Section 1 Scope of application
- These General Terms and Conditions (GTC) apply to all our business relationships with our customers.
- Our Products are developed for the sale to business customers only and shall not be sold to consumers.
- The GTC apply in particular to contracts for the sale and/or delivery of software programs or certain hardware (hereinafter both referred to as “Products”), as well as contracts for the performance of services (such as, for example, implementation of the software program into the customer’s system). These GTC, as amended from time to time, shall also apply as a framework agreement for future contracts with the same customer for the sale and/or delivery of goods, without us having to refer to them again in each individual case.
- Our GTC shall apply exclusively and govern the business relationship with our customer. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in each case, for example, even if we carry out delivery or services to the customer without reservation in full knowledge of the customer’s general terms and conditions.
- Individual agreements made with the customer in individual cases (including collateral agreements, additions and amendments) shall in each case take precedence over these GTC. A written contract or our written confirmation is authoritative for the content of such agreements.
- Legally relevant declarations and notifications to be submitted to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of deficiencies, declarations of withdrawal or reduction) require text form to be effective.
- Even without reference to the applicable statutory provisions, these shall nevertheless apply insofar as they are not directly amended or expressly excluded in these GTC.
Section 2 Conclusion of contract
- Our offers are non-binding and subject to change at any time. This shall also apply if we have provided the customer with any technical documentation, product descriptions, specifications or other documents – also in electronic form – to which we reserve any ownership rights and copyrights.
- The contract shall be deemed concluded once we confirmed the order in writing or text form or upon execution of the delivery. Such contract shall be subject exclusively to the provisions of these General Terms and Conditions of Purchase, the corresponding order confirmation and (if any) of its annexes.
- Unless otherwise expressly agreed, any information provided by us in text or image form (such as, but not limited to, descriptions, images, drawings, specifications) are the conclusive and final descriptions of our Products and their intended use. This information is in each case based on our current state of technical knowledge and does not contain any kind of guarantee, whether expressed or implied.
Section 3 Delivery and delivery period
- Unless otherwise agreed, delivery of Products shall be made “ex works” (Incoterms 2020 EXW).
- The delivery period shall commence as set out in our order confirmation, but not prior to the procurement of documentation, authorisations and releases as may have to be obtained by the customer, nor prior to the payment of any agreed down payment.
- In the event of a delay in delivery which is due to our fault (in accordance with the statutory provisions), the customer shall, upon the unsuccessful expiry of an appropriate grace period – of not less than 3 weeks – have the right to rescission of the contract. Entitlements to damages due to delay, notwithstanding section 6 hereof, are hereby excluded.
- In the event of unforeseen obstacles beyond our control that are not reasonably avertable despite our due care in the particular circumstances – irrespective of whether occurring to us or to one of our subcontractors – as in the case of an Act of God (such as, but not limited to, war, natural catastrophes, epidemics and pandemics etc.) – we shall be entitled to an extension of the aforementioned delivery period by the duration of such circumstances without any liability to the customer. We undertake to notify the customer of such circumstances without delay. If any delays attributable to any one or more of the aforementioned events continue for a period in excess of four months, then either party shall be entitled to rescission of the contract.
Section 4 Remuneration and terms of payment
- Payment, unless otherwise agreed between with the customer, must be made without any deduction within 14 days from date of invoice and acceptance of service provided to our account specified on the invoice. The payment is considered to be made when it shows in our account. However, we are entitled at any time, also during an ongoing business relationship, to carry out deliveries or services in whole or in part only against advance payment.
- The customer shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the remuneration at the statutory default interest rate applicable in each case. We reserve the right to assert further claims for damages caused by default.
- Unless agreed otherwise, the prices quoted by us shall be net of any auxiliary costs such as freight, customs and packaging, exclusive of any discount or other rebates or deductions, and plus the statutory value added tax (on the purchase price) applicable on the date of delivery.
- The customer shall be entitled to set-off or to a right of retention only to the extent that his claim is legally established by a court of law or the claim is not disputed by us. In the event of deficiencies, the customer's legal rights with regards to deficiencies shall remain unaffected.
- If it becomes apparent after conclusion of the contract that our claim to remuneration is at risk due to the customer's inability to pay (e.g. due to filing for insolvency proceedings), we shall be entitled in accordance with the statutory provisions to refuse performance and – after setting a deadline, if applicable – to withdraw from the contract.
Section 5 Claims based on deficiencies
- The customer shall be obligated to inspect any Products delivered immediately upon receipt and shall promptly, but not later than 10 working days after delivery, notify us in writing of any identifiable deficiencies.
- In the event of any deficiencies in the Products or our services, the statutory provisions shall apply to the customer's rights unless otherwise specified below.
- The basis of our liability for deficiencies is the agreement regarding the quality of the Products, in particular, as set out in our specification for the Products which is part of every contract with our customer and is provided by us to the customer.
- Insofar as a deficiency of the Products exists, we shall, at our discretion, be entitled to repair such deficiency or to deliver a conformant Product (subsequent performance).
- We shall be entitled to make such subsequent performance dependent on the customer paying the due remuneration. However, the customer shall be entitled to retain a part of the remuneration which is appropriate in proportion to the deficiency.
- The customer shall in any case give us the time and opportunity required to investigate a deficiency and to remedy it by way of such subsequent performance.
- If there is in fact a deficiency, we shall bear the expenses necessary for the purpose of examination and subsequent performance, in particular for transport, travel, labour and material costs. Otherwise, we may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the deficiency, unless the lack of a deficiency was not detectable by the customer.
- For products not self-manufactured, we will, to the extent provided for by law, have the option of assigning warranty claims against the retailer to the customer and of referring him to the manufacturer with regard to the warranty. We do not contractually assume any responsibility for Products not self-manufactured beyond our duties in accordance with the applicable law.
- The customer shall have a right to withdraw from the contract under the applicable statutory provisions if we - taking into account any exceptions under the law - fail to perform the repair or replacement delivery for a deficiency within a reasonable period set by the customer. If the deficiency is to be considered minor, the customer shall only have a right to reduce the contractually agreed price. In all other respects, the right to reduce the contractually agreed price shall be excluded.
- We do not assume liability for deficiencies that the customer is aware of (or gross negligently not aware of) when the contract is concluded.
- We do not, in particular, assume warranty in any of the following circumstances: unsuitable or inappropriate use, incorrect or negligent handling, installation, assembly, commissioning, configuration or training of the software by the customer or third parties (for example by providing unsuitable input material for the training of the software) despite correct instructions given by us, ordinary wear and tear of Products, chemical, electro-chemical or electrical influences, modifications, repair or maintenance work carried out by the customer or third parties without our prior consent. No responsibility is furthermore assumed for any unlicensed copies of software or any deficiencies that result from the use of hardware by the customer which does not conform with our specified minimum requirements or instructions of use or where the Products were not installed, configured, operated and maintained in compliance with the relevant applicable statutory requirements and guidelines. Claims for damages by the customer pursuant to Section 6 (2) and (3)(a) as well as pursuant to the Product Liability Act shall remain unaffected.
- We do not assume a guarantee for a certain performance or success rate of the Products unless otherwise expressly agreed with the customer.
- If a deficiency is repaired improperly by the customer or a third party, then we shall have no liability for any consequences resulting from such improper repair. The foregoing shall also apply to any modifications of the Products performed without our prior consent.
- The customer will inform us immediately and in writing should he become aware of the infringement of any intellectual property or copyrights by a Product supplied by us. We will have the right to defend the customer against claims by the owners of such rights or to create a modification which does not infringe on third party rights or to take back the product and to refund the purchase price minus any amount for use conceded. The customer will defend and indemnify us against all claims by the owners of such rights incurred against us due to the adherence to the customer’s instructions or alteration of the product or integration thereof into a system by the customer.
- Any claims of the customer for damages or expenses shall, also in the case of a deficiency, only apply pursuant to Section 6 and shall otherwise be excluded.
- Any deficiencies that are not subject to our obligations set out in this section 5 will be examined and dealt with by us in accordance with the provisions of a separate software maintenance agreement with the customer.
Section 6 Other liability
- Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
- We shall be fully liable for damages– regardless of legal grounds – in the event of wilful intent and gross negligence.
- We shall be liable in the event of slight negligence only
a) for damages resulting from injury to life, body or health,
b) for damages arising from a breach of an essential contractual obligation (an obligation that must be fulfilled to enable proper execution of the contract and the observance of which the customer routinely relies on); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
- The limitations of liability resulting from paragraph 2 shall also apply to any breaches of duty by persons whose acts or omissions are attributable to us according to statutory provisions (vicarious agents).
- The limitation of liability shall not apply if we have fraudulently concealed a deficiency or assumed a guarantee for the quality of the Products and to claims of the customer under the Product Liability Act.
Section 7 Retention of title
- We reserve title to the Products until full payment of all our current and future claims from the contract and an ongoing business relationship with our customer (secured claims).
- The Products subject to retention of title may neither be pledged to third parties nor transferred by way of security prior to full payment of the secured claims. The customer must notify us promptly in writing if an application is filed to open insolvency proceedings or if the goods belonging to us are accessed by third parties (e.g. seizures).
- In the event of the customer acting in breach of contract, in particular not paying the due remuneration, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the Products on the basis of retention of title and withdrawal. If the customer does not pay the remuneration due, we may assert these rights only if we have previously and unsuccessfully set a reasonable deadline for the customer to make payment unless such setting of a deadline is obsolete according to the statutory provisions.
- The customer shall be entitled, until revoked in accordance with (c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following additional provisions shall apply.
a) If the Products are processed, mixed or combined by the customer: Retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our Products, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of such third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Products. Incidentally, the same shall apply to the resulting Product as to the Products delivered under retention of title.
b) The customer hereby assigns to us by way of security any claims against third parties arising from the resale of the Product in total or in the amount of our possible co-ownership share pursuant to the preceding paragraph. We hereby accept the assignment. The obligations of the customer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
c) In addition to ourselves, the customer shall remain authorised to collect the claim. We undertake not to collect the claim as long as the customer fulfils his payment obligations towards us, there is no lack in his ability to pay and we do not exercise the retention of title by exercising a right pursuant to paragraph 3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case we shall also be entitled to revoke the customer's authority to further sell and process the goods subject to retention of title.
d) If the achievable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
Section 8 Acceptance
If we perform services for the customer (as set out in section 1 (3)), the customer is obliged to accept any service provided, as soon as it has been notified of its finish and any agreed testing has taken place. If the acceptance process is delayed through no fault on our side, then acceptance is deemed as granted after two weeks from the date of notification made by us of the end of the service provision.
Section 9 Customer’s Duties
The customer shall in particular bear the following responsibilities:
- The customer is aware that the functionality and performance of the Products depend on proper training of the software carried out by the customer himself. In particular, it is the customer’s sole responsibility to provide suitable input materials (such as, but not limited to, a representative amount of sample images of positive and negative scenarios and/or CAD models, etc.) and to provide correct feedback to the software. We are not obligated to check the suitability of the input material or training process carried out by the customer, unless otherwise agreed in the individual case.
- The customer must report to us any structural changes which alter the function of the Products in good time. The customer is also obliged to report in good time and document all disruptions and any changes in the operating conditions that it becomes aware of.
- The customer is obliged to provide the necessary qualified support staff in the numbers and for the time as required by us; the support staff must follow our instructions. We do not assume any liability for acts and omissions of this support staff unless otherwise mandatorily required by the applicable law.
- The customer is obligated to protect the Products from any harmful influences (such as dirt, dust and heat).
- The customer shall create all system-related prerequisites. In particular, he shall provide uninterruptable power supply and an internet connection and shall be responsible for the proper functioning. The customer is responsible for ensuring that the connection is available 24 hours a day, 7 days a week and has sufficient speed and capacity (in accordance with the minimum requirements specified by us).
- The customer is obligated to provide hardware that complies with the requirements specified by us.
Section 10 Use of the software by the customer
- The customer is granted a non-exclusive, non-transferrable and non-sublicensable right of use of the software and corresponding documentation for its own use in accordance with our contractual agreements. The right of use entails the use on one workstation (licensed system).
- The customer must not in whole or in part convert, process, translate, reproduce or decompile the software or AI model from the object code or configuration data to the source code without our written consent. This consent requirement will not apply where such acts are expressly allowed for in accordance with section 69 e of the German Copyright Act.
- The customer is entitled to create one back up copy for safety. The customer will affix a copyright notice by the author on any copy of the software that is equivalent to that on the original version of the licensed software.
- The Customer must ensure that the software and documentation are not accessible to third parties without our prior written consent.
- The software license will entitle the customer to exclusively use the respective licensed version. The customer must keep records containing the licensed software including the respective version, the location of the licensed software and the back-up copy for safety. Upon request the customer must present this copy to us.
Section 11 Data protection
Section 12 Statute of limitations
- The general limitation period for claims arising from deficiencies in the Products shall be one year from delivery. For services, it shall be one year from acceptance.
- The above limitation shall also apply to contractual and non-contractual claims for damages by the customer based on a deficiency in the Products or services, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the individual case. However, claims for damages by the customer pursuant to Section 6 (2) and (3)(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
Section 13 Final provisions
- The contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on the International Sale of Goods (CISG).
- All disputes arising out of or in connection with the contract and our business relationship with the customer, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitrations shall be Frankfurt am Main (Germany). The language of the proceedings shall be English.
- If the Products are subject to import control restrictions, the customer has to adhere to these.
- Should one of the aforementioned provisions be void, ineffective or unenforceable, the validity of the remaining provisions shall remain unaffected. The same shall apply if any other contractual agreement is or becomes void, ineffective or unenforceable. In place of a void, invalid or unenforceable other contractual agreement, a provision shall be deemed to have been agreed which comes as close as possible to the economic and legal success of the void, invalid or unenforceable provision.