GENERAL CONDITIONS OF SALES, DELIVERY AND PAYMENT TERMS OF
kunststofftechnische Software GmbH
§ 1 SCOPE
In these general conditions of sales, delivery and payment terms the following definitions are used:
Simcon represents Simcon kunststofftechnische Software GmbH
Client means a person, a legal person or an organization purchasing, leasing, licensing or renting from Simcon products, goods, software, software licenses, knowledge and services.
With purchase is meant the purchase, lease, license or rent of products goods, software, knowledge and services.
(1) The following terms apply to all contracts concluded between the client and Simcon for the purchase of product, goods, software, knowledge and services. These purchase conditions apply also to future business relations and even if they were not again expressly agreed upon.
(2) It is expressively stated that any deviating purchase conditions by the client are non-binding for Simcon, even if Simcon has not expressively disagreed with these deviating purchase conditions in any form.
(3) The following conditions listed in these general conditions of sales delivery and payment terms apply as well if Simcon fulfills the order without any reservations or conditions being in the prior knowing of deviating conditions by the client.
§ 2 PAYMENT TERMS, CONDITIONS AND INVOICING
(1) Simcon purchase prices are ex-works including packaging, if nothing else has been agreed upon in the order confirmation from Simcon towards the client.
(2) VAT (value added tax) is not included in the purchase price. The total VAT amount if appricable will be determined by Simcon in accordance with the German legal VAT percentages on the date of the invoice and will be separately entered on the invoice.
(3) The purchase price will be invoiced in euro.
(4) In case of services the payment term is immediately after the invoice date without any deductions.
(5) In the case of a software license purchase the payment term is 14 days after the invoice date, without any deductions.
(6) In regard software rentals, the payment term is immediately after the invoice date without any deductions.
(7) A payment term on a purchase price is deemed effected once Simcon has the purchase amount freely available for its own discretion.
(8) In case a client defaults on the payment conditions the legal conditions and laws of the Bundesrepublik Deutschland will apply.
(9) The client is only then entitled to payment compensation, even in the case if deficiencies and/or client counter claims have been officially lodged with Simcon, when the claims have been legally recognized (sentenced) and these claims have not been legally challenged by Simcon.
§ 3 DELIVERY TIME AND TIME OF PERFORMANCE
(1) Delivery dates or deadlines, which have not been not expressly agreed upon by Simcon, are non-binding.
(2) Unless otherwise agreed the delivery time for software will not exceed 14 days after receipt of the order.
(3) For services, the delivery period specified in the offer or Simcon order confirmation is valid after receipt date of the order by Simcon. With regard to the actual delivery date for a service, the delivery period will be counted from the date when all technical issues in regard the to be rendered service have been resolved and all necessary data are available at Simcon.
(4) Simcon will be liable towards the client in regard delivery delayments in accordance with the legal stipulations, if these are the result of deliberate intention or gross negligence in regard to the contract on the part of Simcon, in which case Simcon is to blame for the defaulting of her representatives and/or vicarious agents.
(5) In case of an agreed fixed delivery purchase date, according to § 286 Abs. 2 No. 4 BGB or § 376 HGB, Simcon will be liable according to the legal stipulations. The same holds if the client, due to a delivery delayment on Simcon’s behalf, is legally entitled to discontinue the fulfilment of the purchase. In this situation Simcon’s liability is restricted to the foreseeable and predictable claims, if Simcon cannot be blamed for deliberate defaulting by one of her representatives and/or vicarious agents.
(6) In all other respects the client can claim, due to a delivery delayment by Simcon for each full calendar week a flat charge based on 3% of the outstanding delivery value with a maximum of 15% of the outstanding delivery value.1/
(7) Further liability claims due to a delivery delayments will not be accepted, recognized nor honoured. Further legal claims and legal rights of the client which subsequently occur due to a delivery delayment on Simcon’s behalf remain unaffected.
(8) If the client runs into default on acceptance, then Simcon is entitled to claim the possibly occurring additional expenses. The same holds in case the client defaults on his duty to cooperate. In case of defaulting of acceptance or of debtor’s delay the risk of changes for the worse and the risks of loss will be laid with the client.
(9) Standard expiry period of quotations is 30 days after quotation date.
§ 4 TRAVEL- AND OUT OF POCKET EXPENSES
(1) If nothing else has been agreed upon, travel expenses shall be reimbursed by the client against the following conditions:
a. travel by car against a flat kilometre rate: 0.65 EUR / km,
b. any toll road cost, ferry cost and parking expenses will be charged against the out of pocket cost.
b. travel by air according to receipts.
c. travel by train according to receipts.
d. travel by taxi according to receipts.
e. hotel expenses during the travel and during the stay will be charged according to receipts.
(2) If nothings else has been agreed upon, Simcon will cross charge for out of pocket expenses the standard legal daily rate of 24€ per full day of 24 hours per employee. For all other countries the daily cross charge will be based on the stipulations by the German BMF (the German Financial Ministry). Travel days to and from the countries Germany, Netherlands, Belgium, Luxembourg, Austria and Switzerland will be cross charged against 110,– €/h.
(3) For other areas the travel day cross charge will be mutually agreed upon.
§ 5 GUARANTEE AND LIABILITY
(1) Claims by the client against deficiencies exist only if the purchaser has complied with German commercial code of inspection and notification obligations according to § 377 HGB.
(2) In the case of justified notices and or claims of defect, Simcon is committed to the subsequent performance to the exclusion of the rights of the client to withdraw treaty from the or to reduce the purchase price (reduction), unless that Simcon is entitled on the basis of legal regulations to refuse subsequent performance. The buyer shall grant a reasonable period for subsequent performance fulfilment towards Simcon.
(3) Simcon shall be liable regardless of the following limitations of liability pursuant to statutory provisions for damage to life and body, based on an intentional or negligent breach of duty by Simcon, by legal representatives of Simcon and/or vicarious agents of Simcon, as well as for damages that are covered by the liability under the product liability Act.
(4) For damage not covered by paragraph 3 and based on an intentional or grossly negligent breach of contract and fraudulent misrepresentation of Simcon, by legal representatives of Simcon and/or Simcons vicarious agents, Simcon shall be liable according to legal regulations. In this case, the liability for damages is limited to the predictable and typically to be expected damages.
(5) To the extent in which Simcon has delivered a guarantee with regard to the goods, Simcon shall be liable on the basis of the guarantee.
(6) Simcon shall be liable for damages, caused by Simcon representatives and or vicarious agents of Simcon by simple negligent violation of such contractual obligations whose meeting enable the proper implementation of the treaty and on which the buyer regularly trusts and may relay. Simcon is only liable insofar as the damages are connected with treaty and to the predictable and to be expected amount.
(7) A subsequent liability, irrespective of the legal nature of the claim in regard of the enforcement of the claim is excluded. This applies in particular to claims for reimbursement of futile expenditures instead of the performance.
§ 6 RESERVATION OF PROPRIETARY RIGHTS
(1) Until all claims have been fulfilled, which Simcon has brought against the client now or in the future the delivered goods (conditional goods) will remain in the ownership of Simcon.
(2) In the case of contrary behaviour to the contract of the client in regard to the purchase, such as late payments, Simcon has the right to claim back the conditional goods after having respected a reasonable time. In the case that Simcon takes back the conditional goods this will represent a withdrawal from the purchase contract.
(3) In the event that Simcon pawns the goods this is also a withdrawal from the purchase contract. Simcon is entitled to decide freely over the conditional goods after the purchase contract withdrawl. An appropriate amount for the cost of fulfilling and collecting the conditional goods will be deducted from the original purchase amount and/or from the total amount due by the client.
(4) The client has to handle the goods with due care. Maintenance- and inspection costs, which might be normally required have to be carried out by the client at his own expense and in proper time.
(5) The client is entitled to normal use of the conditional goods as long as he is not late with the payment of the purchase amount. Pawning or assignment as security of the conditional goods is not allowed. The client cedes already known claims arising from the use, resale or any other legal reason concerning the conditional goods as precaution in full to Simcon; Simcon accepts the assignment herewith. Simcon authorizes the client revocably to collect the claims as signed to Simcon for own account and on his own behalf. The direct collection authorisation may be revoked at any time, if the client does not properly fulfill his payment obligations.
(6) A processing or transformation of the conditional goods will be conducted by Simcon in any case. If the conditional goods are processed in combination with other goods not belonging to Simcon, Simcon will acquire the co-ownership of the new goods in proportion to the value of the goods.
(7) In the case of access or subsequent purchase of the conditional goods by third parties, the client will notify the third party of the co-ownership by Simcon and he will notify without delay Simcon in order that Simcon can enforce its proprietary rights.
(8) Simcon is obliged to release securities for the Simcon conditional goods in so far as the securities exceed the street value of the conditional goods by more than 10%.
§ 7 REFERENCES
(1) The Buyer/Lessee grants Simcon the right to name it as a reference without limitation regarding time and space and at no cost.
(2) The Buyer/Lessee grants Simcon the right to use its logo/brand for reference purposes without limitation regarding time and space and at no cost.
(3) Simcon commits to using the logo/brand in a form agreed with the Customer/Lessee.
(4) If and insofar Simcon uses the trade mark of the Buyer/Lessee, Simcon must safeguard the interest of the Buyer/Lessee to preserve the integrity of the trade mark.
§ 8 PLACE OF PERFORMANCE, LEGAL VENUE AND APPLICABLE LAW
(1) Place of performance and fulfilment and place of jurisdiction for deliveries and payments as well as in regard of all sales contracts closed between Simcon and the client, is the headquarters of Simcon in Würselen in the vicinity of Aachen, Germany.
(2) Simcon is entitled to sue the client at his place of business.
(3) The relationships and dealings between the parties are solely regulated according to the law of the Federal Republic of Germany.
(4) The application of UN sales law is explicitly excluded.
§ 9 SEVERABILITY
(1) If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision of this Agreement.