Enterprise Designed Systems (EDS)
§ 1 Scope, Contract
(1) These general terms and (hereinafter referred to as “Conditions” means) govern the business relationships between EDS and the customer; They apply from the August 31, 2015. EDS division (standard) software and hardware from various manufacturers (hereinafter collectively referred to as “products”) to customers. All services of the EDS directed exclusively to acting as a company merchants within the meaning of the Commercial Code, legal entity under public law or public-law special funds.
(2) The provisions of these Terms and Conditions have, even if they are not expressly agreed again for all future business relationships of this kind validity. Terms and conditions of the customer are not part of the contract.
(3) Contracts and other agreements shall become binding by the unreserved acceptance of the offer of EDS by the customer and for the rest only upon written confirmation of EDS by way of order confirmation.
(4) EDS can assume the customer deals within two weeks. Offers the EDS are non-binding. Contractual statements of both parties must be in writing. When in doubt, the offer or the order confirmation from EDS for the contract shall prevail.
§ 2 Contractual basis, Services and Changes
(1) All services of EDS be solely in accordance with the provisions of these Terms and Conditions;
- the provisions of the contract offer or determining the order confirmation from EDS; as well as
- the license terms of the manufacturer of the software, which can be mobilized on request by telephone at EDS.
In case of discrepancies between the contents of the contractual bases listed above primarily apply the contents of the license terms of the manufacturer, then the contents of the respective content of the contract offer or determining the order confirmation from EDS and eventually all provisions of these terms and conditions.
(2) It is EDS allows to transfer all or part of payments to an appropriate third party.
(3) Changes in the performance of EDS that lead to technical improvement or required as a result of unforeseen difficulties, EDS permitted the subject of the performance is not substantially changed and the changes are reasonable for the customer.
(4) Force majeure Cases of force majeure or unforeseen events (in particular operational and transport disruptions, difficulties in energy supply or in the delivery by suppliers, machine defects, accidents, strikes, lockouts, fire, seizure) that the outside of the will and / or the sphere of influence parties are, extend the time of performance in accordance with the downtime. Such events only justify premature termination of the contract if a further delay can not be expected; A further delay is a rule for more than four weeks from the onset of downtime as unreasonable. A Contracting Party shall not be liable for any resulting damages, unless it is responsible for the entry of force majeure or the unforeseen event.
§ 3 Quality and delivery of products, transfer of risk
a) The description in the product description and user documentation is decisive for the quality of products supplied. Any further quality of the products is not owed. Such an obligation can not be inferred from the customer in particular other representations of the software in public statements or in the advertising of EDS or the manufacturer of the software, unless EDS has in excess of that nature expressly confirmed in writing. Guarantees of EDS require the express and written confirmation by the management.
b) The Customer acknowledges that he has with respect to trade, to the manufacture, assembly and configuration of computer hardware, software, or related products have sufficient experience and qualifications to make an informed assessment of the quality and characteristics of the products to. In particular, the customer has informed of the essential functional characteristics of the products and is responsible for ensuring that the products conform to his ideas, desires and needs. In case of doubt the customer has to be advised prior to closing by an employee of EDS or expert third parties.
c) Notwithstanding the specified when ordering product version each for delivery latest version of the products may be delivered, provided that the scope and the promised functionality of the programs are not affected.
d) If the parties do not expressly agree otherwise in writing, the software is delivered in the form of an object code on the disk for software agreed. The customer will receive the source code of possibly individually developed software components only insofar as its release is expressly agreed in writing.
e) EDS is entitled to partial deliveries. Additional shipping costs incurred by the Customer for partial deliveries only by express agreement.
f) The installation of the software on the computer leads the customer by itself, unless an installation by EDS is expressly agreed.
a) Unless otherwise agreed, delivery ex works / warehouse (ex works) made to the shipping address provided by the customer.
b) All delivery and performance dates shall be subject to correct and timely self-delivery.
c) For the observance of delivery of time is significant, in the EDS provides the respective product to the transporter for pickup.
d) Reminders and customer deadlines need to be in writing.
(3) Transfer of risk
a) The risk is the physical delivery – even in the case of free delivery and freight costs for partial deliveries – to the customer as soon as the consignment has been handed over to the contracted delivery company or the purpose of shipment leaves the warehouse of EDS. If delivery is delayed due to circumstances that EDS is not responsible for, the risk shall pass upon notification of readiness for shipment to the customer.
b) Insurance against damage of any kind be made only at the express request and at the expense of the customer. To maintain the transport insurance coverage, the customer is obliged to examine the shipment immediately upon receipt of damage in transit. Obvious damage to the goods or the packaging must be confirmed by the carrier or its agents on the waybill. Concealed damage is the transport company and EDS to report within seven days.
c) The risk of accidental loss borne by the customer. He is obliged to treat the goods carefully and to insure them of EDS in the amount of the full purchase price and prove the conclusion of the insurance by submitting the insurance policy. This applies until the complete payment of the purchase price; must in part payment in any event insurance coverage made up to the amount of the outstanding purchase price in favor of EDS. The claims against the insurance apply until full payment of all claims of EDS as assigned.
§ 4 Software Licenses
(1) In any transfer of rights to use software (standard software, custom created or customized software, updates, upgrades, releases etc. – including associated documentation, information and materials) shall supersede the license terms of the software manufacturer.
(2) Until full payment of the due amount in each case the customer is only revocable permits the use of the software. EDS may revoke the use of such services, with their remuneration payment, the customer is in arrears, for the duration of the delay.
If a perpetual Transferring the license is required, the customer receives the perpetual and irrevocable right to use copyrighted benefits only upon full payment of the agreed remuneration.
(3) The customer shall comply with the license terms of the software vendor and make sure that the respective end user license terms also comply.
§ 5 Prices, payment, settlement date
The remuneration to be paid by the customer resulting from the applicable range of EDS or the order confirmation of EDS . The prices are ex works / warehouse. They include utilities (especially packaging, freight, postage, insurance and other transportation and shipping costs) not one, unless a different agreement is made explicitly and in writing.
The listed at Offered by EDS rates are subject to the proviso that the tender underlying contract data remain unchanged. The prices of EDS apply plus any applicable VAT.
(2) Price Adjustment
Occurs when a delivery period of more than 4 months on the part of EDS, a substantial change in the pricing factors, such. B. increase in prices of manufacturers and suppliers, in particular, increase of license fees from software manufacturers and / or personnel costs, so is EDS entitled to make a price adjustment according to these factors. In the event of a change in the agreed price of more than 5% the buyer has a right of termination.
(3) Maturity, Payment, Retention, Arrears
a) The payment must be made within the customer granted by EDS for payment. Decisive here is the receipt of the money on one of the (business) accounts of EDS. The invoice is issued on the day of performance, delivery, partial delivery or notification of readiness to deliver (obligation to collect, default of acceptance).
b) Any discount agreement does not relate to additional costs (in particular packaging, freight, postage, insurance and other transportation and shipping costs). Pays the customer due to alleged objections the bill by EDS after a discount period any agreed, so he can make a discount only if and to the extent separately him this, explicitly and in writing acknowledged by EDS.
c) EDS is subject to any written agreement to be entitled to demand reasonable interim payment for their services, as well as part of exceptional inputs (eg prepayments to third-party services).
d) EDS may further installments or full prepayments asking if the customer no business relationship exists, when delivery is to take place abroad, the customer is located abroad.
e) The customer may only offset undisputed or legally established claims or exercise a right of retention. A retention of the customer comes directly only because of claims from the individual contract respectively concerned into consideration.
f) In case of default, EDS is entitled to charge default interest at the statutory rate. EDS is entitled to make a further default damages.
g) If the fulfillment of the pecuniary claim at risk because of become known after conclusion of significant deterioration in the financial circumstances of the customer, so EDS can demand payment in advance, and restrain not yet rendered until receipt of prepayments services and stop further work. From a substantial deterioration of the financial situation is in particular also assumed if a business report or a similar institution before a business relationship with the customer and warns not a business relationship with the volume of orders or recommends only against advance payment.
h) Should the customer refuse the advance payment in accordance with the above agreements, EDS is entitled to withdraw from the contract and to demand compensation in accordance with the statutory provisions.
§ 6 Retention of title
(1) In case of sale of goods to the customer, the following applies: The sold goods remain until full payment of compensation under the contract owned by EDS.
(2) If third parties which are under retention of title the customer is obliged to point out the ownership of EDS and these must be informed immediately. Chattel, by way of security takes place transfers of rights of use and seizures are prohibited.
(3) In retention of title by EDS the customer’s right to further exploitation of the licensed stuff disappears. A possible recovery of the goods by EDS is always a precaution only. Under no circumstances is to withdraw from the contract, even if partial payments are allowed. Also EDS is then entitled to sell or auction the items freehand. Further claims for damages, especially lost profits reserved.
(4) EDS agrees to release the securities due to the extent that the value of the securities to secured claims, insofar as they have not yet been settled, by more than 20%.
§ 7 Examination and notification, warranty
In any transfer of products, the following standards:
(1) EDS ensures that the products with the applicable written product specifications that are laid down in the respective product description and user documentation correspond.
(2) Defects must be reported in writing without undue delay after discovery under description on the symptoms observed by the customer. Obvious defects must be notified two weeks after delivery to maintain the warranty rights at the latest.
(3) There is a defect, so EDS will repair or replace, at its option (“rectification”). EDS may refuse the chosen type of remedy or the whole if it is possible only with disproportionate costs. In case of replacement, EDS will bear the necessary expenses for this purpose, as far as these are not increased, the compensation for other than the contractually agreed location of the products is spent. EDS provides for the remedy a defect-free product, the customer has to grant the delivered product back.
(4) Is IT for subsequent performance is not willing or not able or if this is delayed beyond a reasonable period for reasons, which is responsible for EDS, or fails in any other way, the subsequent performance fails, the customer is entitled under the law his to exercise rights under withdrawal or reduction and damages.
(5) Further claims of the customer, especially claims for damages including lost profits or other financial losses of the customer only exist to the extent the terms of this agreement on liability. The above limitation shall not apply insofar as mandatory liability, eg. As under the Product Liability Act, in cases of willful misconduct, gross negligence, for personal injury, due to grant of a guarantee for the existence of a property or the breach of contractual obligations.
(6) The warranty period shall be at least one year from the statutory limitation period. If EDS against the manufacturer may rely on a longer warranty period, so this also applies for the benefit of customers of EDS.
(7) For the warranty period, the customer shall appoint a contact person. The customer can exchange the contact by written notice to EDS.
(8) The customer will inform ES even after the expiry of the warranty period without undue delay if a third party holds intellectual property rights violations by the software or other benefits are claimed. EDS remain in case of violation of third party rights all defensive measures including out-of-court settlements (in particular, the customer shall refer the decision of all legal defense measures and the implementation and monitoring of this legal defense measures EDS).
(9) EDS is under no obligation, if a defect is due to the behavior of the customer. These include in particular – as far as the cause – improper storage or use, maintenance, repair or unauthorized changes that are not performed by EDS, or use of software on hardware for which the software is not suitable in accordance with the product description and user documentation.
(10) The customer must ensure that (a) form- WARRANTIES AND be timely submitted; (b) products which are returned to EDS, no viruses or similar defects included; (c) all (warning) will be information labels and instructions that apply to the products, modified or removed; can take and (d) are all product serial numbers recorded and stored thereon in case of damage and EDS access.
§ 8 Liability
For the liability of EDS as well as for their own liability of its employees, agents and assistants – for whatever legal reason – the following rules apply:
(1) EDS is only liable for intent and gross negligence. EDS is liable for simple negligence on the merits only, if a duty is violated, the fulfillment of the purpose of the contract is of particular importance (“cardinal obligation”). For simple negligence EDS liable in the amount limited to contractually typical foreseeable damage.
(2) For the cases of initial impossibility EDS liable only if it was aware of the impediment or based on ignorance of gross negligence.
(3) The limitation period for claims for damages against EDS is one year calculated from the statutory limitation period, unless the damage was caused intentionally.
(4) The aforementioned exclusions, restrictions and limitations do not apply to claims under the Product Liability Act and damages from injury to life, limb or health.
(5) Contributory negligence of the customer (eg an inadequate backup before Installation or use of the products) is this to be counted. EDS is liable for the replacement of data only if the customer has met and ensured all customary and reasonable data security measures that the data from data material kept in machine-readable form, can be reconstructed with reasonable effort in.
(6) The customer is obligated to report any damage as defined above liability regulations immediately to EDS in writing or may record from EDS, so that EDS is informed as early as possible and may operate together with the customer still can harm reduction.
§ 9 Secrecy
(1) The contracting parties undertake to all, unlimited conceal them in connection with the contract become known information and insights that are designated as confidential or other circumstances are recognizable as trade secrets.
(2) The admissibility of the disclosure of confidential information to third parties is also subject to prior written consent of the other party dependent unless the information / s was / s (a) previously well known; (b) publicly viewable / available without violation of a confidentiality agreement; (c) a third party has become, the self no obligation of confidentiality with respect to the information meets / s, in good faith known; or (d) if the disclosure is ordered by a court or similar institution.
§ 10 Data protection law
(1) The statutory provisions on privacy and data security are observed. The customer is responsible for the dissemination of information to EDS for compliance with laws and regulations on data protection and data security.
(2) The data for the financial statements and for the settlement of the contract, including the implementation of further correspondence with the customer are stored by EDS. EDS is also authorized to store their data transferred by the customer and to use, to the extent necessary to carry out the contract.
(3) Reference is made to the customer’s request about the data stored
Information, contact and rectify, erase or block, if they do not comply with data protection regulations, especially the incomplete or inaccurate these. EDS will those to whom data have been disclosed if necessary, inform you about.
(4) Credit check
a) Customer agrees that it is the responsible for the location of the customer SCHUFA Company received (protective association for general credit protection) data on the application, the recording, the beginning, the agreement proper execution and completion of the contract and information of this kind on the customer receives from the SCHUFA, as far as this provides a recording of such data of the customer. The customer can obtain information from SCHUFA about the stored data relating to him. The customer agrees that in case of a seat change, the previously responsible SCHUFA transmits the data to the then competent SCHUFA.
b) EDS reserves the right to catch up with the SCHUFA or other credit reporting agencies (eg Creditreform, Euler / Hermes, D & B Schimmelpfennig GmbH, Bürgel Business Information GmbH & Co. KG) with information in order to satisfy itself of the customer’s creditworthiness. It reserves continue to face, the customer data due to non-contractual settlement (eg if the customer has given rise to a termination without termination of the contract, and / or in the case of late payment in undisputed claims and / or in the existence of an enforcement order for lagging receivables from this announce contractual relationship) to SCHUFA or other reporting agencies under an existing with these for the exchange of credit data contract. As far as incurred in these organizations during the contractual relationship between EDS and the customer data for non-contractual settlement from other contractual relationships with the customer, this information can be transmitted EDS. The data collection and use is done in accordance with applicable data protection regulations.
§ 11 Final provisions
(1) The customer may – subject to the assignment of monetary claims under § 354 HGB – not transfer individual rights of this contract or the contract as a whole to third parties, unless EDS issued hereto expressly agree in writing. EDS will give its consent if justified concerns of the customer outweigh the interests of EDS on the transfer of rights.
(2) The waiver of the exercise or failure to exercise rights under this Agreement by one party does not result in a waiver of further rights.
(3) The law of the Federal Republic of Germany under exclusion of international civil law and the CISG.
(4) The exclusive place of jurisdiction for all disputes arising from the contractual relationship including checks, bills of exchange and documentary evidence, the respective headquarters of EDS. EDS may take the customer at its registered office or a court.
(5) Collateral agreements have been made. All changes and additions are only valid if they have been concluded in writing or mutually confirmed. This also applies to a waiver of this writing requirement.
(6) Should individual provisions of the agreement between the parties to be wholly or partly ineffective, the validity of the remaining provisions shall not be affected.
(7) ES is entitled to publish for advertising purposes the following information: customer name, business type, manufactured by the customer products, the number acquired by EDS products.
State: August 2015