General terms and conditions of the PiSA sales GmbH
§ 1 General
All deliveries and services are based on the following terms and conditions, provided that the requirements of § 2 AGBG are met. In case of deviating or additional provisions, an explicit written agreement or consent of PiSA sales GmbH, Berlin, is required. In addition, the product license and software maintenance contract of PiSA sales GmbH applies. Terms and conditions of purchase and other terms and conditions of business of the buyer/orderer are only valid to the extent that they comply with these terms and conditions. Deviating conditions only become effective if they have been approved in writing by PiSA sales. The following terms and conditions are part of all contracts for the use of software products, contracts for the maintenance of software products, contracts for support and consulting services as well as all contracts for the modification of software products. PiSA sales or its suppliers reserve the right to make technical changes that become necessary due to constructive innovations, further development and improvement by PiSA sales or its suppliers, as long as they are reasonable for the customer and do not impair the usability of the product.
§ 2 Offers/Orders
PiSA sales is bound to written offers for four weeks – calculated from the date of the offer – unless there is a written reference to a free-standing offer. The order confirmation is decisive for the content and scope of the order. Collateral agreements, contract amendments and supplements are only effective if confirmed in writing. The same applies to the assurance of product characteristics.
§ 3 Prices/terms of payment
Any prices quoted in offers and contracts are subject to the applicable value added tax. The respectively valid value added tax will be invoiced separately for merchants. Daily rates for services apply plus travel costs and expenses. Invoices for licenses are issued after software delivery and licensing, invoices for services are issued after the service has been performed. Maintenance fees shall be invoiced annually in advance from the date of installation of the standard software. Payment is due within 14 days without any deduction from the date of invoice. For orders for the delivery of systems with an order value of more than € 15,000 (excluding VAT), 30% is due on receipt of order and 70% on installation. If the installation of the systems is delayed by more than one month on the scheduled date for reasons for which PiSA sales is not responsible, the (remaining) purchase price is due one month after declared readiness for delivery. PiSA sales is entitled to charge interest of 3% above the respective discount rate of the Deutsche Bundesbank in commercial payment transactions when due, otherwise in case of default of payment. If payment dates are not kept or payments are stopped or circumstances are known which have occurred after the conclusion of the contract and which question the solvency and creditworthiness of the customer, all outstanding claims against the customer become due for payment immediately without consideration of a possibly agreed deferment or partial payment agreement. In this case PiSA sales is entitled to withdraw from the contracts concerning the claims after setting an appropriate grace period with threat of rejection. In the case of withdrawal, the customer is obliged to compensate for the damage incurred up to that point. In the case of a justified withdrawal by PiSA sales or non-fulfilment by the customer, PiSA sales can demand a lump sum compensation amount of 30% of the purchase price or the agreed remuneration as lost profit. The customer reserves the right to prove a smaller damage. A set-off by the client is only possible with undisputed or legally binding counterclaims.
§ 4 Delivery/Delivery dates
Delivery dates and periods are binding if they have been designated as binding in writing by the buyer and PiSA sales in individual cases, otherwise all delivery dates or periods are non-binding. The delivery period begins with the dispatch of the order confirmation, but not before the buyer has provided the documents to be procured by him. In the event of failure to comply with an agreed delivery date due to unforeseen events which are beyond the influence of PiSA sales, the period is extended appropriately by a maximum of four months. Thereafter, the buyer may withdraw from the contract free of charge after a further reasonable extension of time. PiSA sales is entitled to partial deliveries, as far as they are reasonable for the customer. Partial deliveries are considered as independent delivery and can be invoiced separately.
§ 5 Retention of title
PiSA sales reserves the right of ownership of the delivered products and services until complete payment of the price and fulfilment of all other existing claims from the contractual relationship. The customer cannot acquire ownership by installation / assembly of the products delivered by PiSA sales into other objects or devices. A processing or treatment of the products delivered by PiSA sales takes place for them without any liabilities arising for PiSA sales. In case of installation in other goods PiSA sales becomes co-owner of the new product in relation of the value of the goods to the value of the other goods. The newly created product is considered as reserved goods for PiSA sales. A resale of the delivered products or products resulting from the combination within the scope of proper business operations is only permitted under reservation of title. The customer assigns already now by way of security all claims with ancillary rights to which he is entitled from the resale or rental to his customers in the amount of the value of the delivered products. He is revocably authorised and obliged to collect the assigned claim. The delivered items and products (including services) may neither be pledged nor assigned as security before payment of all secured claims. In case of seizure, confiscation or endangerment of the goods which are the reserved property of PiSA sales, the customer will inform PiSA sales immediately.
§ 6 Warranty
No warranty is given for damage caused exclusively by improper use, modification, operation and care of the product. The warranty does not apply to user-exits created by the customer and their effects, nor to changes made from the operating system and/or database level. In principle, changes may only be carried out with the development tools approved by PiSA sales. The orderer grants PiSA sales the time and opportunity necessary for the possible removal of defects or replacement delivery according to reasonable discretion. If the orderer refuses this, PiSA sales is released from the warranty. The warranty on PiSA sales software is 12 months (starting from the date of delivery). The warranty contains exclusively error correction. PiSA sales reserves the right of the kind of error correction. This means that the update service and the hotline service, if desired, is only available by concluding a contract for the maintenance of software products (maintenance contract). In case of extension of the existing PiSA sales software licenses the warranty period does not start anew. Furthermore, the expiration of the warranty period is not interrupted by this. If new, function-extending modules are added to the existing installation, their warranty period ends 12 months after installation of the same. If a maintenance contract exists, extension licenses are automatically included in this maintenance contract when ordered.
§ 7 Liability
Unless otherwise regulated in the respective contracts, claims for damages of any kind and for any legal reason whatsoever against PiSA sales or PiSA sales employees are excluded, unless PiSA sales or PiSA sales employees are compulsorily liable due to gross negligence or intent. To the extent permitted by law, PiSA sales and employees of PiSA sales are in particular not liable for damages resulting from claims of third parties against the customer, damages to recorded data, lost profit, savings not achieved and other indirect damages. Any claims for damages of the customer – for whatever legal reason – are limited to the following amounts in total: for personal injury to € 1,000,000.00, for damage to property to € 250,000.00. PiSA sales is not liable for the recovery of data, unless PiSA sales has caused their destruction by gross negligence or with intent and the buyer has ensured that these data can be reconstructed with reasonable effort from data material provided in machine-readable form. Claims for damages become time-barred within one year after delivery of the product.
§ 8 Duties of the customer
In the execution of all contracts the customer will support PiSA sales and provide all prerequisites to be created by him at his own expense, such as the timely provision of the necessary information and documents as well as the necessary hardware and operating system software, if applicable. For the contract about maintenance of software products there are special obligations to cooperate, which are regulated in this contract.
§ 9 Assignment / Retention / Offset
The customer is not entitled to transfer rights from contracts with PiSA sales to third parties without the written consent of PiSA sales. Due to possible counterclaims – also from previous transactions or other transactions of a current business relationship – the customer may neither refuse or withhold his payments nor set them off against counterclaims, unless these counterclaims are not disputed by PiSA sales and are due or have been legally established.
§ 10 Secrecy / Fiduciary duty
Both parties must treat all documents and information received for the performance of a contract as confidential for as long as they have not become generally known. These obligations shall remain in force as a whole even after the execution of a contract or the termination of the business relationship. PiSA sales keeps working documents and data provided by the customer with PiSA sales with its own usual care. The parties commit themselves not to entice away any employees from each other.
§ 11 Place of jurisdiction / Applicable law
The exclusive place of jurisdiction for both parties for all disputes arising directly or indirectly from the contractual relationship – including from documents, bills of exchange and cheques – is Berlin. The law of the Federal Republic of Germany shall apply exclusively. The application of the uniform law on the international purchase of movable goods is excluded.
§ 12 Severability Clause
If the present terms and conditions of business and the respective contracts based on them contain a gap or if a contractual provision is or becomes invalid in whole or in part, the terms and conditions of business and the contracts as a whole shall remain valid. If the present terms and conditions and the respective contracts based on them contain a gap or if a contractual provision is or becomes invalid in whole or in part, the content of the terms and conditions and/or contracts shall be governed by the statutory provisions. In place of the missing or invalid provision, a provision shall be deemed to have been agreed which comes as close as possible to the economic purpose originally intended by the parties or to the missing or invalid provisions. However, the terms and conditions of business and the respective contracts based on them shall be invalid in their entirety if adherence to them would constitute an unreasonable hardship for the contracting party, even taking into account the change provided for in the preceding section.
© PiSA sales GmbH 2020