These Standard Terms and Conditions of HighTec EDV-Systeme GmbH (hereinafter referred to as “HighTec”) for the Sale and Lease of Goods (Hardware and Software) shall exclusively apply, save as varied by express agreement accepted in writing by both parties.
The offer, order acknowledgement, order acceptance or sale or lease of any products covered herein is conditioned upon the terms contained in this instrument. Any conditional or different terms proposed by the Customer are objected to and will not be binding upon HighTec unless assented in writing by HighTec.
These conditions shall govern any future individual contract of sale or lease between HighTec and the Customer to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by HighTec shall be subject to correction without any liability on the part of HighTec.
The provisions of these Standard Terms and Conditions extend to standard contract conditions which are used in a contract with a merchant in the course of business only.
2. Orders and Specifications
No order submitted by the Customer shall be deemed to be accepted by HighTec unless and until confirmed in writing by HighTec or HighTec’s representative or delivery of the ordered goods within 21 days after submittal.
The quantity, quality and description of and any specification for the goods shall be those set out in HighTec’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by HighTec). Any such specification, sales literature, quotation etc. shall be strictly confidential and must not be made available to third parties.
The Customer shall be responsible to HighTec for ensuring the accuracy of the terms of any order submitted by the Customer, and for giving HighTec any necessary information relating to the goods within a sufficient time to enable HighTec to perform the contract in accordance with its terms.
If the goods are to be programmed, manufactured, modified, or any process is to be applied to the goods by HighTec in accordance with a specification submitted by the Customer, the Customer shall indemnify HighTec against all loss, damages, costs and expenses awarded against or incurred by HighTec in connection with or paid or agreed to be paid by HighTec in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from HighTec’s use of the Customer’s specification.
HighTec reserves the right to make any changes in the specification of the goods which are required to conform with any applicable statutory requirements or, where the goods are to be supplied to HighTec’s specification, which do not materially affect their quality or performance.
3. Price of the Goods
The price of the goods shall be HighTec’s quoted price or, where no price has been quoted, the price listed in HighTec’s published price list valid at the date of acceptance of the order. Where the Goods are supplied for export from Germany, HighTec’s published export price list shall apply.
HighTec reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the goods to reflect increases in the cost to HighTec which are due to any factor beyond the control of HighTec (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or other costs of manufacture) or any change in delivery dates.
Unless as otherwise stated under the terms of any quotation or in any price list of HighTec, and unless otherwise agreed in writing between the Customer and HighTec, all prices are given by HighTec on an ex works basis. Where HighTec agrees to deliver the Goods otherwise than at HighTec’s premises, the Customer shall be liable to pay HighTec’s charges for transport, packaging and insurance.
The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to HighTec.
4. Terms of Payment
The Customer shall pay the price of the goods within 14 days from the date of HighTec’s invoice.
Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.
It may be agreed between the parties that the Customer has to deliver a letter of credit issued by his bank (or any bank acceptable to HighTec). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication UCP 500.
If the Customer fails of make any payment on the due date then, without prejudice to any other right or remedy available to HighTec, HighTec shall at their discretion be entitled to:
- cancel the contract or suspend any further deliveries to the purchaser; or
- charge the Customer interest on the amount unpaid, at the rate of 7 per cent per annum above the European Central Bank reference rate, being valid at that time, until payment in full is made. The Customer shall be entitled to prove that the delay of payment caused only minor or no damage.
Delivery of the Goods shall be made by the Customer collecting the Goods at HighTec’s premises at any time after HighTec has notified the Customer that the goods are ready for collection or, if a different place for delivery is agreed, by HighTec delivering the Goods to the agreed place. In case of the sale or lease of software, the parties may agree on an online delivery via computer networks such as the internet. In case of online deliveries via computer networks Customer has without any delay to verify the correctness of the transferred data by check of their Hash code (according to §§ 377 and 378 German Commercial Code).
If a fixed time for delivery is provided for in the Contract, and HighTec fail to deliver within such time or any extension thereof granted, the Customer shall be entitled, on giving HighTec notice in writing within a reasonable time, to claim a reduction of 3% per week of the price payable under the contract, unless it can be reasonably concluded from the circumstances of the particular case that the Customer has suffered no damage caused by default. The 3% limitation shall not apply if the business was agreed as a firm deal or if the delay was caused negligently or intentionally by HighTec, their agents or representatives, or if there is any further breach of essential contractual obligations.
If, for any reason whatever, HighTec fail to effect delivery in due time, the Customer shall be entitled by notice in writing to HighTec to fix a deadline after the expiry of which the Customer shall be entitled to terminate the contract. Damages may only be claimed by the Customer if HighTec (or their representatives) failed to fulfil the contract by intention or gross negligence, or in case of culpable breach of essential contractual obligations.
If the Customer fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the goods had been delivered. HighTec shall arrange for the storage of the goods at the risk and cost of the Customer. If required by the Customer, HighTec shall insure the goods at the cost of the Customer.
6. Transfer of Risks
Risk of damage to or loss of the goods shall pass to the Customer as follows:
- in the case of goods to be delivered otherwise than at HighTec’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the goods, the time when HighTec has tendered delivery of the goods;
- in the case of goods to be delivered at HighTec’s premises (“ex works”, Incoterms 2000) at the time when HighTec notifies the Customer that the goods are available for collection.
7. Retention of Title in Case of Sales of Hardware Products
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Customer until HighTec has received payment in full of the price of the Goods and all other Goods agreed to be sold by HighTec to the Customer for which payment is then due.
HighTec shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods in which title remains vested in HighTec; Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as HighTec’s fiduciary agent, and shall keep the Goods properly stored, protected and insured and shall mark it as property of HighTec.
Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of his business, but shall account to HighTec for the proceeds of sale or otherwise of the Goods including insurance proceeds, and shall keep all such proceeds separate form any moneys or properties of the Customer and third parties.
If the Goods are processed or reshaped by the Customer and if processing is done with Goods that HighTec has no property in, HighTec shall become co-owner of the Goods. The same shall apply if HighTec’s Goods are completely reshaped and mixed with other goods.
If third parties take up steps to pledge or otherwise dispose of the goods, the Customer shall immediately notify HighTec in order to enable HighTec to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure. If the Customer fails to do so in due time he will be held liable for any damages caused.
HighTec shall on demand of the Customer release any part of the collateral if the value of the collateral held in favour of HighTec exceeds the value of the claims being secured. It is to HighTec’s decision to release those parts of the collateral suitable for them.
8. Warranties and Exclusion Clauses in Case of Sales of Hardware Products
The Customer shall examine the Goods as required by German Law (§§ 377, 378 of the German Commercial Code) and in doing so check every delivery in any respect.
HighTec warrants that all items delivered under this agreement will be free from defects in material and workmanship and will conform to applicable specifications HighTec shall not be liable for the Goods being fit for a particular purpose unless otherwise agreed upon, to which the Customer intends to put them.
The above warranty is given by HighTec subject to the following conditions:
- HighTec shall not be liable in respect of any defect in the goods arising from any design or specification supplied by the Customer;
- HighTec shall not be liable under the above warranty if the total price for the goods has not been paid by the due date for payment;
- the above warranty does not extend to parts, materials or equipment manufactured by or on behalf of the Customer unless such warranty is given by the manufacturer to HighTec.
This warranty does not cover defects in or damage to the products which are due to improper installation or maintenance, misuse, neclect or any cause other than ordinary commercial application.
Any discharge from liability will be void if a defect results from a negligent or intentional breach of contract on the part of HighTec. The same applies if HighTec may be held responsible for the breach of any further essential contractual obligation.
Any claim by the Customer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall be notified to HighTec within twelve months from the date of delivery.
The Customer is entitled to demand the replacement delivery, repair or reduction of the purchase price as set forth with the terms of each individual contract of sale.
Where any valid claim in respect of any Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to HighTec in accordance with these Conditions, HighTec shall be entitled at HighTec’s sole discretion to either replace the Goods free of charge or repair the goods. If HighTec is neither ready nor able to either repair or replace the goods the Customer shall be entitled at the Customer’s sole discretion to claim for a reduction of price or the cancellation of the contract.
9. General Warranties and Exclusion Clauses for Software developed by HighTec
A. Software Warranty.
HighTec warrants for a period of twelve (12) months from the Effective Date of the applicable HighTec Product License Sales Order Form that the unmodified and in case of an online delivery error free transmitted Software obtained hereunder and paid by Customer will perform in substantial conformance with the technical specifications set forth in the Documentation; provided, however, that HighTec makes no warranty with respect to any such failure or incorrect result that may arise due to:
(i) the quality of the data sought to be processed with the Software;
(ii) the effects of other software not licensed by HighTec to Customer or developed by HighTec for Customer; or
(iii) the use of the Software in an operating environment or on a platform not specified by HighTec. Unless otherwise explicitly agreed upon, HighTec does not provide any warranty for third parties software, e.g. software components being subject of the GNU General Public License. HighTec does not assume any responsibility for any defects, damages or consequential damages which may occur in connection with the use of an illegal or not fully paid copy of the software.
B. Media Warranty.
HighTec warrants the CD-ROMs, DVD's, diskettes or other media on which the Software is provided to Customer to be free of defects in materials and workmanship under normal use for thirty (30) days after delivery.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
HighTec does not warrant that the Products will meet Customer’s requirements, that the Products will operate in the combinations which Customer may select for use, that the operation of the Products will be uninterrupted or error-free or that all Product errors will be corrected. To the extent Customer obtains any preproduction releases of Products, such Products are distributed ”as is” with no warranty of any kind.
D. Exclusive Remedies.
For any breach of the warranties contained in this Section, Customer’s exclusive remedy, and HighTec’s entire liability, shall be:
- For Software: At HighTec’s sole discretion, the correction of Software errors that cause breach of the warranty, replacement of such Software. In case HighTec should not be willing or able to cure software errors, Customer may at his sole discretion demand reduction or return of the fees paid to HighTec for the license of such Software.
- For Media: The replacement of defective media returned within thirty (30) days after delivery.
E. Limitation of Liability.
In no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages.
HighTec’s liability for damages hereunder shall in no event exceed the double amount of fees paid by Customer under this Agreement, and if such damages result from Customer’s use of the Product or services, such liability shall be limited to double the amount of fees paid for the relevant Product or services giving rise to the liability from the Effective Date of the applicable HighTec Product License Sales Order Form or the date of performance of the applicable services. This does not apply, if the damages were caused by HighTec gross negligently or intentionally.
The provisions of the Agreement between the Parties allocate the risks between HighTec and Customer. HighTec’s pricing reflects this allocation of risk and the limitation of liability specified herein.
10. Miscellaneous Clauses
HighTec reserves the right to improve or modify any of the products without prior notice, provided that such improvement or modification shall not affect the function of the product.
These Terms and Conditions supersede and invalidate all other commitment and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior the date hereof, and which shall become null and void from the date of the agreement is signed.
These Terms and Conditions shall not be assigned or transferred by either party except with the written consent of the other. Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.
In the event any provision of these Terms and Conditions is held to be invalid or unenforceable, the remaining provisions shall remain in full force.
The German language version of these terms shall be binding and shall govern their interpretation.
11. Choice of Law; Place of Jurisdiction
This agreement shall be governed by and construed in accordance with German law excluding the United Nations Convention on the international sales of goods.
The parties agree on Saarbrücken, Germany, as the exclusive place of jurisdiction. HighTec is entitled to sue the Customer at every other admissible venue.