General Business Terms
b) Legally relevant declarations and notifications which are to be submitted by the contractual partner to Silicon Software after conclusion of the contract (e.g. deadlines, defect reports, notice of rescission or reduction of price) must be in writing in order to be valid. Notices regarding the validity of statutory provisions are for the sake of clarity only. The statutory provisions will apply even without such notices, provided that they are not directly amended or expressly excluded in the present GBT.
c) Silicon Software has the right to assign claims from its business relations.
b) An order by the contractual partner will be regarded as a binding contractual offer. Unless otherwise stated in the order Silicon Software has the right to accept this contractual offer within 10 days after receipt.
c) Acceptance can be given either in writing (e.g. as an order confirmation, also per fax or e-mail) or through delivery of the goods to the contractual partner. Silicon Software reserves the right to make the conclusion of the contract dependent on an advance payment, down payment or deposit. Silicon Software further has the right to demand advance payment or deposits even for orders that have already been confirmed where due to the customer’s previous payment behavior or the exceptionally great value of the order in relation to the previous orders from Silicon Software it is doubtful whether the customer will pay the purchase price in accordance with the agreements concluded with Silicon Software.
d) Performance data, delivery guarantees, special agreements and amendments, in particular with regard to the delivery volume will only be binding if agreed on in writing. With regard to changes due to technical advances Silicon Software has the right to replace specifications or items ordered prior to delivery provided this does not entail any significant change of function. Employees and workers at Silicon Software are not authorized to conclude oral ancillary agreements or make verbal promises.
b) Where binding delivery deadlines cannot be complied with for reasons not attributable to Silicon Software (including, but not limited to force majeure such as strike, lockout, official orders, customs formalities, non-supply from its own suppliers for which it is not responsible, also non-supply of the suppliers or sub-suppliers) Silicon Software will inform the contractual partner of this immediately and at the same time stipulate the anticipated new delivery date. Where the service is still not provided by the new delivery deadline Silicon Software will have the right to fully or partially rescind the contract; any payment by the contractual partner already effected will be reimbursed immediately. The non-availability of a good or service applies in this sense particularly when its own suppliers fail to deliver, if a hedging transaction was concluded; in this regard neither Silicon Software nor the supplier is at fault or in the individual case, Silicon Software is not under any procurement obligation.
c) Delayed delivery by Silicon Software will be determined according to the statutory provisions. In every case, however, a reminder by the contractual partner will be required. Where Silicon Software is in arrears with delivery the contractual partner may demand a lump-sum compensation amount for the delay. The lump-sum compensation amount is 0.3% of the net price (delivery value) for each full calendar week of delay, but at maximum 3% of the delivery value of the delayed goods. Silicon Software has the right to prove that no damage or significantly less damage than the above lump-sum amount was incurred to the purchaser.
d) The purchaser’s rights as set out in Item 16 of the present GBT (liability restrictions) and the statutory rights of Silicon Software, in particular upon exclusion of a performance duty (e.g. due to infeasibility or an unacceptable service and/or make-up performance) will remain unaffected.
e) Silicon Software has the right to make partial deliveries or render a part of the services at any time.
f) Where the contractual partner is in arrears with acceptance or the shipment or delivery is postponed at the contractual partner’s request Silicon Software will have the right to demand compensation of the damage incurred of up to 1% of the invoice amount per month unless greater costs are proven. Proof of greater damage and statutory claims by Silicon Software (in particular compensation of extra expenses, adequate compensation termination) will remain unaffected; however, the lump-sum amount is to be deducted from any further monetary claims. The contractual partner may prove that no or significantly less damage than the aforementioned lumpsum amount was incurred to Silicon Software. Moreover, the risk of accidental deterioration and of accidental loss will pass to the contractual partner. Where long-term storage is unacceptable to Silicon Software, Silicon Software may rescind the contract after lapse of an adequate period. Any damage incurred at this date is to be compensated, as is any damage incurred by the contractual partner’s rescission.
g) Where the contractual partner requests installation and kick-start of operation by Silicon Software this will require an express written agreement. In this case the contractual partner will bear any travel expenses, incidentals and work fees incurred.
b) In the case of mail order purchase (Item 4) the contractual partner will bear the transport costs ex warehouse and any transport insurance requested by the contractual partner. Any customs duties, fees, taxes and other public charges will be borne by the contractual partner. Transport packaging and all other packaging according to the Packaging Regulations may not be returned to Silicon Software, it will become the property of the purchaser; an exception to this are pallets.
c) The purchase price will be due within 21 days after issue of the invoice and delivery or resp. acceptance of the goods. Where a down payment was agreed on it will be due within 14 days after issue of the invoice. Consignments with a value of up to 600 EUR as well as first-time deliveries to new customers will be due COD or in advance. Where the advance payment or deposit is not effected after lapse of an adequate period of grace Silicon Software can rescind the contract. Silicon Software has the right to deduct payments from the contractual partner’s older debts first despite other terms stipulated by the contractual partner. The contractual partner will be informed of the type of set-off. Where costs and interest were already incurred Silicon Software will have the right to deduct the payments initially from the costs and subsequently from the interest and finally from the main payment. Payment will be regarded as having been effected where Silicon Software can dispose of the amount. In the case of checks and bills of exchange, payment will be regarded as effected after the check or bill of exchange has been successfully cashed. The acceptance of bills of exchange and cash will only be upon prior agreement and for the sake of payment. The costs of discount and collection will be borne by the contractual partner.
d) The contractual partner will not have a right of retention for the claims against Silicon Software The contractual partner can only set off with counterclaims that are uncontested or res judicata. The contractual partner can only assert a right of retention on the basis of a counterclaim where the payment claim by Silicon Software is recognized in wiring and the contractual partner’s counterclaim is based on the same contractual relationship.
e) Upon lapse of the aforementioned payment deadline the contractual partner will automatically be regarded as being in arrears with payment. Default interest at the valid statutory default interest rate is to be charged on the purchase price during the period of delay. Silicon Software reserves the right to claim further-reaching default compensation. The claim to commercial maturity interest (§ 353 HGB (Commercial Code)) against businessmen will remain unaffected. Silicon Software will charge the contractual partner 5 EUR for every necessary payment reminder.
f) Where after conclusion of the contract it is discernible that Silicon Software’s claim to the purchase price is jeopardized due to lack of performance by the contractual partner (e.g. through instatement of insolvency proceedings), Silicon Software will have the right to refuse payment in accordance with the statutory provisions and to rescind the contract, even after stipulation of a deadline (§ 321 BGB). In the case of the manufacture of non-fungible items (customized orders), Silicon Software may rescind the contract immediately; the statutory provisions regarding the expendability of the stipulation of the deadline will remain unaffected.
g) Silicon Software has the right to procure credit information (bank and financial information) on its contractual partners.
h) Silicon Software has the right to charge a minimum volume surcharge if necessary.
b) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The contractual partner must inform Silicon Software immediately in writing in the case of third party access to goods belonging to Silicon Software.
c) In the case of breach of contract by the contractual partner, in particular non-payment of the purchase price Silicon Software will have the right to rescind the contract in accordance with the statutory provisions and to demand release of the goods on the basis of retention of title. Where the contractual partner fails to pay the purchase price due Silicon Software may only assert these rights where an adequate period for payment was stipulated for the contractual partner or the stipulation of such a deadline is superfluous according to the statutory provisions.
d) The contractual partner has the right to resell and/or process the goods subject to retention of title in the regular course of business. In this case the following terms will apply supplementarily:
(1) The retention of title extends to the products created through processing, blending or combination of goods of Silicon Software at their full value; Silicon Software will be regarded as the producer. Where third party ownership rights are retained in the case of processing, blending or combination with third party goods Silicon Software will acquire a share on the basis of the ratio of the invoice values of the processed, blended or combined goods. In other respects, the same will apply to the product created as to the goods subject to retention of title.
(2) The contractual partner hereby assigns the total of all claims against third parties arising from the resale of the goods or products or the amount of any co-ownership of Silicon Software in accordance with the above paragraph to Silicon Software as security. Silicon Software accepts the assignment. The contractual partner’s duties specified in lit. b) will also apply even in consideration of the assigned claims.
(3) The contractual partner will be authorized to collect the claim alongside Silicon Software. Silicon Software will not collect the claim as long as the contractual partner meets his payment obligations toward Silicon Software, is not in arrears with payment, instatement of insolvency proceedings has not been filed for and there is no other defect of the performance. However, where there is such Silicon Software may demand that the contractual partner disclose the assigned debts and their debtors to Silicon Software, provide all necessary information for collection, issue the corresponding documents and inform the debtors (third parties) of the assignment.
(4) Where the realizable value of the securities exceeds Silicon Software’s claims by more than 10%, Silicon Software will release the securities of its own choice upon request by the contractual partner.
b) Silicon Software guarantees that the products are free of manufacturing and material defects upon passing of risk. The basis for liability due to defects will be the binding agreement concluded on the features of the goods. Where the features were not agreed on it is to be determined according to the statutory provisions whether there is a defect or not (§ 434 Sect. 1 Clause 2 and 3 BGB). However, Silicon Software will not assume any liability for public statements by the manufacturer or other third parties (e.g. advertising messages). The guarantee period for its own products is 24 months, for third party products according to the manufacturer’s guarantee period, but at least six months and will commence on the date of the passing of the risk. It is being assumed subject to refutation that in the case of a defect of one of its own products it already existed within six months after passing of risk. In the case of any defects arising later it will be incumbent on the contractual partner to prove that there was already a defect upon the passing of risk.
c) Where operational or maintenance instructions are not obeyed, alterations of the products are made, parts exchanged or materials used which do not comply with the original specifications or where the equipment is used, stored or handled improperly, opened or otherwise wrongly treated by the contractual partner or third parties the guarantee will not apply unless the contractual partner proves that the defect is not attributable to his own or third parties’ conduct. The contractual partner will immediately send the queried product or the defective part of the product for replacement or rectification to Silicon Software ex Mannheim, specifying the invoice number and invoice date. Upon request by the contractual partner for the guarantee to be performed at a location specified by him, working hours, incidentals and travel expenses are to be paid by the contractual partner at the standard rates of Silicon Software; the materials falling under the guarantee will not be charged. In this case Silicon Software has the right to make the performance dependent on the advance payment of an amount equivalent to the anticipated costs. The guarantee period for rectifications and replacements is 3 months but will run at least until expiration of the original guarantee period.
d) Liability for normal wear and tear is excluded.
e) Guarantee duties will only arise where the inspection and reporting duties set out in §§ 377, 381 HGB have been complied with. Regardless of this inspection and reporting duty the contractual partner must report visible defects (including wrong delivery or deficient delivery volume) in writing within two weeks; the timely sending of the report will be sufficient for compliance with the deadline. Where the contractual partner fails to perform the due inspection and/or defect report liability for the unreported defect is excluded. Defects which cannot be detected even upon careful inspection within this period are to be reported to Silicon Software in writing immediately after detection.
f) Silicon Software will only provide a guarantee to the extent that Silicon Software will be obligated to exchange all goods and parts proven to be defective or to rectify the defects. Where rectification within an adequate period fails the contractual partner may demand either reduction of the remuneration or rescission of the contract, as he chooses. However, there will be no right or rescission in the case of a minor defect.
g) Only the direct contractual partner will be entitled to guarantee claims and they are non-assignable.
h) Silicon Software has the right to make the make-up performance subject to the condition that the contractual partner pay the purchase price due. However, the contractual partner has the right to retain part of the purchase price in proportion to the defect.
k) Paragraphs a) h) regulate all guarantee duties by Silicon Software. In other respects, any guarantee is excluded. This will not apply to liability for the lack of guaranteed features, liability due to other breaches of contract and in the case of delayed performance or infeasibility attributable to Silicon Software. This does not exclude liability by Silicon Software in the case of gross negligence and willfulness. In the case of the breach of cardinal duties liability will be limited to typical and foreseeable damage. In every case liability will be limited to the insurance coverage of the manufacturer’s liability insurance policy of Silicon Software to the amount of EUR 5.000.000 for injury to persons, EUR 2.000.000 for damage to property and EUR 500.000 for financial loss.
b) There is no guarantee claim for software copies not supplied by Silicon Software or not in compliance with the license regulations. The same will apply to software operated on a computer system not having the minimum hardware configuration and software installations in accordance with the „Software Product Description“.
c) The contractual partner will grant Silicon Software the necessary time and opportunity for rectification of the defect in accordance with equitable judgment. Where the contractual partner refuses this, he will forfeit his guarantee claim.
d) There will be no guarantee claim where a defect is due to an alteration, the improper use or repair of the product by the contractual partner or a third party without the consent of Silicon Software or where the products were not installed, configured, operated and maintained in compliance with the relevant applicable statutory requirements and guidelines.
e) For products not self-manufactured Silicon Software will have the option of assigning guarantee claims against the retailer to the contractual partner and of referring him to the manufacturer with regard to the guarantee. In this case Silicon Software will only be liable for defects where the contractual partner took unsuccessful court action against the manufacturer on the basis of the guarantee claims assigned to him. Unless otherwise agreed, the guarantee period is 24 months as from delivery to the customer; six months for repairs and deliveries of replacement parts as well as for customer services performed after lapse of the original guarantee period, but at least for the duration of the original guarantee period unless other terms were expressly agreed on. The products are not exclusively designed, manufactured or designated for sale as parts, components or structural components for the planning, servicing or direct operation of aeronautical, nuclear and medical equipment or mass transport means. The contractual partner will bear the sole responsibility where products acquired by the contractual partner from Silicon Software are used for these purposes. The contractual partner will inform his customers of this upon resale of the products.
f) The guarantee period for the software produced by Silicon Software is normally 6 months after installation provided that the installation was carried out by Silicon Software or a partner of Silicon Software, otherwise as from delivery.
b) The contractual partner can observe, inspect or test the functioning of the software for determining the ideas and principles underlying the software if this is done through acts for uploading, displaying, running, transferring or storing the software to which he is contractually authorized; lit. a) will apply accordingly.
c) The contractual partner may otherwise not wholly or partially reproduce, process, translate, decompile or covert the software from the object code to the source code without the written consent of Silicon Software. This will not apply where such acts are indispensable for procuring the necessary information for the creation of the interoperability of an independently created computer program with other programs and where this information is not easily accessible to the customer. These acts must be limited to parts of the original program necessary for creation of interoperability; the information gained from them may not be used for any other purpose and may not be disclosed to third parties (cf. § 69e UrhG) (Copyright Law).
d). The contractual partner must ensure that the software and documentation are not accessible to third parties without the prior written consent of third parties. Copies may only be made for filing purposes, data back-up and defect detection; lit. a) and b) will apply accordingly. The provision of source programs will require a separate written agreement. Where the originals contain a copyright notice this notice must also be affixed to the copies by the customer.
e) Unless otherwise agreed the right of use will apply with an order confirmation and delivery of the software, documentation and subsequent addenda in every case.
f) The contractual partner will inform Silicon Software immediately and in writing should he become aware of the infringement of any intellectual property or copyrights by a product supplied by Silicon Software. Silicon Software exclusively will have the right to defend the contractual partner against claims by the owners of such rights or to opt for a workaround which does not infringe on third party rights or to take back the product and to refund the purchase price minus any amount for use conceded. The contractual partner will defend and indemnify Silicon Software against all claims by the owners of such rights incurred against Silicon Software by adherence to the contractual partner’s instructions by Silicon Software or alteration of the product or integration thereof into a system by the contractual partner.
g) Software and corresponding documentation provided by Silicon Software are only for the final user’s own use within the framework of a single, non-assignable license. Where originals bear a copyright notice, this copyright notice is to be affixed to any copies by the customer.
b) A software licensing agreement is formed where Silicon Software accepts the customer’s request for a software license in writing and this is confirmed in writing by its manufacturer. The software license is non-exclusive, may only be assigned with the express prior consent of Silicon Software and does not entitle to sub-licensing. The licensed software may only be operated on the central unit or system configuration whose serial number is specified in a license certificate issued by Silicon Software or third party manufacturers or upon application by the customer for issue of a license or in a license registration form filled out by the customer (“Licensed Unit”).Where the serial number is not documented in the intended way in the individual case the central unit or system configuration will be regarded as a “Licensed Unit” on which licensed software was initially operated. The software may only be copied, reproduced or transmitted to another system via a computer network to the extent that this is necessary for the operation of the Licensed Unit and for archiving and backup purposes. Where due to a defect of the equipment it is impossible to operate the software on the Licensed Unit the customer may temporarily run the software on another central unit or system configuration. Where the data carrier provided to the customer contains software which does not cover the license issued to the customer for technical reasons it may only be used on the basis of a special license.
c) The software may contain technical precautions preventing access to such non-licensed software. The contractual partner may only use the licensed software for operation on the Licensed Unit and only alter it in machine-readable form or combine it with other software. The licensed software will still be subject to the terms of Silicon Software or third party manufacturers as part of the adaption. The contractual partner will affix a copyright notice by the author on all complete or partial copies, adaptions or transmissions of the software that is equivalent to that on the original version of the licensed software.
d) The contractual partner is obligated to fill out and return the software license registration certificates provided to him to Silicon Software within thirty (30) days. Furthermore, he must keep records containing the licensed software including the respective version, serial number of the licensed unit, the location of the licensed software and the number of copies made. Upon request the contractual partner must present these copies to Silicon Software.
e) The software license will entitle exclusively to use of the respective licensed version.
b) During the term of the business relationship and beyond the contractual partner may not disclose information regarding business secrets of Silicon Software, especially regarding pricing, to third parties to the extent that such information must be treated confidential according to knowledgeable appraisal.
c) Unless otherwise expressly agreed in writing the information provided to Silicon Software by the contractual partner in connection with the orders is not regarded as confidential
b) Silicon Software will not be liable for indirect damage, in particular not for lost profit and third party claims. The contractual partner is explicitly advised that the data being processed by him must be adequately secured against loss. It is being expressly advised that Silicon Software will not assume any liability for loss of data and resulting damage unless there is a case of liability due to willfulness or gross negligence and the client ensured that the data could be reconstructed with reasonable effort by storing the data in machinereadable form.
b) The exclusive place of jurisdiction for any disputes arising directly or indirectly from the contract is Mannheim.
c) Should a term of the present GBT or a term within the framework of other agreements between Silicon Software and the contractual partner be/become invalid or should a legal gap not intended by the parties be revealed this will not affect the validity of the remaining terms or agreements. The parties will replace or supplement the invalid term or unintentional legal gap with a valid term which comes as close as possible to the economic purpose of the contract.
d) All declarations, amendments or addenda in connection with the contract between Silicon Software and the contractual partner must be in writing; this will also apply to a waiver of the writing requirement.
This General Business Terms of Silicon Software GmbH are executed in the German and English languages. In the event of any inconsistencies, the German version shall prevail.
Mannheim, September 2014