General Terms and Conditions of Businessof
Adatis GmbH & Co. KG
Version 1.0 of October 18th, 2011
1. Contractual bases1.1. Area of application
1.1.1. The following provisions are generally applicable to any and all contracts on services of Adatis entered into between the company Adatis GmbH & Co. KG, Forchheimer Strasse 6, 90425 Nürnberg, Germany – hereinafter “Adatis“ – and its contractual partners – hereinafter “Customer” –. The provisions are for commercial transactions between businesses partners within the meaning of §310 (1) BGB.
1.1.2. Contracts become effective exclusively on the basis of the conditions below. They are also applicable to future transactions between Customer and Adatis. Customer acknowledges such conditions at the time of awarding an order or accepting a delivery, even in case its own terms and conditions of business should contain entirely or partially contradictory clauses. Conflicting or diverging provisions of Customer are not acknowledged, provided that Adatis gives its explicit consent to the applicability of such provisions in writing. Adatis’s provisions set forth hereunder are applicable also in case that Adatis renders the service being aware of any Customer’s provisions conflicting with or deviating from Adatis’s conditions.
1.1.3. The number and the denomination of the individual supplied objects, the amount of the remuneration to be paid plus non-recurring ancillary costs, as well as any separate contractual agreements result from the relevant offer or the confirmation of order of Adatis. In case of doubt, the confirmation of order will prevail.
1.2. Formation of contract
Unless expressly agreed upon otherwise, the offers of Adatis are not binding. A contract between Adatis and Customer becomes effective on the basis of Customer’s order and Adatis’s confirmation of order, or Customer’s order and delivery of the products by Adatis.
1.3. Export regulations
Adatis’s obligation to deliver is subject to the condition that the export regulations of the Federal Republic of Germany are complied with. If delivery is requested under conditions other than said export regulations, Adatis’s obligation to deliver shall cease.
2. Contents of performance2.1. Products
2.1.1. The details of the products that represent the contents of the respective contracts result from the offer or the confirmation of order of Adatis that forms the basis for the order. In case of doubt, the confirmation of order will prevail. All descriptions of products – regardless of whether or not contained in the offer or elsewhere – have the only purpose to specify the details and are no guarantees in the meaning of Sections 444, 445 of the BGB (German Civil Code). The explicit agreement between Adatis and Customer becomes content of the contract on an exclusive basis.
2.1.2. Unless a fixed price agreement has been made, reasonable price changes due to changes in wages, materials and distribution costs for deliveries, that are effected 3 months or later after signing the contract, are reserved.
2.1.3. Adatis does not owe any further performance in addition to the delivery of the product specified in sub-clauses 2.1.1 and 2.1.2 above – especially any installation of the product and support – save as agreed upon separately.
2.2. Remuneration and payment provisions
2.2.1. The prices as applicable from time to time are exclusive of the statutory value added tax ex domicile or warehouse of Adatis, respectively. It is an obligation to be performed at the debtor’s place of business. Packing and shipping costs are invoiced separately. If Customer should require a transport insurance, Adatis will effect such an insurance at Customer’s expense. Save as agreed upon otherwise, all the amounts stated in the invoice become due on the invoice date. Any discounts or other deductions from the invoice value are not allowed. Payment prior to the due date of the invoice does not entitle to deduct any amounts either.
2.2.2. Default is subject to the legal regulations.
2.2.3. Customer can only set off against claims of Adatis in case of claims acknowledged by Adatis or recognized by declaratory judgment.
2.2.4. Customer is entitled to assert a right of retention only for counterclaims under this contractual relationship. Assertion of rights of retention by Customer resulting from previous or other transactions is excluded.
2.3. Delivery period
2.3.1. Times set for deliveries shall only be binding if all documents to be furnished by Customer, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of Customer are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if Adatis is responsible for the delay.
2.3.2. If Customer delays acceptance or culpably violates other cooperation obligations, Adatis is entitled to demand compensation for damages incurred by Adatis, including any additional expenses. Further claims are reserved. When above conditions do apply, the risk of accidental loss or accidental deterioration of the goods goes to Customer as soon as he is in default of acceptance or payment.
2.3.3. If non-observance of the times set is due to
a) force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e. g. strike or lockout),
b) virus attacks or other attacks on Adatis’s IT systems occurring despite protective measures were in place that complied with the principles of proper care,
c) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Adatis is not responsible, or
d) the fact that Adatis does not receive its own supplies in due time or in due form such times shall be extended accordingly.
3. Securing of performance3.1. Export license
Customer commits itself to obtain export licenses that may be required under the rules of the Federal Republic of Germany.
3.2. Transfer of risk
If the goods are shipped to this Customer’s request, the risk of accidental destruction or accidental deterioration of the goods goes to the buyer with the shipment to Customer at the latest when leaving the factory / warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
3.3. Reservation of title
3.3.1. Adatis reserves title to all products delivered (goods under reservation) until all payment claims of Adatis resulting from its business relation with Customer have been settled in full.
3.3.2. Customer may resell or process the goods under reservation in the ordinary course of business only. This authorization to resell and process will cease if Customer defaults in payment, suspends its payments, or if insolvency proceedings are instituted against its assets, or rejected for lack of assets.
3.3.3. Customer’s claims resulting from reselling of the goods under reservation plus all ancillary rights are assigned in their full amount to Adatis already at this stage to serve as collateral, irrespective of the goods being sold to one or several purchasers. If the goods under reservation are sold together with other products that are not owned by Adatis, Customer’s claims resulting from reselling the goods under reservation are assigned to Adatis for collateral purposes only in the amount of the invoice of Adatis. Customer is entitled to collect the claim assigned to Adatis, provided that it will not default in payment to Adatis. If Customer defaults in payment, or suspends its payments, or if insolvency proceedings are instituted against its assets, or rejected for lack of assets, then Adatis has the right to demand that Customer informs Adatis about the assigned receivables and their debtors, provides all information necessary for collection, surrenders the relevant documents and informs the third party debtors of the assignment of claims to Adatis.
3.3.4. If the realizable value of the collaterals provided to Adatis should exceed its claims not just temporarily by more than 15 % in the aggregate amount, Adatis will release collateral at its option on Customer’s written request.
3.4.1. Customer must check the delivered contractual objects for perfect quality and quantity within eight working days upon delivery.
3.4.2. Any defects found thereby or that are obvious must be notified to Adatis in writing within a further period of eight working days. The notice of defects must include a description in as much detail as possible.
3.4.3. Defects that cannot be found in properly checking as described above must be notified within eight working days of detection observing the notice requirements as set forth in sub-clause 3.4.2 above.
3.4.4. In case of breach of the obligations to check and notify, the contractual objects are deemed accepted as far as quality and/or quantity are concerned.
3.4.5. The statutory warranty period is applicable.
3.4.6. In case of defective products, Adatis is free to decide whether it will remedy the defect or supply a product free of defects. If remedy of defect fails within a reasonable period, or if it proves abortive again after a further reasonable period of grace set by Customer, or if Adatis declares in writing that it relinquishes the remedy of the defect, then Customer is entitled to the further legal warranty rights.
3.4.7. Adatis is entitled to circumvent a possible defect if the defect as such can only be removed at a disproportionally high expense, and if the use of the product in line with its purpose is not substantially impaired.
3.4.8. Adatis is no longer obligated to provide warranty if changes to the products or attempts to repair the product have been made without the express prior written approval of Adatis. Customer is entitled, however, to explain and prove that such changes and/or attempts of repair are in no connection with the occurred defect, and do not substantially complicate the analyses as well as the removal of the defect.
3.4.9. Customer will support Adatis in analyzing and removing the defect, prepare and/or print supporting information on Adatis’s request, as well as provide further information, if any, to support analysis and removal works, and grant immediate access to the documents revealing further details of the occurrence of the defect.
3.5.1. Adatis shall be liable in cases of willfulness or gross negligence on the part of Adatis or any representative or vicarious agent in accordance with the statutory provisions. In other respects, Adatis shall only be liable under the German Product Liability Act, for death or injury to body or health or for culpable infringements of major contractual duties. The claim for damages for the infringement of major contractual duties is, however, limited to typical, foreseeable loss or damage. Liability for loss or damage caused by the delivery item to Customer’s legal assets shall be completely excluded. The provisions of the two preceding sentences shall not apply, to the extent that there is deliberate intent or gross negligence or there is liability for death or injury to body or health. To the extent that Adatis is liable under this provision, liability shall be limited to EUR 50,000.00 per damaging event.
3.5.2. The provision of the preceding paragraph shall apply to damages in addition to performance and damages in lieu of performance, on whatever legal basis, in particular but not limited to defects, infringements of duties arising from the relationship under the German law of obligations or a tort. This provision shall also apply to claims to reimbursement of futile outlays.
3.5.3. Customer is solely responsible for compliance with the respective statutory safety regulations in effect concerning the handling or the operation of the devices delivered. In particular, the corresponding surge protection must be installed prior to start-up. If the corresponding regulations, provisions and guidelines are disregarded, the goods or devices delivered may not be put into operation. In these cases, liability on the part of Adatis is excluded.
3.5.4. In addition, the liability of Adatis for any data loss is limited to the typical cost for data recovery, which would have occurred when regular and risk-adjusted backup copies would have been made. Prior to connecting Adatis´ products to other devices, in particular but not limited to an IT or a telecommunications system, Customer must ensure that any failure or malfunction on the part of the Adatis´ product can not cause further damage to Customer’s equipment or data. Customer must read the Adatis product notes prior to installation.
Assignment of rights and obligation under this contract by Customer require the prior written consent of Adatis. In its turn, Adatis is entitled to assign its rights and obligations under this contract to others. In the event of assignment of its rights and obligations under this contract to third parties, Adatis assumes the liability to Customer for the proper discharge of all the contractual obligations.
4. Contract execution4.1. Scope
Commencement of the contract, delivery periods and scope of delivery result from the relevant confirmation of order.
4.2. Time limits
Delivery periods are binding only if explicitly specified as such in the relevant offer or the relevant confirmation of order.
4.3. Force majeure
Events of force majeure entitle Adatis to rescind the contract, provided that it has become impossible for Adatis to meet its obligations towards Customer due to force majeure. The foregoing is also applicable if the event of force majeure affects any of Adatis’s suppliers or sub-suppliers. Force majeure means strike, lock-out, mobilization, war, blockade, export and import bans, traffic barriers and comparable circumstances not under the control of Adatis.
5. General provisions5.1. Written form
All declarations, notifications, consents or the like intended to cause legal effect between Adatis and Customer must be made in writing or – in case of oral communication – require written confirmation. Declarations via telefax / e-mail meet the written form requirement.
If any of the provisions of these Terms and Conditions of Business should be or become ineffective or unenforceable as a whole or in part, this will not affect the effectiveness or the enforceability of the remaining Terms and Conditions.
5.3. Choice of law
The contract is exclusively governed by the law of the Federal Republic of Germany. Should the mentioned law refer to other jurisdictions, such referral is excluded. The Convention on the International Sale of Goods (CISG) is excluded.
5.4. Place of performance and venue
Place of performance for all the obligations under the contractual relationship is Nuremberg, Germany. Venue for all disputes under the contractual relationship between Adatis and Customer is Nuremberg, Germany, if Customer is a merchant, a legal entity under public law or a special fund under public law. The same is applicable if Customer has no general venue in Germany, or if its domicile or regular residence at the time of bringing an action is unknown. Adatis, however, is entitled to assert own claims at its option at the place of jurisdiction of Customer.