General Terms and Conditions of five(9)s GmbH
a. These General Terms and Conditions apply for all offers of and contracts for deliveries from and services, including, but not limited to consultancy and maintenance services, rendered by five(9)s GmbH, Industriegebiet Sued E 4, 63755 Alzenau, Germany, (hereinafter referred to as “five(9)s”) to its customers.
b. These general terms and conditions in their relevant version shall also apply to any future business relations of five(9)s with its customers.
c. The General Terms and Conditions shall also apply if five(9)s renders delivery or performance to the customer without reservation in the knowledge of customer´s conflicting or deviating terms and conditions. In such events, acceptance of performance by the customer shall be deemed acknowledgment of these General Terms and Conditions, with a simultaneous waiver – hereby accepted in advance - of any application of its own standard terms and conditions.
2. Exclusivity, Additional and/or Subsequential Agreements, Data Protection
a. These terms and conditions are exclusively applicable. five(9)s hereby expressively contradicts any conflicting or deviating terms and conditions. Any provision deviating from these terms and conditions shall only become effective if expressively agreed upon in writing. five(9)s´ general terms and conditions shall remain effective even if five(9)s renders services and/or makes deliveries to its customers in the awareness of the respective customer´s conflicting and/or deviating terms and conditions.
b. All additional agreements, supplementary agreements and changes must be agreed upon in writing even if they have already been concluded orally. Subsequent agreements shall only take effect if they are concluded by an authorized representative.
c. five(9)s processes and stores personal data of our customers in accordance with the conditions of §§ 4, 28 BDSG (German Federal Data Protection Act).
3. Offers, Forming of Contracts
(1) If not stated otherwise, five(9)s shall be bound to all product specifications, services and prices for a period of thirty days as of the date of submitting the respective quote.
(2) The customer shall be bound to a contract inquiry for a period of two weeks.
(3) The silence of five(9)s regarding a customer´s inquiry or proposal does not mean consent to the inquiry and/or proposal and does not construe a contractual relation of any kind. A contract shall be formed only upon a written order confirmation by five(9)s or by written acceptance of an offer made by five/(9)s by the respective customer. I performance is rendered by five(9)s without the customer first receiving an order confirmation, the contract shall be formed upon commencement of performance of the service or upon delivery.
4. Participation of a third party in transactions
(1) In the course of transactions without the participation of a consumer, information regarding funding and/or financing (e.g. leasing) shall be deemed payment terms and shall not affect the validity of the underlying contract.
(2) In the event a five(9)s´ reseller has participated in an order process, five(9)s shall not accept customers´ objections derived from customers´ contractual relation to the reseller.
5. Contract Management
5.1 Deliveries and Services
(1) five(9)s reserves the right to withdraw from a contract in the event of lacking possibility of delivery. Delivery is deemed impossible if – despite of reasonable efforts - the goods sold cannot be acquired or their acquisition would be considerably overpriced.
(2) five(9)s and customer shall separately agree upon delivery dates and delivery periods.
(3) Subsequential requests of customers with respect to amendments and/or alterations of the contractual scope of supply and services may reasonably extend the delivery period.
(4) A reasonable extension of the delivery period shall occur (i) in case of unforeseeable events, e.g. force majeure, export and/or import bans, or (ii) delays or deficits in the delivery of contractual components to five(9)s, or (iii) in the event of strike and/or lock-out at five(9)s. In such events customer is entitled to withdraw from the contract, provided that customer has reminded performance with fixing of an appropriate period of time, and the given deadline has expired fruitlessly. Customer shall, however, not be entitled to any damages for non-performance against five(9)s, unless five(9)s has fundamentally violated contractual duties.
(5) The foregoing provisions shall apply accordingly in the event the respective circumstances occur with contractors or sub-contractors of five(9)s.
(6) In the event the impediment to performance is not only temporary and not being subject to five(9)s responsibility, five(9)s shall be entitled to withdraw from the contract. In this case customer shall not be entitled to any claims against five(9)s resulting from five(9)s withdrawal from the contract.
(7) In the event a call for delivery exceeds customer´s line of credit, five(9)s shall not be obligated to fulfill the delivery request. However, customer has the opportunity to receive contractual goods against cash payment.
5.2 Retention of Title
(1) The delivered good shall remain the property of five(9)s until the complete payment of all receivables under this business relation, including ancillary claims, claims for damages and cashing of cheques or bills of exchange. The retention of title shall continue to exist even if the individual receivables of five(9)s have been taken up in a current account and the balance is drawn and acknowledged.
(2) If customer is a retailer, it shall be entitled to resell or install the goods subject to retention of title in its ordinary course of business. The customer hereby assigns to five (9)s the receivables with all ancillary claims from the resale of the goods subject to the retention of title, including any (outstanding) balance claims. five(9)s hereby accepts such assignment.
(3) The customer is authorized to collect the receivables assigned as long as it complies with its payment obligations. The collection authorization shall expire upon revocation, however no later than in the event of default in payment by the customer or in the event of a significant deterioration of the customer´s financial circumstances. In this case, customer grants five(9)s power of attorney to inform the buyers of the assignment and to collect the receivables itself. Furthermore, in such event customer is obliged to furnish five(9)s upon request a detailed list of all receivables to which customer is entitled with all relevant data of buyer (name, address, contact data etc.), amount of the individual receivables, invoice date etc., and to furnish five(9)s with all information necessary for the assertion of the receivables assigned and permit the review of this information.
(4) In the event of attachments, seizures or garnishments by a third party, customer is obliged to immediately indicate that there is a retention of title in favor of five(9)s and a respective assignment. Furthermore, customer is obliged to immediately inform five(9)s of any such attachments, stating the name of the pledge in a manner enabling five(9)s to maintain its rights against the third party.
5.3 Customer´s Payment Obligation
(1) In the event the operability of the goods delivered by five(9)s requires installation, assembling or other goods and/or services of five(9)s, such goods and/or services shall be invoiced separately by five(9)s, unless the parties have agreed otherwise. The costs related thereto are subject to five(9)s´ price list applicable at the time of placing the respective order. All supportive services offered by five(9)s or requested by the customer ( e.g. installation, demonstration of operability, consulting, instructing) have to be compensated separately subject to the respective efforts. The amount of the hourly rates, travel and other expenses are subject to five(9)s´ applicable price list.
(2) Price increases and increases of the statutory value-added tax are to be borne by the customer, if delivery and/or performance of services take place as agreed upon more than five months after the conclusion of the respective contract. The same applies in the event of delivery and/or performance of services taking place more than five months after conclusion of the respective contract due to reasons the customer is responsible for.
(3) In the event these temporal preconditions are not given, the customer shall be entitled to withdraw from the contract within a period of 14 days after the price increase has been indicated, provided customer is a consumer.
5.4 Set-off, retention, transfer of rights and obligations
(1) Customer may set off or exercise a right of retention only if its counterclaims are undisputed by five(9)s or recognized by a final and binding judgment.
(2) The customer may not execute a retention right based on another contractual relationship with five(9)s.
(3) five(9)s shall be entitled to transfer contractual rights and obligations to a third party without customer´s consent, provided five(9)s has a justified interest in such transfer, has indicated such transfer of obligations and communicated the justified interest to the customer and the transfer of obligations does not impair inappropriately with customers’ justified interests. In the event one of the foregoing preconditions is not given, the customer shall be entitled to withdraw from the contract within a period of two weeks following receipt of an indication of transfer. The timely receipt of customer´s withdrawal indication is relevant for adhering with the foregoing time limit.
5.5 Transfer of risk of damage or loss
(1) The risk of damage or accidental loss of the contractual goods shall transfer to the customer upon surrendering of the goods. The surrendering of the goods is equivalent to customer´s default in payment.
(2) In the course of transactions without the participation of a consumer, the risk of damage or accidental loss of the contractual goods shall transfer to the customer upon handing the goods to the forwarding person or entity or in the moment the goods have left the warehouse to be forwarded. The same applies if the goods are being delivered free of charges, or if the customer has – expressively or implied, e.g. by submitting a delivery address – requested delivery. In the event of a delay in delivery on customer´s request, the risk of damage or accidental loss shall transfer to the customer upon five(9)s statement of deliverability. five(9)s shall be entitled, but not obliged to ensure the goods on customer´s behalf and at customer’s expense.
6. Breach of Contractual Duties
6.1 Customer´s delayed payment
(1) If the customer fails to settle a receivable, in whole or in part, on the agreed due date, any serving of an overdue notice shall be under maintenance of the contract.
(2) In the event the customer fails to settle a receivable on the agreed due date, five(9)s shall – notwithstanding all other rights – be entitled to redeem the contractual goods in order to secure its claims, provided that five(9)s has indicated such measure and granted the customer an appropriate grace period to settle the outstanding amount. In such event five(9)s shall indicate to the customer within one month´s period which rights shall be pursued in relation to customer´s default in payment. This period shall commence when five(9)s has redeemed the contractual goods from the customer in whole.
(3) five(9)s shall be entitled to cease the execution of a contract respectively of a number of associated contracts, should the customer come into arrears with contractual payments or in the event of concrete indications of customer´s pending illiquidity. In such case five(9)s may request payment in part or in whole quid pro quo against delivery in part or in whole, even if an input obligation of five(9)s was agreed upon. Furthermore, five(9)s shall be entitled to request appropriate securities for receivables not being due yet. If the customer does not provide appropriate securities, five(9)s shall be entitled to withhold contractual performance and claim the rights resulting from customer´s default.
6.2 Customer´s default in acceptance of contractual performance
(1) In the event the customer denies the acceptance of the contractual goods and/or services, five(9)s shall be entitled to dispose of the goods or services otherwise, provided five(9)s has granted customer an appropriate acceptance period. In this case, five(9)s shall deliver the contractual goods and/or services to the customer within an appropriate extension of time. However, five(9)s shall not be obliged to perform a substitute delivery, if the contractual goods cannot be obtained despite appropriate efforts, or can only be obtained at grossly overpriced conditions. In this event, any claim of the customer for substitute delivery shall extinguish after five(9)s has indicated the impossibility or severe aggravation of obtaining the contractual goods, unless the customer accepts an alternative delivery as offered by five(9)s.
(2) In the event the customer denies the acceptance of the contractual goods and/or services offered by five(9)s in the course of transactions without participation of a consumer, and thus is in default of acceptance, five(9)s is entitled to claim 20% of the agreed price as a compensation for non-acceptance. five(9)s reserves the right to assert a higher compensation. The customer may substantiate that five(9)s suffered only an essential lower or no damage at all due to the non-acceptance of delivery.
(3) In the event delivery is delayed on customers request in the course of transactions without participation of a consumer, five(9)s shall be entitled to charge storage costs to the customer amounting to at least 0.017% of the invoiced price per day of delay, commencing in the month following five(9)s has indicated readiness for delivery.
6.3 Seller´s Warranties / Customer´s inspection obligation
(1) five(9)s seller´s warranties commence upon delivery of the contractual goods and/or services.
(2) In the course of transactions without the participation of a consumer, five(9)s seller´s warranties shall commence no later than two weeks following shipping of the goods.
(3) In the event commodities (Sec. 474 of the German Civil Code –BGB-) are being sold the warranty term shall be two years for new goods and one year for used goods unless five(9)s has fraudulently withheld a deficiency of the goods. The caveat emptor as regulated hereinafter shall not be affected hereby.
(4) In the course of transactions without the participation of a consumer, the warranty term shall be two years for new goods, and there shall be no warranty for used goods unless five(9)s has fraudulently withheld deficiencies of the goods. This determination of warranty terms shall not affect the caveat emptor regulations hereinafter concerning (i) expiration of reprimanding period after delayed indication of deficiencies, (ii) deficiencies not being in five(9)s responsibility resulting from customer´s sphere, (iii) obtaining software directly from its manufacturer; caveat emptor regulations for downloaded software and opposing exemptions.
(5) In the course of transactions without the participation of a consumer, the customer must immediately inspect deliveries for completeness, defects and obvious deficiencies (Sec. 377 of the German Commercial Code –HGB-). Obvious defects and incompleteness must be indicated to five(9)s in writing within a period of five working days (Monday – Friday) following delivery. After the expiration of this period, all warranty claims with regard to incompleteness and obvious defects shall be excluded. For keeping of this term the timely expedition of the indication is sufficient. The customer shall bear the burden of proof for all conditions of entitlement, including, but not limited to incompleteness and obvious defects, the time of finding and the timely expedition of indication to five(9)s.
(6) In the course of transactions without participation of a consumer, five(9)s shall – at its discretion – either rectify the defects or perform a substitute delivery (subsequent performance). five(9)s shall exercise this option within a period of at least 48 hours (2 working days), commencing upon receipt of customer´s notification. Customer has to accept no more than three attempts of substitute delivery. If the substitute delivery is unsuccessful, the customer may, in accordance with the relevant statutory provisions, reduce the compensation, rescind the contract or claim compensatory damages or reimbursement of expenses. The right of rescinding the contract shall be excluded for minor lack of conformity, in particular minor defects or minor incompleteness.
(7) If, in the course of transactions without participation of a consumer, the customer chooses to rescind the contract after failed subsequent performance, it shall not be entitled to any other compensatory damages against five(9)s due to the indicated defect.
(8) The customer has to support five(9)s with the rectification of defects in an appropriate manner.
(9) Should the defects occurred not be in the responsibility of five(9)s, but derive from the customer´s sphere of risk, any warranty claims forfeit. This may be the case in the event of disturbances resulting from the use of inadequate operative material or if installation requirements have not been obeyed. Warranty claims shall also forfeit in the event the customer has performed alterations of or intervened with the contractual goods, unless the customer proves upon reporting the defect to five(9)s that the alteration or intervention was not causal for the defect. In the event the customer obtains updates or upgrades directly from the manufacturer of standard software (e.g. by download), five(9)s shall not be liable for any defects or disturbances related thereto. The customer shall prove that the disturbance or defect is not related to the upgrade or update directly obtained from the software´s manufacturer. The presumption rule in favor of a consumer pursuant to Sec. 476 of the German Civil Code (BGB) remains unaffected.
(10) The customer shall report disturbances and/or defects occurring within the course of appropriate use of the contractual goods in a comprehensible and detailed form, stating all information required for the detection and analysis of the defects. If so required by five(9)s, this report has to be made in writing. The customer shall deliver the hardware concerned appropriately packed with all necessary connecting cables. In the event of defective software five(9)s shall provide the customer with a corrective software for transfer. In the course of transactions without participation of a consumer, for the duration of the warranty term the customer has to keep all technical installations and/or devices including, but not limited to, telephone and telecommunication lines in operation at its expense.
(11) In the event five(9)s has taken action due to a customer´s defect report without the existence of the alleged defect, five(9)s shall be entitled to claim compensation of the efforts thereto related.
(12) Any claim for deletion of errors/defects in favor of the customer shall be excluded in the event the defect is either not reproducible or cannot be identified by technical means.
6.4 Limitation of liability for compensatory damages and loss of data
(1) five(9)s shall be liable for compensatory damages
(i) for damage or losses caused as a result of willful or grossly negligent conduct on the part of its statutory representatives or vicarious agents;
(ii) under the German Product Liability Act (Produkthaftungsgesetz)
(iii) for damage resulting from injury to life, limb or health for which five(9)s, its statutory representatives or vicarious agents are responsible;
(2) five(9)s shall be liable in the event of ordinary negligence if it or its statutory representatives or vicarious agents have breached a material contractual obligation (so-called “cardinal duty”), fulfillment of which is essential for due and proper performance of the relevant agreement and compliance with may reasonably be relied upon by the customer. In other respects, liability for ordinary negligence shall be excluded. If five(9)s is liable for ordinary negligence, liability in the event of material damage or pecuniary loss shall be limited to the foreseeable damage or loss typical under the contract. Liability for other, remote consequential damage shall be excluded. For each case of damage or loss, liability shall be limited to EUR 50,000.
(3)Customer´s claims for damages due to loss of data shall be excluded if the loss of data has occurred as a consequence of improper or omitted data backup by the customer.
6.5 Additional Provisions for Legal Relations to Resellers
In the event the customer is a reseller, the following provisions shall apply:
(1) In case of a commodity sale between a reseller and its customer, five(9)s shall be entitled, but not obliged to directly satisfy damage claims of the consumer with respect to goods delivered by five(9)s. In such event, the reseller shall receive the goods claimed to be defective from the consumer and inform five(9)s accordingly. five(9)s then shall at its expense collect the defective goods from a reseller and shall – at its discretion – either rectify the defects and re-deliver the goods or deliver a replacement to the reseller, who then shall forward the goods to the consumer. Expenses of the reseller in that respect (pursuant to Sec. 478 of the German Civil Code –BGB-) shall be reimbursed on a case-by-case basis by five(9)s up to a maximum amount of EUR 12.00 plus applicable value added tax against the invoice. Any exceeding claims of a reseller for compensation of expenses are excluded.
(2) Reseller may not make any public statements pursuant to Sec. 434 para. 1 s. 3 of the German Civil Code – BGB - with respect to products being an item of a delivery agreement, unless five(9)s has agreed to such statements in writing or the statements based on five(9)s´ own specifications. If the reseller makes public statements disregarding above provisions, eventual divergences to the actual state of the product shall not constitute a defect in the legal relationship between the reseller and five(9)s.
(1) In the event of a cross-border delivery or service, the customer shall bear all customs duties, fees and other levies incurred, unless the individual agreement provides otherwise.
(2) All deliveries and services shall be provided by five(9)s in compliance with the applicable provisions and are intended to be used and located in the destination country agreed with the customer.
(3) The export of data processing devices is subject to separate export control provisions and requires approval of the competent authorities.
(4) If the customer intends to re-export the deliveries and services, it is obliged to obtain the required the required licenses, in particular from the foreign trade authority, before it exports the products. It shall inform itself independently of the applicable provisions and regulations and handle the re-export on its own responsibility. To this extent, five(9)s shall have no obligation whatsoever to furnish information, give advice or provide assistance.
(5) If, in the event of the re-export or import into another country, the customer breaches the statutory provisions applicable to such country, and if a claim is made against five(9)s for this reason, the customer undertakes to indemnify five(9)s against any and all financial obligations arising in this regard and in addition shall be obliged to compensate five(9)s for any damage incurred due to the improper re-export or import.
8. Miscellaneous, Applicable Law
(1) Any amendments to any and all agreements concluded between the parties must be agreed in writing, Verbal agreements shall only apply if they are confirmed in writing by five(9)s within five days; an e-mail may satisfy this written form requirement.
(2) five(9)s and the customer shall keep confidential any business and trade secrets as well as other information marked confidential and disclosed in connection with their contractual relationship or the sales and distribution relationship and the resulting contractual relationship. Such information may be passed on to persons who are not party to the conclusion, execution or implementation of their contractual relationship or the sales and distribution relationship and the respective individual agreements only with the prior written consent of the other contracting party. Unless agreed otherwise, this obligation shall end following the expiry of five years after disclosure of the respective information, however not before the ending of any sales and distribution relationship existing between five(9)s and the customer. The contracting parties shall also impose these obligations on their employees and any third parties engaged.
(3) All contractual relations of the parties shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of 1 April 1980 (CISG) and the application of the unified international sale of goods law (EKG, EAG) shall be excluded.
(4) The contractual language shall be German.
(5) If any provision of these General Terms and Conditions is held invalid, the remainder of these General Terms and Conditions shall continue in full force and effect. To the extent that an otherwise invalid provision can be construed so as to be valid, that provision shall be so construed.
9. Place of performance and Forum
(1) Place of performance for all obligations under the contractual relations of the parties shall be Alzenau, Germany.
(2) With respect to merchants, a legal entity under public law or a special fund under public law, forum for any and all legal disputes arising from or in connection with the contractual relations of the parties, in particular, based on a sales and distribution relationship and the resulting contractual relations as well as for disputes in relation to the formation and validity of these contractual relations, shall be Aschaffenburg. five(9)s may, however, bring an action against the customer at its registered office.