General Terms and Conditions

1. Purpose and scope

The following General Terms and Conditions (GTC) apply to all contracts, services, orders and assignments between Schneider & Wulf EDV-Beratung GmbH & Co. KG (hereinafter Schneider + Wulf) and its customers. They only apply if the customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) sentence 1 BGB.

The GTC also apply to all future business between the parties, as well as in cases where we render our contractually owed services in the knowledge of differing or conflicting conditions.

Differing, conflicting or supplementary general terms and conditions of the customer do not apply, even if we do not separately object to their validity in an individual case. Individual agreements made with the customer in a specific case take precedence over these GTC. A written contract or written confirmation from us is decisive for the content of such agreements.

2. Offer, conclusion of contract, documents

Our offers are always subject to change and non-binding, unless they are expressly marked as binding. They are merely to be understood as an invitation to the customer to submit an offer. The customer is bound to its order for two weeks. The contract is concluded when we expressly confirm the order within the deadline or carry out the delivery.

We reserve the right to make technical and design changes to the subject matter of the contract without prior notice during the delivery period, provided that the subject matter of the contract and its appearance do not thereby undergo any commercially unreasonable changes for the customer. Reasonable changes include, in particular, technical changes, improvements and adaptations to the latest state of science and technology, improvements to the design and the choice of materials. All quantities, dimensions, colours and weights are subject to customary commercial tolerances.

We reserve property and copyright rights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as “confidential”. Before passing them on to third parties, the customer requires our express written consent.

3. Delivery time, withdrawal from the contract

Agreed delivery periods begin with the conclusion of the contract, but as a rule not before receipt of an agreed down payment.

The delivery period is deemed met if, by the time it expires, the item to be delivered has left the premises of Schneider + Wulf or readiness for dispatch has been notified.
Unless expressly agreed otherwise, binding delivery dates and periods must be confirmed by us in writing. Subsequent requests for changes and additions by the customer extend the delivery time appropriately.

If the owed delivery is significantly delayed by unforeseeable circumstances for which we are not responsible (e.g. labour disputes, operational disruptions, transport obstacles, official measures – in each case also at suppliers – as well as untimely delivery to ourselves), we are entitled to withdraw from the contract in whole or in part or, at our option, to postpone the delivery for the duration of the impediment. We will make all reasonable efforts to render the deliveries. Otherwise, the consideration will be refunded without delay. In the event of non-availability or only partial availability, the customer will be informed without delay.

A grace period set by the customer for performance or subsequent performance may not be less than two weeks.

4. Transfer of risk, packaging

Risk passes to the customer as soon as the ordered goods are handed over to the customer or to a third party carrying out the transport. If dispatch is delayed as a result of circumstances for which the customer is responsible, risk passes to the customer from the day of readiness for dispatch.

Transport and other packaging within the meaning of the German Packaging Ordinance will only be taken back if it is made available immediately after delivery or upon a subsequent delivery. If the packaging is taken back, a fee of 1% of the value of the goods is charged for transporting the packaging. The customer’s right to bring the packaging to Schneider + Wulf’s place of business at its own expense remains unaffected.

5. Prices and terms of payment

Unless otherwise stated in our order confirmation, our prices apply ‘ex works’. Our prices include packaging. A flat-rate shipping charge and value added tax at the applicable statutory rate are added.

We charge the prices agreed at the conclusion of the contract, which are based on the cost factors valid at that time. If more than 4 months lie between the conclusion of the contract and the time of delivery and the cost factors – in particular material, wages, freight, levies, etc. – change, we are entitled to make a price adjustment within the scope of the actual cost increase.

Payments are generally due upon receipt of the invoice without deduction, unless other arrangements have been made. Payments by cheque are only deemed to be payment once credited to our account.

The customer is only entitled to rights of set-off and retention if its counterclaims have been legally established or recognized by us. The customer may only assert a right of retention on the basis of counterclaims arising from the same delivery/service.

If the customer defaults on a payment or if there are concrete indications of the customer’s imminent insolvency, we may cease further work on current orders and demand reasonable security for the performance of the contract. If the customer fails to provide such security within a reasonable period, we are entitled to withdraw from the contract (or contracts) and to charge the customer the costs incurred up to that point, including lost profit.

6. Liability for defects in the purchase of hardware and software

Claims for defects by the customer require that the customer has duly complied with its obligations to inspect and give notice of defects owed under Section 377 HGB. Recognizable defects must be reported in writing immediately after receipt of the delivery, hidden defects immediately after their discovery.

Liability for material defects begins, in the case of hardware and standard software, upon delivery of the contractual items. In the event of a defect in the purchased item, we initially have the right to subsequent performance, whereby we may refuse the subsequent performance alternative chosen by the customer under the conditions of Section 439 (3) BGB. In the event of remedying the defect, we bear the expenses only up to the amount of the purchase price of the defective product.

If subsequent performance fails or if we refuse subsequent performance, the customer is entitled, at its option, to demand withdrawal or a reduction in price. A repair is deemed to have failed after the second unsuccessful attempt, unless something else results in particular from the nature of the item or the defect or from other circumstances.

7. Liability for defects in custom software

Custom software is software specially programmed or adapted by us according to the customer’s specifications. The following provisions apply with regard to custom software.

It is pointed out that, in principle, no software or IT infrastructure available on the market is fully secure and free of defects for all conditions of use. This is due, among other things, to the large number of viruses in circulation and to the fact that security risks fundamentally exist which, according to the prevailing state of the art, may not yet be counterable. We cannot per se provide protection against improper operation or modification of the custom software created, against any contamination of software components with computer viruses or other malware, or against other security vulnerabilities for which we are not responsible. Protection against faults from the customer’s risk area, from third-party providers of software and hardware or from other third parties – in particular against faults caused by improper operation or modification of the applications or of third-party software, by contamination of corresponding components with computer viruses, use of unsuitable data carriers, faulty hardware, failure of the power supply or data-carrying lines, faults due to inadequate information security, unsuitable environmental conditions at the place of operation/retrieval of the applications, or force majeure – is not our responsibility. Subject to this limitation, we warrant that the software is usable in accordance with the program description valid at the time of delivery to the customer and has the properties assured therein. Claims for defects do not exist in the case of an insignificant deviation from the agreed or presupposed quality and in the case of only an insignificant impairment of usability.

It is pointed out that it is not possible to develop software in such a way that it is error-free for all conditions of use. Subject to this limitation, we warrant that the software is usable in accordance with the program description valid at the time of delivery to the customer and has the properties assured therein. An insignificant reduction in usability is disregarded.

The warranty period for individually developed software begins with acceptance. If software developed by us proves to be unusable or defective, the delivered software will be taken back within the statutory warranty period and exchanged for new software of the same title. If this software also proves to be unusable or defective and we do not succeed in establishing usability with reasonable effort and within a reasonable period, the customer has the right, at its option, to a reduction of the purchase price or to return the software and a refund of the purchase price.

As a rule, there is no further warranty obligation for custom software.

The customer bears sole responsibility for the selection, installation and use as well as for the intended results. Furthermore, there is no warranty whatsoever for versions of software changed or edited by the customer, unless it is proven that existing defects are in no way connected with the changes or edits.

8. Installation of systems and software, acceptance

If systems consisting of various hardware and software components are to be delivered, the setup of the ordered systems and the installation of software at the customer’s site are only the subject matter of the contract if this is expressly agreed.

In the case of custom software, it is additionally checked whether the program description valid at the time of delivery to the customer is fulfilled.

9. Liability

9.1 We are liable – on whatever legal grounds – only if the typical damage foreseeable at the conclusion of the contract was caused a) by a culpable breach of a material contractual obligation (cardinal obligation) in a manner that jeopardizes the achievement of the purpose of the contract, or b) is attributable to gross negligence or intent.

9.2 Eine Haftung für Schäden aus der Verletzung des Lebens, des Körpers oder der Gesundheit, die auf einer fahrlässigen Pflichtverletzung oder einer vorsätzlichen oder fahrlässigen Pflichtverletzung unseres gesetzlichen Vertreters oder Erfüllungsgehilfen beruht, wird durch diese Bestimmung weder ausgeschlossen noch beschränkt.

9.3 Die Haftungsbeschränkung gemäß Abs. 1 gilt in gleicher Weise für Schäden, die aufgrund von grober Fahrlässigkeit oder Vorsatz durch unsere Mitarbeiter oder Beauftragte verursacht werden.

The limitations of liability under paragraphs 1 to 3 also apply mutatis mutandis in favour of our employees and agents.

Any liability under the German Product Liability Act remains unaffected.

Our liability is excluded in the event of non-performance or poor performance or the causing of damages if a form of force majeure is responsible for this. Strikes, lockouts and similar circumstances are equivalent to force majeure.

Unless otherwise separately agreed, we are not liable for the loss of data and/or programs insofar as the damage is based on the customer having failed to carry out a data backup and thereby ensure that lost data can be restored with reasonable effort.

The customer is solely liable if, through the execution of its order – in particular in the creation of software according to the customer’s specifications – rights, in particular industrial property rights of third parties, are infringed.

10. Copyright, reproduction

The customer may only reproduce the software insofar as this is necessary for the proper operation of the software or for backup purposes. However, as a rule, only a single backup copy may be made and kept. This backup copy must be marked as such of the software provided.

The customer is obliged to prevent unauthorized access by third parties to the software and the documentation through suitable precautions. The supplied original data carriers and the backup copies must be kept in a place secured against unauthorized access by third parties. The customer’s employees must be emphatically informed of the obligation to comply with the present contractual terms and the provisions of copyright law.

The customer may not make further reproductions, which also include the output of the program code to a printer and the photocopying of the manual. Any additional manuals required for employees are to be obtained from the supplier.

11. Transfer of software

The customer is entitled to pass on software in its original state and as a whole to a subsequent user.

With the transfer of software, the authorization to use it passes to the subsequent user, who thereby takes the place of the customer within the meaning of this contract. At the same time, the customer’s authorization to use it expires.

Upon transfer, the customer must immediately and completely delete or otherwise destroy all copies and partial copies of software as well as changed or edited versions and copies and partial copies made thereof. This also applies to all backup copies.

12. Other rights

All further rights to use and exploit software developed by us are reserved. In particular, neither the customer nor subsequent users have the right to distribute or rent out reproductions of software in their original version or in modified or edited versions, to make them available to third parties within the framework of ASP services (software-as-a-service) or in any other way, or otherwise to use them in a manner that goes beyond the originally intended use.

In addition, the respective general terms and conditions of business or contract of the manufacturers or suppliers of software and hardware apply.

13. Retention of title

We retain title to the purchased item until receipt of all payments from the existing current-account relationship (business relationship) with the customer; the retention relates to the recognized balance. In the event of conduct by the customer in breach of contract, in particular default of payment, we are entitled to take back the purchased item. Our taking back of the purchased item does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. Our seizure of the purchased item always constitutes a withdrawal from the contract. After taking back the purchased item, we are entitled to realize it; the proceeds of realization are to be offset against the customer’s liabilities – less reasonable realization costs.

In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can bring an action pursuant to Section 771 ZPO. Insofar as the third party is not able to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the customer is liable for the loss incurred by us.

The customer is entitled to resell the purchased item in the ordinary course of business; however, it already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim that accrue to it from the resale against its customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds received, does not default on payment and, in particular, no application has been filed for the opening of insolvency proceedings and there is no suspension of payments. If this is the case, however, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

We undertake to release the securities to which we are entitled at the customer’s request insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released is at our discretion.

14. Place of performance, place of jurisdiction, applicable law, validity, miscellaneous

The place of performance for deliveries and payments is the registered office of our company.

All legal relationships or legal acts in the relationship between us and the customer are governed exclusively by the law of the Federal Republic of Germany. The Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods are excluded.

The exclusive place of jurisdiction for disputes arising from the contractual relationship, including cheque, bill-of-exchange and documentary proceedings, is Darmstadt if the customer is a merchant within the meaning of the HGB or has no general place of jurisdiction within Germany. We reserve the right to also sue the customer at the court responsible for its place of residence.

The possible invalidity of one or more of the above provisions does not affect the validity of the remaining conditions. In this case, the contracting parties will replace the invalid provisions with a provision that comes as close as possible in its economic effect to the invalid provision. This legal principle also applies in the event of a gap in the provisions.