General Terms and Conditions of the BANKETTprofi GmbH
as of 1 June 2008
Disclaimer: This English translation of the General Terms and Conditions is provided solely for the convenience of customers. The translation is not binding on the supplier. The German text is the sole authoritative and binding version and prevails in case of any conflict.
All deliveries, services and offers are subject to these terms and conditions. They also apply to all future business relations, even in the absence of a subsequent, explicit agreement to that effect. All references or information by the customer with regard to the validity of his General Terms and Conditions are herewith explicitly rejected.
2 Conclusion of Contract
2.1. Offers made in prospects, advertisements, etc., including quoted prices, are subject to alteration and availability and are not binding. The supplier shall be bound to specially negotiated offers for a period of 30 calendar days.
2.2. Subsidiary agreements, reservations, amendments or supplements to the concluded contracts are valid only if they have been acknowledged by the supplier in writing. The same applies for the assurance of properties.
3 Contract Object
3.1. The subject of this contract is the permanent transfer (licencing) of the software versions, modules and program components and the concession of the right to personal use to the customer.
3.2. Refer to 11 for the delivery of data media and equipment which are not part of the software license.
4 Scope of Service
4.1. The supplier shall provide the customer with the software versions, modules, program components and user documentation as ordered.
4.2. The customer must accept the software at the agreed time. If the customer is in default of acceptance, the software will still be deemed to have been delivered unless the customer proves that the use was impossible due to a material error on the part of the supplier.
4.3. The supplier undertakes to instruct the customer in the operation of the software at specific request and against separate payment.
4.4. Refer to 4.3 which shall apply accordingly for amendments to the software.
4.5 Service specifications contained in systems analyses or other documentation only represent descriptions and are in no way guaranteed properties.
5 Customer Cooperation
5.1. The customer will provide the supplier with all the information needed to fulfill the order.
5.2. The customer will provide the supplier with test data of sufficient quality and quantity as requested.
5.3. Services and deliveries in excess of the contractually agreed ones as a result of incorrect or erroneous information provided will be charged to the customer. The same applies to overheads resulting from delays in the implementation of services for these reasons.
5.4. The customer shall be obliged to follow the care and maintenance instructions and to replace worn data media in a timely manner. All additional costs incurred by non-compliance even during the warranty period shall be at the expense of the customer.
6.1. The agreed charges are net and exclusive of value added tax applicable at the time.
6.2. Travel time shall be invoiced at the applicable hourly rates. Travel cost and expenses for any meals and accommodation will be charged to the customer.
6.3. Additional copies of documentation and other software documents that are created at the request of the customer by the supplier will be charged separately.
7.1. The invoice for the software will be issued on receipt of the order. The service will be invoiced after implementation.
7.2. Invoices are to be paid within 14 calendar days of the invoice date.
7.3. If the customer is in arrears, the supplier is entitled to charge interest at the rate charged by commercial banks for overdraft, but at least 5% above the Bundesbank discount rate plus VAT.
7.4. In the event that the customer shall cancel his order or refuse acceptance of the delivered object for reasons for which he shall be responsible, then the supplier, insofar as he shall not insist on performance, shall be entitled to cancellation costs of 25 % of the order value to compensate for costs already incurred and lost revenue.
7.5 The customer is entitled to legal compensation only if the counterclaims are undisputed and legally binding.
8.1. The supplier strives to meet the deadlines specified.The supplier shall not be responsible for any delays due to third parties.
8.2. In case the supplier culpably does not meet a binding delivery deadline which was agreed upon in writing, the customer, after a period of 6 weeks, may claim an interest on arrears of 0.5% of the value of the services or products to be supplied per month for all proven delay damages. This compensation will be granted no longer than 5 months after the expiry of the extension.
8.3. Compensation claims other than those described in paragraph 8.2 shall be excluded in all cases of delayed delivery. This does not apply in cases of intent and gross negligence as ruled by law.
9.1. The supplier grants the customer the use of the non-exclusive and non-transferable licence, the software, modules and programme components.
9.2. The customer will use the software and licenses only in conjunction with the hardware and software products approved by the supplier. He will deal with software and documentation confidentially and take appropriate security measures to protect against unauthorized use. The customer is not permitted to copy or hande over to third parties software or documentation without the written consent of the supplier.
9.3. Without prejudice to the supplier's other rights, the supplier reserves the right to claim a penalty of 10.000, - € for any contravention excluding the continuation of the offense.
9.4. The customer is entitled to adapt and to supplement the software and documentation to his specific purposes at his own costs and risk with the written consent of the supplier. The supplier will lend his support against a separate charge. The amended parts of the software and the documentation will still be subject to the provisions of the contract.
9.5. All present and future copyrights or intellectual property rights of the software provided to the customer remain with the supplier. The customer will recompense the supplier for all damages arising from the violation of the protection agreement or protective legislation. Furthermore, the customer is obliged to cede any considerations received in violation of this provision to the supplier.
10 Warranty and Liability
10.1. The customer is aware that it is not possible to develop computer programs which functions free of error in all application conditions and that errors in programs and documentation cannot be ruled out.
10.2. The licensee acknowledges that no method exists to prove the correctness of a computer program. A guarantee for the correctness of the programs or the documentation is therefore expressly excluded.
10.3. The supplier gives a 12-month guarantee from the date of handover that the software version, modules or program components are compatible and operable on the basis of the overall configuration of hardware / software at the time of handover. The supplier also guarantees that the programs, program components and modules have been properly recorded on an examined data carrier. The supplier rejects any further warranty, specifically as to customer satisfaction.
10.4. The warranty extends at the supplier's choice to
c) amendment of the contract
10.5. The supplier must be allowed a reasonable period for repair or replacement of material errors (such as: the software cannot be installed or will not operate). Where repair cannot be effected within this period, the customer has the right to reduction or amendment.
10.6. The supplier shall be notified of defects in writing immediately, including the necessary documents and other information. If defects are not reported according to 10.5, warranty claims will be excluded for this defect.
10.7. Damages for impossibility, for non-fulfillment of positive violation of a contractual duty, negligence in contract and tort are excluded against the supplier, his assistants or subcontractors, unless the damage was caused intentionally or through gross negligence.
11 Delivery of Machinery and Equipment
11.1. This includes all products delivered by the supplier, but not developed and produced by him.
11.2. For products obtained by the supplier from third parties and forwarded to the customer, the supplier accepts the same warranty towards the customer as is accorded by the third party to him.
11.3. Deliveries shall be invoiced at the list prices valid at the time of conclusion of the contract.
11.4. In all other respects, the following shall apply: Delivery is to the place of the customer unless otherwise agreed. The costs, including those for further transport, will be at the expense of the customer.
12 Retention of Title
All goods delivered by the supplier remain the supplier's property until all existing and future claims under the business relationship with the customer have been settled. In the event of the customer's breach of contract, in particular default of payment, the supplier has the right to take back the goods delivered after having sent a written reminder. The customer is obliged to surrender the products.
13 Return Policy
The buyer can withdraw from the purchase of the software.The deadline is 30 days after installation. Services rendered and the Hotline and Update Service contract are excluded from the right of return until the date of return.
14 Office Hours
The business hours are Monday to Friday 9:00 to 12:00 and 2:00 p.m. to 17:00 except on public and religious holidays in Rheinland-Pfalz and on Dec 24 and 31. After business hours, the supplier can be reached under the service number provided by subscribers to the Hotline and Update Service contract,.
15 Place of Fulfillment and Jurisdiction, Miscellaneous
15.1. Place of fulfillment is Speyer. If the purchaser is a sole trader, corporate entity or special public body, the place of jurisdiction shall be Speyer.
15.2. Should one or more provisions in these General Terms and Conditions of trade be invalid or should this be the case in the future, this has no effect on the validity of the remaining provisions. An invalid provision will, in the form of a supplementary interpretation of the contract, be replaced with a provision which comes as close as possible to fulfilling the commercial purpose which was intended with the invalid provisions.