General Terms and Conditions of

Stemmer GmbH 

(as of February 2014)

Application and Scope of the General Terms and Conditions

 

The following General Terms and Conditions (hereinafter “GTC”) apply to all contracts for services from Stemmer. Stemmer shall provide services solely under these GTC. The application of terms and conditions of the Customer that are contrary or differing shall be excluded, unless Stemmer has given its express consent to their application in writing. These GTC also apply, if Stemmer provides services without reservation being aware of general terms and conditions of the Customer that are contrary to or differing from these General Terms and Conditions. These GTC also apply to future business relations with the Customer, even if the application of these GTC is not expressly agreed once again. The specific supplementary conditions for the sale of hardware and software, hardware and software maintenance, and Professional Services (“Supplementary Conditions”; available on www.stemmer.de in the section where the GTC are provided), as well as the Statement of Work, where agreed in the individual case, shall apply in addition. The scope of the service obligations is exclusively governed these documents. In case of any inconsistencies, the order of priorities shall be as follows: (1) the GTC and the Supplementary Conditions, 2) the Acknowledgment of Order, (3) the Statement of Work, if agreed.

1. Offer / Conclusion of Contract.

 

1.1. All offers submitted by Stemmer shall be subject to change and non-binding, unless the relevant offer has been expressly designated as binding in writing by Stemmer. A contract shall be only concluded upon the written Acknowledgment of Order from Stemmer or at the latest upon provision of the service by Stemmer.

1.2. Stemmer reserves the right to apply technical changes during the delivery period, which do not impair the state of the services.

1.3. Delivery or performance dates shall be only binding, if Stemmer has expressly designated them as binding.

2. Payment / Invoicing.

 

2.1. All services shall be subject to the charges agreed between the Parties and set out in the Acknowledgment of Order. Unless otherwise agreed, the Customer shall pay the charges agreed for recurring services monthly in advance.

2.2. The necessary expenses as evidenced that are incurred by Stemmer within the scope of the service provision shall be reimbursed separately, unless otherwise agreed, which applies in particular to travel and lodging expenses as well as other expenses arising within the scope of the service  provision.

2.3. Unless otherwise agreed, payments shall be due net within 14 days after receipt of the invoice.

2.4. Stemmer shall be entitled to separately invoice partial deliveries that can be independently used by the Customer.

2.5. The currency applicable to the invoicing and all payments to be made by the Customer shall be Euro. In case that a different currency is stipulated to be applicable in the Acknowledgment of Order, a conversion shall be made from Euro into the relevant target currency according to the applicable closing rate of the European Central Bank on the day before the receipt of the Customer’s purchase order. In case that no closing rate is determined for this purpose, the latest closing rate determined shall apply. A currency conversion shall also be made, if the amounts invoiced to the Customer are denominated in Euro, although the underlying preliminary work has been purchased by Stemmer from third parties in a foreign currency; in this case the Euro amount to be invoiced to the Customer shall be calculated in accordance with Sentences 2 and 3 taking into account the closing rate applying in relation to this foreign currency.

2.6. All charges for deliveries and services are exclusive of applicable taxes (including, but not limited to the applicable value-added/sales tax), customs duties or other taxes, with the exception of income taxes payable by Stemmer. In case that Stemmer makes deliveries and provides services to affiliates of the Customer outside Germany, Stemmer shall be entitled to

(a) make these deliveries and provide these services through a company affiliated to Stemmer and/or another third-party supplier which has obtained the individual licenses, permits and/or notifications required (including, but not limited to such of a regulatory and/or tax nature) in the relevant country for the purpose of making the relevant deliveries and providing the relevant services, and/or (b) to transfer the relevant contract for the aforementioned purpose to the respective affiliate of Stemmer or the relevant third-party supplier. Stemmer shall notify the Customer in writing of any transfer of a contract as provided in Sentence 2.

2.7. Stemmer may make the provision of services contingent upon the provision and maintenance of an adequate security in favour of Stemmer for the payment of all charges due under the contract provided in the form of a bank guarantee issued by a credit institution based in the European Union, if the Customer is in arrears with the payment of charges under the contract or information from Creditreform disclose that the credit rating index of the Customer has deteriorated to the effect that reasonable doubts about the solvency of the Customer arise. The above shall also apply, if reasonable doubts about the solvency of the Customer arise on account of information from another recognised credit information agency.

3. Transfer of Risk / Delivery / Notice of Defects.

 

3.1. Upon delivery to the carrier selected by Stemmer, the risk of accidental loss or deterioration of the products shall be transferred to the Customer.

3.2. A transport insurance policy shall be taken out only at the express request of the Customer, who shall bear the costs of the transport insurance.

3.3. The Customer shall promptly examine the external condition of the delivered products, complain

about any damages in transit to the delivering carrier, secure the related evidences and promptly notify Stemmer of any damages by telephone and in writing.

4. Customer’s Obligations to Cooperate.

 

4.1. The Customer shall provide appropriate and reasonable to Stemmer in its provision of the agreed serves, where necessary.

4.2. Where the Customer is responsible for any preparatory work (such as the provision of individual technical components, software and technical documents required by Stemmer in order to fulfil its obligations, including the localization and identification of errors, etc.), the Customer shall complete all such preparatory work in sufficient time prior to the commencement of the service provision by Stemmer. The Customer shall, upon reasonable request, provide to Stemmer remote access to the Customer’s technical infrastructure according to the requirements announced by Stemmer and provide for a use of the transmission route by Stemmer free of charge. Stemmer shall not be liable for any transmission failures occurring on the transmission route.

4.3. The Customer shall, upon reasonable notification from Stemmer, allow Stemmer, its employees,  agents and subcontractors access to the Customer’s premises as may be reasonably necessary or appropriate for the performance by Stemmer of its obligations under the contract. Stemmer, its employees, agents and subcontractors shall observe the Customer’s reasonable site regulations as previously advised in writing to Stemmer.

4.4. Where Stemmer installs hardware or configures software, the Customer shall prior to the installation or configuration at its own cost:

(a) obtain all necessary permits, including permits for necessary alterations to buildings;

(b) provide a suitable and safe working environment, including all necessary trunking, conduits and cable trays in accordance with the relevant installation standards;

(c) provide any electricity and telecommunication connection points required by;

(d) provide any devices necessary for connecting the hardware to the relevant telecommunication facilities, unless otherwise agreed; and

(e) properly provide the internal cabling between the hardware and the Customer  provided equipment, unless otherwise agreed.

The above measures must be completed in advance of any installation and configuration work by Stemmer.

4.5. The Customer undertakes to comply with all software licensing terms and terms of use of the software producer applicable to the Software supplied by Stemmer (including the operating software installed on the supplied hardware).

4.6. Being the owner of the hardware, the Customer is responsible for the disposal of the hardware after the final abandonment of use. Stemmer shall not be obliged to take back and dispose of the hardware as waste electronic equipment under Sec. 10 (2), Sentence 1, of the German Electrical and Electronic Equipment Act (ElektroG).

4.7. If a service cannot be provided or not provided in due time for reasons attributable to the Customer, in particular because the Customer has failed to perform or to perform in good time its obligations to cooperate referred to in Clause 4 at all or in due time, the Customer shall indemnify Stemmer against any resulting loss and additional expenses. Moreover, in this event, all time limits and/or dates of performance agreed between the Parties shall be extended by the duration of the delay for which the Customer is responsible. Any further rights of Stemmer remain unaffected.

5. Warranty.

 

5.1. Defects in Quality

a) If products or services delivered by Stemmer show defects that significantly impair their use as provided in the contract, the Customer shall initially be entitled, at Stemmer’s option, to a rectification or replacement delivery (supplementary performance). If the Customer has set a reasonable grace period and rectification or supplementary performance is refused by Stemmer or finally fails, the Customer shall be entitled, at its option, to rescind the relevant contract or to  demand a reasonable reduction of the payment. Supplementary performance shall be deemed finally failed only if at least two attempts of rectification by Stemmer have been unsuccessful.

b) In case of a minor deviation of the products or services from the contractually agreed quality not limiting the functional capability, the Customer may only demand a reduction of the charges attributed to the affected products or services.

c) Stemmer shall bear the expenses incurred due to supplementary performance, including but not limited to costs of transport, travel, labour and materials. Any addition expenses incurred by Stemmer as a result of the relocation of the products from the Customer’s premises to a place other than the contractually agreed place of delivery shall be borne by the Customer.

5.2. Defects in Title

a) If the use of the products or services by the Customer in the agreed or customary environment  results in rights of third parties being infringed with corresponding claims being asserted by right holders against the Customer, the Customer shall promptly notify Stemmer in writing after such claim has been asserted by such third party. Stemmer shall, at its own option and at its own expenses, procure the right for the Customer to continue to use the product or service, or modify the product or service so that it becomes noninfringing, or take back the Product or Service at the invoiced charges minus a reasonable compensation for use. However, this shall only be applicable if Stemmer cannot achieve any other remedy at reasonable expenses or such remedy cannot be reasonably expected from Stemmer. Stemmer shall be released from the obligations under the Sentences 2 and 3, if the Customer does not act in accordance with the instructions given by Stemmer in defending such third-party claims.

b) To the extent that a remedy in terms of Clause

5.2 lit. (a), Sentence 3, is not possible or cannot be reasonably expected from Stemmer, the Customer shall be entitled to assert claims for damages or reimbursement of expenses in accordance with the  limitations of liability set out in Clause 6.

5.3. Unless there is a sale of consumer goods, all warranty claims of the Customer shall be subject to a limitation period of one year starting upon the commencement of the statutory period of limitation, unless otherwise agreed.

5.4. Any claims for damages of the Customer based on defects shall be subject to the provisions of Clause 6. Section 444 BGB (German Civil Code) remains unaffected when hardware or software is purchased.

5.5. When hardware or software is purchased, product descriptions and/or promotional statements shall be deemed guarantees of quality and/or durability only to the extent that this is expressly confirmed by Stemmer in writing.

6. Liability.

 

Any liability for damages of Stemmer to the Customer shall be subject to the following provisions of this Clause 6.

6.1. In cases involving intent or gross negligence, assumption of a guaranty of quality and/or durability as well as fraudulent concealment of a defect, Stemmer shall be liable according to the statutory provisions.

6.2. In cases involving slight negligence, Stemmer shall be liable for injury to life, body or health according to the statutory provisions. In all other cases of slight negligence, Stemmer shall be liable only for breaches of a cardinal obligation and only for foreseeable damages typical for this kind of contract. A cardinal obligation means an essential contractual obligation the fulfilment of which is a precondition for the proper performance of the contract and may be usually relied upon by the Customer.

6.3. The liability for foreseeable damages typical for this kind of contract to be compensated in the event of a breach of a cardinal obligation pursuant to Clause 6.2 shall be limited to € 25,000 per event of damage and to € 100,000 for all events of damage occurring within one contract year.

6.4. To the extent that a liability of Stemmer for damages caused by negligence does not follow from the Clauses 6.1 to 6.3 above, Stemmer shall not be liability for such damages.

6.5. The liability pursuant to the provisions of the applicable product liability act remains unaffected.

7. Retention of Title.

 

7.1. Stemmer shall reserve ownership of the supplied hardware or software (“Goods under Reservation”), until all claims for payment arising from the business relations with the Customer have  been fulfilled.

7.2. The Customer shall be obliged to carefully handle the Goods under Reservation until ownership is transferred.

7.3. The Customer shall be entitled to resell the Goods under Reservation within the course of ordinary business, as long as the Customer is not in default. The accounts receivable resulting from the resale of the Goods under Reservation are hereby assigned by way of security from the Customer to Stemmer. Stemmer grants to the Customer a revocable authorisation to collect the accounts receivable assigned to Stemmer for the account of Stemmer on its own behalf. This collection authorisation may be revoked, if the Customer is defaulting. Stemmer shall be obliged to release the securities furnished by the Customer under Sentence 2 at the Customer’s request, insofar as the value of the securities furnished to Stemmer exceeds the accounts receivable to be secured by more than 20 % in total.

7.4. Pledges or transfers by way of security of the Goods under Reservation to third parties shall not be permitted.

7.5. The Customer shall be obliged to promptly inform Stemmer about any relocation of the Goods under Reservation.

7.6. In the event of any action on the part of the Customer in breach of the contract, in particular default in payment, Stemmer shall be entitled to reclaim the Goods under Reservation or to demand assignment of the Customer’s rights to recover possession vis-à-vis the third party or, after a reasonable grace period has elapsed to no avail, rescind the contract. The demand for repossession and/or the recovery of the Goods under Reservation does not entail rescission of the contract unless this is expressly stated by Stemmer. The Customer shall grant Stemmer access to the premises in which the Goods under Reservation are located for the purpose of repossessing the Goods under Reservation.

8. Assignment / Set-Off / Right of Retention.

 

8.1. The assignment of claims by the Customer to third parties shall be subject to the prior written consent of Stemmer, which shall not apply to the assignment of claims for money pursuant to Sec. 354 a HGB (German Commercial Code).

8.2. The Customer may only set off its own claims against counterclaims of Stemmer, if such own claims are uncontested or have been recognized by declaratory judgement.

8.3. The Customer shall have a right of retention only on account of counterclaims directly derived from the contract. The Customer who is a business entity, a legal person under public law or a special fund under public law, may assert a right of retention or a right to refuse performance only on  account of counterclaims that are uncontested or have been recognized by declaratory judgement.

9. Confidentiality.

 

9.1. Either Party undertakes to keep in confidence trade and business secrets as well as other confidential and proprietary information and matters of the other Party that has been entrusted to or has become known to the receiving Party in connection with the order processing, including the bid documents submitted by Stemmer to the Customer (hereinafter collectively the “Confidential Information”).

9.2. This Clause 9 shall not apply to information that:

a) is in the public domain other than in breach of the contract by the other Party; or

b) is in the possession of the receiving Party before such disclosure has taken place; or

c) is obtained from a third party who is authorized to disclose the same; or

d) is required to be disclosed on the basis of legal requirements or official orders or court orders.

9.3. The receiving Party may use Confidential Information only for the purposes of performing the contract and shall keep such Confidential Information in confidence for a period of three (3) years following the termination of this Agreement (in case of software, however, for an unlimited period).

9.4. At the request of the disclosing Party, the receiving Party shall return to the disclosing Party or destroy any Confidential Information upon termination of the contract.

10. Limitations of the Obligation to Perform.

 

Force Majeure / Reservation as to Availability of Supplies

10.1. Neither Party shall be liable for the nonperformance of its obligations, if this non-performance is caused by force majeure, which shall include but not be limited to events that are unforeseeable, irresistible and beyond the Parties’ control, including but not limited to severe weather, flood, landslide, earthquake, storm, lightning, fire, epidemic, acts of terrorism, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labour unrest, sabotage, interruptions of energy supply, expropriation by governmental authorities

10.2. Stemmer’s obligation to perform shall be subject to the proper and timely availability of supplies with products or preliminary work provided by the upstream suppliers of Stemmer. However, this shall be subject to Stemmer having concluded with due diligence a congruent covering transaction with the respective upstream supplier and the improper or untimely supply being not attributed to a fault of Stemmer.

11. Export Restrictions.

 

The Customer must take into account that the products or services delivered by Stemmer may be subject to export laws and regulations and regulations of other countries or the European Community and that any use or transfer of such products or services must be in compliance with such export laws and regulations. If the Customer considers an export of products or services delivered by Stemmer, the Customer undertakes to meet all notification and permit requirements resulting from these export laws and regulations.

12. Termination of the Contract for Cause (in Case of Continuing Obligations).

 

12.1. Stemmer shall be entitled to terminate the contract for cause in case of continuing obligations:

 

  • if the Customer is in default with the payment of at least two successive invoice amounts for recurring charges or a substantial part thereof; or
  • has repeatedly been in default with payments; or
  • if a petition for insolvency proceedings over the assets of the Customer has been filed or insolvency proceedings against the Customer have been instituted or the institution of such proceedings has been rejected for lack of assets; or
  • if deterioration of the Customer’s assets is apprehended. The application of Section 321 BGB remains unaffected.

12.2. Other statutory rights of the Parties to terminate the contract for cause remain unaffected.

13. Service Center.

 

Stemmer operates a Service Center available to the Customer during the agreed service hours (8x5 or 24x7). The Service Center is the central point of contact for all matters of the Customer in connection with the provision of the services.

14. No Data Backup.

 

Stemmer shall not perform any backup of the data – including data stored locally – of the Customer, unless otherwise agreed.

15. Final Provisions.

 

15.1. In the event that one or more provisions of these GTC are invalid or unenforceable, this shall not affect the validity of the remaining provisions.

15.2. Any amendment of the contract shall be made in writing. This requirement shall also apply to the waiver of written form.

15.3. The contract shall be exclusively governed by the laws of Germany to the exclusion of the conflict of law rules of German international private law and the UN Convention on Contracts for the International Sale of Goods.

15.4. If the Customer is a businessman, a legal person under public law or a special fund under public law, place of jurisdiction for all disputes arising out of or in connection with the contract shall be Munich. In addition, Stemmer shall be entitled to sue at the Customer’s place of business.

15.5. This GTCs authentic language is German. In case of conflict between this GTC and any translation, the German version will take precedence.