 |  |  |  |
General Terms and Conditions of LuraTech Imaging GmbH
I. Validity of General Terms and Conditions of LuraTech Imaging GmbH
(1) These General Terms and Conditions are valid for all agreements concluded between LuraTech Imaging GmbH and the Client, as well as for all other arrangements made as part of this business relationship.
(2) In the event that the Client contests the following General Terms and Conditions, the Client must give LuraTech Imaging GmbH prior notice of this in writing.
II. Scope of products and services
(1) The mutual written statements are authoritative for determining the scope of the delivery of goods and provision of services. If there are no such statements, the confirmation of the order of LuraTech Imaging GmbH shall determine the scope of products and services or, in the event such a confirmation is not generated, the written order of the Client.
III. Conditions of payment and prices
(1) All invoices of LuraTech Imaging GmbH are payable net terms only within 10 days of date of invoice. Decisive is the date on which payment is received by LuraTech Imaging GmbH.
(2) Installation costs are not contained in the purchase price, unless another relevant written agreement has been made.
(3) All prices do not include the VAT required by law.
(4) In case of delay of payment, LuraTech Imaging GmbH is entitled to withhold further deliveries and services.
(5) In case of delay of payment, LuraTech Imaging GmbH is entitled to require payment of interest from the Client in the amount of 5% above the base interest rate beginning at the time of the delay of payment. LuraTech Imaging GmbH is at liberty to demonstrate greater damage.
IV. Delivery and shipment
(1) All offers are subject to change.
(2) All delivery dates named by LuraTech Imaging GmbH are non-binding delivery dates unless a delivery date is expressly agreed upon in writing as binding.
(3) Should the Client require changes or amendments to the order or should other conditions occur which make it impossible for LuraTech Imaging GmbH to adhere to the delivery date even though such circumstances are beyond the control of LuraTech Imaging GmbH, the delivery date shall be postponed by an appropriate period of time.
(4) If LuraTech Imaging GmbH is prevented from the timely performance of the agreement, e.g. due to disruptions in procurement, production or delivery at its own operations or those of its supplier, the general principles of law shall apply, provided that after the period of one month the Client can grant a grace period of six weeks.
(5) If non-compliance of a binding delivery date can be attributed demonstrably to mobilization, war, insurrection, strike or lockout or other circumstances beyond the control of LuraTech Imaging GmbH according to general principles of law, the delivery time shall be extended for an appropriate period of time.
(6) The Client can withdraw from the agreement if the Client grants LuraTech Imaging GmbH an appropriate grace period following expiration of the extended period. The withdrawal must be made in writing if LuraTech Imaging GmbH does not execute within the grace period.
(7) Should performance of agreement become entirely or partially impossible for LuraTech Imaging GmbH for the aforementioned reasons, it will be released from its obligation to deliver.
(8) Partial deliveries are permitted if they are economically profitable. They will be invoiced separately.
(9) If the delivery cannot be made for reasons beyond the control of the Client, LuraTech Imaging GmbH shall notify the Client of its readiness for shipment and shall store the products at the expense and risk of the Client. Upon declaring readiness for shipment and invoicing, the purchase price is due for payment within 10 days.
(10) The Client is basically responsible for costs for shipping and transportation insurance, whereby selection of the shipping route and shipping type lie within the discretion of LuraTech Imaging GmbH.
(11) The Client agrees to inspect the goods upon arrival and to report immediately in writing to LuraTech Imaging GmbH any recognizable transportation damages as well as any damages to the packaging. The same applies for concealed damages. Should LuraTech Imaging GmbH relinquish its claims over against the insurance company or the sub-supplier, the Client shall be liable for all costs resulting from this breach of warranty. The risk passes to the Client as soon as the goods depart from the plant or warehouse of LuraTech Imaging GmbH.
V. Setup and installation
(1) Setup and installation of the delivered objects are basically the obligation of the Client. In the event that LuraTech Imaging GmbH agreed to setup and installation in writing, the following shall apply.
(2) The Client agrees to provide the conditions required by LuraTech Imaging GmbH for setting up and installing the delivered objects. Should the Client not create such conditions in spite of LuraTech Imaging GmbH submitting written request and setting a two-week time limit to do so, LuraTech Imaging GmbH can withdraw from the agreement or require compensation due to non-performance.
(3) Following setup and installation, LuraTech Imaging GmbH will make the delivered objects operational. LuraTech Imaging GmbH does not need to execute a system performance test.
(4) The Client is responsible for executing the system performance test and has a deadline of two weeks following setup to do so. Should the Client not inform LuraTech Imaging GmbH in writing within this two-week period that the Client's performance test has yielded defects, the object delivered by LuraTech Imaging GmbH will be considered to be free of defects as of the time at which the test phase was concluded.
(5) The risk passes to the Client at the time the goods are delivered.
VI. Limitations on liability
(1) LuraTech Imaging GmbH assumes unlimited liability for damages resulting from intentional or grossly negligent failure to comply with its obligations. LuraTech Imaging GmbH also assumes unlimited reliability regardless of the degree of negligence for damages incurred from injury to life, body and health as well as damages unrelated to negligence arising out of the assumption of a guarantee. A guarantee exists only if it has been declared by LuraTech Imaging GmbH for a particular case in writing.
(2) LuraTech Imaging GmbH is liable at most for damages caused by a limited degree of negligence only in cases in which basic obligations are violated that were decisive for the conclusion of the agreement of the Client and upon the compliance of which the Client relied. Liability in this case is limited to predictable damages that are typical for an agreement; liability for unrealized profit and consequential damages caused by a defect, savings that failed to materialize or mediate and / or consequential damages is excluded.
(3) LuraTech Imaging GmbH is not liable for the replacement of data unless it can be made liable because its destruction of data is considered grossly negligent or intentional. Through appropriate, state-of-the-art security measures, the Client must ensure that these data can be restored with a justifiable amount of effort.
(4) The limitations on liability are not applicable for damages based on intention, gross negligence or the absence of warranties.
VII. Software license
(1) The acquired single user license permits the Client use of one copy of the software on a single computer under the condition that the software is only being used on a single computer at any given time. The use of software means that the software is either loaded in temporary storage (e.g., RAM) of a computer or is loaded on permanent storage (e.g., hard disk, CD-ROM).
(2) Having acquired multiple licenses, the Client may have only as many copies in use as the number of licenses that were acquired.
(3) The Client is permitted to create a copy of the software for backup purposes.
(4) The single user license is granted for an unlimited period of time. The license automatically becomes invalid without the need for termination if the Client violates any provision of these General Terms and Conditions. In the case of termination, the Client agrees to destroy the software as well as copies of the software.
VIII. Copyright, prohibition of competition, indication of references
(1) The software is protected by copyright. LuraTech Imaging GmbH or the grantor of the license is entitled to the rights resulting from this copyright. The software contains material that is protected by copyright as well as trade secrets to the safeguarding of which the Client is obligated. It is prohibited to decompile, reassemble or in any other way convert the software into a generally readable form, as well as to modify, customize, translate, rent, lease, lend or create software, parts of software, or products derived from it.
(2) Copyright includes in particular the program code, documentation, appearance, structure and organization of the program files, program names, logos and other representational forms within the software. The duplication, use, transmission, modification or reproduction of the contents of the software without explicit prior consent is prohibited.
(3) The handbook, as well as other documents belonging to the software, are protected by copyright. Any duplication, modification or transmission of this written material is prohibited and will be prosecuted under civil and criminal law.
(4) In the case of permitted duplication or transmission, the Client will take on all alphanumeric codes, trademarks and copyright statements of the original without change and will maintain records on the location of the copies. LuraTech Imaging GmbH can view them at any time upon request. All copies are subject to the use restrictions that are regulated above.
(5) The Client agrees not to use the product for the creation of competing products or for supplying competitors.
(6) The Client agrees that LuraTech Imaging GmbH, in consideration of data protection and the maintenance of secrecy to be protected in any event by LuraTech Imaging GmbH, is also authorized to provide services and to designate the Client by name as reference project on advertising material, the Internet site, etc.
IX. Software
(1) LuraTech Imaging GmbH ensures for a period of one year after the day of delivery, that software delivered by LuraTech Imaging GmbH is essentially free of material and manufacturing defects and essentially fulfils the functions in the product handbook to the extent they were included in the content of the agreement. The warranty is limited to these products and services.
(2) The Client is aware that based on the state of technology, errors in programs cannot be excluded.
(3) In the case of a justified lodging of a complaint, LuraTech Imaging GmbH reserves the right to carry out a total of three subsequent improvements or in case of the final failure of subsequent improvements to concede the Client the right to conversion or reduction in price. The right of withdrawal exists only for the purchase agreement for which the defect occurs, even if multiple agreements are combined into one document.
(4) The Client has a right to withdrawal or reduction in price if a program error should prove to be substantial and essential for the overall performance picture, and the error cannot be resolved by other software options.
(5) LuraTech Imaging GmbH offers a warranty up to the level of the interface for a software product which the Client has expanded across interfaces that have been released for this purpose.
(6) Program errors are considered to be notified if they have been reported in writing and were specified and documented in such a way that the actual error can be checked. If the program errors claimed by the Client do not exist, the Client must make payment for the costs associated with checking the errors and defects that were claimed, based on the accounting rates of LuraTech Imaging GmbH.
(7) A warranty exceeding these conditions is excluded.
(8) LuraTech Imaging GmbH reserves the right to have changes made to the programs even following delivery which improve the performance of the program and do not impair the rest of the software.
X. Warranty, statute of limitations
(1) LuraTech Imaging GmbH guarantees that the goods have the properties indicated in the agreement and do not have defects that cancel out or reduce the value or suitability for normal use or the kind of use assumed in the agreement. A copyrighted reduction in value or suitability is not considered.
(2) The warranty does not include the removal of errors that occur as a result of normal wear and tear, outside influences, or operational errors.
(3) The warranty period is for one year and begins with the day of delivery.
(4) The Client must immediately report defects occurring during the warranty period to LuraTech Imaging GmbH.
(5) The warranty is not applicable to the extent that the Client without approval of LuraTech makes customizing changes or has such changes made by third parties to programs, devices, elements or optional features, unless the Client can completely document the fact that the defects in question have neither completely nor partially been caused by such changes and that the removal of the defects is not being impeded by the change.
(6) If LuraTech Imaging GmbH provides products or services not contained in the purchase agreement at the Client's request, such products and services are not subject to this warranty. They will be provided and invoiced under the conditions and at the prices valid at LuraTech Imaging GmbH.
XI. Reservation of title
(1) The delivered goods remain in main and minor points the property of LuraTech Imaging GmbH until complete payment is made of all demands of LuraTech Imaging GmbH resulting from the business relationship with the Client.
(2) The objects included in the delivery for test purposes (hardware, software together with medium, documentation) remain the property of LuraTech Imaging GmbH and may not be utilized by the Client for private use.
(3) The Client agrees to properly insure the items listed under the Reservation of title of LuraTech Imaging GmbH (i.e., theft, fire, water and low-voltage current) and to provide LuraTech Imaging GmbH with such an insurance upon request.
(4) In case of damages, the insurance claim of the Client is considered to be transferred to LuraTech Imaging GmbH. The Client is not authorized to have access to the items mentioned under Reservation of title.
(5) In the case of seizures, the Client must inform LuraTech Imaging GmbH immediately in writing and must notify third parties of the reservation of title of LuraTech Imaging GmbH in suitable form. In the event the Client should nonetheless sell the delivered objects and LuraTech Imaging GmbH give its approval for this, the Client relinquishes to LuraTech Imaging GmbH all claims against his purchasers upon conclusion of the agreement. The Client agrees to provide LuraTech Imaging GmbH with all information required to validate these rights and to perform the required cooperative actions.
XII. Contractual penalty
(1) If the Client violates an omission obligation, for example, to refrain from copyright infringements, for each violation a contractual penalty shall become due in the amount of EURO 5,000.00 for immediate payment, in case of long-term infringements every seven days, without the need for a warning.
(2) Payment of the contractual penalty does not release the Client from performance of the agreement. LuraTech Imaging GmbH is also at liberty to request compensation for damages.
XIII. Export permits
(1) The delivered object is intended for general use by the Client in Germany. The export of delivered objects and documents can be subject to authorization. Prior to transmission or export, the Client must obtain the necessary export permits. LuraTech Imaging GmbH is not liable for missing permits if the product is exported.
XIV. Non-Disclosure
(1) LuraTech Imaging GmbH and the Client are mutually agreed to maintain secrecy with respect to all business and trade secrets of the other party and not shared with third parties, or to utilize them in any way.
(2) The Client may use documents, drawings, data and other information which the Client receives based on the business relationship only for the respective contractual purpose.
XV. Miscellaneous
(1) The provisions of these General Terms and Conditions represent individual regulations, respectively. To the extent they should be or become entirely or partially invalid, this shall not affect the validity of the remaining provisions.
(2) Collateral agreements must be in writing. Contractual amendments only become effective if they are confirmed in writing.
(3) The Client may transfer the rights and obligations to third parties - in particular, assignments and pledges - from the agreement only with the prior written consent of LuraTech Imaging GmbH. This consent may be denied only for good cause. Offsetting against the demanded purchase price is possible for the Client only with approved or legally valid counterclaims.
(4) Place of jurisdiction is the headquarters of LuraTech Imaging GmbH in the Federal Republic of Germany, Berlin. This agreement is governed by German law. This also applies for clients located abroad for whom the U.N. Sales Law, which was included in German law, would otherwise be applicable.
