General Terms and Conditions of Sale (GTCS)
of Systec & Solutions GmbH, Emmy-Noether-Str. 17, 76131 Karlsruhe

(As of August 2018, version 3.0)

1. General provisions

1.1 These General Terms and Conditions of Sale (hereinafter referred to as "GTCS") apply exclusively to the legal relations between Systec & Solutions GmbH, Emmy-Noether-Straße 17, 76131 Karlsruhe (hereinafter referred to as "Systec & Solutions") and the Customer in connection with the deliveries and/or services of Systec & Solutions (hereinafter referred to as "deliveries"). The Customer’s General Terms and Conditions will only apply if Systec & Solutions has expressly agreed to them in writing. Moreover, the General Terms and Conditions of the Customer or third parties shall not form the subject matter of the contract even if Systec & Solutions has not expressly objected to them. For the scope of deliveries, the mutual concurring declarations in writing are pertinent. Customers within the meaning of these GTCS are solely entrepreneurs, corporate bodies under public law or separate funds under public law.

1.2 All proposals of Systec & Solutions are subject to change unless they state otherwise. The contractual relationship takes effect either by signing the individual contract, by written acknowledgment of order by Systec & Solutions or when Systec & Solutions starts performing deliveries. The Customer will be bound for four weeks by its proposals to conclude contracts.

1.3 Systec & Solutions reserves its exploitation rights (in respect of ownership rights and copyrights) to proposals, cost estimates, drawings and other documents (hereinafter referred to as "documentation") without restrictions. Documentation may be made accessible to third parties only with prior consent of Systec & Solutions and must be returned to the latter immediately on demand if the order is not placed with Systec & Solutions.

1.4 The Customer has informed itself of the essential functional features of deliveries and bears the risk that these correspond to its wishes and requirements; in cases of doubt, the Customer can be advised by employees of Systec & Solutions and competent third parties before the conclusion of the contract. Upon request, Systec & Solutions will give notification of the possible technical applications and operating conditions of deliveries.

1.5 Even if no reference is made again to this fact when concluding similar contracts, the GTCS of Systec & Solutions will apply exclusively in the version which can be called up at www.systec-solutions.com/en/terms/ upon submission of the declaration of the Customer unless the contractual partners agree otherwise in writing.

1.6 As a rule, Systec & Solutions concludes contracts with business people and companies; these GTCS apply only to the legal relations with such customers, who are not consumers. If Systec & Solutions concludes contracts with consumers, individually agreed contractual provisions will apply.

2. Partial deliveries; deadlines for deliveries; default

2.1 Partial deliveries are permissible if they are acceptable to the Customer.

2.2 Compliance with deadlines for deliveries requires the timely receipt of all documentation, necessary authorizations and releases to be supplied by the Customer, especially plans, as well as compliance with the agreed terms of payment and other obligations of the Customer. If these requirements are not met in time, then the deadlines will be extended appropriately; this will not apply if Systec & Solutions is responsible for the delay.

2.3 If non-compliance with deadlines is attributable to force majeure, e.g. mobilization, war, terrorist acts, riots or similar events (e.g. strikes, lockouts), the deadlines will be extended appropriately.

2.4 At the request of Systec & Solutions, the Customer is obliged to declare within an appropriate period whether it will withdraw from the contract or insist on delivery in the event of default of delivery by Systec & Solutions.

3. Transfer of risk

3.1 The risk is transferred - also in the case of freight-paid delivery - to the Customer at the time when Systec & Solutions informs the Customer that the goods are ready for collection (EXW "Ex Works", Incoterms® 2010). At the request and at the expense of the Customer, Systec & Solutions will insure deliveries against the usual transport risks.

3.2 If the collection, dispatch, delivery, commencement, acceptance in the Customer's own operations or the test operation is delayed for reasons for which the Customer is responsible, or the Customer is in default of acceptance for other reasons, the risk is transferred to the Customer.

4. Retention of title

4.1 The items of deliveries (hereinafter referred to as "reserved goods") will remain the property of Systec & Solutions until all the claims against the Customer it is entitled to resulting from the business relationship are fulfilled. If the value of all the security interests Systec & Solutions are entitled to exceeds the amount of all secured claims by more than 20%, Systec & Solutions will release an appropriate part of the security interests at the request of the Customer; Systec & Solutions is entitled to choose between various security interests for release.

4.2 While the retention of title exists, the Customer is prohibited from pledging or transfer of title by way of security, and resale is only allowed by resellers in the course of normal business and only on condition that the reseller receives payment from its Customer or makes the provision that the ownership shall not pass to the Customer until the latter has met its obligations to pay.

4.3 If the Customer resells reserved goods, it will now assign to Systec & Solutions its future claims resulting from the resale against its customers with all ancillary rights – including any balance claims – for security's sake without further special explanations being required. If the reserved goods are resold together with other items without an individual price being agreed for the reserved goods, the Customer will assign that part of the total price claim to Systec & Solutions corresponding to the price of the reserved goods invoiced by Systec & Solutions.

4.4 Until revoked, the Customer is authorized to collect assigned claims from the resale. Where good cause exists to do so, especially in the event of default of payment, suspension of payment or the opening of insolvency proceedings, bill protest or substantiated evidence of over-indebtedness or imminent insolvency of the Customer, Systec & Solutions is entitled to revoke the Customer's collection authorization. After giving prior warning complying with a reasonable period of notice, Systec & Solutions can also disclose the assignment for security, realize assigned claims and demand that the Customer disclose the assignment for security to its customer.

4.5 In the event of attachment, seizures or other orders or interventions by third parties, the Customer must immediately notify Systec & Solutions. Following authentication of a justified interest, the Customer must immediately give Systec & Solutions the necessary information to assert its rights against the Customer, and deliver the necessary documentation.

4.6 If the Customer violates its duties, especially in the event of default of payment, Systec & Solutions is entitled - after unsuccessfully granting the Customer a reasonable period for performance - to take back items and also to withdraw from the contract; the statutory provisions concerning the dispensability of setting a deadline remain unaffected. The Customer is obliged to hand over said items. Taking back or assertion of the retention of title or attachment of the reserved goods by Systec & Solutions does not represent a withdrawal from contract unless expressly stated by Systec & Solutions.

5. Prices: terms of payment; offset and retention; assignment

5.1 Prices are EXW ("Ex Works", Incoterms® 2010), duty unpaid, exclusive of installation, assembly and packaging, plus the legally valid sales tax. Unless otherwise agreed, the payment is based on the valid price list of Systec & Solutions on conclusion of the contract.

5.2 Payments are to be made free of charges to the paying agent of Systec & Solutions.

5.3 Unless otherwise agreed in the parties' contract, the invoices of Systec & Solutions are due for payment without deduction within 14 days on receipt of invoice at the Customer's site. No discount is given. The Customer is obliged to make payments at its expense and risk.

5.4 Partial payments shall first be used to cover still outstanding older claims of Systec & Solutions against the Customer.

5.5 The Customer is only permitted to offset claims which are undisputed or legally established. The Customer is entitled to a right of retention or the plea of non-fulfillment of a contract only within this contractual relationship or in the event that Systec & Solutions itself has committed a gross breach of contract or has already received part of the payment for a defective delivery or service corresponding to the actual value of the delivery or service, or if the counterclaim of the Customer is undisputed or legally established. 

5.6 Claims of the Customer against Systec & Solutions may only be assigned to third parties with the prior written approval of Systec & Solutions. Section 354a of the German Commercial Code remains unaffected by this.

6. Obligations to inspect and to give notice of defects; material defects

6.1 The Customer must inspect the goods received for defects immediately after receipt of the goods at the place of destination. It must give Systec & Solutions written notification of obvious defects of the goods immediately after receipt of the goods, and of hidden defects immediately after their discovery. Otherwise the goods are deemed to be approved. The Customer must give Systec & Solutions the opportunity to check the complaint, especially by providing Systec & Solutions with the damaged goods and their packaging for inspection. If it refuses to do so, Systec & Solutions will be released from liability for defects unless the existence of the defect is indisputable or obvious.

6.2 If it turns out that the notice of defects was unjustified, Systec & Solutions can demand compensation for the expenses incurred provided the Customer acted at least negligently.

6.3 Systec & Solutions must repair, resupply or provide again free of charge all the parts or services possessing a material defect provided its cause already existed at the time of transfer of risk.

6.4 Claims for supplementary performance expire after 12 months from the date of delivery; the same also applies to withdrawal from the contract or price reduction.

6.5 Within the scope of supplementary performance, the Customer is obliged to return the defective item to Systec & Solutions immediately. 

6.6 If supplementary performance fails, the Customer can withdraw from the contract or reduce the payment – without prejudice to any claims for damages pursuant to 9.

6.7 The Customer must not refuse the acceptance of deliveries on account of insignificant defects.

6.8 Claims of the Customer for expenses necessary for the purpose of supplementary performance, especially transport, road and labor and material costs, are excluded if expenses are incurred because the item of delivery is subsequently shipped to a place other than the Customer's subsidiary unless the shipment corresponds to its intended use. 

6.9 Claims of the Customer for damages on account of a material defect can only be asserted pursuant to the provisions in Section 9. The above-mentioned provisions do not involve any change in the burden of proof to the Customer's disadvantage.

7. Industrial property rights and copyrights; defects of title

7.1 The license conditions and terms of use of the respective manufacturer of the standard software or firmware always apply to the standard software and firmware (also open source) that Systec & Solutions includes in its delivery. The Customer will always only receive the non-exclusive rights to the standard software and firmware which are necessary for the use of the standard software and firmware together with the deliveries in the contractually agreed scope for its own purposes.

7.2 Unless otherwise agreed, Systec & Solutions is obliged to provide the delivery free of industrial property rights and copyrights (hereinafter referred to as "property rights") of third parties only in the country of the place of delivery. If a third party makes justified claims against the Customer for an infringement of property rights caused by contractually used deliveries provided by Systec & Solutions, Systec & Solutions will be liable to the Customer within the period stipulated in clause 6.4 as follows:

a) Systec & Solutions shall either obtain a right of use for the deliveries concerned at its own discretion and at its own expense, changing them so that the property right is not infringed, or will replace them. If this is not possible for Systec & Solutions to do under reasonable conditions, the Customer is entitled to the statutory rights of withdrawal from the contract or price reduction.

b) The above-mentioned obligations of Systec & Solutions exist only (i) if the Customer notifies Systec & Solutions in writing immediately of the claims asserted by the third party, (ii) does not acknowledge an infringement and (iii) all defense measures and settlement negotiations remain reserved to Systec & Solutions. If the Customer suspends the use of the delivery to mitigate damage or for other important reasons, it is obliged to inform the third party that the suspension of use does not represent an acknowledgment of an infringement of a property right.

c) Further liability of Systec & Solutions is based on clause 9.

7.3 Customer's claims are excluded if it is responsible for the infringement of the property right.

7.4 Moreover, Customer's claims are excluded if the infringement of the property right is caused by special stipulations of the Customer, by an application not foreseeable by Systec & Solutions, or by the fact that the delivery has been changed by the Customer or used together with products not supplied by Systec & Solutions.

7.5 Furthermore, in the event of infringements of property rights, the provisions of clause 6.4 shall apply accordingly to the Customer's claims governed by clause 7.2a).

7.6 Further claims of the Customer or claims different to those governed by this clause 7 against Systec & Solutions and its vicarious agents on account of a material defect are excluded.

8. Performance proviso

8.1 Contractual performance is on condition that there are no obstacles to it resulting from German, US or other applicable national, EU or international foreign trade legislation, or any embargoes or other sanctions.

8.2 The Customer is obliged to provide all the information and documentation required for export, shipment or import.

9. Other liability

9.1 Unless otherwise stipulated in these GTCS, Systec & Solutions will be liable only to the following extent:

a) In the event of intent, fraud or gross negligence of the owners, statutory representatives or executives, in the full amount;

b) In the event of gross negligence of other employees or vicarious agents, in the amount of foreseeable damages typical for the contract, which should be prevented by due diligence;

c) In other cases of negligence or in the event of default only if fundamental contractual obligations are violated without which achieving the purpose of the contract would be endangered and on whose fulfillment the Customer may therefore usually rely on, but with the amount being limited to the foreseeable damages typical for the contract. This is limited per case of damage up to 50% of the value of the order and a maximum of EUR 150,000, and in total in relation to all the cases of damage of an order up to 100% of the value of the order and a maximum of EUR 500,000.

9.2 Liability for culpable injury to life, body or health, and mandatory liability pursuant to the Product Liability Law remain unaffected by the above-mentioned provisions.

9.3 The above-mentioned provisions do not involve any change in the burden of proof to the Customer's disadvantage. The objection of contributory negligence remains open.

9.4 Systec & Solutions will be liable for the replacement of data within the scope of clause 9.1 only insofar as the Customer has ensured by means of sufficient data backup according to the state-of-the-art that the data are reproducible at reasonable expense from data stock available in machine-readable form.

9.5 The liability of Systec & Solutions is subject to a limitation period of 12 months pursuant to 9.1, except in case of intent and gross negligence as well as liability for culpable injury to life, body or health, and mandatory liability pursuant to the Product Liability Law. This period will start from the moment when the Customer becomes aware of circumstances substantiating the claim or would have become aware thereof without gross negligence. The limitation period will expire at the latest on expiry of the maximum periods stipulated in Section 199 of the German Civil Code. The limitation period for claims defined in different form within the scope of supplementary performance in clause 6.4 remains unaffected.

9.6 The term "claims for damages" in these GTCS also includes claims for compensation of futile expenditures.

10. Data protection and data security

10.1 The Customer will confirm that the personal data transferred to Systec & Solutions by it or by third parties at its instigation were collected and processed pursuant to the currently applicable data protection regulations, any necessary consents by the persons affected exist and the use of data by Systec & Solutions does not violate any data protection regulations within the scope of the performance of the contract or go beyond the scope of any consents given.

10.2 The Customer will be notified by means of separate data protection information which is not part of this agreement in respect of how Systec & Solutions processes its data as well as the data of its employees on the basis of legal regulations governing data protection. The Customer shall forward such data protection information if applicable to its employees who are affected by the data processing of Systec & Solutions. In particular, Systec & Solutions will obligate its employees in writing to maintain confidentiality when processing personal data.

10.3 The Customer is recommended to take appropriate measures as far as possible to prevent access by Systec & Solutions to the Customer's personal data during the provision of services. If Systec & Solutions cannot be prevented from being granted access to the Customer's personal data, the Customer is obligated to inform Systec & Solutions in due time before the provision of services.

11. Secrecy; List of Customers

11.1 The Customer undertakes to treat as confidential – even after the contract has come to an end – all information provided or made known to it by Systec & Solutions before or during the execution of the contract (e.g. software, documents, or information) that is legally protected or contains business or trade secrets, or is designated as confidential (hereinafter 'Confidential Information'), unless this was already public knowledge without this duty of confidentiality having been breached, or its dissemination forms the actual subject of the supply or service. The Customer shall safeguard and secure the Confidential Information so as to rule out access by any third party.

11.2 The Customer shall make the Confidential Information accessible only to employees who require access for the performance of their duties. He shall instruct these persons about the need to maintain the confidentiality of the Confidential Information.

11.3 Systec & Solutions shall be entitled to include the Customer in the List of Customers and to mention his name in interviews or public announcements.

12. Place of performance; written form; place of jurisdiction; applicable law; severability clause

12.1 Unless a different agreement has been made the place of performance will be the headquarters of Systec & Solutions.

12.2 All changes and amendments to the contract as well as notices of termination have to be made in writing to be valid.

12.3 The sole place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship is the headquarters of Systec & Solutions. However, Systec & Solutions is also entitled to sue at the headquarters of the Customer or at any other permissible place of jurisdiction.

12.4 This contract including its interpretation is subject to the law Federal Republic of Germany to the exclusion of the UN sales law (United Nations Convention on Contracts for the International Sale of Goods, CISG).

12.5 Should a provision in these GTCS or in the individual contracts be or become invalid or impracticable or should they become incomplete, the remaining content of the contractual relationship shall not be affected. The contractual partners will replace the invalid or impracticable provision with a provision which most closely reflects the meaning and purpose of the invalid or impracticable provision in a legally effective way and in respect of its economic effects. The same will apply to gaps in the contract.