1 Scope, general
1.1 The present General Terms and Conditions (hereinafter referred to as “Terms and Conditions”) shall apply exclusively to all offers, contracts and agreements on any delivery or service of AVL Software and Functions GmbH (hereinafter referred to as “Product(s)”). No customer terms and conditions conflicting with or differing from these Terms and Conditions shall be recognized by us unless with the our express and written consent thereto. These Terms and Conditions of Contract shall be applicable even when we make any delivery without reservation while being aware of any such customer terms and conditions; our Terms and Conditions shall apply in this case as well.
1.2 Our Terms and Conditions shall also apply as a framework agreement to any future contract on any delivery or service for the same customer without requiring us to refer to these Terms and Conditions in every single case again.
1.3 Any individual agreement (including any subsidiary agreement, supplement or amendment) made with a customer on a single-case basis shall prevail over these Terms and Conditions. The contents of any such individual agreement shall be subject to a written contract or written confirmation issued by us.
1.4 No legally relevant representation or notification including but not limited to notices to set deadlines, reminders, notices of rescission to be furnished by the customer to us after the conclusion of the contract shall be effective unless made in a written form.
1.5 These Terms and Conditions shall not be applicable unless to entrepreneurs, legal entities under public law or special funds under public law as defined in Section 310, Subsection 1 of the German Civil Code (BGB).
2 Subject matter of contract
2.1 The contract’s subject matter shall be the Products as indicated in our offer together with the specifications.
2.2 The delivery of any standard software shall be made ex works Regensburg as per INCOTERMS 2010 or on an exchangeable drive or by e-mail delivery. A delivery deadline shall deemed met when, prior to its expiry, the Product to be delivered has been made available for taking delivery or for shipping by us.
2.3 Any request for alterations made by a customer with regard to functional scope, program structure, image composition or any other feature which has not been included in the original offer with specifications and constitutes a deviation from the original contents of the contract including but not limited to time and costs, shall be subject to a written additional agreement by the parties. We shall have no obligation to meet any request for alteration unless after the conclusion of such an additional agreement.
2.4 We shall be entitled to make part deliveries or partial performance.
2.5 The observance of any delivery period shall be subject to correct and timely supplies to ourselves.
2.6 No technical content, software, function, figure, description in any prospectus, catalogue, offer, quotation or written document shall be binding unless such binding force is expressly agreed in writing. Any modification required due to technical progress shall remain reserved unless the customer may not be reasonably expected to accept such modification. Nonetheless, no rights against us may be derived from the foregoing provision, nor shall we be bound to make any such modification in any Product already delivered by us. We shall reserve title to ownership in any document mentioned in this section; the same shall apply to our copyrights where any such document is eligible for copyright; no such document may be made available by the customer to any third party unless with our express prior written consent. No such document must be used unless exclusively for the purposes set forth in our offer; if no contract is brought about, they shall be returned to us upon our written request which may be made at any time. Such documents shall be kept secret with regard to any third party; the provisions set forth in Section 9 of these Terms and Conditions shall apply on a supplementary basis.
2.7 Our offers or quotations shall always be subject to change without notice. No order shall be deemed accepted unless confirmed in writing by us.
2.8 No claim from any contract or agreement may be assigned effectively by the customer unless with our written approval.
3.1 Unless as otherwise agreed, the prices shall be deemed ex works Regensburg and, for material, plus any packaging cost.
3.2 The statutory value-added tax shall not be included in our prices; such tax shall be indicated as a separate item on the invoice in the statutory amount applicable on the day of invoicing. Unless as otherwise provided for, all prices shall be in Euros.
4 Payment terms
4.1 Unless as otherwise agreed in writing, payment shall be made to us with no deduction by the latest 30 days after the date of invoice.
4.2 If delivery or commissioning is delayed for any cause not under our control, payments shall still be made as if the aforementioned deliveries or services had been made or provided at the agreed time.
4.3 No right to set-off and/or retention shall be available to the customer unless for counterclaims which are recognized by declaratory judgment, uncontested or ready for a decision in any proceedings pending in court.
4.4 The grant of any right of use and/or the transfer of ownership in any Product shall be subject to the condition that the invoice amount due and payable has been paid completely.
4.5 Compensation under contracts for the preparation of any software shall be in several instalments adapted to the progress of work. A schedule of such payments shall be specified by us in the offer. If no such schedule is specified, the compensation agreed or due shall become payable in the following instalments:
30% upon contract conclusion;
30% after half the agreed project duration has expired;
40 % after acceptance.
5 Redhibitory defects and defects of title
5.1 Every part which, within a period of 12 months after its delivery, presents any redhibitory defect caused by any circumstance which occurred prior to the transfer of risk shall be either reworked or replaced at our option subject to our equitable discretion. The customer shall notify the discovery of any such defect to us in writing and without any delay.
5.2 The customer shall have no claim based on any defect if the customer has made any unauthorised change to a Product or has any such change made by any third party. No warranty shall be assumed for any loss or damage due to any of the causes listed below: Unsuitable or improper use, incorrect or negligent handling, or any chemical or electrical influence unless if and where due to any fault on our side. If our delivery or service covers only a part of the scope, the customer shall assume the sole responsibility for system integration.
5.3 If such supplementary performance fails, the customer shall have the right to invoke the other claims based on defects provided for under law. The customer shall have no right to rescind a contract for any immaterial defect. The particular provisions set forth in section 6 of these Terms and Conditions shall apply in other respects.
5.4 The provisions set forth in this item 5 shall apply mutatis mutandis if there is any deficiency in title while no claim of the customer shall exist unless the customer notifies us of any such claim raised by any third party in writing and without any delay, does not recognize any alleged act of infringement neither directly nor indirectly, every opportunity for defence is maintained for us without any restriction whatsoever, the infringement of any such right is not based on any modification to the goods made by the customer or any use thereof contrary to the agreement, and any such deficiency in title is not due to any instruction given by the customer.
5.5 Where any third-party right has been infringed, we may, at our own option, take remedial action either by acquiring the rights of use sufficient for the purposes of this contract for the benefit of the customer, or by modifying the Product, which infringes a property right, without any effect on its function or with effects the customer may be reasonably expected to accept or by replacing the Product, which infringes a property right, without any effect on its function or with effects the customer may be reasonably expected to accept by a Product whose use under the agreement does not infringe any property right or by delivering a new program status whose use under the agreement does not infringe any property right. Where the foregoing is not possible under adequate and reasonable conditions for us, we and the customer shall be entitled to rescind the contract. Any further claim shall be excluded without prejudice to section 6.
6 Other liability
6.1 For any damage or loss not caused in the subject matter of delivery or service itself, we shall not be liable, on any factual or legal ground whatsoever, unless in the event of intent; gross negligence committed by the proprietor, by any executive body or by any executive employee; for any defect we have fraudulently concealed; for any culpable injury to life, body, or health; if we have given any promise of guarantee; or if we should be liable for personal injury or material damage in any object used for private purposes under the German Product Liability Act. In the event of any culpable non-observance of an essential duty under the contract, we shall also be liable for any gross negligence committed by any non-executive employee and for ordinary negligence while liability for the latter case shall be restricted to the damage or loss foreseeable on a reasonable basis typical of the agreement. Any further claims for damages against us shall be excluded.
6.2 The provisions as set forth in item 6.1 hereinabove shall apply while excluding any further claim of the customer if the subject matter of delivery or service may not be used by the purchaser as provided for in the contract through any fault committed by us due to any failure to perform or any defective performance of any proposal or consulting made or given either before or after contract conclusion or any other subsidiary duty under the contract, including but not limited to any instruction for the operator control and maintenance of such subject matter.
7 Third-party industrial property rights
7.1 If we use any third-party products, the customer shall only be granted the rights therein as required for their use under the contract.
7.2 Where the Product contains any open-source program, etc., the customer shall agree to comply with the corresponding open-source licenses included with such Product.
8 Duties to inspect and give notice of defects
8.1 The Product delivered or accepted including its documentation shall be tested and inspected scrupulously by the customer within a period of 14 days in order to determine, in particular, its completeness and the availability of essential program functions. Any deficiency detected or detectable shall be notified by customer in text form with no delay unless already notified within the scope of delivery or acceptance. Any deficiency shall be documented in a comprehensible and reproducible way by describing its symptoms. Any deficiency occurring at a later time shall be notified in the same manner immediately after its discovery.
8.2 The Product shall be deemed approved in case of a culpable infringement of the duties to inspect and give notice of defects as defined in item 8.1 hereof.
9 Secrecy, industrial property rights, rights granted
9.1 The customer shall agree to strictly maintain the secrecy of any document or information received from us, including but not limited to any specification, illustrated matter, drawing, calculation, or any other document and information (hereinafter referred to as “Information”); the same shall also apply to any other of our trade and industrial secrets we may bring to the customer’s notice. In particular, the customer must not use any procedure of any kind whatsoever to restore any source program or any part thereof from any binary software, or obtain any knowledge about the conceptual design or preparation of the software or of any hardware or firmware implementation of the software. No such information must be disclosed to any third party unless with our express prior written consent.
9.2 Such obligation of secrecy shall survive the winding up of this agreement; it shall expire if and where the manufacturing know-how included in any such illustrated matter, drawing, calculation or other document transferred for use or any other information included therein has become known to the general public, and, by the latest, after the expiry of 10 years after the delivery or acceptance of the goods or services.
9.3 The customer shall agree to treat any commercial or technical detail as a business secret or corporate secret if such detail concerns the contract concluded with us or is related to its performance. The customer shall also be bound to secrecy about the business relation with us. Any exception to the foregoing shall be subject to our prior written consent.
9.4 The Products are protected by law. In the relationship between the parties, any copyright, patent right, trademark right and any other ancillary copyright in the Products and in any other object we transfer for use or make available to the customer within the scope of contract formation shall be due exclusively to us. If and where any such rights shall be due to any third party, we shall have the corresponding exploitation rights. The customer shall agree to protect any right of us to the Products including but not limited to any industrial property right and copyright including the right to a copyright notice. The customer shall affix AVL’s copyright notice and any other notice referring to our industrial property rights in the same way as shown on the original version of any Product to any complete or partial copy, adaptation or record of a Product.
9.5 The customer shall be granted a non-exclusive and non-transferable right to use the Product without any limit of time. The permitted use shall cover the installation of the Product, its loading into the working memory and its intended use by the customer for the customer’s own purposes on the hardware as indicated in our offer. In other respects, the number of the licenses and the type and scope of such use shall be as determined in our offer. The customer shall not be entitled to lease or sublicense the Product acquired or to make it available to any third party neither for valuable consideration nor free of charge without our prior written consent. Item 9.7 shall remain unaffected.
9.6 The customer shall have the right to make a backup copy if required to ensure future use. The customer shall affix a notice indicating”backup copy” in addition to the manufacturer’s copyright notice at a visible position on the backup so prepared.
9.7 The customer shall forthwith acquire the rights of use as required for the permitted use whenever the customer uses the Product to an extent which exceeds any rights of use acquired thus far either in terms of quality (i.e., with regard to the kind of use permitted) or in terms of quantity (i.e., with regard to the number of licences acquired). If the customer fails to acquire such licences, we shall enforce the rights to which we are entitled.
9.8 No copyright notice, serial number or other feature used for program identification may be removed from the Product or be altered.
10 Commencement and period of contract
10.1 The contractual relationship shall take effect upon the signature of the agreement by both parties.
10.2 If no acknowledgment of order is available in text form and if, upon the customer’s request, we start work in performance of the contract, such contract shall be deemed established upon the commencement of such work. In such an event, the underlying offer including but not limited to the scope of work defined therein shall be binding for all the performance by both parties.
10.3 Any contractual relationship concluded for an indefinite period of time may be terminated by giving 12 months’ notice to the end of a quarter. No statutory or contractual notice of termination shall be allowed within the first two years after establishing any such contractual relationship.
11.1 Any period of performance or date of delivery shall be as determined by the information included in the offer.
11.2 Any period of delivery or service determined by us or agreed shall commence at the time at which not only the contract has been established by acknowledgement (order acknowledgement) but at which every technical, commercial or other question has been settled conclusively. Our compliance with the delivery deadline shall also be subject to the customer’s compliance with all duties under the contract.
11.3 In any event of “Force Majeure”, the party affected thereby shall be exempted from its obligation to deliver or accept delivery for the duration and for the extent of the consequences thereof. “Force Majeure” shall be deemed to include any event which is outside the control of the corresponding party and prevents such party from performing its obligations either fully or in part, including any fire damage, flood, strike or lawful lockout and any disruption to operations or any administrative ruling which has not been caused through such party’s fault. No supply difficulty and no other defective performance on the part of any upstream supplier of the supplier shall be considered Force Majeure unless an upstream supplier has been prevented from performing the service incumbent on such upstream supplier by any event as defined in the foregoing sentence 1.
11.4 If and when the customer suffers any damage or loss due to any delay under our control, the customer shall be entitled to claim liquidated damages. In case of ordinary negligence, such liquidated damages shall amount to 0.5% for every full week in excess of the delivery or service deadline agreed with the customer but shall be limited to a maximum total of 5% of the net compensation amount for the subject matter of the delivery or service not delivered to or performed for the buyer due to such delay. Notwithstanding the foregoing, the customer shall have the unrestricted right to rescind the contract pursuant to statutory provisions without any restriction. Nonetheless, any further claim from any delay in delivery shall be based exclusively on item 6.1 of these Terms and Conditions.
12 Notice to terminate for cause, obligation to surrender possession, documents
12.1 The right to terminate without prior notice for cause shall remain unaffected Such good cause shall be deemed to exist in particular if or when the customer fails to observe any provision included in these software terms and conditions, and fails to remedy such breach of contract within a reasonable period of time defined by us.
12.2 Both parties can terminate the contract or agreement in writing and without prior notice including in but not limited to any of the following cases:
a) the other party stops payments to third parties, or the other party or any of its creditors applies for the institution of insolvency proceedings against the assets of that other party;
b) the other party commits a material breach of contract and fails to correct such breach within a reasonable period of time.
12.3 In addition to the circumstances as set forth in item 12.2, we shall be entitled to terminate the contract with the customer in writing and without prior notice if:
a) delivery or service becomes impossible for any cause under the customer’s control or is delayed beyond a reasonable grace period defined in writing for the same causes;
b) the customer’s financial situation deteriorates to a considerable extent after signing the contract or agreement and if the customer is not able or not prepared to furnish reasonable collateral for meeting its financial obligations under the contract;
c) even though we have complied with our obligations, customer payments are not received when due and payable and the customer fails to pay within a reasonable grace period defined in writing;
d) a change takes place in the customer’s ownership structure and leads to considerable effects on our interests;
e) we have any suspicion based on reasonable grounds that the delivery of any Product by us or by any company associated with us or any other service performed under the contract violates any sanction, prohibition or restriction applicable under any resolution of the United Nations or any law or ordinance of the European Union, the Federal Republic of Germany or any other State and applicable to us and/or any company associated with us;
f) after concluding the contract, our Products become subject to any restriction imposed under the EC Dual-Use Regulation No. 427/2009 as amended from time to time unless we obtain an export permit in accordance with such EC Dual-Use Regulation.
12.4 Upon the termination of the contract on whatever legal grounds, the customer shall return to us any copy of any document, etc. transferred for use unless such return is in conflict with any statutory retention period. The customer shall have no right of retention.
13 Reservation of title
13.1 The delivery/service shall remain our property until the complete payment of the price agreed or due including any subsidiary claim. Prior to such complete payment, the customer shall not be entitled to resell the Product or make it available to any third party neither for valuable consideration nor free of charge.
13.2 Any sale of hardware components shall be subject to the following supplementary provisions: If hardware is combined with any other customer part, and if such customer part shall be considered the main object, the customer shall transfer proportionate co-ownership to us if and where the parts are owned by the customer. The customer shall safeguard such co-ownership on our behalf.
14 Object code delivery
14.1 We shall be obligated exclusively to release the object code together with adequate documentation.
15 Acceptance for software creation
15.1 For any software created by us, the customer shall issue a written declaration of acceptance at our request after the successful completion of acceptance testing. Any deficiency detected shall be indicated in such declaration of acceptance.
15.2 The customer shall agree to accept services provided in part.
15.3 Reception may not be refused for a non-essential defect.
15.4 We may fix a reasonable time limit for the issue of such a declaration of acceptance which, if expired unsuccessfully for any reason not under our control, shall give rise to the Product’s formal acceptance.
15.5 The Product shall also be deemed accepted if and when:
- the customer has confirmed its conformance to the specifications set forth in the agreement or
- the customer makes any business use of the Product or the Product fails to reach operating readiness for any cause not under our control within a reasonable time limit to be set by us.