General Terms and Conditions of Peters Software GmbH (October 2013)
1. General provisions
1.1 The following terms and conditions apply to all deliveries, services and offers supplied by Peters Software GmbH, hereinafter referred to as “Peters Software”.
1.2 Conflicting terms and conditions of the customer will not form an integral part of the contract even in the case of delivery and even if they have not been expressly rejected.
1.3 Any deviations from these Terms and Conditions and/or their addendums and amendments as well as addendums to concluded contracts and the terms and conditions of Peters Software applicable to these contracts must be made in writing.
1.4 Peters Software is entitled to amend these General Terms and Conditions by informing the customer in detail about the amendment.
1.4.1 Amendments come into effect once the customer has approved them in writing or confirmed them via an electronic form.
1.4.2 Otherwise the amendments enter into force automatically one month after notification. If the amendments are to the detriment of the customer, the latter may terminate the contract within one month of receiving notification of the amendment. If the customer does not terminate the contract, the amendment becomes valid with respect to the customer upon expiry of the one-month period.
2. Delivery address, warranty and remedy of product defects
2.1 Peters Software GmbH delivers products ordered to the address provided in the order.
2.2 To the exclusion of all further claims, Peters Software guarantees to repair or replace any products in which faults become apparent within 6 months of the transfer of risk in accordance with clause 10 as the result of circumstances existing before the transfer of risk to the customer (e.g. design or material defects, absence of warranted properties).
2.3 Peters Software must remedy product defects which become apparent within 6 months of transferring the product. Only deviations from the product description are deemed to be product defects. Provided there is an obligation to remedy the product defect, Peters Software will fulfil this obligation by supplying a new version of the product. Until the new version of the product is supplied, Peters Software must provide an interim solution for working round the defect, if this is possible at reasonable expense and if the customer can no longer process tasks which cannot be postponed. The client will supply Peters Software with all the documents and information required to remedy product defects.
2.4 If the fault cannot be remedied within a reasonable period of time, the customer may request a reduction in the price or the cancellation of the contract. The liability of Peters Software remains unaffected in accordance with clause 12.
3. Product surrender, rights of use, resale, other performances
3.1 Products are surrendered to the customer for their use in return for payment.
3.2 The customer has the non-exclusive right to use the products surrendered to them within the scope of the agreed performance features or licences. The customer will ensure, for an unlimited period of time, that the products, including copies thereof, even in processed, extended or modified versions, do not become known to third parties without the prior written consent of Peters Software. The customer will only reproduce or modify products with the prior written consent of Peters Software. They will not reverse engineer or decompile the products and will not read out or separate out any product components. They will not remove alphanumeric identifiers, trademarks or copyright notices. Where reproduction is permitted, they will copy the products unchanged, provide all copies with a serial number, from which the product serial numbers can also be deduced, and keep a log of the location of all copies, which Peters Software may inspect upon request.
3.3 The customer is hereby granted the non-exclusive right to fully and permanently transfer the rights of use by reselling them. Peters Software is to be immediately informed thereof by means of a transfer form, which shall be provided by Peters Software upon request. The seller is responsible for informing the subsequent buyer of the terms and conditions of Peters Software. Peters Software shall charge a registration fee for the transfer. Upon receipt of the registration fee, the version shall be activated, provided that this product is still in the current Peters Software product portfolio.
3.4 Product updates are a voluntary service provided by Peters Software and are only available to the first license holder.
3.5 Peters Software is only responsible for the re-activation of a product if this product is available in the current Peters Software product portfolio.
3.6 In addition to the price agreed for the product transfer, Peters Software shall charge the following additional fees according to the company’s catalogue prices valid at any one time:
• work involved in the duplication, translation, generation of products, data carriers delivered by Peters Software,
• the analysis and elimination of errors caused by improper handling of products or by other circumstances which are not the fault of Peters Software,
• support for the introduction or use of products,
• the delivery of new product versions,
• the licensing and registration of new owners upon transfer.
4. Offer and conclusion of contract
4.1 Offers by Peters Software - particularly with regards to prices, quantities, delivery times, delivery conditions and secondary benefits - are non-binding. A contract shall only be concluded on the basis of a written order confirmation and/or by sending the goods and/or when Peters Software completes the order and shall be based solely on its content.
4.2 The explicit acceptance of guarantees or warranties of properties must be confirmed in writing by Peters Software.
4.3 The scope of services to be provided by Peters Software is defined solely by the written contracts or written offers. Insofar as they have been agreed upon, the documents listed below apply in the following order: the distributor agreement, the individual license conditions of Peters Software, the support contract and, in addition, these General Terms and Conditions.
4.4 Peters Software reserves the right to take into consideration mandatory deviations from the order documents or order confirmation as required by legal or technical standards.
4.5 If the parties enter into an agreement by electronic mail (e-mail), they acknowledge the unlimited validity of declarations of will exchanged in this way in accordance with the following provisions:
4.5.1 In the e-mail, the usual data should not be eliminated or circumvented by making them anonymous, i.e. it must contain the name and e-mail address of the sender, the date of dispatch (date and time) and must display the name of the sender at the end of the message. An e-mail received within the scope of this provision shall be regarded as having been sent by the other party unless evidence to the contrary exists.
4.5.2 Confidentiality is not guaranteed for unencrypted data transferred on the internet.
Installation, training and consulting
4.6 The customer is personally responsible for the correct installation of delivered products. Installation by Peters Software and training and instruction of the customer and its operators in how to use the delivered products are not included in the scope of the services. These services shall only be provided on the basis of a corresponding agreement and shall be charged separately.
4.7 If Peters Software provides training, consultation and installation services, the customer must ensure that the necessary requirements are met by the customer, in particular that the necessary space and infrastructure, documents and staff are available. If the customer fails to comply with their cooperation obligations according to Section 4.6, the contractually agreed completion deadline for Peters Software shall be extended correspondingly. Peters Software is entitled to charge for any additional expenses caused by the delay, in particular with regards to the extended provision of its own staff and equipment.
4.8 Information must be confirmed in writing.
5. Scope of services
5.1 Peters Software is entitled to use the assistance of third parties to provide the owed services.
5.2 Peters Software is entitled to make reasonable partial deliveries and provide partial services.
5.3 Products delivered for testing or demonstration purposes (hardware, software, data carriers, documents, etc.) shall remain the property of Peters Software. Peters Software reserves the right to set up products so that they are no longer fully operational after the end of the agreed test period. The customer is not entitled to assert any claims on this basis.
6. Delivery time
6.1 Delivery times specified by Peters Software are not binding. If Peters Software exceeds the expected delivery date by more than 4 weeks, the customer is entitled to set a reasonable grace period for delivery by Peters Software.
6.2 Changes to an order shall result in the cancellation of previously agreed dates and deadlines, unless agreed otherwise.
6.3 Delivery and performance deadlines shall be extended appropriately in the event of force majeure and in the case of any other obstacles which are not the fault of Peters Software and which significantly influence the delivery or performance, in particular strikes and lockouts affecting Peters Software, its suppliers or their subcontractors.
7.1 Prices are gross, excluding packing and freight charges, for private customers (non-business customers). The prices in the current private customers’ price list are decisive and already include the respective statutory sales tax. For all other customers (business customers), prices are net, excluding packing and freight charges. The prices in the current price list are decisive and are exclusive of the respective statutory income tax.
7.2 Other supplies and services for which no price is agreed at the time at which the order is placed shall be charged according to the catalogue prices valid on the day of delivery.
7.3 Training, installation and other services shall be calculated according to the valid price list at the time of acceptance of the order if no fixed price has been agreed.
7.4 Peters Software is not bound to apply the stated prices if a delivery period is agreed which is longer than four months after the written order confirmation. In such cases, the prices valid at the time of delivery shall be charged.
7.5 Any refund claims by the customer, e.g. as a result of overpayments, double payments, etc. shall be credited to the customer's account and, where possible, offset against the next due payment.
8.1 In the event of delayed payment by the customer, Peters Software is authorised to charge interest at the rate of 8% above the base rate, unless the customer can prove lower damages or Peters Software can prove higher damages.
8.2 Unless agreed otherwise, delivered goods are to be paid without deduction 10 days after receipt of invoice.
8.3 The customer is only entitled to offset undisputed or legally valid claims or offset such claims against claims of Peters Software. Rights of retention may only be exercised by the customer if their counterclaim is undisputed or legally binding.
8.4 If the customer owes Peters Software several payments at the same time, the initial debt or, in the case of several due debts, the respective oldest debt shall be paid off first, insofar as the customer has not made a repayment order.
9. Default of acceptance on part of the customer
9.1 In case a customer defaults to accept the products ordered, after granting a reasonable grace period of maximum 14 days, Peters Software shall be entitled to withdraw from the contract and to claim compensation for damage. If Peters Software demands damages, these shall amount to 30% of the order value unless the customer can prove lower damages or Peters Software canprove higher damages.
10. Transfer of risk: acceptance of performances, material defect liability, subsequent improvement of services
10.1 The warranty period is 6 months following the statutory start of warranty.
10.2 If the customer is an entrepreneur then all supplies will be at the expense and risk of the customer.
10.3 The risk shall be transferred to the customer even in case of carriage-free delivery, if the objects have been brought to dispatch or been collected. At the customer's request and expense, deliveries will be insured by Peters Software against the usual transport risks. If the customer is responsible for the delay of shipment or delivery or the customer enters into default of acceptance for other reasons, the risk shall be transferred to the customer at the time of delay.
10.4 Products installed by Peters Software as per order will be promptly tested by the customer together with a member of staff from Peters Software. If the products substantially function as stipulated in the contract, the customer shall promptly declare the acceptance in writing. If the customer refuses acceptance, it must notify Peters Software without delay and at the latest within 10 working days after installation, quoting specific defects with a precise description in an error log. If no acceptance letter or defect report is received by Peters Software during the period stated, the work shall be deemed to have been accepted. The customer may not refuse acceptance on account of insubstantial defects.
10.5 Insofar as no other special regulations have been agreed upon Peters Software shall be liable for defects in its software or service or work performances according to the special provisions that apply to these.
10.6 In case of culpable breach of contractual obligations, the customer must first request Peters Software to perform subsequent improvement or provide replacement at no cost.
10.7 Retention of title
10.8 Peters Software shall retain ownership of the products delivered as well as their right of use until the purchase price has been paid in full. If the customer is a merchant then the above-mentioned reservations are valid until the complete payment of all accounts receivable incurred and being incurred within the business relationship. This shall apply even if individual or all accounts receivable by Peters Software are included in an open account and the balance has been drawn and accepted.
Upon complete acquisition of the ownership of the products the customer acquires the rights of use specified in the product licences.
10.9 If Peters Software substitutes customer’s items for the purpose of performing an order, the ownership of the items taken back shall pass to Peters Software upon replacement and the ownership of items delivered in lieu shall pass to the customer upon fulfilment of the claims due to the customer by Peters Software.
10.10 The customer must treat the goods subject to retention of title with the due diligence of a good businessman on behalf of Peters Software and insure them, at its own cost, against fire, water, theft and other risks. Immediately, upon conclusion of this agreement, the customer assigns to Peters Software its rights as arising from the insurance contracts. Peters Software accepts the assignment.
10.11 The customer also immediately assigns to Peters Software all claims arising from the resale of the goods and/or the sublicencing of the products. The customer is revocably entitled to collect these claims. Upon request by Peters Software, it must declare the claims assigned and their debtors. Peters Software is entitled to declare the assignment to the debtor party of the customer.
10.12 In the case of behaviour on part of the customer which is contrary to contract – in particular arrears of payment – or expected cessation of payments, Peters Software is entitled to take back the goods subject to retention of title at the expense of the customer or to demand the assignment of any claims for surrender by the customer vis-à-vis third parties. These rights also survive if the secured claims are past the statute of limitations. Peters Software is entitled to sell the retained goods if necessary and to offset accounts receivable by settling these with the sales proceeds.
10.13 According to the preceding paragraph, in the event of a right of repossession by Peters Software, Peters Software is entitled to collect the retained goods still in the possession of the customer at the customer's expense. The customer must permit access for the Peters Software employees authorized with the collection of the retained goods to the business premises during office hours, even without prior appointment.
10.14 The exercise of rights arising from the retention of title or from a demand to return the goods shall not be deemed a withdrawal from the contract.
11. Scope of the granting of rights
11.1 Peters Software retains the copyrights and commercial protection rights as well as the exploitation rights to the products supplied. The remarks on copyright protection on the product or on the packaging - also those of third parties - are to be observed. Insofar as nothing else has been agreed upon, the customer acquires a simple right of use to the product. In other regards, the customer's right of usage is regulated according to the terms of licence for the products in question.
12.1 Peters Software shall only be liable without restriction for intent and gross negligence on the part of Peters Software, its legal representatives or vicarious agents as well as for damages arising out of death, injury to body or health which are due to a breach of obligation which is the fault of Peters Software, its legal representatives or vicarious agents.
12.2 For any other negligent breaches of substantial contractual obligations, for whatever legal reason, Peters Software shall be liable according to the reason. The legal right to withdrawal by the contractual partner remains unaffected, however Peters Software shall otherwise be liable for no more than the amount of a typically foreseeable damage and/or of typically foreseeable expenditures.
12.3 Further liability is excluded.
12.4 Insofar as Peters Software is liable according to clause 12.2, the liability is limited to the sum insured by the public liability insurance held by Peters Software.
12.5 Peters Software shall not be liable for damages insofar as the customer would have been able to prevent their occurrence via measures to be reasonably expected of it - in particular such as via program and data backup.
12.6 The provisions of clause 12 shall also apply in favour of the employees and other vicarious agents of Peters Software.
12.7 The provisions of the product liability law shall remain unaffected.
13. Third-party trademark rights
13.1 The customer undertakes to immediately notify Peters Software of property right infringements by third parties with regard to the products delivered and to assign to Peters Software, at its own cost, any legal defence. Peters Software is entitled to carry out, on account of trademark right claims by third parties, at its own cost, necessary product modifications - even on goods already supplied and paid for.
14. Assignability of claims
14.1 The customer is not entitled to assign, wholly or in part, rights and obligations arising from contracts concluded with Peters Software or to assign wholly or in part to third parties any rights and obligations arising from contracts concluded with Peters Software without the consent of Peters Software.
15. Concluding provisions
15.1 These terms shall remain binding in their remaining parts in case of doubt, also when one or several of the terms is/are legally void. Should provisions be or become wholly or partially ineffective, then a provision shall replace them which most closely resembles the commercial intent of the ineffective provision.
15.2 This agreement shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980.
15.3 Peters Software assumes no responsibility for the accuracy of the translation of documents. In case of differences between translations of these General Terms and Conditions, written offers, price lists or other documents, the German version of the respective document which has been accepted as legally binding by both parties shall apply. This also applies in case a signature has been made on a translated document.
15.4 Place of fulfilment for all supplies and services of Peters Software is Cologne, Germany.
15.5 Insofar as the customer is a merchant in the sense of legal stipulations or has its main office or habitual residence abroad, the exclusive place of jurisdiction is agreed as being Cologne, Germany. Peters Software is, however, also entitled to sue the customer at its general court of jurisdiction.
As at October 2013