§ 1 General
- The following terms and conditions are applicable to all current and future deliveries and other services provided by intranda GmbH.
- Any terms and conditions of the customer that are contrary to those of intranda GmbH shall not form part of the agreement even where delivery has been made. In addition, we hereby expressly reject any formulaic reference to a customer’s own terms and conditions.
- In the event that a customer makes reference to the use of its own terms and conditions, the individual terms used by both parties shall only be applicable to the extent that they match. Any terms that do not match shall not form part of the agreement and their place shall be taken by the appropriate legal provisions. The terms and conditions of the other contractual party may not exclude the general terms and conditions of intranda GmbH.
- Any departures from and/or additions to these terms and conditions and any changes or additions to existing agreements or to the terms and conditions applying to such agreements must be made in writing.
- intranda GmbH is entitled to amend these general terms and conditions. Should it do so, it will provide customers with detailed written notice of the amendment. Any amendments will take effect one month after providing such notice. In the event that the amendments are disadvantageous to the customer, the latter may cancel the agreement within one month of receipt of notice of the amendment. If the customer does not cancel the agreement, the amendment shall take effect on expiry of the one month period of notice.
§ 2 Offers and conclusion of agreement
- All offers made by intranda GmbH are non-binding, especially with regard to prices, quantities, delivery periods, delivery options and additional services. An agreement is only established through the written confirmation of an order or the completion of an order by intranda GmbH and relates solely to the contents of the order.
- The scope of the services to be provided by intranda GmbH is determined solely by the written agreements. In particular, any assurances with respect to specific properties are subject to written confirmation by intranda GmbH. Any information given is also subject to written confirmation.
- intranda GmbH reserves the right to depart from the details given in the offer documentation or the order confirmation where necessary in order to comply with mandatory legal or technical standards.
§ 3 Scope of contractual service
- The customer is itself responsible for the proper installation of all software supplied. The scope of the contractual service does not include installation by intranda GmbH or training and familiarisation of the customer or its operating staff in the use of the software supplied. Any installation, training and consulting services are subject to a corresponding agreement and will be invoiced separately.
- In the event that intranda GmbH provides training, consulting or installation services, the customer must ensure that for its part it meets any requirements, especially in terms of the availability of premises, infrastructure, documentation and personnel. Should the customer fail to comply in the proper manner with this duty of collaboration, the contractually agreed deadline for completion by intranda GmbH shall be extended accordingly. intranda GmbH is entitled to charge the customer for any additional costs incurred as a result of the delay, in particular for the extended deployment of its own staff or resources.
- If the customer is not a consumer as defined by Section 13 or the German Civil Code (BGB), it shall assume the costs and risks of all deliveries of goods.
- intranda GmbH is entitled to obtain help from third parties in the fulfilment of its contractual obligations.
- intranda GmbH is entitled to fulfil its contractual obligations by means of partial deliveries and partial services to the extent that this is reasonably acceptable to the customer.
§ 4 Delivery periods
- The delivery times quoted by intranda GmbH are not binding unless they have been expressly agreed in writing as fixed deadlines. In the event that the goods have not been supplied four weeks after the anticipated delivery date, the customer is entitled to set intranda GmbH a reasonable deadline for delivery.
- The customer may only cancel the agreement citing non-compliance with an agreed or confirmed delivery date if it has already set an extended deadline for delivery / rectification in writing or in electronic form.
- Unless otherwise agreed, any stipulated deadlines or delivery periods shall no longer apply if changes are made to the order.
- Deadlines for the provision of goods or services shall be extended by a reasonable period in case of force majeure or any other obstacles outside the control of intranda GmbH that have a significant impact on the delivery of goods or the provision of services. In such cases the customer may only cancel the agreement after a period of six weeks.
§ 5 Prices
- The prices quoted include all taxes and other pricing components. Shipping costs will be invoiced in addition to the quoted price.
- Unless otherwise agreed, products delivered outside Germany are duty unpaid and untaxed.
- All other deliveries and services, including training and installation, for which a price was not agreed when the order was placed, are charged at the list prices in force on the date on which they are provided.
- intranda GmbH shall not be bound by the prices quoted in cases where the agreed delivery date is more than four months after written confirmation of the order. In such cases, the customer will be charged the prices in force at the time of delivery.
§ 6 Payment
- All payments must be made in advance or immediately on receipt of the goods or services. Payment should be made in cash or by bank transfer to the account of intranda GmbH. All other methods of payment are subject to a separate agreement.
- In the event that the client fails to meet its payment obligations or circumstances become known that place doubt on its creditworthiness, all amounts owed to intranda GmbH shall fall due immediately and intranda GmbH may, without penalty, cancel any orders that have not yet reached completion.
- The customer may not withhold payment for a delivery citing claims in relation to an order or formal complaints. The customer may not offset its own counterclaims against intranda GmbH unless they are undisputed or have been upheld by a court of law.
- Where payment by the customer is overdue, it shall be liable to pay interest of 8 percentage points above the base rate.
- If the customer owes intranda GmbH a number of payments at the same time, any amounts received shall, unless the customer has reached a specific repayment agreement with intranda GmbH, count first against the due payment or, where several payments are overdue, against the oldest of these sums.
§ 7 Delay in acceptance of goods by customer
If the customer delays acceptance of the goods it has ordered, intranda GmbH is entitled to set a reasonable deadline for acceptance of no more than 14 days and thereafter to withdraw from the agreement and demand compensation. Any such compensation shall be equivalent to 30% of the order value unless the customer can provide evidence of lower damages or intranda GmbH of higher damages.
§ 8 Program Installation
Products installed by intranda GmbH in accordance with an order should be tested promptly by the customer. If the products basically function as per the agreement, the customer shall declare its formal acceptance thereof without delay. If the customer refuses to do so, it must submit a full report to intranda GmbH within ten working days of installation with a precise description of specific errors. If intranda GmbH does not receive a declaration of formal acceptance or a fault report within the stated period, the work performed shall be regarded as formally accepted. The customer may not refuse its formal acceptance on the basis of immaterial defects.
§ 9 Defect Warranty
- intranda GmbH guarantees that the software it supplies is free from material defects. The customer hereby acknowledges that it is not possible given the current state of the technology to completely exclude software errors under all the circumstances in which the software may be used.
- In the case of standard software, intranda GmbH does not guarantee that the software will meet the specific requirements of the customer or be compatible with the customer’s other programs or hardware. It shall not be liable for specific properties of the software, unless those properties have been specifically agreed in writing.
- In the case of material defects, liability claims must be submitted within one year if the customer is an ‘entrepreneur’ as defined by section 14 of the German Civil Code (BGB) and within two years in all other cases. This deadline for the expiry of claims is not extended by the subsequent delivery of a replacement product.
- The customer must promptly examine the products and services provided by intranda GmbH for possible defects and submit any complaint without delay (within two weeks) in writing or in electronic form. If the customer is a merchant, the warranty provided by intranda GmbH shall expire after this period. In its written notice of complaint, the customer must give a precise description of the defect and the form it takes in such a way that intranda GmbH can check the defect (e.g. on the basis of the corresponding error messages) and exclude the possibility of an operating error (e.g. quoting the different stages followed in processing).
- Initially the warranty covering material defects is limited to subsequent performance (rectification or replacement). After two unsuccessful attempts at rectification by intranda GmbH, the customer may choose between a reduction in price and cancellation of the agreement.
- Claims for material defects cannot be considered in the following circumstances: normal wear and tear; incorrect storage or handling; failure to observe operating or servicing instructions and the user guide; modifications by the customer or third parties; influence of external factors, especially software and hardware that were not in place or installed at the time the product or service was provided.
- In the event that a customer asserts a warranty claim against intranda GmbH and it is subsequently found that either there is no defect or that the defect for which a claim was presented is based on circumstances for which intranda GmbH cannot be held liable, the customer shall compensate intranda GmbH for all the costs incurred by the latter in this regard, provided it can be shown that the liability claim was a result of gross negligence or wilful intent.
§ 10 Reservation of Ownership
- intranda GmbH reserves its ownership of the program carriers it supplies as well as the rights of use to the software contained thereon until such time as the full purchase price has been settled by the customer.
- If the customer is a merchant, this reservation of ownership shall apply until such time as full payment has been received of all past and present amounts due under the business relationship. This is also the case where individual amounts or all the amounts receivable by intranda GmbH have been included in a current account and the balance has been established and acknowledged. Once the customer has acquired full ownership of the program carriers, it shall also acquire the rights of use specified in the product licence.
- The customer is required to exercise due caution with respect to the reserved ownership goods and hold them in safe keeping on behalf of intranda GmbH. It shall at its own expense ensure that they are adequately insured against fire, water, theft and other risks of damage. In signing this agreement, the customer assigns its entitlements under the corresponding insurance policies to intranda GmbH. intranda GmbH hereby accepts the assignment.
- The customer hereby assigns to intranda GmbH any claims to payment it may have as a result of the onward disposal of the goods or onward licensing of the software. intranda GmbH hereby authorises the customer to collect such payments on its behalf. This authorisation may be revoked. Details of all such claims assigned in this way and of the corresponding debtors must be disclosed on request by intranda GmbH. intranda GmbH is entitled to notify the customer’s debtors of this assignment.
- In the event of a breach of contract by the customer, in particular where the customer defaults on payment, or if it appears likely that the customer will cease payment, intranda GmbH is entitled to take back the reserved ownership goods at the customer’s expense or to demand that the customer assigns to it any rights to the return by third parties of the goods in question. These rights shall remain in place even where the secured claims have expired. Where appropriate, intranda GmbH is entitled to liquidate the reserved ownership goods and settle all or part of its outstanding claims against the customer using the proceeds of this disposal.
- Where intranda GmbH has the right to take back goods in accordance with the preceding paragraph, it is entitled to collect reserved ownership goods still in the possession of the customer at the latter’s expense. The customer is obliged, during office hours and without prior notice, to grant access to its business premises to those employees of intranda GmbH authorised to collect the reserved ownership goods.
- Any exercise of the above reserved ownership rights or demand for the return of goods shall not constitute a withdrawal from the agreement.
§ 11 Liability
- intranda GmbH can only be held liable if it has breached a major contractual obligation, if it is in default or where it is not able to fulfil its contractual obligations. It cannot be held liable for the loss or corruption of data or for any direct or indirect damage that is either not typical or not foreseeable given the nature of the underlying transaction.
- The above disclaimer does not apply in cases of breach of contract arising from wilful intent or gross negligence.
- The above disclaimer does not affect the liability of intranda GmbH in connection with the absence of specifically assured properties, fraudulent intent, damage to persons, legal deficiencies, the German Product Liability Act and the German Data Protection Act.
- In the event that a claim is asserted against intranda GmbH, due consideration shall be given to any joint liability of the customer, especially in cases where the reporting of defects and backing up of data has been inadequate. Data back-up may particularly be regarded as inadequate where the customer has failed to take appropriate safety measures in line with current technology to protect against damage that may be caused by external agents, in particular computer viruses and other phenomena that could place individual data or an entire body of data at risk. In the absence of other evidence, any further claims asserted by the customer on whatever legal grounds are hereby excluded.
- The liability period for non-material breaches of contract is limited to two years.
§ 12 Assignment of rights
The customer is not entitled to assign its rights under agreements concluded with intranda GmbH to third parties whether wholly or partially, either in their entirety or parts thereof, without obtaining the consent of intranda GmbH.
§ 13 Data protection
Where required and to the extent permitted by the German Federal Data Protection Act, the customer’s data will be stored in an electronic data processing system for subsequent processing and analysis. In signing this agreement, the customer declares its consent thereto.
§ 14 Applicable law and place of jurisdiction
This agreement is subject to the laws of the Federal Republic of Germany. The UN Convention on the International Sale of Goods shall not be applicable. In cases where the customer is a merchant, a legal entity under public law or a federal special fund under public law, the place of jurisdiction shall be Göttingen.
§ 15 Partial invalidity
Should any individual provisions of the agreement with the customer, including these general terms and conditions, be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. The contractual parties hereby undertake to replace any such partially or wholly invalid provision by another provision, the economic purpose of which best matches that intended by the invalid provision.
Last updated: Göttingen, 7 March 2010
- § 1 General
- § 2 Offers and conclusion of agreement
- § 3 Scope of contractual service
- § 4 Delivery periods
- § 5 Prices
- § 6 Payment
- § 7 Delay in acceptance of goods by customer
- § 8 Program Installation
- § 9 Defect Warranty
- § 10 Reservation of Ownership
- § 11 Liability
- § 12 Assignment of rights
- § 13 Data protection
- § 14 Applicable law and place of jurisdiction
- § 15 Partial invalidity
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