These terms and conditions regulate the conduct of the company NegoS (hereinafter referred to as Contractor), unless different terms are agreed in writing. Differing job conditions or general business conditions of the customer shall not apply.
Scope and validity
1.1. The following terms and conditions apply to all deliveries, services and offers of the company NegoS as the contractor. Confirmations of the client are recalling their own business or purchase conditions herewith. Deviations from these conditions are only effective if they are confirmed by the contractor in writing.
Quotation and conclusion
2.1. The offers are subject to confirmation by the contractor in terms of prices, quantities and delivery times, delivery options and fringe benefits. Technical changes reserved. The scope of services to be provided by the Contractor shall be determined solely by the order confirmation of the contractor.
2.2. Orders and agreements are only binding if they were confirmed by the contractorâ€™s Managing Director or authorized employees. Offers are subject to change at any rate. 2.3. Verbal agreements by employees or independent agents of the Contractor shall only become binding if confirmed in writing by the contractor.
3.1. Performance for delivery and payment is the registered office of the contractor.
3.2. The delivery is always at the expense and risk of the buyer.
3.3. Partial deliveries are permitted at any time.
3.4. Transport damage, the customer must immediately complain when receiving the goods damaged during transport at the contractor in writing by registered letter.
Delivery and transfer of risk
4.1. The Contractor shall endeavor to meet the agreed delivery dates as accurately as possible.
4.2. If the planned delivery date is exceeded by more than 60 days, the customer is entitled to withdraw by registered letter, granting a further minimum 60-day grace period.
4.3. The Contractor may terminate the contract if the delivery due to force majeure, labor disputes or other unavoidable events for the contractor (e.g., cessation of production at the suppliers, etc.) is impossible.
4.4. In case of withdrawal from the contract, the contractor is only obliged to refund received interest-free payments. Furthermore, the customer shall not be entitled to damage, or other claims.
4.5. Compliance periods, and grace have been met if the contractor has delivered on the last day of the period the essential parts of the program modules to the client. Delivered is when the transmission is supplied by the contractor. For the implementation of the agreed installation work is the contractor a reasonable period then available. A cancellation of the contract can not be based on non-compliance of the installation work. After the expiry of the grace period for the implementation of the installation can only be invoked for a price reduction. The Customer shall at his own cost to ensure that the installation site no later than the agreed settlement date put all electrical connections and other requirements for the proper performance of the contract are met by the contractor.
4.6. Claims of the customer due to delayed delivery or impossibility are excluded, unless intent or gross negligence. The burden of proof lies with the buyer.
4.7. Delay in delivery by suppliers, the delivery period of the Contractor shall be extended accordingly. For delivery impossibility of suppliers, the contractor is entitled to rescind the contract. Hence the customer can derive any damage claims.
4.8. The transport insurance is left to the client. The warranty begins with the distribution.
4.9. Regarding the transfer of risk, Â§ Â§ 476 and 447 of the Civil Code apply.
Acceptance and Performance
5.1. The client is obliged to test delivered programs or program components, hardware or other goods immediately upon receipt for errors. The acceptance is assumed if the client has not complained in writing within 8 days after installation or delivery of programs or parts.
5.2. The client is obligated during installation work, troubleshooting and error diagnosis for greatest and fastest possible involvement.
5.3. The Contractor is not required to verify the functionality of the software supplied by the client program on the hardware used and the fact the operating system, the network, or network operating systems. The proof of the function of the software products is achieved when the contractor can prove this on its own hardware.
5.4. For the functionality of the hardware used by the customer, operating systems, networks, and network operating systems, the contractor is not responsible.
5.5. The training and orientation of the principal or his forces of operation in the delivered software and / or hardware is not part of the capacity and is charged separately.
5.6. The principal is responsible for the proper installation of delivered software itself.
5.7. The Contractor shall be entitled to instruct the services to be provided to third parties and these can be carried out by third parties.
5.8. The contractor is entitled to make partial deliveries and partial services.
Right of withdrawal
6.1. Deteriorates substantially in the financial circumstances of the customer, which cast doubt on his ability to pay, the contractor is entitled to retain his services and delivery and the customer to set a reasonable deadline for advance payments or collateral security.
6.2. If buyer is in default of acceptance of ordered goods, the contractor is entitled to a grace period of 14 days to appeal for acceptance, rescind the contract or claim damages for non-performance. Requires the contractor damages, these are at least 20% (twenty per cent) of the contract value. In an action for loss by the customer all costs incurred for prosecution are borne by said customer.
Financing rates – usage fees
7.1. Is the customer not meeting its obligation to pay the principal of 2 installments; the Contractor shall be entitled to suspend funding. The customer is then obligated to pay all outstanding rates immediately.
7.2. Is the customer not meeting its obligation to pay the principal the amount of 2 installments for use of a license agreement, the client is obliged to pay all amounts of the usage fee until the end of the next possible termination date immediately.
8.1. All prices are non-binding until they have been confirmed by the contractor in a written confirmation of order; the current VAT is added to the price.
8.2. All fees named by the contractor are net fees, calculated from office of the contractor. Transportation and installation costs are not included. Taxes, fees and charges shall be invoiced separately. All costs incurred by the fulfillment of the concluded contract costs (e.g travel expenses, accommodation expenses, meal expenses, telephone charges, etc.) are not included and will be billed separately by the contractor.
8.3. Prices shown are the prices valid at the time the contract is signed. The Contractor shall be entitled to invoice the list price on the day of delivery. If the invoice price has increased since the time the contract was signed by more than 10 percent, the principal has the right to withdraw from the contract. When the contract is canceled, the client receives back its interest-free payments previously paid. The principal shall have no further claims (especially compensation claims).
9.1. The invoices issued by the Contractor must be paid inclusive of sales tax and at the latest within eight days from receipt of invoice without any deductions and pay charges. This also applies for partial invoices.
9.2. For contracts that contain divisible services, the contractor is entitled to invoice after each delivery of a separable bill.
Â 9.3. In case the payment is in arrears, interest is invoiced at the rate of 7 percentage points above the base rate of the European Central Bank, but at least 1% (one out of a hundred) per month plus VAT.
9.4. If payment is delayed, the customer is obliged to pay the costs of collection agencies and lawyers‘ activities in full. Payments received will be credited first against such charges and interest. Late payment occurs within the applicable time limits in Germany without express declaration.
9.5. The client is not entitled to payment because of incomplete delivery, alleged guarantee or warranty claims or otherwise to withhold any compensation and with such claims against the claims of the contractor shall be excluded. Offsetting with alleged or existing requirements of the client is excluded. The withholding of payments by the purchaser for counterclaims from other contracts is excluded in any case.
9.6. In addition to measures with interest the contractor is entitled to seek any further compensation or other expenses incurred by damage by the customer.
9.7. With sustainable payment, bill or check protests and payments of the principal, as well as the opening of insolvency proceedings with regard to its assets or setting of such proceedings for lack of assets, the contractor may demand immediate payment of all outstanding claims.
9.8. The statutory provisions on the payment shall remain unaffected.
Retention of title
10.1. The machines, equipment, accessories, software and other products and supplied property, rights or assets remain until full payment (including interest and other charges) the absolute property of the contractor. The client is obligated until the final transfer of ownership to care for the proper maintenance of the above products which he must provide at his own expense and has to refrain from any legal transaction available (mortgage, sale, etc.).
10.2. Are contract items still subject to retention of title, the client is obligated to notify the Contractor when insolvency, compensation or litigation have been opened immediately. If not, he has to pay for all the costs of pursuing the rights of the contractor.
11.1. The contractor provides for the period of six months after the settlement date guarantee that its deliveries and / or services in accordance with the contract concluded with the customer are free from known defects.
11.2. Any complaints relating to material, manufacturing or other defects must be sent within three working days following the discovery of potential and with an exact description of the same in writing to the Contractor.
11.3. Under warranty, the contractor is only for repair, to repair or replace defective parts with new parts required. This decision rests solely with the contractor. Further claims of the customer are excluded.
11.4. The corrective action takes place at the offices of the contractor. The round-trip transportation is carried out at the expense and risk of the buyer. If the customer requires a corrective action in place, he has to pay for the additional costs. The additional cost will be charged at the normal hourly rate of the contractor, plus travel costs and expenses.
11.5. Every demand to corrective action is void if repairs or alterations have been made to the guarantee property of persons not belonging to the technical support of the contractor or authorized by contractor of performing such work or change of ownership of the guarantee object.
11.6. Claim of any warranty, is subject to the client having so far fulfilled all of its contractual obligations fully, including all incidental charges.
11.7. The Contractor assumes no liability whatsoever and/or compensation for losses against the customer he has incurred by defects of his products or services (e.g, capital and interest losses, labor, delivery time is exceeded, etc.). Liability for consequential damages and in particular data loss or loss of profits is expressly excluded.
11.8. The Contractor shall in the case of performing warranty work have no liability for the stored data, so that the client has to make their assurance against loss or alteration.
11.9. The client is responsible for securing his data. A liability for the loss or alteration of data is impossible. Any claims for damages are limited to the amount of the basic order value.
12.1. All present and future copyright and / or intellectual property rights to the contractor for the use of the licensed programs and all derived programs, program components or documents created in this context, cost estimates, drawings and other offer documents remain with the contractor.
12.2. The principal is liable to the Contractor for all damages resulting from the infringement of the aforementioned obligations. In each case of infringement, the Contractor may – without prejudice to further claims for damages – make a penalty in the amount of ten times the purchase price of the corresponding complete program submitted without that an incurred loss must be shown by the contractor in detail.
12.3. Asserts the contractor in addition to the penalty damages, so the contractual penalty shall be deducted from the compensation claim.
12.4. All programs produced by the contractor, software and manuals are copyrighted. The granting of any right to use requires a special permit from the contractor.
12.5. The creation and distribution of more extensive documentation on the basis of the products of the contractor subject to the written approval of the contractor.
13.1. All agreements for software services (organization, programming, system software, etc.) are subject to additional conditions for the software performance of the contractor and form in every case their own transactions, separate from the contract on hardware.
Assignment of claims / Privacy
14.1. The client is not entitled to assign its rights under the contract.
14.2. The client authorizes the contractor and agrees to the process in connection with the business relationship data obtained on the authority within the meaning of the Federal Data Protection Act (BDSG Â§ 223), to store and analyze.
15.1. The transfer of rights and claims arising from the contract with the contractor to third parties without the prior consent of the contractor.
15.2. The contractor is entitled to make use of third parties in the contract.
15.3. The client agrees to the contractor’s employees who have come in contact with him not to poach on their own or third parties or their services to take out the contract between the client and the contractor in the contract claim. In case of infringement, the Contractor’s request for each case entitled to the client a non-judicial right of the underlying penalty of 10% of the total contractual fee.
15.4. If any provision of these terms and conditions are not legally effective or should be legally invalid, the remaining provisions shall continue to apply and the invalid provision shall be replaced by the sense of these terms applicable current regulations.
15.5. Modifications to these terms and variations of these must be in writing. This also applies to a departure from the chosen form requirement.
15.6. All disputes arising from the contract concluded exclusively the jurisdiction of the place of business of the contractor provided factually court agreed.
15.7. Only the law of the Federal Republic of Germany applies.
Updated February 2014