General Terms and Conditions of Business of the
Technical Software Engineering Plazotta GmbH
1. Scope of Application – Subject Matter of the Contract
- These General Terms and Conditions (“GTC“) shall apply to deliveries and services of any kind provided by Technical Software Engineering (“TSE Plazotta GmbH“) to companies, legal entities under public law and special funds under public law (“Client“), including the delivery of goods and works (“Goods“) and the granting of licences. Insofar as one or more purchase, service, licence or other contracts (hereinafter collectively referred to as the “Contract“) exist between TSE Plazotta GmbH and the Client, these Terms and Conditions shall form an integral part thereof and shall apply unless otherwise agreed in the Contract.
- These GTC apply exclusively. TSE Plazotta GmbH shall not recognise any terms and conditions of the Client that conflict with or deviate from these GTC unless TSE Plazotta GmbH has expressly agreed to their validity in writing. These General Terms and Conditions of TSE Plazotta GmbH shall also apply if TSE Plazotta GmbH carries out the delivery without reservation in the knowledge that the client’s terms and conditions conflict with or deviate from these General Terms and Conditions of TSE Plazotta GmbH. Individual agreements made with the client in individual cases, including ancillary agreements, supplements and amendments, shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation from TSE Plazotta GmbH shall be authoritative for the content of such agreements.
2. Offer – Conclusion of Contract
- If a declaration by the client qualifies as an offer in accordance with § 145 of the German Civil Code (BGB), TSE Plazotta GmbH may accept this within 14 days by sending an order confirmation or by delivering the goods. Offers made beforehand by TSE Plazotta GmbH shall be subject to change and non-binding – also in terms of quantity, quality, price and delivery date or delivery period.
- In the event that the client requests a change to the goods, other services, the delivery date or other details that have already been contractually agreed, TSE Plazotta GmbH shall comply with this as far as possible. The costs incurred by the change shall be borne by the client in addition to the agreed remuneration.
3. Offer Documents
- TSE Plazotta GmbH shall retain ownership and copyright of all offers/cost estimates submitted by it as well as technical documents, files, illustrations, product descriptions and calculations. The Client may not make these documents accessible to third parties unless TSE Plazotta GmbH gives its express written consent to this. In the event that the client breaches the above obligation, TSE Plazotta GmbH shall be entitled to demand the immediate surrender of these documents. If TSE Plazotta GmbH does not accept the client’s offer within the period of two weeks, these documents shall be returned to TSE Plazotta GmbH by the client without delay and any copies made shall be destroyed.
- At the request of TSE Plazotta GmbH, the client shall return these documents in full to TSE Plazotta GmbH and destroy any copies made if they are no longer required by the client in the ordinary course of business.
- Any typographical or other errors or omissions in these documents issued by TSE Plazotta GmbH to the Client shall be subject to correction without any liability on the part of TSE Plazotta GmbH.
4. Prices and Terms of Payment
- The prices shall apply to the scope of performance and delivery listed in the order confirmations. Additional or special services shall be charged separately. Prices shall be quoted in euros ex works plus packaging, statutory value-added tax, customs duty in the case of export deliveries as well as fees and other public charges. Statutory value added tax is not included in the prices quoted by TSE Plazotta GmbH, but shall be shown separately in the invoice at the statutory rate on the day of invoicing, if applicable.
- The purchase price quoted by TSE Plazotta GmbH shall be binding. If the purchase price has increased at the time of provision of the service due to a change in the market price or due to an increase in the fees charged by third parties involved in the provision of the service, the higher purchase price shall apply. In the event of a price increase, the client has the right to withdraw from the contract. This right must be asserted against TSE Plazotta GmbH within 14 days of notification of the increased purchase price.
- Payment shall be made within 14 days of receipt of the goods and without discount, unless otherwise agreed in writing between the parties. The statutory regulations concerning the consequences of default in payment shall apply. If the client does not pay within 14 days of the due date, he shall be in default even without a reminder.
- TSE Plazotta GmbH reserves the right to make deliveries against advance payment or cash on delivery. The costs of payment transactions shall be borne by the client.
- The client shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed, have been acknowledged by TSE Plazotta GmbH or are synallagmatically linked to the main claim of TSE Plazotta GmbH. The client shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
- In the event of a significant deterioration in the financial situation and impending insolvency of the client, TSE Plazotta GmbH shall be entitled to make deliveries only against advance payment or to demand the provision of suitable security. If such security is not provided within a reasonable period, TSE Plazotta GmbH shall be entitled to withdraw from the contract after expiry of this period and to claim damages for non-performance.
- TSE Plazotta GmbH’s catalogues and price lists do not constitute binding offers, but merely an invitation to the client to submit a binding offer to TSE Plazotta GmbH on the basis of the catalogues and price lists.
5. Delivery and Delivery Time
- Unless otherwise stated in the order confirmation from TSE Plazotta GmbH, delivery ex works Wolnzach is agreed between the parties.
- The scope of the services to be provided is set out in TSE Plazotta GmbH’s written service description, which is based on all parts of the contract.
- The client undertakes to check the service description for compliance with its requirements and for completeness.
- After the order has been placed, changes to the scope of services shall only be possible by mutual agreement and may lead in particular to changes to prices, deadlines and dates. Order amendments or extensions to the agreements made (including these GTC) must be in text form in accordance with § 126 b BGB (e.g. email) in order to be effective.
- Deadlines and dates for deliveries and services promised by TSE Plazotta GmbH shall always only be approximate, unless a fixed deadline or date has been expressly promised or agreed. Insofar as the dispatch of the goods has been agreed between the client and TSE Plazotta GmbH, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
- The start of the delivery period stated by TSE Plazotta GmbH shall be subject to the timely and proper fulfilment of the Client’s obligations. TSE Plazotta GmbH reserves the right to plead non-performance of the contract.
- TSE Plazotta GmbH may, without prejudice to its rights arising from default on the part of the client, demand from the client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the client fails to fulfil its contractual obligations towards TSE Plazotta GmbH.
- TSE Plazotta GmbH shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lock-outs, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which TSE Plazotta GmbH is not responsible. Insofar as such events make it considerably more difficult or impossible for TSE Plazotta GmbH to provide deliveries and services and the hindrance is not only of temporary duration, TSE Plazotta GmbH shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable extension period. Insofar as the client cannot reasonably be expected to accept the deliveries or services as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to TSE Plazotta GmbH.
- If the client is in default of acceptance or culpably breaches other duties to cooperate, TSE Plazotta GmbH shall be entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses. In this case of default in acceptance, TSE Plazotta GmbH reserves the right to sell the goods to third parties by way of self-help sale. Further claims shall remain reserved.
- Insofar as the aforementioned preconditions apply in the event of default in acceptance on the part of the Client, the risk of accidental loss or accidental deterioration of the object of purchase shall pass to the Client at the point in time at which the latter is in default of acceptance or debtor’s delay.
- TSE Plazotta GmbH shall be entitled to make partial deliveries if partial deliveries are usable for the client within the framework of the contractual purpose, delivery of the remaining ordered goods is ensured and the client does not incur any considerable additional expenditure or additional costs as a result, unless TSE Plazotta GmbH agrees to bear these costs.
- TSE Plazotta GmbH shall be entitled to withdraw from the contract if TSE Plazotta GmbH does not receive the goods despite the prior conclusion of a corresponding purchase contract on its part. TSE Plazotta GmbH’s responsibility for intent or negligence shall remain unaffected in accordance with § 9 of these GTC. TSE Plazotta GmbH shall inform the client without delay of the non-timely availability of the goods and, if TSE Plazotta GmbH wishes to withdraw, shall exercise the right of withdrawal without delay. In the event of withdrawal, TSE Plazotta GmbH shall reimburse the client for the corresponding consideration without delay.
- If the goods are dispatched to the client at the latter’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the client on dispatch to the client, at the latest when the goods leave TSE Plazotta GmbH’s works. This shall apply irrespective of whether the goods are dispatched from the place of performance.
- TSE Plazotta GmbH reserves the right to supply successor models of the goods instead of the goods ordered, provided that these also meet the agreed specifications and are not more expensive than the goods ordered.
- If TSE Plazotta GmbH defaults on a delivery or service or if a delivery or service becomes impossible for it, for whatever reason, TSE Plazotta GmbH’s liability shall be limited to compensation for damages in accordance with § 9 of these GTC.
6. Warranty, Material Defects and Defects of Title
- The rights of the client in the event of material defects or defects of title shall be excluded insofar as the goods only deviate insignificantly from the agreed quality or the suitability of the goods for the use owed is only insignificantly restricted or the defect is attributable to the fact that the client uses the goods for a purpose other than that stipulated in the contract or contrary to the statutory provisions or modifies them without the written consent of TSE Plazotta GmbH or uses them together with other products not specifically approved by TSE Plazotta GmbH.
- The client’s rights in the event of material defects and defects of title shall be excluded insofar as products are concerned which are expressly designated by TSE Plazotta GmbH as being at the experimental or development stage (so-called prototypes).
- The Client’s rights in the event of defects in title shall be excluded insofar as they relate to rights that only apply outside the European Union or insofar as the Client does not, on request, fully surrender the defence to TSE Plazotta GmbH and grant all necessary powers of attorney.
- Warranty rights of the client with regard to the goods delivered by TSE Plazotta GmbH shall require that the client has duly complied with his inspection and complaint obligations owed under § 377 of the German Commercial Code (HGB) immediately after delivery to the client. In the case of obvious defects or other defects that would have been recognisable in the event of an immediate, careful examination of the goods, the goods delivered shall be deemed to have been approved by the client if TSE Plazotta GmbH does not receive a written notification of defects from the client within 7 days of delivery of the goods, stating the order number and enclosing a defect report. With regard to other defects, the delivered goods shall be deemed to have been approved by the client if the notice of defect is not received by TSE Plazotta GmbH within 7 days of the time at which the defect became apparent. If the defect was already apparent to the Client at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defects. After receipt of a written authorisation from TSE Plazotta GmbH, goods which are the subject of a complaint shall be returned by the client to TSE Plazotta GmbH carriage paid. In the event of a justified complaint, TSE Plazotta GmbH shall reimburse the costs of the most favourable shipping route. This shall not apply if the costs increase because the goods are located at a place other than the place of intended use.
- If, despite all the care taken by TSE Plazotta GmbH, the goods delivered have a defect that was already present at the time of the transfer of risk, TSE Plazotta GmbH shall, at its discretion, either repair the goods or supply replacement goods within a reasonable period, subject to timely notification of defects. TSE Plazotta GmbH reserves the right to choose the type of subsequent performance. The right of choice shall only pass to the client if TSE Plazotta GmbH is in default with subsequent performance. If subsequent performance fails, i.e. in the event of impossibility, unreasonableness, refusal or unreasonable delay in rectification or replacement delivery, the Client may withdraw from the contract or reduce the purchase price without prejudice to any claims for damages.
- Guarantees of quality shall require an express declaration by TSE Plazotta GmbH.
- If a defect is due to the fault of TSE Plazotta GmbH, the client shall be entitled to claim damages under the conditions specified in § 9 of these GTC.
- The warranty shall not apply if the client has modified the delivery item or had it modified by third parties without the consent of TSE Plazotta GmbH and this makes it impossible or unreasonably difficult for TSE Plazotta GmbH to rectify the defect. The client shall in any case bear the additional costs of remedying the defect arising from the modification.
- Optical components are generally excluded from the warranty.
7. Periods of Limitation
- Claims for defects on the part of the client shall become statute-barred within 12 months of delivery of the goods supplied by TSE Plazotta GmbH to the client. The statutory right of withdrawal shall also expire upon expiry of the limitation period of 12 months.
- The statutory period of limitation shall apply to claims based on an intentional or grossly negligent breach of duty or on culpable injury to the life, body and health of the Client. The statutory provisions shall apply to the commencement of the limitation period.
8. Property Rights
- The Client’s right to use the goods delivered or otherwise made available by TSE Plazotta GmbH, in particular computer software products including user documentation, shall be limited to the Client’s own internal business purposes and shall otherwise be determined exclusively in accordance with the licence agreement for software licences and these GTC. All other rights to the software are reserved. In the event of a conflict or any inconsistencies between the License Agreement and this GTC, the License Agreement shall take precedence.
- In particular, the client undertakes to refrain from reverse engineering copies of the software provided to him or otherwise converting them into a form perceptible to persons, modifying, adapting, translating or using them for the production of wholly or partially derived works or
- To submit to benchmark tests and to disclose the results without the prior written consent of TSE Plazotta GmbH, except as permitted under the Software Licence Agreement or mandatory legal requirements.
- The client’s right to duplicate and process if and insofar as this is necessary for legally compulsory use of the programs in accordance with the regulations, including data backup and error correction, shall remain unaffected, provided that TSE Plazotta GmbH is first given the opportunity to correct any error. This shall apply mutatis mutandis to decompilation that is permitted by mandatory law, provided that TSE Plazotta GmbH is given the opportunity to provide the desired information beforehand.
- All copies of the software must faithfully reproduce all trademarks as well as property right and user information provided by the owner of the rights.
- The client may only sell or transfer copies of the software made available to him to a third party with the prior written consent of TSE Plazotta GmbH, whether in return for payment or free of charge. Consent can only be expected to be granted if the third party assumes all rights and obligations arising from the licence agreement in place of the client and the client destroys any copies of the software in his possession.
- The source code of computer software products shall only be delivered if this is expressly agreed. The client shall refrain from any use of the software that is not expressly permitted under the contract or these terms and conditions.
9. Liability for Damages due to Fault
- TSE Plazotta GmbH’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 9, insofar as fault is involved in each case. TSE Plazotta GmbH’s liability shall be limited to intent and gross negligence.
- TSE Plazotta GmbH shall not be liable in the event of simple negligence on the part of its legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations shall be the obligations to deliver and install the delivery item in good time, to ensure that it is free from defects that impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations that are intended to enable the client to use the goods in accordance with the contract or are intended to protect life or limb, the client’s personnel or the client’s property from considerable damage.
- Insofar as TSE Plazotta GmbH is liable for damages on the merits in accordance with § 9 para. 2, this liability shall be limited to damages which TSE Plazotta GmbH foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the goods shall also only be eligible for compensation insofar as such damage is typically to be expected when the goods are used as intended.
- In the event of liability for simple negligence, TSE Plazotta GmbH’s obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of 5,000,000.00 Euro (in words: five million euros) per case of damage, even if this involves a breach of material contractual obligations.
- Insofar as liability for damages vis-à-vis TSE Plazotta GmbH is excluded or limited, this shall also apply with regard to the personal liability for damages of TSE Plazotta GmbH’s legal representatives, employees and vicarious agents.
- The restrictions of this § 9 shall not apply to TSE Plazotta GmbH’s liability for wilful conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
- Insofar as liability for damages not based on injury to life, body or health of the Client is not excluded for simple negligence, such claims shall become statute-barred within 12 months beginning with the accrual of the claim or, in the case of claims for damages due to a defect, from the handover of the item.
10. Retention of Title
- The retention of title agreed between TSE Plazotta GmbH and the Client shall serve to secure all respectively existing current and future claims of TSE Plazotta GmbH against the Client arising from the supply relationship existing between the contracting parties.
- TSE Plazotta GmbH shall retain title to the goods delivered until full payment of all claims arising from the delivery contract by the Client. The goods and the goods covered by the retention of title that take their place in accordance with the following provisions shall hereinafter be referred to as “goods subject to retention of title”. This shall also apply to all future deliveries, even if TSE Plazotta GmbH does not always expressly refer to this. TSE Plazotta GmbH shall be entitled to take back the goods if the client acts in breach of contract.
- The client shall keep the goods subject to retention of title in safe custody for TSE Plazotta GmbH free of charge.
- The Client shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation. Pledging and transfer of ownership by way of security shall not be permitted.
- If the reserved goods are processed by the client, it is agreed that the processing shall be carried out in the name and for the account of TSE Plazotta GmbH and that TSE Plazotta GmbH shall acquire direct ownership or co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at TSE Plazotta GmbH, the Client shall already now transfer its future ownership or co-ownership of the newly created item to TSE Plazotta GmbH as security.
- In the event of resale of the reserved goods, the client hereby assigns to TSE Plazotta GmbH by way of security the claims against the purchaser arising therefrom – in the event of co-ownership by TSE Plazotta GmbH of the reserved goods, in proportion to the co-ownership share. The same shall apply to other claims that take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. TSE Plazotta GmbH revocably authorises the client to collect the claims assigned to TSE Plazotta GmbH in its own name. TSE Plazotta GmbH may only revoke this direct debit authorisation in the event of realisation.
- The client shall inform TSE Plazotta GmbH immediately of any compulsory execution measures by third parties against the reserved goods, handing over the documents required for intervention; this shall also apply to impairments of any other kind. Irrespective of this, the Client must inform a third party in advance of the rights existing in the goods. The client shall bear the costs of an intervention by TSE Plazotta GmbH insofar as the third party is not in a position to reimburse these.
- If the value of the security exceeds the claims of TSE Plazotta GmbH against the client by more than 20%, TSE Plazotta GmbH shall, at the client’s request and at TSE Plazotta GmbH’s discretion, release securities to which it is entitled to the corresponding extent.
- If TSE Plazotta GmbH withdraws from the contract in the event of breach of contract on the part of the client – in particular in the event of default in payment – (case of realisation), TSE Plazotta GmbH shall be entitled to demand the return of the reserved goods.
- Both parties undertake to treat confidential, business and technical information received from the other party as strictly confidential and to use it exclusively for the purposes of the contract.
- This restriction does not apply to information which can be proven to have been in the public domain or already known to the recipient at the time of transfer or which is published after transfer to the recipient without the recipient being responsible for this.
- Each party shall ensure that the provisions of this confidentiality clause are also observed by its legal representatives, employees and vicarious agents, even after termination of the contractual relationship between its legal representatives, employees and vicarious agents.
- The recipient shall inform the holder of confidential information without delay if confidential information provided by the holder was already known to him, information which the holder considers confidential has become known to him or he is requested by a court, an authority or a third party to provide confidential information. This confidentiality clause shall remain effective even after termination of the contract.
- The processing of personal data of the Client or its employees concerned by Plazotta shall be carried out for the purpose of fulfilling the contract on the legal basis of Art. 6 para. 2 lit b DSGVO (fulfilment of contractual obligations).
- Further processing of the data by Plazotta for the purpose of direct marketing in forms not subject to consent, such as the addressed mailing of advertising, shall be carried out in a manner compatible with the purpose of fulfilling the contract. Further processing for the purpose of direct marketing in forms requiring consent, such as the electronic dispatch of advertising or the placement of personal advertisements, shall only take place on the basis of the Client’s additional voluntary consent. There is no obligation to grant consent. Failure to give consent would only result in the client not receiving advertising in forms requiring consent.
- All data are subject to the agreed or legal obligation of confidentiality and the protection of personal data. A transfer of the client’s data, apart from the transfer to typical economic recipients such as banks, tax advisors, lawyers, shipping service providers, etc., shall only take place on a legal basis or in agreement with the client.
- The client’s data shall be stored for the purpose of documentation and the fulfilment of legal obligations in any case during the current contractual relationship as well as up to a maximum of thirty years after completion of the orders.
- The client has the right to revoke his consent at any time. In the case of written consent, the revocation can only be made in writing; in the case of consent to receive electronic advertising, this can also be done by clicking on the unsubscribe link, if applicable. In this case, processing will cease unless there is another legal basis. The lawfulness of the data processed until the revocation is not affected by the revocation.
- The client has the right to object to the processing of his/her personal data for the purpose of direct marketing. In the event of an objection, your personal data will no longer be processed for the purpose of direct advertising.
- The client or its affected employees have the right to information, correction and deletion of their personal data, the right to restriction of data processing, the right to data portability and the right to complain to the Bavarian State Office for Data Protection Supervision, Promenade 18, 91522 Ansbach, telephone 0981/180093-0, e-mail: email@example.com.
13. Form of Declarations
Legally relevant declarations and notifications which the client has to make to TSE Plazotta GmbH or a third party must be made in electronic form in accordance with § 126 a BGB.
14. Assignment Deadline
The assignment of claims of the client against TSE Plazotta GmbH to third parties, including any warranty claims, shall be excluded.
15. Place of Fulfilment, Place of Venue
- The place of performance and jurisdiction for all disputes arising from the business relationship between TSE Plazotta GmbH and the client shall be the registered office of TSE Plazotta GmbH if the client is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany. However, München shall be the exclusive place of jurisdiction for actions against TSE Plazotta GmbH in such cases. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this.
- The business relations between TSE Plazotta GmbH and the Client shall be governed exclusively by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods shall not apply.
- This translation of the GTC serves only to convey to the Customer the meaning and scope of the German language version. The German language version, not the translation, of these GTCs shall be legally binding on the Parties. The German language version of these GTCs and not its translation(s) will govern in the event of a conflict between the German language version and a translation.
16. Final Clause
- Should individual provisions of these General Terms and Conditions be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remaining provisions of the General Terms and Conditions.
- The invalid or unenforceable provision shall be replaced by a valid and enforceable provision, the effect of which comes closest to the economic objective pursued by the parties with the invalid or unenforceable provision.
- Insofar as these GTC contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the parties would have agreed according to the economic objectives and the purpose of these GTC had they known of the loophole.