TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF DAWIN GMBH
1. Scope of application
1.1 These General Terms and Conditions of Business (hereinafter called the “Terms and Conditions”) apply to all contractual relationships entered into between dawin® gmbh (hereinafter called “dawin®”) and its customers, clients and business partners (hereinafter called “Customers”).
1.2 Business relations between dawin® and its Customers shall be governed by these Terms and Conditions only. Terms and conditions of a Customer which deviate from these Terms and Conditions shall not apply even if they are not expressly rejected in writing by dawin®. Any deviating agreements which may be made in an individual case shall only be valid if agreed in writing. This shall apply also and in particular to any guarantee or any undertaking to meet a particular date or deadline. In this case, these Terms and Conditions shall only apply supplementarily.
1.3 By placing an order, concluding a contract or availing itself of the services of dawin®, the Customer agrees to be bound by these Terms and Conditions. Where the Customer is an entrepreneur, a business person, a legal entity organised under public law or a separate asset fund organised under public law, these Terms and Conditions shall also apply to all future business relationships, even if no additional express reference is made to them.
1.4 dawin® shall have the right, after giving reasonable advance notice, to amend or alter these Terms and Conditions, the respective performance description and the prices. The changes will be notified to the Customer in writing. Where such changes operate to the detriment of the Customer, the Customer shall be entitled to a special right of termination at the time of the change becoming effective. dawin® will inform the Customer of the special right of termination in the notice of change and draw attention to the fact that the change will become effective unless the Customer makes use of the special right of termination within the period of time allowed.
1.5 These General Terms and Conditions have been prepared in the German language. The German version shall be definitive and binding, even where an English translation has been produced.
2. Conclusion of contract
2.1 In cases other than those where a contract is concluded between dawin® and the Customer by being signed by both parties, a contract shall come into existence upon the Customer placing an order with dawin® if the Customer has received an individual offer from dawin® beforehand and an order for the performance concerned is placed by the Customer within the period stipulated in this firm offer or, if no such period is stipulated, within not more than fourteen (14) days from issue of the offer by dawin®. If no individual offer was submitted to the Customer by dawin®, a contract shall only come into existence if dawin® confirms the conclusion of a contract in writing. The Customer shall have a duty to read dawin®’s order confirmation carefully and to immediately notify dawin® of any deviations from the order. Otherwise, the content of the order confirmation shall be deemed authoritative for the contract.
2.2 Information contained in electronic media, brochures or advertising matter or information not submitted in writing by employees shall merely be deemed an invitation to submit an offer.
2.3 Dates or periods of time for the start of provision of performance shall only be deemed binding if they have been expressly confirmed as such by dawin® in writing and the Customer has fulfilled all the requirements for enabling performance by dawin® which lie within the Customer’s sphere of influence.
2.4 Given the fact that dawin® is constantly improving its products and services and developing them further, dawin® reserves the right to change its products and services or to replace them by products or services of at least equivalent quality provided such changes are not of a fundamental nature, the contractually intended purpose is only insignificantly curtailed and the interests of the Customer are not unreasonably impaired. The Client’s consent shall be required for any further-reaching material contractual alterations.
3. Software licence agreement
Where the Customer has placed an order to be provided with the use of software, the following provisions shall apply:
3.1 On providing the Customer with the use of software, dawin® shall provide the Customer with a copy of the software and an appurtenant manual, which is intended exclusively for the Customer’s own use. The Customer will be granted an ordinary, non-exclusive and non-transferrable right of limited term to use the contractually agreed software, and any future additions thereto, in accordance with the provisions of these Terms and Conditions and for the purpose for which it is intended. If purchase of the software by the Customer is agreed, the software will be supplied to and the right of title transferred to the Customer.
3.2 Unless agreed otherwise, installation, maintenance, service, support, individual adjustments and training are not included in the contract.
3.3 dawin® shall remain the holder of all copyright, including also copyright to all records and documents. Subject to § 69e UrhG [Section 69e of the German Copyright Act], the software supplied by dawin® may not be reverse-engineered, decompiled or disassembled.
3.4 At the end of the term of the contract or upon the contract being reversed, the Customer shall have a duty to surrender the software provided, including all copies thereof, the materials, the user manual, the data carriers and all other documents without delay or, if the copies are on the hard drive, to delete them. The Customer must confirm to dawin® in writing that no further copies exist.
3.5 The Customer may use a copy of the software only on the number of computers specified in the licence acquired from dawin® (singe- or multiple-user version). “Use” shall be understood as meaning both storage of the software on a temporary storage medium (RAM) and in a permanent memory (in particular on a hard drive, a removable hard disc, a USB stick or a CD-ROM). Installation of the software on a dedicated network server shall not constitute use for the intended purpose if such installation has the sole purpose of distributing the software to computers connected to the network. The Customer may make a copy at its own expense for backup and archiving purposes or as a spare or for troubleshooting purposes. If originals bear a copyright notice, the notice must also be applied to copies. Reproduction of records or documents by the Customer is prohibited.
3.6 dawin® or a third party acting on dawin®‘s behalf shall have the right to perform system measurements on the Customer’s systems in order to determine the number of users.
3.7 Except with the prior written consent of dawin®, any form of commercialisation, in particular the leasing or hire and dissemination in physical or non-physical form, or use of the software by and for third parties (e.g. outsourcing, computing centre activities, application service providing) is not permitted.
4. Hardware purchase contract
If and insofar as the Customer purchases hardware from dawin®, the following provisions shall apply:
4.1 Unless agreed otherwise, installation of the hardware is not included in the contract and must therefore by done by the Customer. By “installation”, the parties mean putting the hardware into a state of technical operating readiness and uploading the software and data of the Customer onto the hardware as well as the installation of the driver software or firmware necessary for the software to function.
4.2 The Customer shall dispose of the hardware at its own expense as soon as it no longer needs it.
5. System support
If and insofar as the Customer has agreed system support services with dawin®, the following provisions shall apply:
5.1 The system support will be provided by dawin® or third parties acting on dawin®’s behalf during dawin®’s business hours.
5.2 The system support will be billed on an hourly basis, plus outward and return travel. The rates shown in dawin®’s price list in the version in force at any time shall apply. Any spare parts and/or new materials supplied within the scope of the system support shall be subject to additional charge.
5.3 Before the performance of support services, the Customer shall remove all components not installed by dawin® and shall make backup copies of data files and programs. Data backup does not fall within dawin®‘s sphere of responsibility. dawin® is entitled to assume that all data with which it comes into contact has been backed up. Should the Customer draw attention to the fact that the data has not been backed up, dawin® may refrain from performing the support services until data backup has been completed.
6.1 Training shall take place on dawin®‘s premises.
6.2 If the Customer cancels a training date or fails to attend, the full price will be charged unless the cancellation was made in writing at least 14 days before the date scheduled for the training. If the cancellation is made at least 14 days before the date scheduled for the training, dawin® will charge a fee for expenses of 20% of the end price. The Customer is at liberty to show that dawin® suffered no loss or only a smaller loss than the lump-sum charge.
7. Term and termination
7.1 Where the parties have concluded a contract that is subject to rental law (such as a software use agreement), the minimum term of the contract shall be six (6) months from the services being made available by dawin®. Any such contractual relationship can be terminated by either party at the end of the term of the contract with three (3) weeks’ prior notice. If no change is made, the contract shall be renewed for successive terms of six (6) months.
7.2 In order to be valid, notice of termination must be given in writing.
7.3 The foregoing shall be without prejudice to the right to give notice with immediate effect for cause. Cause entitling dawin® to give notice with immediate effect shall exist, in particular, in any case where
• the Customer falls into arrears with payment and fails to effect payment despite being sent a further payment reminder with the allowance of specified additional time;
• a petition is filed for the opening of insolvency proceedings against the Customer;
• proceedings of the aforesaid kind are refused or discontinued due to lack of funds to cover the costs of the proceedings;
• the Customer has voluntarily or involuntarily instituted proceedings for its dissolution, liquidation or winding-up;
• the Customer has ceased trading or is insolvent.
7.4 Upon termination of contract, the Customer has a duty to send back or surrender to dawin® or the logistics partner named by dawin®, in perfect condition within ten (10) working days, all technical equipment provided by dawin® to which the Customer has not acquired title.
8. Prices, terms of payment and delay
8.1 The price to be paid by the Customer shall be the amount indicated in
1. the individual contractual agreement,
2. the individual written offer from dawin®,
3. the order confirmation by dawin®,
4. the current price list of dawin®,
5. the invoice of dawin®.
In the event that several prices are agreed or stated, the prices shall apply in the order shown.
8.2 Unless indicated otherwise, all prices are subject to the addition of value added tax at the statutory rate in force at the time.
8.3 Invoice amounts are due and payable immediately after receipt of the invoice. Invoices issued to registered traders shall be deemed to have been received three (3) days after the date of issue unless the addressee is able to furnish concrete indications that the invoice was never received at all or was received only later. dawin® may also send invoices by email.
8.4 Contractually agreed services for which monthly prices have been agreed and which start in the course of a month will be charged proportionally for the remainder of that month. Thereafter, the prices must be paid monthly in advance.
8.5 A payment shall only be deemed made if it has been made in cash or, if not made in cash, when the amount has been unconditionally credited to a business account of dawin®. Bills or cheques will only be accepted by special agreement and only in token of payment and shall only count as actual payment when they have been honoured and the amount has been unconditionally credited to dawin®’s account. Discounting and collection fees shall be borne by the Customer. dawin® does not assume any liability for presentation in good time.
8.6 dawin® has the right to demand payments on account.
8.7 In the case of a rental or service agreement, the Customer shall be deemed to be in default
• if it fails to pay the prices or a not insignificant part of the prices for two successive months or
• if, in any period of time extending for more than two months, a sum is not paid that is equivalent to the price of two months.
In any such case, dawin® can terminate the contractual relationship without observing a period of notice and demand compensation in a lump-sum amount which is due and payable immediately and is equivalent to half the prices which would normally be payable altogether up to the end of the regular term of the contract, though not more than the monthly prices for three years.
8.8 If the Customer fails to take receipt of goods, dawin® may call upon it to do so, allowing a reasonable period of time for that purpose. On the period expiring without the Customer having taken receipt, dawin® shall have the right – without prejudice to its statutory rights for default – to repudiate the contract and to claim compensation in lieu of performance in an amount of 20% of the purchase price, the said compensation to be paid in a lump-sum amount which is due and payable immediately, together with refund of costs for any performance already provided.
8.9 The amount of compensation claimed shall be higher if dawin® is able to furnish proof of having suffered greater loss. It shall be lower or not payable at all if the Customer is able to prove that the loss was significantly lower or no loss at all has been incurred. dawin® reserves the right to make further legal claims.
9. Right to withhold payment, offset, assignment
9.1 Offset may only be made or a right to withhold payment only exercised in respect of claims which are undisputed or have been finally and absolutely established by law. Moreover, Customers may only assert rights to withhold payment where the counterclaim is based on the same contractual relationship.
9.2 In the event of any delay in payment, dawin® reserves the right to withhold goods and services until payment of the amount in question has been made in full, to charge interest on arrears at the statutory rate and to demand compensation for loss or damage caused by the delay. dawin® is further entitled to repudiate the contract or to give notice of its termination.
9.3 The Customer is not entitled to assign its claims against dawin®. The provisions of § 354a HGB [German Commercial Code] shall thereby remain unaffected.
10.1 dawin® will deliver the contractual item to the delivery address stated by the Customer. dawin® will dispatch hardware on behalf of the Customer and by a transport service of dawin®’s choice.
10.2 The Customer shall bear the costs of delivery and shipment. This shall also apply in cases where dawin® has the contractual item delivered by one of its employees. Transport insurance will be taken out only if specifically agreed.
10.3 The risk shall pass to the Customer as soon as the contractual item has been handed by dawin® into the custody of the parcel or post service or other carrier or has been dispatched online in the case of electronic delivery.
10.4 Any firm period for delivery which has been agreed shall begin on the date of conclusion of the contract. The delivery period shall be deemed met if, by the time it expires, the contractual item has been shipped or the Customer has been notified of its readiness for delivery. Delivery times which are agreed firm can only be met if the Customer has duly fulfilled its own obligations (e.g. making advance payments in good time, supplying in full any documents to be provided by it, etc.). If amendments or additions are agreed to the contract after it has already been concluded, the delivery time shall be reasonably extended.
10.5 dawin® shall be deemed in delay with delivery only on receipt of a written reminder, which may be issued not earlier than two weeks after expiry of a delivery period. If dawin® is in delay with delivery, the Customer shall grant dawin® the right to provide a substitute device. The Customer shall, in response to dawin®‘s inquiry, inform dawin® within a reasonable time whether it wishes to repudiate the contract and/or claim compensation in lieu of performance on account of the delay or whether it insists on delivery. The Customer can repudiate the contract only if dawin® is responsible for the delay in delivery.
10.6 If shipment of the goods is delayed on the Customer’s request, dawin® shall have the right to charge the Customer for the costs incurred through storage.
11.1 The delivery items supplied may incorporate technologies which are subject to export control regulations of the Federal Republic of Germany and export control regulations of the countries to which or in which the contractual items are intended to be delivered or used. The Customer has a duty to comply with such export regulations and to carry out the procedure to be followed in connection with cross-border deliveries of goods and services on its own responsibility. In the case of any breach of export regulations, dawin® shall have the right to repudiate or terminate the contract.
11.2 In the case of cross-border deliveries of goods or services, all customs duties, fees and other levies shall be paid by the Customer.
12. Reservation of title
12.1 In the case of purchase contracts, title to the contractual item shall pass to the Customer only on payment of the purchase price in full (reservation of title).
12.2 Before title has passed to the Customer, the latter is not entitled to pledge or assign the contractual item as security or to process or transform it in any way.
13. Claims for quality defects
13.1 The characteristics of the contractual items are described exhaustively in the individual offer, the order confirmation and/or the performance description. Where characteristics have been publicly expressed by dawin® or its assistants, in particular in media and advertising, such characteristics shall only be deemed to be part of the agreed quality if confirmed as such in writing to the Customer. The same shall also apply to characteristics which can be expected on the strength of commercial custom.
13.2 Defects of quality shall, in particular, not include
• defects which are due to improper operation or faulty installation;
• defects which are due to interference with the contractual item by the Customer or an unauthorised third party;
• use of the contractual item for other than the customary use;
• functioning within valid industrial standards;
• performance/services provided on the Customer’s request.
13.3 Before any work is performed to remedy the defects or any replacement delivery is made, the Customer shall remove all components not fitted by dawin® and make backup copies of files and programs. Data backup shall not fall within dawin®’s scope of responsibility.
13.4 Should it emerge that no defect in fact existed or that the defect was caused by the Customer, dawin® shall be entitled to claim reimbursement from the Customer of all costs incurred by dawin® in connection with remedying the defect or effecting a replacement delivery. dawin® shall, in particular, have the right to charge for travel expenses and for the work of its employees on an hourly basis. The prices stated in the price list of dawin® in force at the time shall apply.
13.5 Where the Customer is not a consumer within the definition contained in § 13 BGB [German Civil Code], the following modifications to the statutory provisions shall apply:
13.5.1 Where the contractual item already had a defect at the time of the passage of risk and the defect impairs use for the contractually intended purpose to a more than insignificant degree, dawin® shall have the right, at dawin®’s own choice and in deviation from Section 439 BGB, to either remedy the defect or to supply a replacement. To this end, dawin® shall have the right to examine the goods on the Customer’s own premises. dawin® shall likewise have the right, for the purpose of identifying the fault, to take the goods away with it and, if need be, to uninstall the goods for this purpose.
13.5.2 Defects must be notified in writing or by email within the period specified in § 377 HGB; the notification must include or be accompanied by a detailed description of the symptoms of the fault. This shall also apply in the case of rental contracts and contracts for work and services.
13.5.3 Claims for defects shall lapse twelve (12) months after delivery. This shall not apply if dawin® has concealed the defect with intent to deceive.
14.1 dawin® shall have unlimited liability for property or pecuniary damage caused with wilful intent or through gross negligence, for damage or injury to life, limb or health caused with wilful intent or through gross or ordinary negligence, and in cases where a guarantee has been given or a procurement risk assumed expressly and in writing.
14.2 If and insofar as the foregoing Section 14.1 is not applicable, dawin® may be held liable for minor negligence in the performance of its duties only in the case of duties which are material to the contract, without which the fulfilment of the contract could not be counted as having been properly implemented at all, duties a breach of which would put achievement of the purpose of the contract in jeopardy and on the fulfilment of which the Customer can normally rely (so-called “cardinal duties”). dawin®’s liability in any such cases shall, however, be limited to loss or damage of a kind foreseeable at the time of conclusion of the contract and typical for the kind of contract concerned, and limited in amount to a sum of €5,000.00 per claim. In the case of several claims in any one contractual year, liability shall be limited to €15,000.00 in total.
14.3 dawin® may be held liable for loss of or damage to data and programs and for their recovery and restoration only insofar as such loss could not have been avoided through appropriate precautionary measures on the part of the Customer, in particular through the daily production of backup copies of all data and programs, and only up to the amount of the recovery and restoration costs typically arising.
14.4 Strict, no-fault liability of dawin® for defects which already existed at the time of conclusion of contract (§ 536a BGB) is excluded. This shall be without prejudice to the provisions relating to liability contained in Sections 13.1 to 13.3 above.
14.5 Insofar as liability is effectively excluded or limited, this exclusion or limitation shall also apply to the personal liability of the employees, other co-workers, governing and managing bodies, representatives and vicarious agents of dawin®.
14.6 All other rights and claims, regardless of the legal grounds on which they are asserted, are excluded. This shall also apply to compensation for indirect loss or damage. It shall not apply to claims under the German Product Liability Act for defects after a guarantee for the quality of the goods has been given or in the case of faults which have been concealed with the intent to deceive or in the case of damage or injury to health, life or limb.
15. Force majeure
15.1 dawin® may not be held liable for any default (e.g. delay in delivery) caused by events of a force majeure nature.
15.2 Events of a force majeure nature shall include all unforeseeable and serious events for which dawin® cannot be held responsible, in particular strikes, lawful labour dispute measures within the company, war and other military conflicts, riots, blockades, civil commotion, terrorist attacks, forces of nature, fire, sabotage assaults by third parties (e.g. through spam mail), decisions of official bodies, e.g. the withdrawal of a permit through no fault of dawin®, and of governments, e.g. changes to laws (such as import and export restrictions).
15.3 In important cases, dawin® will inform the Customer of the start and end of such impediments as soon as possible.
16. Intellectual property rights
16.1 Should any claims be made against the Customer on grounds of infringement of others’ rights, dawin® will indemnify the Customer against such claims, in which the right to adopt appropriate defensive measures, to conduct negotiations for an amicable settlement or to pursue legal action shall be exclusively reserved to dawin® or its supplier. In any such case, the Customer may recognise the claims asserted against it only with the written consent of dawin®. The Customer has a duty to support dawin® in the conduct of legal disputes and negotiations for an amicable settlement.
The Customer and dawin® shall immediately inform each other in writing of any claims asserted against either of them on grounds of infringement of rights of third parties.
If the use of software for the contractually intended purpose is impeded by rights of third parties, dawin® shall have the right, at its own choice and expense and in a scope which is reasonable for the Customer, either to acquire licences or to alter the software or to replace all or part of the software by other equivalent software.
The foregoing shall not apply if the Customer has made any changes to the contractual item or has combined the contractual item with other products.
16.2 dawin® shall be indemnified by the Customer against all claims of third parties which are made on grounds of unlawful use of the software and the associated services by the Customer or with the Customer’s approval or which otherwise arise in connection with disputes associated with use of the software and relating to data protection, copyright or other issues.
If the Customer is or becomes aware that such infringement is likely, it has a duty to inform dawin® accordingly without delay.
17. Data protection
In the use of personal data, dawin® will comply with the relevant provisions of data protection law in force in the Federal Republic of Germany.
dawin® and any of its Customers will treat all trade and business secrets of the other party which are indicated or are manifestly recognisable as such and which come to their knowledge in the course of the business relationship between them as confidential, including after the end of the business relationship.
19. Consumers’ right of revocation
Consumers can revoke their declaration of will aimed at the conclusion of a distance contract within a period of two weeks from receipt of the goods; the revocation must be made either in text form or by return of the goods, and no reasons for revocation need be given. The deadline for revocation is deemed met provided the notice of revocation or the goods are dispatched within the time period allowed. The revocation must be addressed to dawin® gmbh, Belgische Allee 50, 53842 Troisdorf, Germany. Detailed information as required by § 312c BGB will be sent to consumers separately in written form.
20. Applicable law, legal venue
All claims arising from or in connection with the contractual relationship shall be governed exclusively by German law.
Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Where the Customer is a registered trader, the exclusive legal venue for all disputes arising in connection with a business relationship with dawin® shall be Bonn.
21. Written form
Amendments or additions to these Terms and Conditions shall only be valid if agreed in writing. The same shall also apply to any waiver of this requirement of the written form itself. The “written form” within the meaning of these Terms and Conditions – and also if required elsewhere – requires that a document be personally signed and that the signed document be either sent in the original or transmitted by telefax.
22. Salvation clause and supplementary agreements
Should any of the provisions of these Terms and Conditions be wholly or partially ineffective, this shall have no effect on the effectiveness of any of the other parts of the contract or the agreement as a whole. Supplementary agreements or deviations from these Terms and Conditions shall only be effective if expressly agreed in writing.