1. Scope of application
- The following General Terms and Conditions of Delivery and Service (hereinafter: “Terms and Conditions“) apply to any manufacturing, sales and/or deliveries of products and/or services (hereinafter: “Delivery Item”) from JUMO GmbH & Co. KG (hereinafter: “Supplier”) to a client, customer, partner, purchaser or distributor (hereinafter: “Purchaser”). Supplier and Purchaser (hereinafter: “Parties“ or “Party”) expressly agree that these Terms and Conditions apply exclusively. Supplier does not acknowledge Purchaser’s terms and conditions which conflict with or, which deviate from these Terms and Conditions, unless Supplier expressly accepts their validity in writing.
These Terms and Conditions also apply if Supplier performs without reservation its contractual obligations even though he is aware of conflicting or deviating terms and conditions of Purchaser.
- Those employees of Supplier, which do not have signatory powers, are also not authorized to conclude verbal agreements, verbal amendments to these Terms and Conditions or to make other verbal arrangements.
- In addition to these Terms and Conditions, the Supplemental clauses “Licensing of Software Products for Industrial Automation (power supply, measuring, shifting, steering)", available at http://EG13-en.jumo.info, shall apply to the licensing of software from Supplier to the benefit of Purchaser.
- In addition to these Terms and Conditions, the Supplemental clauses “Development of Software Products for Industrial Automation (power supply, measuring, shifting, steering)", available at http://EG14-en.jumo.info, shall apply to the development of software by Supplier to the benefit of Purchaser.
- These Terms and Conditions shall only apply to enterprises as defined in Section 14 para. 1 of the German Civil Code (BGB).
- These Terms and Conditions shall also apply in their respective version as a framework agreement to future contracts, without Supplier having to refer to them again in each individual case; Supplier shall immediately inform Purchaser of any changes to these Terms and Conditions.
- Individual written agreements concluded with Purchaser in individual cases (including side agreements, supplements, and amendments) shall have priority over these General Terms and Conditions in any case.
- Legally relevant declarations and notifications which must be submitted by Purchaser to Supplier after conclusion of the Contract must be made in writing in order to be valid.
2. Offer, order confirmation, conclusion of contract and term of contract
- The offers issued by Supplier are not binding. A Contract shall only come into effect through the transmission of an order confirmation by Supplier.
- The extent of the performance obligation of Supplier is determined solely by Supplier’s written order confirmation (hereinafter: “Contract”).
- The Contract is concluded for the duration of the performance.
- If the subject matter of the Contract is a continuing obligation, it shall be concluded for a period of twelve (12) months and shall be tacitly renewed for a period of twelve (12) months in each case unless it is terminated three (3) months before the expiry of the respective Contract period. In the event of termination for any reason whatsoever, the Purchaser shall be obliged to accept and pay for all manufactured Delivery Items already ordered at the agreed price. Insofar as the Delivery Item has been ordered but not yet manufactured, the Purchaser shall be obliged to accept and pay for the production materials already purchased at full cost, unless the Supplier can at its own reasonable discretion use these production materials for other purposes.
3. Copyright and reservation of ownership to drawings, etc.
- Supplier reserves the ownership, including intellectual property rights, of drawings, data, data carriers, specifications, documentation, know-how and drafts, sketches, cost estimates and other documents attached to the offer and/or the Contract (hereinafter: "Documents").
- Purchaser may only use the Documents for the agreed purpose and shall not adapt, reproduce them or make them available to third parties without the consent of Supplier.
- Upon request of the Supplier, the Documents themselves and all approved reproductions thereof shall be returned to Supplier by the Purchaser. Exempt from this are copies which are required for the statutory documentation obligation. Also excluded from this are archived and encrypted security copies of electronic data traffic, as well as security copies due to internal security and compliance guidelines of the Contractual Partner.
4. Delivery time and default; reservation of self-delivery; force majeure
- Compliance with performance and/or delivery dates, deadlines and/or periods shall be subject to the proviso that the Supplier is supplied by its suppliers in good time or that the materials required for the fulfilment of the order can be procured on the market at all. In the event of delayed or non-delivery, the Supplier shall be entitled to withdraw from the Contract and shall thereby be released from its obligation to perform. The Supplier shall be obliged to inform the Purchaser of this without delay and, in the event of withdrawal, shall reimburse the Purchaser for any consideration already paid.
- The binding nature of performance and/or delivery dates, deadlines and/or periods presupposes that the Purchaser provides Supplier with documents and other required information in a timely manner, and that the Purchaser does not delay his cooperation or other material contractual duties, in particular, payment obligations.
- In cases of force majeure, the Contractual Partner affected by a case of force majeure shall be released from its obligation to perform to the corresponding extent for the duration of the effect. A case of force majeure shall be deemed to have occurred if it is beyond the control and influence of the affected Contractual Partner. A case of force majeure could not reasonably have been foreseen at the time of the conclusion of the Contract and the effects could not reasonably have been prevented or overcome by the affected Contractual Partner. A case of force majeure shall be deemed to be in particular
a) War or comparable warlike acts, large-scale military mobilisation, civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, act of terrorism, sabotage, or piracy.
b) Lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalisation.
c) epidemics, pandemics, natural disasters or other extreme natural events such as floods.
d) Explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunication, information systems or power.
e) general labour unrest such as boycotts, strikes and lockouts; slowdown strikes; occupation of factories and buildings.
- The affected Contractual Partner shall immediately inform the other Contractual Partner of the case of force majeure and its effect. If performance of the Contract is delayed by more than one month for reasons of force majeure, each Contractual Partner shall have the right - without entitlement to compensation from the other Contractual Partner - to terminate the Contract in writing for the quantities affected by the interruption in performance of the Contract and/or to withdraw from the Contract.
- Partial deliveries respectively performances are allowed insofar as they can be reasonably accepted by Purchaser.
- If Supplier culpably defaults, Purchaser’s claims shall be determined exclusively according to Section 9 of these Terms and Conditions.
5. Transfer of risk
- Unless otherwise agreed, all deliveries of the Supplier's Delivery Items to the Purchaser shall be made in accordance with Incoterms® 2020 FCA (Free Carrier).
- Insofar an acceptance procedure of a service and/or a work has been agreed but a fixed acceptance deadline has not been agreed upon, Purchaser shall accept the Delivery Item within a period of fourteen (14) days from the notification of completion. If Purchaser does not confirm the acceptance within the set period and omits to notify reasons, the Delivery Item shall be deemed to have been accepted. The risk of performance shall pass to the Purchaser upon acceptance at the latest.
- If Purchaser has placed an order on-call, he must call up the Delivery Item within twelve (12) months from the date of the order, unless the Parties have agreed otherwise. If Purchaser does not call up the Delivery Item(s), Purchaser is in default of acceptance and the risk passes to him.
6. Prices and terms of payment
- The prices stated by Supplier are ex works plus value added tax at the legal amount valid at the time of delivery, packaging excluded. The packaging shall be charged separately.
- The purchase price must be paid within 30 days of receipt of invoice free of transaction charges.
- Supplier reserves the right to request from Purchaser the presentation of an irrevocable and unlimited bank guarantee in the amount of the contractual price upon conclusion of the Contract.
- If a cost element demonstrable increases within the total cost forming the price (e.g. personnel costs or hourly rates, operating and production costs, e.g. due to rising energy costs or verifiable third-party material costs), Supplier reserves the right to adjust the price proportionally, but only in relation to the corresponding changed cost element and insofar as it is reasonable for Purchaser. The Supplier shall inform the Purchaser thereof without delay, setting out the changed cost elements in each case. The resulting new price shall apply from the first day of the calendar month following receipt of the written notification.
- If the subject matter of the Contract is not a continuing obligation, a price increase pursuant to Clause 6.4 shall only be possible if the delivery of the Delivery Item and/or the performance of the service does not have to be fulfilled within four months from the conclusion of the Contract.
- If payment by instalments has been agreed upon, the respective instalment must be paid in advance by the 3rd working day of the respective payment period, unless Parties have agreed on a specific payment date. If Purchaser defaults on payment for more than one instalment, the total outstanding amount shall become due. This shall also apply if payment by instalment has been agreed upon after the due date. Supplier’s right to charge default interest shall remain unaffected by an agreement to pay by instalments after the due date.
- The offset against Purchaser's claims, which are disputed by Supplier, not recognized, not legally upheld, or not ready for decision in pending court proceedings, are excluded. The Purchaser shall not have a right of retention or a right to refuse performance unless the counterclaims of the Purchaser on which the assertion of these rights is based are undisputed or are legally binding. A right of retention can only be exercised if the counterclaim is based on the same Contract.
- In the case of non-compliance with the terms of payment or if Supplier becomes aware, after concluding the Contract, that an existing or future claim could be jeopardized by the Purchaser's lack of solvency, the Supplier shall be entitled to perform outstanding services only against advance payment or the provision of security.
- In the case of change requests by Purchaser after conclusion of the Contract, Supplier reserves the right to adjust the agreed prices as well as the agreed Terms of Delivery correspondingly.
7. Retention of title
- Supplier retains ownership of all Delivery Items until fulfillment of all existing claims of the Purchaser under the Contract respectively the business relations with Purchaser, even if the respective Delivery Item has already been paid for in full. In the case of a current account, the total reserved property shall serve to secure the outstanding balance claim. If the estimated value of the reserved goods, serving as security for Supplier, exceeds the outstanding claims against Purchaser by more than twenty percent (20%), Supplier shall release securities of his choice upon request of Purchaser.
- During the existence of the retention of title, Purchaser may neither pledge nor otherwise transfer the Delivery Item as security. In the event of seizure, confiscation, or other compulsory execution measures against the goods subject to retention of title as well as in the event of other disposals of the goods subject to retention of title by third parties, he shall notify the Supplier thereof without delay. Nevertheless, the Purchaser shall inform its customers and other third parties of the Supplier's existing rights to the Delivery Items. The costs of an intervention incurred by the Supplier (e.g. costs of a third-party action in accordance with § 771 ZPO) shall be borne by the Purchaser insofar as the third party is not in a position to reimburse the costs.
- In the event of any conduct by Purchaser that constitutes a breach of the Contract, in particular in the event of default of payment, Supplier reserves the right to reclaim the reserved goods after the unsuccessful expiry of a reasonable deadline set for Purchaser and Purchaser is in that case obliged to surrender the goods.
- The enforcement of the retention of title and/or the assertion of the claim for surrender, as well as the seizure of the reserved goods by Supplier, shall be deemed as withdrawal from the Contract.
- Supplier is entitled to ensure the Delivery Item at Purchaser's expenses against fire, water and other damage insofar as Purchaser has not demonstrably concluded the insurance himself.
- Purchaser is entitled to resell the Delivery Item in the ordinary course of business if he receives payment from his customer or makes the reservation that ownership of Purchaser passes to his costumers only after he has fulfilled his payment obligations. In the event of resale, the Purchaser hereby assigns as a security to the Supplier all claims against his customer arising from the resale up to the amount of the invoice until all outstanding claims of the Supplier have been settled, without any further declarations being required. Supplier accepts the transfer. After transfer, Purchaser stays authorized to recover the claim, but the Supplier reserves the right to collect the claim himself as soon as Purchaser does not fulfil its payment obligations and is in default of payment.
- The adaptation and processing of the Delivery Item by Purchaser shall always take place in the name and on the behalf of Supplier. If the Delivery Items are processed, Supplier shall acquire sole ownership of the new item, which shall thus become the reserved good. This shall also apply if the Delivery Item is connected or mixed with other items belonging to Purchaser. If the estimated value of the goods subject to retention of title serving as security for the Supplier exceeds the outstanding claims against the Purchaser by more than twenty per cent (20%), the Supplier shall be obliged, at the Purchaser's request, to release securities of its choice to the corresponding extent. If the connection or mixing takes place in such a manner that Purchaser's item must be regarded as the main item, it is deemed to have been agreed that Purchaser shall transfer proportional joint ownership to Supplier. Purchaser keeps the resulting sole ownership or joint ownership for Supplier.
8. Purchaser's right of withdrawal or reduction
- Purchaser is entitled to withdraw from the Contract if the entire contractual performance becomes impossible for Supplier. This shall also apply in case of Supplier’s inability to perform. Insofar the impossibility is due to the Supplier's failure to deliver itself in accordance with clause 4.1 or a case of force majeure existing in accordance with clause 4.3, the right to withdraw from the Contract shall only exist in accordance with clause 4.4. Purchaser is also entitled to withdraw from the Contract if, upon ordering identical items, performance of part of the delivery becomes impossible because of the quantity and Purchaser has a justified interest in rejecting the partial delivery. If this is not the case, Purchaser can reduce the price on a pro rata basis.
- If there is a delay in performance which is not covered by clauses 4.1 or 4.3 of these Terms and Conditions, Purchaser grants Supplier an appropriate grace period. Purchaser is entitled to withdraw if this grace period is not observed.
- If impossibility of contractual performance arises during the agreed delay in acceptance or due to Purchaser’s fault, the latter remains obliged to fulfil its obligations.
- Claims for damages due to (pre-)contractual breach of duty and from tort except for such damages that have occurred to the Delivery Item itself shall only exist:
- in the event of culpable breach of duty by Supplier;
- in the event of grossly negligent breach of duty by Supplier or in the event of culpable or grossly negligent breach of duty by Supplier’s legal representatives or subcontractors.
- The limitations of liability under clause 9.1 of the Terms and Conditions shall not apply in the event of culpable injury to life, limb and health and in the event of breaches of essential contractual obligations (so-called cardinal obligations) which arise from the nature of the Contract and the breach of which jeopardizes the achievement of the purpose of the Contract. In this respect, the Supplier shall be liable for any degree of fault and for any type of damage. Likewise, the Supplier shall be fully liable in accordance with the provisions of the Product Liability Act or in the case of defects which were fraudulently concealed or the absence of which was expressly guaranteed by the Supplier.
- The liability of Supplier is limited to the foreseeable and typically occurring damage.
- Further claims for compensation are excluded.
10. Liability for defects
- In the event of a defect in the Delivery Item, the Purchaser's claims shall initially be limited to the remedy of the defect (rectification) or delivery of an object free of defects (subsequent delivery), at the discretion of the Supplier.
- If the subject matter of the Contract is a purchase and a commercial transaction for both Contractual Partners, the Purchaser shall be obliged to inspect the goods for defects immediately upon receipt and, if any defects are discovered, to notify the Supplier thereof in writing without undue delay. If he fails to give such notice, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. Otherwise, §§ 377 ff. HGB shall apply.
- No guarantee is assumed by Supplier for damages or defects caused by the following reasons:
- natural wear and tear;
- inappropriate or incorrect use;
- incorrect alterations or repairs made without the prior consent of Supplier;
- defective assembly or commissioning by Purchaser or third parties;
- defective or negligent treatment of the Delivery Item, in particular with regard to the existing operating instructions;
- in the event of excessive exposure;
- when using unsuitable equipment and replacement materials;
- the combination of the Delivery Item with another item, insofar as this combination has not previously been expressly approved by Supplier and the damage or defect results from this combination.
- After concertation with Supplier, Purchaser shall give Supplier the time and opportunity required to be able to carry out all improvements and replacements which, at the discretion of Supplier, appear necessary.
- If the Supplier is obliged to provide supplementary performance, the Supplier shall bear the expenses required for supplementary performance insofar as it is obliged to do so by law. If the subsequent performance fails or if the Purchaser unsuccessfully sets a reasonable deadline for subsequent performance, the Purchaser may withdraw from the
contract or reduce the remuneration.
- Unless otherwise agreed, Supplier shall ensure that deliveries are performed free from property rights and copyrights of third parties, however solely in the country of the place of delivery. Should a breach of property rights in the country of the place of delivery nevertheless occur, Supplier shall either procure a corresponding right of use from the third party or modify the Delivery Item to such an extent that it no longer breaches the property rights. Insofar as this is not possible for Supplier under appropriate and reasonable conditions, both Purchaser and Supplier reserve the right to withdraw from the Contract.
- In case of deficiencies in title, the provisions contained in Sections 9 and 10 of these Terms and Conditions apply correspondingly whereas claims of Purchaser are only valid if (i) Purchaser notifies Supplier immediately in writing of any claims enforced by third parties, (ii) Purchaser neither directly nor indirectly acknowledges an alleged infringement (iii) all possibilities of defense remain preserved without limitation for Supplier, (iv) the infringement is not based on the fact that Purchaser has altered the Delivery Item or used it in a manner not in accordance with the Contract, and (v) the deficiency in title is not attributable to instructions of Purchaser. Claims for damages shall only exist in accordance with clause 9 of these Terms and Conditions.
11. Statute of limitation
- Guarantee claims – irrespective of legal basis – shall become time-barred twelve (12) months from beginning of the legal statute of limitation. This shall not apply if it concerns defects of a construction or items for a construction, which have caused the defect, as well as in the case of entrepreneurial recourse in accordance with Sections 478, 479 BGB. Notwithstanding sentence 1, the statutory terms for claims shall also apply in the event of claims under Section 9 of these Terms and Conditions.
- Used Delivery Items are sold under the exclusion of any liability for material defects. This exclusion shall not apply in cases under Section 9.1 of these Terms and Conditions.
12. Installation and services
- Unless agreed otherwise in writing, assembly work and services (repairs and maintenance) shall be remunerated. The remuneration includes, in particular, travel expenses, daily allowances as well as the usual rates for working hours, and surcharges for overtime, night work, Sunday work, and work on public holidays, for work under difficult circumstances and for planning and monitoring.
- The costs of preparation, waiting and travel time shall be charged separately to Purchaser by Supplier. If the assembly or commissioning is delayed without the fault of Supplier, Purchaser shall bear, to an appropriate extent, all costs for the waiting time and for further necessary travel.
- Purchaser shall provide at his own expense the necessary support staff with the required tools in the required number. Furthermore, Purchaser shall provide sufficiently large, suitable, dry, and lockable rooms for the storage of machine parts, equipment, materials, tools, etc. To protect the property of Supplier, as well as the assembly and service staff, Purchaser shall take the same measures which he would take to protect his own property. If the nature of Purchaser's business requires special protective clothing and equipment for the assembly and service staff, it shall be provided by Purchaser.
- The assembly staff of Supplier and his subcontractors are not authorized to carry out any work which is not part of Supplier’s obligation to deliver, install or assemble the Delivery Item or which is initiated by Purchaser or a third party without consultation of Supplier.
- If assembly is carried out by Purchaser or by a third party commissioned by him, the appropriate operating and assembly instructions of Supplier must be observed.
- When performing (repair and maintenance) services, Supplier can decide at his discretion, based on his experience and technical assessment, whether Supplier performs the services at Purchaser's premises or at his own premises. If the service is carried out at Supplier’s premises, Purchaser shall submit the item to Supplier. After the service has been performed, Supplier shall return the Delivery Item to Purchaser.
- Insofar Purchaser does not report made alterations, the devices shall be reset to the standard configuration after the service. If Purchaser informs Supplier of altered settings and programs, Supplier shall configure and program the Delivery Item accordingly when performing the service. However, Purchaser is required to check these settings. Supplier does not assume any guarantee for this. Furthermore, Supplier does not assume any responsibility for the functionalities after incorporation of the Delivery Item into the system of Purchaser.
- Supplier’s service technician is merely authorized to carry out services on parts other than those supplied by Supplier if a quick and easy solution is to be expected, and if Purchaser expressly places a corresponding additional order.
- Supplier’s technician can cancel the service if it turns out that he is not able to provide repair in the expected short timeframe. In this case, Purchaser shall pay the time-based remuneration as well as the material used in carrying out the additional order. If, based on a professional judgment, the technician could have completed the service work in the expected short timeframe and did not realize this due to gross negligence or if he acted with willful misconduct, Purchaser owes no payment for the canceled service.
- It is Purchaser’s responsibility to verify whether claims arising from delivery and maintenance contracts with third parties are affected or lost because of the granting and execution of an additional order. Supplier does not assume any liability for this.
This affects among other things the following obligations on the part of Purchaser:
- When delivering equipment to be maintained and in the event of return deliveries Purchaser shall always strictly comply with the valid version of the Ordinance on Hazardous Substances;
- In particular, Purchaser shall package and label devices which have been filled with hazardous substances, or which otherwise have come into contact with them, in accordance with the corresponding legal provisions;
- In addition, Purchaser must expressly refer in the service order to the devices' connection with hazardous materials as defined in the Ordinance on Hazardous Substances and, if necessary, enclose a safety data sheet in accordance with EU Regulation (EC) N° 1907/2006 (REACH);
- If no devices such as the ones manufactured by Supplier are involved, for which the latter continues to be liable for defects, Supplier can refuse at any time to accept a service order for devices which refers to the connection to hazardous substances.
- In case of failure to comply with the Ordinance on Hazardous Substances, Supplier reserves the right to assert possible claims for compensation; this shall not apply if Purchaser or his agent are not responsible for the breach of duty.
13. Export control regulation
- The contractual performance is provided under the condition that there are no legal conflicts due to national or international regulations, in particular export control regulations as well as embargos or other trade and foreign trade law restrictions. The Purchaser undertakes to provide all information and documents required for the export, transfer or import.
- Delays in delivery due to necessary export inspections or approval procedures shall invalidate agreed delivery periods and dates. The Supplier is obliged to inform the Purchaser immediately of the delay in delivery and its cause. In the event of a delay in delivery of more than one month, the Contractual Partners shall be entitled to withdraw from the Contract to the extent affected by the delays in delivery by means of a corresponding written declaration, without the other Contractual Partner being entitled to damages as a result.
- If required official (export) permits are not granted or if the performance of the Contract is not subject to approval or if the Purchaser breaches its obligation to provide all necessary information and documents to obtain the required permits despite the Supplier setting a reasonable deadline, the Supplier shall be entitled to rescind the Contract to the extent affected. Claims for damages by the Purchaser shall be excluded in accordance with clause 9.
- Supplier is entitled to terminate the Contract without notice if termination is required for Supplier to comply with national or international legal provisions. In the case of such termination, the enforcement of damages or other rights by Purchaser due to the termination or its consequences is excluded.
14. Confidentiality Agreement
- All information’s, including but not limited to business information, technical and commercial information, market and competitive information, etc., and any related information, disclosed by the disclosing Contractual Partner to the receiving Contractual Partner in any form, whether written, oral or digital, shall be deemed to be confidential information (hereinafter "Confidential Information").
- The following information shall not be considered Confidential Information, and the burden of proving the existence of any of these exceptions shall be on the receiving Contractual Partner:
- Information already in the possession of the receiving Contractual Partner at the time of disclosure by the disclosing Contractual Partner to the receiving Contractual Partner,
- Information developed by the receiving Contractual Partner independently of the disclosure by the disclosing Contractual Partner,
- Information disclosed to the receiving Contractual Partner by a third party without breach of any confidentiality obligation by that third party, or
- Information that was generally known at the time of disclosure.
- The receiving Contractual Partner shall treat all Confidential Information of the disclosing Contractual Partner as confidential and shall not disclose such Confidential Information to third parties without the consent of the disclosing Contractual Partner. In particular, the receiving Contractual Partner shall not use any confidential information for purposes other than for the cooperation of the Contractual Partner without the consent of the disclosing Contractual Partner.
- In order to ensure that the Confidential Information is kept confidential, the receiving Contractual Partner agrees :
- that all documents and materials containing Confidential Information must be kept in a secure place to protect them from theft or unauthorised access;
- to make copies of Confidential Information only to the extent necessary for the effective performance of the Contract and, when copying the Confidential Information, to ensure that any markings on the original documents indicating the confidential nature of the Confidential Information are as legible on the copies as on the original documents; and
- to notify to the Disclosing Contractual Partner immediately upon becoming aware of any actual or threatened unauthorised use or actual or threatened unauthorised disclosure of Confidential Information and take all reasonable steps to prevent or terminate such use or disclosure, with the assistance of the disclosing Contractual Partner if necessary.
- The receiving Contractual Partner shall disclose Confidential Information only to those of its employees, directors, affiliates and consultants whose positions are such that such disclosure is necessary for the purposes of the discussions relating to the cooperation between the Contractual Partners. Such persons shall also be bound by a duty of confidentiality comparable to the obligations under this confidentiality agreement.
- In the event that the Receiving Contractual Partner is subject to a legal obligation or a lawful judicial or regulatory order to disclose the Confidential Information of the Disclosing Contractual Partner, the Receiving Contractual Partner:
- promptly advise the disclosing Contractual Partner in writing of this obligation and, upon request, assist the disclosing Contractual Partner to the extent possible in protecting the Confidential Information or having it protected by the courts; and
- unless no other protective measures are taken, disclose only such Confidential Information as is required to be disclosed by legal obligation or order and use its best endeavours to ensure that the Confidential Information disclosed is treated as far as possible in accordance with this confidentiality agreement.
- The receiving Contractual Partner shall be obliged to disclose at the request of the disclosing Contractual Partner:
- promptly return all Confidential Information, whether in writing or otherwise, together with all reproductions and copies thereof or, at the disclosing Contractual Partner’s option, demonstrably destroy the same;
- at the same time, return or, at the option of the disclosing Contractual Partner, provide evidence of the destruction of all other materials, including materials prepared by the receiving Contractual Partner itself, which contain or may give rise to inferences of Confidential Information; and
- confirm in writing to the disclosing Contractual Partner that it has returned or destroyed the Confidential Information in the manner described.
- Confidential Information shall be destroyed in the most secure manner in accordance with the current state of the art, insofar as this is possible and reasonable for the receiving Contractual Partner.
- The Contractual Partner obliged to surrender or destroy Confidential Information shall not be entitled to assert a right of retention. Exempt from this are copies that are necessary for the legal documentation obligation. Also excluded from this are archived and encrypted security copies of electronic data traffic, as well as security copies due to internal security and compliance guidelines of the receiving Contractual Partner.
- The disclosing Contractual Partner remains the owner of the rights in the Confidential Information. Nothing in this confidentiality agreement grants the receiving Contractual Partner any licence, title or interest in the Confidential Information or to any intellectual property rights of the other Contractual Partners.
- This confidentiality agreement shall not require either of the Contractual Partners to disclose Confidential Information to the other Contractual Partner. The Contractual Partners reserve the right not to disclose Confidential Information to the other Contractual Partner at any time and for any reason.
- In providing Confidential Information under this confidentiality agreement, neither Contractual Partner makes any representation, express or implied, as to its adequacy, accuracy, sufficiency or correctness or freedom from defects of any kind, including freedom from patent, copyright or trademark infringement, which may result from the use of this Confidential Information.
- Each Contractual Partner acknowledges that monetary damages may not be a sufficient remedy for the unauthorised use or disclosure of Confidential Information and that in the event of a breach or threatened breach of this confidentiality agreement, the damaged Contractual Partner shall be entitled, without waiving any other rights or remedies, to obtain injunctive relief or seek an injunction.
- This confidentiality agreement shall be valid for five (5) years from the date of disclosure of the Confidential Information.
15. Place of performance, place of jurisdiction, and choice of law
- The headquarters of Supplier are the place of performance and the sole place of jurisdiction for all disputes directly or indirectly arising out of the contractual relationship with undertakings, legal entities under public law or special funds under public law.
- The law of the Federal Republic of Germany shall apply to these Terms and Conditions of Delivery and Service and to the entire legal relationship between Supplier and Purchaser with the exclusion of the UN Convention on the International Sale of Goods (CISG).
16. Final provisions
- If a Contractual Partner has to process personal data under the Contract, it will comply with the Federal Data Protection Act (“Bundesdatenschutzgesetz”) and other data protection provisions, including the General Data Protection Regulation (Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016). The Contractual Partner must coordinate required data protection measures with the other Contractual Partner and enable it to verify compliance with the reached agreements.
- If one or more provisions of these Terms and Conditions or the Contract are deemed, in whole or in part, to be invalid, unenforceable or illegal, this shall not affect the validity, enforceability and legality of the remaining provisions of the Contract. In this case, the Parties undertake to replace the wholly or partially invalid, unenforceable or illegal provision with retroactive effect by a new provision, which, in a legally admissible manner, comes as close as possible from an economic and financial point of view to the content of the invalid, unenforceable or illegal provision.
- Purchaser allows Supplier to have the contractual obligations partially or completely carried out by subcontractors.
- All obligations provided in the Contract or in the Terms and Conditions, which naturally continue beyond the termination of the Contract, shall remain in force after the termination of Contract, in particular all financial obligations that one Contractual Partner must fulfill in accordance with the Contract in favor of the other Contractual Partner.
- To the extent that the Supplier does not object to any document, notice or action of the Purchaser, this shall not constitute a waiver of any provision of the Contract.
Supplemental clauses in accordance with Section 1.3 of the General Terms and Conditions of Delivery and Service JUMO GmbH & Co. KG-
Licensing of Software Products for Industrial Automation (power supply, measuring, shifting, steering)
Supplemental clauses in accordance with Section 1.3 of the General Terms and Conditions (PDF 116 kByte) Version 10/2018
Ergänzungsklauseln zu Ziffer 1.3 AGB zum Download (pdf 144 kByte) Ausgabe 10/2018
1. Scope of application
- These supplemental clauses always apply if the Contract, partially or completely, includes the licensing of Software by Supplier to the benefit of Purchaser.
- These supplemental clauses exclusively apply to the licensing of Software by Supplier to the benefit of Purchaser.
- All definitions used in the Terms and Conditions and in any other applicable supplemental clauses are incorporated into these supplemental clauses.
- These supplemental clauses supplement the provisions of the Terms and Conditions. In the event of conflict between a provision in these supplemental clauses and a provision in the Terms and Conditions, the provision in the supplemental clauses shall prevail.
- These supplemental clauses determine the conditions of licensing of (i) Standard- Software, (ii) Engineering-Software, (iii) Runtime-Software and/or (iv) Embedded Software (collectively referred to as "Software" and in the Terms and Conditions stated as "Delivery Item").
- The Software may include Open-Source-Software-Components. Supplier will inform Purchaser thereof.
- The Software may include Third-Party-Software-Components. Supplier will inform Purchaser thereof.
- The Software may include Customer-Software-Components. In this case, irrespective of any conflicting provision in the Terms and Conditions, all claims for defects and liability on the part of Purchaser towards Supplier with respect to such Customer-Software-Components are excluded.
- The Parties agree that Standard-Software means Software which has been created completely or partly by Supplier and which can run on different hardware.
- The Parties agree that Engineering-Software means Software for engineering, e.g. configuration, programming, parametrization, testing or launching, which has been created completely or partly by Supplier.
- The Parties agree that Runtime-Software means Software for operating plants and machines, e.g. operating systems, base systems, system extensions, or drivers, which has been created completely or partly by Supplier.
- The Parties agree that Embedded-Software means Software which has been created completely or partly by Supplier and which can only be used on specific hardware.
- The Parties agree that Open-Source-Software means Software whose source code is public and can be consulted, altered and used by third parties in accordance with the Open-Source-Software-License conditions.
- The Parties agree that Third-Party-Software means Software which has been created by a third-party manufacturer and which Supplier rents, licenses or sublicenses to Purchaser.
- The Parties agree that Demo-Software means a trial version of a Software which is provided to Purchaser by Supplier free of charge, but merely for the purposes of presentation or trial, for a temporary and application restricted use.
3. Intellectual Property Rights and Rights of Use
- Unless the Parties have expressly agreed otherwise in writing, the intellectual property rights to the Software remain entirely with Supplier, without prejudice to Sections 10 and 11.
- Unless the Parties have expressly agreed otherwise in writing and without prejudice to Sections 10 and 11, Supplier grants Purchaser in accordance with the specific terms of contract:
- in case of Standard-Software, a single license, according to Section 4, a multiple license or network license according to Section 5, or an unlimited license according to Section 6;
- in case of Engineering-Software a single license, according to Section 4, a multiple license or network license according to Section 5, or an unlimited license according to Section 6, but in any case in full compliance with Section 8;
- in case of Runtime-Software a single license, according to Section 4, a multiple license or network license according to Section 5, or an unlimited license according to Section 6, but in any case in full compliance with Section 9;
- in case of Embedded-Software a single license, according to Section 4.
4. Single license
- Supplier grants Purchaser the simple, non-exclusive right to use the Software with the devices potentially mentioned in the Contract. Any Software provided to Purchaser may only be used on one device at a time.
- If there are several workstations on one device on which the Software can be used independently, the single license only covers one workstation.
- Purchaser is entitled to create reproductions of the Software, which may only be used for purposes of security (backup copies). Purchaser is not entitled to make copies of the provided documentation. Besides, Purchaser is only entitled to reproduce the Software under a multiple license or an unlimited license.
- Purchaser is not entitled to alter, to reverse engineer, or to translate the Software, to extract parts of it, to connect it to other programs, or to derive Customer-Software from it.
- Purchaser is not entitled to remove alphanumeric or other codes from the data carriers and must transfer them unchanged to the backup copies.
- Purchaser undertakes (i) to keep the Software, including the documentation, carefully in order to prevent any misuse, and (ii) to keep the Software secret from third parties and to oblige employees who have access to the Software to comply with the existing confidentiality obligations and usage restrictions.
- Supplier grants Purchaser the revocable right to retransfer the rights of use, transferred to Purchaser, to third parties. If Purchaser has acquired the Software together with a device, Purchaser is only entitled to transfer the Software together with such device for use by third parties. Purchaser shall conclude a written agreement with the third party according to which, the third party respects the obligations arising from this Contract. If Purchaser licenses the Software to a third party, Purchaser is responsible for the compliance with any potential export requirements and shall exempt Supplier from the obligations in this regard.
5. Multiple license or network license
- In order to use the Software on several devices or workstations at the same time, Purchaser needs a multiple license. The prerequisite for obtaining a multiple license is the granting of a single license in addition to a written confirmation of Supplier regarding the number of authorized reproductions that Purchaser is entitled to create of the Software licensed with the single license.
- Under a multiple license, Purchaser is granted the simple, non-exclusive and non-transferrable right to create the number of reproductions of the Software stated in the written confirmation, as well as to use the created reproductions in accordance with the provisions concerning single licenses and to license them to third parties for use.
- The use of the Software on several devices is equivalent to the use of the Software in a single network on several workstations where no reproductions of the Software are created (network license). The rules concerning multiple licenses apply accordingly to network licenses. The number of authorized workstations corresponds to the number of authorized reproductions.
- Purchaser shall respect the instructions for reproduction submitted to him by Supplier together with the multiple license. Purchaser shall keep records of the location of all reproductions and submit them to Supplier upon request. Purchaser shall transfer any alphanumeric or other codes from the data carriers to all reproductions in an unchanged manner.
6. Unlimited license
- In order to use the Software on unlimited devices or on unlimited workstations at the same time, Purchaser needs an unlimited license. The prerequisite for obtaining an unlimited license is the granting of a single license in addition to a written confirmation of Supplier granting an unlimited license.
- Under an unlimited license, Purchaser is entitled to the non-exclusive and non-transferrable right to create an unlimited number of reproductions of the Software without time limitation, as well as the right to use the
reproductions created in accordance with the rules for single licenses
and to license them to third parties for use.
- Purchaser shall respect the instructions for reproduction submitted to him by Supplier together with the unlimited license. Purchaser shall keep records of the location of all reproductions and submit them to Supplier upon request. Purchaser shall transfer any alphanumeric or other codes from the data carriers to all reproductions in an unchanged manner.
- Demo-Software is granted for a temporary and application restricted use in accordance with the Demo-Software-License conditions. Outside the scope of this temporary and application restricted use, the use of the Demo-Software is not authorized.
- To the extent permitted by law, any warranty is excluded in relation to Demo-Software, expect in cases of fraudulent concealment of a defect, injury to life, body and health and in case of a deliberate or grossly negligent breach of duty by Supplier.
- Purchaser is entitled to reproduce, use or license to third parties without any license fee his own programs or data (hereinafter: "Customer Applications"), which he has created with the Engineering-Software,.
- If during the intended use of the Engineering-Software as agreed between the Parties, parts of it are incorporated into the Customer Applications, the right to reproduce without license fee also applies to these parts of the Engineering-Software. Purchaser is not entitled to extract parts of the Engineering-Software otherwise.
- Notwithstanding any provision to the contrary in the Terms and Conditions, any and all liability or warranty claims in relation to Customer Applications from Purchaser towards Supplier are expressly excluded.
- If Purchaser incorporates Customer Applications – in particular by means of Engineering-Software – into Runtime-Software, Purchaser shall acquire a license in accordance with the agreed intended use and the valid catalog of Supplier, prior to each installation or other reproduction of Purchaser's Customer Applications, which contain Runtime-Software or parts of it, or which Purchaser connects to a copy of its Customer Applications.
- If Purchaser licenses the aforementioned Customer Applications to third parties for use, the following applies regarding the associated Runtime- Software: Purchaser shall completely abandon use of the Software, remove all installed copies from its devices and entities and delete all copies located on other data carriers or, at the request of Supplier, hand them over to Supplier, unless Purchaser is legally bound for a longer time period of storage. Any use of such stored copies is prohibited.
- This Section does not grant any right to extract parts from Runtime-Software.
- Notwithstanding any provision to the contrary in the Terms and Conditions, any and all liability or warranty claims in relation to Customer Applications from Purchaser towards Supplier are expressly excluded.
- Notwithstanding any provision to the contrary in the Terms and Conditions, this Section 10 shall apply to all cases of licensing of Open-Source-Software to Purchaser or if the Software contains Open-Source-Software-Components. In the latter case, Section 10 shall only apply to the part of the Open-Source-Software-Components.
- With respect to Open-Source-Software and any Software derived from Open-Source-Software, the conditions of license governing Open-Source-Software always prevail. Supplier shall inform Purchaser about the use of Open-Source-Software and give Purchaser access to the corresponding license conditions.
- Purchaser shall indemnify Supplier from any claims and costs/expenses incurred by Supplier due to the use of the Open-Source-Software unless the license conditions prohibit this.
- Purchaser is only entitled to use, distribute, reproduce and alter the Open-Source-Software in accordance with the Open-Source-Software- License conditions. If the license conditions for the Open-Source-Software do not provide otherwise, a direct contract and license relation is concluded between (i) Purchaser and/or the end customer on the one hand, and (ii) the original licensor on the other hand.
- Purchaser is strictly prohibited to incorporate Software, which has been created by Supplier, or Third-Party-Software, which is not Open-Source-Software, into Open-Source-Software or into Software derived from Open-Source-Software, without the express prior consent of Supplier.
- Notwithstanding any deviating provision in the Terms and Conditions, but without prejudice to any other terms in the Open-Source-Software-License conditions, any claims for defects or liability on the part of Purchaser towards Supplier with regard to Open-Office-Software or Software derived from Open-Source-Software are expressly excluded.
- Notwithstanding any deviating provision in the Terms and Conditions, this Section 11 shall apply to all cases of licensing of Third-Party-Software.
- With respect to Third-Party-Software and any Software derived from Third-Party-Software, the conditions of license governing Third-Party-Software always prevail.
- Supplier shall point out the existence and the license conditions of Third-Party-Software in the documentation, and make the Third-Party-Software-License conditions accessible.
- Supplier assigns to Purchaser all transferable warranties, guarantees, indemnities and liability claims granted to Supplier by the Third-Party-Software manufacturer.
- Notwithstanding any deviating provision in the Terms and Conditions, and without prejudice to Section 11.4, any claims for defects or liability on the part of Purchaser towards Supplier with regard to Third-Party- Software or Software derived from Third-Party-Software are expressly excluded.
12. Remuneration, duration, termination
- The remuneration, the duration and the type of license are agreed in the Contract.
- Unless otherwise agreed between the Parties, Purchaser shall pay the remuneration in advance to Supplier.
- Unless otherwise agreed between the Parties, the single license referred to in Section 4, the multiple license referred to in Section 5 and the unlimited license referred to in Section 6 shall be granted for an indefinite period.
13. Software support and maintenance
- Any support relating to the Software, either preventive or corrective maintenance, or the right to patches, updates or upgrades, shall be separately determined in a Software Support and Maintenance Contract.
- Insofar as the Parties have not concluded a Software Support and Maintenance Contract, the Supplier shall be remunerated by Purchaser for his services (consulting, software development, etc.) according to the time spent.
14. Liability for defects
- The Software licensed to Purchaser is well known to Purchaser.
- The liability for defects shall be governed by Sections 9 and 10 of the Terms and Conditions.
15 Software audit
- Supplier is entitled to verify ("Audit") the use of the Software by Purchaser, provided that Supplier notifies the Audit thirty (30) days in advance in writing.
- Such Audits take place during the normal business hours of Purchaser, not more than once a year and with a maximum duration of two working days. Purchaser is entitled to refuse the auditors for reasonable motives. All trade and business secrets of Purchaser shall be kept secret. All personal data shall be stored and secured in accordance with applicable law. The results of the Audit are treated confidentially and Supplier shall minimize the interference of the Audit with Purchaser's business operations.
- Purchaser undertakes to assist the Supplier during the Audit, to support Supplier in a reasonable manner and to provide Supplier with sufficient access to information.
- In addition, Purchaser undertakes to pay retroactively any unpaid remuneration within thirty (30) days of written request.
- If no payment is made, Supplier is entitled to extraordinarily terminate the licenses of Purchaser as well as the corresponding Contract to the detriment of Purchaser.
- Purchaser agrees that Supplier is not liable for any costs incurred by Purchaser for assistance during the Audit.
Supplemental Clauses in accordance with Section 1.4 of the General Terms and Conditions of Delivery and Service: JUMO GmbH & Co. KG
Development of Software Products for Industrial Automation (power supply, measuring, shifting, steering)
Clauses in accordance with Section 1.4 General Terms and Conditions of
Delivery and Service (pdf 136 kByte) Version 10/2018
Ergänzungsklauseln für die Erstellung von Softwareprodukten zu Artikel 1.4 AGB (PDF 131 kByte) Ausgabe 10/2018
1. Scope of application
- These supplemental clauses always apply if the Contract, partially or completely, includes the planning and development of Software by Supplier to the benefit of Purchaser.
- These supplemental clauses exclusively apply to the planning, development and delivery of Software by Supplier to the benefit of Purchaser.
- All definitions used in the Terms and Conditions and in any other applicable supplemental clauses are incorporated into these supplemental clauses.
- These supplemental clauses supplement the provisions of the Terms and Conditions. In the event of conflict between a provision in these supplemental clauses and a provision in the Terms and Conditions, the provision in the supplemental clause shall prevail.
- Purchaser may instruct Supplier with the planning, development and delivery of (i) Standard-Software, (ii) Engineering-Software, (iii) Runtime-Software and/or (iv) Embedded Software (collectively referred to as "Software" and in the Terms and Conditions specified as "Delivery Item").
- The Software may include Open-Source-Software-Components. Supplier shall inform Purchaser thereof in the planning phase or, if this becomes apparent later, in the development phase.
- The Software may include Third-Party-Software-Components. Supplier shall inform Purchaser thereof in the planning phase or, if this becomes apparent later, in the development phase.
- The Software may include Customer-Software-Components. In this case, regardless of any conflicting provision in the Terms and Conditions, all claims for defects and liability on the part of Purchaser towards Supplier with respect to such Customer-Software-Components are expressly excluded.
- In the planning phase, Purchaser shall make use of the services of Supplier in order to make the necessary preparations to perform the data processing and the Software development. The aim of the planning service provided by Supplier is to agree on all essential requirements, based on the facts and requirements determined during the planning phase in close cooperation with Purchaser, in a formal specification sheet or in any other formal or informal form (referred to as "Scope of Work"). The Scope of Work forms the basis for the subsequent Software development.
- In the planning phase, Purchaser shall provide Supplier with the necessary information on the actual state in the intended fields of application, on business policy and procedural goals and priorities, and on all other specifications within Purchaser's sphere for the preparation of the Scope of Work. For this purpose, there will be direct and close coordination throughout the planning phase between the services provided by Supplier and the wishes, proposals and instructions of Purchaser. Purchaser is therefore fully involved in the planning phase and has the opportunity to impact the Scope of Work in the way intended by him.
- Supplier notices during the planning phase that the intended configuration has to be modified due to the facts, requirements and software features that have been worked out in the meantime, he shall inform Purchaser thereof within a reasonable time and make alternative proposals. Purchaser shall immediately decide on any modifications resulting from such instructions affecting the preparation and content of the Scope of Work.
- Supplier shall develop the Software substantially on the basis of the Scope of Work.
- During the development phase, Supplier shall carry out further programming, in particular coding, testing and integration. At regular and reasonable intervals, Supplier shall inform Purchaser about the status of the programming work and the compliance with the requirements to the Software. Delays and change requests shall be communicated to Purchaser within a reasonable period of time.
- During the development phase, Purchaser shall again provide Supplier with all information required within a reasonable period of time in order to enable Supplier to fulfil its obligations in accordance with the Contract
- Every Software developed shall be subject to acceptance.
- Supplier shall notify Purchaser in writing of the completion and availability for acceptance of his work.
- The terms, procedure and duration of acceptance may be determined in the Scope of Work. Furthermore, partial acceptance of quantifiable partial services can be agreed upon in the Scope of Work.
- Acceptances and partial acceptances shall always be recorded in writing. After successful completion of the acceptance, Purchaser shall confirm the acceptance by countersigning the acceptance protocol. Software development shall be deemed completed fourteen (14) days after written notification of availability for acceptance by Supplier, if the acceptance procedure is delayed for reasons for which Supplier is not responsible.
- During the time period used by Supplier for the elimination of errors, the acceptance procedure is considered suspended. Supplier shall correct errors within a reasonable time and free of charge (referred to as "Correction") and notify Purchaser of the completion of the Correction. Subsequently, the acceptance procedure is carried out again. Insignificant non-conformities are no reason for refusal of acceptance.
- If the Correction fails in spite of a letter of notice sent by Purchaser to Supplier where he grants a reasonable and adequate period of time and warns Supplier that failure of Correction might lead to termination of the services, Purchaser is entitled to withdraw from the development phase.
- In the planning phase and in the development phase, the Parties can agree on partial acceptance of quantifiable partial services which have to be accepted individually according to Section 5, in order to ensure the good continuation of the development phase. In this case, Sections 5.5 and 5.6 only apply to partial services not yet accepted.
6. Management of the project
- Unless otherwise expressly agreed in writing between the Parties, the Parties designate project managers that are authorized during the planning phase and the development phase to issue binding declarations in all project matters. The Parties shall also agree on substitution rules for these project managers. The project managers monitor and coordinate the work on an ongoing basis and inform each other about its progress in regular meetings. The Parties make the aforementioned arrangements in writing.
- The Parties shall provide sufficient and qualified personnel for mutual cooperation. The Parties are aware of the fact that a fruitful cooperation in the planning phase and the development phase requires an intensive involvement of Purchaser.
- The remuneration to which Supplier is entitled shall be determined in the price section of the Contract. All prices and / or rates shall apply exclusive VAT at the statutory rate valid on the day the service is provided.
- Unless the Parties have expressly agreed otherwise in writing, all services provided by Supplier shall be remunerated on a time and material basis in accordance with the "JUMO service charge rates" valid at the time the service is provided. These shall be annexed to the Contract.
- In the event of accidental loss of services or parts thereof before acceptance, Supplier shall be entitled to a remuneration amounting to the services previously provided.
- If during the development phase Purchaser considers that technical amendments are useful or necessary, Purchaser shall inform Supplier thereof immediately. In this case, the Parties shall discuss the consequences of these amendments with respect to the content and the performance of the Contract. If there is no agreement between the Parties on the amendment and its consequences, the original agreement remains valid.
- If the terms, content or scope of the Scope of Work are amended by mutual agreement after the conclusion of the Contract, each Party can claim the mutual adjustment of the remuneration and the timetable. The criteria used at the time of the conclusion of the Contract to evaluate the performance of Supplier shall apply in this case. Purchaser is never entitled to unilaterally modify the Contract.
9. Liability for defects
- Supplier warrants that the Software does not contain any material defects that invalidate or reduce its suitability for the contractually agreed use.
- Purchaser is aware that according to the state of art it is not possible to develop Software that is completely free of errors.
- Without prejudice to Section 9.12, Supplier shall repair any reproducible errors of the Software for which Supplier is responsible in accordance with Sections 9.5 and 9.6.
- Purchaser shall describe any material defects in as much details as possible
- The Correction shall be carried out at the discretion of Supplier (i) by troubleshooting, (ii) by licensing a new Software version or (iii) by identifying ways of avoiding the impact of the error. A new software version has to implemented by Purchaser, unless this leads to inadequate adjustment and conversion problems for him.
- The Correction shall take place at the discretion of Supplier at Purchaser's premises or at Supplier's premises. If Supplier chooses to repair the defect at Purchaser's premises, Purchaser must provide a suitable environment and suitable operating personnel free of charge, insofar as this is necessary, in order to carry out the Correction within a reasonable period of time. Purchaser must provide Supplier with the documents and information available to him for Correction.
- Purchaser must notify material defects to Supplier immediately in detail and in writing.
- For Software that is provided for testing, demo or validation purposes, Supplier is liable only if he has fraudulently concealed the defect, in case of injury to life, body or health and in case of intentional or grossly negligent breach of duty by Supplier.
- The liability for material defects does not extend to:
- defects caused by deviations from the agreed use of the Software as specified in the documentation;
- insignificant deviations from the agreed functionalities for the agreed use;
- insignificant impairment of usability,
- damages that arise after acceptance as a result of faulty or negligent treatment, excessive use or resulting from special external influences, which are not foreseen by the Contract;
- improper alterations or extensions of the Software by Purchaser or third parties and the consequences thereof.
- In the case of Embedded-Software, claims for defects only exist if they can be reproduced on the reference hardware or target hardware specified in the Contract. If an error indicated by Purchaser is not reproducible, due to incorrect operation by Purchaser or excluded from the liability for any other reason, Supplier is entitled to charge Purchaser an appropriate fee for the inspection and reimbursement of the resulting transport, travel and accommodation expenses.
- If data carriers provided by Supplier are defective, Purchaser can only request Supplier to replace the defective data carriers with error-free verisons.
- Claims for Correction become time-barred twelve (12) months from the legal beginning of the statute of limitation. The same applies to withdrawal and reduction. This statute of limitation does not apply if the applicable law prescribes longer periods in case of intent or fraudulent concealment of the defect. The legal provisions regarding the suspension, the interruption or the expiration of the statute of limitation remain unaffected.
- Any claims of Purchaser for reimbursement of expenses required for Correction, in particular transport, travel, labor and material expenses, are excluded insofar as such expenses are increased where the Delivery Item is subsequently relocated to a location other than Purchaser's place of business unless the relocation is inherent to its agreed use.
- Without prejudice to Section 10, other warranty claims by Purchaser and his subcontractors against Supplier than those agreed under this Section 9 are expressly excluded.
10. Intellectual property rights
- Without prejudice to Section 11, insofar as intellectual property rights arise during the planning phase or the development phase, they remain fully with Supplier.
- Unless expressly agreed otherwise in writing between the Parties, Supplier is obliged to provide his services free of intellectual property rights and copyrights of third parties (called "Property Rights") only in the country of the place of delivery. If a third party raises justified claims against Purchaser for infringement of Property Rights by Software created by Supplier and used in accordance with the Contract, Supplier shall be liable towards Purchaser within the period specified in Section 9.12 as follows:
- Supplier will, at his discretion and expenses:
• either obtain a license for the Software in question,
• change it so that the Property Right are not violated any more, or
• replace the Software in question.
If this is not possible for Supplier on reasonable terms, Purchaser is entitled to the statutory right of withdrawal or reduction;
- Supplier's obligation to pay damages is governed by Section 9 of the Terms and Conditions;
- The above-mentioned obligations of Supplier only exist if Purchaser immediately informs Supplier about the claims enforced by a third party in writing, does not acknowledges an infringement and reserves all defensive measures and settlement negotiations for Supplier. If Purchaser discontinues the use of the Software for reasons of mitigation or other important reasons, Purchaser is obliged to inform the third party that the cessation of use does not constitute an acknowledgment of a infringement of Property Rights.
- Claims of Purchaser are excluded if he is responsible for the infringement of Property Rights.
- Claims of Purchaser are furthermore excluded if the infringement of Property Rights is caused due to specific instructions of Purchaser, by an unforeseeable use of the Software or by the Software being altered by
Purchaser or used together with products or Customer-Software not provided by Supplier.
11. Intellectual property rights of third parties
- Insofar as the Software contains Third-Party-Software-Components, the intellectual property rights relating to such Third-Party-Software-Components remain exclusively with the manufacturer of the Third-Party-Software.
- Insofar as the Software contains Open-Source-Software-Components, the intellectual property rights relating to such Open-Source-Software-Components will be handled in accordance with the license terms of such Open-Source-Software, which Supplier transfers to Purchaser.
- All terms and conditions of use and licensing of the Software are governed by the supplemental clauses "Licensing of Software Products for Industrial Automation (power supply, measuring, shifting, steering)", available under http://EG13-en.jumo.info.