Tempris GmbH – General Terms and Conditions
|1.||Scope. These Conditions shall apply to all supplies, services and licenses of any kind provided by Tempris GmbH, Holzkirchen, Germany (“Tempris“) to its customers (“Customer(s)”). If Tempris and the Customer have entered into a contract of sale or a service, license or other agreement (hereafter collectively referred to as “Contract“), these Conditions shall apply except if and to the extent that the Contract provides otherwise. The goods, rights, licenses, or tangible or intangible works which are the subject matter of the Contract (“Deliverables”) are intended for use by businesses and not for delivery to consumers.|
|2.||No Other Terms and Conditions. Tempris does not accept any terms and conditions which deviate from these Conditions, except if such terms and conditions have been expressly accepted by Tempris.|
|3.||Orders to Tempris must be submitted in writing. Tempris reserves two weeks to confirm orders.|
|4.||The Customer shall refrain from using for any purpose unrelated to the Contract, copying and making available to third parties any technical specifications, drawings, quotations and calculations which the Customer may receive from Tempris, in particular in connection with the negotiation or the performance of the Contract. Tempris reserves the copyright and other rights in such materials. In the event that the Customer violates the foregoing obligation, Tempris shall be entitled to request immediate release and delivery of such materials.|
|5.||Terms of Delivery. All Deliverables shall be delivered ex works Holzkirchen, Incoterms 2010. In that case, the prices quoted by Tempris shall be deemed agreed on the same basis, and, unless otherwise agreed, Tempris will arrange for shipping, packaging and insurance at the Customer’s expense.|
|6.||Tempris shall be under no obligation to observe any delivery date until and unless the Customer has complied fully with all of its responsibilities regarding the delivery. Time shall not be regarded to be of the essence except if expressly agreed. No delivery date shall be binding on Tempris unless it has been expressly confirmed as “binding”.|
|7.||Tempris reserves the right to make partial deliveries.|
|8.||The obligation to deliver any Deliverables shall be subject to the condition precedent that Tempris shall have been supplied correctly and in due time by its suppliers.|
|9.||Property Rights. The Customer’s right to use any Deliverables supplied by Tempris which are protected by intellectual property rights, in particular computer software Deliverables and documentation (“Software“), shall be strictly limited to internal business purposes and otherwise as provided in the Contract and in these Conditions. All other rights are reserved. The source code of the Software will not be delivered unless expressly agreed.|
|9.1||The Customer shall refrain from (a) reverse engineering the Software or reducing it in any other ways to a form perceptible to humans; or (b) modifying, adapting or translating the Software, or creating derivative works of the Software, except in each case to the extent expressly permitted in the Contract or by mandatory law. The same shall apply to any publication of any benchmark tests with the Software without Tempris’s prior written consent. Any copies of the Software shall contain all of the copyright notices shown on the original.|
|9.2||Neither the Customer’s right to copy and modify the Software to the extent expressly permitted by applicable mandatory legislation regarding back up or the elimination of errors nor the Customer’s rights under applicable mandatory legislation regarding reverse engineering shall be deemed restricted hereby.|
|9.3||The Customer shall refrain from selling the Software or generally making the Software available to any third party, whether by delivering a data medium, over a network, or in any other form, whether or not for compensation, except with Tempris’s prior written consent. Unless Tempris has reasonable cause to withhold the consent, it shall be granted if the third party acquirer assumes all obligations regarding the Software under the Contract and these Conditions and the Customer destroys all copies of the Software in its possession. Lending the Software for other than commercial purposes shall not require Tempris’s consent to the extent that the recipient submits to the terms of this Section and the lending does not constitute simultaneous use of more than one copy of the Software.|
|9.4||If the Contract expressly provides that copies of the Software may be made available to a third party (“End User”) or that the Customer may allow End Users to access the Software, this right shall only apply to the extent that (a) such End User has executed a valid license agreement with the Customer that is (i) not less protective of Tempris’s Property Rights in the Software and (ii) not less restrictive on the End User’s right of use of the Software than the provisions set forth in the preceding par.s of this Section; and (b) the Customer implements appropriate procedures to supervise and enforce End User compliance with such restrictions. The Customer also agrees to (a) indemnify Tempris for any damage or loss suffered in connection with the infringement of Tempris’s Property Rights in such Software by an End User and (b) hold Tempris harmless from any claims asserted by End Users in connection with the use of, or access to, the Software and not caused by Tempris’s breach of the Contract.|
|10.||Derivative Works, New Materials. All right and title worldwide, including any right of use or exploitation, in or to any (a) modifications, alterations or derivate works of a Deliverable, even if discovered, developed or created by or for Customer, and (b) Deliverables or other works or results discovered, developed or created by Tempris or Tempris’s agents – whether or not in cooperation with the Customer – in connection with the Contract shall exclusively be owned by Tempris. The Customer hereby transfers such right and title to Tempris who accepts such transfer.
For the avoidance of doubt, Tempris’s right or title shall not extend to any improvements independently developed by Customer to the extent that such improvements are separable, i.e. can be exploited without infringing upon Tempris’s rights in the Deliverable.
Where an assignment is not legally possible, Customer guarantees that Tempris will receive a fully paid, exclusive, perpetual, worldwide, transferable and sublicensable license for all known methods of use. The Customer hereby grants such license to Tempris who accepts such license. Where such development is part of Tempris’s services to the Customer, Customer shall receive a simple non-exclusive license in such derivative works, works or results in accordance with the Contract and/or these Conditions.
|11.||Confidentiality. The parties mutually agree to keep all confidential technical and commercial information received from the respective other party strictly confidential and to refrain from using any such confidential information except as strictly required to perform the Contract. Only information which the recipient can show was already published or known to it at the time of disclosure or that was published later without the fault of the recipient shall be exempted from this clause. The parties represent and warrant that their respective employees, consultants and subcontractors are bound by a secrecy obligation corresponding to or exceeding the standard set by this clause, which secrecy obligation shall remain in force even after the end of the relationship between the party concerned and its employees, consultants and subcontractors. The recipient shall notify the owner of any confidential information in the event that it becomes aware that information which the respective other party regards as confidential has become publicly known, or if notes or media containing such confidential information are lost, or if it deems itself legally obliged to provide confidential information to any third party, including courts of law or government entities. This confidentiality clause shall remain in force even after termination of the Contract.|
|12.||Acceptance. Any Deliverables delivered and installed by Tempris which require acceptance under the Contract or statutory law, shall be accepted by the Customer within two weeks from installation in the presence of representatives of Tempris, provided the Deliverable essentially complies with the specifications agreed between the parties. The Customer shall confirm the acceptance in writing. Prior to delivery of the acceptance certificate to Tempris, the Customer shall refrain from using the Deliverable. In the event that the Customer uses the Deliverable prior to delivery of the acceptance certificate to Tempris, such use shall be regarded as acceptance.
Tempris is entitled to submit individual self-contained components or phases of Deliverables for separate, independent acceptance (acceptance in part). The complete Deliverable will then be deemed accepted after the last acceptance in part has taken place. In that case, no additional final acceptance for the complete Deliverable is required.
|13.||Terms of Payment. All invoices shall be paid upon receipt without any deduction, unless otherwise agreed. Customer will be deemed in default with a payment at the latest after expiry of two weeks from (i) the due date and (ii) receipt of Tempris’s invoice.|
|14.||Value Added Tax shall not be deemed included in the prices quoted by Tempris, and, if applicable, it will be shown separately in the invoice at the rate prevailing on the date of the invoice.|
|15.||Price List. Supplies and services not covered by the Contract shall be billed based on the price list prevailing at the time of receipt of the order.|
|16.||The Customer shall not be entitled to set off any of its claims against claims of Tempris, except where the Customer’s claims are undisputed or have been confirmed by a final court judgment.
The foregoing shall also apply to any right of retention under civil or commercial law, and in particular to any deductions from recurrent payments to Tempris based on supposed defects of Deliverables. This shall, however, not limit Customer’s claim for repayment of any amounts paid but not owed to Tempris after such payment to Tempris.
The foregoing exclusions shall not apply where claim and counterclaim are legally connected in such way that each obligation must only be fulfilled in consideration of fulfillment of the other.
Tempris reserves the right to retain or suspend any performance under the Contract where Customer has not fulfilled a legal obligation to Tempris, in particular where it is late on payments, even where such obligation to Tempris is not based on, or related to, the Contract.
|17.||Limited Remedies for Defects (Warranty). Where Customer has acquired the Deliverable from a reseller, remedies for defects of the Deliverable shall exclusively be asserted vis-á-vis such reseller in accordance with the terms of the agreement between Customer and reseller. In all other cases, in the event of any defect of a Deliverable, including any deviation from agreed specifications and/or any violation of rights of third parties (collectively “Defects”) the Customer may exercise its statutory remedies for repair or replacement, reduction in the agreed price or cancellation of the Contract (“Warranty Claims”) only within the limits set forth hereinafter:|
|17.1||Any Warranty Claims shall be excluded unless the Defect in question substantially limits the suitability of the Deliverable for the agreed purpose.|
|17.2||The Customer shall inspect any Deliverables and notify Tempris of any defects or deviations thereof immediately after delivery. In the absence of such immediate notice, the Customer shall be deemed to have consented to any deviations of the Deliverables that could have been detected, in particular, without limitation, (a) defects, or (b) delivery of (i) a quantity or (ii) a product other than agreed. The notice shall in particular not be deemed immediate if it is received more than 14 days after delivery.|
|17.3||Tempris reserves the right to decide whether to repair or to replace any Deliverable which should prove to be defective. If Tempris fails to exercise such right within a reasonable time limit set by Customer, such right shall pass to Customer. Tempris reserves – also in work contracts – at least two attempts at such repair or replacement, except where this should unduly prejudice Customer in individual cases. Where Tempris replaces a defective Deliverable, the Customer shall return the defective Deliverable to Tempris and compensate prior use of such Deliverable.|
|17.4||Furthermore any Warranty Claims shall be excluded to the extent that the Customer (a) uses the Deliverable for any purpose other than the contractual purpose or in violation of the relevant statutory requirements and/or any guidelines issued by the manufacturer; or (b) either (i) modifies the Deliverable or (ii) uses of the Deliverable in connection with any hardware or software not approved by the manufacturer of the Deliverable for such purpose, unless, in each case, the Customer has obtained Tempris’s prior written consent, and except, in each case, where the foregoing circumstances did not cause the Defect.|
|17.5||Furthermore any Warranty Claims for violation of third-party rights shall be excluded unless such third-party rights are valid within the country into which the Deliverable is delivered, the EEA or Switzerland and the Customer enables Tempris to conduct the defense alone without any restriction and grants to Tempris the necessary powers.|
|17.6||Recourse: The Deliverables are not intended to be distributed to Consumers as defined in statutory law, therefore the Customer does not have a statutory right of recourse.|
|18.||Tempris shall not be deemed to have guaranteed certain properties of the Deliverables except if it has expressly confirmed such guarantee. The manufacturer’s warranty issued with any Deliverable shall not be deemed a guarantee of certain properties unless it expressly states otherwise.|
|19.||Liability. Tempris shall be liable in damages, whether based on contract or any other legal theory, only to the extent that the damage was caused by gross negligence or willful misconduct imputable to Tempris. In the event of death of a natural person or personal injury to the latter, Tempris shall be liable also for slight negligence in accordance with statutory law. In addition, Tempris shall also be liable in accordance with statutory law for a slightly negligent violation of a fundamental duty under the Contract, but such liability shall be limited to such damage as Tempris could have reasonably foreseen at the time of signing of the Contract.
Fundamental duties as used herein comprises all duties which must be fulfilled by Tempris in order to enable consummation of the Contract and the achievement of its purposes and fulfillment of which the Customer may reasonably expect in view of the content and purposes of the Contract such as the duty to consummate the Contract in a timely manner and a manner which does not endanger the life or health or personal property of Customer and its personnel.
|19.1||Tempris’s liability shall cover neither damage caused by the loss of data to the extent such loss could have been avoided by reasonable regular back-up, nor damage caused by using any Deliverables which could have been prevented by examination of the work products of such Deliverable at regular intervals.|
|19.2||Limitations on Tempris’s liability agreed in the Contract or these Conditions shall apply also to the personal liability of Tempris’s officers, employees or agents.|
|19.3||Where Deliverables are provided free of cost, e.g. demo software, Tempris’s liability shall be further limited, and Tempris shall be liable for damages based on gross negligence or willful misconduct imputable to Tempris and/or fraudulent concealment of defects only.|
|19.4||Any mandatory liability under the Product Liability Act and/or arising from a guarantee of properties shall remain unaffected.|
|19.5||This Sec. 19 shall not be construed to shift the statutory burden of proof in any way.|
|20.||Limitation Period. Customer’s remedies for Defects, including but not limited to the right to withdraw from the Contract, shall be subject to a limitation period of twelve months for newly manufactured Deliverables and six months for used Deliverables. The foregoing limitation period shall also apply to claims for indemnification or damages, in particular incidental or consequential damages, based on Defect.|
|20.1||However, all remedies based on:
· fraudulent concealment of defects or
· Deliverables designed to be incorporated into a building, so incorporated and having caused such building to be defective or
· gross negligence, willful misconduct or the death of a natural person or personal injury to the latter, caused by negligence or willful misconduct
· based on guarantees of properties and/or
the statutory recourse and the right to withdraw from the Contract based on a breach imputable to Tempris other than a Defect shall be subject to the applicable statutory limitation periods.
|20.2||The limitation periods shall begin on the date specified by the statute.|
|20.3||Where Tempris repairs or replaces a Deliverable or attempts to do so, such repair or replacement shall not effect a renewal of the limitation period for the Customer’s Warranty Claims with respect to the repaired Deliverable (including spare parts or units used for the repair) or a replacement product. Notwithstanding the repair or replacement, such Warranty Claims shall be subject to a limitation period equivalent to the remaining limitation period applicable to the original Deliverable, except that such limitation period shall not expire earlier than three months after the conclusion of the repair or replacement or Tempris’s refusal to undertake further attempts at such repair or replacement.|
|21.||Retention of Title. Until payment in full of the purchase price by the Customer, Tempris shall retain title to the Deliverables (“Reserved Deliverables“). The Customer shall advise Tempris without any delay of any attachments of any such Reserved Deliverables, in particular of any judicial execution measures or any other seizures, as well as of any damage suffered by such Reserved Deliverables. In the event that any Reserved Deliverable is shipped to or used in a country where this Retention of Title Clause is not fully valid and enforceable, the Customer shall provide Tempris with equivalent security.|
|22.||Export. The Customer agrees to refrain from exporting any Deliverables and technical information received from Tempris, except in the event that all relevant export regulations in force in its country of residence as well as in the United States of America are observed, and the Customer shall impose this obligation also on its customers, without prejudice to the other provisions of the Contract or these Conditions.|
|23.||Subcontractors. Tempris may make use of subcontractors to perform any of its obligations under the Contract or these Conditions, provided that the use of any such subcontractors shall not limit or restrict Tempris’s obligations towards the Customer.|
|24.||Notices. Any notices, declarations or waivers which may be declared or made pursuant to the Contract or these Conditions shall be valid only if they are in writing.|
|25.||No Assignment. The Customer shall not be entitled to assign its rights under the Contract – except for claims for payment – to any third party without Tempris’s prior written consent, which consent shall not be unreasonably withheld.|
|26.||Severability. Should one or more of the provisions of the Contract or these Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.|
|27.||Place of performance for all obligations under the Contract shall be at Holzkirchen, Germany.|
|28.||Governing Law. The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.|
|29.||Jurisdiction. All disputes arising under or in connection with Contract and/or these Conditions shall be submitted exclusively to the courts of Holzkirchen to the extent that the Customer is a commercial entity or a public law corporation, or a public law fund or trust. The Customer hereby submits expressly to the jurisdiction of the Holzkirchen courts.
The same shall apply if, at the time the claim is brought, the Customer’s domicile is not in Germany or not known.
Tempris shall in any event be entitled, at its discretion, alternatively to take legal action against the Customer in the courts having general personal jurisdiction over the Customer.
|30.||Language: The English text version of these Conditions is for information purposes only. Only the German version of these Conditions is legally binding.|
|31.||Holzkirchen, May 2019|
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