1. Validity of general business terms and conditions

 

These general business terms and conditions apply to all contracts concluded between proWare Solutions GmbH and the buyer as well as to all other agreements made within the framework of the business relationship. General terms and conditions of the customer are only recognized by express written agreement. In the event that the customer does not want to accept the following general business terms and conditions, he shall give proWare Solutions GmbH prior written notification accordingly.

 

2. Prices and terms of payment

All invoices of proWare Solutions GmbH are payable within 14 days from the invoice date. Decisive is the date of receipt of payment by proWare Solutions GmbH. In the event of default, proWare Solutions GmbH is entitled to withhold further deliveries and services.
In the event of default of payment by the customer, proWare Solutions GmbH is entitled to charge interest in the amount of 5% above the current base interest rate.

All prices are quoted plus the respective value added tax.
proWare Solutions GmbH is entitled to make partial deliveries.

 

3. Delivery and shipment

All offers are subject to amendment. The delivery of goods is subject to availability. All delivery dates quoted by proWare Solutions GmbH are non-binding delivery dates, unless a delivery date is expressly agreed in writing. If the buyer demands changes or additions to the order after the order has been placed, or if other circumstances make it impossible for proWare Solutions GmbH to comply with the delivery date, even though proWare Solutions GmbH is not responsible for these circumstances, the delivery date will be postponed for a reasonable period. If proWare Solutions GmbH is prevented from fulfilling a contract within the agreed time, e.g. for reasons of procurement,  manufacturing or delivery disruptions by proWare Solutions GmbH or its sub-suppliers, the general legal principles apply with the proviso that the customer can set a grace period of six weeks after the expiry of one month.  If the failure to comply with a binding delivery date is demonstrably due to mobilization, war, riots, strike or lock-out or to other circumstances not attributable to proWare Solutions GmbH under general legal principles, the delivery period shall be reasonably extended. The customer can withdraw from the contract if he sets a reasonable grace period for proWare Solutions GmbH after expiry of the extended deadline. The withdrawal must be made in writing if proWare Solutions GmbH does not fulfill within the period of grace. If the fulfillment of the contract becomes completely or partially impossible for proWare Solutions GmbH due to the before mentioned reasons, it will be released from its obligation to deliver.
The costs of shipping and transport insurance are always borne by the customer, whereby the choice of the shipping route and the shipping method are at the discretion of proWare Solutions GmbH. The customer is obligated to inspect the goods immediately upon arrival and to notify proWare Solutions GmbH in writing of any visible transport damages and any damage to the packaging. This shall also apply in case of any hidden damages. If proWare Solutions GmbH loses its claims versus the insurance or the sub-supplier due to the failure to fulfill this obligation, the customer shall be liable for all costs resulting from this breach of duty. The risk passes to the customer as soon as the goods leave the factory or warehouse of proWare Solutions GmbH.

 

4. Reservation of title

The delivered goods remain the property of proWare Solutions GmbH until full payment of all claims of proWare Solutions GmbH from the business relationship with the customer in the main and secondary matter. The customer is obliged to properly insure the items under the retention of title of proWare Solutions GmbH (i.e. theft, fire, water and low-current insurance) and to prove such insurance to proWare Solutions GmbH upon request. In case of damage, the insurance claim of the customer shall be deemed assigned to proWare Solutions GmbH. The customer shall not be entitled to dispose of the items subject to retention of title. In case of attachments or seizures, the customer must immediately inform proWare Solutions GmbH in writing and must immediately inform third parties of the reservation of ownership of proWare Solutions GmbH in a suitable form. Should the customer, however, sell the delivery items and proWare Solutions GmbH should approve to this, the customer assigns proWare Solutions GmbH all claims against his customers upon conclusion of the contract. The customer is obliged to provide proWare Solutions GmbH with all information necessary to assert these rights and to provide the necessary cooperation.

 

5. Limitation of liability

proWare Solutions GmbH is liable for intent and gross negligence in accordance with the statutory provisions. In the event of slight negligence, proWare Solutions GmbH is only liable if a material contractual obligation (cardinal obligation) is violated or if there is a case of default or impossibility. In case of a liability arising from slight negligence, this liability is limited to losses which were predictable and/or typical. Liability for the lack of guaranteed properties, for malice, for personal injuries, and for defects in title according to the Product Liability Act and the Federal Data Protection Act remains unaffected.
In the case of a warranty or liability being made against proWare Solutions GmbH, a contributory negligence of the customer is to be considered adequately, in particular with insufficient error messages or insufficient data security. Insufficient data protection applies, in particular, if the customer has failed to take precautions by appropriate state-of-the-art safeguards against external influences, in particular against computer viruses and other phenomena that can jeopardize individual data or a complete database.

 

6. Warranty for hardware

proWare Solutions GmbH warrants that the goods are free from defects that delete or diminish the value or suitability for normal or contractual use.
proWare Solutions GmbH and the customer agree that explanations and descriptions contained in the manual and/or in the price list of both the hardware and the software do not constitute an assurance of certain characteristics.
The warranty period is twelve months and begins on the day of delivery. If the customer is a consumer in the sense of the Civil Code, the warranty period is two years. Defects occurring during the warranty period must be reported immediately to proWare Solutions GmbH in writing. The warranty does not cover the removal of defects caused by normal wear, external influences or operating errors. Warranty shall lapse if the customer changes devices, elements or additional devices without the consent of proWare Solutions GmbH or has them modified by third parties, unless the customer provides full proof that the defects still at issue have not been caused entirely or partly by such changes and that the remedy of defects is not impeded by the change.
If the notice of defects proves to be justified, the customer shall provide proWare Solutions GmbH with a reasonable period for supplementary performance. The customer informs proWare Solutions GmbH which kind of supplementary performance – improvement of delivered or delivery of a new, faultless item – he wishes. However, proWare Solutions GmbH is entitled to refuse the chosen supplementary performance if it can only be carried out at disproportionate costs and if the other type of supplementary performance would not entail any significant disadvantages for the customer. In addition, proWare Solutions GmbH may refuse supplementary performance on the whole if it can only be performed at disproportionate costs.
In order to carry out the supplementary performance for the same or directly related defect, proWare Solutions GmbH shall have two attempts within the deadline set by the customer. Should the second attempt fail, the customer is entitled to withdraw from the contract or reduce the price. The right to withdrawal or reduction may be exercised right after the first unsuccessful remedy attempt, if it is not reasonable to expect the customer to wait for a second attempt within the fixed period. If the supplementary performance was refused under the conditions set out above, the customer is entitled to the right of reduction or withdrawal immediately.
Withdrawal on account of a trivial defect is excluded.
If a defect occurs as a result of an incorrect or not updated driver, the customer grants proWare Solutions GmbH the right to deliver a functional driver within 10 days of notification to proWare Solutions GmbH.
If the customer claimed proWare Solutions GmbH because of warranty and it turns out that either there is no defect or that the defect asserted does not oblige proWare Solutions GmbH to provide a warranty, then the customer must pay for all expenses incurred to proWare Solutions GmbH, provided he has used the warranty of proWare Solutions GmbH grossly negligent or intentionally.
The delivery of a user manual in English is permitted if the subject of the contract has not yet been completely localized for the respective market. The same shall apply if the subject of the contract is generally only available in English.

 

7. Warranty for software

The customer will inspect the software immediately after delivery and promptly notify the seller of any obvious faults in writing.
For a period of twelve months from the time of delivery, proWare Solutions GmbH guarantees that the software basically corresponds to the program description in the accompanying written material. If the customer is a consumer in the sense of the Civil Code, the warranty period is two years.
If a defect occurs, the defect and its manifestation shall be described in a written notification of defects so accurately, that a verification of the defect (e.g. submission of the error messages) is feasible and the exclusion of an operating error (e.g. specification of the working steps) is possible.
If the notice of defects proves to be justified, the customer shall provide proWare Solutions GmbH with a reasonable period for supplementary performance. The customer informs proWare Solutions GmbH which kind of supplementary performance – improvement of delivered or delivery of a new, faultless item – he wishes. However, proWare Solutions GmbH is entitled to refuse the chosen supplementary performance if it can only be carried out at disproportionate costs and if the other type of supplementary performance would not entail any significant disadvantages for the customer. In addition, proWare Solutions GmbH may refuse supplementary performance on the whole, if it can only be performed at disproportionate costs.
In order to carry out the supplementary performance for the same or directly related defect, proWare Solutions GmbH shall have two attempts within the deadline set by the customer. Should the second attempt fail, the customer is entitled to withdraw from the contract or reduce the price. The right to withdrawal or reduction may be exercised right after the first unsuccessful remedy attempt, if it is not reasonable to expect the customer to wait for a second attempt within the fixed period. If the supplementary performance was refused under the conditions set out above, the customer is entitled to the right of reduction or withdrawal immediately.
If a defect occurs as a result of an incorrect or not updated driver, the customer grants proWare Solutions GmbH the right to deliver a functional driver within 10 days of notification to proWare Solutions GmbH.
Withdrawal on account of a trivial defect is excluded.
If the customer claimed proWare Solutions GmbH because of warranty and it turns out that either there is no defect or that the defect asserted does not oblige proWare Solutions GmbH to provide a warranty, then the customer must pay for all expenses incurred to proWare Solutions GmbH, provided he has used the warranty of proWare Solutions GmbH grossly negligent or intentionally.
No liability shall be assumed with regard to the suitability of the software for the customer’s objectives and its compatibility with the software available to the user.
The delivery of manuals and documentation beyond the written material/program description supplied with the software and the user guidance and/or online help implemented in the software, or an instruction is only owed if this has been expressly agreed in writing between the parties. In the case of such express agreement, the content, language and scope of any expressly provided manual and/or documentation are not met and the delivery of a quick reference guide is sufficient unless the parties have agreed additional specifications in writing.
The delivery of a user manual in English is permitted if the subject of the contract has not yet been completely localized for the respective market. The same shall apply if the subject of the contract is generally only available in English.

 

8. Confidentiality

proWare Solutions GmbH and the customer mutually agree to keep secret all business and trade secrets of the other party for an indefinite period of time and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information received by the other contracting party based on the business relationship may only be used by them within the framework of the respective contractual purpose.

 

9. Proof clause

Data stored in electronic registers or otherwise in electronic form at proWare Solutions GmbH are considered as admissible evidence for the proof of data transmissions, contracts and executed payments between the Parties.

 

10. Property rights

Without the express permission of proWare Solutions GmbH, the buyer is not permitted to export the goods purchased from proWare Solutions GmbH to countries outside the European Community. In addition, the buyer must observe all relevant export regulations, in particular those according to the German Foreign Trade Ordinance and, if applicable, regulations under US law.

 

11. Export

The Buyer acknowledges that the resale of any products imported from the US is subject to the United States Export Control Regulations, which restrict the export and re-import of hardware, software, technical data carriers and direct products of technical data carriers, including services related to the use of these products. The Buyer agrees that he will not export or further export, directly or indirectly US-imported products, information or documentation related thereto to any country or end-user, without first having obtained the necessary approval from the competent authority. Required is the approval of the US “Department of Commerce”, department for the administration of export affairs, or an equivalent department. The same applies to all uses by the end user, which are limited by US regulations. These provisions apply in particular to countries subject to restrictions:
Cuba, Haiti, the rest of Yugoslavia (Serbia and Montenegro), Iran, Iraq, North Korea, Syria and Vietnam;
End users for whom restrictions apply:
All end users that the Buyer knows or has reason to believe that the products imported from the US are for the design, development or production of rockets and/or in rocket technology, are in connection with nuclear weapons or are used in chemical and biological weapons;
End use for which restrictions apply:
Any use of products imported from the United States in connection with the design, development or production of rockets or rocket technology, nuclear weapons or weapons technology or chemical and biological weapons.

 

12. Other

Should individual provisions of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Much rather, the invalid provision shall be replaced by that which comes closest to the intended purpose.
Additional agreements have not been made. Supplements to the contract shall only become effective if they are confirmed in writing.
The customer may assign his rights arising from a business relationship with proWare Solutions GmbH only with the written consent of proWare Solutions GmbH. The customer may only offset against a purchase price claim with approved or legally enforceable counterclaims.
As far as permitted by law, the place of jurisdiction shall be at the headquarters of proWare Solutions GmbH (Nuremberg) in the Federal Republic of Germany. German law shall apply exclusively.