General Business Terms

General business terms of S P I Systemberatung Programmierung Industrieelektronik GmbH (hereinafter “SPI GmbH”)

1. General

(1) These General Business Terms shall apply to contracts between SPI GmbH and the customer for acquisition of software and for contracting of personnel services. A contract is executed when SPI GmbH received the customer’s purchasing order. Until that date, the buyer is not authorized to use the software. With his purchasing order, the customer acknowledges the exclusive rule of these General Business Terms. Terms of the customer that collide with or differ from these terms are excluded.
(2) All agreements defined between us and the buyer on the performance of this contract are defined in writing in this contract.
(3) Our terms of sales apply only to entrepreneurs as defined in §§ 14, 310 par. 1 BGB (= German Civil Code).
(4) The quality, the contractual scope of service of the software, and the released application environment result from the related program specification unless otherwise agreed. The software shall be delivered in executable form (as an object program).
(5) All support services of SPI GmbH or its service providers requested by the buyer (in particular preparation of application, installation and demonstration, instruction, training and other consulting) shall be compensated per effort.


2. Prices and payment terms

(1) Deliveries and services shall be made under prices and terms of the written order acknowledgement. The prices specified therein shall be binding.
(2) Trainings shall be given within 6 months upon the customer’s purchasing order. SPI shall propose three possible dates. If these dates cannot be kept, the customer is obliged to propose other dates. If the customer fails to take training within the defined period, the full training price shall be due for payment. In any case, the full invoice amount shall be due at the beginning of the first day of training. If on the other hand, SPI does not give the ordered training although contracted, the customer may rescind from the order for the training. SPI shall fully refund to the customer any payments the customer already made which are not balanced by training services from SPI.
(3) Prices are valid within the Federal Republic of Germany plus freight costs related to the order, and plus VAT in the rate as enforced at the date of the invoice. The purchasing price shall be due within 10 days of the date of invoice without any deductions.
(4) SPI is entitled to charge interest, in the commercial business transactions as of due date, otherwise as of default, in the amount of 5% above the basic interest rate as defined under §247 / §288 BGB.


3. Delivery time

(1) Delivery dates and notices are binding if specified as binding from case to case by the buyer and by SPI. Otherwise, all delivery dates or notices are not binding. Delivery times we state commence only after clarification of all technical issues. In particular, SPI shall be obliged to deliver systems only after reaching a binding agreement between buyer and SPI about the installation conditions at the place of installation.
(2) Fulfilment of our delivery obligation is subject to the in-time and proper fulfilment of the buyer’s obligations. We reserve the right of objection for the non-fulfilled contract.
(3) If the buyer is in default with acceptance, or otherwise by fault breaches his support duties, we shall be entitled to claim compensation of damage incurred in so far, including any additional expenses. We reserve further claims.
(4) If the conditions under section (3) are given, the risk of accidental loss or accidental deterioration of the purchasing object passes to the buyer from the date since which the buyer is in default with acceptance or payment.
(5) We shall be liable according to the legal provisions, in as far as the underlying purchasing contract is a fix business as defined under §286 par. 2 no. 4 BGB or of § 376 HGB (German Trade Code). We are also liable according to the legal regulations in as far the buyer is entitled to assert that his interest in further contract performance is redundant due to default of delivery by our fault.
(6) We shall also be liable according to the legal provisions, in as far as the delivery default is due to intentional or grossly negligent breach of contract by our fault. Fault of our representatives or agents shall be considered our fault. In as far as the delivery contract is not due to an intentional breach of contract by our fault; our liability for indemnification of damages shall be limited to the predictable, typically occurring damages.
(7) We shall also be liable according to the legal provisions in as far as default of delivery is due to breach of essential contract duty by our fault, in which event the liability for indemnification of damages shall be limited to the predictable, typically occurring damages.
(8) Otherwise, we shall be liable in the event of default of delivery for every full week of default with a flat-rate default compensation of 3% of the delivery value, however, limited to no more than max. 15% of the delivery value in total.
(9) Other legal claims and rights of the buyer are reserved.


4. Split deliveries

SPI shall be entitled to make split deliveries of the owed services. Payment terms in section 2 shall be applied likewise.


5. Subsequent modifications / cancellations

(1) If the buyer cancels or modifies a purchasing order and this leads to a delay in the delivery, the buyer is obliged to pay upon request of SPI 5% of the related order value to compensate SPI for incurred costs if the cancellation or modification of the order takes place less than 75 days before the delivery date defined in the order acknowledgement.
(2) We reserve the right of asserting further damages. This shall not prejudice the right of the buyer to prove the damage is much lower, or that no damage occurred.


6. Passage of risk

The risk passes to the buyer upon shipment of the goods by SPI.


7. Retention of property title

(1) SPI reserves the property title of all delivered products until receipt of all payments from the delivery contract. In case of non-contractual conduct of the buyer, in particular, in case of payment default, SPI shall be entitled to take back the delivered products. SPI taking back the products is not a rescission from the contract unless explicitly declared in writing. If we pledge the purchasing object, this shall always be reconsidered rescission from the contract. Upon taking back the products we shall be entitled to use and exploit them. The earnings from exploitation shall be set-off against the buyers’ liabilities, after deduction of reasonable costs of exploitation.
(2) The buyer shall be obliged to treat the purchasing object with caution and care. In particular, he shall be obliged to insure them sufficiently at acquisition value upon his own cost and account against fire, water and theft damages.
(3) In case of pledging or other third party intervention, the buyer has to notify us immediately in writing so that we can file suit according to §771 ZPO (German Civil Proceedings Code). If the third party is not able to compensate us for the costs of a suit in an out of court according to §771 ZPO, the buyer shall be liable for our loss.
(4) The following applies to SPI GmbH own products (SPI-programs): The buyer is entitled to resell the purchasing object in the normal course of business. This means the buyer may grant a third party the right to use the software according to section 11 (right of using the software) but only if the buyer fully waives the use of the software. In case of resales according to lines 1 and 2, the buyer herewith already assigns to us all claims in the amount of the invoice total (including VAT) of our receivable which fall to him from resale to his customers or third parties, regardless whether the purchasing object was resold with or without further processing. The buyer remains entitled to collect this receivable even after assigning it. This shall not prejudice our right of collecting the receivable. However we agree not to collect the receivable as long as the buyer fulfils his purchasing obligations from his collected earnings, is not in payment default, and in particular, no applications for opening of composition or insolvency proceedings have been filed, and payments have not been ceased. In which event we may claim that the buyer discloses to us the assigned receivables and their debtors, gives all information needed for collection, forwards all related documents, and informs the debtors (third parties) of the assignment.
(5) The right of resales of the software does not apply to foreign programs developed by a software supplier/provider not affiliated to SPI. Instead, the special terms of that supplier/provider shall apply.
(6) Processing or reconstruction of the purchasing object by the buyer shall always be made for us. If the purchasing object is processed with other objects which are not our property, we acquire co-property (total invoiced amount, including VAT) in the ratio of the value of the purchasing object to the other processed objects at the time of processing. The object created by processing is otherwise subject to the same terms as the purchasing object delivered under property reservation.
(7) If the purchasing object is inseparably combined with other objects which are not our property, we shall acquire the co-property of the new object in the ratio of the value of the purchasing object (invoiced total including VAT) to the other combined objects at the time of combining. If the combination is so that the object of the buyer has to be considered the main object, it shall be agreed that the buyer assigns to us proportional co-property. The buyer shall safeguard the thus created sole property or co-property for us.
(8) To secure our claims against him, the buyer also assigns to us his receivables against third parties which are created by attaching the purchasing object with a piece of land.
(9) We agree to release securities to which we are entitled quid pro quo as the realizable value of our securities exceeds the receivables to be secured by more than 10%. Selection of the securities to be released is in our sole discretion.
(10) (10) In as far as the buyer is provided with programs, software, interfaces etc. as foreign products only against compensation of distribution costs (duplication costs, postage etc.); SPI assumes no warranty or liability whatsoever.


8. Warranty

(1) Defect claims by the buyer are subject to the condition that he properly fulfilled his obligations of examination and complaint owed under §377 HGB (German Trade Code).
(2) In as far as there is a defect in the product, the buyer is entitled to remedy in his own discretion either by way of elimination of defect or by delivery or a new object free of defect. In case of elimination of defect we are obliged to bear all costs, in particular transport costs, travel costs, labour and material costs necessary for the purpose of elimination of damage, provided these costs are not increased by the purchasing object having been transferred to a place other than the place of performance.
(3) If remedy fails, the buyer is entitled in his own discretion to claim rescission or reduction of price.
(4) The buyer may claim defects only if reported damages are reproducible or if the buyer can otherwise prove them.
(5) The time-limitation for defect claims is 12 months starting with the passage of risk. The warranty period shall generally begin with the delivery of the goods to the buyer. The following applies to products installed by SPI: the warranty period begins upon notification of readiness for operation.
(6) This shall not prejudice the time-limitation period in case of delivery recourse according to §§ 478, 479 BGB. It shall be five years starting with delivery of the defect object.
(7) SPI agrees to correct software errors which impair the contractual use more than negligibly in the discretion of SPI, and depending on the relevance of the error, by installation of an improved software version, or by giving instructions for elimination or by-passing the effects of the error. SPI assumes no warranty that the software runs free of interruptions or errors, or that the functions included in the software can be run in all combinations the buyer selected, and fulfil his requirements. Any warranty is excluded in as far as the buyer or any third party makes any modifications or repairs on the goods or handles the goods incorrectly.


9. Liability

(1) SPI GmbH shall always be liable to the buyer
a) for the damages caused with intent or gross neglect by it or its legal representatives or agents,
b) according to the German law on product liability, and
c) for damages from hurt of life, body or health in the responsibility of SPI, its legal representatives or agents.
(2) SPI GmbH shall not be liable for slight neglect unless this breached an essential contract duty (cardinal duty). For material and property damages, this liability shall be limited to the predictable damage typical for this kind of contract. Liability for consequential defect damages shall be excluded. Liability is limited per case to the contract value, for ongoing compensation to the amount of compensation per contract year, but not to less than €50,000. The claims shall be forfeited after one year of the legal beginning of the time-limit. This section (2) shall not prejudice liability according to section (1).
(3) In as far as the buyer has claims for compensation of damage instead of performance; the liability of SPI GmbH shall also be limited to compensation of the predictable damage typical for this kind of contract.
(4) In as far as indemnification liability towards SPI GmbH is limited or excluded, this shall also apply to the personal indemnification liability of the employees, workers, associates, representatives and agents.
(5) Otherwise liability is excluded.


10. Commercial protection rights and copyrights

(1) In case of infringement against German commercial protection rights (including copyrights) due to the use of any SPI-product, SPI shall indemnify the buyer from (indemnification) claims of the holder of the protection right. SPI shall furthermore generally obtain the right of further use of the product for the buyer. If this is not possible under reasonable economic terms, SPI shall in its own discretion modify or replace the product in a way that does not infringe against the protection right, or take back the product and refund the purchasing price that had been paid to SPI reduced by an amount considering the age of the product.
(2) The aforementioned obligations of SPI apply only if the buyer notifies SPI immediately of all claims asserted against him, all defence activities including out-of-court settlements remain reserved for SPI, and the protection right is not infringed by modification of a product delivered by SPI, or use in any way not specified in SPI-publications, or used with products not delivered by SPI. This regulation includes, with the reservation of section (8), all obligations of SPI for claims related to infringements against commercial protection rights.


11. Rights of using the software

(1) A non-exclusive, non-assignable right of utilization for internal use together with the products for which the programs are delivered is granted to the buyer for the SPI-programs, the related documentations and the after-sales add-ons (all other rights in the programs and documentations including the copies and after-sales add-ons remain vested in SPI or the software provider).
(2) SPI GmbH grants to the buyer a non-exclusive, non-assignable right of utilization of foreign programs (programs developed by a software supplier/provider not affiliated with SPI), while the buyer agrees additionally to comply with the related special terms of the supplier/provider for the use of this software.
(3) The buyer has to warrant that these programs and documentations are not accessible to third parties without prior written approval from SPI GmbH.
(4) Copies may only be made for archiving purposes, as a replacement or for troubleshooting. Sections 1 and 2 apply likewise. Supply of source programs is subject to separate written agreement. If the originals are labelled with a copyright disclaimer, the buyer has to attach this disclaimer also on the copies. Unless otherwise agreed, or not otherwise defined in the terms of the suppliers/providers, the right of use shall be considered granted with acknowledgement of order and delivery of the programs, documentation and after-sales add-ons.


12. Other terms

The buyer may assign his rights and duties resulting from the contract only with written approval from SPI. He may set-off or assert withholding rights against SPI only if the counter-claim of the buyer is undisputed or legally valid. These terms of delivery and payment remain valid as such even if any individual stipulation is void. Place of performance and place of jurisdiction for all contractual claims and claims related to the attached contract is Ahrensburg provided the buyer is a business. SPI, on the other hand, is entitled to assert claims also at the court that is competent for the place of residence or sojourn of the buyer.

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22926 Ahrensburg Germany

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