General Terms and Conditions of Fluid.iO® Sensor + Control GmbH & Co. KG for Contracts for the Provision of Development Services
The following General Terms and Conditions apply to the contracts with our customers, which mainly involve the provision of development services. They also apply to the delivery of samples, which are delivered within the framework of the fulfilment of the contracts for the development services.
The General Terms and Conditions of Delivery for Products and Services of the Electrical Industry ("Green Terms and Conditions of Delivery"-GL) shall apply to contracts for the delivery of products in the sense of movable objects to our customers. Our customers' own General Terms and Conditions of Business shall only become part of the contract if they are accepted in writing.
2. Formation of the contract
For the purpose of concluding a contract Fluid.iO® Sensor + Control GmbH & Co. KG submits a written offer. The content of this offer is a specification previously drawn up together with the customer, in which the content of the offer is specified. The contract shall be concluded by the customer's acceptance of the offer. Otherwise, contracts shall only be concluded upon receipt of a written order confirmation.
3. Time of performance, delay in performance
3.1. The performance time agreed in the contract shall be extended, without default occurring, after immediate notification by Fluid.iO® Sensor + Control GmbH & Co. KG in the following circumstances:
- Failure on the part of the Purchaser to provide the necessary cooperation, in particular
- Delayed receipt of documents to be supplied by the customer or other preparatory work of any kind
- Non-compliance with the agreed terms of payment
- Procurement, manufacturing or delivery disruptions at contractors of Fluid.iO® Sensor + Control GmbH & Co. KG which affect the contract.
3.2. The purchaser can withdraw from the contract if he gives Fluid.iO® Sensor + Control GmbH & Co. KG, if the preconditions for default exist, after expiry of a reasonable period of grace previously set in writing and this period of grace expires unused. The withdrawal must be made in writing.
4. Termination of the contract by the orderer (cancellation)
In the event of cancellation of the contract by the purchaser, Fluid.iO® Sensor + Control GmbH & Co. KG is entitled to payment of the full agreed remuneration less any expenses saved. Fluid.iO® Sensor + Control GmbH & Co. KG is entitled to charge 30 % of the order value as a lump-sum payment. The purchaser is at liberty to prove a higher saving of expenses.
The Purchaser shall accept the development service after a functional sample and a manual have been delivered to him. The manual can be delivered in electronic form. Minor defects shall not entitle the customer to refuse acceptance. The risk shall pass to the customer upon dispatch of the sample and upon sending of the manual. The delivery of the samples shall be carriage forward ex warehouse or ex loading point. Delivery is at the expense of the purchaser. Fluid.iO® Sensor + Control GmbH & Co. KG will insure the sample against material damage/loss at the expense of the purchaser. The purchaser is at liberty to take out property insurance himself or to dispense with it.
6. Retention of title and copyright
6.1. The ownership of the delivered sample remains with Fluid.iO® Sensor + Control GmbH & Co. KG.
6.2. The copyright to the development performance and result remains unrestrictedly with Fluid.iO® Sensor + Control GmbH & Co. KG. A simple right of use is transferred to the purchaser. This right of use includes the possibility of reproducing the product in accordance with the supplied sample.
6.3. In the event of copyright infringement, the provisions of the Copyright Act shall apply.
7.1. The invoices of Fluid.iO® Sensor + Control GmbH & Co. KG are payable within 14 days of the invoice date, unless otherwise agreed. Fluid.iO® Sensor + Control GmbH & Co. KG can make the delivery of the sample and the manual dependent on the prior payment of the invoice. This also applies to invoices from previous contractual relationships between Fluid.iO® Sensor + Control GmbH & Co. KG and the purchaser even if no permanent business relationship exists.
7.2. The purchaser may only offset such claims that are undisputed or have been legally established. The same applies to the assertion of a right of retention.
8.1. Fluid.iO® Sensor + Control GmbH & Co. KG does not assume any warranty for defects which arise from the intended use of third-party development software and which could not have been detected during the testing of the sample to the extent customary in the industry when exercising due diligence. The same applies to defects caused by the intended use of software, insofar as this was expressly designated in the contract. Fluid.iO® Sensor + Control GmbH & Co. KG assigns all claims for warranty/damages to the manufacturers/suppliers of the software to the purchaser in the cases of sentences 1 and 2. Fluid.iO® Sensor + Control GmbH & Co. KG shall, however, provide a warranty if the purchaser can prove that a claim has been made against the software supplier and that it has been fruitless, insofar as the purchaser is not responsible for the fruitlessness of the claim.
8.2. Warranty claims shall not apply if the purchaser or third parties have interfered with or modified the delivered product.
9. Limitation of liability
9.1. The claim for compensation of damages, irrespective of the legal grounds, in particular also due to warranty, is excluded.
9.2. The exclusion according to clause 9.1. does not affect the liability of Fluid.iO® Sensor + Control GmbH & Co. KG for damages resulting from injury to life, body or health as well as damages resulting from an intentional or grossly negligent breach of duty by Fluid.iO® Sensor + Control GmbH & Co. KG or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of Fluid.iO® Sensor + Control GmbH & Co. KG shall remain unaffected.
9.3. Furthermore, claims for damages based on the violation of essential contractual obligations remain unaffected. In this case, the claim for damages is limited to the damages that could reasonably be expected to occur at the time of the conclusion of the contract according to the circumstances known to Fluid.iO® Sensor + Control GmbH & Co. KG could reasonably be expected at the time of the conclusion of the contract.
A claim for damages due to the loss of data only exists if the customer backs up this data in an application-appropriate manner and thus ensures that this data can be restored with reasonable effort.
10.1. Should individual provisions of this contract be invalid, this shall not affect the validity of the rest of the contract. The contracting parties are obliged to agree on a valid provision in place of the invalid provision which comes as close as possible to the contractual purpose intended by the invalid provision. Should this not be possible, the statutory provisions shall apply.
10.2. The place of jurisdiction for all disputes arising in connection with the contractual relationship (also from withdrawal) is Zella-Mehlis. Unless otherwise expressly agreed in writing, German law shall apply between the contracting parties.
Zella-Mehlis, d. 01.01.2012