General Terms and Conditions

As of 08-2009

The following General Terms and Conditions (hereinafter referred to as "Terms") apply to all business relationships between us, AURON GmbH (hereinafter also referred to as the "Provider"), and the customer. The version valid at the time the contract is concluded shall apply in each case.

A. General Provisions

1. General

1.1 Our terms and conditions apply exclusively. Conflicting terms and conditions of our contractual partners or third parties are only valid if we expressly agree to their validity in writing. If our customer does not agree with this, they must notify us immediately in writing. In this case, we reserve the right to withdraw our offers without any claims of any kind being raised against us. We hereby expressly object to any formulaic reference to the customer's own terms and conditions.

1.2 Our Terms apply only to businesses within the meaning of Section 310(1) of the German Civil Code (BGB), legal entities under public law, and special funds under public law.

1.3 In addition to the General Provisions (Sections 1 to 6), the provisions contained in Sections 7 to 15, "B. Supplementary Terms for the Sale of Hardware and/or Software (Merchandise)", apply insofar as the sale of hardware and/or software is the subject of the contractual agreement with the customer, and the provisions contained in Sections 16 to 20, "C. Supplementary Terms for Services and Work Performance", apply insofar as the provision of services and/or work performance is the subject of the contractual agreements with the customer.

1.4 If the terms in various documents contradict one another, the provisions shall apply in the following order: individual contractual agreements, the service description, these General Terms and Conditions (hereinafter also referred to as "Terms"), and finally the statutory provisions.

2. Subcontractors

Unless otherwise agreed between the parties, the Provider is entitled to engage subcontractors to fulfil its service obligations.

3. Data Protection

The collection, processing and use of the customer's personal data for marketing purposes requires the customer's consent. If the customer has given their consent, they have the right to revoke this consent at any time with effect for the future.

4. Place of Jurisdiction, Set-Off and Rights of Retention, Exclusion of the CISG

4.1 If the customer is a merchant or a legal entity under public law, the place of jurisdiction is the Provider's place of business (head office) in the Federal Republic of Germany; the same applies if the customer has no general place of jurisdiction in Germany. The Provider is further entitled to sue the customer at the customer's place of residence.

4.2 The customer may only set off claims against the Provider's claims that have been acknowledged by the Provider or established with final legal effect. The exercise of a right of retention that is not based on a right arising from this contractual relationship is invalid.

4.3 This contract is governed by German law, excluding the provisions of private international law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

5. Export Clause

The Provider is entitled to refuse performance of this contract and to withdraw from the contract if performance of the contract would violate export regulations.

6. Other Provisions / Severability Clause

Should individual provisions of the contract with the customer, including these Terms, be or become invalid, this shall not affect the validity of the remaining provisions. The provision that is wholly or partly invalid shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.

B. Supplementary Terms for the Sale of Hardware and/or Software (Merchandise)

Insofar as the Provider sells hardware or software (merchandise) to the customer, the following provisions of Sections 7 to 15 apply in addition to "A. General Provisions" (Sections 1 to 6):

7. Scope of Delivery

7.1 The delivery of the hardware or software is carried out by the Provider in accordance with the delivery terms agreed with the customer in each case. Unless otherwise individually agreed with the customer, the delivery obligation does not include the installation or configuration of the hardware or software at the customer's premises, nor the training of the customer's employees in the use of the hardware or software, nor the provision of maintenance or support services. 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 on-site briefing, is only owed if this has been expressly agreed in writing between the parties. In the event of such an express agreement, no requirements regarding the content, language and scope of a manual and/or documentation to be expressly delivered have been made, and the delivery of a quick start guide is sufficient, unless the parties have agreed further specifications in writing. Delivery of an operating manual in English is permissible if the contractual item has not yet been fully localised for the respective market. The same applies if the contractual item is generally only available in an English-language version.

7.2 In the case of the provision of software, the source code is not part of the delivery obligation.

7.3 In the case of the delivery of software, the scope of the licence and scope of use are determined by the licence terms of the respective software manufacturer.

8. Delivery / Self-Supply / Force Majeure

8.1 Compliance with our delivery obligation presupposes the proper and timely fulfilment of the customer's obligations by the customer. The Provider reserves the right to raise the defence of non-performance of the contract.

8.2 If the customer defaults in accepting delivery, or culpably breaches other obligations to cooperate, we are entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved.

8.3 If the conditions of Section 8.2 are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the point in time at which the customer defaults in acceptance or as a debtor.

8.4 The Provider is liable in accordance with statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 286(2) No. 4 BGB or Section 376 of the German Commercial Code (HGB). The Provider is also liable in accordance with statutory provisions if, as a result of a delivery delay for which the Provider is responsible, the customer is entitled to assert that their interest in further performance of the contract has ceased. The Provider is further liable in accordance with statutory provisions if the delivery delay is based on an intentional or grossly negligent breach of contract for which the Provider is responsible; the Provider must in this respect accept liability for fault on the part of its vicarious agents or representatives. In these cases, the Provider's liability for damages is limited to the foreseeable damage typically arising; the limitations of liability contained in Section 13 of these Terms do not apply.

8.5 If the Provider itself is not properly or not promptly supplied by its own supplier, the Provider is released from its delivery obligation in whole or in part; however, this only applies if the Provider is not itself responsible for the non-delivery. In the event of unavailability or only partial availability of the goods, the customer will be informed immediately; any consideration already provided by the customer will be refunded without delay.

8.6 If the Provider is prevented from fulfilling its obligation, despite exercising reasonable care, by force majeure, in particular by the occurrence of unforeseeable, extraordinary circumstances (e.g. energy supply difficulties, strike or lockout, operational disruptions), the delivery period shall be extended by a reasonable amount. If delivery and performance become impossible for the Provider in these cases, the Provider is released from its performance obligations.

9. Customer's Obligations

9.1 The customer must ensure that the hardware can be properly delivered at the agreed delivery time.

9.2 The customer is obliged to check the contractual products immediately after delivery for proper function and completeness (including with regard to the documentation).

9.3 In the event of any notification of defects by the customer, the customer shall enable and grant the Provider and its personnel unimpeded access to the relevant contractual products during normal business hours.

9.4 The customer is responsible for the proper and, where applicable, regular registration and licensing of the purchased hardware and software.

10. Passing of Risk

10.1 The risk of accidental loss and accidental deterioration of the purchased item passes to the customer upon handover, or in the case of a sale involving dispatch, upon delivery of the goods to the freight forwarder, carrier, or other person or company designated to carry out the shipment.

10.2 If the customer so wishes, the Provider will take out transport insurance; the customer bears the costs incurred for this.

11. Remuneration

11.1 The customer pays the Provider the (net) remuneration stated in the order, plus statutory value-added tax.

11.2 Unless otherwise agreed, invoiced amounts are due immediately upon delivery. If the customer does not pay, or only partially pays, the agreed remuneration, the customer shall be in default no later than 30 days after the due date.

11.3 If the customer does not pay, or does not pay on time, the Provider is entitled to charge interest on the customer's outstanding debt at a rate of 8 percentage points above the base interest rate from the date of default.

11.4 A loss of the contractual item after the passing of risk to the customer, for which the Provider is not responsible, does not affect the customer's payment obligation.

12. Defects of Title and Quality

12.1 The customer is obliged to check the contractual products immediately after delivery for proper function and completeness (including with regard to the documentation). The customer shall notify the Provider of any defects without delay, if possible in text form and, where reasonable, in a form comprehensible to the Provider (duty to inspect and give notice of defects). If this duty to inspect is breached, the delivery is deemed approved with regard to the relevant defect. The customer shall notify defects that only become apparent later, if possible in text form and without delay after discovery. In these cases too, the customer should document the defects for the Provider in as comprehensible a manner as possible.

12.2 If a defect exists in the purchased item, the Provider is entitled, at its discretion, to remedy the defect within a reasonable period, or to deliver a new item free of defects. The customer is entitled to demand a specific type of remedy if the other type of remedy would be unreasonable for the customer.

12.3 In the case of remedying a defect, the Provider is obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item was taken to a location other than the place of performance; the latter does not apply if the transfer to the other location corresponds to the intended use of the purchased item.

12.4 If the remedy fails and the customer has set a reasonable deadline, allowing the Provider at least two attempts at remedy, the customer is entitled, at their discretion, to withdraw from the contract or to demand a reduction in price. Setting a deadline by the customer is not required if this is no longer reasonable for the customer, in particular if the Provider has finally and seriously refused to provide the remedy. In the event of a justified withdrawal by the customer, the Provider is entitled to demand reasonable compensation for the use of the products by the customer. In addition, if the Provider is at fault, the customer may claim damages in lieu of performance or reimbursement of expenses. In the case of only minor defects, the customer is not entitled to a right of withdrawal or a claim for damages. If the customer chooses damages, the provisions on liability under Section 13 of these Terms apply.

12.5 The limitation period for defects in the contractual products (including documentation) is 12 months, starting from their delivery; for other claims for damages or reimbursement of futile expenses, the limitation period is 12 months, but not starting from the delivery of the contractual products, but rather from the point in time at which the customer became aware of the circumstances giving rise to the claim, or would have had to become aware of them without gross negligence. In the case of claims for injury to body, life and health, the statutory provisions regarding limitation periods remain applicable. If the Provider has fraudulently concealed a defect, has assumed a guarantee for the quality, or if there are defects of title within the meaning of Section 438(1) No. 1 BGB, the statutory limitation periods also apply, as they do for claims under the German Product Liability Act.

12.6 The limitation period for a supplier's right of recourse under Sections 478, 479 BGB also remains unaffected.

12.7 If the contractual item is software, the following applies in addition to the provisions set out in Sections 12.1 to 12.6:

12.7.1 If third-party rights are infringed, the Provider may remedy this by acquiring, for the benefit of the customer, a right of use sufficient for the purposes of this contract, or by replacing the infringing software – with only reasonable effects on its function for the customer – with software whose contractual use does not infringe any protective rights, or by delivering a new product item whose contractual use does not infringe any third-party protective rights.

12.7.2 No liability is assumed for the software's suitability for the customer's purposes or for its compatibility with software already present at the user's premises.

13. Damages

13.1 The Provider is liable for damages only in accordance with the provisions contained in Sections 13 and 14:

13.2 The Provider's liability for damages caused intentionally or through gross negligence by the Provider or one of its vicarious agents or legal representatives is unlimited in amount.

13.3 In the case of damages arising from injury to life, body or health, liability is also unlimited in amount, even in the case of a merely negligent breach of duty on the part of the Provider or its legal representative or vicarious agent.

13.4 Liability is also unlimited in amount for damages attributable to serious organisational fault on the part of the Provider, as well as for damages caused by the absence of a guaranteed quality, or based on the Provider having fraudulently concealed a defect.

13.5 Liability under the German Product Liability Act also remains unaffected.

13.6 In the case of slightly negligent breaches of duty, where none of the cases mentioned in Sections 13.2 to 13.5 applies, the Provider's liability is limited in amount to the foreseeable damage typical for this type of contract.

13.7 Any further liability for damages is excluded; in particular, liability without fault is excluded.

13.8 If damage is attributable both to fault on the part of the Provider and to fault on the part of the customer, the customer must accept their share of contributory negligence.

13.9 The customer is responsible for regularly backing up their data. In the event of data loss for which the Provider is responsible, the Provider's liability is therefore limited in amount to the costs that would have arisen from proper data backup by the customer, in particular the costs of reproducing the data from the backup copies to be created by the customer and for restoring the data that would also have been lost even if the data had been properly backed up.

13.10 If a third party takes action against the customer due to an infringement of rights, the customer shall, wherever possible, give the Provider the opportunity to indemnify the customer, whether through negotiations with the third party and/or by delivering a product that does not infringe the rights of the third party.

14. Overall Liability

Insofar as liability for damages against the Provider is excluded or limited in these Terms, or under an individual agreement, this also applies with regard to the personal liability for damages of the Provider's employees, workers, representatives and vicarious agents.

15. Retention of Title

15.1 The Provider retains title to the purchased item until receipt of all payments arising from the business relationship with the customer. Insofar as the Provider has agreed with the customer that payment of the purchase price debt is to be made via a bill of exchange/cheque procedure, the reservation also extends to the encashment of the bill of exchange accepted by the Provider by the customer, and does not lapse upon crediting of the received cheque to the Provider. In the event of conduct by the customer in breach of contract, in particular default in payment, the Provider is entitled, after setting a reasonable deadline, to take back the purchased item. The taking back of the purchased item by the Provider does not constitute a withdrawal from the contract, unless the Provider expressly declares this. After taking back the purchased item, we are entitled to sell it; the proceeds of the sale are to be credited against the customer's liabilities, less reasonable costs of realisation.

15.2 The customer is obliged to treat the purchased item with care for as long as the retention of title exists. In the event of seizures or other interventions by third parties, the customer must notify the Provider immediately, so that the Provider can bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action under Section 771 ZPO, the customer is liable for the resulting shortfall incurred by the Provider.

15.3 The customer is entitled to resell the purchased item in the ordinary course of business; however, the customer hereby already assigns to the Provider all claims in the amount of the final invoice amount (including VAT) of the Provider's claim, arising from the resale against its customers or third parties, regardless of whether the purchased item was resold without or after processing. The customer remains authorised to collect this claim even after the assignment. The Provider's authority to collect the claim itself remains unaffected by this. However, the Provider undertakes not to collect the claim as long as the customer meets their payment obligations from the proceeds received, does not default on payment, and in particular has not filed for insolvency proceedings or ceased payments. However, should this be the case, the Provider may demand that the customer disclose the claims assigned to the Provider and their debtors, provide all information necessary for collection, hand over the corresponding documents, and notify the debtors or third parties of the assignment.

15.4 Any processing or transformation of the purchased item by the customer is always carried out on behalf of the Provider. If the purchased item is processed together with other items not belonging to us, the Provider acquires co-ownership of the new item in proportion to the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the item created through processing as to the purchased item delivered subject to retention of title.

15.5 If the purchased item is inseparably mixed with other items not belonging to the Provider, we acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is deemed agreed that the customer transfers proportional co-ownership to the Provider. The customer shall keep the resulting sole or co-ownership in safekeeping for the Provider.

15.6 The Provider undertakes to release the securities held by it at the customer's request, to the extent that the realisable value of the securities granted to the Provider exceeds the claims to be secured by more than 10%. The selection of the securities to be released is at the Provider's discretion.

C. Supplementary Terms for Services and Work Performance

Insofar as the Provider provides services and/or work performance to the customer, the following provisions of Sections 16 to 20 apply in addition to "A. General Provisions" (Sections 1 to 6):

16. Scope of Services

16.1 The scope of the services and/or work performance to be provided by the Provider is determined exclusively by the individual order agreed between the customer and the Provider.

16.2 The customer is obliged to provide the Provider with a sufficiently detailed specification, or to develop one together with the Provider, from which the type, scope and objective of the services to be provided by the Provider clearly emerge. Should either party determine during the course of performing a service that a change to the originally defined scope of services is necessary or advisable, it shall notify the other party of this without delay, stating the reasons. In such a case, the parties shall coordinate on the implementation of the proposed change to the service, as well as on the possible effects on the time of performance and the remuneration for the service. The Provider is only obliged to implement a change to the service once the Provider has agreed to it.

17. Acceptance of Work Performance

17.1 The work performance provided by the Provider for the customer must be checked by the customer for conformity with the contract without delay after completion. If the customer, during their inspection, identifies deviations from the specification or the contractually agreed requirements, they shall notify the Provider of this without delay in text form. The notification should contain a sufficiently specific description of the identified deviation to enable the Provider to identify and remedy the deviation.

17.2 Material deviations will be remedied by the Provider as soon as possible and subsequently submitted to the customer for acceptance; the renewed acceptance inspection is limited to confirming that the deviation has been remedied. Immaterial deviations shall be recorded in writing by the customer as a defect in the acceptance declaration and remedied by the Provider within the scope of the warranty.

17.3 If the customer refuses acceptance without justification or without stating reasons, the Provider may set the customer a written deadline of 14 days to declare acceptance. Acceptance is deemed to have taken place if the customer does not accept the work within this deadline, or does not specify in writing the material defects identified. Furthermore, acceptance is always deemed to have taken place as soon as the customer uses the delivered work performance for business purposes.

18. Hotline Services

18.1 As part of the telephone hotline, the Provider receives and processes telephone or written error reports from the customer, for the purpose of remedying and/or working around faults occurring at the customer's premises in the area of hardware and/or software components for which hotline services have been agreed between the parties (= contractual products). As part of the hotline, the Provider also advises the customer on the configuration, installation and handling of the contractual products.

18.2 If the hotline is contacted by employees of the customer who have not completed training for the contractual product, the Provider is entitled to charge for the additional effort resulting from the employee's lack of qualification. In all other respects, the Provider reserves the right to charge, at the applicable rates, for hotline services and information relating to devices other than the contractual devices.

19. Remuneration

The provisions of Section 11 of these Terms apply accordingly to the remuneration owed to the Provider for the services rendered.

20. Liability

The provisions of Sections 13 and 14 of these General Terms and Conditions apply accordingly to the Provider's liability.

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