply.

(4)     The place of jurisdiction is Aachen (Germany).

01/2012