General Terms and Conditions
Any and all deliveries and services provided by Optimum datamangement solutions GmbH (hereinafter referred to as “Optimum”) are subject exclusively to the present general terms and conditions. Deviating or additional agreements – especially those contradicting these terms and conditions – require confirmation in writing on the part of Optimum. The same shall apply to any other assurances made.
§ 1 CONTRACTING
(1) The client shall contract work to Optimum in writing. Any such communication is to outline the nature and quantity of the products to be delivered, the price applicable, the desired delivery date, the place of delivery, and the billing address.
(2) A contract is not entered into until written confirmation that the order has been received by Optimum.
§ 2 DATES AND DEADLINES
(1) Unless agreed upon otherwise, delivery times of six months after contract conclusion shall be arranged.
(2) Any and all dates and deadlines for deliveries and services on the part of Optimum shall only be binding if and when this has been communicated in writing both on the part of the client and on the part of Optimum. Optimum cannot be held liable for delays in or impossibility of delivery as a result of force majeure or any other circumstances beyond Optimum's control.
(3) Any and all liability claims made by the client due to delayed delivery or delayed provision of services shall be limited for the duration of the week completed at the time of the delay occurring. This shall be limited to 0.5% with a maximum of 5% of the order value in question. For the rest, clause 10 shall apply (liability).
(4) In the event that delivery or implementation of services is delayed due to circumstances that fall under the control of the client, Optimum shall have the right to charge for additional costs resulting from any such situation. Charges made shall be in accordance with the price lists applicable for the case in question.
§ 3 DELIVERY AND PASSING OF RISK
(1) Delivery shall be effected from Optimum's warehouse. Optimum is to take care of transport and delivery. The client shall be charged for any and all transport costs incurred.
(2) Optimum shall have the right to effect and charge for delivery in partial deliveries. Any and all payment dates that may have been agreed in such a situation shall apply.
(3) Should the client be a merchant then he or she shall be obligated to inspect the goods by the set payment deadline. The client shall also be obligated to give notice of any defects. Should notice of defects be given after this date, the defects shall be deemed accepted by the client.
(4) At the time of goods being passed on to the carrier, risk of damage and accidental destruction shall pass on to the client.
§ 4 ORDER CANCELLATIONS
(1) Should the client cancel an order with consent on the part of Optimum, Optimum may, without further proof, charge 15% of the order value to the client for compensation.
(2) This regulation shall not affect any other entitlement to compensation resulting from the damage done due to said cancellation.
§ 5 PRICES, PAYMENTS
(1) The prices outlined in the individual offer or the applicable price list are to be understood as valid within the Federal Republic of Germany. Said prices are plus the rate of value-added tax as valid at the time of invoicing. In addition, packaging and transport as well as expenses and travel costs, where applicable, shall be charged.
(2) Payment shall be due within 14 days of the billing date without deductions. (3) In the event that a payment is not received by said due date, Optimum shall be entitled to interest on arrears without this requiring any further correspondence. The right of claiming for costs resulting from said delay in payment shall remain unaffected. (4) Payment received, that is not explicitly intended as a payment for a certain amount due, shall be used to pay off the interest charged as a result of the delay first, the reminding fees second, and the oldest payment due last.
§ 6 RETENTION OF TITLE
(1) Products delivered for the purpose of testing or demonstrating shall remain the property of Optimum. Any such products may only be used by the client to the extent agreed upon with Optimum.
(2) Optimum shall retain the title of any and all products delivered until Optimum is in receipt of full payment.
(3) Any and all further processing of any and all products delivered by Optimum shall be effected by Optimum. Should the client install Optimum products in other products, Optimum shall become, in proportion to the value of the product, the partial owner of said newly created product.
(4) The products thereby created shall be deemed reserved goods on the part of Optimum. The client shall, should he or she not have paid the amount due for the goods in question, only be entitled to sell the product(s) delivered or produced under retention of title. Pledges or security transfers shall not be admissible.
(5) The claims with ancillary rights resulting from the reselling / subleasing of goods subject to retention of title and amounting to the value of the product(s) delivered shall, as a precaution, be transferred by the client to Optimum. Optimum shall give revocable authorisation to the client to recover claims in his or her own name at Optimum's expense.
(6) Optimum shall be authorised to reclaim goods subject to retention of title in the event of breach of contract on the part of the client. This shall apply to, in particular but not limited to, cases of delayed payment. Reclaiming goods shall not be deemed equal to withdrawal from the contract.
(7) Should a third party access the goods subject to retention of title, the client shall point out to said third party that these are the property of Optimum. Optimum is to be informed of any such situation immediately.
(8) Should the client fail to properly meet his or her payment obligation, Optimum shall be authorised to inform the client's clients of this situation. Optimum shall further be authorised to take back the goods subject to retention at any time. This shall not constitute a withdrawal from the contract.
(9) Optimum shall authorise securities at the client's request where the value of the claims to be secured does not exceed 20%.
§ 7 COOPERATION OF THE CLIENT
(1) The client shall grant Optimum a minimum of access required to designated systems as well as full access to the programmes required for diagnosis, application, documentation etc. for the service agreed upon on the installation date agreed.
(2) Optimum may, if needed and if deemed necessary, install a software on the systems delivered which allows for remote access over the internet (e.g. Team Viewer). The client shall create the technical and organisational conditions required for running the remote access software within the business. These conditions shall be kept the same for the duration of any and all set-up, diagnosis, or maintenance periods.
§ 8 SOFTWARE LICENCES
(1) Software licences pertaining to the provided software are limited to the hardware delivered or the hardware provided by the client. Said software licences are neither exclusive nor transferable.
(2) No changes are to be made to the provided software.
(3) Copying the provided software shall only be admissible within the frame work of backups.
(4) Optimum shall be authorised to equip software delivered with copy protection.
(5) The client shall have no right to demand provision of the source code.
§ 9 WARRANTY
(1) Optimum guarantees that the contractual products shall not be affected by defects. This extends to the absence of any and all promised properties. Necessary care is taken in the production of contractual products. This is in accordance with state-of-the-art technology.
(2) Optimum guarantees that the contractual products described in the product information have in principle been described correctly and are ready for use. Any and all technical data and specifications in the product description alone shall not constitute an assurance of certain properties. An assurance of any such properties in the spirit of the law shall only apply when and if said properties have been confirmed to be present. Any such confirmation on the part of Optimum must be in writing.
(3) Optimum shall not guarantee that the products meet the client's requirements.
(4) In regard to any and all defects occurring or being discovered during the warranty period and communicated to Optimum in writing, Optimum shall, at their own discretion by way of remote access or locally, provide these services free of charge as per the warranty regulations.
(5) Optimum shall be obligated to remove defects as well as improve or replace defective products.
(6) The client shall, at his or her reasonable discretion, give Optimum sufficient time and opportunity to address any such defects. For the duration of defects being addressed on the part of Optimum, the obligation of cooperation on the part of the client as per clause 7 shall apply. Should the client refuse to cooperate, Optimum shall be released of their duty of warranty.
(7) Any and all warranty claims shall become null and void in the event that a defect of which Optimum has been informed is due to the client or a third party having modified the products or having used them improperly. The same shall apply for instances in which the products have not been installed, used, or updated in accordance with the guidelines. In any such event, Optimum shall have the right to charge for any costs incurred as a result of the client informing Optimum of an issue.
(8) The warranty period shall be one year for business clients and two years for private individuals. This period shall commence on the day of delivery.
§ 10 COMMERCIAL PROPERTY RIGHTS OF THIRD PARTIES
(1) Optimum shall defend the client against claims made or resulting from alleged violation of the commercial property rights of third parties such as patents, registered trademarks, and registered designs. This shall apply within the Federal Republic of Germany and for the products delivered as per this contract.
(2) Optimum shall reimburse the client, up to the liable share capital, for any and all legally imposed cost and liability claims. This shall only apply in cases in which the client immediately informs Optimum of such claims in writing. In such an event, Optimum must be provided with any and all information and support necessary for the defence against such claims. It shall be at the discretion of Optimum alone to decide whether or not the claim(s) in question shall be defended or settled.
(3) Should there be a valid court ruling prohibiting the client from using the product, Optimum may decide to either replace said product or modify it in such a way that said product no longer breaches the commercial property rights of a third party. Alternatively, Optimum may choose to grant the client the right to use the product.
(4) If none of the alternatives outlined above can reasonably be implemented, Optimum shall take the product(s) and the client shall be reimbursed for the purchase price. An appropriate usage fee shall be deducted from the amount of the initial purchase price.
(5) Optimum shall not be held liable if any and all violations of the property rights of a third party were to result from using the product with another product not provided or delivered by Optimum, if the product has been modified, if the product has been used in a way that presents a violation of property rights, or if said violation is the result of the client's continued use of a software version other than the most up-to-date version available.
(6) Should the product(s) delivered have been made according to the designs and instructions of the client, the client shall have to release Optimum from any and all third party claims that may be made on the basis of a violation of commercial property rights or copyright. Any and all costs for legal proceedings must be paid in advance.
(7) This clause, clause 10, determines the rights of the client in the event that the product(s) delivered should infringe property rights. This shall exclude any other claims the client may choose to make.
§ 11 LIABILITY
(1) Optimum shall, no matter what legal grounds, including delay and impossibility of implementation, only be liable for paying for resulting damage if this is the result of gross negligence or intent on the part of Optimum or if a feature that had been assured is lacking.
(2) No liability claims may be made
a) for indirect damages, damages resulting from a defect, or loss of income,
b) for loss of data unless the client backs said data up every day in machine-readable form and if it is thereby guaranteed that said data can be retrieved with reasonable effort.
(3) Liability for any such damage shall be limited to cases in which Optimum could reasonably have foreseen said damages, bearing in mind Optimum’s knowledge of the circumstances at the time. Optimum's liability shall be limited to the amount paid by the client to Optimum for delivery and services. The maximum shall be the amount of share capital.
(4) Any and all liability claims shall become null and void in the event of a defect due to the client or a third party having modified the products or having used them improperly. The same shall apply for instances in which the products have not been installed, used, or updated in accordance with the guidelines.
(5) Claims made against employees or contractors of Optimum who functioned as vicarious agents shall be excluded.
(6) Liability claims may lapse as outlined in the relevant regulations. Any such claims shall however lapse six months after the defective delivery or performance of said service.
§ 12 DAMAGES IN THE EVENT OF BREACH OF CONTRACT
(1) Optimum hereby makes the client aware that any and all costs resulting from a violation of these general terms and conditions shall be borne by the client.
§ 13 EXPORT REGULATIONS
(1) Products delivered and the technical expertise of Optimum are intended for use in the country of delivery agreed upon with the client. Any such products shall remain in said country. Re-export of contractual products, be it individual or system-integrated in nature, shall be subject to a requested permission on the part of the client. Any such actions shall in principle be subject to the foreign trade regulations of the Federal Republic of Germany and of the country of delivery agreed upon with the client.
(2) Any and all further delivery of contractual products on the part of the customer to a third party, with or without Optimum's knowledge, shall equally require transfer of said export licence conditions. It shall be the client's responsibility to ensure that any such conditions are met accordingly vis-à-vis Optimum.
§ 14 EC IMPORT SALES TAX
(1) Should the client be based outside the Federal Republic of Germany, he or she shall be obligated to adhere to any and all regulations in regard to import sales tax of the European Community. In particular, this shall extend to communicating the client’s VAT identification number to Optimum.
(2) The client shall be obligated, if requested, to provide any and all information necessary regarding his or her capacity as an entrepreneur. This shall be in regard to the use and transport of products as well as the obligation to report statistics to Optimum.
(3) The client shall compensate Optimum for any and all additional expenses having to be made on the part of Optimum as a result of insufficient and incorrect information having been provided by the client.
(4) Optimum shall not be held liable for the consequences of details provided by the client in regard to import sales tax or the relevant data pertaining to this. This shall apply unless Optimum has acted with intent or in the event of gross negligence.
§ 15 DATA PROTECTION
(1) By placing an order, the client agrees to Optimum collecting and utilising any and all details entered by the client. However, no such data shall be made accessible to a third party.
§ 16 TRADEMARK RIGHTS
(1) Any and all product names used and any and all registered trademarks shall be deemed as their owner’s property by the client. It shall make no difference whether or not said products and registered trademarks have been labelled as such.
§ 17 CESSION / WAIVER
(1) Optimum may choose to have contractors provide services to the client. This does not however release Optimum from their obligations.
(2) The client shall not be authorised to transfer this contract or any rights resulting from it to a third party in any way, shape, or form without prior approval in writing.
§ 18 PLACE OF JURISDICTON
(1) Contracts between Optimum and the client shall be subject to the legislation of the Federal Republic of Germany.
(2) Implementation of the United Nations Convention on International Sales of Goods (CISG) shall be excluded.
(3) Optimum's place of business shall be the only place of jurisdiction. Optimum may file lawsuits also at the client’s place of jurisdiction.
§ 19 OTHER
(1) Any and all notifications in relation to this contract, when necessary between the client and Optimum, must be in writing. The contract of sales or licence must hereby be quoted.
(2) Any and all such notifications shall be deemed made as per this agreement if and when said notifications have been sent to the latest address communicated of the party in question.
(3) In case of discrepancy between the german and the english version of this agreement, the german version shall prevail.
§ 20 SEVERABILITY CLAUSE
(1) Should one or more individual clauses of this agreement become null and void, this shall in no way, shape, or form affect the validity of the remaining clauses.
(2) The invalid clause(s) shall be replaced with the valid clause(s) that is/are closest to the intent of the author of the invalid clause.
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As of: May 03., 2016