General Terms and Conditions of esco GmbH engineering solutions consulting, Kaiserstr. 100, 52134 Herzogenrath, hereinafter referred to as "esco".
- esco's deliveries and services shall be provided exclusively in accordance with the following General Terms and Conditions.
- the type and objects of the deliveries and services as well as their quantity are set out in the order form or the order confirmation.
- the software is executable on the devices expressly named by esco. 3. the software is executable on the devices expressly designated by esco. The scope of performance and functions of the software to be provided shall be determined by the product description valid at the time of conclusion of the contract. Any agreements going beyond this must be expressly agreed.
II Conclusion of the contract
- the order of the purchaser is a binding offer. esco may accept this offer at its discretion within 4 weeks by sending an order confirmation or by delivering the ordered delivery items to the purchaser within this period or by rendering the ordered services.
- esco 's offers are non-binding.
III Delivery and services
- esco expressly reserves the right to make partial deliveries and services and to invoice them if this is reasonable for the customer, taking into account the interests of esco.
- delivery dates and delivery periods shall not be binding unless esco has expressly agreed to them as binding. Delivery periods shall commence with the dispatch of the order confirmation. Delivery periods shall be deemed to have been met if the delivery item is dispatched within the delivery period. Force majeure or operational disruptions occurring as a result of riots, strikes or lockouts, which prevent esco from delivering the delivery items on the agreed date or within the agreed period, shall alter the agreed dates and periods by the duration of the disruptions to performance caused by these circumstances. If a corresponding disruption leads to a delay in performance of more than 4 months, the customer may withdraw from the contract.
- Compliance with the delivery obligation shall be conditional upon timely and proper fulfilment of the obligations of the Purchaser.
- 8 weeks after a non-binding delivery date or a non-binding delivery period has been culpably exceeded, the purchaser may request esco in writing to deliver within a reasonable period of time, stating that he refuses to accept the delivery item affected by the delay after the expiry of the period of time.
- After the unsuccessful expiry of a grace period set by the Purchaser together with a threat of refusal, the Purchaser shall be entitled to withdraw from the contract for the delivery item by means of a written declaration or to demand compensation for non-performance. In this case, the claim for delivery is excluded.
- if the amount of work changes for reasons for which esco is not responsible, the contracting parties shall negotiate an adjustment. If no agreement is reached, esco shall limit its services to a reasonable extent. Changes, extensions and additional services shall be agreed separately in writing by the contracting parties if the consideration is increased as a result.
IV. Licence conditions
- The duplication of the software is generally prohibited except for the creation of a backup copy.
- The acquired software license entitles exclusively to the intended use within the scope of application defined by the order and delivery.
- Unless otherwise contractually agreed, the right of use is limited to use as a single-user license; use of the software for production and/or quality assurance is limited to the use of one grinding and/or measuring machine.
- The software license is protected by a hardlock dongle which is part of the initial delivery. In case of defect or destruction of the dongle, a new delivery of the dongle will be made in exchange for the defective dongle. The costs for the exchange in the amount of currently 880.00 Euro net plus shipping costs shall be borne by the orderer/license holder. The deadline for returning the defective dongle is 1 week after receipt of the replacement dongle. In case of non-return or delayed return of the defective dongle, the complete system price will be charged.
- If the dongle is lost, esco will not provide a replacement.
- the agreement on the implementation of the seminars is made on condition that the minimum number of participants specified by esco is reached.
- the content of the seminars results from the respective seminar programme. The customer has no claim to specific seminar personnel. The seminar venue and period may be changed by esco for good cause, provided that this is reasonable for the customer.
- The customer may withdraw from the contract for the seminar by means of a written declaration no later than 2 weeks before the start of the seminar. If the Customer does not participate in the seminar and has not declared his withdrawal in time, he shall pay half of the agreed remuneration, unless the Customer proves that esco has suffered minor damage. If the customer does not participate in the seminar and does not declare his withdrawal until one day before the seminar begins, he must pay the agreed remuneration.
- esco is not liable for a specific seminar result or a specific seminar success.
- If the customer is in default of acceptance of the delivery items for more than 14 days from receipt of esco's notification of readiness for delivery, esco may grant the customer a grace period of 14 days for acceptance of the delivery items.
- If the grace period expires without result, esco shall be entitled to withdraw from the contract by written declaration or to demand damages for non-performance. If the grace period expires without result, esco shall be entitled to withdraw from the contract by written notice or to claim damages for non-performance.
- No grace period need be set if the customer seriously and finally refuses to take delivery or is manifestly unable to meet his payment obligations under the contract even within this period.
- In the event of default in acceptance on the part of the customer, esco may demand reimbursement of the additional expenses that esco had to incur for the unsuccessful notification of readiness as well as for the storage and preservation of the delivery item.
VII Transfer of risk
- the risk shall pass to the customer when the delivery item is handed over to the carrier, even if partial deliveries are made, esco has assumed other services or in the event of return in the case of rectification of defects.
- esco shall be entitled to insure the delivery item against theft, breakage, fire, water and other damage at the expense of the Purchaser, unless the Purchaser can prove that it has taken out the insurance itself.
- if the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which the goods are ready for shipment. esco shall be obliged to take out the insurance policies requested by the customer at the latter's request and expense.
VIII Prices, terms of payment
The prices as agreed in the order form or the order confirmation shall apply. If no price is specified in the order form or the order confirmation, the prices according to esco's price list valid at the time of conclusion of the contract shall apply. Unless otherwise agreed, the prices shall apply ex esco's registered office. Value added tax at the respective statutory rate and other country-specific levies in the case of foreign deliveries as well as packaging and transport costs and costs of transport insurance shall be added to the prices. Prices for equipment and software do not include remuneration for data carriers, operating materials, accessories, installation, instruction, training and travel expenses, which shall be charged separately. 2. 2. esco 's invoices shall be due for payment without deduction within 14 days of the invoice date. Partial services shall be invoiced after their delivery. In the case of take-away purchases, the invoice amount is due immediately in cash. 3. 50% of the remuneration for all services rendered by esco shall be due upon confirmation of the order and 50% upon delivery. 4. all claims of esco shall become due immediately if the payment dates and deadlines are not met without reason or if esco becomes aware of a significant deterioration in the financial circumstances of the customer. 5. if the purchaser is in arrears with payments, interest on arrears shall be charged in accordance with § 288 BGB. 6. the customer may only set off against esco's price or remuneration claims undisputed claims or claims that have become res judicata.
IX. Retention of title and rights to the result
- esco shall retain title to the delivery item until all claims of esco against the customer arising from the business relationship have been settled. This shall also apply if individual or all claims of esco have been included in a current account and the balance has been struck and accepted. In the event that the Purchaser acts in breach of contract, in particular in the event of default in payment, esco shall be entitled to take back the delivery item after issuing a reminder and the Purchaser shall be obliged to surrender it. Unless the law on instalments applies, the taking back or seizure of the goods by esco shall constitute a withdrawal from the contract only if esco has expressly declared this in writing. In the event of seizure or other interventions by third parties, the Purchaser shall immediately notify esco in writing.
- the Purchaser shall be entitled to resell the delivery item in the ordinary course of business. However, in the event of non-fulfilment of his payment obligations, he shall assign to esco all claims, including all ancillary rights, accruing to him from the resale against the purchaser or against third parties. The customer shall be entitled to collect a claim even after the assignment. This shall not affect esco's right to collect the receivables itself; however, esco undertakes not to collect the receivables as long as the customer duly meets its payment obligations. esco may demand that the customer discloses to esco the assigned claims and the debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor of the assignment. If the delivery item is resold together with other goods that do not belong to esco, the customer's claim against the buyer shall be deemed to have been assigned in the amount of the delivery price agreed between esco and the customer. This shall also apply if the delivery item is combined with other items to form a single item.
- esco undertakes to release the securities to which it is entitled to the extent that their value to be realised exceeds the claims to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon esco.
- The purchaser may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, the Purchaser shall notify esco immediately.
- the reservation of title and the securities to which esco is entitled shall apply until full release from contingent obligations which esco has entered into in the interest of the customer.
- if the customer acquires a third party title to the delivered goods, the customer shall immediately notify esco thereof. if the customer acquires rights of any kind under the contract to the results of development work carried out on his behalf, this shall generally exclude esco's own inventions, copyrights or other forms of intellectual property used as a basis for the performance of the service. This shall include in particular the delivery items mentioned in clauses 8 and 9.
- The ordering direct customer shall be granted a non-exclusive, non-transferable right to use the software licences supplied for an unlimited period of time, excluding any sub-licensing for internal use, for computer programs and the associated documentation and subsequent supplements. - OEM partners: a non-exclusive, transferable right to use the delivered software licenses for an unlimited period of time, excluding any sublicensing, for the purpose of resale to end customers (OEM licenses). The customer receives the right to use the software as intended. This use is limited to one workstation per license (see Item IV. License Terms). All other rights to the programs and documentation, including copies and subsequent additions, shall remain with esco. The customer shall ensure that these programs and documentation are not accessible to third parties without the prior written consent of esco.
- copies of programs may in principle only be made for archiving purposes, as replacements or for troubleshooting. The transfer of source programs requires a special written agreement. If the originals bear a notice indicating copyright protection, this notice shall also be affixed to the copies by the customer. Unless otherwise agreed, the right of use shall be deemed granted upon confirmation of the order and delivery of the programs, documentation and subsequent supplements.
- the customer shall insure delivery items owned by esco against loss and destruction.
- in the case of deliveries abroad, the customer shall ensure that a security interest corresponding to the extended reservation of title is granted for esco.
- in the event of processing or combination with other items, esco shall be entitled to co-ownership of the new item to the amount of the share resulting from the ratio of the price of the processed or combined delivery item to the price of the other item. If the Purchaser acquires sole ownership of the new item, esco and the Purchaser agree that the Purchaser shall grant esco co-ownership of the new item created by processing or combination in the proportion of the price of the delivery item to the price of the other item. If the Purchaser sells the new item, No. 2 shall apply accordingly. However, the assignment shall only apply to the amount of the price of the processed or combined delivery item.
- esco shall remain the owner of all copyrights and rights of use to the programs provided to the Purchaser, including the respective documentation material, even if the Purchaser modifies them or combines them with its own programs and/or those of a third party. In the case of such changes or connections as well as in the case of the creation of copies, the purchaser shall affix an appropriate copyright notice.
- changes and enhancements to the program code that are made at the request and for the account of the customer shall become the property of esco. The rights of use for the program improvements shall be assigned to esco. esco hereby accepts the assignment.
- any surrender of the source code shall require an explicit written agreement on the type and scope of the surrender as well as an additional remuneration. esco shall not be obliged to surrender the source code of the software.
- The customer acquires the non-exclusive right to use esco 's software only for the purpose of using the delivery item. The customer may transfer the right of use to subsequent owners or lessees of the delivery item. esco reserves the industrial property rights to the software even if this software was created specifically for the customer.
- esco warrants that the goods sold are free from material and manufacturing defects at the time of the transfer of risk and that they have the contractually warranted characteristics. For defects of the delivery, which also include the absence of expressly warranted characteristics, esco shall be liable, to the exclusion of any further claims, as follows:
- all those parts shall be repaired or replaced free of charge, at esco 's reasonable discretion, which prove to be unusable or significantly impaired in their usability within 12 months of delivery as a result of a circumstance occurring prior to the transfer of risk - in particular due to defective design, poor construction materials or defective workmanship. The discovery of such defects must be reported to esco in writing without delay. Replaced parts shall become the property of esco. esco shall not be liable for defects in the material supplied by the Purchaser. The warranty refers exclusively to the intended use.
- The warranty period shall generally commence upon delivery of the goods to the customer. In the case of products installed by esco, the following shall apply: The warranty period shall commence upon notification of readiness for operation. If the delivery is delayed by more than one month for reasons for which esco is not responsible, the warranty period shall commence one month after delivery of the products. The customer shall inspect the delivered goods immediately after delivery, in the case of systems after notification of readiness for operation. If a defect is found, he shall notify esco thereof without delay and, at esco's option, return the goods to esco for the purpose of rectifying the defect or, if contractually agreed, keep them ready at the place of installation.
- the customer shall notify esco of any defects in writing without culpable delay after discovery, describing the symptoms that have occurred. In order to preserve warranty rights, obvious defects must be reported no later than 2 weeks after delivery.
- esco's liability for essential third-party products is limited to the assignment of the liability claims to which it is entitled against the suppliers of the third-party product. esco does not assume any warranty for problems with third-party products which occur outside the functions (of the third-party products) released by esco. Insofar as programs, software, interfaces, etc. are made available to the Purchaser as third-party products merely against reimbursement of the distribution costs (duplication costs, postage), esco shall not assume any warranty or liability even for functions released by esco. In the case of manufacture according to the customer's drawing, esco is only liable for execution in accordance with the drawing.
- the right of the customer to assert claims arising from defects shall become statute-barred in all cases after six months from the time of timely notification of the defect, but at the earliest on expiry of the warranty period. In the absence of a software service contract, any replacement deliveries and/or subsequent improvements or free updates made by esco in respect of the licensed object shall not cause the limitation period to recommence.
- esco does not assume any liability for damages caused by the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, chemical, electro-chemical or electrical influences, insofar as they are not attributable to a fault on the part of esco.
- esco shall be released from its liability for defects if the Purchaser, after consultation with esco, allows esco the necessary time and opportunity to carry out all repairs and replacement deliveries that esco deems necessary in its reasonable discretion. Only in urgent cases where the operational readiness is endangered and in order to prevent disproportionately great damage, in which case esco shall be notified immediately, or if esco is in default with the rectification of the defect, shall the Purchaser be entitled to rectify the defect himself or to have it rectified by third parties and to demand reimbursement of the necessary costs from esco.
- the warranty shall include the repair, free of charge, of the documented faults which can be reproduced on esco's premises and on the equipment and computers available to esco.
- all repair costs, including the necessary spare parts and personnel costs, but excluding travel expenses and transport costs, shall be borne by esco in the event of a warranty obligation.
- if the reconstruction of a fault is only possible on the client's premises or if a fault analysis and/or repair is expressly requested on site, the associated travel and travel wage costs shall be borne by the client.
- if, in the course of the rectification of the fault, it becomes apparent that esco is not responsible for the fault, the client shall reimburse all costs for the service or other assistance in accordance with esco's hourly and travelling expenses rates as applicable from time to time.
- the warranty period for the replacement part and for the rectification of defects shall be three months, but it shall run at least until the expiry of the original warranty period for the delivery item.
- esco undertakes, at esco's option and depending on the significance of the error, to correct software errors which impair the contractual use of the delivery item to a more than insignificant extent by installing an improved version of the software or by providing information on how to eliminate or circumvent the effects of the error. esco does not guarantee that the functions contained in the software can be performed in any combination selected by the Purchaser which exceeds the contractually agreed scope of performance and that they meet the Purchaser's requirements.
- The customer shall have the right to demand a reduction of the purchase price if the repair or replacement delivery fails, or, if no agreement can be reached between esco and the customer on the reduction, to withdraw from the corresponding contract free of charge.
- The warranty shall also be void if the serial number, type designation, manufacturer's designation or other marks individualising the delivery item have been removed or made illegible.
- If the customer chooses to withdraw from the contract due to a defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect.
- If the customer receives a defective manual, esco shall only be obliged to deliver a manual free of defects and this only if the defect in the manual prevents proper use.
- esco shall not be liable for any damage incurred if the Purchaser or third parties use modified programs or other programs not obtained from esco and the function of the system is impaired as a result.
esco's liability shall be governed by the statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, including intent and gross negligence on the part of esco's representatives or vicarious agents. Insofar as esco is not accused of intentional breach of contract, its liability for damages shall be limited to the foreseeable, typically occurring damage. esco shall be liable in accordance with the statutory provisions insofar as it culpably breaches a material contractual obligation; in this case, its liability for damages shall be limited to the foreseeable, typically occurring damage. Insofar as no intentional or grossly negligent conduct is alleged, the amount of damages shall be limited to € 500,000 for personal injury and property damage and to € 5,000 for financial loss. Liability for culpable injury to life, body or health remains unaffected. This also applies to the mandatory liability under the Product Liability Act. Unless otherwise stipulated above, liability is excluded. Insofar as esco's liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of its employees, representatives or vicarious agents.
The modalities for the acceptance of the software are mutually agreed upon when the order is placed. In addition, the following general conditions shall apply:
- the pre-acceptance of the software shall take place at esco.
- in case of a delay of the acceptance by more than 6 weeks beyond the date of the declaration of readiness for shipment for reasons beyond esco's control, all outstanding costs for deliveries and services rendered, including the last instalment of the project costs related to the acceptance, shall become due immediately at that point in time.
- should the formal acceptance not be possible or not be granted for any reason, the intended use of the software by the client shall automatically be deemed to be acceptance.
- the order shall be deemed to have been fulfilled upon acceptance of the
- esco undertakes to maintain secrecy vis-à-vis third parties with regard to the company-specific know-how passed on to esco by the client. This applies equally to any knowledge of internal company business processes and boundary conditions that may be acquired in the process.
- the client, for his part, undertakes not to pass on esco-specific know-how acquired through the cooperation to third parties.
also undertakes not to pass on to third parties software components which may have been developed exclusively for the client - and which are defined as such in writing - without the written consent of the client.
XIV Functional safety
We would like to point out that, according to the state of the art, it is not possible to develop data processing programs in such a way that no errors can occur during execution. This applies in particular to the use in connection with other programs, the further processing of externally generated output data as well as within the defined area of application for the processing of workpieces which do not comply with standards or generally accessible guidelines. Therefore, no liability can be accepted for the correctness of the calculation results and for any damage of any kind that may result from their use in production. esco will, however, endeavour to correct any reproducible errors detected during use and program maintenance as quickly as possible.
XV General safety regulations
- The software may only be operated by trained personnel when used on machines and when creating production specifications. Here, comprehensive knowledge of the operation and function of the user software as well as of all production-related boundary conditions relevant for the application (machine, control, process) is indispensable.
- although the software contains a large number of safety precautions (plausibility checks, etc.), the user is responsible for conscientiously checking both the input data and the results.
If the purchaser has his (residential) seat outside the Federal Republic of Germany, he is obliged to comply with the import turnover tax regulations of the European Community. The purchaser is obliged to disclose his VAT identification number to esco and to provide esco with the necessary information regarding his entrepreneurial status, the use and transport of the delivery items and the statistical reporting obligation. 2. The
export of the delivery items and the technical know-how may be subject to
domestic and foreign - in particular US-American - export control regulations. The purchaser undertakes to comply with all relevant export control regulations and to impose this obligation on any purchaser as well.
XVII General provisions
- The place of performance is Herzogenrath.
- Amendments and supplements to this contract must be made in writing and must be expressly designated as such.
- Should any provision of this contract be or become invalid, the validity of the remaining provisions shall not be affected thereby. The contracting parties undertake to replace the invalid provision by a valid provision which comes as close as possible to the economic purpose of the invalid provision.
- If the customer is a legal entity under public law or a special fund under public law, the provisions applicable to a merchant under these terms and conditions shall also apply.
- the customer may assign his rights and obligations under the contract concluded on the basis of these terms and conditions only with esco 's written consent. The same shall apply to the assignment of his rights under this contract.
- The customer shall notify esco without delay of any change in his place of residence or registered office as well as of any changes in the legal form and the liability relationships of his company.
- the customer hereby consents to the storage and processing by esco of data that has become known in the course of the contractual and business relationship within the meaning of the Data Protection Act, insofar as this is necessary for the performance of the contract, in particular for order processing and customer support, whereby the interests of the customer are to be taken into account.
- the place of jurisdiction for all legal disputes concerning and arising from this contract shall be Herzogenrath. esco shall furthermore be entitled to assert its claims at the general place of jurisdiction of the customer.
- German law shall apply to the execution of this contract. The application of UN sales law is excluded.