§ 1 Applicability of the Terms and Conditions of Contract

(1) Unless otherwise agreed, exclusively these Standard Terms and Conditions of Contract apply for the sale in business dealings of standard software by Janitza Electronics GmbH, business domicile Vor dem Polstück 1, 35663 Lahnau (hereinafter called "JANITZA") and for pre-contractual obligations in this connection. Deviating terms and conditions of contract of the customer shall not form an integral part of the contract, even if JANITZA does not expressly contradict the same.

(2) Even if no reference is made to them once more upon the conclusion of similar contracts, exclusively the Standard Terms and Conditions of Contract of Janitza Electronics GmbH for the Sale of Standard Software shall apply in the version applicable when the customer made his declaration (retrievable under www.janitza.de) unless the parties expressly agree otherwise in writing.

(3) Supplemental hereto, the statutory provisions apply; for the supply of the standard software, §§ 433 et seq. German Civil Code [Bürgerliches Gesetzbuch] (BGB), for separately ordered services (e.g. installation, parameterisation, training), §§ 611 et seq. BGB.

§ 2 Conclusion of the contract

1) Unless the offer is designated in writing as being binding, all offers of JANITZA are subject to confirmation and without obligation. A legal obligation only arises through a contract signed by both parties or by a written confirmation of order from JANITZA, or through JANITZA commencing with the performance in accordance with the terms of the contract. JANITZA may demand written confirmation of verbal declarations of contract by the customer.

(2) The customer shall be bound by declarations directed at the conclusion of a contract (offers of contracts) for a period of four weeks.

(3) For other types of deliveries and services (e.g. delivery of hardware, software support, set-up and installation of software) separate contracts are to be concluded.

§ 3 Object of the contract; Scope of performance

(1) The object of these Terms and Conditions of Contract is only the delivery of standard software and the grant of rights of use in accordance with § 4, as well as training (if ordered) in accordance with § 15.

(2) Prior to the conclusion of the contract, the customer shall verify that the specifications of the software conform with his wishes and requirements. He is familiar with the essential functional features and conditions of the software.

(3) The scope, nature and quality of the deliveries and services shall be determined by the contract signed by both parties or the confirmation of order from JANITZA, or otherwise the offer from JANITZA. Other details or requirements shall only become an integral part of the contract if the parties agree this in writing or if JANITZA has confirmed them in writing. Subsequent changes to the scope of performance require written agreement or the written confirmation of JANITZA.

(4) Product descriptions, illustrations, test programmes etc. are performance specifications, but do not constitute any guarantees. A guarantee requires a written declaration by the management of JANITZA.

(5) The customer receives the software consisting of the machine programme and the user manual. The method of delivery of the software shall be determined by the agreements; in the absence of any other agreement, the programme and user manual will be delivered on a CDROM. The customer has no claim to be provided with the source programme.

(6) JANITZA will provide all deliveries and services using state-of-the-art systems and technologies.

§ 5 Performance periods; Delays; Place of performance

(1) Details concerning times for delivery and performance are non-binding unless they are designated by JANITZA in writing as being binding. JANITZA may render partial performance if the parts delivered can expediently be used by the customer.

(2) The periods for delivery and performance shall be extended by such periods during which the customer is in default of payment under the contract and by any periods during which JANITZA is prevented from delivery or performance by circumstances for which JANITZA is not responsible, plus a reasonable start-up time following the end of the circumstances causing the prevention. Such circumstances also include force majeure and labour disputes. Periods for delivery and performance shall also be extended by any such period during which the customer, in breach of contract, fails to comply with his obligations of cooperation, e.g. fails to provide information, to grant access, to supply materials or facilities or to make staff available.

(3) Should the parties subsequently agree upon different or additional performances which affect the periods agreed, these periods shall be extended by a reasonable period of time.

(4) Formal warnings and the setting of time limits by the customer shall only be effective if made in writing. Any extension of the time for performance must be reasonable. A period of less than two weeks shall only be deemed to be reasonable in cases of special urgency.

(5) The place of performance for training sessions shall be the location where the training sessions are to take place. In all other cases, the place of performance for all performances under and in connection with this contract shall be the location of the head office of JANITZA.

§ 8 Duties of the customer

(1) The customer shall, in accordance with the commercial law provisions (§ 377 German Commercial Code (HGB)), be obliged to have a competent employee inspect all items delivered by JANITZA immediately following delivery or upon their becoming accessible and to notify JANITZA in writing of any flaws discovered, giving a precise description of the defect. The customer shall thoroughly test each module as to its usability in the specific situation before commencing productive use. This also applies to programmes which the customer receives within the scope of the warranty or a service contract.

(2) The customer shall take reasonable precautions (e.g. through data back-ups, fault diagnosis, regular examination of the results, emergency planning) in order to deal with a situation in which the programme, either in whole or in part, does not work properly. It is the responsibility of the customer to ensure the functionality of the working environment of the programme.

§ 10 Flaws in legal title

(1) JANITZA warrants that no rights of third parties preclude the use of the software by the customer in accordance with the terms of the contract. In the case of flaws in legal title, JANITZA warrants that it will, at the option of JANITZA, procure for the customer a legally unchallengeable possibility of use of the software or of equivalent software.

(2) The customer shall inform JANITZA in writing without delay if any third party asserts industrial property rights (e.g. copyright or patent rights) against him in respect of the software. The customer authorises JANITZA to conduct the dispute with the third party alone. So long as JANITZA avails itself of this authorisation, the customer may not of his own initiative acknowledge the claims of the third party without the consent of JANITZA; JANITZA shall then at its own expense avert the claims of the third party and shall indemnify the customer from all costs associated with averting such claims except in so far as these result from conduct on the part of the customer in breach of duty (e.g. use of the programmes in breach of the terms of the contract).

(3) § 9 (2), (6) and (7) apply correspondingly. § 6 shall apply for the discontinuance of the exchange of performances. § 11 shall apply in relation to liability; § 12 in relation to the limitation period.

§ 11 Liability

(1) JANITZA shall be liable in accordance with the statutory provisions in so far as the customer asserts claims for damages based on deliberate intent or gross negligence, including the deliberate intent or gross negligence of representatives or vicarious agents of JANITZA.

(2) In the case of ordinary (that is to say, not grossly) negligent breaches of such contractual duties, the fulfilment of which actually enables the contract to be properly performed at all and upon compliance with which a client regularly relies and is entitled to rely (cardinal duties, fundamental contractual duties) JANITZA shall be liable in accordance with the statutory provisions. In such case, however, the liability of JANITZA shall be limited to the damage foreseeable and typically arising according to the nature of the performance; the reimbursement of consequential damage such as e.g. loss of profit is excluded. The same shall apply to grossly negligent breaches of non-fundamental contractual duties committed by the simple vicarious agents of JANITZA.

(3) JANITZA shall not be liable for ordinary (that is to say, not grossly) negligent breaches of non-fundamental contractual duties.

(4) The limitations and exclusions of liability in accordance with paras. (1), (2) and (3) shall also apply for claims arising for liability in connection with the conclusion of the contract (culpa in contrahendo), other breaches of duty or in tort. They shall not apply to injury to life, limb or health attributable to JANITZA or to claims under the Product Liability Act [Produkthaftungsgesetz].

(5) JANITZA shall be free to raise the defence of contributory negligence. The customer is, in particular, under an obligation to prepare data back-ups and to protect his system from malicious software in accordance with the latest state of technology.

§ 12 Limitation period

(1) The period of limitation shall be:

  • a) one year starting with the delivery of the software for claims to repayment of the purchase price arising from cancellation of the contract or curtailment of the purchase price, however not less than three months as from the issue of the legally effective declaration of cancellation or curtailment of the price in the case of properly lodged complaints;
  • b) one year for other claims arising from material defects;
  • c) two years in the case of claims arising from flaws in legal title if the flaw lies in a right in rem of a third party by reason of which it may demand the surrender of the items specified in § 3 (5) or demand that the customer desists from using the same;
  • d) two years in the case of claims for damages not based on material defects or flaws in legal title or for reimbursement of expenditure incurred in vain, commencing at the point in time at which the customer obtained knowledge of the circumstances substantiating the claim or must have attained knowledge of the same without gross negligence on his part. The claims shall be barred by limitation no later than upon the expiration of the maximum periods specified in § 199 German Civil Code (BGB).

(2) However, the statutory periods of limitation shall always apply in the case of claims for damages and reimbursement of expenditure incurred in vain arising from deliberate intent, gross negligence, guarantee, fraudulent intent and in the cases mentioned in § 11 (3).

§ 14 Confidentiality

(1) Each party to the contract undertakes, also beyond the end of the contract, to treat as confidential all items provided to it by the respective other party or which have otherwise become known to it before or during the performance of the contract (e.g. software, documents, information) and which are legally protected or contain business or company secrets or are otherwise designated as being confidential unless such items are already in the public domain without any breach of the duty of confidentiality. The parties shall store and secure these items in such a way as to ensure that no third party has access to them.

(2) The customer shall only make the objects of the contract accessible to those employees and other third parties who require access to the same for the performance of their contractual duties. The customer shall instruct these persons regarding the necessity of maintaining confidentiality in relation to the items in question.

(3) JANITZA shall process the necessary customer data relevant for handling the business transaction in due compliance with the data protection provisions. JANITZA may name the customer as a reference customer following the successful conclusion of its services.