General business terms and conditions of Barthauer Software GmbH

Last update: 29 September 2009

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Section 1: Scope

  1. All delivery transactions, agreements and offers in the course of commercial business are subject exclusively to the following terms and conditions in the respective current version, even without express future reference to the same. With the award of contract or acceptance of the delivery, the contractual partner agrees to their application.
  2. All amendments or endorsements to these terms and conditions must be in written form.
  3. These terms and conditions apply in particular also when the contractual partner has notified us of its own business terms and conditions deviating from these terms and conditions, or submitted them in documents. Such terms and conditions do not become part of the contract without the express consent of the seller or persons acting for the same.

  1. Verbal agreements are always confirmed by us in writing.
  2. We reserve ownership rights and copyrights for data, illustrations, drawings, calculations and other documents provided by us. The corresponding data and/or documents may not be made accessible to third parties and/or duplicated without the express consent of the seller.
  3. Insofar as the order confirmation deviates from the verbal order, its contents are deemed to be contractually agreed upon unless a written notice of objection is submitted within eight days after sending the order confirmation.

  1. Prices are net plus VAT at the respective applicable rate. Prices are calculated in EUROS (€).
  2. We are bound by prices in our offers and price lists for 30 days from publication.
  3. In case of circumstances that occur four months or more after the conclusion of contract, have a significant unforeseeable influence on the basis of calculation and are outside the seller’s sphere of influence, we have the right to adjust the agreed price, exclusively in an amount that takes these circumstances into account. This applies in particular to the amendment of laws, official measures etc. The price adjusted in this manner uses the same calculation base as the originally agreed price and does not serve to increase profits.
  4. Invoice amounts are generally due within 14 days after the invoice date.
  5. In case of payment after the date according to paragraph 4, late payment interest is charged at the rate of 8 percent p.a. over the prime rate (Section 288, 247 of the German Civil Code (BGB)). Asserting damages caused by delay is reserved.
  6. Cheques are only accepted on account of performance, drafts are also accepted only on account of performance and only by individual agreement.
  7. The contractual partner can only assert rights to offsetting or retention in case of undisputed, recognised or legally established claims.
  8. The contractual partner may only assert a right of retention if the counter-claim is based on the same contractual relationship.

  1. The agreed term of delivery is deemed to be met if, by the end of said term, the goods have left the warehouse or, in case of shipment ex works, the plant of the manufacturer, or if notice of readiness for shipment has been issued.
  2. If the contractual partner still has to take actions and/or meet requirements essential for our delivery and performance, the term of delivery is delayed/extended by the corresponding period of time.
  3. If we are prevented from meeting our obligations due to circumstances of force majeure that were not foreseeable at the time of contract conclusion, such as labour disputes, strikes, lockouts, unforeseeable business disruptions or unavoidable supply difficulties, as well as other circumstances beyond our control, we are relieved of our obligation to perform for the duration of said disruption. Agreed delivery terms are extended by the duration of the disruption. Claims for damages by the contractual partner are excluded for circumstances of the aforementioned nature. However, the contractual obligations of the contractual partner are suspended for the duration of the disruption as well. We shall inform the contractual partner of the start and end of force majeure circumstances in terms of this provision and, no later than within two months after the end of the disruption, submit proof that we are not at fault for the same.
  4. If delivery is delayed due to circumstances that are the responsibility of the contractual partner, the contractual partner is obligated to reimburse us for all additional expenditures incurred by us as a result.

  1. The contractual partner bears the price risk as soon as the goods are transferred to the contractual partner or the person entrusted with shipment. In case of a purchase on trial, the passing of risk occurs only upon approval. The costs of inspection, storage and return are borne by the contractual partner.
  2. Partial deliveries are permitted insofar as they are not unreasonable for the contractual partner on a case-by-case basis.

  1. We reserve ownership of the delivery item until all payments in the business relationship with the contractual partner have been received. This retention of title also extends to recognised balances insofar as we record claims against the contractual partner in a current account (current account reservation).
  2. In case of conduct by the contractual partner that is contrary to the contract, in particular late payment, we have the right to take back the delivery item; the contractual partner is obligated to surrender it. Provided that the provisions of the BGB for consumer loans are not applicable, the recovery of the delivery item by us does not constitute withdrawal from the contract unless this is expressly declared by us in writing. Seizure of the delivery item always constitutes withdrawal from the contract. In case of seizure or other third-party intervention, the contractual partner is obligated to notify us promptly in writing so the contractual partner can file suit pursuant to Section 771 of the Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the court and out-of-court costs of legal action pursuant to Section 771 ZPO, the contractual partner is liable to the seller for the resulting shortage.
  3. The contractual partner has the right to resell the delivery item in the ordinary course of business. All claims against the customers of the contractual partner or third parties equal to the final invoice amount (including VAT) arising from resale are assigned to us by the contractual partner now and in advance, regardless of whether the delivery item was resold without or by agreement. The contractual partner is authorised to collect this claim even after its assignment. We are entitled to collect the claim ourselves; however, we obligate ourselves not to collect the claim as long as the contractual partner properly meets its payment obligations and is not in default of payment. In this case we can demand that the contractual partner has to disclose the assigned claims and corresponding debtors, provide all information required for collection, hand over the corresponding documents, and inform the debtors (third parties) of the assignment.
  4. If the delivery item is inseparably combined or mixed with other items not belonging to us, we acquire joint ownership of the new goods in proportion of the value of the delivery item to the other combined or mixed items at the time of combining or mixing. If combining or mixing takes place in a manner so that the item of the contractual partner is considered the primary item, it is hereby agreed that the contractual partner transfers proportionate joint ownership to us. The contractual partner stores the wholly owned or jointly owned item for us. The contractual partner also assigns to us the claim to collateralise the claim of the seller against the contractual partner that arises for the contractual partner against a third party from combining the delivery item with a plot of land.
  5. The client is entitled to release of the retention of title when the collateral exceeds 110% of the realisable value. This claim to the release of collateral also applies when the estimated value of the goods transferred as collateral exceeds 150% of the collateralised claims.

  1. The contractual partner is obligated to inspect the goods promptly upon delivery. Complaints for defects are excluded if they are reported more than 30 calendar days after delivery of the goods. Concealed defects must be reported by registered letter promptly upon discovery, but no later than within three working days after discovery. A notice of defects must be addressed exclusively to us.
  2. If we make the contractually acquired object of performance available to the contractual partner on a trial basis for a certain period of time, the contractual partner has to issue a binding statement within the agreed terms whether the delivery is approved. If the contractual partner does not submit a statement by the end of the agreed term, this silence is deemed to constitute approval provided the object of performance has already been delivered. If the parties did not agree on a trial period, it is set at 30 days from delivery of the object of performance. Once the contractual partner has approved the delivery and performance, we are only responsible for defects the contractual partner was not and should not have been aware of at the time of approval. This does not affect the obligation to make a complaint pursuant to paragraph (1).
  3. When a complaint of defects on the delivered goods pursuant to paragraph (1) is made in a timely manner, we are free to choose replacement delivery or rectification three times. If rectification is not reasonable or is unsuccessful, the contractual partner may demand abatement or rescission of the contract.
  4. Claims of the contractual partner for supplementary performance expire 12 months after delivery or acceptance.
  5. To the extent reasonable, the contractual partner has to give us the opportunity for any required rectification of defects. In case of default by the contractual partner in regards to actions required for this purpose, we assume no further liability for resulting damages.
  6. We are only liable for damages due to defects if they are caused by a breach of duty due at least to gross negligence by us, our legal representatives or our assistants.
  7. The preceding restriction expressly does not apply insofar as liability for damages due to the loss of life, physical injury or the impairment of health is based on a culpable breach of duty by us, our legal representatives or our assistants.
  8. Paragraphs 1, 2, 3 and 7 do not apply insofar as we have assumed a guarantee for specific characteristics of the delivery item for an established period of time.

  1. All other claims for damages of any kind, in particular due to culpa in contrahendo or the violation of secondary contractual or legal obligations, can only be asserted by the contractual partner if they are based on a breach of duty by us, our legal representatives or our assistants due to at least gross negligence.
  2. The preceding limitation does not apply to foreseeable damages due to the breach of essential contractual obligations. In such a case however, we are only liable insofar as the damages were foreseeable. We are not liable for unforeseeable excess risks.
  3. The preceding limitation also expressly does not apply insofar as liability for the loss of life, physical injury or the impairment of health is based on a culpable violation by us, our legal representatives or our assistants.

  1. We can withdraw from the contract if, after the contract was concluded, circumstances essential for contractual performance have developed beyond our control so that performance for us becomes impossible or unreasonable (for example failure of a sub-supplier to deliver to us, or delivery only under significantly worse conditions, for reasons that are not our responsibility).
  2. We also have a right to withdrawal in case of a material breach of contractual obligations by the contractual partner, in particular when the contractual partner violates a duty of care in regards to handling of goods delivered subject to the retention of title.
  3. Our right to withdrawal also applies if the contractual partner provides incorrect creditworthiness information. The same applies if the contractual partner is objectively unworthy of credit and our payment claim therefore appears at risk. This applies correspondingly if the contractual partner has issued an affirmation in lieu of oath and/or insolvency proceedings have commenced for the assets of the contractual partner.
  4. Otherwise our right to withdrawal and that of the contractual partner is based on the applicable legal provisions.

  1. The contractual relationship between the parties is subject exclusively to German law. In particular, the United Nations Convention on the International Sale of Goods does not apply.
  2. The jurisdiction for all legal disputes arising from the contractual relationship is Braunschweig.

  1. The place of fulfilment for all contractual obligations is Braunschweig.