Terms and Conditions
These Terms and Conditions form the basis of contract. Contracts regarding software, software maintenance and other services are only concluded on the basis of these terms. Therefore, they also apply to all future services and deliveries, even if they are not expressly agreed. These terms are deemed accepted latest on acceptance of our delivery. We hereby expressly object to any terms of delivery or terms and conditions of the customer.
1. Conclusion of contract
Our offers are subject to change. Orders and verbal agreements will only be deemed binding if and insofar as we confirm them in writing or by form or by sending you the goods and the invoice. Programmes remain our property, even after a license fee has been paid. By paying the license fee the customer obtains the non-exclusive and non-transferable license to store and use the software electronically on one computer system. The customer will keep the software in the strictest confidence and take all necessary precautions to protect it from unauthorised access. The customer may not copy the software wholly or in part without prior written consent. The procurement of the source code by reverse engineering or other method of software manipulation is strictly and expressly prohibited. Disclosure to third parties is prohibited. We reserve the right to levy a penalty for contract violation in the amount of EUR 25,000 for each infringement without prejudice to claims for damages. The service owed is deemed performed if the delivered goods are materially as specified in the contract and materially fulfil the agreed functions.
2. Prices and terms of payment
All prices ex stock from Gelsenkirchen, but only packaging, carrier, issuing and commissioning costs. The prices are based on labour, material and delivery costs applicable at the time of order confirmation. Invoices are payable due net on delivery insofar as no other payment terms have been agreed in writing. Invoice totals and credit totals are deemed accepted if no written objection is made within four weeks. The customer is only entitled to set off if their counterclaim is undisputed or has been upheld in a court of law. If the customer defaults on payment, we are entitled to charge interest at the interest rate charged by business banks for overdraft facilities, but no less than 8% above the applicable Bundesbank bank rate.
3. Delivery times and delivery
We endeavour to observe specified delivery dates. However, delivery dates will only be deemed binding if they have been expressly confirmed in writing. Force majeur (including disruption in operations) will not constitute a delay in delivery. The buyer may stipulate a reasonable grace period six weeks after a non-binding delivery date
has been exceeded, which will begin when we receive notification of said grace period. If we exceed a delivery date agreed in writing, the customer may withdraw from the contract or claim compensation for non-fulfilment in accordance with the following provision. Customers may only assert claims for compensation arising out of a delay in delivery if binding delivery dates were not observed due to demonstrable intent or gross negligence on the part of UIG, or after the customer's grace period has elapsed without a result. Extended liability under §287 BGB [German Civil Code] is excluded. Claims for compensation will lapse after six months. The customer's right to withdraw from the contract as per the legal provisions in lieu of the right to compensation for late delivery remains unaffected. Delivery will be made on the customer's account and at customer's risk. Any visible damage to the goods must be reported to Bahnpost or the carrier immediately, who will then issue a factual report. Packaged goods must be checked immediately. Any obvious damage discovered when doing so must be reported in writing within two days. The damaged goods may only be returned following a prior agreement. If the customer fails to observe the above measures, any claims against us will lapse.
4. Retention of title
We retain ownership of all goods delivered until all outstanding receivables including any additional receivables have been paid in full. In order to secure all of our receivables, when concluding the contract the business partners assign in advance all rights to us that they are entitled to when selling our property to third parties. We accept this assignment. The customer is obliged on request to send us an exact list of all receivables to which we are entitled. Furthermore, the customer is obliged to provide us with all information necessary to enforce our claim to the assigned receivables. The customer bears the risk of damage to the goods or loss due to theft. An enforcement of this retention of title does not constitute a withdrawal from the contract. However, after an acceptable period has lapsed, we are entitled to other disposition of the goods regarding which we asserted our retention of title, and to deliver to the customer comparable goods once the purchase price has been paid in full. Subject to repeal and the limits of ordinary business, the customer is only entitled to dispose of goods that are our property. However, the customer is not entitled to the transfer, assignment as security, assignment, pledge, or conclusion of factoring contracts of any kind, or sale of the receivable to buyers who, when reselling, exclude the assignment in advance. These manner of dispositions are only permitted with our written consent. If goods subject to retention of title are accessed by third parties, the customer will advise them of our property rights and notify us immediately.
If the customer is required to pay damages due to non-fulfilment, the lump sum amount of damages will be 25% of the invoice total. We will bear the burden of proof for any higher damage, the customer will bear the burden of proof for any lower damage.
6. Information and advice
Information on options for processing and using our products must be confirmed by us in writing if and insofar as it differs from the information on the product.
Any warranty will become void if the customer or a third party commissioned by the customer makes any changes to or does any maintenance work on the deliverable. The warranty period is six months. We provide warranty through subsequent delivery or substitute delivery free of charge. If subsequent delivery fails within six months after receipt of the written complaint, the customer will be entitled to request mitigation or annulment. Any claims to compensation for collateral damages, such as due to loss or defective processing of data, are excluded, irrespective of legal basis. This also applies to claims resulting from negligence during conclusion of contract, positive breach of contract or non-contractual liability. This does not apply if statutory liability is stipulated in cases involving intent, gross negligence or the lack of promised properties. UIG will only be liable for the manufacturing costs in each case.
Verbal collateral agreements, assurances and amendments to the contract will only be deemed binding if confirmed by us in writing; this applies in particular to a waiver of the written requirement. If one or more of the above terms is or becomes invalid, this will not affect the validity of the remaining terms. The invalid term will be replaced by an effective term that achieves the economic purpose of the former as best as possible. The legal relationship between the parties to the contract is subject to German law, also in cross-border transactions. Munich is the place of fulfilment. If the customer is a business person, corporate body under public law or special fund under public law, the jurisdiction for all disputes arising out of this business relationship will be Munich, Germany.
UIG - United Independent Entertainment GmbH