Terms and Conditions
General Terms and Conditions of CIM GmbH (01.06.2006)
§ 1 Applicability
(1) These terms and conditions apply exclusively to enterprises and legal persons under public law according to §310 of 1 BGB. The General Terms and Conditions shall apply exclusively. Conflicting conditions of the customer or conditions differing from those indicated in our General Terms and Conditions cannot be accepted, unless approved of in writing in individual cases.
(2) The Terms and conditions apply for future similar business with the customer.
§ 2 Offer and formation of a contract
A purchase order is assumed as an offer to purchase according to § 145 BGB and will be recognised as such within two weeks.
§ 3 Entrusted documentation
All documentation handed over to the customer, such as calculations, diagrams etc., is property and copyright of CIM GmbH and may not be made available to third parties, unless approved of in writing in individual cases. If the offer to purchase is not accepted as stipulated in §2, all documents are to be returned immediately.
§ 4 Software licence, created or customised software
(1) The customer is granted a non exclusive and non transferable right for the internal use of the product and customisations and the included documentation for which the software is provided. All rights for the product and customisations including documentation and copies remain with CIM GmbH. The customer ensures not to make the software, customisations and documentation available to third parties.
(2) Copies may only be made for archiving or for error diagnostics. The source code will only be made available to the customer under certain circumstances and must be approved in written form. In certain maintenance cases it is necessary to transfer the source code to the customers system. In this case the customer is liable for the source code. Copyright endorsements on the original must be transferred to copies.
(3) Should a sales contract or a purchase order be discontinued for any reason, the agreed service fees and charges will be forfeited to CIM GmbH.
(4) Software specifications are always contained in the Contract. Since software specifications include future expenses, CIM GmbH is entitled to bill the expenses of software specification if the specification process is discontinued.
§ 5 Consulting, Implementation
(1) Consulting is executed according to generally recognised principles for management consultancy. Consulting is an in house activity on the premises of the contractor as well as controlling and reporting on CIM GmbH own premises. The contractor will provide adequate work space and seating if necessary and grant the use of a telephone and facsimile.
(2) The customer will supply all necessary documentation and information for the execution of the assignment. This includes documentation, information, procedures and circumstances occurring during contractual activities.
(3) The customer knows the installation procedures and suggestions made by CIM GmbH and acknowledges the conditions thereof.
§ 6 Prices and payment
(1) Unless otherwise agreed upon in writing, payment is due upon delivery plus VAT (value added tax).
(2) All prices are calculated upon the effective daily prices of suppliers, exchange rates and customs and import regulations as well as import rates and discounts which are shown separately in the offer. If certain positions do not appear in investment summaries, these may not be discounted.
(3) Payment will commence onto the account on the overleaf. Deduction of discounts cannot be accepted, unless approved of in writing in individual cases.
(4) Unless otherwise agreed in writing, payment will commence within 10 days after delivery. Interest for delay of 8% over base interest rate p.a. the will be charged.
(5) Unless fixed prices are agreed, price changes following changes in labour expenses, material expenses and delivery expenses that occur 3 months after contractual agreement may be billed.
§ 7 Offset and retention
The purchaser is only entitled to retention if the counter claim is indisputable or ascertained by a court of law. Retention may only be exercised for similar contractual relations.
§ 8 Delivery period
(1) The delivery period set by CIM GmbH requires the timely fulfilment of the customers obligations. CIM GmbH reserves the right of exception.
(2) If the customer defaults acceptance of otherwise neglects his duties or obligations, CIM GmbH is authorised to bill damages resulting from the delay. Further claims are reserved. Degradation or deterioration of the purchase product during the delay is the onus of the purchaser.
(3) In the event of delivery delay, CIM GmbH reserves the right to offer the purchaser either belated delivery or withdrawal from the contract.
(4) Further legal claims and rights of the customer because of a delay in delivery remain untouched.
§ 9 Shipping and passing of risks
The risk of destruction or deterioration of the contract product passes to the customer, as soon as the contract product leaves CIM GmbH for the purpose of shipment. This applies for shipping from the place of fulfilment and is independent of who carries the shipping costs.
§ 10 Ownership, retention of title
(1) CIM GmbH retains ownership of the contract product until all outstanding current claims pertaining to the contract product have been settled. This also applies to future deliveries. CIM GmbH is entitled to recall the contract product if the customer acts contrary to the contract.
(2) Until ownership of the contract product passes to the customer, the contract product is to be handled with care. The customer is obliged to insure the contract product against fire, theft and damages at own expense. The customer is obliged to ensure maintenance or servicing of contract product at own expense if this is required. In the event of seizure by court order or in the event of interferences by third parties, the customer shall notify CIM GmbH immediately in writing. The customer is liable for failure of settlement by third parties as well as legal costs or settlements out of court, if the third party does not cover the claims in accordance to § 771 ZPO.
(3) The customer is not authorized to transfer ownership of the contract product as security for debts and pawning. This also applies for receivables on current accounts if the customer has agreed on such terms with own contracting parties. Upon request the customer is obliged to disclose debtors in this regard. CIM GmbH is entitled to assign a claim against these debtors at any time.
(4) Processing or reorganisation of the contract product by the customer always takes place in the name of and by order of CIM GmbH. In this case the expectant right of the customer for the processed or reorganised contract product is recognised. For changes or alterations made to the contract product using objects not belonging to CIM GmbH, CIM automatically acquires the co-ownership of the alteration proportionally to the value of the novelty at the time of processing. If the contract product is merged or altered to the extent that the resulting product can be regarded as the main product, the customer assigns co-ownership of the product to CIM pro rata and the arising sole ownership or co-ownership remains with the customer for safekeeping. To ensure accounts receivables, the customer surrenders assigned merchandise and property which are reserved as assurance for account receivables to third parties to CIM GmbH; CIM GmbH immediately accepts this assignment.
(5) CIM GmbH is obliged to release assigned securities upon request of the customer as far as their value exceeds the value of the secured receivables by more than 20%.
§ 11 Warranty, notification of defects, regress
(1) The customer warranty rights apply on the condition, that the customer has properly inspected and notified CIM of defects as per § 377 HGB.
(2) Deficiency claims lapse within 12 months after delivery. Preceding regulations are invalid unless longer periods are stipulated by law. The contract product may only be returned prior to the consent of CIM GmbH.
(3) If the contract product shows latent defects despite necessary care during transport, CIM GmbH is entitled to eliminate defects on the contract product either by repair or replacement on the condition of timeous notification. CIM is to be given adequate opportunity and time to replace or repair defects to the contract product. Regress claims remain untouched by this regulation.
(4) CIM GmbH may execute improvements or repairs of the contract product on site or on any location of choice.
(5) Warranty repairs or improvements will only be executed during business hours. If the customer requests warranty repairs or improvements outside usual business hours, these will be billed to the customer. 3
(6) If warranty repairs or improvement fails twice, the customer may choose to claim a reduction of the remuneration (reduction) or resign from the contract.
(7) Deficiencies can not be claimed for insignificant deviations from the agreed properties of the contract product resulting from natural waerout or deterioration caused by careless handling, excessive strain, unsuitable equipment or incorrect installation and assembly or usage not corresponding to the contractual requirements stipulated by CIM.
Inappropriate maintenance or alterations by third parties and resulting consequences are exempted from deficiency claims.
(8) Claims made by the customer for the delivery of the contract product to an alternative or different location are excluded. Charges for transport, material costs, labour and expenses will be billed separately unless the relocation of the contract product corresponds to the designated function.
(9) Regress claims against CIM GmbH by third parties only exist if the purchaser has met no further agreements with his customer, other than legally mandatory agreements. Regress claims in accordance with the above paragraph 8 apply.
(10) CIM GmbH liability is restricted to the value defined by the value insured by the third party insurance for IT service providers. The insurance value amounts to € 2,000,000 for damages. Data loss is treated as property damage. CIM GmbH is not liable for resultant damages.
§ 12 Acceptance of created or customised software
(1) The finalised software is demonstrated to the customer using his test data. If no defects or program errors are ascertained during the trial run, the acceptance procedure is regarded as concluded. Only differences of the specification or the software description are regarded as a defect. CIM GmbH will deliver documentation in electronic form with the final product. (Help documentation).
(2) The customer is obliged to begin with the trial run immediately after delivery and to accept the final product. Should the acceptance be delayed because of circumstances beyond the control of CIM GmbH, the software is regarded as accepted within two weeks after delivery.
§ 13 Export regulations
As far as the delivered products are of U.S. origin, these may be utilised in the Federal Republic of Germany and re-exported to any country except barred countries. A special U.S. export permit is required for export into barred countries.
§ 14 Miscellaneous
(1) The parties agree to the application of the law of the Federal Republic of Germany – excluding UN purchase law (CISG)–, as regards all legal relations arising from this contract.
(2) Place of performance for any claims arising from the contract or in connection with the concluded contract will be our location provided that no other agreements are met in the order confirmation.
(3) Changes and amendments to this contract are required in writing. This also applies to modifications to this document. Verbal supplementary agreements are not made.
(4) If certain single regulations of this contract become ineffective or are incomplete, all further regulations remain untouched.