GENERAL TERMS AND CONDITIONS
1. Scope
1.1. These General Terms and Conditions apply to all deliveries of goods, works or services by aSR advanced Simulated Reality GmbH (the “Supplier”). In case of software-deliveries and of installations, specific Supplier Conditions for Software and Conditions for Installation and Commissioning will be applicable (see below).
1.2. Unless Supplier expressly agrees in writing, Supplier shall not be bound by any terms or conditions, whether written, oral or otherwise, that are different, or vary from or are in addition to these General Terms and Conditions and any such terms or conditions shall be null and void and of no effect whatsoever.
2. Offer and Acceptance
2.1. Offers by the Supplier are made without obligation and any sales contract shall become effective and binding on Supplier only when Supplier delivers to Customer its written Order Confirmation Form and Customer countersigns and delivers to Supplier the return portion of Supplier’s Order Confirmation Form, or if Supplier, at its election effectively delivers the goods to Customer.
2.2. Specifications and quotes in catalogues, brochures etc., are only binding if expressly referred to in the Order Confirmation Form.
2.3. Supplier’s offer and project documentation must not be reproduced nor disclosed to third parties without the Supplier’s written consent. The documentation remains the Supplier’s property and must be returned to Supplier upon Supplier’s request.
3. Prices
3.1. Prices are quoted ex Supplier’s works or warehouse, excluding packaging, dispatch and VAT (except specifically mentioned). All expenses, duties, tariffs, and taxes related to the delivery are paid by Customer.
3.2. If a Customer’s order should differ from the offer, the Supplier reserves the right to change prices accordingly.
3.3. Prices are based on the material and labour costs valid at the time of the first offer. Any changes to these costs prior to the date of delivery entitle the Supplier to change prices accordingly.
4. Delivery and Dispatch
4.1. Delivery periods do not start to run before the date of the Order Confirmation Form and are deemed to be fulfilled when the goods are dispatched from the Supplier’s factory or warehouse.
4.2. If not explicitly agreed to otherwise by Supplier, any governmental or other permits required for delivery in the Customer’s country may delay, unless received in time, delivery dates. Such governmental or other permits must be obtained in the Customer’s country by Customer.
4.3. Terms and obligations of delivery may at the election of Supplier be suspended during any period in which Customer’s payments are in arrears.
4.4. Supplier, at its election, may ship all or part of its goods and immediately invoice Customer for such partial or preliminary shipments.
4.5. The agreed delivery periods are subject to events of force majeure, or unforeseen events or events beyond the control of the Supplier, such as war, terrorism, Acts of God, governmental interventions and bans, energy and raw material shortages or outages, strikes, transport damages or delays. These events entitle the Supplier to extend the time of delivery, also if they affect any of its sub-suppliers.
4.6. In case delivery of the goods ready for dispatch is not possible or not desired by Customer, the goods will be stored at the Customer’s cost and risk. The delivery shall then be considered as performed and Supplier may, at its election, invoice for such delivery.
4.7. Compensation for commercially unreasonable delays in delivery by Supplier shall be payable only upon separate agreement, and shall be limited to an eventual monetary penalty in an amount to be agreed to by the parties, even if delays are caused by the Supplier’s negligence.
5. Performance of Contract and Transfer of Risk
5.1. Costs and all risks of loss are transferred to the Customer at the time of dispatch of the goods from the Supplier’s factory or warehouse, in default of the agreed delivery terms. This also applies in case of installations at the Customer’s premises and transport by the Supplier.
5.2. If delivery is delayed by Customer, transfer of costs and risk of loss shall become effective when the goods are ready for dispatch.
5.3. All periods depending on the Supplier’s performance of contract begin on and run from the dates specified in this section, irrespective of any quality tests or trial runs.
6. Payment
6.1. Unless otherwise agreed in writing, one half of the contract price shall be paid by Customer upon receipt of the Order Confirmation and the remaining half at the time of delivery. All invoices of the Supplier shall be due and payable within 14 days from the date of invoice.
6.2. Partial invoices are due immediately upon receipt. This also applies to payments which have to be made for additional performances, beyond the initial terms of contract, regardless of the conditions of payment applicable to the main performance.
6.3. Payment shall be made without any deduction in the agreed currency to the Supplier’s bank.
6.4. Customer shall not be entitled to any right of set off or to withhold or reduce any payments due because of warranty or compensation claims.
6.5. In case of delayed payment the Supplier is entitled at its election to do any of the following:
postpone performance of its own obligations until receipt of the payments due
accelerate and fix a due date for all outstanding payments (cancellation of periods for payment by Customer)
charge to Customer from such due date or maturity interest at the current discount rate (main refinancing operations) of the European Central Bank plus 8 percent per year or
rescind and cancel the contract if the Customer fails to pay within a reasonable period of grace.
6.6. Until Customer has fulfilled all financial obligations, the goods supplied shall remain the Supplier’s property. Customer shall be obliged to meet all legal requirements in order to safeguard Supplier’s property or security interest. In case of attachment or other kinds of seizure Customer shall evidence Supplier’s title and notify the latter immediately. By signing and returning to Supplier the Customer Order Form or by accepting delivery of goods Customer hereby agrees that it has granted Supplier a secured interest in the goods until such time as Supplier is paid in full.
7. Warranty
7.1. Unless otherwise agreed to in writing the warranty period shall be twelve months from the date of transfer of risk as stated in 5.1, regardless of the legal qualification of goods delivered or works performed.
7.2. Claims will be accepted only if Supplier is immediately notified of the defect in writing. Supplier’s obligations for such claims are restricted to the repair or replacement of the defective goods. All other costs are to be borne by Customer.
7.3. Defects which are due to abuse, vandalism, misapplication, failure to follow the instructions for use, warnings, safety or other regulations provided by Supplier, improper or prolonged storage or other mistakes on the part of the Customer, are excluded from the warranty. In case of products which have been produced at the order of or according to the Customer’s instructions or formulae, warranty will only cover the proper production of the goods.
7.4. Supplier’s warranty obligations cease if any changes or repairs are caused by Customer or a third person without Supplier’s prior written consent.
7.5. The performance of a warranty obligation does not prolong the original warranty period.
7.6. If the Warranty is breached, aSR will first perform remote trouble shooting by telephone or email. We may need buyer’s assistance to ascertain if the issue can be resolved remotely or if a new part needs to be sent. Buyer may be asked to partially dismantle parts of the System in order to gain access to a defective component. If a component needs to be replaced, aSR will send a new part to buyer to swap out. If buyer doesn’t wish to change the part himself, buyer can ship that part or assembly of parts of the System that contains the defective component back to aSR for replacement and return. If buyer wants us to perform any servicing or installation of replacement components on buyer’s behalf, buyer can request that one of our authorized representatives attends at buyer’s premises to carry out this work. In such a case aSR will charge at standard support rates.
7.7. Except as expressly provided otherwise in these T&Cs aSR is not liable in any circumstances for any financial loss, loss of profits, loss of business, loss of contract, loss of enjoyment, losses incurred as the result of third-party claims, consequential losses, or for any special or punitive damages, in each case whether foreseeable or not.
8. Liability
8.1. The Supplier’s liability and obligations according to the Product Liability Act or any other products liability acts or laws in any jurisdiction is excluded if specific provisions regarding the handling of the products, instructions for their use and/or warning and safety regulations as specified by the Supplier have not been observed.
8.2. Outside the scope of the Product Liability Act or other products liability acts or laws in any jurisdiction, damages shall be compensated only if the Supplier is held responsible for willful intent or gross negligence. In this case, however, Supplier’s obligations for such claims are limited to personal injury and material damage resulting directly from a defect in the products. All other claims, such as consequential loss of property or profit are explicitly excluded. Claims must be made in writing to Supplier within a period of six months from the date of occurrence of the damage, but not later than two years from the date of delivery, otherwise they are forfeited.
8.3. Customer is liable to subject its customers to the limitations of liability contained in this paragraph.
9. Rescission of Contract
9.1. Customer at its election may rescind the contract if delivery is delayed more than 60 days because of gross negligence of the Supplier and despite a reasonable period of grace granted in writing.
9.2. Apart from the case of delayed payment according to Para 6.5 d) the Supplier can rescind the contract if delivery or performance becomes impossible for reasons attributable to the Customer, or is delayed beyond a reasonable period of grace established in writing; the Customer’s financial situation has worsened notably after ordering the products, and Customer is not prepared to pay in advance, or to provide sufficient security. Such rescission of contract shall also be permissible if only parts of the delivery or performance, which are still to be fulfilled, are affected.
9.3. In case that, due to events indicated in Para 4.5, the agreed delivery times are delayed by more than one half of the period, but at least six months, either party shall be entitled to rescind the contract with respect to those parts of the delivery or performance which have still to be fulfilled.
9.4. If bankruptcy proceedings are instituted against either party’s assets, or these proceedings are not instituted because of insufficient assets, the other party may rescind the contract with immediate effect.
9.5. In case of rescission of contract for other reasons than the one stated in 9.1 all performances or parts thereof which have already been fulfilled by Supplier, shall be settled and paid according to the contractual provisions, notwithstanding and in addition to Supplier’s claims for damages. This also applies to deliveries and performances not yet accepted by Customer as well as to any preparatory work undertaken by the Supplier. Alternatively, Supplier is entitled to claim the restitution of products already delivered. Any other consequences resulting from a rescission of contract are excluded.
10. Patent Rights, Copyright
10.1. If a product is produced according to the Customer’s construction, drawings or specifications, Customer agrees to indemnify and hold the Supplier harmless for any infringement of patent rights of third parties.
10.2. All technical documents, in particular plans, drawings, technical descriptions, as well as catalogues, brochures, pictures or models etc. are the Supplier’s exclusive property and are subject to legal and statutory restrictions on copy, reproduction, competitive use etc. Para 2.3 also applies to such documents.
11. Place of Jurisdiction, Applicable Law
11.1. In case of controversies arising from the contract the venue of legal proceedings shall be the German tribunal at the Supplier’s registered place of business. The Supplier shall, however, also be entitled to take action before a competent tribunal at the Customer’s place of business.
11.2. The parties may also agree to have controversies settled by arbitration.
11.3. The contract shall be construed and interpreted according to German law. It is mutually agreed that the UNCITRAL Agreement of the United Nations on the law of international sales of goods does not apply.
12. Miscellaneous
12.1. Supplier in its sole discretion may assign or delegate any of its duties or rights under the order or contract at any time without prior notice to or consent of Customer. The order or contract may not be assigned by Customer without Supplier’s prior written consent, and in any event shall be binding on Customer’s successors and assigns.
12.2. No covenant, term or condition of this order or contract can be waived by Supplier except by its written consent. This order or contract may be amended or modified only by a written instrument signed by Supplier and Customer.
GENERAL TERMS AND CONDITIONS FOR SOFTWARE OF ASR
1. Scope
These General Terms and Conditions are special conditions that shall be applied to the delivered software. Unless stipulated otherwise in these conditions, the General Terms and Conditions of aSR shall apply.
2. Subject of Contract
2.1. Software
Within the meaning of these General Terms and Conditions, the software includes software programs sold to the buyer for utilization on and operation or control of electrotechnical and/or electronical systems and devices, plus the accompanying operating instructions. The buyer may use the software only after obtaining a special software licence from aSR.
If for technical reasons, the data media delivered to the buyer contain software not covered by the software Licence granted to the buyer, this software may be utilized only with a separate written licence. The delivered software may include technical measures to prevent access to such unlicensed software.
2.2. Software Used on Hardware Delivered by aSR
If the Software is sold for the purpose operating plants or devices (hardware) delivered by aSR, the buyer is granted the non-transferable and non-exclusive right to utilize the software, but only on the specified hardware and place of installation and under observation of the contractual specifications. aSR reserves all rights not expressly granted to the buyer. In particular, the buyer may not, without prior written consent by AVL, copy, modify or distribute the software to the Third Persons or use the software on hardware other than specified in the contract.
2.3. Independent Software
Software which is sold to the buyer not in connection with a specified hardware shall be utilized by the buyer only on those plants and devices specified in the Software Licence Contract by type, number and place of installation. For other respects, the terms and conditions as specified by section 2.2 shall be applicable correspondingly.
2.4. Additional Performances
Additional performances shall be charged separately.
Additional performances include, among others:
– copying, translating or generating of the software, as well as performances as described by section 4.4;
– data media supplied by aSR, unless these are part of hardware delivered by aSR;
– analyzing and correcting of deficiencies caused by improper handling, operating mistakes, or other circumstances not caused by aSR,
– introduction and training, unless included in the contract;
– improvements, i.e. updated versions of the software offered to the buyer, which facilitate operations, shorten hardware occupancy times or improve specifications and applications of the software.
3. Modifications, Updates, Copies
3.1. If necessary for operation on the licensed plant, the buyer may modify the software in machine-readable from or merge it into other programs. Ever when adapted in such a manner, shall the software remain subject to the present General Terms and conditions.
3.2. A software licence granted by aSR entitles the buyer to utilize the licensed software version only. Updated versions are subject to a separate licence or to the specifications in the software maintenance contract, if any.
3.3. If the buyer is granted a written software licence without data media, he shall be entitled to copy, for operational purposes, a software version already sold and licensed to him to another plant not licensed up o that data. For this purpose, aSR will issue an additional software licence in which the newly licensed hardware specified.
4. Protection of Industrial Property Rights and Trade Sections
4.1. The buyer is responsible for ensuring the continued proprietary nature of the software delivered by aSR, in particular with respect to industrial property rights, copyrights and the right of copyright notice.
4.2. The buyer shall provide all software copies, complete or partial, as well as all modified or transferred software versions with the aSR copyright notice, as well as with all other notice of industrial property rights in the same way as they are affixed on the original licensed software version.
4.3. The buyer is obligated to ensure the continued confidential nature of the software and of the techniques and methods involved. This obligation is extended also to his employees and agents. This obligation continues also if the software is modified or merged into other programs.
4.4. The buyer is not entitled to apply any method to reproduce the source code, in whole or in part, from the binary software, or to gain knowledge of the structure and conception of the software or hardware of firmware implemented.
4.5. The buyer shall keep records about the licensed software including the respective software version, the serial number of the licensed plant, the location of the licensed software as well as the number of copies made. The buyer shall have submit the records to aSR, if required. aSR will make use of this right if there is well founded suspicion that the buyer fails (has failed) to comply with any provision of this contract.
4.6. Upon termination of the Software License Contract the buyer shall return all software certificates to aSR and destroy all copies of the software, including modified copies, and make written notice of this to aSR.
This obligation to observe secrecy as described under section 4.2 continues also after termination of the software License Contract.
5. Delivery, Assumption of Risk, Acceptance of Software
5.1. aSR delivers the buyer the software version valid at the time of delivery.
5.2. Unless stipulated otherwise, the software and the data media shall be dispatched at the buyer’s cost and risk.
5.3. If the buyer destroys or damages or accidentally deletes the software, aSR shall provide replacement for the damaged software, if available, against payment of reasonable prices for order processing, data media and delivery costs.
5.4. The software is considered accepted, when
– the buyer confirms that the software corresponds with the contractual specifications;
– the buyer does not notify in writing gross deficiencies within a trial period of two weeks;
– the buyer uses the software after the trial period has expired;
– the software cannot be installed and made ready for operation within a reasonable period of time determined by aSR for reasons beyond aSR’s control.
5.5. If no formal acceptance has been stipulated, the date of acceptance is replaced by the date of delivery
6. Warranty, Maintenance, Modifications
6.1. For software not excluded from warranty, aSR guarantees correspondence with the contractual specifications, provided that the software is installed properly and used under the conditions specified in the contract.
6.2. The warranty includes
– error diagnosis and
– error correction
during the duration of the warranty period. Unless stipulated otherwise, the warranty period is three months from the data of acceptance as specified under sections 5.4, and 5.5.
The correction of errors, i.e. deviations from the valid specifications which Impair the functioning of the software, is effected
– by aSR through support and instructions for troubleshooting, preferably via data connection with buyer. If this is not possible, error correction implies
– delivery of a new, improved software. If this is not possible,
– troubleshooting (modification of software) at the buyer’s place.
The preconditions for the correction of a software error are that the error impairs the functioning of the program, that the error is reproduceable; that the buyer has installed the new software versions, if any, offered to him free of charge during the warranty period; that the buyer provides all information and material necessary for error correction; and that aSR has access to the hardware and software during normal working hours.
The buyer agrees to support aSR in error correction by providing a qualified expert whose qualifications meet the requirements of the system and who helps to remove the error.
6.3. If the customer concludes a Software Maintenance Contract with aSR, aSR assumes the specified services and performances for the duration of the contract.
6.4. aSR does not warrant software which has been modified by the buyer or by third parties without aSR’s written consent, even if the error occurs in a part not modified. If during error analysis the conclusion is made that the error is not subject to warranty or that the error was not caused by the delivered software, the buyer is charged with all resulting costs.
6.5. aSR does not guarantee that the software functionally meets all requirements of the buyer; that the programs run with other software used by the buyer; that the software runs without interruptions or errors; or that all software errors can be corrected.
6.6. Should, during warranty period, the software be deficient in the way that it does not meet the specifications and should be aSR, in spite of sustained efforts, not be able to remove the error and should the buyer for this reason not be able to use the software, each party has the right to rescind the License Contract with immediate effect and refund the received performances.
6.7. The presence of deficiencies in individual programs does not entitle the buyer to rescind the contract also with respect to all other programs.
6.8. The warranty excludes any other claim and the liability for any damage arising out of the use of the software.
7. Limitation of Liability
7.1. The buyer has to exclusive control over the use of the licensed software, he therefore shall assume the sole responsibility for the usefulness and safety of the results of his utilization. aSR excludes any liability for negligence in contract or contractual performance.
7.2. aSR does not assume liability for the general faultlessness of the software or for a specific capacity or performance of the software, unless this has been explicitly guaranteed for a specified field of application.
7.3. For all other respects, liability is limited as specified by section 9 of the General Terms and Conditions of aSR. The buyer exempts aSR from all claims enforced by third parties, which go beyond the liability specified by these conditions.
8. Third Parties’ Rights
8.1. aSR shall support the buyer in defending all claims which are based on the allegation that the use of the software as stipulated violates industrial property rights or copyrights held by third parties. The buyer shall immediately notify aSR of an alleged violation of such rights and of eventual law suits.
8.2. Should such claims be enforced by third parties, aSR may either modify or exchange the software at their own cost or get a software license. If this is not possible at reasonable costs, the buyer shall be obligated to immediately return the original software and all copies including all written materials against refund of the purchasing price under deduction of the depreciation charges or a reasonable fee for utilization hitherto.
8.3. aSR excludes al other claims submitted by the buyer with respect to the violation of industrial property rights or copyrights held by third parties.