General Terms and Conditions of Business
Our terms and conditions | Status: April 2005
Area of validity
Insofar as no contrary agreements are made between Aaronn Electronic GmbH (hereinafter referred to as “AARONN”) and the customer, the following terms and conditions apply to all deliveries and services of AARONN.
Insofar as AARONN delivers software from third party manufacturers under these general terms and conditions, their license conditions take precedence over these general terms and conditions. The customer is obliged to comply with the license agreement and copyright regulations of the respective manufacturers and suppliers.
General Terms and Conditions for Deliveries and Services
1 Deviating terms and conditions
Deviating or supplementary terms and conditions of the customer are hereby rejected unless their validity has been expressly agreed to in writing. The same applies to public law or other pre-formulated order, allocation, or contract conditions. All deliveries and services of AARONN are provided exclusively in accordance with the following general terms and conditions (hereinafter referred to as “Terms and Conditions”). They also apply to all future business with the customer.
2 Quotation and contract conclusion
- Quotations and cost estimates of AARONN are in principle non-binding and subject to change; they only invite the customer to place a corresponding order.
- The contract is only concluded with the mutual signing of a contract document or with the written order confirmation by AARONN in accordance with the terms and conditions.
- Unwritten agreements or promises require written confirmation by AARONN in order to be effective.
- The content and execution of the contract shall be based exclusively on the content of the contract signed by both parties or on a written order confirmation as well as on these terms and conditions.
3 Delivery and Service Time Specifications
- Delivery and service time specifications are only binding if they have been confirmed by AARONN in writing and the customer has provided AARONN with all information and documents required for the execution of the deliveries and services in due time, has paid any agreed down payments in accordance with the agreement and has fulfilled its contractual and cooperation obligations properly and in due time. Furthermore, all agreements on delivery dates are subject to the on-time self-supply of AARONN. The performance of services by AARONN is also subject to the condition that necessary spare parts or equipment are generally available and in stock at manufacturers.
- Delivery and service times are extended to a reasonable extent if AARONN is prevented from fulfilling its obligations by force majeure or other unforeseeable and/or extraordinary events which are beyond AARONN’s control and cannot be averted despite reasonable care. Events in the sense of sentence 1 are in particular mobilization, war, riots, strikes, lockouts, fire, natural disasters, transport hindrances, changes in legal regulations, official measures or ordinances as well as other unforeseeable operational disturbances, also at suppliers. AARONN will inform the customer immediately. If the end of the event cannot be foreseen or if it lasts longer than two months, each party is entitled to withdraw from the contract.
- If deliveries or services of AARONN are delayed, the customer is entitled to withdraw from the contract if AARONN is responsible for the delay and a reasonable period of time set by the customer in writing has expired without success. In these cases, the customer can – if he can provide credible evidence that he has suffered damage as a result of the delay – demand compensation for delay for each day in the amount of 5% of the net order value of the part of the total delivery or service which could not be put into useful operation due to the untimely disposal of individual items belonging to it. The compensation for delay shall be limited to a maximum of 50% of the net order value of the part of the total delivery or service which could not be put into appropriate operation due to the untimely disposal of individual items. The customer may claim the compensation for delay if he reserves the right to do so in writing no later than one month after the acceptance of the last deliveries or services to be provided under the order. This does not affect AARONN’s right to prove a lesser damage.
4 Obligations of the customer to cooperate
- Insofar as on-site operations are required for providing the services, the customer will grant AARONN the regional and temporal opportunity to perform the services. The customer will provide AARONN with all necessary and reasonable support during the preparation and performance of the services. In addition, the customer guarantees compliance with all regulations of occupational health and safety law.
- The customer is responsible for appropriate environmental conditions and the proper use of the equipment and programs included in the contract. Before working on its equipment and/or programs, the customer shall independently back up all programs and data and store them on external data carriers.
- The customer shall provide all facilities required for the performance of work on-site (including telephone connections and transmission lines, etc.) at its own expense.
- The customer shall be responsible for the necessary and on-time cooperation of the companies instructed by him or companies affiliated with him. This concerns in particular the allocation of all necessary service requirements and information or data as well as the necessary personnel support. AARONN is not responsible in this respect, in particular, if delays or disruptions in performance occur due to a lack of cooperation.
5 Prices and terms of payment
- Unless expressly agreed otherwise, the prices are based on AARONN’s generally valid prices at the time of the conclusion of the contract.
- AARONN is entitled to request reasonable payments in advance from the customer in the total amount of up to 50 % of the order volume agreed upon in the individual case already prior to the provision of the deliveries and services.
- If, due to new laws or ordinances, existing regulations change, by which AARONN is obliged to collect and dispose of hardware and software products purchased by the customer, these costs will be invoiced to the customer at the respective valid disposal rates.
- In the case of continuing obligations, AARONN reserves the right to increase the agreed prices accordingly in the event of an increase in its own costs, subject to a notice period of two months. If the price increase exceeds 10% of the original price, the customer is entitled to terminate the contract at the end of the next calendar month after the notification of the increase.
- All prices are indicated without value-added tax (VAT).
- The respective agreed terms of payment shall apply to all payments. Unless otherwise agreed, all payments are due immediately upon invoicing and are to be made to AARONN free of any deductions. Payments are always offset against the oldest outstanding debt.
- In the event of default of payment by the customer, AARONN is entitled to charge the customer a lump-sum interest rate of 2 percentage points above the applicable statutory default interest rate for the duration of the default. AARONN reserves the right to claim further damage caused by default.
- AARONN may refuse the provision of deliveries and services if after conclusion of the contract the risk of the customer’s lack of ability to perform becomes apparent, in particular if the customer is in default of payment, is over-indebted or if insolvency proceedings have been applied for or opened against his assets. The right to refuse performance shall not apply if the customer makes the counter-performance, provides advance payment or security. If the consideration, advance payments or securities have not been provided even after the expiration of a reasonable grace period, AARONN may withdraw from individual or all of the affected contracts in each case in whole or in part. AARONN is at liberty to assert further rights.
- The customer is only entitled to set-off if his counterclaims are undisputed or have been legally established. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship as the disputed claim and is undisputed or has been established as final and absolute.
- If the delivery or service is delayed not because of AARONN, payments shall be made as if the delay had not occurred.
6 Retention of title
- All products delivered remain the property of AARONN (hereinafter collectively referred to as “goods subject to retention of title”) until full payment of the purchase price as well as all claims arising or to arise from the business relationship with the customer. In case of current account, the reserved property is considered as security for the balance claim to which AARONN is entitled.
- The customer must treat the reserved goods with greatest care as long as they are the property of AARONN. In the event of behavior contrary to the contract on the part of the customer – in particular in the event of default in payment – AARONN may, without prejudice to other rights, take back the goods subject to retention of title after setting a grace period and subsequent withdrawal and otherwise dispose of them for the purpose of satisfying due claims against the customer. Insofar as the goods subject to retention of title are no longer in the customer’s possession, the customer hereby assigns to AARONN its claims for restitution against third parties.
- Until revoked, the customer is entitled to combine and process the reserved goods in the ordinary course of business. However, this only applies as long as he meets his obligations towards AARONN in due time. The customer is not entitled to pledge the goods subject to retention of title, to assign them as security or to make any other dispositions endangering AARONN’s ownership.
- If the customer sells the goods subject to retention of title, he assigns to AARONN in advance all claims and receivables from the resale as security until all receivables of AARONN have been paid in full. If the goods subject to retention of title are combined or processed with other goods not belonging to AARONN and sold – even at a total price – the assignment to AARONN extends only to that part of the claim which corresponds to the price agreed between AARONN and the customer plus a security margin of 10% of this price. AARONN accepts these assignments. The customer is revocably authorized to collect the claims assigned to AARONN in trust for AARONN in its own name. AARONN may revoke this authorization as well as the right to resell if the customer is in default with material obligations, such as payment, to AARONN.
- If the goods subject to retention of title are combined or processed with other items, AARONN acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed or combined items at the time of processing. For the new item created by processing, the same applies as for the products delivered under reservation of title.
- At AARONN’s request, the customer must inform the contractual partners of the assigned claim of the assignment and provide AARONN with all information and documents necessary for the collection of the assigned claims. AARONN is also entitled to disclose the assignment to them.
- In the event of a seizure or any other impairment of AARONN’s rights by third parties, in particular in the event of access to the reserved goods, the customer must inform the third party of AARONN’s rights and inform AARONN immediately. Costs and damages caused by the violation of this duty are borne by the customer.
- If the value of the securities existing for AARONN exceeds the claims to be secured by more than 10% in total, the customer is entitled to demand release to this extent.
7 Agreement on quality without assumption of guarantee
- AARONN warrants in accordance with the general statutory provisions that the items and services have the agreed or common quality at the time of the transfer of risk.
- Public statements, in particular advertising statements of the manufacturer, do not count towards the agreed quality.
- Aaronn expressly points out that it is not possible according to the state of the art to guarantee the perfect functioning of data processing devices and device combinations under all conceivable application conditions and to exclude defects in data processing programs.
- If, in individual cases, the parties wish to agree on an obligation to indemnify (warranty) that goes beyond the agreement on quality pursuant to Section 7.1, this must be done expressly in writing.
- In accordance with clause 7.2, statements in catalogs, price lists and other information material provided to the customer shall under no circumstances be understood as such guarantees for a special quality of the delivery items.
8 Warranty, duty to inspect goods
- The customer’s warranty rights with regard to delivery items presuppose that the customer inspects the delivery item after handover and notifies AARONN of any defects in writing without delay, at the latest, however, one week after handover, describing the defect; hidden defects must be notified to AARONN in writing immediately after their discovery.
- In case of any notice of defects, AARONN has the right to inspect and test the item subject to complaint. For this purpose, the customer will grant AARONN the necessary time and opportunity. AARONN may also require the customer to return the delivery item complained about to AARONN at AARONN’s expense. If a notice of defect by the customer proves to be unjustified due to intent or gross negligence, the customer is obliged to reimburse AARONN for all expenses incurred in this connection – e.g. travel and assembly costs or shipping costs.
- Insofar as the object of delivery and performance is afflicted with a defect covered by warranty AARONN will remedy the defect free of charge or deliver an object free of defects (hereinafter jointly referred to as “subsequent performance”). Parts replaced by AARONN are to be returned to AARONN by the customer. AARONN shall bear the material, shipping and labor costs incurred for the purpose of subsequent performance, provided that the defect complained about by the customer is acknowledged by AARONN and no case of clause 8.2 sentence 4 applies.
- The right to choose whether the defect is remedied by free-of-charge elimination of the defect or by delivery of a defect-free item lies with AARONN, unless only a certain type of subsequent performance is reasonable for the customer.
- Aaronn does not assume any warranty for damages caused by unsuitable or improper use, faulty commissioning or handling, faulty repair or rectification attempts by the customer or third parties, natural wear and tear or unsuitable operating materials, unless AARONN is responsible for the damages.
- If no subsequent performance is affected within a reasonable period of time set by the customer or if such subsequent performance fails, is unreasonable for the customer or if AARONN has refused such subsequent performance pursuant to § 439 para. 3 BGB (or § 635 para. 3 BGB), the customer may, at its option, withdraw from the contract, reduce the agreed price or, subject to the further statutory prerequisites of § 281 BGB, claim damages in lieu of performance in accordance with clause 9 (or, if applicable, compensation for its expenses in accordance with the provisions of § 281 BGB), reimbursement of its expenses in accordance with the provisions of § 284 BGB); in the case of contracts for work and services, the customer shall furthermore be entitled to self-performance under the further conditions of § 637 BGB (hereinafter collectively referred to as “Secondary Rights”). Withdrawal from the contract or a claim for damages in lieu of full performance shall only be considered if the breach of duty in the case of poor performance is significant.
- If the customer does not make use of his secondary rights and continues to demand subsequent performance in accordance with clause 8.3, he is obliged to set AARONN a new reasonable deadline for subsequent performance in each case, during which he may not assert the secondary rights. After expiry of the deadline or if the subsequent performance fails (again), is unreasonable for the customer or is refused by AARONN in accordance with § 439 para. 3 BGB (or § 635 para. 3 BGB), the customer is again entitled to the secondary rights without restriction. The customer is entitled to set deadlines for secondary performance as often as desired.
- The customer will inform AARONN in writing of the deadlines for subsequent performance according to clauses 8.6 and 8.7 in each case.
- In the case of customers who are not consumers within the meaning of § 13 BGB (German Civil Code), the limitation period for claims for defects for delivery items and work services is 1 year from the statutory commencement of the limitation period. § Section 479 (2) of the German Civil Code shall remain unaffected.
- The limitation period for recourse claims or claims for reimbursement of expenses of entrepreneurs pursuant to § 478 BGB shall also be 1 year from the statutory commencement of the limitation period. § Section 479 para. 2 BGB shall remain unaffected.
- Any further warranty is excluded. In particular, AARONN does not assume any warranty for the uninterrupted operational readiness of hardware and/or software, unless expressly agreed otherwise in writing.
Returns of stock items no referred to a warranty processing can only be made after prior agreement, in which case 20% costs, but at least EUR 20.00, will be charged for the inspection and repackaging of the goods for the protection of the next buyer. Articles, which must be procured separately, cannot be taken back.
10 Liability and compensation
1 AARONN is liable for damages incurred to the extent that
(a) it or its legal representatives are guilty of intent or gross negligence,
(b) the damage is due to the absence of a guaranteed quality or the other non-fulfilment of a granted guarantee, insofar as the described case of guarantee has occurred and the customer was to be protected by the guarantee precisely against the damage that has occurred,
(c) it concerns culpably caused damages to life, body or health, or
(d) claims based on the Product Liability Act, or
(e) claims based on other mandatory statutory liability provisions.
- Furthermore, AARONN shall only be liable for such damages that result from a breach of a material contractual obligation (“cardinal obligation”) by AARONN, limited to the typical, foreseeable damage. In these cases the liability is limited to € 50.000,- per damage case. In case of several damages within the same contractual relationship (e.g. framework supply agreement) the liability is limited to a maximum amount of € 250.000,- per contractual year. Any liability in excess thereof shall be excluded.
- This liability provision is final. It applies with regard to all claims for damages, regardless of their legal basis, in particular also with regard to pre-contractual or ancillary contractual claims.
- Aaronn assumes no liability for damages and disadvantages resulting from the fact that an EDP system or a part of it has to be switched off for repair or maintenance purposes during the productive time of the customer or has to be impaired in any other way. However, the customer can explicitly request on his own responsibility that AARONN does not carry out owed repair or maintenance work at certain times.
- The customer is obliged to make backup copies of his data at reasonable intervals, but at least once a day. A violation of this obligation shall be considered as contributory negligence.
11 Copyrights and industrial property rights
- The customer shall only be entitled to use the programs, drawings, process descriptions and other documents provided to him for the performance of the contract for the contractually intended use. All copyrights, rights of use and other industrial property rights remain with AARONN. The customer is not permitted to use, duplicate or transfer to third parties any material beyond the necessary contractual use.
- AARONN expressly reserves its copyrights in particular to services or deliveries provided by it within the scope of the contract. If a copyright arises through the services of AARONN, the customer receives a simple right of use exclusively within the scope of his business operations for the agreed contract or usage period. The customer is not entitled to sublicense or to transfer.
The customer is obligated to treat confidentially all operational and technical information of which he becomes aware in connection with the preparation and execution of the contract and in which AARONN may have an interest in confidentiality, as well as all product and business secrets – even after termination of the contract – not to pass them on to third parties and not to use them for purposes not related to the contract.
13 Final Provisions
- AARONN is entitled to have the contract executed in whole or in part by third parties, unless the customer expressly objects to this, stating important reasons.
- An assignment or transfer of rights and/or obligations from this contract by the customer requires the prior written acceptance of AARONN. In particular, the transfer of the equipment covered by a service contract to a third party does not transfer the claims for the provision of services agreed for this equipment to the third party, unless AARONN expressly accepts such a transfer of rights in writing.
- Place of performance and place of jurisdiction for all disputes arising from the contractual relationship for both parties is our registered office of AARONN, if the customer is a merchant, a legal entity under public law or a special fund under public law, unless otherwise agreed in these terms and conditions or by separate written agreement. However, AARONN remains entitled to take legal action against the customer also before another court having legal jurisdiction.
- The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- Amendments and supplements to the agreements made and to these terms and conditions must be made in writing in order to be effective. This shall also apply to a waiver of this requirement of written form.
- Should one or more of these provisions be or become invalid in whole or in part, or should the contract concluded on the basis thereof contain a loophole, the validity of the remaining provisions shall remain unaffected thereby. In place of the invalid or missing provision, the contracting parties shall agree on the valid provision that comes closest to the economic intention.
Additional conditions for the delivery of hardware and software and implementation
Insofar as AARONN delivers hardware or software or provides implementation or customization services, the following additional terms and conditions for the delivery of hardware and software and implementation shall apply in addition to the General Terms and Conditions in Part I.
14 Deliveries, Transfer of Risk and Insurance
- Unless expressly agreed otherwise in writing, the responsibility for the selection of ordered delivery items and for the results intended with them by the customer as well as for the interaction of individual components lies solely with the customer. If AARONN should install software or/and menus (images) licensed to the customer by the manufacturer of the software or/and menus on the hardware on behalf of the customer, the customer warrants to AARONN that he has acquired the licenses at least in the number with which he has commissioned AARONN to install them. Furthermore, he warrants that he is authorized to commission AARONN with such service in accordance with the license terms. The customer fully indemnifies AARONN against all claims of third parties which are asserted in connection with this service. If the customer provides AARONN with software within the scope of the agreed service provision, the customer warrants that he is entitled to grant AARONN the use. The customer fully indemnifies AARONN from all claims of third parties which are asserted in connection with this use.
- AARONN reserves the right to deliver successor models instead of the ordered delivery items in case of discontinuation of products by the manufacturer, provided that these are comparable with regard to functionality and quality and meet the specifications required by the customer. In such a case, AARONN will inform the customer of the price for the successor model in due time. If no agreement is reached, AARONN will offer the customer a suitable alternative delivery item.
- Unless otherwise agreed, the delivery will be made by appropriate means of dispatch in the usual packaging. The risk is transferred to the customer when the delivery item is handed over to the transport company or to the customer himself. If a delivery is delayed due to circumstances for which the customer is responsible, the risk is already transferred to the customer with the notification of readiness for shipment.
- AARONN reserves the right to make partial deliveries and provide partial services, insofar as these are reasonable for the customer.
- Unless otherwise agreed in writing between the parties, the delivery items are only intended for use in the recipient country resulting from the delivery address.
- AARONN is entitled to deliver program and product documentation as well as other documents in English.
15 Export restrictions
The customer acknowledges that the products and all associated data may be subject to the restrictions of the Export Administration Act of the USA as well as the German Foreign Trade and Payments Act. The products or any data or programs associated with them may not be used for any purpose that violates these export laws. The poducts and/or their components may not be exported and re-exported without the required authorization of the country concerned and the U.S. export administration authorities.
16 Default of Acceptance
- If the customer is in default of acceptance or violates other obligations to cooperate, AARONN is entitled to store the equipment appropriately at the customer’s risk and expense. Without prejudice to its other rights, AARONN is entitled to withdraw from the contract if a reasonable period of grace granted to the customer for acceptance of the delivery expires without success.
- If the customer does not comply with any agreed on-site appointments, AARONN is entitled to invoice the customer for the costs of this deployment in accordance with the usual hourly rates, unless and insofar as AARONN is not able to deploy the employee elsewhere accordingly.
Work and installation services provided by AARONN for the customer must be accepted by the customer in the presence of representatives of both parties within two weeks of handover. If the customer fails to accept for reasons other than a defect, acceptance is deemed to have been declared if the customer does not refuse acceptance in writing within a period of two weeks after being made available for acceptance. As long as AARONN has not received the written confirmation of acceptance from the customer, the customer is not entitled to use the work productively. If the customer nevertheless brings the work into productive use, this shall be deemed to be acceptance.
Additional conditions for maintenance and service
Insofar as AARONN provides services within the scope of maintenance and servicing, the following additional conditions for maintenance and servicing apply in addition to the General Conditions in Part I.
18 Scope of services
- The maintenance and care services to be provided by AARONN (hereinafter referred to as “Services”) relate exclusively to the devices or system configurations specified in more detail either in the contract or in a subsequent written agreement of the parties with regard to manufacturer, type as well as serial and device number.
- AARONN provides the services by telephone or on site at the customer. The choice between these types of service provision is at the discretion of AARONN, unless a specific type of service provision is expressly agreed in the contract. After consultation with the customer, a remote maintenance solution can also be implemented. AARONN does not assume any responsibility for the functionality and security of the remote maintenance lines outside its business operations, unless expressly agreed otherwise in writing.
- AARONN uses its own and third party knowledge databases, various manufacturer hotlines as well as public services, such as the Internet and corresponding service providers, for the provision of services. AARONN assumes no liability or warranty for the functionality or content of such third-party services. Delays or poor performance, which are due to external databases, hotlines or information services, do not justify any claims against AARONN.
- If within the scope of the agreed services so far unknown problems or epidemic failures ccur, AARONN will prepare an error report and forward it to the corresponding manufacturer support in order to achieve a remedy of the problem. In such a case, AARONN will attempt to create an interim solution that allows the problem to be bypassed or, after consultation with the customer, will seek an alternative or interim solution that covers the customer’s needs in approximately the same way. The same shall apply if, despite the use of the greatest possible care and expertise, unsolvable problems arise or an order cannot be performed in objectively adequate quality. AARONN does not assume any liability or further warranty in this respect. In particular, any agreed service level times do not apply in these cases.
- If a certain success rate is agreed, this will be determined by AARONN at the request of the customer subject to a different agreement on the basis of all affected and rendered services – with the exception of the situations described in the previous paragraph – after the end of a calendar month, whereby, however, the respective first month after the start of the contract as well as – in the case of inclusion of new hardware or software – the first month after installation are not taken into consideration.
- Changes in the place of installation of the devices or systems concerned must be notified to AARONN in writing in due time. If the customer plans changes or extensions to the hardware or software covered by a service contract or to its composition, it will inform AARONN of these plans without delay. If the changes or extensions make it difficult or impossible for AARONN to provide its services, AARONN is no longer obliged to provide its services. In such cases, AARONN will, within the scope of its operational possibilities, submit an offer for the maintenance of the modified or extended partial or complete system. If no agreement is reached between the parties with regard to the maintenance of the modified or extended system, this will have no effect on the service fees to be paid by the customer in the meantime until a contractual clarification or termination.
- AARONN will receive a current list of authorized contact persons from the customer upon request.
- the customer must have or acquire the relevant license rights for the software to be installed in case of a release change.
19 Service hours
- AARONN provides services from Monday to Friday from 8.00 a.m. to 5.00 p.m., with the exception of public holidays (hereinafter referred to as “service hours”). Further service availability times can be agreed in writing against separate remuneration either generally or for individual cases.
- Any service level times promised by AARONN (e.g. response times) shall only apply within the scope of the agreed service availability times. If a customer request is received outside the agreed service availability times, it will be treated with regard to service level times to be observed by AARONN as if it had been received at the beginning of the subsequent service availability time. If the end of the service level time is outside the service readiness time, the service level time is interrupted and continues with the beginning of the next service readiness time, unless the parties have agreed otherwise.
- If AARONN cannot provide the services owed within the agreed service level times despite all efforts, AARONN is entitled to provide a comparable interim solution, e.g. to provide a comparable replacement device, within the agreed service level time at its own discretion instead of the services owed for a transition phase.
- If the customer requests services beyond the agreed services or dates, AARONN will make every effort to provide these additional services within the scope of its operational possibilities. Additional services are to be paid according to AARONN’s generally applicable prices, unless otherwise contractually agreed. Agreed service level times do not apply to additional services.
- Separate dates must always be agreed with AARONN for the installation of new software in the service environment.
Additional conditions for consulting services
Insofar as AARONN provides consulting services, the following Additional Terms and Conditions for Consulting Services shall apply in addition to the General Terms and Conditions in Part I.
20 Professional provision of services
AARONN shall provide consulting services in a professional manner by appropriately qualified employees. In case of poor performance, AARONN may perform the corresponding service again. With regard to support in projects managed by the customer, AARONN does not assume any warranty.