General Terms and Conditions of CADENAS GmbH
§ 1 GENERAL
- All contracts of CADENAS GmbH (hereinafter also referred to as "we") shall be concluded solely on the basis of the following general terms and conditions. The general terms and conditions of our customers shall not apply unless we have not expressly agreed in text form.
- CADENAS GmbH addresses its offer exclusively to enterprises in accordance with Para. § 14 1 terms and conditions, legal entities of public law or special funds under public law.
- Conflicting conditions of the customer, even if we are aware of such, are only valid if agreed upon in text form.
- Any collateral agreements and contract admendments shall require confirmation in text form to be binding.
- When using software from the CADENAS GmbH portfolio, special attention must be paid to the respective EULA and in particular the property rights of third parties.
§ 2 PRICES AND TERMS OF PAYMENT
- Prices are exclusive of expenses for travel and accommodation of our employees and/or all bank charges.
- Unless otherwise regulated, payment shall take place by invoice.
- The agreed prices are exclusive value-added tax.
§ 3 PRODUCT PORTFOLIO
- CADENAS GmbH sells and leases rights to use standard software.
- If needed by the customer, a separate service contract shall be concluded for the installation and/or customization of software products.
- Moreover, CADENAS GmbH offers service contracts for the creation of digital twins (CAD and BIM data) based on previously developed specifications.
- Finally, CADENAS GmbH offers data distribution services, where worldwide product data are sold and leads are generated.
§ 4 TRANSFER OF RISK
- For contracted installation service or data generation by CADENAS GmbH, the same runs the risk of accidental loss of the service rendered by CADENAS GmbH, up to the acceptance of the work by the customer.
- Acceptance of the work can only be refused on the grounds of substantial defects.
- If the system, where the CADENAS GmbH installed its software or other service, should be lost or deteriorate before acceptance and at no fault of CADENAS GmbH, then CADENAS GmbH shall have the right to demand the agreed price minus the saved expenses. The same shall apply for impossibilities of installation at no fault of the CADENAS GmbH.
- The customer can request a repeat of the installation in the cases of § Para. 4 3 S. 1 of the terms and conditions, if reasonable for CADENAS GmbH, in particular when taking other contractual obligations into account. Remuneration must be paid again for repeat performances.
§ 5 DEADLINES FOR INSTALLATION, MODIFICATION AND DATA GENERATION
- The return service obligation of CADENAS GmbH shall rest for as long as the customer is behind schedule with the performance of his major obligations.
- Periods and deadlines offered or desired by the customer for services of CADENAS GmbH are only binding if confirmed by CADENAS GmbH in text form.
- Time periods begin on the day the confirmation is issued by CADENAS GmbH. They shall be deemed as fulfilled if the software is provided by the end of the performance deadline.
- If CADENAS GmbH exceeds the agreed performance deadline due to its own fault, the customer can set a grace period of six weeks via a registered letter to CADENAS GmbH, beginning on the day of receipt of the letter, and can then withdraw from the contract after the term has expired.
- The customer is entitled to compensation due to non-fulfillment only if CADENAS GmbH or its agent caused the delay intentionally or as a result of gross negligence.
- CADENAS GmbH is entitled to deliver partial services.
- The term or deadline shall be extended for the duration of any disturbances which are not the fault of CADENAS GmbH such as force majeure, war, strike, lockout, traffic disruption or because their cooperation partners fail to perform, although they concluded a sufficient covering transaction in good time.
- If the hindrance lasts longer than three months, CADENAS GmbH is entitled to limit or stop the service as well as withdraw completely or partially from the contract, ruling out any service or claims for damages by the customer. In any such case, CADENAS GmbH is obligated to inform the customer immediately.
- The deadlines as per § 5 are met, if an acceptance by the customer has taken place before their expiration or, in case of contractually agreed testing, the respective plant is available for this purpose.
- If an installation, modification or data generation is delayed due to circumstances which are not grossly negligent or intentional on the part of CADENAS GmbH and which verifiably have considerable influence on the service to be performed, the deadline shall be appropriately extended. This also applies to circumstances which occur after CADENAS GmbH defaults.
- Insofar as CADENAS GmbH is responsible for the non-observance of agreed terms and dates or is in default, and it is verified that the customer suffers damage due to the delay, the customer then is entitled to compensation for the delay; this shall amount to 0.5% for each full week of the delay, but not more than 5% of the agreed price for part of the system to be installed by CADENAS GmbH which, as a result of the delay, cannot be used in time. Any other claims are excluded, unless the delay is at least due to gross negligence by CADENAS GmbH.
§ 6 PAYMENT, DELAY
- Payment obligations of the customer are due upon receipt of invoice, insofar as the other prereqisites for the due date are present. The customer shall be in default of payment after the expiry of a deadline of 30 days, at the latest, after receipt of invoice – provided that the other prerequisites for the due date are present at that time. The customer is to pay interest on the debt in the amount of 9% over the base rate.
- If a deterioration of the customer's assets occurs after concluding a contract or a deterioration of assets become known during the conclusion of a contract, CADENAS GmbH shall have the right to request either advance payment or security within a week.
- CADENAS GmbH has also optionally the right to suspend the filling of the order and the immediate settlement of payment. In case of refusal, CADENAS GmbH is entitled to withdraw from the contract. In this case, the customer is not entitled to damages.
§ 7 SET-OFF, ASSIGNMENT
- The customer has the right for set-off only if his counterclaims have been determined with final legal effect or acknowledged by us. The customer has the right of retention only if his counterclaim is based on the same contractual relationship.
- CADENAS GmbH reserves the unlimited right to assign claims to third parties.
- The assignment of rights and/or the transfer of obligations of the customer from the resp. contract is not permitted without the consent in writing of CADENAS GmbH.
§ 8 GUARANTEE FOR THE SALE OF STANDARD SOFTWARE AND RIGHTS OF USE
- For the rights of the customer with defect in goods or title (including incorrect and incomplete deliver as well as - if caused by us at all - defective installation, defective mounting or defective instructions, consultation or training for installation, mounting or maintenance), the legal provisions apply, unless agreed otherwise in the following. In any case, the special legal provisions for final delivery of the unprocessed software or the rights of use for the consumer remain unaffected, even if they have been been further processed (supplier regress as per §§ 478 Terms and Conditions). Claims from supplier recourse are excluded, if the defective software or rights of use was processed by the customer or another contractor, e.g. by installing in another product.
- Basis for our liability for defects is predominately the agreement reached on the condition of the goods. The agreement on the condition of the goods, all the product descriptions and our information, which are the subject matter of the individual contract, take precedence and apply. By contrast of secondary importance or in addition, those product descriptions and information made public by us at the time of the conclusion of the contract apply (especially in catalogs or on our Internet homepage).
- In the absence of any quality agreement, the statutory provisions must be applied to determine whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 of the terms and conditions). We shall not be liable for public statements of third parties (e.g. advertising statements), which the customer indicated as not being critical for purchase decisions.
- The customer's defect claims assumes that he has fulfilled his legal inspection and defect notification duties (§§ 377, 381 HGB). Should a defect appear at deliver, during inspection or at a later time, we are to be notified in text form at once. In any case, obvious defects found at delivery or during inspection are to be reported within two weeks of their discovery. If the customer fails to properly notify of defects, we shall not be held liable for defects which are not reported at all, in time or not in a correct manner according to legal provisions.
- If the delivered goods (the software or right of use) are defective, CADENAS GmbH can choose to either remedy the defect (repair) or to deliver a defect-free object (replacement delivery). The right of CADENAS GmbH to refuse supplementary performance remains unaffected.
- We have the right to predicate the supplementary performance due on whether the customer pays the purchase price due. The customer is however entitled to retain a reasonable portion of the purchase price relative to the defect.
- The customer is to give us the time and opportunity required for supplementary performance, especially to have the goods checked for examination purposes. In case of replacement delivery, the customer shall return the defective goods to us according to legal provisions. Supplementary performance neither includes deinstallation of the defective software nor a new installation, provided that we originally were not obligated to do the installation.
- The expenses required for the purpose of examination and supplementary performance, in particular costs of transport, travel, work and material as well as, if necessary, deinstallation, installation, dismantling and assembly, shall be reimburseed by us according to legal regulation, if in fact there is a defect. Otherwise, we can demand reimbursement of costs incurred for an unjustified request for the rectification of a defect (especially examination and transport costs), unless the customer was not aware of the lack of defectivness.
- In urgent cases, e.g. operation safety is endangered or to prevent disproportionate damage, the customer is entitled to remedy the defect himself. We are to be notified of such a self-remedy immediately, if possible, even beforehand. The right of self-remedy does not exist if we were entitled to refuse an appropriate supplementary performance as per legal regulations.
- If the subsequent performance fails or a suitable deadline set by the customer expires or becomes superfluous as per legal regulations, the customer can withdraw from the purchase contract or reduce the purchase price. The right of withdrawal does not exist with an insignificant defect.
- CADENAS GmbH shall not be liable for damage caused if the customer or a third party performs any changes to the software.
- Claims of the customer for damages or replacement of futile expenses exist also with defects only according to § 11 and are otherwise excluded.
- The warranty period is one year, beginning when the software is delivered or the rights of use are transferred. In case CADENAS GmbH has fraudulently concealed a defect, or assumed a guarantee for the condition of goods or service, the legal periods of warranty apply. § 8 I. sentence, second half of sentence of these terms and conditions remain however unaffected.
- Warranties in the legal sense are not given to the customer by CADENAS GmbH. Manufacturer warranties of third parties remain hereby unaffected.
§ 9 COOPERATION OF THE CUSTOMER
- The customer shall provide the support of hardware and staff for installation, modification or data generation.
- The customer shall bear all costs and expenses of CADENAS GmbH for travel activities after prior consultation. Overnight stays shall also be paid by the customer. These expenses are not a part of the daily flat rate.
- The customer is to take necessary measures for the protection of persons and goods on the site of the installation.
§ 10 ACCEPTANCE OF INSTALLATION, MODIFICATION OR DATA
- For the acceptance, the customer is obligated, as soon as he has been notified that the installation and/or modification and/or data generation is completed, contractually agreed testing, if necessary, has taken place as well as our service in accordance with the contract.
- If no significant mangel exists, the customer cannot refuse acceptance as long as CADENAS GmbH specifically resognises its obligation to remedy the defect.
- As soon as the customer is obliged to accept delivery as per Para. I. and II., CADENAS GmbH shall point out to the customer that he has a deadline of two week to declare acceptance and that, after this deadline has expired, acceptance shall be automatically declared provided that he is not entitled to refuse acceptance. In case the deadline is not met by the customer, without any fault of CADENAS GmbH and without the customer being entitled to refuse acceptance, it shall apply that acceptance shall be deemed as having taken place after expiry of the above deadline of two weeks.
- With acceptance, CADENAS GmbH shall no longer be liable for the reasonable testing of recognisable defects by the customer, insofar as the customer has not reserved the right to assert a particular defect.
§ 11 OTHER LIABILITY, LIMITATIONS OF LIABILITY
- Unless otherwise provided in the terms and conditions, including subsequent provisions, we shall be liable for a breach of contractual and non-contractual duties according to legal regulations.
- We shall be liable – irrespective of legal grounds – in the scope of fault-based liability, in case of intent or gross negligence. We shall be held liable for simple negligence, subject to legal limitations of liability (e.g. care for the diligence we exercise in our own matters; insignificant breach of duty), only
- for damages from injury to life, the body or health,
- for damages from essential contractual obligation (obligation necessary for the proper fulfilling of the contract, and on which the contract partner puts regular trust and should depend on); in this case, our liability is however limited to the replacement of a forseeable, typical damage.
- The limitations of liability of Para. 2 also apply to breaches of duty by or in favor of persons whose fault is that of our own, according to legal regulations. They shall not apply insofar as we have fraudulently concealed a defect or assumed a guarantee for the quality of our software or other sevice and for claims of the customer as per the product liability law.
- The customer can withdraw from or cancel the agreement due to a breach of duty which is not a defect, if we are responsible for that breach of duty. A free right of termination of the customer (especially as per §§ 650, 648 BGB) is excluded. In addition, the legal preconditions and legal consequences apply.
- Damage claims of the customer because of a defect shall lapse in one year after the software or other service has been delivered. This does not apply if CADENAS GmbH can be accused of fraudulent intent, or a guarantee for a particular qualtiy of their service has been assumed and the damage is based on that guarantee not being fulfilled.
- There shall be no liability for the use of product data (e.g. 2D and 3D data, PDF product sheets, metadata, etc.) of third parties which have been provided with the software of CADENAS GmbH. CADENAS GmbH cannot ensure that the product data of third parties made available actually correspond to the processes, components, physical properties, etc.
§ 12 PLACE OF PERFORMANCE, PLACE OF JURISDICTION
- Place of performance for both parties is CADENAS GmbH in Augsburg.
- Exclusive venue for all conflicts from the contract is Augsburg, if the customer is a merchant, a legal entity under public law or special fund under public law. The same shall apply even if the customer has no place of general jurisdiction in Germany or his place of residence or his common domicile is unknown at the time the proceedings begin.
§ 13 Adjustments to the Terms
- CADENAS GmbH reserves the right to make adjustments to the existing terms and conditions for all the continuing obligations. Customers shall in this case be informed of the modifications in text form six weeks before they come into effect.
- If there is no contradiction by the customer within six weeks, then the new terms and conditions shall apply. If the customer objects, then all contractual relationships shall remain unchanged and the old terms and conditions shall continue to apply. In this case, CADENAS GmbH has the extraordinary right of termination in regards to contractual relationships.
§ 14 SEVERABILITY CLAUSE
In case individual provisions in these terms and conditions become invalid or contain loopholes, the effectiveness of the other provisions remains unaffected. In case of regulatory loopholes, a supplementary interpretation shall be made according to §§ 133, 157 of the German Civil Code.