Delivery- and License-Conditions of Reinhardt Software GmbH
in the following referred to as ‘Reinhardt’), valid as of 1st January 1993
The following terms of delivery are the basis of any contractual relationship between Reinhardt and its customers. The customer accepts the conditions at the latest upon acceptance of the goods and services. Additional agreements or opposing business conditions of the contractual partner will not be accepted unless expressly agreed to in written form.
2. Offer and Conclusion of the Contract
2.1. The offers of Reinhardt always remain – unless agreed to otherwise – not binding and subject to confirmation.
All contracts materialize only after a written order confirmation by Reinhardt, at the latest upon acceptance of the goods and services.
2.2. If the customer cancels an order without justification, Reinhardt can claim 15% of the stipulated price for the costs arisen regarding order handling and lost profit, irrespective of the possibility to claim a higher actual loss sustained.
3. Scope of Supply
3.1. The scope of supply will be determined by our written order confirmation.
3.2 Changes of construction, form or programming which can be attributed to the improvement of technology respectively which are required by law, are subject to change during the time of delivery unless the delivery item will not be changed considerably and the changes are reasonable for the customer.
3.3. Partial delivery is allowed within the specified delivery period, if disadvantages for use can be excluded.
4. Delivery Period and Delivery Times
The time of delivery is not binding, unless expressly agreed to in writing. A stipulated delivery time starts 3 days after sending off the order confirmation, however, not before the customer has presented documents, licenses, releases etc. – where necessary, as well as prior to receipt of agreed advance payment.
The time of delivery is met when readiness for dispatch has been communicated until its expiration or the delivery item has left the factory.
Circumstances beyond our control, i.e. interruption of operation, industrial disputes, delay caused by a third party, especially by a supplier, prolong the delivery time accordingly.
5. Packing and Shipment
The customer gains ownership of the packing material which will be invoiced by us. Postage and packing expenses will be invoiced separately. The choice of the mode of dispatch will be made according to best judgment.
6. Acceptance and Transfer of Perils
6.1. The customer is obligated to accept the delivery item. Unless otherwise agreed to (delivery by Reinhardt), the delivery takes place at the premises of Reinhardt. The customer is obliged to inspect the delivery item immediately.
6.2 The customer falls into arrears if he does not accept the offered goods and services. If the customer does not accept the delivery item after more than 1 week, we are allowed to withdraw from the contract or to demand damages for non-performance after having set an additional period of time of a further week. Setting an additional period of time is not necessary, if the customer earnestly and definitely declines acceptance or is obviously not in the position to pay the purchase price within the specified time.
6.3 The risk is transferred to the customer upon acceptance of the delivery item. If the customer has fallen into arrears regarding acceptance, the risk of a loss by accident or a deterioration of the delivery item is transferred to the customer during the time of the refusal.
In case of shipment of goods, the risk is transferred to the customer as soon as the goods have been handed over to the forwarding agent, the carrier or the person or institution in charge of the shipment.
7. Price Changes
Changes of price are allowed, if more than 3 months have passed since conclusion of the contract (date of order confirmation) and the agreed delivery date. Afterwards, Reinhardt is entitled to reasonably raise the stipulated price according to the increase of costs. However, this does not entitle the customer to withdraw from the contract.
8.1. We accept liability for the following defects as follows:
a) During a period of 6 months after acceptance of the delivery items, the customer is entitled to a remedy of defects (rectification of defects). If we cannot rectify a defect subject to guarantee or further attempts regarding rectification are not acceptable for the customer, the customer can demand a cancellation of the contract or reduction of the purchase price.
b) In any case, natural wear and tear is excluded from guarantee.
8.2 Regarding further claims and rights we only accept liability in case of intent and gross negligence. For the rest, liability is excluded.
9. Reservation of Proprietary Rights
9.1 We reserve the right of ownership of the delivery items until payment has been made.
9.2 If the customer is in breach of contract, especially regarding default payment, we are entitled to take back the goods after having sent a reminder and the customer is obligated to return the goods.
9.3 The claiming of proprietary rights as well as the distraint of the delivery items by us cannot be considered a cancellation of contract, provided that the provisions of the consumer credit law cannot be applied or this is expressly declared by us in writing.
For traders, a legal entity of public law or special assets subject to public law, the following is applicable:
9.4 The customer is entitled to resell the delivery items in the regular course of business; he already assigns all claims in the amount of the purchase price (including V.A.T.) agreed between us and the customer resulting from the resale, independent of the fact whether the delivery items will be resold without or after processing. The customer is authorized to collect these claims after assignment. Our authority to collect these claims ourselves will remain unaffected by this; however, we commit ourselves not to collect these claims for as long as the customer duly keeps the payment obligations and is not in default payment. However, should this be the case, we can demand that the customer discloses the assigned claims and their debtors, states all required information, hands out the respective documents and informs the debtors about the assignment.
9.5 Processing or converting of the goods by the customer will always be carried out for us. In case the delivery items will be processed with other items not belonging to us, we obtain the joint ownership of the new article in proportion to the value of the delivery items to the other processed items at the point of time of processing.
9.6 If the delivery goods are inseparably mixed with other items not belonging to us, we will obtain the joint ownership concerning the new article in proportion to the value of the delivery item to the other mixed items. The customer stores the joint ownership for us.
9.7 The customer is not allowed to pawn or to transfer by way of security. Upon distraint and confiscation or other orders by a third party, the customer is obligated to inform us immediately and to make all information and documents available to us, which are necessary to protect our rights. Enforcement officers respectively a third party has to be made aware of our ownership.
9.8 We commit ourselves to release the securities upon demand of the customer insofar as the value of the claim to be secured exceed more than 20%, if these have not been settled.
10.1 If the object of agreement is software (computer programs developed by Reinhardt), the customer will be granted basic usage rights for each purchased license. Without written agreement, the customer is not entitled to copy or otherwise duplicate the programs or to leave usage to other persons. The customer is committed to inform Reinhardt immediately in writing if he uses more licenses than originally purchased. Reinhardt is entitled to invoice these additional licenses according to the list price valid at that point of time. If the customer breaches this usage right, he will be responsible for any loss. Furthermore, Reinhardt is entitled to demand compensation for damages amounting to EUR 25,000.00 for each breach of license.
10.2 Reinhardt is entitled to integrate mechanisms into their programs to transfer status information of the installed Reinhardt systems to Reinhardt via remote data transmission (modem, Internet, fax). Possible costs of the data transmission will be paid by the customer. These status information may also include the number of used licenses. Reinhardt will keep these information strictly confidential. If these information reveal any breach of license, Reinhardt is entitled to analyze these information and use as evidence, if necessary.
11. Terms of Payment
11.1. The purchase price and the remuneration for ancillary services are due on delivery of the delivery items.
If not agreed separately in written form, the following terms of payment are applicable regarding program installations:
Software licenses are due for payment to the full extent immediately upon conclusion of the contract
50% of the service is due upon conclusion of the contract
50% is due upon installation respectively acceptance, at the latest upon use of the program
11.2 Checks and bills of exchange are considered payment when cashed. The acceptance of a bill of exchange always requires a prior written agreement with us. When payment is made by a bill of exchange, the discount and collection charges will be charged. They have to be paid in cash immediately.
11.3 Default interest will be charged with 3% p.a. above the respective rate of discount of the Deutsche Bundesbank. They will be charged higher or lower, if we can prove charges with a higher rate of interest or if the customer proves lower charges.
11.4 Counting up counter claims is only permitted, if the counter claims of the customer have been declared legally binding.
12. Place of Fulfillment and Court of Jurisdiction
12.1 Place of Fulfillment is the office of Reinhardt.
12.2 If legally allowed, the Court of Jurisdiction is the main office of Reinhardt. The law of the Federal Republic of Germany is applicable.
13.1 Transferring the rights and obligations of the customer of the contract concluded with us requires our written agreement to become effective.
13.2 If one of the clauses becomes null and void, the other clauses remain unaffected by this.
13.3 Reinhardt is entitled to authorize third service providers and assignees to perform part or full business activities.
13.4 Changes of the contract, amendments and additional agreements require written form to become effective, unless otherwise agreed in these Terms and Conditions. The requirement of the written form is also applicable for the waiving of this form requirement.
13.5 Should one of the contract clauses or of the Terms & Conditions become ineffective or should the contract not be complete, the rest of the contents of the contract remains unaffected. The ineffective clause will be replaced by a clause which comes economically closest to the purpose of the ineffective clause in a legally effective way. The same applies to any loopholes in the contract.