General Conditions of the GUBSE AG for Licence, maintenance and hardware delivery contracts

As of: Oktober 2013

I. General Provisions

 

§ 1 Subject of the Contract and Validity of the Articles of the Agreement

  1. The customer is interested in concluding a contract for a licence, for maintenance or for hardware delivery or the conclusion of another business connection with GUBSE. GUBSE has compiled all individual specifications eligible for such contracts in an offering document referred to as “Offer for SIHOT”. The details of each particular contract are agreed upon separately in the “Offer for SIHOT”. GUBSE shall be bound to such offer for a period of four weeks, if not agreed otherwise.
  2. The present General Conditions of the GUBSE AG shall be applied for such contracts. Conflicting conditions of the customer shall not apply, even if GUBSE should not object explicitly.

§ 2 Principles of Performance

  1. The customer shall indicate the conceptual formulation of the tasks within the “Offer for SIHOT” in the form of individual specifications. The scheduling of the tasks shall be established by GUBSE. GUBSE may refuse the acceptance of an order if the fulfilment of the tasks should be impracticable or inappropriate or if sufficient capacities should not be available.
  2. GUBSE shall respect the customer’s requirements when fulfilling the tasks and perform according to the state of the art in effect upon ordering date. GUBSE reserves the right to account for imperative modifications due to legal or technical deviations within the offer documents or the order confirmation, as far as they are reasonable and acceptable for the customer.
  3. The assurance of the features shall depend on explicit confirmation in writing by GUBSE. Especially the indications in offers, enclosures of agreements, system specifications, documentations, brochures and project descriptions should not be considered as assurance of features.
  4. GUBSE shall be allowed to records discussions about the refining or modification of contractual facts, especially the subject of the contract. These records shall be binding for both parties if GUBSE commits them to the customer and the customer files no written objection within two weeks.
  5. GUBSE shall decide in its own discretion what employees shall be assigned and reserves the right to replace an employee with another having the necessary qualification. GUBSE may assign freelancers and employees of other companies in order to fulfil the requirements of the agreement.
  6. Should the performance not be rendered due to reasons beyond the control of GUBSE, the contractual times and efforts shall be invoiced, except the customer shall deliver proof that the GUBSE employees could have been assigned otherwise. This shall not apply only if the contractual performance has been cancelled by the customer in writing at least two weeks ahead of the scheduled date.
  7. Only GUBSE shall have authority to instruct its employees, even if the performance is to be rendered on the premises of the customer. The employees shall not be integrated into the company of the customer. The customer may advice the project coordinator of GUBSE, but not the individual employee.
  8. The contract is concluded under the reserve of the correct and timely supply by our third-party suppliers.

§ 3 Calculation and Payment

  1. If no fixed price is agreed upon, all performances – working hours, travel hours, travel expenses and other performances including travel and lodging expenses – shall be invoiced according to the “Offer for SIHOT”.
  2. The calculation of travel hours, travel and lodging expenses depend on the regular place of work of the GUBSE employee. Travel hours and expenses are resulting from travelling between the regular place of work of the employee and the place or places of installation on the premises of the customer. Unless agreed otherwise, the employee’s regular place of work is Schiffweiler/Saar, Germany.
  3. Should the customer not provide for board and lodging free of charge, the respective expenses shall be invoiced to the customer.
  4. The calculation shall be made according to the usual performance reports of GUBSE. The customer may object to such reports in writing within two weeks only.
  5. A discount is not granted.
  6. Invoices for maintenance and services shall be settled immediately and without discount. The conditions of payment according to the “Offer for SIHOT” are:
    • 40 % upon conclusion of contract or placing of order
    • 30 % upon delivery
    • 30 % upon acceptance
  7. All prices are exclusive packaging and shipping costs.
  8. All prices are exclusive VAT/GST and other legal charges valid at the date of invoicing.
  9. From 30 days after settlement date GUBSE may charge default interest rates according to statutory regulations.
  10. Counterclaims against claims from GUBSE or compensation for expenses shall not entitle to set-off or omit due payments except for undisputed or legally binding claims.

§ 4 Participation of the Customer

  1. The customer shall provide for the system environment (e.g. hardware and operating system) for the performance according to the requirements of GUBSE. The customer shall assume responsibility to always providing for the system environment and the personal necessary for the attendance in order to guarantee undisturbed operations.
  2. The customer shall cooperate extensively with GUBSE in order to render the performance by fixing exactly and in writing the conceptual formulation of the tasks, answering questions immediately, intermediate examination and testing of already achieved results, etc.
  3. The customer’s coordinator shall provide for the necessary conditions for GUBSE to render the agreed performances (i.e. place of work, computing time, access to hardware and software, use of telecommunications, authorisations, etc.).
  4. The customer shall nominate a contact person to be at the disposal of GUBSE in order to provide for necessary information and to make or bring about prompt decisions.
  5. The customer shall be responsible for the storage of his data according to the state of the art. In the absence of an explicit indication in writing, the employees of GUBSE can always assume that all data they operate are saved.
  6. Disadvantages and additional charges due to non-compliance with his obligations according to § 4, (1-5) shall solely be at the expense of the customer. GUBSE may charge for e.g. delays and the produced additional work and expense, especially for the extended provision of its staff or its material resources, if these are at the responsibility of the customer.

§ 5 Dates, Force Majeure

  1. Scheduled dates are subject to change, except they are explicitly defined as binding.
  2. GUBSE shall not assume responsibility for impediments due to strike, look out, force majeure, absence of personal with-out fault, arrears of suppliers, administrative interventions and similar circumstances. If GUBSE shall be impeded to ren-der its performance by such circumstances or due to the lack of cooperation or information from the customer, the scheduled dates shall be postponed for the time of the impediment and an appropriate lead time. GUBSE shall inform the customer in due time about the impediment.
  3. If GUBSE falls behind schedule, the customer may withdraw partly or totally from the contract after an unsuccessful res-pite. Reminders and respites are to be in writing. Respites shall have a minimum of twelve working days. Already ren-dered performances are accounted for according to § 3, possible damages according to §9.

 

§ 6 Amendments of Performances

  1. During the term of the individual contract, both partners may submit in writing amendments of the contractual performances regarding different steps of the development, the scheduling or other.
  2. For amendments of the software proposed by the customer, GUBSE shall inform the customer in writing within ten working days upon the presentation of the system specifications if the amendment is feasible and what effects it will have onto the present contract, considering especially the scheduling, the additional performances and the reassessment of dates.
  3. The customer shall reply in writing within five working days whether to sustain the proposed amendments or to continue the contract under the former conditions. Insofar as the examination of an amendment proposal represents a not negligible effort, GUBSE may charge the additional effort for the examination separately.
  4. For amendments proposed by GUBSE, the customer shall reply within ten working days whether he accepts the amendments or not.
  5. As long as the approval of the customer is not available, the operations shall be continued according to the present contract or interrupted partly or totally according to the customer’s instructions in writing.

 

§ 7 Acceptance of Work Performance particularly upon Installation of Hardware and Software

  1. If a contract for work and services applies to several individual devices usable independently by the customer, each of such devices shall be accepted separately and independent of each other.
  2. If a contract for work and services defines partial devices, GUBSE may present partial devices for acceptance.
  3. If a contract for work and services applies to the creation of a concept for the development or specification of a software solution, a separate acceptance shall occur. The customer shall declare the acceptance to GUBSE in writing. The realisation phase of a project shall begin upon the acceptance of the respective concept.
  4. Should the customer require modifications of the concept after the execution of the acceptance, such requirement shall be considered an amendment according to § 6.
  5. When GUBSE has fully accomplished its performance/partial performance, the result shall be presented to the customer for total or partial acceptance. The acceptance shall be executed after the installation and a test run. The date of acceptance shall be the day of the unreserved execution of the acceptance protocol by the customer. Insofar as deficiencies, the lack of functions or incidents are recorded in the acceptance protocol, the date of acceptance shall be the first day after the elimination of the last deficiency. Should the customer deny the execution of the acceptance protocol, he shall deliver a notice of deficiencies in writing within five working days. If no such declaration is delivered by the customer within this period, the acceptance shall be considered executed.
  6. If the notice of deficiencies has been delivered within the time limit, GUBSE shall eliminate the detailed deficiencies with particular regard to the project schedule and present the performance results again for acceptance/partial acceptance. The customer shall examine the performance results within a limit of five working days. Is no declaration delivered by the customer within such new terms of acceptance, the performance results shall be considered accepted/partially accepted. Deficiencies affecting the use of the performance results only insubstantially shall not entitle to deny the acceptance/partial acceptance.
  7. For the acceptance of partial devices only such deficiencies may be reprehended which affect the integrative interaction of the partial devices.
  8. Deficiencies not qualifying the denial of acceptance shall be eliminated by GUBSE within the terms of warranty.
  9. Having initialised the operation of individual devises/partial devises or the entire performance, the customer shall implicitly consent acceptance after seven working days. Initialising operations of partial devises for continuation purposes shall not be considered as acceptance.

 

§ 8 Warranty for Work Performance particularly upon Installation of Hardware and Software

  1. GUBSE shall assume warranty for the contractual execution of all work performance.
  2. The terms of warranty are twelve months beginning upon the declaration of acceptance by the customer or, in case of arrears of acceptance upon the expiration of the terms of acceptance according to § 7 (5).
  3. The customer shall notify GUBSE in writing without delay about occurring deficiencies in a reproducible form, indicating all information appropriate to eliminate the deficiencies. Insofar, the customer assumes an obligation to give notice of deficiencies according to §§ 377, 378 of the German Commercial Code (HGB).
  4. Insofar as operational restrictions or errors due to improper handling, intervention by the customer or due to the customer’s system environment are caused or are a contributory cause of the occurring deficiencies, the warranty voids as long and as far the customer shall deliver no proof that none of such is causally related to the occurrence of the deficiencies. Furthermore, the customer’s warranty voids if the deficiencies are not notified according to (3). Performances delivered notwithstanding by GUBSE and not covered by warranty deed shall be charged according to the applicable GUBSE price list.
  5. GUBSE may assume warranty first and foremost by subsequent improvement. The priority of the elimination of such deficiencies depends on the level of the operational restrictions.
  6. The customer shall participate in the elimination of deficiencies to the necessary extent.
  7. Should the subsequent improvement – even multiple attempts – fail, the customer shall be entitled to reduce the payment or to withdraw from the contract or to terminate without further notice, according to the applicable statutory regulations.
  8. For damages the following, detailed in Liability, is imperative. Further warranty rights are be excluded.

 

§ 9 Liability

  1. GUBSE shall assume damages, irrespective of the legal grounds (e.g. non-fulfilment, impossibility, warranty, arrears, fault on completion of the contract, neglect of accessory obligation or impermissible act) only:
    • upon intent in full; upon gross negligence and upon absence of an assured characteristic only in the amount of the predictable damage to be prevented by due diligence or the assurance of characteristics; such standard of fault shall not apply in case of damages as harm to life, body or health;
    • in other cases: upon neglect of a substantial obligation only if the purpose of the contract is imperilled thereby; up-on arrears or upon impossibility always limited to € 50,000.00 per liability case, in total to a maximum of € 150,000.00 for an individual contract insofar as the contractual total sum exceeds such amount, otherwise to a maximum of the contractual total sum;
    • furthermore: insofar as GUBSE is insured against the occurred damages within the insurance coverage and suspensive until payment by the insurer.
  2. The objection due to contributory neglect shall be persistent. The statutory liability for physical injuries and according to the Product Liability Act shall be unaffected.
  3. A limitation period of one year shall apply to claims of the customer due to non-fulfilment, impossibility, arrears, neglect of accessory obligation or withdrawal from contract. Such limitation period shall begin upon the moment the customer is aware of the claim.

 

§ 10 Exclusions from Warranty and Liability

  1. Each and every warranty and liability shall be excluded for operational malfunctions due to improper handling, improper application, inappropriate hardware or data media, low-level software components (e.g. operating systems and parts of operating systems, data bases, server software, antivirus software, drivers, etc.), viruses of any kind or inappropriate operational condition or transportation of the customer, except the customer shall deliver proof that none of such is causally related to the occurrence of the deficiencies.
  2. Furthermore, the customer’s warranty voids if an apparent deficiency is not notified according to § 8 (3).
  3. Performances delivered notwithstanding by GUBSE and not covered by warranty deed shall be charged according to the applicable GUBSE price list.

 

§ 11 Confidentiality and mutual Duty of Loyalty

  1. The contractual parties engage themselves to treat strictly confidential, temporarily unlimited, all confidential information and company secrets of the other contractual party acquired while the contractual performances are rendered and to use such information for the rendering of the contractual performances.
  2. The customer engages himself not to reveal the subjects of the contract to a third party. Employees with access to the subjects of the contract are to be instructed about the Intellectual Property Rights of GUBSE and the secrecy requirements.
  3. GUBSE obliges its employees to observe the Data Privacy Regulations.
  4. The obligation according to (2) and (3) shall not include such information that:
    • are already public knowledge i.e. accessible to any third party without difficulty or sacrifice at the time of the transmission by the other contractual partner, or that are made public knowledge after the transmission without fault of the other contractual partner, or
    • are already known to one contractual partner at the time of the transmission and originate not from the other contractual partner whether directly nor indirectly, or
    • are made lawfully available to the contractual partner by a third party who is not submitted to a non-disclosure agreement with the other contractual partner, or
    • are developed by the contractual parties independently without the help of confidential information of the other contractual partner, or
    • are to be made public knowledge by the contractual partner due to statutory regulations.
  5. The customer and GUBSE engage themselves to mutual duty of loyalty. They shall refrain from hiring or otherwise enlisting employees or former employees who are or were connected to the mutual contractual performances before the expiration of a period of twelve months after the end of the cooperation.

 

§ 12 Reservation of Proprietary Rights

  1. GUBSE reserves the proprietary rights of the delivered goods and the usage rights of the licences until complete payment of each and every receivable, present and future, as purchase price, default interest and consequential legal cost, irrespective of the legal grounds on which they were incurred.

 

§ 13 Written Form Requirement, Qualification for Amendments, Applicable Law, Place of Jurisdiction, Severability Clause, Misc.

  1. Amendments and supplements of these General Conditions are subject to a written form requirement. Such shall apply also to the abrogation or modification of this written form requirement. Insofar as written form requirement is agreed upon, simple text form or electronic transmission shall not qualify.
  2. Employees of GUBSE are not entitled to execute, modify or abrogate contractual agreements. GUBSE shall accept an agreement against itself and differing from the present General Conditions and the “Offer for SIHOT” only if it has been confirmed in written and duly signed by a statutory representative of GUBSE.
  3. The contractual agreement is subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.
  4. The place of jurisdiction for all legal matters arising from the present agreement shall be the competent court for the legislation of the legal domicile of GUBSE, if lawfully applicable. If a customer is domiciled in the EU, according to article 23 of the EU Brussel I Regulation, the legal domicile of GUBSE is the agreed place of jurisdiction.
  5. GUBSE shall be authorised to save and to process personal data within the scope of the business relationship.
  6. If any provision in this General Conditions or a relating agreement or contract shall be held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The parties agree to negotiate in good faith a valid, enforceable substitute provision that most nearly effects the parties’ original intent in entering into this General Conditions or a relating agreement or contract or to provide an equitable adjustment in the event no such provision can be added. The other provisions of this General Conditions or relating agreement or contract will remain in full force and effect.

II. Special Provisions for Licence Agreements, particularly for SIHOT

 

§ 14 Mutual Duties for the Usage of Software, particularly for SIHOT

  1. Insofar as GUBSE owns the Intellectual Property Right of the usage of the software, GUBSE shall grant the customer a timely not limited, non-negotiable and not exclusive right for the single use of the ordered scope of performances of the software, particularly SIHOT. GUBSE shall deliver the appropriate documentation to the customer. The customer shall make timely unlimited provisions, that the software, particularly SIHOT, including the accompanying documents will not be accessed by a third party without the written consent of GUBSE, even if the software or the documents have been altered, enhanced or modified. Manuals are available in electronic form, which are provided free of charge.
  2. GUBSE shall commit itself to carry out maintenance of the delivered software, particularly SIHOT, according to the usual terms and prices of GUBSE. The execution of a maintenance contract for the delivered software, particularly SIHOT, is compulsory.

 

§ 15  Intellectual Property Rights, Copyright

  1. Each and every applicable Intellectual Property Right and other Copyrights, Trademark Rights, and Industrial Rights of the software, particularly SIHOT, remain with GUBSE. This shall apply also for the modules and enhancements of the software, created within the scope of the cooperation of the parties. The customer shall commit himself to discernibly use the Registered Trademark “SIHOT” within the scope of its usage.
  2. The customer shall commit himself to refrain from decompilation, disassembling or any other form of reverse engineering of the program formatting. Modifications or enhancements or any other intervention into the delivered software by the customer or a third party as well as the connection with or integration into any other program shall be permitted with the written consent of GUBSE only.
  3. The customer shall commit himself not to use the know-how acquired with the present licence agreement for the creation or production of his own software or the creation or production of third party’s software.

 

§ 16 Guaranty upon Deficiencies in Title

  1. GUBSE guarantees that the delivered licence for the usage of the software does not affect any third party right. Otherwise, the customer shall be entitled to withdraw from the contract without further notice after a written time limit on pain of termination, except GUBSE can provide for a legally inoffensive possibility for the usage of the delivered software. The § 9 shall apply for damages of the customer.
  2. GUBSE shall bear all costs for fending off claims as regards infringement of protective rights claims brought by third par-ties against the customer resulting from services rendered by GUBSE. The customer may not admit such claims on his own. The customer shall authorise GUBSE to solely assume the judicial and extrajudicial dispute. GUBSE shall indemnify the customer for claims, insofar as they are not based upon the customer’s conduct. The customer shall notify GUBSE about assertions of such claims from third parties in detail without delay and in writing.

 

§ 17 Warranty upon Deficiencies in Material

  1. The warranty covers: the diagnosis of deficiencies and the clearance of such deficiencies and operational restrictions within the period of the warranty deed.
  2. The clearance of deficiencies i.e. deviations from the program specifications described in the product sheet shall be effectuated by delivering a revised and updated software version.
  3. It is prerequisite that the deficiency is reproducible and that the malfunction appears in the latest version delivered to the customer. GUBSE shall obtain all data and information necessary to the clearance of the deficiencies. GUBSE shall provide for an intermediate solution for the avoidance of the deficiency until the delivery of an updated software version.

 

§ 18 Particular Terms for the Usage of SIHOT

  1. SIHOT is delivered in the version which, at the moment of installation is the most recent and valid state of the program development.
  2. The non-recurring compensation fee for the defined scope of performances of SIHOT is detailed in the “Offer for SIHOT”. The prices for further SIHOT licences and supplements are also stated in the “Offer for SIHOT”.
  3. In addition to the compensation fee GUBSE charges (according to the respectively amended price list) :
    • data media delivered by GUBSE and additional copies of the documentation required by the customer,
    • analyses and clearances of deficiencies resulting from improper treatment or faults in the handling of the software or resulting from other circumstances beyond the  control of GUBSE.
  4. GUBSE shall deliver the software package ready for implementation and install the software package on the computer system provided by the customer. The customer shall engage himself to provide for the adequate conditions for the installation. The charges for the installation of the software and the hardware on the customer’s premises shall be calculated according to the offer.
  5. The training for SIHOT shall be realised immediately upon the installation of the software or according to the customer’s requirements.
  6. The module “Training hotel” for SIHOT.PMS is installed free of charge.
  7. The customer may select one of three invoice layouts. The invoice shall be adapted to the business papers of the customer free of charge.
  8. The customer may select one of three reservation confirmation layouts. The reservation confirmation shall be adapted to the business papers of the customer free of charge.
  9. GUBSE shall be entitled to name the customer as a reference.

 

III. Special Provisions for Maintenance Agreements

 

§ 19 Subject of the Agreement

  1. Maintenance agreements relate exclusively to one unit of the software product installed on the premises of the customer and defined in the “Offer for SIHOT.” A “unit” of the software is installed and running on a determined computer system using a determined operating system (single use).

§ 20 Scope and Duration of Maintenance Services

  1. The maintenance fee includes:
    • the consignment of the latest update of the standard SIHOT version released for usage according to the licence, GUBSE maintains only the latest update,
    • the update includes enhancements and improvements of SIHOT,
    • the consignment or adaption of available documentations,
    • the clearance of deficiencies in SIHOT and in the provided documentations GUBSE is accountable for and which derogate considerably or suspend entirely the value or the efficiency of the usage defined in the licence agreement.
  2. GUBSE executes the maintenance during business hours on working days from 8:00 h until 12:00 h and from 13:00 h until 17:00 h (CET/CEST).
  3. During the maintenance period the customer shall obtain consulting and guidance for the use of the SIHOT programs as well as support in case of improper handling, machine error or program deficiencies. A broadband card (ISDN/DSL) or in-ternet access are prerequisite for the remote maintenance of the system. Training via telephone is excluded.
  4. The customer shall receive replacement upon destruction of the SIHOT program.
  5. In addition to proprietary development GUBSE provides software from other manufacturers (e.g. pcAnywhere, MS Office, antivirus software etc.). This software is included in the maintenance if explicitly indicated only.

 

§ 21 Additional Services subject to Charges

  1. Beyond § 20 the customer may enlist for the following performances subject to charges on a time and material basis:
    • installation of the latest update of the standard version of SIHOT according to § 20,
    • adaption, consignment and installation of SIHOT with significant modifications according to statutory or otherwise authoritative regulations,
    • clearance of deficiencies GUBSE is not accountable for,
    • realisation of additional training, necessary due to the modifications/enhancements of the program by GUBSE,
    • conversion of SIHOT to another operating system, hardware system or another programming language, insofar as GUBSE provides for such version,
    • consulting covering all questions concerning the use or the application of the software including the transmission of the operating experience from the entire field of users,
    • installation on another computer system,
    • adaption of the configuration, the master data or the interfaces.

 

§ 22 Obligations of GUBSE

  1. GUBSE shall notify the customer before installing an update or a hotfix. For that purpose GUBSE shall deliver a “Readme” or an update description with a modification report to the customer’s coordinator or representative.
  2. GUBSE shall provide for a backup procedure for the complete backup of SIHOT and for a daily backup. The customer’s personal shall be trained in handling the backup procedures.

 

§ 23 Obligations of the Customer

  1. The customer shall provide for all information contributing in the solution of his problem and for the time and facility for the execution of the maintenance. The customer shall execute a backup preceding the maintenance.
  2. The customer shall execute a backup monthly or upon the installation of an update and a daily backup at the least.
  3. The customer shall provide for an appropriate internet or broadband (ISDN/DSL) connection for the execution of the “live update”. Remote maintenance software shall be installed on the server according to the requirements of GUBSE. GUBSE shall be entitled to use this remote maintenance access for maintenance purposes without delay or charges.

 

§ 24 Limitation of Liability

  1. GUBSE shall assume liability for material damages caused deliberately or grossly negligent by GUBSE or its employees – irrespective of the legal grounds – up to the amount of the total contractual maintenance sum per year. Further liability is excluded.

 

§ 25 Fees, Additional Charges, Due-Dates

  1. The monthly maintenance fee is detailed in the “Offer for SIHOT”. It is due upon receipt of the invoice at the beginning of the contractual year without allowance. Such maintenance fee covers all performances according to § 20. GUBSE may adapt the maintenance fee according to the annual development of the regular pay scale for the metal industry in Germany.
  2. The invoice is issued in advance for one calendar year or upon the date of installation for the remaining calendar months of the current year.
  3. The hours worked for the maintenance performances according to § 21 required by the customer are calculated based on the hourly rates defined in the “Offer for SIHOT” including 50% of travelling hours. The customer shall compensate for expenses resulting from the completion of the maintenance performances i.e. travel expenses, additional travel expenses and lodging expenses. This shall apply also to performances rendered resulting from deficiencies in SIHOT reported erroneously.

 

§ 26 Duration of Contract and Withdrawal

  1. The contractual relationship begins upon the installation of SIHOT and for an indefinite period. Both parties may withdraw from the contract with a delay of three months before the end of the calendar year.
  2. Both parties reserve the right of an extraordinary dismissal for cause.

 

§ 27  24 Hour Maintenance (optional)

  1. Such 24 hour maintenance is complementary to the maintenance according to § 20 and arranges for the maintenance off the business hours.
  2. GUBSE provides a telephone number for the 24 hour hotline in order to clear severe deficiencies that may not be postponed until the next working day.
  3. User questions are excluded in general.
  4. If the deficiency shall not have been cleared or only an intermediate solution been obtained, the clearance shall be accomplished on the working day following the notification at latest.
  5. GUBSE charges a monthly fee according to the “Offer for SIHOT”.
  6. The calculation of the performances for the 24 hour maintenance agreement is made monthly according to the prices detailed in the “Offer for SIHOT” and with a record of the rendered performances in writing.
  7. In order to prevent unnecessary expenses, the customer shall explicitly name the persons authorised to call the 24 hour hotline. Is no such person assigned, the GUBSE employees shall assume that all of the customer’s employees are authorised.

IV. Particular Regulations for Agreements regarding Hardware Deliveries

 

§ 28 Subject of the Agreement

  1. The subject of the agreement is the delivery and installation of devices detailed in the “Offer for SIHOT” including their documentation.

§ 29 Delivery, Installation, Handover, Passing of Risk

  1. Unless otherwise specified, all delivery is at the customers risk and expense.
  2. The contractual parties shall agree upon a delivery date in the “Offer for SIHOT”. GUBSE is to produce the technical state of readiness for operations.
  3. The delivery of the contractual devises shall be effectuated ex factory or ex premises of GUBSE. GUBSE shall install the devises and provide for the technical and operational functionality.
  4. Delivery and installation shall be executed according to mutual consent and as soon as the customer notifies GUBSE of the preparedness for installation with the existence of the building clearance according to the German Construction Contract Procedures B (VOBB; or the respective statutory regulations applicable for the premises of the customer) according to § 4 of the present General Conditions.
  5. The risk of accidental loss or damage shall pass to the customer upon receipt of the hardware, irrespective of the above regulation.

 

§ 30 Warranty, Limitation and Obligation to give Notice of Deficiencies

  1. A deficiency of the hardware is occurred if upon passing of risk the characteristics agreed upon are not existent or if the hardware is not appropriate for the contractually agreed usage.
  2. A deficiency occurred, the customer shall be entitled to select if the deficiency is to be cleared or a replacement is to be delivered (supplementary performance). If the deficiency is limited to a restricted component of the hardware, the replacement is also limited to the hardware component.
  3. The customer shall be entitled to claim supplementary performance only if the part of the agreed contractual sum already paid is proportional to the extend and severity of the deficiency of the hardware.
  4. The supplementary performance shall be considered failed upon the second unsuccessful attempt. If the supplementary performance is failed or GUBSE shall not be inclined to or not in a position to, the customer shall be entitled to withdraw from the contract and to claim damages or replacement for the futile expenditures insofar as GUBSE is accountable for the deficiency. A reduction is excluded.
  5. A guaranty for the hardware – except for the manufacturer’s warranty – shall be accepted by GUBSE only if agreed upon in writing and duly signed by the legal representatives.
  6. Independent guaranty contracts between the customer and the hardware manufacturer shall not affect the relation between the GUBSE and the customer.
  7. The right of claims for deficiencies are subject to a limitation period of one year after the delivery of the hardware to the customer.
  8. All warranties for defects are excluded upon the acquisition of second-hand hardware. The supply of replacement devices is excluding all warranties; the guaranty of the device, replaced by the second-hand device, applies
  9. Towards merchants the obligation to examine and to give notice of deficiencies according to §§ 377, 378 of the German Commercial Code (HGB) shall remain unaffected in case of a mutually agreed trade purchase.