Terms & Conditions
GMG GmbH & Co. KG
Moempelgarder Weg 10
§ 1 Scope
(1) Our General Terms and Conditions shall govern all our present and future contractual relationships, legal transactions, and legal acts (contract).
(2) These General Terms and Conditions are exclusive. We shall not recognize any conditions by the Contractual Partner that are opposed to or differ from these General Terms and Conditions unless we have expressly and individually agreed to them in writing.
(3) Subsequent conditions brought forward by the Contractual Partner shall have no influence on the contract.
(4) Upon the Contractual Partner's request, we will explain the contract and our General Terms and Conditions in detail.
§ 2 Form
(1) There shall be no supplementary verbal agreements.
(2) Amendments to and the cancellation of the contract and of this form clause must be made in writing, subject to mandatory statutory provisions.
(3) The Contractual Partner may not refer to any statement made to us as a text transmitted in electronic form or via telecommunication, unless he confirms it in writing without undue delay.
§ 3 Conclusion of Contract
(1) Our offers are not binding and are subject to change. We are free either to accept, by sending a confirmation of order or by providing the Supplies ordered, or to decline any offers submitted to us within a period of 30 days.
(2) A contract, including our General Terms and Conditions as integral part, shall only be concluded between the Contractual Partner and us when an offer is accepted by us. The acceptance shall only be effective if made in writing or if we have provided a major Supply due under the contract.
§ 4 Scope of the Contract
(1) We reserve the right to effect technical and structural changes and modifications of the form with regard to the Supplies provided under the contract, insofar as these do not unreasonably impact the Contractual Partner and insofar as they do not unreasonably impair Supplies under the contract
(2) The Contractual Partner may only claim rights arising from a violation of the contract if we have been informed of the relevant circumstances of such a violation in writing prior to the conclusion of the contract. It is not sufficient to argue that the circumstances are recognizable.
(3) Non-mandatory rights of the Contractual Partner to terminate the contract shall be excluded. Notice must be given in writing to our legal representatives. There shall be no other persons authorized by us to receive the notice of termination, even if these other persons are in charge of the contract.
(4) We shall be entitled to rescind the contract if the Contractual Partner proves not to be creditworthy and if this could put our claims towards this Contractual Partner at risk.
§ 5 Obligations of the Contractual Partner
(1) In the event that our expenses exceed our internal calculations by more than 20%, we shall be entitled to refuse performance in conformance with Section 275 para. 2 of the German Civil Code (BGB [ Burgerliches Gesetzbuch ]).
(2) The Contractual Partner shall inform us of:
a) any individual rights, objects and interests of legal protection affected by the contract.
b) any circumstances known to him or recognisable by him that could sustain any rights against us as a consequence of the contract.
c) a position claimed by him as a consumer. Should the Contractual Partner intend to deliver the Supplies purchased from us to a consumer or to an entrepreneur who himself provides such supplies to consumers, the Contractual Partner shall inform us of this before the conclusion of the contract.
d) other subjective or objective attributes in his domain that lead to special legal protection for him or third parties.
e) any statements, including advertising statements, made by us or third parties upon which he relies.
f) any intended use that affects the limitation period of rights in case of defects.
g) any legal relationship between the Contractual Partner and third parties-in particular consumers-that could substantiate rights of recourse action or other rights against us.
h) his intended procedure for fulfilling the contract or subsequent performance within a term of at least 14 days to be fixed by us.
(3) The Contractual Partner shall:
a) inform us of any transport damages and apparent defects of contractual items in writing within 14 calendar days. Visible damage must be noted on the receipt document of the forwarding agent immediately after receipt.
b) pay compensation for any deterioration following the commencement of use of the contractual item, even if used according to the specifications, in the case of a reversal of the contract.
(4) The Contractual Partner shall observe our recommendations for hardware and operational systems and shall use the software only for the intended purpose. In addition, the Contractual Partner shall accept hardware and software precautions that we take for copy protection purposes and do not considerably impair the use of the software. The Contractual Partner shall safeguard his data, hardware and other software by taking adequate measures corresponding to their value and the cost of replacement, in order to exclude, to the extent possible, any possible damage or impairment that might result from the use of the purchased software.
§ 6 Supplies, Quality, Delay
(1) The place of performance and implementation shall be the registered domicile of our company. We shall be entitled to use third-party services for the performance of contractual services in whole or in part.
(2) Any drawings, figures, numbers, measurements, weights, applications and other data used to describe the Supplies under the contract and their real and legal qualities shall only be decisive for the scope and the quality of the contractual performance if expressly agreed in the contract. Specific expectations and applications must be explicitly agreed to in the contract. The qualities mentioned in our public statements, such as catalogues, brochures, mailings, advertisements, pictures, advertising and price lists shall only constitute part of the quality if explicitly mentioned as integral part of the contract. Public statements made by third parties shall only constitute part of the quality of the Supplies if they have been explicitly agreed in the contract or if we have explicitly adopted these as our own in our public statements in writing.
(3) We shall assume no guarantees, warranties and special risks unless explicitly agreed by contract in writing. The specification of times of performance shall be approximate and shall not be binding unless their binding character has explicitly been confirmed. Specifications regarding the quality of the Supplies as given in our contractual statements, in our public or non-public statements, or in public statements made by third parties shall contain no guarantee (warranty).
(4) Software covered by the contract is designed for the average requirements of the user and cannot accommodate every individual requirement. The Contractual Partner shall acknowledge that the best available technologies do not allow the development of error-free software for all conditions of use. The Contractual Partner shall therefore ensure that the software package he chooses meets his expectations. We shall only provide inspection or consulting services if this is explicitly agreed. If not otherwise agreed, we shall deliver the software in a version to be used with the operating system Microsoft Windows (Windows 7 or higher). If software is delivered, we shall be obliged to deliver the object code on a data carrier. However, the Contractual Partner shall not be entitled to the delivery or disclosure of the source code.
(5) The long-term operability of the delivered software is subject to the regular installation of updates. If the Contractual Partner does not conclude any support or update agreements with us, we shall not be obliged to enable the long-term use of the software without further updates by delivering the relevant software to the Contractual Partner or to his successor in title in case of a permissible resale.
(6) In the event that we deliver or modify any Supplies according to the specifications of the Contractual Partner, we shall not be obliged to test these specifications if this is not specifically agreed. The Contractual Partner shall not be entitled to assert any claims due to defects that result from such specifications or from the Contractual Partner's use of hardware and software or from hardware and software that has been delivered by third parties.
(7) Should we be in default, the Contractual Partner shall be entitled to withdraw from the contract after expiry of an adequate cure period; in the event that our performance is impossible, the Contractual Partner shall have this right without granting a cure period. Default shall be considered as impossibility of performance when the performance is past-due for more than two months after the agreed time of performance. Entitlement to compensation for damages (including possible consequential damages) and reimbursement of expenses shall be excluded-except for the cases specified hereafter. The limitation of liability shall not apply if a commercial transaction for delivery by a fixed date was agreed.
(8) In the event of unforeseeable events that are beyond our control and that could not be averted by us despite our reasonable diligence according to the circumstances of the relevant case, such as in the case of force majeure, delayed supply of commodities, strike and similar events, even if such events affect pre-suppliers, we shall be entitled to rescind the contract in whole or in part or to extend the time of performance for the duration of the impairment.
§ 7 Ownership and Copyrights
(1) The transfer of ownership of the items supplied is subject to the condition precedent that payment of all our claims resulting from the business relationship with the Contractual Partner are paid in full.
(2) The granting of the right of use of the computer program incorporated in the softvvare is subject to the condition precedent that payment according to paragraph 1 has been made in full and in accordance with the contract. The continuation of the right of use is subject to the condition subsequent of the validity of the contract.
(3) We shall remain the exclusive owner and copyright holder of the softvvare (computer program). Ownership and copyrights shall not be influenced, not even indirectly, by the above rules.
§ 8 Right of Use, Copies, Modifications and Decompiling
(1) The Contractual Partner shall be granted the permanent, nontransferable and non-exclusive right of use of the softvvare ( computer program) covered by the contract. The Contractual Partner shall be entitled to install, load, display, run and store the computer program.
(2) The right of use does not allow the translation, modification, leasing, or reproduction of the software or other uses or applications, in particular through new technologies or forms of distribution. The distribution or transfer of the computer program outside the area of the European Community or another state that is party to the Agreement on the European Economic Area shall not be permissible. Mandatory statutory provisions shall remain unaffected thereby.
(3) Only the right to individual use shall be granted. In case of a network license, the right of use shall cover the agreed single-user workstations for the contractually agreed local network. The Contractual Partner shall prevent any autonomous use by third parties. The Contractual Partner's affiliated companies, shareholders, or business sites that belong to the same business but are physically or organizationallyseparate are also third parties.
(4) The Beneficiary shall be allowed to create one operational copy of the computer program by installing it properly on a mass storage device from the original data carrier and the original files. This shall be done using the installation program which may have been supplied. The Beneficiary shall only be allowed to make back-up copies of the installed computer program if these are exclusively intended for archiving purposes and external access to them is not possible, in particular not from public networks. Back-up copies shall be marked with copyright notices. Making copies of the original data carrier is not permitted
(5) Before rectifying a defect independently, the Beneficiary shall inform< us of the defect in writing and shall grant us an adequate deadline for voluntary rectification of the defect without any legal duty arising for us and without affecting warranties and liabilities. Should we fail to rectify the defect in accordance with the above provision, the Beneficiary may initiate rectification of the defect at his own expense; however, this rectification must be limited to the correction of the immediate defect. Only objective defects are considered defects.
(6) Before decompiling according to the German Copyright Act, the Beneficiary shal I request the required information from us in writing, stating the purpose of application. Incidentally, decompilation shall be excluded in conformance with mandatory statutory provisions. Similar techniques shall be considered decompilation.
(7) The rights of the Beneficiary shall cease with the transfer of the software. Upon transfer of the software, the original data carriers, documentation, and copy protections shall be passed to the recipient, and the program code of the software at the site of the transferring party shall be permanently destroyed. Acknowledgement and acceptance of the software license conditions by the recipient is a precondition for the transfer of the software. This does not entitle the recipient to any claims to maintenance of the software.
(8) Existing copyright notices and registration marks, such as, in particular, registration numbers within the software may neither be deleted nor modified.
(9) In the case of a violation of the present provisions by the Contractual Partner, we shall be entitled to claim a penalty of €10,000 for each individual breach of contract and to revoke the right of use granted hereunder with immediate effect and to request restitution of all copies of the program and information on the documents containing the software, without prejudice to any other or further-reaching rights. The Contractual Partner's right to prove a lesser damage shall remain unaffected.
§ 9 Installation of the Software, Training
(1) The Contractual Partner shall be responsible for installing and updating the software. The Contractual Partner shall ensure that all of the requirements of which he has been informed with respect to the hardware and the other environment, in particular, the connection to the computer network including all wiring before the installation, have been met.
(2) We shall neither be responsible for nor shall we examine the installation of appropriate workstations, in particular with respect to the observance of the provisions under labour protection law.
(3) During the installation and test run, the Contractual Partner shall ensure the presence of competent and trained staff members and shall shut down any other operation of the computer system if necessary. The Contractual Partner shall be responsible for backing up all his data before each installation.
(4) Staff members shall, in general, be trained at our training centres or in the training facilities of our Contractual Partners; the scope of the training shall be agreed in the contract. The Contractual Partner shall ensure, through previous training programs if necessary, that staff members are confident in their use of computers, operating systems (in particular Windows), application software, and the network installed. The Contractual Partner shall provide appropriate training facilities with an installed computer workstation for demonstration purposes.
§ 10 Maintenance of the Software (Update/Support)
(1) Maintenance of the software shall only be performed for a fee and only in the event of a written software update agreement.
(2) Updates ensure that existing program versions are constantly adapted to developments in technology, in particular with regard to the operational system environment of other technical devices and applications, which is not foreseeable at the time that the program version is launched and which can therefore not be included in the basic license fee. We shall only be obliged to maintain the software at our reasonable discretion and to develop updates accordingly. In this context, our expense in relation to the remuneration for updates over a longer period of time shall be decisive.
(3) Distinction must be made between Updates and Upgrades, which is the development of a new program version and the supply of which must separately be remunerated. Depending on the relevant product and the basic license, Upgrades shall be optional or mandatory. The provisions of the individual license agreement have to be observed.
(4) Updates include:
a) the executable program code of the update, which can build on the program code of previously licensed software, modify it or replace it by a new version.
b) individual rights of use of the computer program in conformance with and within the scope of the provisions set out in § 8. This right of use shall replace the previous right of use, which shall become void
c) Updates shall not include a printed or a printable documentation.
(5) Upgrades include:
a) the integration of new features
b) the adaptation to current product requirements
c) the adaptation to the latest PC technologies and operating system requirements.
§ 11 Prices, Terms of Payment
(1) Our prices are subject to change. Prices quoted for cost estimations shall not be binding; exceeding cost estimations by up to 25% shall be deemed insignificant. Our prices shall only include the explicitly
mentioned items of performance and shall not include, in particular, any expenses, transport and packaging costs, and (sales) taxes that are to be borne by the Contractual Partner. We reserve the right to adapt our prices to cost changes that are beyond our control for any orders with an agreed delivery period of more than three months.
(2) We shall be entitled to request partial payments of up to a total of 50% of the expected overall remuneration upon conclusion of the contract, after commencing performance, and after completing part of the order.
(3) Our invoices are payable net on receipt.
(4) Default by the Contractual Partner and our rights regarding default of payment shall be governed by the statutory provisions. The Contractual Partner shall be in default two weeks after the due date, at the latest, and
a) after receipt of a request to pay, an invoice or any similar statement of performance or
b) after receipt of consideration.
(5) The Contractual Partner can only assert setoff rights if his counterclaims have become res judicata, are undisputed, or have been acknowledged by us.
§ 12 Acceptance, Transfer of Risk
(1) Shipment shall only be made upon the Contractual Partner's request. Partial performance shall be possible to the extent tolerable by the Contractual Partner. The Contractual Partner shall accept Supplies even if showing immaterial defects. The Supplies shall be deemed unconditionally accepted in accordance with the contractual provisions if the Contractual Partner does not inform us of defects in writing within 14 days after delivery.
(2) In the event that the contractual items are shipped, we shall be entitled to insure the items at the expense of the Contractual Partner.
§ 13 Damages and Reimbursement of Expenses
(1) The Contractual Partner's claims for damages or reimbursement of vain expenditure based on a breach of duty or in case we should fail to supply at all, or to supply in due form, or based on late supply or defects shall only be admitted for
1.1 damages resulting from injury to life, limb, or health provoked by at least a negligent breach of duty on our part or by the intentional or negligent breach of duty by one of our legal representatives or vicarious agents;
1.2 other damages that are due to at least a grossly negligent breach of duty on our part or to at least a grossly negligent breach of duty on the part of one of our legal representatives, executives or vicarious
agents or due to at least a negligent breach of an essential contractual obligation (cardinal obligation) on our part or at least a negligent breach of duty on the part of one of our legal representatives, executives or vicarious agents; and
1.3 damages that are covered by a warranty provided by us (guarantee, Sec. 276 para. 1 BGB) or by a guarantee of quality or durability (Sec. 443 BGB).
(2) In so far as our liability for negligence and for grossly negligent acts committed by our vicarious agents who are not our legal representatives or executives is not excluded by paragraph 1, our liability shall be limited to the damage typically foreseeable at the conclusion of the contract and to reimbursement of vain expenditures up to the benefit that the Contractual Partner would have received from the fulfilment of the contract. In the event that data is lost or damaged, our liability shall be limited to the costs of recovering the data provided that appropriate back-up copies are available.
(3) The foregoing paragraphs shall also be applicable for any claims for damages the Contractual Partner may have from legal relationships resulting from the commencement of contract negotiations, the preparation of a contract or similar business contacts. Should a contract be concluded between us and the Contractual Partner, any claims for damages the Contractual Partner may have that are not justified under the foregoing provisions shall be deemed to be waived.
(4) The foregoing provisions shall also apply for any claims the Contractual Partner may assert on the basis of subrogated rights. The Contractual Partner may only invoke foreign legislation in so far as the claim would also be justifiable under the foregoing provisions and these General Terms and Conditions.
§ 14 Warranty for Defects in Title and Quality
(1) Upon delivery, the Contractual Partner shall examine the services and products supplied by us without undue delay and shall notify us of any detected defects without undue delay, within 14 days at the latest. In default thereof, the Supplies shall be deemed to have been accepted, unless the defect could not be detected during the examination. Should such a defect be detected later, notification must be given within 14 after detection; in default thereof, Supplies shall be deemed to be accepted in consideration of the defect. Should we have intentionally misrepresented the defect by silence, this provision shall not be applicable.
(2) We shall be entitled to remedy the defect by repairing it or by supplying the item free of defects (supplementary performance), as we choose. If supplementary performance is unsuccessful, the Contractual Partner shall be entitled to reduce the purchase price or to withdraw from the contract, as he chooses. The Contractual Partner's right to compensation for damages shall not be affected.
(3) If hardware or third-party software is concerned, we shall be entitled, in derogation from paragraph 2, to transfer the relevant claims we may have against our suppliers or the manufacturer to the Contractual Partner for the purpose of repairing the defect or providing supplementary performance. Before asserting claims for supplementary performance against us, the Contractual Partner shall file a claim, and take legal action if necessary, against our suppliers or the manufacturer for reimbursement of expenses after the selfremedy of defects, for indemnification instead of performance, for cancellation of the contract, or for reduction of the purchase price, unless this cannot reasonably be expected from the Contractual Partner.
(4) In the event of supplementary performance, the Contractual Partner shall, at our request, provide us with all the details required for diagnosing and eliminating the defect and shall provide a competent and trained member of staff to collaborate in the supplementary performance if this is executed by phone or by remote data transmission. If supplementary performance is executed on site, the Contractual Partner shall permit us free access to the defective items and, if necessary, shall interrupt any other activities on the Contractual Partner's hardware or network. Should the Contractual Partner claim supplementary performance from us and this claim proves to be unjustified, for example, in the case of user errors or application errors, the Contractual Partner shall reimburse us for all costs resulting from the examination of the items and the supplementary
performance, unless the Contractual Partner is not liable for claiming the supplementary performance.
(5) In the event of a system failure due to a defect for which we are liable, we shall restore the data to the state of the last back-up carried out by the Contractual Partner before the failure. The Contractual
Partner shall make this data available in machine-readable form.
(6) In the event that the Contractual Partner intervenes in the Supplies provided by us, in particular the program code, in a way that is not explicitly permitted by the operating manual or other instructions for use, the Contractual Partner shall not be entitled to any claims based on defects, unless the Contractual Partner can prove that the defect is not a result of his interference.
(7) The statutory period of limitation shall apply for all claims based on tortious acts. All other claims the Contractual Partner may have due to defects in quality, in particular claims to supplementary performance, indemnification, reimbursement of expenses for the self-remedy of defects, cancellation, reduction, and reimbursement of vain expenditures, shall become time-barred within one year. The same applies for claims based on defects of title, with the following exception: claims due to a defect that is based on a third party's right in rem and which entitles the Contractual Partner to claim possession of Supplies shall become time-barred within five years.
§ 15 Passage of Risk
The risk of loss or accidental deterioration of the item shall pass to the Recipient at the moment the item is handed over to the shipping agent or, at the latest, when leaving our premises, regardless of the place from which the item is sent or which party bears the costs of freight.
§ 16 Returns
All items supplied by us are non-returnable unless otherwise agreed in writing. In any case, we shall only accept returns sent free domicile and shall only credit the purchase price. We are entitled to charge a returns processing fee of 10% of the purchase price. Notification of complaints must be given within 14 days. Credit vouchers for returns shall not be paid out, but shall be set off against our next delivery; the amount shall only be paid out if no new delivery is made until the end of the following year.
§ 1 7 Packaging and Dispatch
Packaging shall be in accordance with customary standards of the industry. The means and route of transport shall be determined by us, unless the Recipient chooses different options and bears the extra costs in full.
§ 18 Reservation of Title
The items supplied shall remain our property until each and every claim, even future and conditional claims, against the Recipient have been fulfilled. The Recipient may sell conditional goods in proper business transactions against payment or reservation of title; pledging or transfer by way of security, however, is not allowed. As a precaution, the Recipient shall subrogate to us in full all rights arising from the resale or other legal grounds with regard to the conditional goods, in particular claims. The Recipient, however, shall revocably be entitled to collect his receivables from his purchasers on his own behalf. Should third parties access the conditional goods, the Recipient shall point out GMG's ownership rights and inform the latter without undue delay. In the event of late payment by the Recipient, we shall be entitled to repossess the conditional goods. In this case, the Recipient shall provide us with access to the goods still available. Upon request, the Recipient shall inform us in detail of the third-party receivables from the resale of our goods without undue delay and notify the third party of the assignment of the claim without undue delay.
§ 19 Governing Law, Place of Venue, Partial Ineffectiveness
(1) The contract shall exclusively be governed by the law of the Federal Republic of Germany, even if other state laws may be contrary to or do not accept this law, to the exclusion of any provisions applicable for international sales, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The venue within the scope of legal discretionary power shall be the court having jurisdiction at our place of business. Other places of jurisdiction that are legally available to us for taking legal action against Contractual Partner shall not be excluded thereby.
(3) Should a part of the contract be or become invalid, or should there be a loophole, the validity of the remaining provisions of the contract shall not be affected thereby.
Last updated: April 2018