General Terms & Conditions
1. Applicability
1.1
The following General Terms and Conditions (hereinafter called “General Terms and Conditions”) shall apply to companies for all goods supplied and services rendered by TomTec Imaging Systems GmbH (hereinafter called “TomTec”), except software maintenance services. Such software maintenance services rendered by TomTec are based upon the “General Terms and Conditions for Software Support and Maintenance”. Inasmuch as deviating contractual regulations have been agreed, these shall prevail over the General Terms and Conditions. The version of the General Terms and Conditions valid at the time of the execution of the contract will be binding.
1.2
Without any further express agreement, their applicability also refers to future business between TomTec and the customer.
1.3
TomTec`s General Terms and Conditions are exclusively applicable. General terms and conditions of the customer or of any third party shall only be valid, if TomTec explicitly agrees to them in writing. If the customer does not agree to TomTec`s General Terms and Conditions, he will have to inform TomTec immediately in writing of such disagreement. In the event of such disagreement, TomTec reserves the right to withdraw its offer, without any liability. TomTec herewith rejects any standard terms and conditions of the customer and/or any third party that are also declared applicable.
2. Scope of Delivery and Services
2.2
In addition to the installation of the software products, TomTec provides the introduction, maintenance and training required to be able to guarantee a qualified handling of the software products.
2.3
Source code of the software is not part of the scope of delivery and services.
2.4
The characteristics of the software solutions are exhaustively specified in the supplied documentation and in the description or documentation provided to the customer by TomTec prior to the execution of the contract. Characteristics in excess thereof shall only become valid, if expressly agreed to in writing.
3. Rights in the software products
3.1
TomTec grants the customer a single-user, non-exclusive license for the contractual software and the respective documentation.
3.2
The customer is only authorized to grant sublicenses if such an authorization has been expressly agreed upon in writing.
3.3
By granting a license, the customer is authorized to use the software on the hardware that is available to him as well as to create a backup copy. The customer is not allowed to reverse engineer, decompile, disassemble or make other changes or interventions in the software, except and only to the extent that such activity is expressly permitted by applicable law.
4. Terms and conditions of delivery
4.1
Deliveries by TomTec are subject to FCA Unterschleissheim Incoterms 2000, unless any other agreements have been made in writing.
4.2
Time periods for delivery and performance which are stated by TomTec are without obligation, unless their binding force has expressly been agreed upon.
4.3
TomTec is authorized to carry out partial supplies to an extent reasonable for the customer.
5. Terms and conditions of payment
5.1
Our prices do not include VAT. The prices are stated in our offer which we will send to the customer on request. Training and instructions are invoiced separately.
5.2
The total invoice amount is payable without deductions subsequent to receipt of invoice.
5.3
If the customer is in default of payment, TomTec will be entitled to charge default interest at the rate of 8 % above the basic interest rate. In cases of repeated default of payment, TomTec reserves the right to carry out orders partly only against cash in advance. All other rights remain unaffected by this.
6. Acceptance of Software
6.1
On the acceptance of the software, the customer has to examine, as far as possible, and to confirm in writing the contractual and duly rendering of the ordered and supplied software.
6.2
The use of the subject matter of the contract without reservation, however, represents an acceptance. The acceptance is considered to be granted if the customer does not inform TomTec of any substantial defects within 30 working days of the handing over of the subject matter of the contract.
7.Offset and retention of title
7.1
The customer can only offset such amounts which have been undisputedly determined by TomTec or established as legally binding.
7.2
The customer may only exercise his retention rights if his counterclaim is based on the same contractual relationship.
8. Intellectual property
8.1
The software products supplied by TomTec are the intellectual property of TomTec and protected by copyright, patent rights and other property rights.
8.2
All rights, title and interest to the software products (and all copies thereof) – especially author’s rights, rights to inventions as well as proprietary rights shall remain vested exclusively in TomTec, if not explicitly granted to customer. This is also applicable for derivative works of the software products made by TomTec. The ownership rights of the customer on the respective data carrier remain unaffected.
8.3
The customer shall not be allowed to remove or change any copyright notices or numbers of TomTec on the software product.
8.4
Should third parties claim infringements on proprietary rights as, for example, patent or author’s rights towards customers through the use of TomTec software, the customer must undertake to inform TomTec within 14 days thereof. Furthermore, the customer undertakes to support TomTec to a reasonable extent in the defence of his rights.
8.5
Section 10 is to be applied for the warranty of title and its statute of limitations accordingly.
9. Confidentiality and Data Protection
9.1
The customer undertakes to treat confidential information which is disclosed to him in the course of the business relationship of TomTec with their customer as confidential. Any such information must not be disclosed to third parties. Confidential information is, in particular, product specifications, technical information, documentation as well as information marked as confidential.
9.2
The following information is considered to be non-confidential: (i) Information which has already been made public to a broad extent at the time of its disclosure, (ii) Information which is made public to a broad extent at the time of disclosure, unless a breach of contract by customer takes place, (iii) Information which became known to the customer in written form through daily business before its disclosure; or (iv) Information, which, at the time of disclosure, is received by customer from the third party that legally owns it. This does not include information which has been received by an infringement of contract, or legal or trust obligations.
9.3
The customer will inform his employees about the confidentiality of the information according to Paragraph 9.1. and to oblige them to maintain secrecy.
9.4
After a written request by TomTec the customer must return all materials which contain or present confidential information within a reasonable period.
9.5
TomTec will comply with all applicable laws and regulations relating to the protection of data, notably in the event customer provides access to its place of business or to its hard- and software to TomTec. TomTec will ensure that its employees and/or agents having access to any personal data are bound by these terms as well. TomTec has no intention to process or use personal data on behalf of the customer. A transfer of personal data only occurs in exceptional cases as a result of the contractual obligations of TomTec. Personal data will be treated in accordance with all applicable laws and regulations relating to the protection of data.
10. Warranty
10.1
TomTec warrants supplies and services free of defects, so that the agreed utilisation of the software product is enabled. We would like to point out that defects cannot be avoided in software products despite utmost care. TomTec will only be under the obligation to assume liability for defects which considerably impair the contractually presumed utilization of the product.
10.2
The guarantee of properties as well as declaration for the undertaking of guarantees by TomTec must be expressly agreed upon in writing.
10.3
In cases of faulty delivery and/or service, TomTec commits itself to supplementary delivery or service, which consists, at the option of TomTec, of the delivery of a fault-free product and/or the production of a new work or the removal of the defect.
10.4
The customer undertakes to notify TomTec of any obvious defects within a period of two weeks. TomTec should be notified of any hidden defects on their discovery.
10.5
If the supplementary delivery or service fail or if it is rejected by TomTec due to relatively high costs or if the supplementary delivery or service is not reasonable for TomTec, the customer is entitled, at his discretion, to withdraw from the contract or to demand a reduction.
10.6
Unless failure of the obligation to supplementary delivery or service occurs, the customer is not entitled to remove defects himself or to demand from TomTec reimbursement for any expenses incurred.
10.7
Any warranty by TomTec is excluded in the following cases
- Errors which are caused by the influence of force majeure or other external influences,
- Errors caused by the improper utilisation of the product, in particular by non-observance of the warnings in the documentation or the intended use,
- Errors caused by improper interventions by the customer (e.g. modifications, additions or deletions),
- Errors caused by the repair of the products by the customer or third parties, and
- Errors for which TomTec is not responsible,
10.8
The customer undertakes to ensure that staff handling software products are familiar with the corresponding documentation.
10.9
The warranty obligation for material defects and defective titles which exist at the time of the transfer of risk is subject to a statutory period of limitation of 12 months after the passing of risk.
10.10
In the case of deceitful concealment of a defect by TomTec, TomTec will be liable without limitation. The statutory periods of limitation will apply.
10.11
In the case of further claims, in particular for compensations, the limitations of Figure 12 will apply accordingly.
11. Duty to Cooperate
11.1
In the event TomTec undertakes more services than the supply of the software products (inter alia installation and training), the customer is under the obligation to cooperate –free of charge-, inter alia to provide a place to work, hard and software, data and telecommunication advices and employees.
11.2
The customer allows TomTec and its employees a free access to the software products to identify and remedy defects either directly or via remote access, as the customer may choose. TomTec shall be authorized to audit if the use of the software products is in compliance with these General Terms and Conditions and its documentation. For this purpose, TomTec shall be allowed to ask for information, especially about period and scope of usage of the software products, to audit the books and records and the hard- and software of the customer. Therefore customer will provide TomTec access to its place of business during costumer’s normal business hours.
11.3
The customer shall be responsible for taking appropriate precautions for the event that the software product or parts thereof do not work correctly (inter alia back up data on a daily basis, analysing disturbances, periodically assessment of the result of the data processing).
11.4
TomTec may act on the assumption that all data of the customer, TomTec gets in touch with are backed up, unless a prior advice of the customer expressly states otherwise.
11.5
The customer shall bear all expenses and disadvantages due to a breach of these obligations by customer.
12. Liability
12.1
TomTec, their legal representatives and assistants are only liable for damage in cases of wilful and grossly negligent breaches of duty.
12.2
The liability for damages from the negligent breach of an essential contractual duty is excluded from paragraph 12.1. Essential contractual duties are obligations whose fulfilment are the basis for the due implementation of the contract and whose fulfilment the customer trusts in a particular manner. This liability, however, is restricted to the predictable, typical damage.
12.3
TomTec`s liability is unlimited for the loss of life, injuries and damage to health. The same applies for the liability according to product liability law, deceitful concealment of a defect by TomTec, on taking-over of a procurement guarantee as well as according to other obligatory cases of liability.
12.4.
TomTec accepts liability for the loss or destruction of data only if such loss or destruction is the result of wilfulness, gross negligence or the negligent breach of an essential contractual duty on the part of TomTec and customer ensured that the lost data consisting of data material kept in machine-readable format can be reconstructed with reasonable efforts.
12.5
Liability in cases of damage caused by force majeure is excluded. Any liability for further damages is excluded.
12.6
Any liability for further damages is excluded.
13. Export regulations
13.1
If the export of contractual objects and documents is subject to approval or registration provisions, the customer is exclusively responsible for fulfilling such provisions.
13.2
The customer must inform TomTec about such approval and registration regulations as well as providing TomTec with information on the fulfilment of such formal requirements.
14. Final provisions
14.1
German law is applicable under exclusion of its law of conflict and the convention of the United Nations on contracts for the international sale of goods (CISG).
14.2.
The place of performance and legal venue is Munich, Germany. However, TomTec is entitled to bring an action against customer at any other legal venue provided by law.
14.3.
Amendments, supplements, as well as subsidiary agreements for these General Terms and Conditions must be made in writing. Any agreement on the reversal of the requirement of the written form must also be completed in writing.
14.4.
Should one or several provisions of these General Terms and Conditions become fully or partially legally invalid, this will not affect the validity of the other provisions. The ineffective provisions will be replaced retroactively by a provision whose contents are almost identical and which is as close as possible to the intended purposes of the provision.
02/2009
