General Terms and Conditions of EES Eppinger Engineering Solutions GmbH
Valid from 01.07.2018 - Please read carefully.
§1 – Scope of application
These general terms and conditions apply to all contracts concluded between the company EES Eppinger Engineering Solutions GmbH – hereinafter referred to as EES GmbH – and the purchaser as well as all other agreements made within the scope of the business relationship.
The customer's general terms and conditions are expressly excluded from the content of the contract, even if they have not been expressly contradicted by EES GmbH.
In the event that the customer does not wish to accept the following general terms and conditions of business and delivery, he must inform EES GmbH of this in writing in advance.
The terms and conditions of the upstream supplier shall apply to the delivery of hardware.
§2 – Offers
Unless otherwise agreed in writing, offers made by EES GmbH are subject to change. A contract shall not be concluded until a written order confirmation has been issued. The scope of delivery shall be determined on the basis of the offer confirmation on the part of EES GmbH.
EES GmbH reserves the right to deviate from the quotation documents for technical reasons even after order confirmation. EES GmbH reserves the property rights, copyrights and industrial property rights for cost estimates, drafts, working documents, work templates and other documents. These may not be made accessible to third parties.
They must be deleted immediately or returned to EES GmbH if the order is not placed with EES GmbH.
§3 - Prices and terms of payment
All prices are ex Bergisch Gladbach, excluding shipping and packaging, plus VAT.
Unless expressly agreed otherwise, the following terms of payment shall apply:
For software development from an order volume of 5000,00 €:
50% due on acceptance of order, 30% after delivery and 20% after acceptance.
For software development up to an order volume of 5000,00€:
80% due on delivery and 20% after acceptance.
Services and travel expenses are due for payment immediately after the service has been rendered.
Goods such as hardware and third-party software are due for payment immediately after delivery.
After the due date, default in payment shall occur without further reminder. In the event of default of acceptance (§ 4), the remaining outstanding amount plus the statutory value added tax shall become due for payment immediately. Thereafter, default in payment shall occur.
Counterclaims of the customer not recognised by EES GmbH are not admissible for the withholding of payments. The customer may only offset claims that are undisputed or have been legally established. If the customer is in default of payment, the amount owed shall be subject to interest at a rate of 4% p.a. above the discount rate of the Deutsche Bundesbank applicable at the time. We reserve the right to claim further damages caused by default.
§4 - Delivery times
The delivery period begins on the day of order confirmation by EES GmbH.
Compliance with the delivery deadline is conditional upon the timely receipt of all documents, hardware and software settings to be supplied by the customer, the availability of all necessary permits, releases, clarification and approval of plans, compliance with the agreed payment terms and other contractual obligations.
In the event of non-fulfilment of the preconditions, the delivery period shall become invalid and shall be renegotiated taking into account the operational necessities.
In the case of software services of all kinds, delivery shall be deemed to have taken place upon handover of the data carrier or the developed system.
Unless otherwise agreed, the source codes are not part of the scope of delivery owed.
In the event of a delay in acceptance by the customer, the written notification of readiness for delivery by EES GmbH shall be sufficient to justify the delay in acceptance.
Partial deliveries are explicitly permitted.
If non-compliance with the delivery deadline can be proven to be due to force majeure, war, strike and lockout at EES GmbH, or in the supplier's business or its delay in delivery, or also according to general legal principles due to circumstances for which EES GmbH is not responsible, the delivery deadline shall be extended to a reasonable extent.
In the event of non-compliance with the delivery period for reasons other than those described above, the customer may, after expiry of a reasonable period of grace set in writing and in the event of demonstrable damage caused by the delay, demand compensation in the total amount of 0.5% for each week of delay up to a total amount of 5% of the agreed price of those parts of the overall delivery which cannot be put into operation due to the delay in completion.
Higher claims for damages by the customer are excluded in all cases of delayed delivery, even after a period of grace granted by the supplier. The customer's right to higher damages in the case of proven gross negligence on the part of EES GmbH, as well as after withdrawal following the unsuccessful expiry of a reasonable grace period set by EES GmbH, shall remain unaffected.
§5 - Transfer of risk
The risk shall pass to the buyer as soon as the goods have been handed over to the transport company. The conclusion of transport or other insurances is left to the buyer.
§6 - Software License
Software including subsequent updates are generally recognized by the customer as being protectable by copyright. The customer receives the non-transferable and non-exclusive right to use the software for an unlimited period of time, in the case of demo, trial or test installations limited to a maximum of 3 months, as the case may be, with the following conditions (the license conditions contained in the software products also apply!):
The software may only be used in the network in the case of network versions or on the central processing unit on which it was first installed. Modifications, extensions or other interventions of any kind are not permitted. Duplication of software and any documentation and operating instructions provided is only permitted for data backup purposes. EES GmbH does not assume any warranty or liability for duplicated software.
The provision of the software and documentation to third parties is prohibited. The use of parts or the entire software by third parties or for the purposes of third parties, or that third parties gain insight into the documents is also prohibited.
No other rights to the software are transferred to the user.
In the event of a violation of the license terms, the customer shall pay a penalty for each violation in the amount of twice the respective software price of the currently valid company price list.
In the case of software licenses, the current software license agreement shall also apply.
§7 - Contract development software
Software developments to be carried out by EES GmbH are subject to the following provisions:
The services to be provided shall be set out in a specification acknowledged by both parties as an integral part of the contract. In exceptional cases, this may also be the performance description in concepts. Changes or additions to the specifications must always be agreed in writing by means of a document to be signed by both parties. This also includes the financial effects of the changes/additions.
If, due to the complexity of the order processing, deadlines are exceeded, any additional periods are to be assessed by the customer, taking into account the technical problems or delivery difficulties that have occurred.
Requests for changes and additions by the customer can postpone agreed deadlines in accordance with the additional work involved.
After delivery of the developed software, an acceptance and possible error correction is carried out in accordance with §8. All further claims, in particular claims for damages due to delays in commissioning or downtimes, are excluded. Excluded are claims due to proven gross negligence on the part of EES GmbH.
§8 - Acceptance
The acceptance of software adaptations and software developments is generally carried out immediately or by arrangement within 14 days after delivery. For this purpose, functional tests are suggested by EES GmbH or test runs are carried out using agreed test methods.
If a formal acceptance has been agreed, a protocol will be drawn up. This is signed by the customer as well as by EES GmbH. If no formal acceptance is foreseen, this will occur automatically within 30 days following a simplified procedure.
If the delivery is free of defects or if any defects have been remedied, the customer is obliged to accept the delivery. If a formal acceptance has been agreed upon and the customer does not accept, EES GmbH shall request acceptance by setting a deadline of 14 days. The expiry of the deadline shall be deemed as acceptance. If the customer does not submit the declaration of acceptance within the set period, it shall be deemed to have been submitted upon expiry of the period.
Existing defects and defects recorded in the acceptance protocol shall be remedied free of charge by EES GmbH within the scope of the performance of the contract in accordance with the scope of the order.
§9 – Installation, training, consulting, other services
All services such as installation, commissioning, functional testing, concept development, consulting, training and software presentations shall - unless otherwise agreed - be invoiced on the basis of the hours actually worked in accordance with the hourly rates of the EES GmbH price list applicable at the time of performance.
Travel costs for arrival and departure from the company's headquarters shall be borne by the customer. Travel times are considered working hours.
Travel expenses and overnight stays will be charged according to individual proof or, at the discretion of EES GmbH, according to the flat rate per kilometre according to the currently valid travel list, in the case of overnight stays according to the flat rate of the currently valid income tax guidelines.
In the case of installations, the customer must provide the following prerequisites:
The necessary preparatory work for the installation must be completed by the customer so that the installation can be carried out directly by the representative of EES GmbH.
During installation, the customer shall keep all necessary equipment available, assist in the operation of connected and necessary third-party equipment. Work shall also be made possible outside normal working hours.
Delays in installation for which EES GmbH is not responsible shall be borne by the customer as consequential costs. This includes waiting times, further necessary travel of the employees of EES GmbH or a commissioned subcontractor.
The customer is obligated to immediately provide all information necessary for the fulfillment of the contractual services on the part of EES GmbH.
Test data must be provided by the customer on request in sufficient type and quantity.
Training courses and presentations can be cancelled free of charge up to the 10th day before the start of the course. The cancellation must be made in writing.
Cancellations up to the 5th day before the start of the course will be charged 50% of the agreed fee. For later cancellations, the full agreed fees will be charged.
The training contents conveyed in seminars and presentations do not constitute a guarantee for the quality of the products.
§10 - Warranty
According to the current state of the art, it is not possible to create computer programs in such a way that they work error-free in all applications and use cases. This is known to the customer.
EES GmbH warrants that the software provided essentially fulfils the functions specified in the service description. Software defects are only defects in which the program functions deviate reproducibly from the functions according to the performance and function description and which are demonstrably not due to defects in the hardware, software or other system parts not supplied by EES GmbH.
The defects shall be eliminated by EES GmbH by installing an improved software version or by giving advice on how to eliminate or circumvent the effects of the error. The client shall provide all documents required for error diagnosis as well as the computer equipment and computer occupancy times required for error elimination free of charge.
Excluded from any warranty are parts subject to wear and tear as well as damages caused by natural wear and tear, faulty operation or repair and maintenance work or modifications not expressly authorized by EES GmbH. If EES GmbH incurs expenses due to a notice of defects which are not based on defects in the products delivered by EES GmbH, the customer shall bear the expenses incurred by EES GmbH. In particular, the expenses for the localisation of defects are to be borne by the customer.
The warranty period is 6 months from the date of acceptance.
For delivered hardware and software not created by EES GmbH, EES GmbH is only liable to the extent of the supplier's warranty.
If repeated attempts by EES GmbH to remedy the defect are unsuccessful or if EES GmbH does not offer a newer program version free of defects, the customer's rights to a reduction in payment and cancellation of the contract shall come into effect again after a reminder has been sent and a reasonable period of grace has been set.
The warranty expires if the customer modifies the delivered program. EES GmbH excludes any further warranty with regard to the software, possibly delivered manuals and other written materials.
§11 - Liability
EES GmbH shall only be liable for damages caused by it or its vicarious agent due to gross negligence or intent up to the amount of the paid purchase price of the item delivered by EES GmbH. In the event of loss or damage to data or data carrier material, the obligation to provide compensation does not cover the replacement of lost data.
To the extent permitted by law, further claims for damages against EES GmbH, for whatever reason, are excluded. In particular, consequential damages (for example, damages from lost profits, business interruption, loss of business information or other financial loss) are excluded.
All claims for damages against EES GmbH, company employees or other vicarious agents shall become statute-barred after 12 months from the occurrence of the damage. Excluded from this are claims arising from offences, where the statutory limitation provisions apply.
If the customer has contributed to the occurrence of damage through culpable conduct, the principles of §234 BGB (German Civil Code) of contributory negligence shall determine the extent to which EES GmbH and the customer must bear the damage.
EES GmbH shall not be liable for damage caused by force majeure, acts of war or natural disasters or other events beyond its control (strikes, lockouts, traffic disruptions, etc.).
§12 - Retention of title
All goods remain the property of EES GmbH until all existing claims against the customer, including non-contractual claims, have been fulfilled. Resale in the ordinary course of business is permitted.
§13 - Final provisions
The contract remains effective in its remaining parts even if individual points are legally ineffective. Ineffective provisions shall be replaced by new provisions that come close to the intended economic success.
Deviating or additional agreements to the general terms and conditions are only effective in written form as an additional agreement.
The place of performance and jurisdiction is the company's registered office, insofar as this is permissible in accordance with §38 ZPO (German Code of Civil Procedure).
The law of the Federal Republic of Germany shall apply exclusively.
To avoid major damage due to data loss, it is essential to make backup copies at regular intervals. This should include the original software. Keep backup copies, license information and license certificate in a suitable and safe place.