General Terms and Conditions of the eVision Systems GmbH
The products provided by eVision Systems GmbH are supplied solely on the basis of these General Terms and Conditions:
These Terms and Conditions apply to all agreements, deliveries and services of the eVision Systems GmbH (“eVision”) as a vendor in relation to its contractual partners unless other terms were mutually agreed in writing.
Any deviating terms and conditions of the purchaser will not become binding even if eVision does not expressly contradict the same. At any event, the following Terms and Conditions of eVision will be legally valid for the entire agreement.
2. QUOTATIONS AND ORDER PLACEMENT
Quotations are non-binding unless a confirmation with a validity period has been provided in writing.
Order placement includes the acknowledgement of our Terms of Delivery and Payment. Any details regarding delivery periods made on our part are only approximate and non-binding.
eVision reserves intellectual property and copyrighted usage rights for cost estimates, drawings and other documents without any restrictions; said items may only be made accessible to third parties with the prior written consent of eVision. Any drawings and other documents pertaining to quotations must be returned without delay and upon request, should the order not be placed with eVision. This also applies conversely to documents from the party placing the order. However, these documents may be disclosed to those third parties, to whom eVision has legitimately assigned deliveries and services.
Unless otherwise expressly stated, the prices for software products are the price for an ordinary, non-exclusive and non-transferable right of use on a single microcomputer workstation.
By fulfilling the terms of the purchase agreement, the purchaser becomes a licensee of the licenser of the respective software product. The licensee undertakes to only use the product on one computer at the same time. The right of use comes into effect upon signing the licence agreement and/or opening the seal on the packaging of the data carrier, on which the licence agreement is printed and by paying the licence fee, by which the licensee acknowledges the respective licence agreement. Use without acknowledging the licence agreement is not permitted and constitutes infringement of copyrights and other property rights of the respective licenser, which will be prosecuted by the respective licenser. Acknowledgement of the licence agreement is at the same time a requirement for any warranty services. Should any part of this section contradict the licence terms of the software manufacturer, the manufacturer’s terms will apply.
Delivery will be made in the sequence in which orders are received and within the line of credit of the respective ordering party. No liability will be assumed for delays caused by force majeure, operational or transport delays, etc. The goods will be delivered in the design and quality stated at the time of order confirmation. If technical improvements are introduced after orders have been accepted, eVision reserves the right to deliver the improved products.
Ancillary agreements are only valid if they have been confirmed in writing. Invoices will be issued upon delivery of goods ordered. It is not permissible to return goods for crediting.
5. DELIVERY PERIODS AND DELAYS
eVision will meet promised delivery dates to the extent possible. Should eVision be late in performance, the purchaser may withdraw from the agreement only when eVision has been granted a reasonable grace period of no less than three weeks. All other claims on the part of the purchaser in the event of failure to deliver or failure to deliver on time are excluded. eVision will be released from its duty to deliver if it does not receive deliveries on its part from its suppliers or has not been supplied with goods of the correct quality and other specifications.
6. SHIPPING AND TRANSFER OF RISK
The goods including any return consignments will be shipped at the purchaser’s expense and risk, unless otherwise agreed. No liability will be accepted for damage or loss incurred during transport. At the customer’s request, we will take out transport insurance at the customer’s expense.
7. PRICES AND PAYMENT
Prices apply net from the registered office of eVision or from the place of dispatch for unpackaged and uninsured goods and are quoted excluding statutory VAT applicable on the date of delivery. Invoices issued by eVision Systems GmbH are payable net within 30 days of delivery and invoicing. eVision Systems GmbH is entitled to claim default interest of 3% above the respective discount rate as of the due date, without having to provide substantiation, notwithstanding the possibility of asserting greater damage actually incurred.
8. WARRANTY AND LIABILITY
eVision will not be held liable for negligence on the part of vicarious agents. Furthermore, eVision does not assume liability for the delivered goods being suitable for a specific purpose. This also applies if eVision Systems has provided the purchaser with advice of any kind on how the goods can be used; this also applies to any advice given in the area of training and to training documents that may be incomplete. Moreover, eVision will not be held liable if the delivered goods are merely defective at a percentage of defective products no higher than that deemed acceptable in the trade with regard to such products. Any other liability will be limited to the possibility of returning defective parts and having them replaced with flawless parts or eVision granting a credit note in the amount of the value of the goods returned. All other damages claims, whether in regard to compensation for direct or indirect losses and all other warranty claims are expressly excluded. No liability will be assumed in any case for goods that have already been processed. Processing of the goods will be deemed acknowledgement that the goods supplied were not defective. eVision draws the purchaser’s attention to the fact that, pursuant to the state of the art, it is not possible to create standard software for computers in such a way that it functions properly in all applications and combinations. eVision assumes no liability for errors in the program or system that were not avoidable or foreseeable pursuant to the state of the art applying customary testing methods. In the case of software products, the subject matter of the purchase agreement is exclusively the application function arising from the program specification. Installation, assembly, consulting and training services are not the subject matter of the agreement; they must be agreed upon separately. eVision ensures the purchaser that, as of the date of delivery of the data carriers (disks, CDs, tapes) on which the software is stored and the hardware included in the delivery of the software, are free of defects in the design of the material under normal operating conditions and with normal maintenance. Complaints of any kind must be asserted without delay following receipt of the goods, either in writing or by telegram. The purchaser is obligated to check the goods immediately upon receipt.
9. RETENTION OF TITLE
The goods delivered remain our property until full payment of all receivables from the customer, which we are entitled to as of the date of delivery of the goods. The purchaser may only deliver and sell goods we delivered to third parties prior to full payment in the ordinary course of business. In the event of resale of the goods delivered, the purchaser must already assign us its claims arising from the resale of the goods subject to retention of title – we accept said assignment. The conclusion of supply agreements does not constitute any entitlement to the conclusion of further agreements of this nature.
The purchaser will only be entitled to withdraw from the agreement if the purchaser is ultimately unable to perform.
The products and technical know-how supplied by eVision are intended to remain within the country to which the delivery is made as agreed with the purchaser. The re-export of contractual products by the purchaser, whether separately or integrated into a system, is subject to approval and to the export regulations of the Federal Republic of Germany or the EU, as the case may be, and generally subject to re-export approval according to the provisions of the US Department of Commerce. The purchaser must obtain all necessary information regarding these regulations and will be liable as the exporter for compliance with these regulations.
12. DATA STORAGE
Pursuant to sec. 33 of the BDSG [“Bundesdatenschutzgesetz”: German Federal Data Protection Act], we point out that we store personal data to the extent that it pertains to the business relationship.
13. PLACE OF JURISDICTION
The place of performance and exclusive place of jurisdiction for all obligations and for all legal matters is Ebersberg. The relations between the contractual partners are governed exclusively by the laws of the Federal Republic of Germany.
14. FINAL PROVISIONS
No ancillary agreements have been made. Additional agreements to these General Terms and Conditions and any agreement on their suspension or non-applicability or any declaration on cancellation, price reduction and termination must be made in writing. This also applies to any waiver of the written form requirement.
eVision Systems GmbH