(1) Unless otherwise agreed, payments shall be calculated according to expenditure at the prices of E-Patrol generally valid at the time of the contract being concluded. Payments are in principle net prices plus statutory VAT.
(2) E-Patrol may invoice monthly. If services are remunerated by expenditure E-Patrol shall document the form and duration of the activity and communicate this documentation with the invoice. All invoices are strictly payable 10 calendar days at the latest after receipt without any deductions and free of transaction charges.
(3) The client may only offset or exercise any retention right with legally undisputed or effective claims. The client may only retain payments due to defects to a reasonable extent taking into account the defect and only if the defect is proven without a doubt. The client has no retention right with respect to minor defects. The client has no retention right if its claim for defects has lapsed. There shall also be no right of retention for defects in case of immoderate or improper use, natural wear and tear, malfunction of components of the system environment, non-reproducible or otherwise not demonstrable by the client software bugs or of damage arising by virtue of particular external influences not foreseen in the contract. This also applies to subsequent modifications or repairs by the client or third parties, unless this does not complicate the analysis and rectification of a defect.
(4) E-Patrol reserves the title and rights to be granted on the services until complete payment of the amount owed, for which only justified retentions for defects within the limits specified in section 1 of these GCC are to be considered. Further, the supplier reserves the title and rights to be granted until all its claims from the business relationship with the client have been met.
(5) E-Patrol is entitled to deny the client further use of the services for the duration of a default of payment. E-Patrol may only assert this right for an appropriate period. This does not constitute withdrawal from the contract. Section 449 (2) BGB (German Civil Code) remains unaffected.
(6) If the client defaults on an instalment, E-Patrol shall be entitled to cease work until full payment of the instalment. Execution periods shall be extended accordingly including a reasonable re-induction phase.
(7) If the client or its customers return the services, receipt of the services shall not constitute withdrawal by E-Patrol unless the latter has expressly declared withdrawal. The same applies to the attachment of reserved goods or rights to said goods by the supplier.
(8) The client may neither pledge nor transfer items or rights under retention of title or legal reservations. The client shall only be permitted as a retailer to resell in the normal course of business under the condition that the client has effectively assigned its claims against its customers in connection with the resale to E-Patrol and that the client transfers title on condition of payment. In concluding the contract, the client assigns its claims in connection with such sales against its customers as security to E-Patrol, which simultaneously accepts this assignment. Insofar as the value of the security interests of E-Patrol exceeds the amount of the secured claims by more than 20%, E-Patrol shall release at client´s request a corresponding proportion of the security interests.
(9) In the event of the client becoming economically incapable to meet its obligations to E-Patrol, the supplier may terminate without notice existing exchange agreements with the client through withdrawal and long-term obligations through termination; this also applies to a filing for insolvency with regard to the client by the client or by third parties. Section 321 BGB and section 112 InsO (German Insolvency Statute) remain unaffected. The client shall inform E-Patrol in good time in writing of an impending insolvency.
(10) Fixed performance deadlines shall be agreed exclusively and expressly in text form. Agreement of a fixed performance deadline is under the proviso that E-Patrol receives the performance of its respective upstream suppliers in due time and that the client complies with its obligation to cooperate in full and in good time.
(1) The client and E-Patrol shall both appoint a responsible contact person, who shall be authorized to make legally binding declarations in reference to the contractual relationship for the contract partner concerned. Communication between the client and E-Patrol occurs, unless otherwise agreed, via these contact persons. The contact persons must immediately bring about all decisions concerned with implementation of the contract. It is obligatory to document decisions.
(2) The client is obligated to assist E-Patrol as far as necessary and to create all necessary conditions in its sphere of operation for proper job execution. For this purpose, it shall in particular provide necessary information an if required enable remote access to the client’s system. The client shall also ensure that specialist staff are available to assist E-Patrol. Insofar as it is agreed in the contract that services can be provided on-site at the client’s place of work, the client shall provide free of charge at E-Patrol’s request sufficient workplaces and equipment.
(4) The client undertakes to maintain secrecy on all activities and information concerning E-Patrol of which it becomes awarein the course of cooperation. This applies particularly but not exclusively to all information concerning the functioning, technical function or algorithms of the software. The client also undertakes to place its employees and other third parties under obligation of discretion. For every case of breach thereof, the client undertakes to pay irrespective of damage a contractual penalty of € 50,000.00. A further compensation claim remains unaffected.
(1) If events, for which E-Patrol cannot be held responsible, including strikes or lock-outs, adversely affect compliance with schedules (“disruption”), the schedule shall be postponed for the duration of the disruption, if necessary including a reasonable start-up phase. A contract partner shall inform the other contract partner without delay of the cause of any disruption occurring in its sphere of operation and of the length of the postponement.
(2) If the disruption increases costs, E-Patrol may charge for the additional expenditure.
(3) If the client has the right to withdraw from the contract due to inadequate fulfilment by E-Patrol and/or can claim damages instead of fulfilment or asserts this, upon the request of E-Patrol the client shall explain in writing within an appropriate period whether it asserts its rights or desires service provision to continue. In case of withdrawal, the client shall reimburse E-Patrol the value for previously existing possible use; the same applies to deteriorations as a result of proper use.
(4) If E-Patrol’s service provision is delayed, the client’s claim for damages and compensation by reason of the delay is limited to 0.5% of the price of the service that cannot be used by virtue of the delay for each completed week of the delay. Liability for the delay is limited to a maximum of 5% in total of this price. This does not apply insofar as a delay is the result of gross negligence or intent.
(1) The liability of E-Patrol within the scope of this contractual relationship is generally limited to intent and gross negligence. In case of injuries to life, limb or health, liability is limited to intent and negligence. Liability under the Product Liability Act remains unaffected. This liability is limited in case of material and financial damage to typical for the contract and foreseeable damage. This also applies to loss of profit and savings that have not come about. Liability for other remote consequential damage is excluded.
(2) For an individual case of damage, liability is limited to the contract value, in case of regular remuneration to the amount of the remuneration per contract year, but not to less than € 50,000. All claims lapse within six months of the time at which the client knew or should have known about the event giving rise to the liability.
(3) In case of loss of data E-Patrol is only liable for the expenditure necessary to restore the data in the event of the client having made a proper data backup. This liability only arises if the client has carried out proper data backup immediately before the action leading to the loss of data, unless the damage has been caused by E-Patrol through intent or gross negligence.
(4) E-Patrol is only liable for infringing third-party rights through its services insofar as the service is used in accordance with the contract and in particular in the operating environment prescribed in the contract. The supplier is only liable for infringements of third-party rights within the European Union and the European Economic Area as well as at the location of the use of the services in accordance with the contract. Section 4 of these GCC applies accordingly. In case a third party asserts to the client that a service of E-Patrol infringes its rights, the client shall inform E-Patrol of this immediately. The client is not entitled to acknowledge third-party claims before having given E-Patrol appropriate opportunity to ward off third-party claims by other ways and means.
(5) If third-party rights are infringed by any service, E-Patrol shall at its own discretion and at its own cost a) procure the client the right to use the service or b) design the service so as no longer to infringe any rights or c) take back the service and reimburse the payments made for it by the client (minus an appropriate amount for usage), if the supplier can achieve no other redress with reasonable expenditure. The interests of the client shall thereby be duly taken into account.
(1) The client shall report defects in writing immediately and in comprehensible and detailed form providing all relevant information for defect identification and analysis. It shall in particular specify the individual operations that led to the incidence of the defect, the manifestation and the effect of the defect.
(2) Claims are invalid for material defects for insignificant deviations of the products/services of E-Patrol from the contractually agreed properties. Claims for defects shall also be invalid in case of excessive or improper use, natural wear and tear, failure of components in the system environment, software defects which are not reproducible or otherwise demonstrable by the client, or in the event of damages arising from particular external influences not foreseen in the terms of the contract. This also applies to subsequent modifications or repairs by the client or third parties, unless this does not complicate the analysis and rectification of a defect.
(3) Claims due to a defect lapse within a year from the statutory limitation period. The legal periods for recourse action according to section 478 BGB remain unaffected; the same applies insofar as the law under section 438 (1) no. 2 BGB (buildings and things for buildings) prescribes longer periods, for intentional or grossly negligent violation of obligation by the supplier, for fraudulent concealment of a defect or in cases of injury to life, limb or health. The handling of a notified material defect of the client by E-Patrol only leads to a suspension of limitation insofar as the statutory requirements for this are in place. This does not lead to a recommencement of the statute of limitations.
(4) A supplementary performance (replacement or repair) may only affect the limitation of the defect causing the supplementary performance. E-Patrol may require reimbursement of its outlay, insofar as a) E-Patrol takes action on account of a report, without a defect being present, unless the client could not recognise with reasonable effort that no defect was present, or b) a reported disruption is not reproducible or otherwise demonstrable as a defect by the client, or c) additional expenses accrue due to improper fulfilment of the client’s cooperation obligations.
(5) E-Patrol shall not be liable for defects resulting from planning, unless E-Patrol has culpably omitted to indicate the planning error to the client.
(6) E-Patrol undertakes to repair recognised software defects. In case of definite failure of the supplementary performance, the client shall be entitled to reduce payment or withdraw from the contract. Further rights of the client are excluded, regardless of the legal ground and regardless of the nature of the breach of duty. This limitation of liability does not apply insofar as the claims of the client are based on intentional or grossly negligent action by E-Patrol, lead to damages to life, limb or health, or are based on the absence of guaranteed properties or on the Product Liability Act.
(1) The client shall be responsible for observing import and export regulations applying to the deliveries or services, in particular those of the USA. The customer shall bear any customs duties, fees and other payments arising in the event of any crossborder delivery or service. Unless otherwise expressly agreed, the client shall on its own authority deal with legal or official procedures in connection with cross-border deliveries or services.
(2) Client terms and conditions shall not apply, even if E-Patrol has not expressly objected to them. Acceptance of the services by the client is deemed to be acceptance of the GCC of E-Patrol to the exclusion of client’s own general terms and conditions. Other conditions are only binding if E-Patrol has acknowledged them in writing; in addition the GCC of E-Patrol shall then apply.
(3) If E-Patrol amends its GCC in the course of a continuing obligation, E-Patrol shall immediately inform the client of these amendments. The client accepts these amendments if it does not object to them in writing within two weeks or accepts service by E-Patrol without objection. Such an amendment also expressly applies if a written-form clause has been agreed in the respective contract.
(4) The client agrees to be named as a reference. This agreement can be revoked in writing at any time giving a reasonable period to remove the reference.
As at: 1st June 2009