Conditions

General terms and conditions - Kerkel Engineering GmbH

I. scope, Supplementary contract terms

    1. The general terms and conditions (hereinafter referred to as "GTC) of the company "Kerkel Engineering GmbH - Jan Kerkel" (hereinafter referred to as "Contractor") find all contractual relationships with clients in connection with deliveries and services (z.B. Software maintenance) by the contractor and are considered part of the contract, unless otherwise agreed in writing in an individual agreement between the contractor and the client. The current version of the GTC also applies to future business relationships with the same client, without the contractor having to point out their validity for each individual contract with the client. In addition, the respective underlying contracts between the contractor and the client apply.
    2. Deviating, conflicting or supplementary terms and conditions of the client will only become part of the contract if and to that extent, when the contractor has expressly consented to their validity in writing. This approval requirement applies in any case, especially then, if the contractor, with knowledge of the general terms and conditions of the client, carries out a delivery or service to the client without reservation.
    3. In the case of contractual relationships with clients, who are not entrepreneurs, the following regulations are to be limited to what is legally permissible.

II. General

    1. Telephone consultation hours of the contractor: Monday to Friday, respectively 09.00 Clock - 16.00 Clock.
    2. Appointments by appointment only

III. offers, Conclusion of contract

    1. Offers from the contractor are binding, if they expressly contain a binding period. In other cases, offers from the contractor are subject to change and non-binding. this is also valid, if the contractor catalogs the client, Has left product descriptions or technical documentation.
    2. Every order or. Commissioning by the client is considered a binding contract offer, unless something else results from this. The contractor is entitled, this contract offer within 4 To be accepted weeks after receipt by the contractor. Acceptance can be express or through conclusive behavior (z.B. Delivery of the software / licenses or. Provision of services to the client) be explained.
    3. The client is aware of this, that software is subject to constant further development. As far as this is reasonable for the client, the contractor can therefore deliver or modify software that has been modified or adapted. produce or provide other services that deviate from the agreement. Such a change is then particularly reasonable, if this does not restrict the agreed functionality or performance.
    4. For the first contractual relationship with the client, the contractor is entitled to up to 80% to demand the project costs from the contractor. However, this only applies to this extent and to that extent, than the contractor actually has costs through his advance performance. The costs of its advance performance are only to be presented to the customer upon express request.

IV. delivery, shipping, Transfer of risk

    1. Deliveries of software or other goods are made from the contractor's seat. Unless pickup or. Collection by a third party, but shipping has been agreed and the client has not issued any special instructions, the contractor is entitled, determine the type of dispatch yourself.
    2. The risk of accidental loss and accidental deterioration is transferred to the client upon handover. It is the same as the handover, if the client is in default of acceptance. In the case of an agreed shipment, the risk of accidental loss and accidental deterioration already goes to the handover to the carrier, the carrier, or the person otherwise appointed to carry out the dispatch to the client.
    3. Delivery times are only then deemed to be binding, if these are expressly guaranteed as binding by the contractor in writing. Insofar as binding delivery deadlines have been agreed, the contractor is not in default without a written reminder from the client, even if the time of delivery is determined by the calendar.
    4. Failure to meet delivery deadlines is due to force majeure, z.B. war, revolt, or to similar events (z.B. Failure to deliver on time by a supplier) traced back, the delivery times are extended accordingly.
    5. The contractor is entitled to partial deliveries and partial services to the extent permitted by law.
    6. If the contractor is in default, the client can only withdraw from the contract within the framework of the statutory provisions, if the contractor is responsible for the delay. The client is obliged, to be declared within a reasonable period of time at the request of the contractor, whether he withdraws from the contract due to the delay or insists on delivery.
    7. Insofar as the delivery or service is impossible, the client is entitled, To demand compensation, if the contractor is responsible for the impossibility. However, the client's claim for damages is limited to 25 % the net order value of that part of the delivery, which cannot be put into operation due to impossibility. The right of the client to withdraw from the contract remains unaffected.
    8. Claims for damages by the client due to delay and impossibility of delivery or service and claims for damages in lieu of service, the information provided in Section IV No.. 7 go beyond the limits mentioned, are excluded in all cases of delay and impossibility. The limitations of liability do not apply to personal injury, for willful and grossly negligent damage and for damage caused by the breach of an essential contractual obligation. Such obligations are essential contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and compliance with which the contractual partner can regularly rely on. In the event of a negligent breach of an essential contractual obligation, the contractor's liability is limited to the foreseeable damage typical of the contract.
    9. The contractor is entitled to do so at any time, even without informing the client about it, Use third parties as vicarious agents for the services to be provided.

V. Remuneration – and payment terms

    1. The amount of the remuneration for the respective delivery or. Performance is based on the individual agreements or. the underlying contract (z.B. Software maintenance contract). Prices are net without deductions, plus. the applicable statutory sales tax.
    2. Payment terms are 14 Days after performance or. from receipt of the invoice. If the expiry is unsuccessful, default occurs. The receipt of the full amount by the contractor is decisive for compliance with payment deadlines.
    3. Payment by credit card is neither desired nor possible by the contractor.
    4. The client only has the right to offset, if his claims have been legally established or recognized in writing by the contractor. In addition, the client can only exercise a right of retention, if his requirement, because of which he withholds payment, is based on the same contractual relationship and has either been legally established or recognized in writing by the contractor.
    5. If the client is in arrears with payments, the contractor has the right, to temporarily suspend further services from the same legal relationship and to make all outstanding claims from this relationship due immediately.

WE. Property- and reservation of rights

    1. Until full payment of all claims from an ongoing business relationship, the contractor reserves all rights to the deliveries or. Services before. This is especially true for intellectual property rights (z.B. Rights of use to software) and for ownership of the deliveries in question.
    2. Deliveries or. The contractor's services may not be pledged to third parties before the secured claim has been paid in full, not assigned and not assigned as security. The client must inform the contractor immediately in writing, if access by third parties occurs or is expected.
    3. In the event of breach of contract by the client, especially in the event of non-payment of the due remuneration, the contractor is entitled, to withdraw from the contract in accordance with the statutory provisions and to exercise the rights that may have been granted to the client (z.B. Rights of use to software) to withdraw as well as the surrender of any delivered goods (z.B. Disk, Documentation, etc.) to demand.

VII. Complaints, The client's duty to cooperate

The client is obliged, Deliveries and services immediately for completeness and obvious defects, especially for obvious shortages or damage, to investigate and this immediately, no later than two weeks after receipt of the delivery or. power, to the contractor in writing, to complain by email or fax. In the case of hidden defects, the client is obliged, these immediately after their discovery, at the latest within the limitation period according to. Digit X. to complain to the contractor in writing. If the client fails to make the above-mentioned complaints, liability for the defect that has not been reported is excluded. The client has the burden of proof for compliance with the notice period as well as for the existence and time of the discovery of the defect.

VIII. Acceptance and acceptance of the delivery and service

    1. After each delivery or service, the client must immediately declare in writing at the request of the contractor whether the delivery or service is correct, is or is complete and free of discernible defects. what shortcomings exist.
    2. In the case of partial deliveries and partial services, the declaration does not extend to such properties, which can only be checked in connection with later deliveries and services. As soon as partial deliveries or partial services are used by the client, they are considered accepted.
    3. Deliveries and services from the contractor apply no later than the end of the seventh day after handover or. after notification of completion by the contractor as accepted, if the client did not notify the contractor of any actually existing defects within this period.
    4. When it comes to design- and concept drafts are possible up to three correction loops.

IX. liability

    1. The contractor is liable for personal injury, for damage caused intentionally or through gross negligence and for damage caused by the breach of essential contractual obligations in accordance with the statutory provisions. Such obligations are essential contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and compliance with which the contractual partner can regularly rely on.
    2. Otherwise the contractor's liability is excluded.
    3. In the event of a breach of an essential contractual obligation, the liability of
      Contractor is limited to the foreseeable damage typical for the contract.
    4. The contractor is not liable for the loss of data, if the damage would not have occurred with proper data backup in the area of ​​responsibility of the client. A proper data backup can then be assumed, if the client uses his data on a daily basis, up-to-date in machine-readable form in accordance with the current state of the art verifiably secures and thus guaranteed, that this data can be restored with reasonable effort. The contractor's liability for data loss - unless caused intentionally or through gross negligence by the contractor - is limited to the typical restoration effort, that would have occurred if the data had been backed up properly.
    5. The contractor is also not liable, if defects after changing the use-
      or operating conditions, after operating errors, Interventions in the software program, like changes, Adjustments, Connections with other programs or after use in violation of the contract, unless the client proves, that the defects already exist when the delivery is handed over or. Performance or have no causal connection with the above-mentioned events.
    6. As far as the liability of the contractor is excluded or limited, this also applies to the personal liability of employees and employees of the contractor as well as for third parties, acting on behalf of the contractor.
    7. The contractor is not liable, if and to the extent that the client engages other service providers in addition to the contractor and this results in damage.

X. Statute of limitations

Claims for damages by the client - regardless of the legal reasons - become statute-barred one year from the transfer of risk, otherwise from the origin of the claim. This does not apply, as far as legal regulations provide for shorter deadlines.

XI. damages, Resignation and termination

    1. If the client is entitled to compensation instead of performance or a claim to reimbursement of expenses, after a reasonable period set by him has passed without success, such a deadline must also contain an express threat from the client, that he will assert this claim after the deadline.
    2. The preceding paragraph applies accordingly, provided the client has the right, to withdraw from the contract or to terminate it extraordinarily for an important reason, after a reasonable period set by him has passed without success.
    3. In the event of withdrawal, the services provided by the contractor up to that point are to be remunerated by the client to the appropriate extent.
    4. Otherwise, the statutory provisions apply.

XII. confidentiality, confidentiality

Insofar as the contractual partners exchange confidential information of a commercial or technical nature or become known to a contractual partner from the area of ​​the other contractual partner, which are usually regarded as a trade secret or which are marked as confidential, commit yourself, to treat this information as strictly confidential and neither to make it accessible to third parties nor to use it in any way outside of the implementation of this contract without the consent of the other contractual partner. Such information is excluded from the mutual confidentiality obligation, which is proven,
a) are generally evident or become apparent without the assistance of a contractual partner;
b) become known to a contractual partner from another source, which is not obliged to maintain confidentiality vis-à-vis the other contractual partner;
c) due to mandatory legal provisions from a contractual partner (especially against courts, Law enforcement agencies or government agencies) must be disclosed.

XIII. General final provisions

  1. The place of fulfillment for deliveries and services as well as the place of payment is Regensburg. The place of jurisdiction is - as far as legally permissible - Regensburg. The same goes for the case, that the client does not have a general place of jurisdiction in Germany. However, the contractor is also entitled, to sue at the seat of the client.
  2. It is only the law of the Federal Republic of Germany. The application of the UN sales law (CISG) is excluded.
  3. Ancillary agreements and changes to the contracts and the General Terms and Conditions must be made in writing or electronically (z.B. E-mail). This applies to the waiver of the written form requirement.
  4. Should individual provisions not be legally effective or lose their legal effectiveness due to a later circumstance or should a loophole be found, this does not affect the legal validity of the remaining provisions. The client and contractor will replace ineffective provisions and loopholes with such provisions immediately after they are discovered, which correspond to or come closest to the economic purpose of the contract. Otherwise, the statutory regulations apply in their place