§ 1 Scope
(1) All deliveries, services and offers (including the delivery of goods, rights and licenses or the production of physical or non-physical works, collectively also referred to as “delivery items”) of botspot AG (hereinafter referred to as “Seller”) are made exclusively on the basis of these General Conditions of Sale. These are part of all contracts that the Seller concludes with his contractual partners (hereinafter also referred to as “principals”) about the supplies or services offered by him. They also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed with again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their application in individual cases. Even if the Seller refers to a letter that contains or refers to terms and conditions of the Customer or a third party, this does not constitute agreement with the validity of these terms and conditions.
§ 2 Offer and contract
(1) All offers made by the Seller are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders can be accepted by the Seller within fourteen days of receipt.
(2) The legal relationship between the Seller and the Customer shall solely be governed by the purchase contract concluded in writing or the acceptance of an order / order on the basis of the offer, in each case including these General Conditions of Sale (hereinafter: the “Contract”). These completely reproduce all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises of the Seller prior to conclusion of this contract are legally non-binding and oral agreements of the contracting parties are replaced by the contract concluded according to the aforementioned conditions, unless it is expressly stated in the contract that they continue to be binding.
(3) Additions and amendments to the agreements made, including these General Conditions of Sale, must be made in writing in order to be valid. With the exception of directors or authorized representatives, the employees of the Seller are not entitled to make deviating verbal agreements. To preserve the written form, the telecommunication transmission is sufficient, in particular by fax or e-mail, provided the copy of the signed declaration is transmitted.
(4) Seller’s information on the subject matter of the delivery or service (eg weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (eg drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires a match.
They are not guaranteed features, but descriptions or labels of the delivery or service. Customary deviations and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, as far as they do not affect the usability for the contractually intended purpose.
(5) Prior to ordering the delivery item, the ordering party must inform the Seller about the technical and other requirements, the appropriate premises for the installation, commissioning and operation of the delivery item (“suitable premises”). The Customer shall ensure (i) to have suitable premises at the time of delivery and (ii) to operate the delivery item exclusively in suitable rooms.
(6) The Seller reserves ownership or copyright to all offers and estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer. The Customer may not make these objects accessible to third parties without the express consent of the Seller, as such or as regards their content, notify them, disclose or reproduce them themselves or through third parties. At the Seller’s request, he must return these items in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of conventional data backup.
§ 3 Prices and payment terms
(1) Prices are valid for the scope of services and delivery stated in the contract. Extra or special services will be charged separately. The prices are in EURO ex works plus VAT, fees and other public charges.
As far as the delivery item is a scanner, half of the purchase price is due immediately after conclusion of the contract.
A further 30% of the purchase price is due upon receipt of the written notification to the Customer that the scanner has been completed.
The remaining 20% of the purchase price shall be payable after examination of the established scanner in accordance with the provisions of § 5 of these General Terms of Sale and shall be payable in EURO without deduction to the account of the Seller named in the contract.
Other invoices are payable within fourteen days without any deductions, unless otherwise agreed in writing. Decisive for the date of payment is receipt by the Seller. All payments must be made in EURO without deduction to the account of the Seller.
(3) Payment by check is excluded unless it is agreed separately in individual cases.
(4) If the Customer does not render on the due date, the outstanding amounts are from the due date with 5% interest p. a. to pay; the assertion of higher interest and further damages in case of default remains unaffected.
(5) Offsetting against counterclaims of the Customer or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or legally established.
(6) The Seller is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, he becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and through which the payment of the outstanding Claims of the Seller by the Customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) are endangered.
§ 4 Delivery and delivery time
(1) Deliveries are made ex works. At the request of the Customer, the goods will be shipped to another destination (consignment purchase). Unless otherwise agreed, the Seller is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself
(2) Deadlines for deliveries and services provided by the Seller are only approximate, unless a fixed deadline has been expressly agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of transfer to the carrier, carrier or other third party commissioned with the transport.
(3) The Seller may – without prejudice to his rights arising from default of the Customer – request from the Customer an extension of delivery and service periods or a postponement of delivery and service appointments by the period in which the Customer does not meet its contractual obligations to the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delivery delays, insofar as these are due to force majeure or other unforeseeable events at the time of the conclusion of the contract (eg breakdowns of all kinds, difficulties in material or energy procurement, delays in transport, strikes, legitimate lockouts , Lack of manpower, energy or raw materials, difficulties in obtaining necessary regulatory approvals, regulatory action or failure to deliver, incorrect or timely supply from suppliers) beyond the control of the Seller. If such events make the delivery or service considerably more difficult or impossible for the Seller and the hindrance is not only of temporary nature, the Seller is entitled to withdraw from the contract. In the case of obstacles of a temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The Seller is only entitled to partial deliveries if
• the partial delivery is usable for the Customer within the scope of the contractual purpose,
• the delivery of the remaining ordered goods is ensured and
• the Customer incurs no significant additional expenses or additional costs (unless the Seller agrees to pay for these costs).
(6) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Conditions of Sale.
§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance
(1) Place of performance for all obligations arising from the contractual relationship is at the place of business / work of the Seller, unless otherwise specified. If the Seller also owes the installation, the place of performance is the place where the installation is to be made.
(2) The shipping method and the packaging are subject to the dutiful discretion of the Seller.
(3) The risk shall pass to the Customer at the latest upon the handover of the delivery item (whereby the beginning of the loading process is decisive) to the freight forwarder, carrier or other third party designated for carrying out the shipment. This also applies if partial deliveries are made or the Seller has taken on other services (such as shipping or installation). If the shipment or transfer is delayed as a result of a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for despatch and the Seller has notified the Customer.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the case of storage by the Seller, the storage costs amount to 0.5% of the invoice amount of the delivery items to be stored per completed week. The assertion and proof of further or lower storage costs remain reserved.
(5) The consignment shall be insured by the Seller only at the express request of the Customer and at his expense against theft, breakage, transport, fire and water damage or other insurable risks.
(6) Insofar as acceptance has to take place, the delivery item shall be deemed accepted if
• the delivery of all components to be delivered by the Seller in accordance with the contract has been completed, the operational readiness of the delivery item has been established and the instructions for operating the scanner have been provided,
• the Seller has notified the Customer of this fact with reference to the acceptance order pursuant to this § 5 (6) and has asked him to accept it,
• Ten working days have elapsed since the delivery or installation, or the Customer has begun to use the delivery item (for example, has put the delivered scanner into operation), and in this case three working days have elapsed since delivery or installation, and
• the Customer has failed to accept the goods within this period for any reason other than a defect displayed to the Seller that makes the use of the goods impossible or substantially impaired.
The parties sign an acceptance protocol as part of the acceptance process.
§ 6 Warranty, material defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages of the Customer resulting from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or his vicarious agents, which in each case become time-barred according to the statutory provisions.
(2) The delivered items shall be examined carefully immediately after delivery to the Customer or to the third party appointed by him. They shall apply with regard to obvious defects or other defects that would have been apparent in an immediate, careful investigation, as approved by the Customer if the Seller does not receive a written notice of defects within five working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the Customer if the complaint is not received by the Seller within five working days after the time when the defect was revealed; If the defect was already apparent to the Customer under normal conditions of use at an earlier date, that earlier date is decisive for the commencement of the period of notice.
(3) The technical data, specifications, explanations of the functions and possible uses as well as other information in any product descriptions provided are for information purposes only as a description of the condition i.S. of § 434 para. 1 sentence 1 BGB and not as a separate guarantee, texture or durability guarantee. Statements made by the Seller or by third parties commissioned by the Seller regarding the subject matter of the scanner and / or the software are only independent guarantees of guarantee, quality or durability in the legal sense, if this is stated in writing by the management of the Seller and expressly and literally as “independent guarantee”, “Guarantee of quality” or “durability guarantee”.
(4) In the case of material defects, the Seller shall, at the request of the Customer render supplementary performance at its discretion by remedying the defect (rectification) or by delivering a defect-free item (new delivery). In the event of material defects in the sensor control software supplied, the Seller is entitled to render subsequent performance by delivering a patch, update or new program version of the Sensor Control Software. The Seller is entitled to deliver a new program version of the Sensor Control Software if it contains the same scope of functions as the contractual version of the Sensor Control Software and its acceptance is reasonable for the Customer and does not lead to significant disadvantages. Upon delivery of a new version, the Customer is obliged to return or delete the defective sensor control software (§ 439 para. 4 BGB). The Seller is entitled to show the Customer temporary workaround and to remedy the defect later by delivering the next update released by the Seller or new program version of the sensor control software, if this is reasonable for the Customer. If the Seller makes use of this right, this must be taken into account when determining the reasonableness of the period for supplementary performance.
The Customer shall observe the instructions given to him as part of the supplementary performance by the Seller by telephone, in writing or electronically. The Seller may provide the Customer with such instructions, in particular with regard to the installation of the patches, updates or new program versions of the sensor control software provided for the purpose of supplementary performance, as well as the indication of temporary error evasion possibilities
The Customer may demand, within a reasonable period of time, a type of supplementary performance other than that chosen by the Seller, if the type of subsequent performance chosen by the Seller is unacceptable to him. The rights of the Seller according to §§ 439 Abs. 3, 275 Abs. 2 and 3 BGB remain unaffected. In the case of failure, the impossibility, unreasonableness, refusal or inappropriate delay of the repair or replacement delivery, the Customert can withdraw from the contract or reduce the purchase price appropriately.
(5) After fruitless expiry of a period set for supplementary performance, the Customer must declare in writing within a reasonable period to the Seller whether he continues to demand supplementary performance or whether and which of the aforementioned further rights he asserts. If the Customer continues to demand supplementary performance and the vendor subsequently announces this immediately, he must grant the vendor a further reasonable period of time within which the Customer is not entitled to assert the aforementioned rights.
The Customer is only entitled to rescind and assert a claim for damages instead of the entire service in case of significant defects. The granting of the grace period, the declaration of the resignation as well as the assertion of the damages instead of the performance require the written form to be valid. A deadline set by the Customer is unnecessary in the cases specified by law in §§ 281 para. 2, 323 para. 2, 440 BGB.
(6) If a defect is based on the fault of the Seller, the Customer may claim damages under the conditions specified in § 8.
(7) In the case of defects of components of other manufacturers, which the Seller cannot eliminate for licensing or actual reasons, the Seller will assert his warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer . Warranty claims against the Seller exist for such defects under the other conditions and in accordance with these General Conditions of Sale only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, hopeless. During the duration of the legal dispute, the limitation period of the respective warranty claims of the Customer against the Seller is inhibited.
(8) The warranty becomes void if the Customer changes the delivery item without the consent of the Seller or has it modified by third parties and the elimination of the defect becomes impossible or unreasonably difficult. In any case, the Customer has to bear the additional costs incurred by the change to remedy the defect.
(9) If an error analysis in connection with defects reported by the Customer reveals that claims or rights of the Customer do not exist because of defects, the Seller is entitled to charge the costs incurred in the course of the investigation to the Customer in accordance with his current price list. If the Customer has recognized or negligently failed to recognize that a defect is not present, but the cause for the error complained of him originates from his own sphere of responsibility.
(10) Any delivery of used items agreed upon with the Customer in individual cases shall be subject to the exclusion of any warranty for material defects.
§ 7 Property rights, defects of title
(1) In accordance with this § 7 the Seller warrants that the delivery item or the sensor control software supplied is free from industrial property rights or copyrights of third parties. Each party to the contract will notify the other party in writing without delay if claims against the other party for breach of such rights are asserted.
(2) In the event that the delivery item or the sensor control software infringes a commercial property right or copyright of a third party, the Seller will change or replace the delivery item in such a way that no rights of third parties are violated, at his own option and expense, the delivery item or sensor control software, however, continues to fulfill the contractually agreed functions, or grant the Customer the right of use by concluding a license agreement. If the Seller fails to do so within a reasonable period of time, the Customer is entitled to withdraw from the contract or to reasonably reduce the purchase price.
However, the Customer is only entitled to rescind and assert a claim for damages instead of the entire service if there are significant defects. Any claims for damages of the Customer are subject to the restrictions of § 8 of these General Conditions of Sale.
(3) In the case of infringements by products of other manufacturers supplied by the Seller, the Seller shall, at his discretion, assert his claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Claims against the Seller in these cases in accordance with this § 7 only if the judicial enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example, due to insolvency, hopeless.
(4) In cases of infringing sensor control software, the Customer is obliged to return or delete the defective sensor control software (§ 439 Abs. 4 BGB).
§ 8 Liability for damages due to fault
(1) The liability of the Seller for damages, for whatever legal reason, in particular from impossibility, delay, inadequate or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, as far as it is in each case at fault, in accordance with this § 8 restricted.
(2) The Seller shall not be liable in case of simple negligence on the part of his organs, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations. Essential to the contract are the obligation to timely delivery and installation of the delivery item, whose freedom from defects in title and material defects that affect its functionality or serviceability more than insignificantly, as well as advice, protection and custody duties, which enable the Customer to use the contractual object or the protection of life or limb of the Customer’s personnel or the protection of their property against significant damage.
(3) Insofar as the Seller is fundamentally liable for damages in accordance with § 8 (2), this liability is limited to damages which the Seller foresaw upon conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen when applying due care. Indirect damage and consequential damage, which are the result of defects in the delivery item, are also only substitutable insofar as such damage can typically be expected in the case of the intended use of the delivery item.
(4) In the case of liability for simple negligence, the Seller’s liability for damage to property and the resulting further pecuniary loss is to the amount of EUR 7,500, or max. 5% of the agreed net price, depending on which amount is lower, limited to each case of damage, even if it is a violation of essential contractual obligations.
(5) If the Customer violates his duty to ensure proper data security, the Seller is liable within the scope of the above provisions for loss of data in terms of the amount limited to such damages that would have occurred in a regular, regular data backup by the Customer.
(6) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Seller.
(7) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
(8) The restrictions of this § 8 shall not apply to the liability of the Seller for intentional behavior, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§ 9 Retention of title
The Seller reserves the ownership of the delivery item as well as provided data carriers until full payment of the agreed remuneration.
§ 10 Granting of rights/software
(1) Insofar as the delivery of the Seller includes Sensor Control Software, unless otherwise agreed in the purchase contract, the provisions on the granting of rights listed in the following paragraphs shall apply.
“Software” means the computer programs supplied by the Seller (Sensor Control Software) including the associated documentation.
(2) The software shall be provided to the Customer together with the rights required for their contractual use.
(3) The Seller grants the Customer a simple (non-exclusive), permanent, non-transferable and non-sublicensable right to use the software for the operation of the delivery item.
(4) The Customer receives full payment of the purchase price in accordance with § 3 of these conditions of sale and the non-exclusive, permanent, non-transferable and not sub-licensable right to use the software in the scope of the respective purchase contract.
(5) The Customer may only use the software for its own purposes to operate the delivery item. Customer may not publicly reproduce, rent, lend, or otherwise make the Software available to any third party, whether wirelessly or by wire. Incidentally, the nature and extent of the contractual use are determined by the provisions of the purchase contract.
(6) Duplication of the software is only permitted for own purposes for the operation of the scanner. The Customer is not entitled to create a backup copy or duplicate the software as part of the data backup. To compensate, the Seller will provide the Customer with a copy of the software delivered to the Customer at any time upon request.
(7) The Customer is entitled to permanently pass on or sell the object of delivery together with the software to a third party if the following conditions are met cumulatively:
a. The Customer shall hand over the software including the computer on which the software is installed to the third party with complete abandonment of his own use.
b. The Customer shall immediately inform the Seller in writing of the name and address of the third party.
The sale of the delivery item or its components to third parties without simultaneous transfer or sale of the software shall remain unaffected by the aforementioned conditions under a. – c.
(8) Any use of the software beyond the contractually agreed scope is inadmissible and requires additional rights granted by the Seller.
(9) The Customer grants the Seller unrestricted access to the delivery item and the software for the purpose of any remedy of defects. The Seller can provide remedial measures at any time in the way of remote maintenance.
(10) At the request of the Seller, the Customer allows the Seller to check whether the Customer is in compliance with the provisions of the purchase contract with regard to the permitted use of the software, in particular by means of remote maintenance. The Seller may revoke the right of use of the Customer, if this does not infringe insignificantly against the permitted use. Before the revocation of the right of use, the Seller has to set a reasonable deadline for remedy. The Customer must confirm the omission of the illegal use in writing to the Seller.
(11) In addition, a calculation software is required for the use of the delivery item. The Customer can obtain these by concluding a separate leasing agreement with a third party. Scope of use, granting of rights and warranty are governed by the provisions of the separate leasing agreement for this calculation software.
§ 11 Secrecy
(1) All information, specifications, drawings and other data communicated to one party by the other in writing or orally are trade secrets which must be treated confidentially. They may not be disclosed to third parties unless they are generally known or otherwise known to the trusted party by other means. Employees of the parties may only be disclosed if and to the extent necessary to fulfill the contract.
(2) This restriction does not apply to information that was demonstrably public or known to the recipient at the time of the transfer, or made public after the transfer to the recipient, without the recipient being responsible for it.
(3) Each party guarantees that the provisions of this confidentiality clause are also observed by its employees, vicarious agents and consultants, even after termination of the contractual relationship between the party and such employees, vicarious agents or consultants.
(4)The consignee shall inform the holder without delay if he has become aware of any confidential information provided by the proprietor which the holder considers confidential or if he is required by a court, public authority or third party to provide confidential information. This confidentiality clause remains in effect even after termination of the contract, as long as the confidential treatment has a legitimate interest.
(5) In addition, the parties will comply with all requirements for the protection of intellectual property and the applicable data protection law.
§ 12 assignment and offsetting
(1) The assignment of claims arising out of or in connection with this contract is only permitted with the express written consent of the other contracting party.
(2) Offsetting is only permitted if the other party to the contract agrees or if the claim with which it is offset is undisputed or legally established.
§ 13 Final Provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Customer is at the choice of the Seller Berlin or the seat of the Customer. For complaints against the seller, however, Berlin is the exclusive place of jurisdiction in these cases. Mandatory statutory provisions on exclusive jurisdictions remain unaffected by this provision.
(2) The relations between the Seller and the Customer are exclusively subject to the law of the Federal Republic of Germany to the exclusion of the UN sales law.
(3) Insofar as the contract or these General Conditions of Sale contain loopholes, those legal provisions are deemed to have been agreed with which the contracting parties would have agreed with according to the economic objectives of the contract and the purpose of these General Conditions of Sale if they had known the omission.
(4) The Customer acknowledges that the Seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (eg insurance companies) for the fulfillment of the contract.