General Terms and Conditions of Delivery and Service
JUMO GmbH & Co. KG
36039 Fulda, Germany
Phone: +49 661 6003-0
Fax: +49 661 6003-500
Private Limited Company, Registered Office: 36039 Fulda HRA 302
Shareholder: M. K. JUCHHEIM GmbH, Registered Office: 36039 Fulda, Judicial Register Fulda HRB 17
Managing Directors: Dipl.-Ing. Bernhard Juchheim, Dipl.-Kfm. Michael Juchheim
1. Scope of application
- The following General Terms and Conditions of Delivery and Service (hereinafter: "Terms and Conditions") apply to all sales and deliveries of products, services and manufacturing of any products (hereinafter: "Delivery Item") from JUMO GmbH & Co. KG (hereinafter: "Supplier") to a 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 are in 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 the Delivery Item without reservation 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 have to 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 Angebote sind freibleibend.
- 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 Contract provides for continuing obligations, it shall be concluded for a period of twelve (12) months, which shall in each case be tacitly extended for a period of twelve (12) months. Each Party is entitled to terminate a contract providing for continuing obligations in writing at any time without compensation by giving a notice period of one (1) month. In the event of termination, Purchaser must purchase from Supplier all manufactured or purchased customer-specific Delivery Items for the agreed price.
3. Copyright and reservation of ownership to drawings, etc.
- Supplier reserves the ownership of drawings, sketches, cost estimates and other documents attached to Supplier's offers and order confirmations without restriction. Purchaser may only use them for the agreed purpose and shall not reproduce them or make them available to third parties without the consent of Supplier. Upon request, the documents themselves and all reproductions thereof shall be returned to Supplier.
- Insofar as such documents are protected by copyright, Supplier also reserves his copyright to the documents.
4. Delivery time and default
- The binding nature of dates and terms of service and delivery (hereinafter: "Terms of Delivery") requires Purchaser to provide Supplier with documents and other required information in a timely manner, and not to delay his cooperation or other material contractual duties, in particular, payment obligations.
- In the case of labor disputes and in the event of unforeseen circumstances which are beyond Supplier's control (for instance war, acts of terrorism, riots or similar events), or circumstances for which another manufacturer is responsible, the Terms of Delivery shall be reasonably extended. This shall also apply if the circumstances arise in case of an already existing delay.
- Partial deliveries respectively performances are allowed insofar as they can be reasonably accepted by Purchaser.
- If Supplier defaults and Purchaser incurs damages as a result, Purchaser is entitled to demand liquidated damages for default. This shall amount to 0.5 % for each full week of delay, but in total not more than 3 % of the net value of the respective part of the delivery that, as a result of the delay, cannot be used on time or according to the Contract. Further claims shall be determined exclusively according to Section 9 of these Terms and Conditions.
5. Transfer of risk
- The risk is transferred to Purchaser when the Delivery Item is handed over to the freight forwarder, carrier, or collector, or during transport with the means of transport of Supplier, but at the latest upon leaving the warehouse of Supplier respectively the manufacturer. Insofar as an acceptance procedure 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 at least one defect, the Delivery Item shall be deemed to have been accepted.
- If Purchaser has placed an order on-call, he must call up the Delivery Item – when ordering several Delivery Items, all of them – 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 sales 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 acceptance of the order.
- Prices are valid for four (4) months from receipt of the order confirmation by Supplier. If a cost element changes within the total cost (e.g. personnel costs or hourly rates or verifiable third-party material costs), Supplier reserves the right to adjust the price proportionally, but only in relation to the corresponding cost element and insofar as it is reasonable for Purchaser. The resulting new price shall apply from the first day of the calendar month following receipt of the written notification.
- 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 retention of payments or 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. A right of retention can only be exercised if the counterclaim is based on the same delivery contract.
- In the case of non-compliance with the terms of payment or if Supplier becomes aware, after concluding the Contract, that payment is at risk due to Purchaser's inability to pay, Supplier reserves the right to carry out outstanding deliveries only against payment in advance or provision of security deposits.
- 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 full payment of all claims under the Contract respectively Contracts with Purchaser. 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 property, serving as security for Supplier, exceeds the outstanding claims against Purchaser by more than ten percent (10 %), 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 disposal by third parties, Purchaser shall immediately inform Supplier.
- In the event of conduct by Purchaser that is in breach of Contract, in particular in the event of default of payment, Supplier reserves the right to take back the goods and to rescind the Contract after the unsuccessful expiry of a reasonable deadline set for Purchaser and Purchaser is obliged to surrender the goods.
- The enforcement of the retention of title, as well as the seizure of the Delivery Item by Supplier, shall be deemed as withdrawal from the Contract.
- Supplier is entitled to insure 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 provided that 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. Purchaser already transfers to Supplier all future claims in the amount of the invoice which accrue to him as a result of the resale to a third party without the need for further explanation. Supplier accepts the transfer. After transfer, Purchaser is authorized to collect the claim. 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 working 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 joint ownership of the new item in proportion to the value of the Delivery Item delivered by him. This shall also apply if the Delivery Item is connected or mixed with other items belonging to Purchaser. If the connection or mixing takes place in such a manner that Purchaser's item has to 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 and other liabilities of Supplier
- Purchaser is entitled to withdraw from the Contract if the entire contractual performance becomes definitely impossible for Supplier. This shall also apply in case of Supplier's inability to perform. 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 such as defined by Section 4 of these Terms and Conditions and 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 after the expiry of the agreed acceptance period or due to Purchaser's fault, the latter remains obliged to fulfil its obligations.
- Purchaser is also entitled to withdraw if Supplier has let expire unsuccessfully, due to his fault, a reasonable grace period granted to Supplier to repair or improve a defect for which Supplier is responsible as defined in these Terms and Conditions. Purchaser shall also have the right of withdrawal in other cases where Supplier fails to repair a defect or to make a replacement delivery.
- Further claims for compensation for damages of any kind, including damages not caused to the Delivery Item, shall only exist in the cases of Sections 9 and 10 of these Terms and Conditions. In other respects, Supplier's liability for compensation is excluded.
- Claims for compensation for damage of any kind – irrespective of the material and legal grounds – which are not caused to the Delivery Item, 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;
- in the event of injury to life, body or health caused by Supplier or one of Supplier's statutory representatives or subcontractors;
- in the event of culpable breach of essential contractual obligations, insofar as the achievement of the contractual purpose is at risk;
- in cases where liability is assumed under the Product Liability Act ("Produkthaftungsgesetz") for defects on the Delivery Item, for personal injury or for material damage on privately used items;
- in the event of defects which were fraudulently concealed or the absence of which had been guaranteed by Supplier.
- The liability of Supplier is however limited to the foreseeable damage.
- Further claims for compensation are excluded.
10. Liability for defects
- All demonstrably defective Delivery Items shall, at the choice of Supplier and at his discretion, be repaired, replaced or re-delivered free of charge. Discovery of such defects must be reported to Supplier immediately in writing and in a detailed manner.
- 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 in order to be able to carry out all improvements and replacements which, at the discretion of Supplier, appear necessary. Purchaser is only entitled to correct the defect himself or through third parties and to demand reasonable compensation from Supplier for its costs in urgent cases of danger to operational safety, of which Supplier must be informed immediately, or if Supplier is in default with the correction of the defect.
- Supplier shall bear the direct costs arising from the correction of the replacement to the extent required by law, provided that the complaint is considered to be justified.
- If the supplementary performance fails, 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.
- Further claims to compensation for damages of any kind, including such damages not caused to the Delivery Item, only exist in accordance with Section 9 of these Terms and Conditions.
11. Statute of limitation
- Claims for defects – on any legal ground whatsoever – shall become time-barred twelve (12) months from beginning of the legal prescription. This shall not apply if it concerns defects of a building or items for a building, 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. In order 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 and 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 as Purchaser does not report alterations he made, 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 as a result 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 the performance does not conflict with national or international regulations, in particular export control conditions, embargos, or other restrictions. Purchaser undertakes to provide all information and documents required for the export or shipment. Delays due to export inspections or approval procedures shall suspend the Terms of Delivery. If the required approvals are not issued or if the contractual performance cannot be approved, the Contract shall be deemed not to have been concluded with regard to the affected parts.
- 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.
- The Parties are obliged to keep all confidential information, business transactions and documents of the other Party, of which he or his employees become aware of, secret from third parties and to make them inaccessible to third parties in any way.
- The confidentiality obligation shall not apply if the information is publicly known, the information was already known by the Party upon receipt, the information was made available to the Party by third parties without obligation to maintain confidentiality, the information must be made available to third parties for the performance of the contractual obligation (e.g. subcontractors) and those third parties have been committed to secrecy.
15. Place of performance, place of jurisdiction, and concluding provisions
- 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 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 Party 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 Party has to coordinate required data protection measures with the other Party, 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 Party must fulfill in accordance with the Contract in favor of the other Party.
- If Supplier has made no objection to a document, communication or act of Purchaser, this shall never constitute a waiver of the application of the provision.
- No Party can be held liable if it breaches its contractual obligations or fails to perform a delivery or service in time for reasons of force majeure beyond its control. This includes, in particular, natural disasters, acts and omissions of Purchaser, interruptions of business activity, technologyrelated disasters, epidemics, material shortages, strikes, blockades, traffic congestion, public interventions, delivery delays of suppliers, as well as the impossibility to acquire manpower and raw materials from common networks. If the contractual performance for one of these reasons is delayed by more than one (1) month, each Party has the right - without any right to compensation from the other Party – to terminate the contract in writing for the quantities affected by the interruption of the contractual performance.
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)
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)
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.