General terms and conditions

Last updated 09/2011

§ 1 Validity of the General Terms and Conditions for aurenz GmbH

(1) Our General Terms and Conditions shall apply exclusively; we shall not recognise any of the customer’s terms and conditions which may differ from or contradict our General Terms and Conditions, unless we have explicitly confirmed their validity in writing. Our General Terms and Conditions shall also apply without reservation if we carry out a delivery or service to the customer in the knowledge that the customer’s terms and conditions conflict with or differ from our General Terms and Conditions.
(2) Our Terms and Conditions shall also apply to all future business relations even if these have not yet been specifically agreed. Our terms and conditions shall be deemed to have been accepted no later than when the goods are accepted.
(3) Our General Terms and Conditions shall only apply to businesses as defined by section 310 (1) of the German Civil Code (BGB)

§ 2 Quotes and quoting documentation

(1) All of aurenz’s quotes shall be non-binding, unless otherwise explicitly stated in the quote.
(2) aurenz shall reserve the right to make minor technical and design modifications to the goods quoted that are equivalent in quality and price, even after the quote has been accepted by the customer.
(3) The information contained in catalogues, brochures, newsletters, advertisements, images, in similar publicly available marketing material, and on the internet, regarding performance, dimensions, weight and other similar factors shall not be binding, unless it is specifically written into the contract.
(4) aurenz's sales staff are not authorised to make verbal agreements or provide assurances that go beyond the content of the written contract.

§ 3 Scope of services and supply for software products

(1) If the customer buys or leases a software product, aurenz will grant the customer the right to use any related software product (the “Software”). The customer shall have the non-exclusive and non-transferable right to use the Software within the terms and conditions of the contract. The right to use the Software shall include the right for the Software to be supplied and the right to receive the documentation (software product description, program guide, or user manual). The customer shall not be entitled to the program sources.
(2) The customer shall not be entitled to lease aurenz’s software products to third parties or to lease them for commercial use in any other way without aurenz’s express written consent. The customer shall also be prohibited from offering or providing services of any kind to third parties using the results obtained from aurenz’s software products.

§ 4 Terms and conditions of payment and prices

(1) Unless otherwise expressly agreed, invoices shall be due for payment to the account specified in the invoice within thirty days of receipt. The date the payment is received by aurenz shall determine whether the thirty day deadline has been met. A warranty holdback shall be excluded.
(2) The prices stated by aurenz in the order confirmation shall be considered final. If no prices have been agreed when the contract is concluded, aurenz’s current prices on the day of delivery shall apply. All prices are exclusive of statutory VAT and shipping costs.
(3) The customer shall only be permitted to offset claims against other payments if its counterclaims have been upheld by a court of law, are not disputed, or have been acknowledged by aurenz. The customer shall only be entitled to assert a right of retention for counterclaims from this contract. (4) The customer shall reimburse aurenz for the costs incurred for every unpaid or returned direct debit order if the customer is responsible for aurenz incurring these costs.

§ 5 Delivery and delivery period

(1) Delivery dates shall not be binding, unless they have been specifically agreed in writing.
(2) If the customer fails to accept the delivery, or culpably breaches other duties to co-operate, aurenz shall be entitled to demand compensation for any losses incurred, including any additional expenditure. Other claims and rights shall remain reserved.
(3) If the conditions set out in paragraph (2) above obtain, the risk of accidental loss or accidental deterioration of the items purchased shall pass to the customer at the time when the customer fails to accept delivery or is in default of payment.
(4) With respect to aurenz’s liability in the event of a failure to deliver, section 8 paragraphs (10) and (11) shall apply accordingly.
(5) The customer’s other statutory claims and rights shall remain reserved.

§ 6 Transfer of risk

Unless otherwise specified in aurenz's order confirmation, delivery shall be agreed “ex works”. If the shipment of goods is delayed at the customer's request, any risk of damage or destruction shall pass to the customer immediately they are notified that the goods are ready for shipment.

§ 7 Retention of title

(1) aurenz shall retain title to all goods being delivered until the customer has paid all current and future monies owed as part of the business relationship. For instances such as those mentioned in section 93 BGB, retention of title shall refer to the co-owned share resulting from installation of the software. The following provisions covering sales shall apply accordingly. Where the customer breaches the contract, particularly when the customer defaults on payment, we shall be entitled to recover the purchased items. If we recover the purchased items, we shall be deemed to have rescinded the contract. After we have recovered the purchased items we will be entitled to sell them; the proceeds of sale shall be offset against the customer’s liabilities, less any reasonable selling costs.
(2) The customer shall be obliged to handle the goods with care.
(3) The customer may not pledge the items delivered or the monies owed in their place, and may not transfer or assign them as security.
(4) The customer shall be entitled to sell on the items supplied in the ordinary course of business; however, the customer shall hereby assign all monies arising from the resale or from other legal sources (particularly from insurance or unauthorised actions) in the amount agreed with aurenz for the final invoice (including VAT). The customer shall continue to be entitled to collect these monies even after they have been assigned; aurenz's authority to collect the monies itself shall remain unaffected. In the event of a breach of contract by the customer (particularly default in payment), aurenz may cancel the direct debit authorisation; in the event of a breach of contract, aurenz shall be further entitled to prohibit any resale or processing of goods delivered under retention of title.
(5) If the customer does not meet its payment obligations from the proceeds received, if it is in default of payment, if an application for opening insolvency proceedings has been filed, or if payments have been suspended, the customer shall notify aurenz about the monies assigned and the debtors, when requested to do so, shall provide all of the information required, hand over the associated paperwork and inform the debtor (the third party) that the goods have been assigned.
(6) aurenz will release the securities to which it is entitled at the customer’s request if the value of the securities exceeds the debts to be secured by more than 20%.

§ 8 Liability for defects

(1) The customer is aware that current technology does not enable software to be created that will operate without errors in all applications and in conjunction with other software products. It is therefore not possible to exclude the possibility of errors in programs.
(2) Any claims for defects on the part of the customer shall require the customer to have properly complied with its obligation to inspect the goods and to notify any defects, in accordance with Section 377 of the German Commercial Code (HGB).
(3) If there is a significant defect in the purchased item, aurenz shall be entitled, at its discretion, to rectify the situation, either by remedying the defect or by delivering a new, defect-free item. If either or both types of remedy prove to be impossible or disproportionate, aurenz shall be entitled to refuse to undertake them. aurenz shall have the right to repair or replace faulty hardware and software on a maximum of two occasions as part of its warranty obligation. As far as is possible, the customer will remove any software programs, modifications and add-ons prior to replacement, and will give aurenz the time and opportunity required to carry out the work to remedy the defect.
(4) If any of aurenz’s software products is not compatible with other manufacturers’ software components, this shall not constitute a defect, unless otherwise agreed in writing with aurenz. The customer is aware that the software products provided by aurenz are partly copy protected by means of a dongle.
(5) The analyses and statistics generated using the aurenz telephony software products are based on the connection data transmitted by the telephone system. Various telephone systems have been tested and found to provide inadequate data. This may particularly be caused by the use of telephone systems not provided by aurenz or by technical modifications to the telephone systems (upgrades or hardware replacement, for example). There can therefore be no guarantee provided or liability assumed for the completeness, up-to-dateness and accuracy of the analyses and statistics based on the connection data transmitted by the telephone system used by the licence holder. Detailed information about different telephone systems can be obtained by phoning +49 (0) 7021 7388833 or by emailing support@aurenz.de. (6) In the event of a defect or failure of the WebFox software product, the customer’s internet may fail completely and the customer may find it temporarily impossible to access the internet. The customer is therefore advised that it should take appropriate technical precautions, preferably prior to the installation of WebFox, to allow it to quickly regain access to the internet in the event of an internet failure (enabling access to another proxy server, etc., for example). aurenz shall not be liable for loss or damage of any kind resulting from the loss of internet in the customer’s system or in third-party systems; such liability shall be excluded. This limitation of liability shall not apply if the damage is caused by a deliberate or grossly negligent breach of duty by aurenz or a deliberate or grossly negligent breach of duty by one of aurenz’s legal representatives or vicarious agents.
(7) If the remedy mentioned in paragraph (3) is impossible to perform, or if it fails, the customer shall have the option either to accept a lower purchase price (a reduction) or to withdraw from the contract in accordance with statutory provisions (withdrawal). In the event of a minor breach of the contract, especially in the event of minor defects, the customer shall have no right to withdraw from the contract. If the customer chooses to withdraw from the contract because of a legal or material defect after an attempted remedy has failed, it will not be entitled to claim compensation for the defect.
(8) Any claims made by the customer for the costs required to remedy the defect, in particular transport, road, labour and material costs, shall be excluded if the costs increased because goods aurenz delivered were subsequently transferred to a location other than the place of performance.
(9) aurenz shall be fully liable for any legal defects and for the absence of any agreed quality guarantees.
(10) aurenz shall be liable for claims for damages from the customer that are based on deliberate or gross negligence on the part of aurenz, including deliberate or gross negligence on the part of aurenz’s legal representatives and vicarious agents, in accordance with statutory provisions. aurenz shall also be liable in accordance with statutory provisions if aurenz culpably violates a material contractual obligation. A material contractual obligation shall exist if the breach of duty relates to a duty, the fulfilment of which the buyer has relied on and should be able to rely on.
(11) aurenz’s liability for damages in accordance with paragraph (10) shall be limited to damages that are typical of this type of contract and which could have been predicted at the time the contract was concluded on the basis of the circumstances known at that time. In any event, liability for damages shall be limited to five times the delivery price for the software product purchased.
(12) In the event of a slightly negligent breach of duty, aurenz shall not be held liable, as long as this does not involve loss or damage attributable to aurenz relating to injury to life, limb, health or to a material contractual obligation. In the event of a breach of a material contractual obligation, the limitation of liability in accordance with paragraph (11) shall apply accordingly.
(13) aurenz shall not be liable for loss or damage that is not caused by the software product but which is caused directly or indirectly to the customer by other malfunctions in the computer system, and shall particularly not be liable for the loss of data or loss of profits caused by any such malfunctions. The same shall apply to any loss or damage that can be attributed to poor or incorrect operation of the software product or unauthorised program modifications made by the customer and if the software was used in ways contrary to the instructions and recommendations in the user manual; the customer shall bear the burden of proof that any damage was not caused by poor or incorrect operation of the software product or by unauthorised program modifications made by the customer and that the software was not used in ways contrary to the instructions and recommendations in the user manual. aurenz shall also assume no liability for natural wear and tear, incorrect or negligent handling, unsuitable equipment, chemical, electrochemical or electrical factors (unless aurenz is responsible for them), incorrect modifications or repair work carried out by the customer or by third parties without aurenz’s prior authorisation.
(14) The customer must make an up-to-date data backup before installing a software product purchased from aurenz. The customer must also ensure there is continuous, precautionary data backup after installation. Data must also be backed up before updates and upgrades are installed and before any maintenance is carried out. aurenz shall not be liable for any damage that may occur because of the lack of a usable data backup. aurenz’s liability in the event of data loss shall be limited to compensation for typical recovery costs that would have occurred even with regular precautionary data backups.
(15) aurenz’s liability for culpable injury to life, body or health shall remain unaffected. This shall also apply to compulsory liability under the German Product Liability Act.
(16) Claims arising from the right of recourse against the manufacturer shall remain unaffected.
(17) Unless otherwise stipulated above, aurenz’s liability shall be excluded.
(18) Claims for defects shall become time-barred one year from when the goods are delivered.
(19) The paragraphs above apply accordingly for updates and upgrades and for defects, loss and damage that occur in connection with the downloading or subsequent installation of software programs by aurenz in the customer’s computer system.
(20) Services provided by aurenz under the warranty (such as the provision of patches, updates, releases, upgrades, etc.) shall not mean that the warranty period is extended or re-started.

§ 9 Total liability

(1) Further liability for compensation as outlined in Section 8 is hereby excluded, irrespective of the legal nature of the claim asserted. This shall particularly apply to compensation claims arising from culpability when the contract was concluded, either because of other breaches of duty or because of tortious claims for compensation for property damage in accordance with section 823 BGB.
(2) The limitation in paragraph (1) shall also apply if the customer demands compensation for wasted expenses instead of compensation for a claim for damages in lieu of a service.
(3) Insofar as aurenz’s liability for damages is excluded or limited, this shall also apply to personal liability on the part of aurenz’s employees, workforce, staff, legal representatives and vicarious agents.
 
§ 10 Force majeure

(1) aurenz shall not be liable for events of force majeure which make it difficult for it to provide contractual services and which temporarily hinder or prevent it from carrying out the contract properly. Force majeure shall include all circumstances beyond the control of the parties to the contract, such as natural disasters, government actions, decisions made by authorities, blockades, war and other military conflicts, mobilisation, civil unrest, terrorist attacks, strikes, lockouts and other work-related disturbances, seizures, embargoes or other serious, unpredictable circumstances for which the parties are not responsible and which occur after this contract is concluded.
(2) If either party is prevented from fulfilling its contractual obligations by force majeure, this shall not be deemed a breach of contract. The deadlines set out in the contract or on the basis of the contract will be extended appropriately in accordance with the duration of the impediment. The same shall apply if aurenz relies on advance deliveries from third parties that are delayed because of force majeure.

§ 11 Data processing, in accordance with section 11 of the German Federal Data Protection Act (BDSG)

If aurenz comes into contact with personal data held by the customer while providing the agreed services (while providing support services, for example) and aurenz collects, processes or uses the data on behalf of the customer, the customer shall be required, in accordance with section 11 BDSG, to first conclude a written data processing contract with aurenz, which must regulate the minimum contents prescribed in section 11 (2) BDSG.

§ 12 Confidentiality

aurenz and the customer shall mutually undertake to keep all of each other’s business and trade secrets confidential for an indefinite period and not to pass them on to third parties or to exploit them in any way. All information in any form received by the other party as a result of the business relationship may only be used by that other party within the scope of the purpose of the contract.

§ 13 Final provisions

(1) Unless agreed otherwise, aurenz’s registered office shall be the place of performance.
(2) The customer may only assign its rights arising from a business relationship with aurenz with aurenz’s written consent.
(3) If the customer is a businessperson, aurenz’s registered office shall be the place of jurisdiction. aurenz shall, however, also be entitled to sue the customer in the local court for its registered office.
(4) The laws of the Federal Republic of Germany shall apply. The UN Sales Convention shall not apply.
(5) In the event that individual provisions of this contract with the customer, including these General Terms and Conditions, are or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. Instead, the invalid provisions shall be replaced by provisions that come closest in spirit to the intended purpose of the invalid provisions.