General terms and conditions
General Terms and Conditions of Business, Delivery and Payment of exapture GmbH
1. general terms and conditions
These General Terms and Conditions apply to all contracts concluded between exapture GmbH and the contractual partner and form the basis of all other agreements and arrangements made within the scope of the business relationship. The general terms and conditions of business of the contractual partner shall expressly not become part of the contract, even if such terms and conditions have not been expressly objected to by exapture GmbH. In the event that the contractual partner does not wish to accept the general terms and conditions of exapture GmbH, he must notify exapture GmbH of this in writing in advance.
2. offers and contract documents
2.1 The offers of exapture GmbH are always subject to change and revocable at any time as long as they have not yet been accepted in a legally binding manner. 2.2 Details of delivery and performance - such as, for example, description of services, rights of use and deadlines - shall be regulated in the contract and the order documentation. Any further conditions resulting therefrom shall be provided as an attachment to the order document. 2.3 exapture GmbH clarifies that statements and descriptions of both hardware and software contained in the manual and/or the price list do not represent any assurance of specific properties. Only the underlying contract remains authoritative. The delivery of a manual in English is permissible if the subject matter of the contract has not yet been completely localized for the respective market; the same applies if the subject matter of the contract is generally only available in English. 2.4 The property rights and copyrights to delivered goods and software as well as the copyrights to cost estimates, drawings and other offer documents shall remain with exapture GmbH unless otherwise expressly agreed.
3. terms of payment and prices
3.1 The prices stated in the contract and in the order confirmation shall apply; in the absence of such a statement, the price list valid at the time of receipt of an order shall apply. Unless otherwise agreed, the prices of exapture GmbH are ex company headquarters. Value added tax at the respective statutory rate shall be added to the prices. Costs of packaging and shipping shall be borne by the customer. Additional deliveries and services will be charged separately. 3.2 All invoices of exapture GmbH are payable within 7 days from the invoice date or receipt of the invoice by the customer. Even without a reminder, the customer is in default of payment 30 days after the invoice date. The statutory consequences of default shall apply. In case of default, exapture GmbH is entitled to withhold further deliveries and services also from other contracts. 3.3 Offsets with counterclaims are excluded unless the counterclaim is recognized by exapture GmbH, legally established or ready for decision. 3.4 If a deterioration of the customer's financial situation occurs which impairs the creditworthiness or if exapture GmbH becomes aware of such circumstances, exapture GmbH may immediately call due all claims against the customer, insofar as they are not subject to a defense. exapture GmbH may assert a right of retention against all claims of the customer, also insofar as they are based on other contracts, or demand concurrent performance or the provision of collateral.
4. delivery and shipping
4.1 The place of performance and fulfillment for the contractual obligations of exapture GmbH is its place of business. 4.2 The delivery dates stated by exapture GmbH are indicative dates. Delivery periods begin with the date of the order confirmation. Partial deliveries are permissible insofar as they are reasonable and their separate invoicing is permitted. 4.3 If circumstances arise after the order has been placed, in particular due to changes and additions to the order, which make it impossible for exapture GmbH to meet the delivery date, the delivery date shall be postponed by a reasonable period of time. 4.4 If exapture GmbH is prevented from timely fulfillment of the contract, e.g. due to procurement, manufacturing or delivery disruptions at exapture GmbH or at its suppliers, the general principles of law shall apply with the proviso that the contractual partner may set a grace period of 6 weeks after expiration of one month in order to then withdraw from the contract. 4.5 If it becomes impossible for exapture GmbH to fulfill the contract in whole or in part due to circumstances for which it is not responsible, exapture GmbH shall be released from its obligation to deliver and perform. 4.6 exapture GmbH shall only be in default of performance if the customer has requested it to perform within a reasonable period after the due date of the services with a written reminder. 4.7 The choice of the shipping route and the shipping method is at the discretion of exapture GmbH, unless otherwise agreed. The customer is obligated to inspect the goods immediately upon arrival and to report any visible transport damage as well as any damage to the packaging immediately in writing to exapture GmbH. The same applies to hidden damage as soon as it is discovered. If the violation of this obligation leads to a loss of claims by exapture GmbH against insurance companies or suppliers and subcontractors, the customer is liable for all consequences resulting from this violation of obligations. 4.8 The risk is transferred to the customer as soon as the goods leave the factory or the warehouse of exapture GmbH.
5. retention of title
5.1 exapture GmbH retains title to all goods delivered by it until payment has been made. The customer is obliged to treat the goods belonging to exapture GmbH with care. 5.2 The customer is obligated to properly insure the items subject to retention of title by exapture GmbH and to provide exapture GmbH with evidence of such insurance upon request. In the event of damage, the customer's insurance claim is deemed assigned to exapture GmbH. The customer is not authorized to dispose of the items subject to retention of title. The customer has to inform exapture GmbH immediately in writing about seizures or confiscations and has to inform third parties about the reservation of title. 5.3 The customer may sell the goods subject to retention of title owned by exapture GmbH only in the regular course of business, insofar as this is permissible. Other dispositions, in particular pledges, transfers by way of security of the goods subject to retention of title are not permitted.
6. limitation of liability
6.1 exapture GmbH shall be liable for intent and gross negligence in accordance with the statutory provisions. In the case of slight negligence, exapture GmbH is only liable if an obligation is violated, the fulfillment of which makes the proper execution of the contract possible in the first place and the violation of which endangers the achievement of the purpose of the contract. In the event of liability arising from slight negligence, such liability shall be limited to such damages as are foreseeable or typical. Liability for the absence of guaranteed characteristics due to fraudulent personal injury, remedies under the Product Liability Act and the Federal Data Protection Act shall remain unaffected. 6.2 In the event of a claim against exapture GmbH under warranty or liability, contributory negligence on the part of the customer shall be appropriately taken into account, in particular in the event of insufficient error messages or insufficient data backup. Inadequate data backup shall be deemed to exist in particular if the customer has failed to take precautions against external influences, in particular against computer viruses and other phenomena that may endanger individual data or an entire data stock, by taking appropriate state-of-the-art security measures.
7. notice of defects, warranty, liability, limitation period
Minor changes or customary deviations of the services that do not impair the intended use are permissible insofar as they are reasonable for the customer taking into account the interests of exapture GmbH. 7.1 The customer must carefully inspect the delivery and performance of exapture GmbH on the basis of purchase for defects, notification of defects, etc. and report such in detail in writing, at the latest within one week after handover or execution. If a defect already present at the time of handover only becomes apparent later, this must also be reported in writing immediately after discovery, at the latest within two weeks. The same shall apply in the event of delivery of an item other than the item owed. 7.2 If exapture GmbH is obligated to provide a warranty, exapture GmbH shall, at its option, either remedy the defect or provide a replacement delivery. If the rectification of defects and the replacement delivery fail after two attempts, the customer may, at his option, demand a reduction of the purchase price or rescission of the contract. 7.3 In the event of a justified notice of defect, a right of retention on the part of the customer is only permissible in the appropriate and reasonable ratio between the defect and the contract price. If exapture GmbH has delivered a replacement or rectified a defect, it shall be liable for this as for the originally delivered item in accordance with these General Terms and Conditions. 7.5 All claims due to or in connection with defects shall become statute-barred uniformly in 12 months from delivery or acceptance of the goods or services. Claims based on tort or fraudulent intent on the part of exapture GmbH remain unaffected. The warranty does not include the elimination of defects caused by normal wear and tear, external influences or operating errors. The warranty expires insofar as the customer modifies devices, elements or additional equipment himself or has them modified by third parties without the consent of exapture GmbH. The proof that the defects still in question have not been caused either in whole or in part by such modifications remains unaffected. 7.6 Withdrawal due to an insignificant defect is excluded. 7.7 If the customer has made a claim against exapture GmbH for warranty and it turns out that either there is no defect or the claimed defect does not oblige exapture GmbH to provide warranty, the customer shall, if he is responsible for the claim against exapture GmbH due to gross negligence or intent, compensate exapture GmbH for any expenses incurred. 7.8 Unless explicitly agreed otherwise in writing, the hardware and software shall be delivered in the standard license and documentation configuration specified by the manufacturer. The delivery of manuals, documentation beyond the written material delivered with the software, program descriptions and the user guidance and/or online help limited in the software, or instruction shall only be owed if this has been expressly agreed between the contracting parties. In the event of such an express agreement, requirements regarding the content, language and scope of a manual or documentation to be expressly supplied shall not be made. And the delivery of a short manual is sufficient, unless otherwise agreed.
8. compensation and liability
Unless otherwise stipulated in these GTCs, other claims for damages, in particular from tort, are excluded, unless the damage was caused by intentional or grossly negligent actions of exapture GmbH, its legal representatives or vicarious agents. This also applies to claims against legal representatives or vicarious agents of exapture GmbH personally.
9. confidentiality
exapture GmbH and the customer mutually undertake to keep all business and trade secrets of the other party confidential for an unlimited period of time and not to pass them on to third parties or to exploit them in any way. The documents, drawings or other information that the other contractual partner receives on the basis of the business relationship may only be used by the latter within the scope of the respective purpose of the contract.
10. evidence clause
Data stored in electronic registers or in any other electronic form at exapture GmbH shall be considered admissible evidence for the proof of data transmission, contracts and executed payments between the parties.
11. property rights
Without express permission, the customer is not permitted to export the goods purchased from exapture GmbH to countries outside the EC. In addition, the customer must observe all relevant export regulations, in particular those according to the Foreign Trade and Payments Ordinance and, if applicable, rules according to US law.
12. other provisions
Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provision shall be replaced by the provision that comes closest to the intended purpose. Subsidiary agreements have not been made. Amendments or modifications to the contract must be made in writing and shall only be valid if confirmed in writing. This also applies to the cancellation of this clause. The customer may assign his rights arising from a business relationship with exapture only with the written consent of exapture. The customer is only entitled to set-off against the purchase price claim with counterclaims that have been acknowledged or have become res judicata. The place of jurisdiction is, as far as legally permissible, the registered office of exapture (head office) in the Federal Republic of Germany. German law shall apply exclusively. exapture GmbH - Kleinmachnow, 01.09.2023