General Terms and Conditions of CW2. GmbH & Co. KG
The following General Terms and Conditions apply to all products we develop and distribute, offers we make and all contracts or agreements concluded with us (including delivery, price and payment terms).
The following General Terms and Conditions apply to all offers we make and all contracts concluded with us. We herewith contradict any opposing general terms and conditions of the ordering party. They shall only apply when expressly confirmed by us in writing.
§2 Contract conclusion
(1) The ordering party shall be bound by any offer it submits for at least one month. The contract is deemed to be concluded when confirmed by us in writing in the form of an order confirmation or upon delivery of the goods at the latest.
(2) Verbal side agreements and subsequent contract amendments require express and written confirmation. The same shall apply to guaranteed properties. Drawings and data in catalogs and brochures are only binding if expressly referred to as binding in the contract.
§3 Reservation of changes
We reserve the right to change or make minor deviations from models, constructions or designs if such changes or deviations are, in consideration of our interests, acceptable for the ordering party. In particular, the reservation of changes shall apply to hardware considering the shortness of product life cycles.
(1) Our prices are goods values without discounts plus packaging costs and, if applicable, insurance. For hardware, prices are goods values without packaging ex works, without freight and without insurance.
(2) To business customers we indicate our prices exclusive, to private customers inclusive of the valid statutory value-added tax.
(3) If list prices for goods increase between contract conclusion and delivery due to changes in pricing factors, we shall have the right to add the amount by which the list price was increased as a result of increasing costs incurred by us between contract conclusion and delivery to the price agreed upon when the contract was concluded. In business transactions with non-merchants we shall only have the right to adjust prices if more than three months pass between the conclusion of the contract and the agreed delivery date. In any case the ordering party shall have the right to unilaterally withdraw from the contract as of the date of the notification of price increase to the ordering party.
(1) If we exceed delivery times or deadlines by more than one month, the ordering party shall have the right to specify an appropriate additional period as defined in Section 323 BGB (German Civil Code) of at least one month and declare that it will reject acceptance of the delivery item after expiration of this deadline. The statutory cases in which the specification of a period of time can be dispensed with shall remain unaffected by this. If the additional period has expired without result the ordering party may declare withdrawal from the contract in writing to us. Claims for delivery as well as any other claims, including damage claims, shall be excluded except for cases of intention or gross negligence. If deliveries are delayed or impossible due to force majeure or other unforeseen obstacles such as breaches of duty of our subcontractors, riots, disruption of production, strikes, lockouts or similar we shall not be held responsible for this.
(2) In the event of subsequent changes and additions requested by the ordering party the agreed delivery time shall be revoked. The parties shall agree upon a new delivery time/period.
(3) The determined and accepted period of delivery and performance shall begin with the entry into force of the corresponding contract, the parties' mutual consent to modalities and the ordering party's timely fulfillment of all contractual obligations. In particular, the ordering party shall make available upon request all documents deemed necessary by us and ensure that its employees are thoroughly trained as specified by us.
(4) The ordering party shall be prepared to receive the goods on the agreed delivery date, make available all connections and grant access to all rooms needed for installation. The ordering party shall be liable for all damage caused by late acceptance and failure to properly fulfill its obligations.
§6 Transfer of risk
The risks of (partial or entire) loss, deterioration, damage or seizure shall be transferred to the ordering party upon handover of the contractual item or, in case of shipment to the ordering party's headquarters/domicile (place of fulfillment), upon dispatch of the contractual item.
§7 Default of acceptance by the ordering party
(1) If the ordering party delays payment or provision of a security owed by it for more than two weeks, we shall be entitled to request the ordering party to withdraw from the contract or pay damage compensation for non-fulfillment instead of paying or providing security after an additional period of at least one week.
(2) In the latter case we can claim compensation in the amount of 20% of the contract value without proof of damage insofar as the ordering party does not prove that we have incurred no or only minor economic damage. Sales commissions paid shall be reimbursed separately.
(3) The ordering party shall not be deemed in default of acceptance if it is prevented from accepting goods by force majeure.
(4) If the ordering party delays acceptance we shall be entitled to compensation for storage costs incurred by us insofar as the goods are stored on our own premises.
(5) If the ordering party delays acceptance the risk of accidental loss shall be transferred to it.
§8 Payment terms
(1) All invoices are payable within eight days from the date of invoice. Checks and other means of payment shall only be accepted as payments on account and only after prior written agreement; collection and discount charges will be billed separately. Securities provided to us shall also serve to satisfy claims arising from a contractual relationship which is yet to emerge.
(2) The delivery of accessories and spare parts and the provision of ordering party services are to be paid net cash or cash on delivery.
(3) If the parties to the contract have agreed upon payment in installments and the contract partner is in arrears with one installment or if we believe our claims to be at risk considering the economic situation of the contract partner by reasonable commercial judgment, we shall be entitled to demand immediate payment by letter of notice. This shall not affect Sections 499-507 of the German Civil Code. If after contract conclusion but before delivery we become aware of specific circumstances in the economic situation of the ordering party and if by reasonable commercial judgment we believe our claims to be no longer fully secured we shall be entitled to demand advance payment on the receivables or provision of a surety.
(4) The ordering party can only offset our claims with counterclaims if they are uncontested or determined to be legally valid. The ordering party can only exercise a right of retention in respect of claims arising from the same contract in the event of deficient performance and only to the extent that the retained amount does not materially exceed the costs of the remedy of the defect.
(5) All payments are to be made exclusively to us. Payments to agents or intermediaries shall be at the risk of the ordering party. Any payments made by the ordering party shall be first offset against costs incurred, then on interest incurred, then on any outstanding debts of the ordering party and finally on the principal claim.
§9 Right of retention and assignment
Notwithstanding further statutory rights or other agreements, we shall have the right of retention on all objects in our possession that are the property of the ordering party until the ordering party has settled all claims against it resulting from the business relation. We shall be entitled to transfer rights and obligations resulting from concluded contracts in whole or in part to third parties.
§10 Retention of title
(1) We retain the right of ownership of deliveries and services until all receivables, of whatever nature and irrespective of the legal basis, resulting from the business relation have been fully paid by the ordering party. Retention of title shall also apply to subsequent deliveries of spare parts and other subsequent deliveries. No ownership rights to the software shall be transferred to the ordering party. This also includes system software. The ordering party is granted a non-exclusive and non-transferable right of use for the purpose agreed upon in the contract. All copyrights to the software including any derivatives and parts thereof shall be attributed solely to us. Any related documentation shall remain our property.
(2) If the contract partner acts contrary to the contract, for instance by disposing of our property, and if these actions result in claims of third parties, such claims shall already be assigned to us now.
(3) If the ordering party does not fulfill its contractual obligations we shall be entitled to claim all rights arising from the retention of title on our own and without legal assistance. Removal of the delivery item shall not give rise to damage claims of the ordering party.
(4) The ordering party must immediately inform us of any third-party infringement of our property rights, particularly by enforcement measures, hand over the relevant documentation (e.g. report on assets seized), and notify our ownership to the third party. For the duration of this retention of title the ordering party shall not be authorized to dispose of the subject matter of the contract. We shall be authorized to see for ourselves during local business hours that our property is in the possession of the ordering party and handled carefully. For this, the ordering party shall grant us free access to the room where the subject matter of the contract is stored.
(5) The ordering party is obligated to properly handle and store our property pledged as security and to arrange for adequate insurance. Any claims arising against liability insurance are hereby already assigned to us.
§11 Contract penalty
In the event of culpable breach of copyrights and rights of use to the software, a contract penalty shall fall due for each case of violation, without prejudice to further claims. For each case of unauthorized passing on of the software the ordering party shall pay at least EUR 5,000 or otherwise either the remuneration charged by the ordering party or the remuneration usually obtainable by us. Up to the limit of the minimum charge the ordering party may prove that no or only limited damage has been incurred.
§12 Warranty and duty of inspection, notification and rejection
(1) We warrant that the service provided by us has the expressly agreed properties or, if no properties were agreed upon, that the service provided by us is suitable for the contractually foreseen or commonly assumed use and that it has the properties that are common for deliveries and services of the same kind and can be reasonably expected by the ordering party for deliveries and services.
(2) In its capacity as a merchant the ordering party shall comply with the requirements of Section 377 of the German Commercial Code and immediately notify us in writing of any defects apparent upon delivery or occurring afterwards. The notification shall contain a detailed description of the defect and all information necessary to remedy it. If the ordering party fails to notify us of the defect it shall lose all warranty rights insofar as they are based on a defect that was detected upon delivery or occurred later.
(3) We reserve the right to fulfill our warranty obligation first and foremost by way of remedy. The ordering party shall play an active role in this to the required extent, e.g. by making employees, workspace, hardware and software, data and telecommunication facilities available without charge. The ordering party shall grant us direct or remote hardware and software access. It shall respond to our requests in this regard, verify results and immediately test remedied software.
(4) The priority in the remedy of defects shall be determined by the degree to which the defects affect the ordering party's operations. Should remedy definitely fail the ordering party can reduce payment as required by law, withdraw from the contract or, in case of an existing continuing obligation, cancel the latter without observing a period of notice. Claims for damages based on legal warranty rights are excluded. Unless a defect was fraudulently concealed, warranty rights become statute-barred one year after the beginning of the legal warranty period, i.e. upon delivery of the contractual item (Section 438 II German Civil Code) or, in case of the delivery of a plant, upon acceptance (Section 634a II of the German Civil Code).
(5) The ordering party bears the burden of proof that it has not caused or contributed to defects and limitations of usability by improper operation or interference with the delivery item. Furthermore, the ordering party bears the burden of proof that defects or limitations of usability have not been caused by the ordering party's system environment. In these cases the ordering party shall not have any warranty claims. This shall not affect Section 476 of the German Civil Code.
(6) If a third party asserts claims which oppose the exercise of right of use contractually granted to the ordering party, the latter shall immediately and comprehensively notify us thereof. The ordering party already authorizes us now to handle disputes with the third party in and out of court. Insofar as we make use of this authorization the ordering party shall not acknowledge the claims of the third party without our consent. In return we warrant to the ordering party that claims of third parties shall be defended on our account and that we will hold the ordering party harmless from all costs and damages resulting from such defense unless if they are based on a breach of duty of the ordering party. We shall be free to satisfy the claims of the third party. If we believe that the claims of a third party are justified we shall be free to replace the goods in litigation with other objects meeting the contractual requirements. Furthermore, the legal regulations for deficiencies in title with a guarantee period of one year pursuant to para 4 of Section XII of these General Terms and Conditions shall be valid.
The following shall apply to our liability unless otherwise provided in the foregoing terms: We are liable in cases of intent or gross negligence. Furthermore, we are liable for the negligent breach of obligations the fulfillment of which makes the proper performance of the contract possible to begin with, the violation of which endangers the achievement of the purpose of the contract and on the fulfillment of which the customer may rely on a regular basis. In the last case, however, we only accept liability for the foreseeable damages typical to the contract. We shall not be liable for slight negligence of other obligations. The aforementioned liability disclaimers shall not apply to damages to life, body and health and to guarantees expressly granted by us. The German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. The liability for the restoration of ordering party data is limited to the amount of the costs necessary to restore the data, provided that they have been regularly and with reasonable effort stored in the way indicated by us or the provider of a third software.
§14 Final provisions
(1) The place of jurisdiction for all mutual claims arising from contracts with registered traders, legal entities of public law, special funds under public law and persons who do not have a general place of jurisdiction in Germany, including bills of exchange and checks, is 70178 Stuttgart. The same shall apply if the ordering party's customary abode is not known or if the ordering party has moved its residence or customary abode to a foreign country.
(2) The place of fulfillment for both parties and for all present and future claims resulting from the business relation is 70178 Stuttgart in Germany.
(3) The contract shall be governed by the laws of Germany, excluding application of the provisions of international private law.
(4) Any amendments, supplements or statements relevant to the contract must be made in written form.
(5) The ordering party shall only be entitled to pass claims against us resulting from contracts concluded on to third parties with our express prior written consent.
(6) Should any term of the present General Terms and Conditions be ineffective this shall not affect the validity of the remaining portions of the General Terms and Conditions. The parties pledge to replace any such ineffective term with a valid term whose effects come closest to the economic intention of the ineffective term.