Terms & Conditions

General Terms and Conditions (GTC)

 

for the services and goods delivered by Round Solutions GmbH & Co. KG

valid for contracts with busyness entities and entrepreneurs

 

January 2017

 

Article I: General Provisions

1)            Legal relations between Supplier (Round Solutions GmbH & Co. KG) and Purchaser in connection with supplies and/or services of the Supplier (hereinafter referred to as "Supplies") shall be solely governed by the present GL. The Purchaser's general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.

2)            The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as "Documents"). The Documents shall not be made accessible to third parties without the Supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser's Documents; these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Supplies.

3)            The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Without express agreement the Purchaser may make one back-up copy of standard software.

4)            If the Supplier develops customized software for the Purchaser, the Purchaser acquires the exclusive intellectual property rights in this software upon full acceptance of the software as contractually agreed/free of defects and full payment of the remuneration if nothing different was agreed. However, the Supplier may continue to use parts of the software and of the concept as far as such parts have not been developed specifically for the Purchaser and result from the general expertise of the Supplier. This paragraph applies accordingly to customized hardware designed and developed for the Purchaser.

5)            Partial deliveries are allowed, unless they are unreasonable to accept for the Purchaser.

6)            The term “claim for damages" used in the present GTC also includes claims for indemnification for useless expenditure.

 

Article II: Prices, Terms of Payment

1)            Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.

2)            If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g., for traveling and transport as well as allowances.

3)            Payments shall be made free Supplier's paying office.

4)            The Purchaser may set off only those claims which are undisputed or non- appealable. The Purchaser has a right of retention only if the claim and the counterclaim result from the same contractual relationship.

 

Article III: Retention of ownership

1)            The items pertaining to the Supplies ("Retained Goods") shall remain the Supplier's property until each and every claim the Supplier has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier's security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.

2)            Should Purchaser resell Retained Goods, it assigns to the Supplier, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, Purchaser shall assign to the Supplier such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by Supplier.

3)            Purchaser may process, amalgamate or combine Retained Goods with other items. Processing is made for Supplier. Purchaser shall store the new item thus created for Supplier, exercising the due care of a diligent business person. The new items are considered as Retained Goods.

4)            Already today, Supplier and Purchaser agree that if Retained Goods are combined or amalgamated with other items that are not the property of Supplier, Supplier shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.

5)            The provisions on the assignment of claims according to No. 3 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by Supplier for the Retained Goods that have been processed, combined or amalgamated.

6)            Where Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to Supplier as security its claim to consideration for the combination, including all collateral rights for the pro- rata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.

7)            Until further notice, Purchaser may collect assigned claims relating to the resale. Supplier is entitled to withdraw Purchaser's permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for overindebtedness or pending insolvency of Purchaser. In addition, Supplier may, upon expiry of an adequate period of notice disclose the assignment, realize the claims assigned and demand that Purchaser informs its customer of the assignment.

8)            The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, Purchaser shall, without undue delay, provide Supplier with the information and/or Documents necessary to assert the claims it has against its customers.

9)            Where the Purchaser fails to fulfill its duties, fails to make payment due, or otherwise violates its obligations the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.

 

Article IV: Terms for deliveries, Default

1)            Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.

2)            If non-observance of the time set is due to:

(a)          force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e. g. strike or lockout);

(b)          virus attacks or other attacks on the Supplier's IT systems occurring despite protective measures were in place that complied with the principles of proper care;

(c)          hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Supplier is not responsible; or

(d)          the fact that Supplier does not receive its own supplies in due time or in due form

such times shall be extended accordingly.

3)            The Purchaser is within a reasonable timeframe obliged to state whether it revokes the contract or proceeds with the demand regarding the delivery.

4)            If dispatch or delivery, due to Purchaser's request, is delayed by more than one month after notification of the readiness for dispatch was given, the Purchaser may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

 

Article V: Passing of risk

Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:

(a)          If the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the Purchaser's request, the Supplier shall insure the delivery against the usual risks of transport at the Purchaser's expense,

(e)          If the delivery, shipping, assembly or erection has been delayed due to the Purchaser’s responsibility or the Purchaser

(f)           delays the receiving due to other reasons.

 

Article VI: Erection and assembly

Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:

1)            Purchaser shall provide at its own expense and in due time:

(a)          Power supply;

(b)          all earth and construction work and other ancillary work outside the Supplier's scope, including the necessary skilled and unskilled labor, construction materials and tools;

(c)          Telecommunication lines, if necessary,

(d)          Protective clothing and protective devices needed due to particular conditions prevailing on the specific site.

2)            Before the erection work starts, the Purchaser shall unsolicited make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.

3)            Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the site of assembly or erection must be level and clear.

4)            If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.

5)            After the installation, the implementation or the assembly, the Supplier performs a functionality test and records the functionality and the errors, if applicable. The Purchaser has to attend the functionality tests and to check the test records. Objections against the records have to be made immediately after the functionality tests. The Purchaser is obliged to sign the records immediately after the functionality tests as far as there are no objections written down in the records.

 

Article VII: Receiving and acceptance

1)            The Purchaser has no right to deny the receiving and acceptance of the delivery if no material defects are present.

2)            If the Supplier demands the acceptance from the Purchaser, the acceptance shall be deemed as declared if one month has elapsed since the demand letter reached the Purchaser and no material defects are present.

3)            As far as a contractual relationship between the Purchaser and the Supplier includes the delivery of concept, development and production of a new product or individual software according to the specifications accepted by the Purchaser, the acceptance regarding particular quality features of the delivery shall be deemed as declared, if these features have not been notified to the Supplier as defects within 2 months after the acceptance demand according to paragraph 2 above reached the Purchaser.

4)            In any case, the acceptance regarding particular features of deliveries of any kind shall be deemed as declared, as far as these features have not been notified to the Supplier as defects within 6 weeks after the acceptance demand according the paragraph 2 above reached the Purchaser if the Supplier also declares to the Purchaser that the acceptance will be deemed as declared if the Purchaser does not notify the Supplier.

5)            The paragraphs 3 and 4 above apply to a contractual relationship between the Supplier and the Purchaser only insofar as the Purchaser had the possibility to test the delivery within the time frames stated in paragraphs 3 and 4 above. This paragraph does not apply as far as the quality features of the delivery have been changed within the frame of repair or modification.

6)            If the parties agreed on a test phase, the time frames stated in paragraphs 3 and 4 shall be substituted by a time frame that is equal to the test phase plus 2 weeks.

7)            Sections 363, 640 of the German Civil Code and Section 377 of the German Commercial Code stay unaffected.

 

Article VIII: Defects as to Quality

1)            The Supplier shall be liable for defects as to quality ("Sachmängel", hereinafter referred to as "Defects",) as follows:

(g)          Defective parts or defective services shall be, at the Supplier's discretion, repaired, replaced or provided again free of charge, provided that the reason for the origin of the Defect had already existed at the time when the risk passed.

(h)          Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction of purchase price. This limitation shall not apply where longer periods are prescribed by statutory law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code ("Bürgerliches Gesetzbuch"), as well as in the case of intent, fraudulent concealment of the Defect or non-compliance with guaranteed characteristics ("Beschaffenheitsgarantie"). The legal provisions regarding suspension of the statute of limitations ("Ablaufhemmung", “Hemmung") and recommencement of limitation periods shall stay unaffected.

2)            Notifications of Defect by the Purchaser shall be given in written form without undue delay.

3)            In the case of notification of a Defect, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses from the Purchaser.

4)            The Supplier shall be given the opportunity to repair or to replace the defective good ("Nacherfüllung") within a reasonable period of time.

5)            If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the remuneration; any claims for damages the Purchaser may have according to Sec. 10 shall be unaffected.

6)            There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.

7)            The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the subject matter of the Supplies has subsequently been brought to another location than the Purchaser's branch office, unless doing so complies with the normal use of the Supplies.

8)            The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.

9)            As far as the Supplier designs, develops and produces a new product or individual software according to the specifications accepted by the Purchaser (development services), deviations of the delivery from the specifications should be deemed defects unless the Purchaser benefits from the deviations. As far as present features not defined in the agreed specifications are present or missing in the new product or individual software, these features shall be deemed defects, if the Purchaser proves that these features contradict the purpose or functionality of the new product or the individual software, unless the Supplier did not know this and was not obliged to know it. Other features not defined in the agreed specifications and present or missing in the new product or individual software shall be deemed as defects, if the Purchaser proves, that these features should be present or missing according to the standards of the industry. If further development of an already developed product or software is included into contract, the norm for the already developed part of the new product resp. software is determined according to the features present in the already developed product resp. software at the time of the contract closing if nothing different has been stated in the agreed specifications.

10)         If the Purchaser orders the production or procurement of products that have already been developed for the Purchaser or a third party, then the norm for the defects is determined according to the features that are present in the already developed products at the time of contract closing. If the Purchaser wishes modifications of such products, the previous paragraph applies to the modifications. The norm for defects is determined according to sentence 1 of this paragraph.

11)         If the Supplier provides services within a continuing obligation (e.g., telecommunication services) to the Purchaser, then no material defect shall be deemed as present if the cumulated annual failure to provide the services does not reach the extent of 1% of the duration of one contract year, unless the Supplier is responsible for the absence.

 

Article IX: Industrial Property Rights and Copyrights; Defects in title

Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as "IPR") with respect to the country of the place of delivery only. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII No. 1b as follows:

(a)          The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions;

(b)          The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier's discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.

(c)          Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.

(d)          Where other defects in title occur, Article VIII shall apply mutatis mutandis.

 

Article X: Damages

1)            The Supplier is generally liable for damages only in case of intent or gross negligence. Furthermore, the Supplier is also liable in case of normal negligence for damages arising from injury to life, limb or health, or breach of a fundamental conditions of contract or failure to comply with a given guarantee. However, in case of the negligent breach of a fundamental condition of contract, the claim for damages is limited to the damages foreseeable and typical for the contract unless another case of the second sentence of this paragraph applies. The liability of the Supplier in cases of gross negligence is also limited to the damages foreseeable and typical for the contract unless another case of the second sentence of this paragraph applies.

2)            As far as the delivery is impossible, the Purchaser’s claim for damages is limited to the amount equal to 10% of the value of the part of the delivery that cannot be used purposefully due to the impossibility unless one of the cases defined in the first two sentences of the previous paragraph. The right of the Purchaser to cancel the contract stays unaffected.

3)            The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.

4)            This article also applies to Purchaser’s statutory rights to claim damages as far as these rights result from the same actions of the Supplier as the contractual rights unless however these statutory rights are not regulated in the German Product Liability Act.

 

Article XI: Competent court and Applicable law

1)            If the Purchaser is a businessman according to the German Commercial Code, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier's place of business. However, the Supplier may also bring an action at the Purchaser's place of business.

2)            The contract between the parties and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).

 

Article XII: Severability Clause

The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. The parties are obliged to substitute the invalid provision with a provision that reaches the same economic purpose as the invalid provision.

 

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