Terms & conditions
Purchase and licensing contracts shall always come about between the customer and DriveConcepts GmbH. The following general terms and conditions shall apply for the contractual relationship.
Sec. 1 Scope
The following general terms and conditions shall apply for the sales and supply of software and services provided by DriveConcepts GmbH, Wettiner Platz 10, 01067 Dresden (hereinafter referred to as DriveConcepts). The customer’s general terms and conditions shall not apply as a result of failure by DriveConcepts to expressly refute them. Verbal ancillary agreements are not permitted.
Sec. 2 Conclusion of the contract
A software licensing, service and purchase contract shall be concluded through ordering on the part of the customer and order acceptance by DriveConcepts. It shall include the designations, type and number of licenses, products and services acquired.
Sec. 3 Payment conditions
Invoice amounts shall be due for payment without deduction 14 days after delivery of the performance (software and/or service) at the latest. They shall be subject to statutory value added tax.
Sec. 4 Delivery and delivery deadlines
(1) DriveConcepts shall deliver the goods in accordance with the description included in the quote.
(2) Agreed delivery deadlines may be extended by up to three months as a result of strikes, lock-outs and in cases of force majeure.
Sec. 5 Retention of title
(1) The goods delivered shall remain the property of DriveConcepts until full payment of all receivables resulting from this contract. If the buyer acts in breach of contract – in particular if they default on the payment of the claim for payment legally due –, DriveConcepts shall be entitled to repossess the reserved goods after DriveConcepts has given the buyer a reasonable period in which to provide payment.
(2) In the event that the software is provided as a download, DriveConcepts may, if the customer acts in breach of contract and after giving the customer a reasonable period in which to provide payment, demand deletion of the link and the software, as well as confirmation of this in writing.
(3) If DriveConcepts repossesses the reserved goods, this shall constitute withdrawal from the contract. The buyer shall bear any transport costs resulting from the repossession. If DriveConcepts seizes the reserved goods, this shall likewise constitute withdrawal from the contract. Reserved goods repossessed by DriveConcepts may be disposed of by DriveConcepts. The profits from disposal shall be used to settle those sums which the buyer owes to DriveConcepts, once DriveConcepts has deducted an appropriate sum for the costs of disposal.
(4) The buyer may use the goods delivered for the intended purpose. The buyer must take care of the goods delivered. It must insure them against fire damage, water damage and theft at its own expense, the insured sum being sufficient to cover the replacement value.
(5) In the event of seizure of the reserved goods by third parties or other third party interventions, the buyer must indicate DriveConcepts ownership and must immediately inform DriveConcepts in writing so that DriveConcepts property rights can be enforced. If the third party is unable to reimburse DriveConcepts for the judicial or extra-judicial costs incurred in this context, the buyer shall be liable for these costs.
Sec. 6 Warranty in the event of material defects of title
(1) The software shall be of the agreed quality and shall be suitable for the contractually agreed use, or in the absence of an agreement for the customary use. It shall fulfil the criteria for practical suitability and shall be of the quality which is usual for software of this type; however, it is not completely error-free. Functional impairment of the software resulting from hardware defects, environmental conditions, operating errors or similar shall not be considered to be a defect. A negligible reduction in quality shall not be taken into account.
(2) In the event of material defects, DriveConcepts may initially provide subsequent fulfilment. Subsequent fulfilment shall be done, at DriveConcepts discretion, through rectification of the defect, through delivery of software which does not have the defect, or through demonstration by DriveConcepts of options for avoiding the effects of the defect. At least three attempts at subsequent fulfilment shall be accepted owing to a defect. A new software version of equal value or the previous software version of equal value without the defect shall be accepted by the customer within reason.
(3) The customer shall assist DriveConcepts with error analysis and defect rectification by describing particular problems which occur in concrete terms, keeping DriveConcepts fully informed and giving it the time and opportunity required for defect rectification. DriveConcepts may carry out defect rectification on site or on its premises, at its own discretion.
(4) DriveConcepts may demand reimbursement of any costs incurred as a result of modification of the software, its use outside the specified environment, or improper operation of the software.
(5) DriveConcepts shall guarantee the contractual use of the software by the customer does not violate any third party rights. In the event of defects of title, DriveConcepts shall guarantee that it shall, at its discretion, provide to the customer either with a lawful way to use the software or with comparable software.
(6) DriveConcepts may demand reimbursement of expenses if no material defects or defects of title are found and the customer could not have raised the complaint without negligence. The burden of proof shall lie with the customer, Sec. 254 of the BGB (German Civil Code) shall apply accordingly.
Sec. 7 Liability
(1) In the event of damages caused by DriveConcepts, in cases of intent and gross negligence by DriveConcepts or its vicarious agents, DriveConcepts shall be liable in accordance with the statutory provisions.
(2) This shall also apply for damages caused by negligence from death, physical injury or harm to health.
(3) In the event of property damage and financial damages cause by negligence, DriveConcepts and its vicarious agents shall only be liable in the event of a breach of a fundamental contractual obligation, however the amount shall be limited to the damages, foreseeable when the contract is concluded, which are typical of the contract (fundamental contractual obligations are those which determine fulfilment of the contract and which the customer should be able to rely on).
(4) Potential liability in accordance with the Product Liability and Safety Act remains unaffected.
(5) Software products may contain data and legally binding standards for which the validity is limited in time or is replaced by revisions to be acquired.
(6) License terms may include different provisions with regard to the warranty (Sec. 6) and liability. These shall take precedence over these terms and conditions.
Sec. 8 Transfer, right to offset and right of retention
(1) Transfer or surrender of the claims, rights or obligations resulting from the contractual relationship by the customer requires prior written approval from DriveConcepts.
(2) Offsetting vis-à-vis DriveConcepts with the customer’s counterclaims or the withholding of payments by reason of such claims shall only be permitted if the counterclaims are undisputed or have been upheld by law.
Sec. 9 Applicable law
(1) These general terms and conditions and their interpretation shall be governed exclusively by German law.
(2) The provisions of the UN Convention on Contracts for the Sale of International Goods (CISG) shall not apply.
Sec. 10 Place of jurisdiction
If the customer is a business, the place of jurisdiction shall be the domicile of DriveConcepts GmbH.
Sec. 11 Severability clause
If a provision of this contract should be invalid, the validity of the rest of the contract shall remain unaffected by this. The invalid provision shall be replaced by a valid provision which reflects the economic intentions of the original provision as closely as possible.