To download our Terms and Conditions, click here.
General Terms and Conditions - Status: January 30, 2012
For deliveries and services provided by HB Technologies AG, Tübingen, hereinafter referred to as HB.
§ 1 Scope of application
These General Terms and Conditions apply to all deliveries and services provided by HB, in particular to standard software deliveries and customizations, as well as to software development, project management, consulting, and engineering services. Other terms and conditions, in particular the buyer's terms and conditions of purchase, shall not become part of the contract, even if these terms and conditions are not expressly contradicted. The terms and conditions of the upstream supplier shall apply to hardware deliveries.
§ 2 Offers
2.1 Unless otherwise agreed in writing, offers made by HB are subject to change. A contract shall only come into effect upon written order confirmation by HB.
2.2 An approved order plan is a prerequisite for an order confirmation from HB. The order plan is created by HB and submitted to the customer for approval.
2.3 An order confirmation from HB is decisive for the scope of delivery.
2.4 HB reserves the right to make technical deviations from the offer documents even after confirmation of the order. HB reserves ownership rights, copyrights, and industrial property rights to cost estimates, feasibility analyses, specifications, and other documents, if agreed, and they may not be made accessible to third parties. Documents must be returned immediately if the order is not placed with HB.
§ 3 Prices and Terms of Payment
3.1 All prices are quoted ex Tübingen, excluding packaging and shipping, plus statutory value added tax.
3.2 Unless expressly agreed otherwise, the following terms of payment apply: For software, software adaptations, and software developments, the following amounts are due: 60% of the order total upon ordering 40% of the order total after delivery Services and travel expenses are due for payment immediately after performance, goods (hardware and third-party software) are due for payment immediately after delivery. After that, default of payment occurs without further reminder. In the event of default of acceptance (§ 4 (4.3)), the remaining outstanding amount plus statutory value added tax shall become due for payment immediately. After that, default of payment shall occur.
3.3 HB does not grant discounts.
3.4 The withholding of payments due to counterclaims of the customer not recognized by HB is not permissible. The customer may only offset claims that are undisputed or have been legally established.
3.5 If the customer defaults on payment, interest shall be charged on the amount owed at a rate of 5% p.a. above the applicable discount rate of the Deutsche Bundesbank from the date of default. We reserve the right to claim further damages for default.
§ 4 Delivery period
4.1 The delivery period shall commence on the date of HB's written order confirmation. Compliance with the delivery period shall be subject to the timely receipt of all documents and/or hardware and/or software to be supplied by the customer, the availability of all necessary approvals and releases, the timely clarification and approval of plans, compliance with the agreed terms of payment, and other contractual obligations. If these conditions are not met in good time, the delivery period shall become void and shall be renegotiated taking into account HB's operational requirements.
4.2 In the case of software services of all kinds, development or other services, delivery shall be deemed to have been made upon handover of the data carrier or the developed system; the source codes are not included in the scope of delivery owed.
4.3 In the event of a delay in acceptance by the customer, written notification of readiness for delivery by HB shall suffice as justification for the delay in acceptance.
4.4 Partial deliveries are permissible.
4.5 If non-compliance with the delivery deadline is demonstrably due to force majeure, war, strikes and lockouts at HB or at the supplier's premises, or to the supplier's delay in delivery, the rejection of an important workpiece, or even, according to general legal principles, to circumstances for which HB is not responsible, the delivery deadline shall be extended appropriately.
4.6 In the event of non-compliance with the delivery period for reasons other than those specified in § 4 (4). 5, the customer may, upon proven occurrence of damage caused by delay, demand compensation of 1/2% for each completed week of delay up to a maximum of 5% of the agreed price of those parts of the total delivery that cannot be put into operation due to the delay in completion, after a reasonable grace period set in writing has expired without result. Higher claims for damages by the customer are excluded in all cases of delayed delivery, even after the expiry of a grace period set by the supplier. The customer's right to higher compensation in the event of proven gross negligence on the part of HB, as well as to withdrawal after the fruitless expiry of a reasonable grace period set by HB, remains unaffected.
§ 5 Transfer of risk
The risk (performance and remuneration risk) shall pass to the customer:
5.1 Upon delivery to the location specified by the customer.
5.2 If default of acceptance occurs in accordance with § 4 clause 4.3.
5.3 In the case of shipment, if the items to be delivered have been properly shipped.
§ 6 Other services
6.1 Unless expressly agreed otherwise, all services such as installation, commissioning, functional testing, concept development, consulting, training, and software presentations shall be invoiced according to the actual hours worked (in accordance with the hourly rates valid at the time of execution as per the HB price list). In addition, the customer shall bear the costs of travel to and from the Tübingen office. Travel time shall be charged as working time. Travel expenses and accommodation shall be charged according to individual receipts or, at HB's discretion, according to the mileage allowance rates in accordance with the currently valid HB price list; accommodation shall be charged according to the flat rates in accordance with the currently valid income tax guidelines. For additional meal expenses, the flat rates of the applicable income tax guidelines will be invoiced. All prices are subject to the applicable statutory VAT.
6.2 The customer must meet the following requirements for installations: Before installation begins, the customer must complete all preparatory work necessary for the installation work to commence, so that installation can begin immediately upon arrival of HB employees or subcontractors commissioned by HB and can be carried out without interruption. During installation, the customer must keep all necessary equipment available, assist in the operation of all connected third-party devices, and, if necessary, enable work to be carried out outside normal working hours.
6.3 If the installation or commissioning is delayed through no fault of HB, the customer shall bear all costs for the waiting time or further necessary travel by HB employees or the subcontractor commissioned by HB.
§ 7 Acceptance
7.1 Acceptance of software adaptations and software developments shall generally take place immediately or, by agreement, no later than 14 days after delivery.
7.2 If formal acceptance has been agreed, a report shall be drawn up and signed by the customer and HB. If formal acceptance has not been agreed, it shall automatically take place within 30 days in accordance with a simplified procedure. HB Technologies AG - Paul-Ehrlich-Str. 5 - 72076 Tübingen - www.h-net.com Page 2 of 2
7.3 If the delivery is free of defects or if any defects that have occurred have been remedied, the customer is obliged to accept the delivery. If the customer does not accept the delivery in the case of agreed formal acceptance, HB will request acceptance within a period of 14 days and at the same time point out that acceptance is deemed to have taken place upon expiry of this period. If the customer does not submit the acceptance declaration within the deadline, it shall be deemed to have been submitted upon expiry of the deadline.
7.4 Any defects that exist and are recorded in the acceptance report shall be remedied by HB free of charge within the scope of the contractual obligation in accordance with the scope of the order.
§ 8 Software Licenses
8.1 Software, including subsequent updates, is generally recognized by the customer as being protected by copyright. The customer receives the non-transferable and non-exclusive right to use the software for an unlimited period of time, limited to 3 months in the case of demo, trial, or test installations, under the following conditions (the license terms contained in the software products apply in addition):
8.2 The software, whether in whole or in part, may only be used on the central processing unit or, in the case of network versions, on the network on which it was first installed. Modifications, extensions, or other interventions of any kind are not permitted. Duplication of the software and any documentation provided is permitted exclusively for data backup purposes. HB assumes no warranty or liability for duplicated software.
8.3 The customer may not make the software and the documentation provided available to third parties, use the software or parts thereof for the purposes of third parties, or allow third parties to inspect the documents.
8.4 No further rights to the software are transferred to the user.
8.5 In the event of a breach of the license terms, the customer shall pay a contractual penalty amounting to twice the respective software price (for standard software in accordance with the currently valid HB price list) for each breach.
§ 9 Development orders
The following provisions apply to software development carried out by HB in connection with development orders:
9.1 The services to be provided shall be governed by the specification agreed by both parties as part of the contract and, in exceptional cases, by the service description contained in the concept. Changes or additions to the specification always require a written agreement in the form of a document signed by both contracting parties, which shall also regulate the financial implications of the changes or additions.
9.2 If deadlines are exceeded due to the complexity of the order development, any grace periods to be set shall be determined by the customer, taking into account the technical problems that have arisen or any supplier difficulties. If the customer's requests for changes or additions are to be taken into account, the agreed deadlines shall be postponed in accordance with the additional work caused thereby.
9.3 After delivery of the development, acceptance and any error correction shall take place in accordance with § 7. All further claims, in particular claims for damages due to delays in commissioning or downtime, are excluded. Claims due to proven gross negligence on the part of HB are excluded.
§ 10 Warranty
10.1 The client/licensee is aware that, given the current state of technology, it is not possible to create computer programs that work without errors in all applications and combinations. HB warrants that the software provided essentially fulfills the functions specified in the service description. Software defects are only errors in which the program functions deviate reproducibly from the functions specified in the service and function description and which can be proven not to be attributable to errors in the hardware, system software, or other system components not supplied by HB.
10.2 At HB's discretion, the defects shall be remedied by installing an improved software version (see 10.1) or by providing instructions on how to eliminate or circumvent the effects of the error. The client shall provide all documents necessary for error diagnosis as well as the computer equipment and computer time required for error correction free of charge.
10.3 Wear parts and damage attributable to natural wear and tear, incorrect operation, or repair, maintenance, or modifications not expressly authorized by HB are excluded from any warranty. If HB incurs expenses as a result of a complaint that are not based on defects in the products delivered by HB, the customer shall reimburse HB for the expenses incurred. This applies in particular to the cost of locating the fault.
10.4 The warranty period is 24 months and begins at the time of acceptance.
10.5 HB shall only be liable for hardware delivered by HB and software not manufactured by HB itself to the extent of the supplier's warranty.
10.6 If repeated attempts by HB to remedy the defect are unsuccessful or if HB does not offer a new, error-free version of the program, the customer's statutory rights to a reduction in payment and rescission of the contract shall be reinstated after a reminder and the setting of a reasonable grace period.
10.7 The warranty shall expire if the customer modifies the program delivered by HB.
10.8 No further warranty: HB excludes any further warranty with regard to the software, any manuals supplied with it, or other written materials.
§ 11 Liability
11.1 HB shall only be liable for damages caused by gross negligence or intent on its part or on the part of its vicarious agents up to a maximum amount of EUR 2,500.00. In the event of loss or damage to data or data carriers, the obligation to pay compensation shall not include the replacement of lost data. Otherwise, claims for damages against HB for any reason whatsoever are excluded to the extent permitted by law; this applies in particular to consequential damages (such as damages resulting from lost profits, business interruption, loss of business information, or other financial losses). 11.2 All claims for damages against HB, HB employees, or other vicarious agents shall become time-barred 12 months after the damage occurred. This does not apply to claims arising from tort; in this case, the statutory limitation periods shall apply.
11.3 If the customer has contributed to the occurrence of damage through culpable behavior, the extent to which HB and the customer are to bear the damage shall be determined in accordance with the principles of contributory negligence (§ 254 BGB).
11.4 HB shall not be liable for damage caused by force majeure, riots, acts of war, natural disasters, or other events beyond its control (e.g., strikes, lockouts, traffic disruptions).
§ 12 Retention of title
12.1 All goods remain the property of HB until all claims against the customer have been fulfilled, including those to which HB is entitled outside the contract.
12.2 Resale in the ordinary course of business is permitted.
12.3 Further processing of the goods is only permitted with the prior written consent of HB.
§ 13 Final provisions
13.1 Even if individual points of the contract are legally invalid, the remaining parts shall remain valid. Any invalid provisions shall be replaced by new provisions that come as close as possible to the intended economic success.
13.2 Agreements that deviate from or supplement the above terms and conditions shall only be effective in the form of a written supplementary agreement to the General Terms and Conditions.
13.3 To the extent permitted by § 38 ZPO (German Code of Civil Procedure), the registered office of HB shall be agreed as the exclusive place of jurisdiction and place of performance.
13.4 All legal relationships with HB shall be governed exclusively by the laws of the Federal Republic of Germany.
